SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OF THE
SECURITIES EXCHANGE ACT OF 1934
Date of Report February 4, 1994 Commission file number 33-50323
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WHOLESALE AUTO RECEIVABLES CORPORATION
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(Exact name of registrant as specified in its charter)
DELAWARE 38-3082709
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(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
1209 Orange Street, Wilmington, Delaware 19801
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(Addresses of principal executive offices) (Zip Code)
Registrant's telephone number, including area code 313-556-1508
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Item 7. Financial Statements and Exhibits.
(a) Not Applicable
(b) Not Applicable
(c) Exhibits
4.1 Indenture between Superior Wholesale Inventory
Financing Trust I (the "Trust") and The Bank of
New York, a New York Banking Corporation, as
Indenture Trustee, dated as of January 25, 1994
4.2 Officer's Issuance Certificate dated as of
January 25, 1994.
25.1 Statement of Eligibility on Form T-1 of The Bank
of New York as Indenture Trustee under the
Indenture
99.1 Pooling and Servicing Agreement between General
Motors Acceptance Corporation and Wholesale Auto
Receivables Corporation (the "Seller") dated as
of January 25, 1994
99.2 Trust Sale and Servicing Agreement among General
Motors Acceptance Corporation, as Servicer, the
Seller and the Trust, dated as of January 25, 1994
99.3 Trust Agreement between Wholesale Auto Receivables
Corporation and Citibank Delaware, as Owner Trustee,
dated as of January 25, 1994
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SIGNATURE
Pursuant to the requirements of the Securities Exchange Act
of 1934, the registrant has duly caused this report to be signed
on its behalf by the undersigned thereunto duly authorized.
Wholesale Auto Receivables Corporation
(Registrant)
s\ F. A. Henderson
----------------------------------------
(Frederick A. Henderson, Vice President)
Date: February 4, 1994
3
EXHIBIT 4.1
SUPERIOR WHOLESALE INVENTORY FINANCING TRUST I
ASSET-BACKED TERM NOTES
ASSET-BACKED REVOLVING NOTES
INDENTURE
DATED AS OF JANUARY 25, 1994
THE BANK OF NEW YORK,
A NEW YORK BANKING CORPORATION,
INDENTURE TRUSTEE
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CROSS-REFERENCE TABLE
TIA Indenture
Section Section
310 (a) (1) . . . . . . . . . . . . . .6.11
(a) (2) . . . 6.11
(a) (3) . . . 6.10
(a) (4) . . . 6.14
(b) 6.11
(c) N.A.
311 (a) . . . . . . . . . . . . . .6.12
(b) 6.12
(c) N.A.
312 (a) . . . . . . . . . . . . . .7.1, 7.2
(b) 7.2
(c) 7.2
313 (a) 7.4 (a), 7.4 (b)
(b) (1) . . . 7.4 (a)
(b) (2) . . . 7.4 (a)
(c) 7.4 (a)
(d) 7.4 (a)
314 (a) . . . . . . . . . . . . . .7.3 (a), 3.9
(b) 3.6
(c) (1) . . . 2.1, 2.9, 4.1, 11.1 (a)
(c) (2) . . . 2.1, 2.9, 4.1, 11.1 (a)
(c) (3) . . . 2.9, 4.1, 11.1 (a)
(d) 2.9, 11.1 (b)
(e) 11.1 (a)
(f) 11.1 (a)
315 (a) . . . . . . . . . . . . . .6.1 (b)
(b) 6.5
(c) 6.1 (a)
(d) 6.2, 6.1 (c)
(e) 5.13
316 (a) last
sentence . . . . . . . . . . . . . .1.1
(a) (1) (A) . . 5.11
(a) (1) (B) . . 5.12
(a) (2) . . . Omitted
316 (b) , (C). . . . . . . . . . . . . .5.7
317 (a) (1) . . . . . . . . . . . . . .5.3 (b)
(a) (2) . . . 5.3 (d)
(b) 3.3
318 (a) . . . . . . . . . . . . . .11.7
N.A. means Not Applicable.
Note: This cross reference table shall not, for any purpose, be
deemed to be part of this Indenture.
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TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS AND INCORPORATION BY REFERENCE
1.1 Definitions . . . . . . . . . . . . . . . . . . . . . . . . 2
1.2 Incorporation by Reference of Trust Indenture
Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
ARTICLE II
THE NOTES
2.1 Issuance of Notes; Execution, Authentication and
Delivery. . . . . . . . . . . . . . . . . . . . . . . . . . 3
2.2 Form of Notes and Indenture Trustee's
Certificate of Authentication . . . . . . . . . . . . . . . 5
2.3 Temporary Notes . . . . . . . . . . . . . . . . . . . . . . 6
2.4 Registration; Registration of Transfer and
Exchange of Notes . . . . . . . . . . . . . . . . . . . . . 6
2.5 Mutilated, Destroyed, Lost or Stolen Notes. . . . . . . . . 8
2.6 Persons Deemed Noteholders. . . . . . . . . . . . . . . . . 9
2.7 Payment of Principal and Interest . . . . . . . . . . . . . 9
2.8 Cancellation of Notes . . . . . . . . . . . . . . . . . . . 10
2.9 Release of Collateral . . . . . . . . . . . . . . . . . . . 11
2.10 Book-Entry Notes. . . . . . . . . . . . . . . . . . . . . . 11
2.11 Notices to Clearing Agency. . . . . . . . . . . . . . . . . 12
2.12 Definitive Term Notes . . . . . . . . . . . . . . . . . . . 12
2.13 Seller as Noteholder. . . . . . . . . . . . . . . . . . . . 13
2.14 Tax Treatment . . . . . . . . . . . . . . . . . . . . . . . 13
2.15 Special Terms Applicable to Subsequent Transfers
of Certain Notes. . . . . . . . . . . . . . . . . . . . . . 13
ARTICLE III
COVENANTS
3.1 Payment of Principal and Interest . . . . . . . . . . . . . 14
3.2 Maintenance of Agency Office. . . . . . . . . . . . . . . . 14
3.3 Money for Payments To Be Held in Trust. . . . . . . . . . . 15
3.4 Existence . . . . . . . . . . . . . . . . . . . . . . . . . 17
3.5 Protection of Trust Estate; Acknowledgment of
Pledge. . . . . . . . . . . . . . . . . . . . . . . . . . . 17
3.6 Opinions as to Trust Estate . . . . . . . . . . . . . . . . 17
3.7 Performance of Obligations; Servicing of
Receivables . . . . . . . . . . . . . . . . . . . . . . . . 18
3.8 Negative Covenants. . . . . . . . . . . . . . . . . . . . . 19
3.9 Annual Statement as to Compliance . . . . . . . . . . . . . 20
3.10 Consolidation, Merger, etc., of Issuer;
Disposition of Trust Assets.. . . . . . . . . . . . . . . . 20
3.11 Successor or Transferee . . . . . . . . . . . . . . . . . . 22
3.12 No Other Business . . . . . . . . . . . . . . . . . . . . . 23
3.13 No Borrowing. . . . . . . . . . . . . . . . . . . . . . . . 23
3.14 Guarantees, Loans, Advances and Other
Liabilities . . . . . . . . . . . . . . . . . . . . . . . 23
3.15 Servicer's Obligations . . . . . . . . . . . . . . . . . . 23
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3.16 Capital Expenditures. . . . . . . . . . . . . . . . . . . . 23
3.17 Removal of Administrator. . . . . . . . . . . . . . . . . . 23
3.18 Restricted Payments . . . . . . . . . . . . . . . . . . . . 23
3.19 Notice of Events of Default . . . . . . . . . . . . . . . . 24
3.20 Further Instruments and Acts. . . . . . . . . . . . . . . . 24
3.21 Trustee's Assignment of Interests in Certain
Receivables.. . . . . . . . . . . . . . . . . . . . . . . . 24
3.22 Representations and Warranties by the Issuer to
the Indenture Trustee . . . . . . . . . . . . . . . . . . . 25
ARTICLE IV
SATISFACTION AND DISCHARGE
4.1 Satisfaction and Discharge of Indenture . . . . . . . . . . 25
4.2 Application of Trust Money. . . . . . . . . . . . . . . . . 26
4.3 Repayment of Monies Held by Paying Agent. . . . . . . . . . 27
4.4 Duration of Position of Indenture Trustee . . . . . . . . . 27
ARTICLE V
DEFAULT AND REMEDIES
5.1 Events of Default . . . . . . . . . . . . . . . . . . . . . 27
5.2 Acceleration of Maturity; Rescission and
Annulment . . . . . . . . . . . . . . . . . . . . . . . . . 29
5.3 Collection of Indebtedness and Suits for
Enforcement by Indenture Trustee. . . . . . . . . . . . . . 29
5.4 Remedies; Priorities. . . . . . . . . . . . . . . . . . . . 32
5.5 Optional Preservation of the Trust Estate . . . . . . . . . 33
5.6 Limitation of Suits . . . . . . . . . . . . . . . . . . . . 33
5.7 Unconditional Rights of Noteholders To Receive
Principal and Interest. . . . . . . . . . . . . . . . . . . 34
5.8 Restoration of Rights and Remedies. . . . . . . . . . . . . 34
5.9 Rights and Remedies Cumulative. . . . . . . . . . . . . . . 35
5.10 Delay or Omission Not a Waiver. . . . . . . . . . . . . . . 35
5.11 Control by Noteholders. . . . . . . . . . . . . . . . . . . 35
5.12 Waiver of Past Defaults . . . . . . . . . . . . . . . . . . 36
5.13 Undertaking for Costs . . . . . . . . . . . . . . . . . . . 36
5.14 Waiver of Stay or Extension Laws. . . . . . . . . . . . . . 37
5.15 Action on Notes . . . . . . . . . . . . . . . . . . . . . . 37
5.16 Performance and Enforcement of Certain
Obligations . . . . . . . . . . . . . . . . . . . . . . . . 37
ARTICLE VI
THE INDENTURE TRUSTEE
6.1 Duties of Indenture Trustee . . . . . . . . . . . . . . . . 39
6.2 Rights of Indenture Trustee . . . . . . . . . . . . . . . . 40
6.3 Indenture Trustee May Own Notes . . . . . . . . . . . . . . 41
6.4 Indenture Trustee's Disclaimer. . . . . . . . . . . . . . . 41
6.5 Notice of Defaults. . . . . . . . . . . . . . . . . . . . . 41
6.6 Reports by Indenture Trustee to Holders . . . . . . . . . . 41
6.7 Compensation; Indemnity . . . . . . . . . . . . . . . . . . 41
6.8 Replacement of Indenture Trustee. . . . . . . . . . . . . . 42
6.9 Merger or Consolidation of Indenture Trustee. . . . . . . . 43
6.10 Appointment of Co-Indenture Trustee or Separate
Indenture Trustee . . . . . . . . . . . . . . . . . . . . . 43
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6.11 Eligibility; Disqualification . . . . . . . . . . . . . . . 45
6.12 Preferential Collection of Claims Against
Issuer. . . . . . . . . . . . . . . . . . . . . . . . . . . 45
6.13 Representations and Warranties of Indenture
Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . 45
6.14 Indenture Trustee May Enforce Claims Without
Possession of Notes . . . . . . . . . . . . . . . . . . . . 46
6.15 Suit for Enforcement. . . . . . . . . . . . . . . . . . . . 46
6.16 Rights of Noteholders to Direct Indenture
Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . 47
ARTICLE VII
NOTEHOLDERS' LISTS AND REPORTS
7.1 Issuer To Furnish Indenture Trustee Names and
Addresses of Noteholders. . . . . . . . . . . . . . . . . . 47
7.2 Preservation of Information, Communications to
Noteholders . . . . . . . . . . . . . . . . . . . . . . . . 47
7.3 Reports by Issuer . . . . . . . . . . . . . . . . . . . . . 48
7.4 Reports by Trustee. . . . . . . . . . . . . . . . . . . . . 48
ARTICLE VIII
ACCOUNTS, DISBURSEMENTS AND RELEASES
8.1 Collection of Money . . . . . . . . . . . . . . . . . . . . 49
8.2 Designated Accounts; Payments . . . . . . . . . . . . . . . 49
8.3 General Provisions Regarding Designated
Accounts. . . . . . . . . . . . . . . . . . . . . . . . . . 51
8.4 Release of Trust Estate . . . . . . . . . . . . . . . . . . 52
8.5 Opinion of Counsel. . . . . . . . . . . . . . . . . . . . . 52
ARTICLE IX
SUPPLEMENTAL INDENTURES
9.1 Supplemental Indentures Without Consent of
Noteholders . . . . . . . . . . . . . . . . . . . . . . . . 53
9.2 Supplemental Indentures With Consent of
Noteholders . . . . . . . . . . . . . . . . . . . . . . . . 54
9.3 Execution of Supplemental Indentures. . . . . . . . . . . . 56
9.4 Effect of Supplemental Indenture. . . . . . . . . . . . . . 56
9.5 Conformity with Trust Indenture Act . . . . . . . . . . . . 57
9.6 Reference in Notes to Supplemental Indentures . . . . . . . 57
ARTICLE X
REDEMPTION OF TERM NOTES
10.1 Redemption. . . . . . . . . . . . . . . . . . . . . . . . . 57
10.2 Form of Redemption Notice . . . . . . . . . . . . . . . . . 58
10.3 Term Notes Payable on Redemption Date . . . . . . . . . . . 58
ARTICLE XI
MISCELLANEOUS
11.1 Compliance Certificates and Opinions, etc.. . . . . . . . . 59
11.2 Form of Documents Delivered to Indenture
Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . 61
11.3 Acts of Noteholders . . . . . . . . . . . . . . . . . . . . 62
11.4 Notices, etc., to Indenture Trustee, Issuer and
Rating Agencies . . . . . . . . . . . . . . . . . . . . . . 62
11.5 Notices to Noteholders; Waiver. . . . . . . . . . . . . . . 63
11.6 Alternate Payment and Notice Provisions . . . . . . . . . . 64
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11.7 Conflict with Trust Indenture Act . . . . . . . . . . . . . 64
11.8 Effect of Headings and Table of Contents. . . . . . . . . . 64
11.9 Successors and Assigns. . . . . . . . . . . . . . . . . . . 64
11.10 Separability. . . . . . . . . . . . . . . . . . . . . . 65
11.11 Benefits of Indenture . . . . . . . . . . . . . . . . . 65
11.12 Legal Holidays. . . . . . . . . . . . . . . . . . . . . 65
11.13 GOVERNING LAW . . . . . . . . . . . . . . . . . . . . . 65
11.14 Counterparts. . . . . . . . . . . . . . . . . . . . . . 65
11.15 Recording of Indenture. . . . . . . . . . . . . . . . . 65
11.16 No Recourse . . . . . . . . . . . . . . . . . . . . . . 66
11.17 No Petition . . . . . . . . . . . . . . . . . . . . . . 67
11.18 Inspection. . . . . . . . . . . . . . . . . . . . . . . 67
EXHIBIT A Form of Transfer Certificate
EXHIBIT B Form of Undertaking Letter
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INDENTURE, dated as of January 25, 1994, between
SUPERIOR WHOLESALE INVENTORY FINANCING TRUST I, a Delaware
business trust (the "Issuer"), and THE BANK OF NEW YORK, a New
York banking corporation, as trustee and not in its individual
capacity (the "Indenture Trustee").
Each party agrees as follows for the benefit of the
other party and for the equal and ratable benefit of the Holders
of the Notes and (only to the extent expressly provided herein)
the Certificates:
GRANTING CLAUSE
The Issuer hereby grants to the Indenture Trustee, as
trustee for the benefit of the Noteholders and (only to the
extent expressly provided herein) the Certificateholders, all of
the Issuer's right, title and interest in, to and under (a) all
Eligible Receivables, all Collateral Security with respect
thereto, all monies due or to become due thereon and all amounts
received with respect thereto and all proceeds thereof
(including "proceeds" as defined in Section 9-306 of the UCC and
Recoveries), (b) the Trust Sale and Servicing Agreement
(including the rights of Wholesale Auto Receivables Corporation
(the "Seller") under the Pooling and Servicing Agreement
assigned to the Issuer pursuant to the Trust Sale and Servicing
Agreement), (c) the Basis Swap, including the right to receive
payments thereunder and (d) any proceeds of any of the foregoing
(collectively with the items described in clauses (a), (b) and
(c), the "Collateral").
The foregoing grant is made in trust to secure the
payment of principal of and interest on, and any other amounts
owing in respect of, the Notes, equally and ratably without
prejudice, priority or distinction (except as otherwise provided
in any Officer's Issuance Certificate or supplement hereto), to
secure (only to the extent expressly provided herein)
distributions of Certificate Balance with respect to and
interest on the Certificates, and to secure compliance with the
provisions of this Indenture, all as provided in this Indenture.
This Indenture constitutes a security agreement under the UCC.
The foregoing grant includes all rights, powers and
options (but none of the obligations, if any) of the Issuer
under any agreement or instrument included in the Collateral,
including the immediate and continuing right to claim for,
collect, receive and give receipt for principal and interest
payments in respect of the Receivables included in the
Collateral and all other monies payable under the Collateral, to
give and receive notices and other communications, to make
waivers or other agreements, to exercise all rights and options,
to bring Proceedings in the name of the Issuer or otherwise and
generally to do and receive anything that the Issuer is or may
be entitled to do or receive under or with respect to the
Collateral.
The Indenture Trustee, as trustee on behalf of the
Noteholders and (only to the extent expressly provided herein)
the Certificateholders, acknowledges such grant and accepts the
trusts under this Indenture in accordance with the provisions of
this Indenture.
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ARTICLE I
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.1 DEFINITIONS. Certain capitalized terms
used in this Indenture shall have the respective meanings
assigned them in Appendix A to the Trust Sale and Servicing
Agreement dated as of January 25, 1994 (the "Trust Sale and
Servicing Agreement") among the Issuer, the Seller and General
Motors Acceptance Corporation ("GMAC"). All references herein
to "this Indenture" are to this Indenture as it may be amended,
supplemented or modified from time to time, and all references
herein to Articles, Sections, subsections and exhibits are to
Articles, Sections, subsections and exhibits of this Indenture
unless otherwise specified. All terms defined in this Indenture
shall have the defined meanings when used in any certificate,
notice, Note or other document made or delivered pursuant hereto
unless otherwise defined therein.
SECTION 1.2 INCORPORATION BY REFERENCE OF TRUST
INDENTURE ACT. Whenever this Indenture refers to a provision of
the TIA, such provision is incorporated by reference in and made
a part of this Indenture. The following TIA terms used in this
Indenture have the following meanings:
"Commission" means the Securities and Exchange
Commission.
"indenture securities" means the Notes.
"indenture trustee" means the Indenture Trustee.
"obligor" on the indenture securities means the Issuer
and any other obligor on the indenture securities.
All other TIA terms used in this Indenture that are
defined by the TIA, defined by TIA reference to another statute
or defined by a Commission rule have the respective meanings
assigned to them by such definitions.
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ARTICLE II
THE NOTES
SECTION 2.1 ISSUANCE OF NOTES; EXECUTION,
AUTHENTICATION AND DELIVERY.
(a) Term Notes and Revolving Notes may be issued by
the Issuer upon execution of this Indenture and from time to
time thereafter, in each case, in accordance with the terms and
conditions authorized by or pursuant to an Officer's Issuance
Certificate. The Term Notes may be issued in one or more
series. The Revolving Notes may be issued in one or more
series. The aggregate principal amount of the Revolving Notes
and the Term Notes of all series that may be authenticated and
delivered and outstanding under this Indenture is not limited.
(b) The Notes shall be executed on behalf of the
Issuer by any of its Authorized Officers. The signature of any
such Authorized Officer on the Notes may be manual or facsimile.
Notes bearing the manual or facsimile signature of individuals
who were at any time Authorized Officers of the Issuer shall
bind the Issuer, notwithstanding that such individuals or any of
them have ceased to hold such office prior to the authentication
and delivery of such Notes or did not hold such office at the
date of such Notes.
(c) Prior to or concurrently with the delivery of any
Note to the Indenture Trustee for authentication, the Seller
shall execute and deliver to the Indenture Trustee, or cause to
be executed and delivered to the Indenture Trustee, an Officer's
Issuance Certificate and an Opinion of Counsel.
(i) The Officer's Issuance Certificate shall set
forth, in addition to all other requirements of such
certificate:
(A) the designation of the particular series
(which shall distinguish such series from all other
series);
(B) the aggregate principal amount of the
series which may be authenticated and delivered under this
Indenture (except for Notes authenticated and delivered
upon registration and transfer of, or in exchange for, or
in lieu of, other Notes of such series pursuant to this
Indenture);
(C) the amount of or method for determining
principal payments and the timing of such payments,
including the Targeted Final Payment Date, if any, and the
Stated Final Payment Date;
(D) the rate or rates at which the Notes of
such series shall bear interest, if any, or the initial
interest rate and the method for determining subsequent
interest rates, the date or dates from which such interest
shall accrue, the date or dates on which such interest
shall be payable and the record date or dates for the
interest payable;
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(E) the obligations or rights, if any, of
the Issuer to redeem or purchase Term Notes of such series
or other redemption provisions and the price or prices at
which and the terms and conditions upon which Term Notes of
such series shall be redeemed or purchased;
(F) if other than the principal amount
thereof, the portion of the principal amount of Notes of
such series which shall be payable upon acceleration of the
maturity thereof;
(G) without limiting the generality of the
foregoing, and to the extent applicable, the extent to
which payments on the Notes are senior, subordinate or PARI
PASSU in right of payment of principal and interest to
other Notes;
(H) without limiting the generality of the
foregoing, if the Notes of such series are Revolving Notes,
the Revolver Interest Rate and the Specified Maximum
Revolver Balance;
(I) whether such Notes will be issued as
Book-Entry Notes and whether and the extent to which
Section 2.15 shall apply; and
(J) any other terms or provisions of such
series which shall not be inconsistent with the provisions
of this Indenture.
The terms of each series of Notes as provided for in an
Officer's Issuance Certificate are part of the terms of this
Indenture.
(ii) The Opinion of Counsel shall provide, in
addition to all other requirements of such opinion:
(A) that the form and terms of such Notes
have been established by or pursuant to an Officer's
Issuance Certificate in conformity with the terms of this
Indenture;
(B) that Notes in such form, when completed
by appropriate insertions and executed and delivered by the
Issuer to the Indenture Trustee for authentication in
accordance with this Indenture, authenticated and delivered
by the Indenture Trustee in accordance with this Indenture
and sold in the manner specified in such Opinion of
Counsel, will be valid and legally binding obligations of
the Issuer;
(C) No approval, authorization, consent or
order of any court or governmental agency or body which has
not already been obtained or given is required in
connection with the valid and proper authorization,
issuance and sale of the Notes pursuant to this Indenture
subject to certain exceptions, including but not limited
to, state securities and Blue Sky laws and routine renewals
of existing licenses and payments; and
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(D) for such other matters as the Indenture
Trustee may reasonably request.
(c) Upon execution and delivery of an Officer's
Issuance Certificate and Opinion of Counsel to the Indenture
Trustee, the Indenture Trustee shall thereupon authenticate and
deliver the related Notes to or upon the written order of the
Issuer, signed by any Authorized Officer.
SECTION 2.2 FORM OF NOTES AND INDENTURE TRUSTEE'S
CERTIFICATE OF AUTHENTICATION.
(a) The Notes shall be in the forms provided from
time to time by or pursuant to an Officer's Issuance Certificate
and may have such letters, numbers or other marks of
identification or designation and such legends or endorsements
printed, lithographed or engraved thereon as the Issuer may deem
appropriate and as are not inconsistent with the provisions of
this Indenture, or as may be required to comply with any law or
with any rule or regulation made pursuant thereto or with any
rule or regulation of any stock exchange on which the Notes may
be listed or to conform to usage. Any portion of the text of
any Note may be set forth on the reverse thereof, with an
appropriate reference thereto on the face of the Note. The
Definitive Term Notes shall be typewritten, printed,
lithographed or engraved or produced by any combination of these
methods (with or without steel engraved borders), all as
determined by the Authorized Officer executing such Notes, as
evidenced by such officer's execution of such Notes.
(b) The Indenture Trustee's certificate of
authentication shall be substantially in the following form:
INDENTURE TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Notes designated above and
referred to in the within-mentioned Indenture.
The Bank of New York, not in
its individual capacity but
solely as Indenture Trustee
By:
_________________________
Name:
Title:
(c) Each Note shall be dated the date of its
authentication. Unless otherwise provided in the related
Officer's Issuance Certificate, (i) each Term Note shall be
issuable as a registered Note in the minimum denomination of
$1,000 and in integral multiples thereof, (ii) each Revolving
Note shall be issuable as a registered Note in the minimum
denomination of $100,000 and in any amount in excess thereof and
(iii) Revolving Notes shall be issued as Definitive Notes and
Sections 2.10, 2.11 and 2.12 of this Indenture shall not apply
to the Revolving Notes.
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SECTION 2.3 TEMPORARY NOTES.
(a) Pending the preparation of Definitive Term Notes,
if any, to be issued in exchange for Book-Entry Notes the Issuer
may execute, and upon receipt of an Issuer Order the Indenture
Trustee shall authenticate and deliver, such Temporary Notes
which are printed, lithographed, typewritten, mimeographed or
otherwise produced, of the tenor of the Definitive Term Notes in
lieu of which they are issued and with such variations as are
consistent with the terms of this Indenture as the officers
executing such Notes may determine, as evidenced by their
execution of such Notes.
(b) If Temporary Notes are issued, the Issuer shall
cause Definitive Term Notes to be prepared without unreasonable
delay. After the preparation of Definitive Term Notes, the
Temporary Notes shall be exchangeable for Definitive Term Notes
upon surrender of the Temporary Notes at the Agency Office of
the Issuer to be maintained as provided in Section 3.2, without
charge to the Noteholder. Upon surrender for cancellation of
any one or more Temporary Notes, the Issuer shall execute and
the Indenture Trustee shall authenticate and deliver in exchange
therefor a like principal amount of Definitive Term Notes of
authorized denominations. Until so delivered in exchange, the
Temporary Notes shall in all respects be entitled to the same
benefits under this Indenture as Definitive Term Notes.
SECTION 2.4 REGISTRATION; REGISTRATION OF TRANSFER
AND EXCHANGE OF NOTES.
(a) The Issuer shall cause to be kept the Note
Register, comprising separate registers for each series of
Notes, in which, subject to such reasonable regulations as the
Issuer may prescribe, the Issuer shall provide for the
registration of the Notes and the registration of transfers and
exchanges of the Notes. The Indenture Trustee shall initially
be the Note Registrar for the purpose of registering the Notes
and transfers of the Notes as herein provided. Upon any
resignation of any Note Registrar, the Issuer shall promptly
appoint a successor Note Registrar or, if it elects not to make
such an appointment, assume the duties of the Note Registrar.
(b) If a Person other than the Indenture Trustee is
appointed by the Issuer as Note Registrar, the Issuer shall give
the Indenture Trustee prompt written notice of the appointment
of such Note Registrar and of the location, and any change in
the location, of the Note Register. The Indenture Trustee shall
have the right to inspect the Note Register at all reasonable
times and to obtain copies thereof. The Indenture Trustee shall
have the right to rely upon a certificate executed on behalf of
the Note Registrar by an Executive Officer thereof as to the
names and addresses of the Noteholders and the principal amounts
and number of such Notes.
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(c) Upon surrender for registration of transfer of
any Note at the Corporate Trust Office of the Indenture Trustee
or the Agency Office of the Issuer (and following the delivery,
in the former case, of such Notes to the Issuer by the Indenture
Trustee), the Issuer shall execute, the Indenture Trustee shall
authenticate and the Noteholder shall obtain from the Indenture
Trustee, in the name of the designated transferee or
transferees, one or more new Notes of the same series in any
authorized denominations of a like aggregate principal amount.
(d) At the option of the Noteholder, Notes may be ex-
changed for other Notes of the same series in any authorized
denominations, of a like aggregate principal amount, upon
surrender of such Notes to be exchanged at the Corporate Trust
Office of the Indenture Trustee or the Agency Office of the
Issuer (and following the delivery, in the former case, of such
Notes to the Issuer by the Indenture Trustee), the Issuer shall
execute, and the Indenture Trustee shall authenticate and the
Noteholder shall obtain from the Indenture Trustee, such Notes
which the Noteholder making the exchange is entitled to receive.
(e) All Notes issued upon any registration of
transfer or exchange of other Notes shall be the valid
obligations of the Issuer, evidencing the same debt, and
entitled to the same benefits under this Indenture, as the Notes
surrendered upon such registration of transfer or exchange.
(f) Every Note presented or surrendered for registra-
tion of transfer or exchange shall be duly endorsed by, or be
accompanied by a written instrument of transfer in form
satisfactory to the Indenture Trustee and the Note Registrar,
duly executed by the Holder thereof or such Holder's attorney
duly authorized in writing, with such signature guaranteed by a
commercial bank or trust company located, or having a
correspondent located, in the City of New York or the city in
which the Corporate Trust Office of the Indenture Trustee is
located, or by a member firm of a national securities exchange,
and such other documents as the Indenture Trustee may require.
(g) No service charge shall be made to a Holder for
any registration of transfer or exchange of Notes, but the
Issuer or Indenture Trustee may require payment of a sum
sufficient to cover any tax or other governmental charge that
may be imposed in connection with any registration of transfer
or exchange of Notes, other than exchanges pursuant to Sections
2.3 or 9.6 not involving any transfer.
(h) The preceding provisions of this Section 2.4
notwithstanding, the Issuer shall not be required to transfer or
make exchanges, and the Note Registrar need not register
transfers or exchanges, (i) of Notes that have been selected for
redemption pursuant to Article X, if applicable; (ii) of Notes
that are due for repayment within 15 days of submission to the
Corporate Trust Office or the Agency Office; or (iii) if Section
2.15 has not been complied with in connection with such
transfer.
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SECTION 2.5 MUTILATED, DESTROYED, LOST OR STOLEN
NOTES.
(a) If (i) any mutilated Note is surrendered to the
Indenture Trustee, or the Indenture Trustee receives evidence to
its satisfaction of the destruction, loss or theft of any Note,
and (ii) there is delivered to the Indenture Trustee such
security or indemnity as may be required by it to hold the
Issuer and the Indenture Trustee harmless, then, in the absence
of notice to the Issuer, the Note Registrar or the Indenture
Trustee that such Note has been acquired by a bona fide
purchaser, the Issuer shall execute and upon the Issuer's
request the Indenture Trustee shall authenticate and deliver, in
exchange for or in lieu of any such mutilated, destroyed, lost
or stolen Note, a replacement Note of a like series and
aggregate principal amount; PROVIDED, HOWEVER, that if any such
destroyed, lost or stolen Note, but not a mutilated Note, shall
have become or within seven days shall be due and payable, or
shall have been called for redemption, instead of issuing a
replacement Note, the Issuer may make payment to the Holder of
such destroyed, lost or stolen Note when so due or payable or
upon the Redemption Date, if applicable, without surrender
thereof.
(b) If, after the delivery of a replacement Note or
payment in respect of a destroyed, lost or stolen Note pursuant
to subsection (a), a bona fide purchaser of the original Note in
lieu of which such replacement Note was issued presents for
payment such original Note, the Issuer and the Indenture Trustee
shall be entitled to recover such replacement Note (or such
payment) from (i) any Person to whom it was delivered, (ii) the
Person taking such replacement Note from the Person to whom such
replacement Note was delivered or (iii) any assignee of such
Person, except a bona fide purchaser, and the Issuer and the
Indenture Trustee shall be entitled to recover upon the security
or indemnity provided therefor to the extent of any loss,
damage, cost or expense incurred by the Issuer or the Indenture
Trustee in connection therewith.
(c) In connection with the issuance of any
replacement Note under this Section 2.5, the Issuer may require
the payment by the Holder of such Note of a sum sufficient to
cover any tax or other governmental charge that may be imposed
in relation thereto and any other reasonable expenses (including
all fees and expenses of the Indenture Trustee) connected
therewith.
(d) Any duplicate Note issued pursuant to this
Section 2.5 in replacement for any mutilated, destroyed, lost or
stolen Note shall constitute an original additional contractual
obligation of the Issuer, whether or not the mutilated,
destroyed, lost or stolen Note shall be found at any time or be
enforced by any Person, and shall be entitled to all the
benefits of this Indenture equally and proportionately with any
and all other Notes duly issued hereunder.
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(e) The provisions of this Section 2.5 are exclusive
and shall preclude (to the extent lawful) all other rights and
remedies with respect to the replacement or payment of
mutilated, destroyed, lost or stolen Notes.
SECTION 2.6 PERSONS DEEMED NOTEHOLDERS. Prior to
due presentment for registration of transfer of any Note, the
Issuer, the Indenture Trustee and any agent of the Issuer or the
Indenture Trustee may treat the Person in whose name any Note is
registered (as of the day of determination) as the Noteholder
for the purpose of receiving payments of principal of and
interest on such Note and for all other purposes whatsoever,
whether or not such Note be overdue, and neither the Issuer, the
Indenture Trustee nor any agent of the Issuer or the Indenture
Trustee shall be affected by notice to the contrary.
SECTION 2.7 PAYMENT OF PRINCIPAL AND INTEREST.
(a) Interest on each series of Notes shall accrue and
be payable as provided in Section 8.2 and the applicable
Officer's Issuance Certificate. Unless otherwise provided in
the applicable Officer's Issuance Certificate, any instalment of
interest payable on any Note shall be punctually paid or duly
provided for by a deposit by or at the direction of the Issuer
into the Note Distribution Account or Revolver Distribution
Account, as applicable, on the applicable Payment Date and shall
be paid to the Person in whose name such Note (or one or more
Predecessor Notes) is registered on the applicable Record Date,
by check mailed first-class, postage prepaid to such Person's
address as it appears on the Note Register on such Record Date;
PROVIDED, HOWEVER, that, with respect to Revolving Notes and
with respect to Book-Entry Notes registered on the applicable
Record Date in the name of the Note Depository for which
Definitive Term Notes have not been issued pursuant to Section
2.12, payment shall be made by wire transfer in immediately
available funds to the account designated by such Holder.
(b) The principal of each series of Notes shall be
payable as provided in the applicable Officer's Issuance
Certificate. All principal payments on each series of Notes
shall be made pro rata to the Noteholders of such series
entitled thereto unless, with respect to any series of Revolving
Notes, otherwise provided in the related Officer's Issuance
Certificate or otherwise agreed among the Seller and the holders
of such Revolving Notes. Unless otherwise provided in the
applicable Officer's Issuance Certificate, any instalment of
principal payable on any Note shall be punctually paid or duly
provided for by a deposit by or at the direction of the Issuer
into the Note Distribution Account in the case of the Term Notes
or the Revolver Distribution Account in the case of the
Revolving Notes on the applicable Payment Date and shall be paid
to the Person in whose name such Note (or one or more
Predecessor Notes) is registered on the applicable Record Date,
by check mailed first-class, postage prepaid to such Person's
address as it appears on the Note Register on such Record Date;
PROVIDED, HOWEVER, that, with respect to Revolving Notes and
with respect to Book-Entry Notes registered on the Record Date
in the name of the Note Depository for which Definitive Term
Notes have not been
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issued pursuant to Section 2.12, payment shall be made by wire
transfer in immediately available funds to the account
designated by such Holder, except for the final instalment of
principal on any such Note and the Redemption Price for any Term
Notes, if so called, which, in each case, shall be payable as
provided herein. The funds represented by any such checks in
respect of interest or principal returned undelivered shall be
held in accordance with Section 3.3.
(c) With respect to any Payment Date on which the
final instalment of principal and interest on a series of Notes
is to be paid, the Indenture Trustee shall notify each
Noteholder of such series of Notes as of the Record Date for
such Payment Date of the fact that the final instalment of
principal of and interest on such Note is to be paid on such
Payment Date. With respect to Book-Entry Notes for which
Definitive Term Notes have not been issued, such notice shall be
sent on the Business Day prior to such Payment Date by
facsimile, and with respect to Definitive Term Notes and
Revolving Notes, such notice shall be sent not later than three
Business Days after such Record Date in accordance with Section
11.5(a), and, in each case, shall specify that such final in-
stalment shall be payable only upon presentation and surrender
of such Note and shall specify the place where such Note may be
presented and surrendered for payment of such instalment.
Notices in connection with redemptions of Term Notes shall be
mailed to Noteholders as provided in Section 10.2.
SECTION 2.8 CANCELLATION OF NOTES. All Notes
surrendered for payment, redemption, exchange or registration of
transfer shall, if surrendered to any Person other than the
Indenture Trustee, be delivered to the Indenture Trustee and
shall be promptly canceled by the Indenture Trustee. The Issuer
may at any time deliver to the Indenture Trustee for
cancellation any Notes previously authenticated and delivered
hereunder which the Issuer may have acquired in any manner
whatsoever (other than for deposit in the Reserve Fund), and all
Notes so delivered shall be promptly canceled by the Indenture
Trustee. No Notes shall be authenticated in lieu of or in
exchange for any Notes canceled as provided in this Section 2.8,
except as expressly permitted by this Indenture. All canceled
Notes may be held or disposed of by the Indenture Trustee in
accordance with its standard retention or disposal policy as in
effect at the time unless the Issuer shall direct by an Issuer
Order that they be returned to it; PROVIDED, HOWEVER, that such
Issuer Order is timely and the Notes have not been previously
disposed of by the Indenture Trustee. The Indenture Trustee
shall certify to the Issuer that surrendered Notes have been
duly cancelled and retained or destroyed, as the case may be.
SECTION 2.9 RELEASE OF COLLATERAL. The Indenture
Trustee shall release property from the lien of this Indenture,
other than as permitted by Sections 3.21, 8.2, 8.4 and 11.1,
only upon receipt of an Issuer Request accompanied by an
Officers' Certificate, an Opinion of Counsel and (to the extent
required by the TIA) Independent Certificates in accordance with
TIA 314(c) and 314(d)(1).
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SECTION 2.10 BOOK-ENTRY NOTES. Unless otherwise
provided in the applicable Officer's Issuance Certificate, each
series of Term Notes, upon original issuance, shall be issued in
the form of a typewritten Note or Notes representing the
Book-Entry Notes, to be delivered to The Depository Trust
Company, the initial Clearing Agency by or on behalf of the
Issuer and such Note or Notes shall be registered on the Note
Register in the name of the Note Depository (initially, Cede &
Co.). No Note Owner shall receive a Definitive Term Note
representing such Note Owner's interest in such Note, except as
provided in Section 2.12. Unless and until Definitive Term
Notes with respect to such Notes have been issued to such Note
Owners pursuant to Section 2.12, with respect to such Notes:
(a) the provisions of this Section 2.10 shall be
in full force and effect;
(b) the Note Registrar and the Indenture Trustee
shall be entitled to deal with the Clearing Agency for all
purposes of this Indenture (including the payment of
principal of and interest on such Notes and the giving of
instructions or directions hereunder) as the sole Holder of
such Notes and shall have no obligation to such Note
Owners;
(c) to the extent that the provisions of this
Section 2.10 conflict with any other provisions of this
Indenture, the provisions of this Section 2.10 shall con-
trol;
(d) the rights of the Note Owners shall be
exercised only through the Clearing Agency and shall be
limited to those established by law and agreements between
such Note Owners and the Clearing Agency and/or the
Clearing Agency Participants, and unless and until
Definitive Term Notes are issued pursuant to Section 2.12,
the initial Clearing Agency shall make book-entry transfers
between the Clearing Agency Participants and receive and
transmit payments of principal of and interest on such
Notes to such Clearing Agency Participants, pursuant to the
Note Depository Agreement; and
(e) whenever this Indenture requires or permits
actions to be taken based upon instructions or directions
of Holders of Notes evidencing a specified percentage of
the Outstanding Amount of the Notes, the Clearing Agency
shall be deemed to represent such percentage only to the
extent that it has (i) received written instructions to
such effect from Note Owners and/or Clearing Agency
Participants owning or representing, respectively, such
required percentage of the beneficial interest in the Notes
and (ii) has delivered such instructions to the Indenture
Trustee.
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SECTION 2.11 NOTICES TO CLEARING AGENCY. With
respect to any Term Notes issued as Book-Entry Notes, whenever
a notice or other communication to the Noteholders is required
under this Indenture, unless and until Definitive Term Notes
representing such Term Notes shall have been issued to the
related Note Owners pursuant to Section 2.12, the Indenture
Trustee shall give all such notices and communications specified
herein to be given to the related Noteholders to the Clearing
Agency and shall have no other obligation to such Note Owners.
SECTION 2.12 DEFINITIVE TERM NOTES. If for any Term
Notes issued as Book-Entry Notes (i) the Administrator advises
the Indenture Trustee in writing that the Clearing Agency is no
longer willing or able to properly discharge its
responsibilities with respect to such Notes and the Issuer is
unable to locate a qualified successor; (ii) the Administrator,
at its option, advises the Indenture Trustee in writing that it
elects to terminate the book-entry system through the Clearing
Agency; or (iii) after the occurrence of an Event of Default or
a Servicing Default, Note Owners representing beneficial
interests aggregating at least a majority of the Outstanding
Amount of such Notes advise the Clearing Agency in writing that
the continuation of a book-entry system through the Clearing
Agency is no longer in the best interests of such Note Owners,
then the Clearing Agency shall notify all Note Owners and the
Indenture Trustee of the occurrence of any such event and of the
availability of Definitive Term Notes to such Note Owners
requesting the same. Upon surrender to the Indenture Trustee of
the typewritten Note or Notes representing such Book-Entry Notes
by the Clearing Agency, accompanied by registration
instructions, the Issuer shall execute and the Indenture Trustee
shall authenticate the related Definitive Term Notes in accor-
dance with the instructions of the Clearing Agency. None of the
Issuer, the Note Registrar or the Indenture Trustee shall be
liable for any delay in delivery of such instructions and may
conclusively rely on, and shall be protected in relying on, such
instructions. Upon the issuance of such Definitive Term Notes,
the Indenture Trustee shall recognize the Holders of such
Definitive Term Notes as Noteholders.
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SECTION 2.13 SELLER AS NOTEHOLDER. The Seller in
its individual or any other capacity may become the owner or
pledgee of Notes of any series and may otherwise deal with the
Issuer or its affiliates with the same rights it would have if
it were not the Seller.
SECTION 2.14 TAX TREATMENT. The Issuer and the
Indenture Trustee, by entering into this Indenture, and the
Noteholders and the Note Owners, by acquiring any Note or
interest therein, (i) express their intention that the Notes
qualify under applicable tax law as indebtedness secured by the
Collateral and (ii) unless otherwise required by appropriate
taxing authorities, agree to treat the Notes as indebtedness
secured by the Collateral for the purpose of federal income,
state and local income and franchise taxes, Michigan single
business tax, and any other taxes imposed upon, measured by or
based upon gross or net income.
SECTION 2.15 SPECIAL TERMS APPLICABLE TO SUBSEQUENT
TRANSFERS OF CERTAIN NOTES.
(a) The Revolving Notes shall not, and certain series
of Term Notes may not, be registered under the Securities Act,
or the securities laws of any other jurisdiction. Consequently,
such Notes (the "Unregistered Notes") shall not be transferable
other than pursuant to an exemption from the registration
requirements of the Securities Act and satisfaction of certain
other provisions specified herein or in the related Officer's
Issuance Certificate. Unless otherwise provided in the related
Officer's Issuance Certificate, no sale, pledge or other
transfer of any Unregistered Note (or interest therein) may be
made by any Person unless either (i) such sale, pledge or other
transfer is made to a "qualified institutional buyer" (as
defined under Rule 144A under the Securities Act) or to an
"institutional accredited investor" (as described in Rule
501(a)(1), (2), (3) or (7) under the Securities Act) and, if so
requested by the Seller or the Indenture Trustee, such proposed
transferee executes and delivers a certificate, substantially in
the form attached hereto as EXHIBIT A or otherwise in form and
substance satisfactory to the Indenture Trustee and the Seller,
or (ii) such sale, pledge or other transfer is otherwise made in
a transaction exempt from the registration requirements of the
Securities Act, in which case (A) the Indenture Trustee shall
require that both the prospective transferor and the prospective
transferee certify to the Indenture Trustee and the Seller in
writing the facts surrounding such transfer, which certification
shall be in form and substance satisfactory to the Indenture
Trustee and the Seller, and (B) the Indenture Trustee shall
require a written opinion of counsel (which shall not be at the
expense of the Seller, the Servicer or the Indenture Trustee)
satisfactory to the Seller and the Indenture Trustee to the
effect that such transfer will not violate the Securities Act.
Unless otherwise provided in the related Officer's Issuance
Certificate, no sale, pledge or other transfer of any Revolving
Note that is an Unregistered Note (or interest therein) may be
made by any Person unless the Seller shall have consented in
writing to such transfer. Neither the
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Seller nor the Indenture Trustee shall be obligated to register
any Unregistered Notes under the Securities Act, qualify any
Unregistered Notes under the securities laws of any state or
provide registration rights to any purchaser or holder thereof.
(b) The Unregistered Notes may not be acquired by or
for the account of a Benefit Plan. By accepting and holding an
Unregistered Note, the Holder thereof shall be deemed to have
represented and warranted that it is not a Benefit Plan and, if
requested to do so by the Seller or the Indenture Trustee, the
Holder of an Unregistered Note shall execute and deliver to the
Indenture Trustee an Undertaking Letter in the form set forth in
EXHIBIT B.
(c) Unless otherwise provided in the related
Officer's Issuance Certificate, Unregistered Notes shall be
issued in the form of Definitive Notes, shall be in fully
registered form and Sections 2.10, 2.11 and 2.12 of this
Indenture shall not apply thereto.
(d) Each Unregistered Note shall bear legends to the
effect set forth in subsections (a) and (b) above.
ARTICLE III
COVENANTS
SECTION 3.1 PAYMENT OF PRINCIPAL AND INTEREST. The
Issuer shall duly and punctually pay the principal of and
interest on the Notes in accordance with the terms of the Notes
and this Indenture. On each date on which any payments are to
be made, the Issuer shall cause amounts on deposit in the Note
Distribution Account and Revolver Distribution Account to be
paid to the Term Noteholders and Revolving Noteholders,
respectively, in accordance with the terms of the Notes and this
Indenture, less amounts properly withheld under the Code by any
Person from a payment to any Noteholder of interest and/or
principal. Any amounts so withheld shall be considered as
having been paid by the Issuer to such Noteholder for all
purposes of this Indenture.
SECTION 3.2 MAINTENANCE OF AGENCY OFFICE. As long
as any of the Notes remains outstanding, the Issuer shall
maintain in the Borough of Manhattan, the City of New York, an
office (the "Agency Office"), being an office or agency where
Notes may be surrendered to the Issuer for registration of
transfer or exchange, and where notices and demands to or upon
the Issuer in respect of the Notes and this Indenture may be
served. The Issuer hereby initially appoints the Indenture
Trustee to serve as its agent for the foregoing purposes. The
Issuer shall give prompt written notice to the Indenture Trustee
of the location, and of any change in the location, of any such
office or agency. If at any time the Issuer shall fail to
maintain any such office or agency or shall fail to furnish the
Indenture Trustee with the address thereof, such surrenders,
notices and demands may be made or served at the Corporate Trust
Office of the Indenture Trustee, and the Issuer hereby appoints
the Indenture Trustee as its agent to receive all such
surrenders, notices and demands.
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SECTION 3.3 MONEY FOR PAYMENTS TO BE HELD IN TRUST.
(a) As provided in Section 8.2, all payments of
amounts due and payable with respect to any Notes that are to be
made from amounts withdrawn from the Note Distribution Account
or Revolver Distribution Account pursuant to Section 8.2(c)
shall be made on behalf of the Issuer by the Indenture Trustee
or by another Paying Agent, and no amounts so withdrawn from the
Note Distribution Account or Revolver Distribution Account for
payments of Term Notes or Revolving Notes, respectively, shall
be paid over to the Issuer except as provided in this Section
3.3.
(b) On or before each date on which payments are to
be made or the Redemption Date (if applicable), the Issuer shall
deposit or cause to be deposited in the Note Distribution
Account and Revolver Distribution Account (including pursuant to
Section 4.5 of the Trust Sale and Servicing Agreement) aggregate
sums sufficient to pay the amounts then becoming due with
respect to the Term Notes and Revolving Notes, respectively,
such sums to be held in trust for the benefit of the Persons
entitled thereto.
(c) The Issuer shall cause each Paying Agent other
than the Indenture Trustee to execute and deliver to the
Indenture Trustee an instrument in which such Paying Agent shall
agree with the Indenture Trustee (and if the Indenture Trustee
acts as Paying Agent, it hereby so agrees), subject to the
provisions of this Section 3.3, that such Paying Agent shall:
(i) hold all sums held by it for the payment of
amounts due with respect to the Notes in trust for the
benefit of the Persons entitled thereto until such sums
shall be paid to such Persons or otherwise disposed of as
herein provided and pay such sums to such Persons as herein
provided;
(ii) give the Indenture Trustee notice of any default
by the Issuer (or any other obligor upon the Notes) of
which it has actual knowledge in the making of any payment
required to be made with respect to the Notes;
(iii) at any time during the continuance of any such
default, upon the written request of the Indenture Trustee,
forthwith pay to the Indenture Trustee all sums so held in
trust by such Paying Agent;
(iv) immediately resign as a Paying Agent and
forthwith pay to the Indenture Trustee all sums held by it
in trust for the payment of Notes if at any time it ceases
to meet the standards required to be met by a Paying Agent
in effect at the time of determination; and
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(v) comply with all requirements of the Code with
respect to the withholding from any payments made by it on
any Notes of any applicable withholding taxes imposed
thereon and with respect to any applicable reporting
requirements in connection therewith.
(d) The Issuer may at any time, for the purpose of
obtaining the satisfaction and discharge of this Indenture or
for any other purpose, by Issuer Order direct any Paying Agent
to pay to the Indenture Trustee all sums held in trust by such
Paying Agent, such sums to be held by the Indenture Trustee upon
the same trusts as those upon which the sums were held by such
Paying Agent; and upon such payment by any Paying Agent to the
Indenture Trustee, such Paying Agent shall be released from all
further liability with respect to such money.
(e) Subject to applicable laws with respect to
escheat of funds, any money held by the Indenture Trustee or any
Paying Agent in trust for the payment of any amount due with
respect to any Note and remaining unclaimed for one year after
such amount has become due and payable shall be discharged from
such trust and be paid by the Indenture Trustee to the Issuer;
and the Holder of such Note shall thereafter, as an unsecured
general creditor, look only to the Issuer for payment thereof
(but only to the extent of the amounts so paid to the Issuer),
and all liability of the Indenture Trustee or such Paying Agent
with respect to such trust money shall thereupon cease;
PROVIDED, HOWEVER, that the Indenture Trustee or such Paying
Agent, before being required to make any such payment, may at
the expense of the Issuer cause to be published once, in a
newspaper published in the English language, customarily
published on each Business Day and of general circulation in the
City of New York, notice that such money remains unclaimed and
that, after a date specified therein, which shall not be less
than 30 days from the date of such publication, any unclaimed
balance of such money then remaining shall be paid to the
Issuer. The Indenture Trustee may also adopt and employ, at the
expense of the Issuer, any other reasonable means of
notification of such repayment (including, but not limited to,
mailing notice of such repayment to Holders whose Notes have
been called but have not been surrendered for redemption or
whose right to or interest in monies due and payable but not
claimed is determinable from the records of the Indenture
Trustee or of any Paying Agent, at the last address of record
for each such Holder).
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SECTION 3.4 EXISTENCE. The Issuer shall keep in
full effect its existence, rights and franchises as a business
trust under the laws of the State of Delaware (unless it
becomes, or any successor Issuer hereunder is or becomes,
organized under the laws of any other State or of the United
States of America, in which case the Issuer shall keep in full
effect its existence, rights and franchises under the laws of
such other jurisdiction) and shall obtain and preserve its
qualification to do business in each jurisdiction in which such
qualification is or shall be necessary to protect the validity
and enforceability of this Indenture, the Notes, the Collateral
and each other instrument or agreement included in the Trust
Estate.
SECTION 3.5 PROTECTION OF TRUST ESTATE; ACKNOWLEDG-
MENT OF PLEDGE.
The Issuer shall from time to time execute and deliver
all such supplements and amendments hereto and all such
financing statements, amendments thereto, continuation
statements, assignments, certificates, instruments of further
assurance and other instruments, and shall take such other
action necessary or advisable to:
(a) maintain or preserve the lien and security
interest (and the priority thereof) of this Indenture or
carry out more effectively the purposes hereof;
(b) perfect, publish notice of or protect the
validity of any grant of a security interest made or to be
made by this Indenture;
(c) enforce the rights of the Indenture Trustee and
the Noteholders in any of the Collateral; or
(d) preserve and defend title to the Trust Estate and
the rights of the Indenture Trustee and the Noteholders in
such Trust Estate against the claims of all Persons and
parties,
and the Issuer hereby designates the Indenture Trustee its agent
and attorney-in-fact to execute any financing statement, contin-
uation statement or other instrument required by the Indenture
Trustee pursuant to this Section 3.5.
SECTION 3.6 OPINIONS AS TO TRUST ESTATE.
(a) On the Initial Closing Date, the Issuer shall
furnish to the Indenture Trustee an Opinion of Counsel either
stating that, in the opinion of such counsel, such action has
been taken with respect to the recording and filing of this
Indenture, any indentures supplemental hereto and any other
requisite documents, and with respect to the execution and
filing of any financing statements and continuation statements
as are necessary to perfect and make effective the lien and
security interest of this Indenture and reciting the details of
such action, or stating that, in the opinion of such counsel, no
such action is necessary to make such lien and security interest
effective.
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(b) On or before August 15 in each calendar year,
beginning August 15, 1995, the Issuer shall furnish to the
Indenture Trustee an Opinion of Counsel either stating that, in
the opinion of such counsel, such action has been taken with
respect to the recording, filing, re-recording and refiling of
this Indenture, any indentures supplemental hereto and any other
requisite documents and with respect to the execution and filing
of any financing statements and continuation statements as is
necessary to maintain the lien and security interest created by
this Indenture and reciting the details of such action or
stating that in the opinion of such counsel no such action is
necessary to maintain the lien and security interest created by
this Indenture. Such Opinion of Counsel shall also describe the
recording, filing, re-recording and refiling of this Indenture,
any indentures supplemental hereto and any other requisite
documents and the execution and filing of any financing
statements and continuation statements that will, in the opinion
of such counsel, be required to maintain the lien and security
interest of this Indenture until August 15 in the following
calendar year.
SECTION 3.7 PERFORMANCE OF OBLIGATIONS; SERVICING
OF RECEIVABLES.
(a) The Issuer shall not take any action and shall
use its reasonable efforts not to permit any action to be taken
by others that would release any Person from any of such
Person's material covenants or obligations under any instrument
or agreement included in the Trust Estate or that would result
in the amendment, hypothecation, subordination, termination or
discharge of, or impair the validity or effectiveness of, any
such instrument or agreement, except as otherwise expressly
provided in this Indenture, the Trust Sale and Servicing
Agreement, the Pooling and Servicing Agreement, the
Administration Agreement or such other instrument or agreement.
(b) The Issuer may contract with other Persons to
assist it in performing its duties under this Indenture, and any
performance of such duties by a Person identified to the
Indenture Trustee herein or in the Basic Documents or an
Officers' Certificate of the Issuer shall be deemed to be action
taken by the Issuer. Initially, the Issuer has contracted with
the Servicer and the Administrator to assist the Issuer in
performing its duties under this Indenture.
(c) The Issuer shall punctually perform and observe
all of its obligations and agreements contained in this
Indenture, the Basic Documents and in the instruments and
agreements included in the Trust Estate, including but not
limited to filing or causing to be filed all Uniform Commercial
Code financing statements and continuation statements required
to be filed under the terms of this Indenture, the Trust Sale
and Servicing Agreement and the Pooling and Servicing Agreement
in accordance with and within the time periods provided for
herein and therein.
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(d) If the Issuer shall have knowledge of the
occurrence of a Servicing Default under the Trust Sale and -
Servicing Agreement, the Issuer shall promptly notify the
Indenture Trustee and the Rating Agencies thereof, and shall
specify in such notice the response or action, if any, the
Issuer has taken or is taking with respect of such default. If
a Servicing Default shall arise from the failure of the Servicer
to perform any of its duties or obligations under the Trust Sale
and Servicing Agreement or the Pooling and Servicing Agreement
with respect to the Receivables in the Accounts in the Pool of
Accounts, the Issuer and the Indenture Trustee shall take all
reasonable steps available to them pursuant to the Trust Sale
and Servicing Agreement and the Pooling and Servicing Agreement
to remedy such failure.
SECTION 3.8 NEGATIVE COVENANTS. So long as any
Notes are Outstanding, the Issuer shall not:
(a) sell, transfer, exchange or otherwise dispose of
any of the properties or assets of the Issuer, except the
Issuer may: (i) collect, liquidate, sell or otherwise
dispose of the Trust's interest in Receivables (including
Warranty Receivables, Administrative Receivables and
Defaulted Receivables), (ii) make cash payments out of the
Designated Accounts and the Certificate Distribution
Account and (iii) take other actions, in each case as
contemplated by the Basic Documents;
(b) claim any credit on, or make any deduction from
the principal or interest payable in respect of the Notes
(other than amounts properly withheld from such payments
under the Code or applicable state law) or assert any claim
against any present or former Noteholder by reason of the
payment of the taxes levied or assessed upon any part of
the Trust Estate;
(c) voluntarily commence any insolvency, readjustment
of debt, marshalling of assets and liabilities or other
proceeding, or apply for an order by a court or agency or
supervisory authority for the winding-up or liquidation of
its affairs or any other event specified in Section 5.1(f);
or
(d) either (i) permit the validity or effectiveness
of this Indenture to be impaired, or permit the lien of
this Indenture to be amended, hypothecated, subordinated,
terminated or discharged, or permit any Person to be
released from any covenants or obligations with respect to
the Notes under this Indenture except as may be expressly
permitted hereby, (ii) permit any lien, charge, excise,
claim, security interest, mortgage or other encumbrance
(other than the lien of this Indenture) to be created on or
extend to or otherwise arise upon or burden the Trust
Estate or any part thereof or any interest therein or the
proceeds
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thereof (other than tax liens, mechanics' liens and other
liens that arise by operation of law or as otherwise
contemplated by the Basic Documents) or (iii) permit the
lien of this Indenture not to constitute a valid first
priority security interest in the Trust Estate (other than
with respect to any such tax, mechanics' or other lien).
SECTION 3.9 ANNUAL STATEMENT AS TO COMPLIANCE. The
Issuer shall deliver to the Indenture Trustee, on or before
August 15 of each year, beginning August 15, 1995, an Officer's
Certificate signed by an Authorized Officer, dated as of June 30
of such year, stating that:
(a) a review of the activities of the Issuer during
such fiscal year and of performance under this Indenture
has been made under such Authorized Officer's supervision;
and
(b) to the best of such Authorized Officer's
knowledge, based on such review, the Issuer has fulfilled
in all material respects all of its obligations under this
Indenture throughout such year, or, if there has been a
default in the fulfillment of any such obligation,
specifying each such default known to such Authorized
Officer and the nature and status thereof. A copy of such
certificate may be obtained by any Noteholder by a request
in writing to the Issuer addressed to the Corporate Trust
Office of the Indenture Trustee.
SECTION 3.10 CONSOLIDATION, MERGER, ETC., OF ISSUER;
DISPOSITION OF TRUST ASSETS.
(a) The Issuer shall not consolidate or merge with or
into any other Person, unless:
(i) the Person (if other than the Issuer) formed
by or surviving such consolidation or merger shall be a
Person organized and existing under the laws of the United
States of America, or any State and shall expressly assume,
by an indenture supplemental hereto, executed and delivered
to the Indenture Trustee, in form satisfactory to the
Indenture Trustee, the due and timely payment of the
principal of and interest on all Notes and the performance
or observance of every agreement and covenant of this
Indenture on the part of the Issuer to be performed or
observed, all as provided herein;
(ii) immediately after giving effect to such
merger or consolidation, no Event of Default shall have
occurred and be continuing;
(iii) the Rating Agency Condition shall have been
satisfied with respect to such transaction and such Person
for each then outstanding series of Notes;
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(iv) any action as is necessary to maintain the
lien and security interest created by this Indenture shall
have been taken; and
(v) the Issuer shall have delivered to the
Indenture Trustee an Officers' Certificate and an Opinion
of Counsel addressed to the Issuer, each stating:
(A) that such consolidation or merger and
such supplemental indenture comply with this Section
3.10;
(B) that such consolidation or merger and
such supplemental indenture shall have no material
adverse tax consequence to the Issuer or any
Noteholder or Certificateholder; and
(C) that all conditions precedent herein
provided for in this Section 3.10 have been complied
with, which shall include any filing required by the
Exchange Act.
(b) Except as otherwise expressly permitted by this
Indenture or the other Basic Documents, the Issuer shall not
sell, convey, exchange, transfer or otherwise dispose of any
material portion of the properties and assets included in the
Trust Estate to any Person, unless:
(i) the Person that acquires such properties or
assets of the Issuer (A) shall be a United States citizen
or a Person organized and existing under the laws of the
United States of America or any State and (B) by an
indenture supplemental hereto, executed and delivered to
the Indenture Trustee, in form satisfactory to the
Indenture Trustee:
(1) expressly assumes the due and punctual
payment of the principal of and interest on all Notes
and the performance or observance of every agreement
and covenant of this Indenture on the part of the
Issuer to be performed or observed, all as provided
herein;
(2) expressly agrees that all right, title
and interest so sold, conveyed, exchanged, transferred
or otherwise disposed of shall be subject and
subordinate to the rights of Noteholders;
(3) unless otherwise provided in such
supplemental indenture, expressly agrees to indemnify,
defend and hold harmless the Issuer against and from
any loss, liability or expense arising under or
related to this Indenture and the Notes; and
(4) expressly agrees that such Person (or
if a group of Persons, then one specified Person)
shall make all filings with the Commission (and any
other appropriate Person) required by the Exchange Act
in connection with the Notes;
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(ii) immediately after giving effect to such
transaction, no Event of Default shall have occurred and be
continuing;
(iii) the Rating Agency Condition shall have been
satisfied with respect to such transaction and such Person
for each then outstanding series of Notes;
(iv) any action as is necessary to maintain the
lien and security interest created by this Indenture shall
have been taken; and
(v) the Issuer shall have delivered to the
Indenture Trustee an Officers' Certificate and an Opinion
of Counsel addressed to the Issuer, each stating that:
(A) such sale, conveyance, exchange,
transfer or disposition and such supplemental
indenture comply with this Section 3.10;
(B) such sale, conveyance, exchange,
transfer or disposition and such supplemental
indenture have no material adverse tax consequence to
the Issuer or to any Noteholders or
Certificateholders; and
(C) that all conditions precedent herein
provided for in this Section 3.10 have been complied
with, which shall include any filing required by the
Exchange Act.
SECTION 3.11 SUCCESSOR OR TRANSFEREE.
(a) Upon any consolidation or merger of the Issuer in
accordance with Section 3.10(a), the Person formed by or
surviving such consolidation or merger (if other than the
Issuer) shall succeed to, and be substituted for, and may
exercise every right and power of, the Issuer under this
Indenture with the same effect as if such Person had been named
as the Issuer herein.
(b) Upon a conveyance or transfer of all the assets
and properties of the Issuer pursuant to Section 3.10(b), the
Issuer shall be released from every covenant and agreement of
this Indenture to be observed or performed on the part of the
Issuer with respect to the Notes immediately upon the delivery
of written notice to the Indenture Trustee from the Person
acquiring such assets and properties stating that the Issuer is
to be so released.
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SECTION 3.12 NO OTHER BUSINESS. The Issuer shall
not engage in any business or activity other than acquiring,
holding and managing the Collateral and the proceeds therefrom
in the manner contemplated by the Basic Documents, issuing the
Notes and the Certificates, making payments on the Notes and the
Certificates and such other activities that are necessary,
suitable or convenient to accomplish the foregoing or are
incidental thereto, as set forth in Section 2.3 of the Trust
Agreement.
SECTION 3.13 NO BORROWING. The Issuer shall not
issue, incur, assume, guarantee or otherwise become liable,
directly or indirectly, for any indebtedness for money borrowed
other than indebtedness for money borrowed in respect of the
Notes or in accordance with the Basic Documents.
SECTION 3.14 GUARANTEES, LOANS, ADVANCES AND OTHER
LIABILITIES. Except as contemplated by this Indenture or the
other Basic Documents, the Issuer shall not make any loan or
advance or credit to, or guarantee (directly or indirectly or by
an instrument having the effect of assuring another's payment or
performance on any obligation or capability of so doing or
otherwise), endorse or otherwise become contingently liable,
directly or indirectly, in connection with the obligations,
stocks or dividends of, or own, purchase, repurchase or acquire
(or agree contingently to do so) any stock, obligations, assets
or securities of, or any other interest in, or make any capital
contribution to, any other Person.
SECTION 3.15 SERVICER'S OBLIGATIONS. The Issuer
shall use its best efforts to cause the Servicer to comply with
its obligations under Section 3.05 of the Pooling and Servicing
Agreement and Sections 4.1, 4.2 and 4.8 of the Trust Sale and
Servicing Agreement.
SECTION 3.16 CAPITAL EXPENDITURES. The Issuer shall
not make any expenditure (whether by long-term or operating
lease or otherwise) for capital assets (either real, personal or
intangible property) other than the purchase of the Receivables
and other property and rights from the Seller on the Initial
Closing Date and from time to time thereafter pursuant to the
Trust Sale and Servicing Agreement.
SECTION 3.17 REMOVAL OF ADMINISTRATOR. So long as
any Notes are Outstanding, the Issuer shall not remove the
Administrator without cause unless the Rating Agency Condition
for each series of Notes then outstanding shall have been
satisfied in connection with such removal.
SECTION 3.18 RESTRICTED PAYMENTS. Except for
payments of principal or interest on or redemption of the Notes,
so long as any Notes are Outstanding, the Issuer shall not,
directly or indirectly:
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(a) pay any dividend or make any distribution (by
reduction of capital or otherwise), whether in cash,
property, securities or a combination thereof, to the Owner
Trustee or any owner of a beneficial interest in the Issuer
or otherwise, in each case with respect to any ownership or
equity interest or similar security in or of the Issuer or
to the Servicer;
(b) redeem, purchase, retire or otherwise acquire for
value any such ownership or equity interest or similar
security; or
(c) set aside or otherwise segregate any amounts for
any such purpose;
PROVIDED, HOWEVER, that the Issuer may make, or cause to be
made, distributions to the Servicer, the Seller, the Indenture
Trustee, the Owner Trustee and the Certificateholders as
permitted by, and to the extent funds are available for such
purpose under, the Trust Sale and Servicing Agreement, the Trust
Agreement or the other Basic Documents. The Issuer shall not,
directly or indirectly, make payments to or distributions from
the Collection Account except in accordance with the Basic
Documents.
SECTION 3.19 NOTICE OF EVENTS OF DEFAULT. The
Issuer agrees to give the Indenture Trustee and the Rating
Agencies written notice of each Event of Default hereunder, each
Servicing Default, any Insolvency Event with respect to the
Seller, each default on the part of the Seller or the Servicer
of its respective obligations under the Trust Sale and Servicing
Agreement and each default on the part of GMAC or the Servicer
of its respective obligations under the Pooling and Servicing
Agreement, in each case promptly after the discovery thereof by
the Issuer.
SECTION 3.20 FURTHER INSTRUMENTS AND ACTS. Upon
request of the Indenture Trustee, the Issuer shall execute and
deliver such further instruments and do such further acts as may
be reasonably necessary or proper to carry out more effectively
the purpose of this Indenture.
SECTION 3.21 TRUSTEE'S ASSIGNMENT OF INTERESTS IN
CERTAIN RECEIVABLES. The Indenture Trustee shall assign,
without recourse, representation or warranty, to the Servicer,
GMAC or the Seller, as the case may be, all of the Indenture
Trustee's right, title and interest in and to any Receivable
assigned by the Issuer to the Servicer, GMAC or the Seller, as
applicable, pursuant to the Pooling and Servicing Agreement or
the Trust Sale and Servicing Agreement (including, without
limitation, Section 9.3 thereof) (in each case, to the extent so
assigned and upon the receipt of any related payment, if
applicable), such assignment being an assignment outright and
not for security; and the Servicer, GMAC or the Seller, as
applicable, shall thereupon own the interest purchased in such
Receivable, free of any further obligation to the Indenture
Trustee, the Noteholders or
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the Certificateholders with respect thereto. If in any
enforcement suit or legal proceeding it is held that the
Servicer may not enforce a Receivable on the ground that it is
not a real party in interest or a holder entitled to enforce
such Receivable, the Indenture Trustee shall, at the Servicer's
expense, take such steps as the Servicer deems necessary to
enforce the Receivable, including bringing suit in the Indenture
Trustee's name or the names of the Noteholders or the
Certificateholders.
SECTION 3.22 REPRESENTATIONS AND WARRANTIES BY THE
ISSUER TO THE INDENTURE TRUSTEE. The Issuer hereby represents
and warrants to the Indenture Trustee as follows:
(a) GOOD TITLE. No interest in any Receivable
conveyed to the Issuer has been sold, transferred, assigned or
pledged by the Issuer to any Person other than the Indenture
Trustee; immediately prior to the conveyance of such Receivables
pursuant to this Indenture, the Issuer had good and marketable
title thereto, free of any Lien; and, upon execution and
delivery of this Indenture by the Issuer, the Indenture Trustee
shall have all of the right, title and interest of the Issuer
in, to and under such Receivables, free of any Lien; and
(b) ALL FILINGS MADE. All filings (including,
without limitation, Uniform Commercial Code filings) necessary
in any jurisdiction to give the Indenture Trustee, upon the
acquisition by the Issuer of any Eligible Receivable, a first
priority perfected security interest in such Eligible Receivable
have been made.
ARTICLE IV
SATISFACTION AND DISCHARGE
SECTION 4.1 SATISFACTION AND DISCHARGE OF
INDENTURE. This Indenture shall cease to be of further effect
with respect to the Notes except as to: (i) rights of
registration of transfer and exchange; (ii) substitution of
mutilated, destroyed, lost or stolen Notes; (iii) rights of
Noteholders to receive payments of principal thereof and
interest thereon; (iv) Sections 3.3, 3.4, 3.5, 3.8, 3.10, 3.12,
3.13, 3.19 and 3.21; (v) the rights, obligations and immunities
of the Indenture Trustee hereunder (including the rights of the
Indenture Trustee under Section 6.7 and the obligations of the
Indenture Trustee under Sections 4.2 and 4.4); and (vi) the
rights of Noteholders as beneficiaries hereof with respect to
the property so deposited with the Indenture Trustee payable to
all or any of them, and the Indenture Trustee, on demand of and
at the expense of the Issuer, shall execute proper instruments
acknowledging satisfaction and discharge of this Indenture with
respect to the Notes, if:
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(a) either:
(1) all Notes theretofore authenticated and
delivered (other than (A) Notes that have been
destroyed, lost or stolen and that have been replaced
or paid as provided in Section 2.5 and (B) Notes for
whose payment money has theretofore been deposited in
trust or segregated and held in trust by the Issuer
and thereafter repaid to the Issuer or discharged from
such trust, as provided in Section 3.3) have been
delivered to the Indenture Trustee for cancellation;
or
(2) all Notes not theretofore delivered to
the Indenture Trustee for cancellation:
(A) have become due and payable,
(B) will be due and payable on their
respective Stated Final Payment Dates within one
year, or
(C) are to be called for redemption
within one year under arrangements satisfactory
to the Indenture Trustee for the giving of notice
of redemption by the Indenture Trustee in the
name, and at the expense, of the Issuer,
and the Issuer, in the case of (A), (B) or (C) of
subsection 4.1(a)(2) above, has irrevocably deposited
or caused to be irrevocably deposited with the
Indenture Trustee cash or direct obligations of or
obligations guaranteed by the United States of America
(which will mature prior to the date such amounts are
payable), in trust for such purpose, in an amount
sufficient to pay and discharge the entire unpaid
principal and accrued interest on such Notes not
theretofore delivered to the Indenture Trustee for
cancellation when due;
(b) the Issuer has paid or caused to be paid all
other sums payable hereunder by the Issuer; and
(c) the Issuer has delivered to the Indenture
Trustee an Officer's Certificate of the Issuer, an
Opinion of Counsel and (if required by the TIA or the
Indenture Trustee) an Independent Certificate from a
firm of certified public accountants, each meeting the
applicable requirements of Section 11.1(a) and each
stating that all conditions precedent herein provided
for relating to the satisfaction and discharge of this
Indenture have been complied with.
SECTION 4.2 APPLICATION OF TRUST MONEY. All monies
deposited with the Indenture Trustee pursuant to Section 4.1
shall be held in trust and applied by it, in accordance with the
provisions of the Notes and this Indenture, to the payment,
either directly or through any Paying Agent, as the Indenture
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Trustee may determine, to the Holders of the particular Notes
for the payment or redemption of which such monies have been
deposited with the Indenture Trustee, of all sums due and to
become due thereon for principal and interest; but such monies
need not be segregated from other funds except to the extent
required herein or in the Trust Sale and Servicing Agreement or
by applicable law.
SECTION 4.3 REPAYMENT OF MONIES HELD BY PAYING
AGENT. In connection with the satisfaction and discharge of
this Indenture with respect to each series of Notes, all monies
then held by any Paying Agent other than the Indenture Trustee
under the provisions of this Indenture with respect to all such
Notes shall, upon demand of the Issuer, be paid to the Indenture
Trustee to be held and applied according to Section 3.3 and
thereupon such Paying Agent shall be released from all further
liability with respect to such monies.
SECTION 4.4 DURATION OF POSITION OF INDENTURE
TRUSTEE. Notwithstanding the earlier payment in full of all
principal and interest due to all Noteholders under the terms of
the Notes of each series and the cancellation of such Notes
pursuant to Section 3.1, the Indenture Trustee shall continue to
act in the capacity as Indenture Trustee hereunder and, for the
benefit of the Certificateholders, shall comply with its
obligations under Sections 6.1(a), 8.2 and 8.3 of the Trust Sale
and Servicing Agreement, as appropriate, until such time as all
distributions in respect of Certificate Balance and interest due
to the Certificateholders have been paid in full.
ARTICLE V
DEFAULT AND REMEDIES
SECTION 5.1 EVENTS OF DEFAULT. For the purposes of
this Indenture, "Event of Default" wherever used herein, means
any one of the following events:
(a) failure to pay any interest on any Note as and
when the same becomes due and payable, and such default
shall continue unremedied for a period of five (5) days; or
(b) except as set forth in Section 5.1(c), failure to
pay any instalment of the principal of any Note as and when
the same becomes due and payable, and such default
continues unremedied for a period of thirty (30) days after
there shall have been given, by registered or certified
mail, written notice thereof to the Servicer by the
Indenture Trustee or to the Servicer and the Indenture
Trustee by the Holders of not less than 25% of the
Outstanding Amount of the Notes; or
(c) failure to pay in full the Outstanding Amount
attributable to any series of Notes on or prior to the
Stated Final Payment Date for such series; or
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(d) default in the observance or performance in any
material respect of any covenant or agreement of the Issuer
made in this Indenture (other than a covenant or agreement,
a default in the observance or performance of which is
specifically dealt with elsewhere in this Section 5.1)
which failure materially and adversely affects the rights
of the Noteholders, and such default shall continue or not
be cured for a period of 30 days after there shall have
been given, by registered or certified mail, to the Issuer
and the Seller (or the Servicer, as applicable) by the
Indenture Trustee or to the Issuer and the Seller (or the
Servicer, as applicable) and the Indenture Trustee by the
Holders of at least 25% of the Outstanding Amount of the
Notes, a written notice specifying such default and
requiring it to be remedied and stating that such notice is
a "Notice of Default" hereunder; or
(e) the filing of an order for relief by a court
having jurisdiction in the premises in respect of the
Issuer or any substantial part of the Trust Estate in an
involuntary case under the Bankruptcy Code, and such order
shall have continued undischarged or unstayed for a period
of 90 days; or the filing of a decree or order by a court
having jurisdiction in the premises approving as properly
filed a petition seeking reorganization, arrangement,
adjustment or composition of the Issuer under any other
Insolvency Law, and such decree or order shall have
continued undischarged or unstayed for a period of 90 days;
or the filing of a decree or order of a court having
jurisdiction in the premises appointing a receiver,
liquidator, assignee, custodian, trustee, sequestrator or
similar official of the Issuer or for any substantial part
of the Trust Estate, or ordering the winding-up or
liquidation of the Issuer's affairs, and such decree or
order shall have continued undischarged and unstayed for a
period of 90 consecutive days; or
(f) the commencement by the Issuer of a voluntary
case under the Bankruptcy Code; or the filing of a petition
or answer or consent by the Issuer seeking reorganization,
arrangement, adjustment or composition under any other
Insolvency Law, or consent to the filing of any such
petition, answer or consent; or the consent by the Issuer
to the appointment or taking possession by a receiver,
liquidator, assignee, custodian, trustee, sequestrator or
similar official of the Issuer or for any substantial part
of the Trust Estate, or the making by the Issuer of an
assignment for the benefit of creditors, or the admission
in writing of its inability to pay its debts generally as
such debts become due; or
(g) any other event designated as such in an
Officer's Issuance Certificate.
The Issuer shall deliver to the Indenture Trustee, within five
Business Days after learning of the occurrence thereof, written
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notice in the form of an Officer's Certificate of any event
which with the giving of notice and the lapse of time would
become an Event of Default under Section 5.1(d), its status and
what action the Issuer is taking or proposes to take with
respect thereto.
SECTION 5.2 ACCELERATION OF MATURITY; RESCISSION
AND ANNULMENT.
(a) If an Event of Default should occur and be
continuing, then and in every such case, unless the principal
amount of the Notes shall have already become due and payable,
either the Indenture Trustee or the Holders of Notes
representing not less than a majority of the Outstanding Amount
of the Notes may declare all the Notes to be immediately due and
payable, by a notice in writing to the Issuer (and to the
Indenture Trustee if given by the Noteholders) setting forth the
Event or Events of Default, and upon any such declaration the
unpaid principal amount of such Notes, together with accrued and
unpaid interest thereon through the date of acceleration, shall
become immediately due and payable.
(b) At any time after such declaration of acceleration
of maturity has been made and before a judgment or decree for
payment of the money due has been obtained by the Indenture
Trustee as hereinafter provided in this Article V, the Holders
of Notes representing a majority of the Outstanding Amount of
the Notes, by written notice to the Issuer and the Indenture
Trustee, may rescind and annul such declaration and its
consequences; PROVIDED, HOWEVER, that no such rescission and
annulment shall extend to or affect any subsequent Event of
Default or impair any right consequent thereto; and PROVIDED,
FURTHER, that if the Indenture Trustee shall have proceeded to
enforce any right under this Indenture and such proceedings
shall have been discontinued or abandoned because of such
rescission and annulment or for any other reason, or shall have
been determined adversely to the Indenture Trustee, then and in
every such case, the Indenture Trustee, the Issuer and the
Noteholders, as the case may be, shall be restored to their
respective former positions and rights hereunder, and all
rights, remedies and powers of the Indenture Trustee, the Issuer
and the Noteholders, as the case may be, shall continue as
though no such proceedings had been commenced.
SECTION 5.3 COLLECTION OF INDEBTEDNESS AND SUITS
FOR ENFORCEMENT BY INDENTURE TRUSTEE.
(a) The Issuer covenants that if there shall occur an
Event of Default under Sections 5.1(a), (b) or (c) that has not
been waived pursuant to Section 5.12, then the Issuer shall,
upon demand of the Indenture Trustee, pay to the Indenture
Trustee, for the ratable benefit of the Noteholders in
accordance with their respective principal amounts, the entire
amount then due and payable on the Notes for principal and
interest, with interest upon the overdue principal for each
series of Notes, at the rate borne by
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such Notes and in addition thereto such further amount as shall
be sufficient to cover the costs and expenses of collection,
including the reasonable compensation, expenses, disbursements
and advances of the Indenture Trustee and its agents and
counsel.
(b) If the Issuer shall fail forthwith to pay such
amounts upon such demand, the Indenture Trustee, in its own name
and as trustee of an express trust, may institute a Proceeding
for the collection of the sums so due and unpaid, and may
prosecute such Proceeding to judgment or final decree, and may
enforce the same against the Issuer or other obligor upon such
Notes and collect in the manner provided by law out of the
property of the Issuer or other obligor upon such Notes,
wherever situated, the monies adjudged or decreed to be payable.
(c) If an Event of Default occurs and is continuing,
the Indenture Trustee may, as more particularly provided in
Section 5.4, in its discretion, proceed to protect and enforce
its rights and the rights of the Noteholders, by such
appropriate Proceedings as the Indenture Trustee shall deem most
effective to protect and enforce any such rights, whether for
the specific enforcement of any covenant or agreement in this
Indenture or in aid of the exercise of any power granted herein,
or to enforce any other proper remedy or legal or equitable
right vested in the Indenture Trustee by this Indenture or by
applicable law.
(d) If there shall be pending, relative to the Issuer
or any other obligor upon the Notes or any Person having or
claiming an ownership interest in the Trust Estate, Proceedings
under any Insolvency Law, or if a receiver, assignee or trustee
in bankruptcy or reorganization, liquidator, sequestrator or
similar official shall have been appointed for or taken
possession of the Issuer or its property or such other obligor
or Person, or in case of any other comparable judicial
Proceedings relative to the Issuer or other obligor upon the
Notes, or to the creditors or property of the Issuer or such
other obligor, the Indenture Trustee, irrespective of whether
the principal of any Notes shall then be due and payable as
therein expressed or by declaration or otherwise and
irrespective of whether the Indenture Trustee shall have made
any demand pursuant to the provisions of this Section 5.3, shall
be entitled and empowered, by intervention in such Proceedings
or otherwise:
(i) to file and prove a claim or claims for the
whole amount of principal and interest owing and unpaid in
respect of the Notes and to file such other papers or
documents as may be necessary or advisable in order to have
the claims of the Indenture Trustee (including any claim
for reasonable compensation to the Indenture Trustee and
each predecessor trustee, and their respective agents,
attorneys and counsel, and for reimbursement of all
expenses and liabilities incurred, and all advances made,
by the Indenture Trustee and each predecessor trustee,
except as a result of negligence or bad faith) and of the
Noteholders allowed in such Proceedings;
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(ii) unless prohibited by applicable law and
regulations, to vote on behalf of the Holders of Notes in
any election of a trustee, a standby trustee or Person
performing similar functions in any such Proceedings;
(iii) to collect and receive any monies or other
property payable or deliverable on any such claims and to
distribute all amounts received with respect to the claims
of the Noteholders and of the Indenture Trustee on their
behalf; and
(iv) to file such proofs of claim and other
papers or documents as may be necessary or advisable in
order to have the claims of the Indenture Trustee or the
Holders of Notes allowed in any judicial proceedings
relative to the Issuer, its creditors and its property;
and any trustee, receiver, liquidator, custodian or other
similar official in any such Proceeding is hereby authorized by
each of such Noteholders to make payments to the Indenture
Trustee, and, if the Indenture Trustee shall consent to the
making of payments directly to such Noteholders, to pay to the
Indenture Trustee such amounts as shall be sufficient to cover
reasonable compensation to the Indenture Trustee, each
predecessor trustee and their respective agents, attorneys and
counsel, and all other expenses and liabilities incurred, and
all advances made, by the Indenture Trustee and each predecessor
trustee except as a result of negligence or bad faith.
(e) Nothing herein contained shall be deemed to
authorize the Indenture Trustee to authorize or consent to or
vote for or accept or adopt on behalf of any Noteholder any plan
of reorganization, arrangement, adjustment or composition
affecting the Notes or the rights of any Holder thereof or to
authorize the Indenture Trustee to vote in respect of the claim
of any Noteholder in any such proceeding except, as aforesaid,
to vote for the election of a trustee in bankruptcy or similar
Person.
(f) All rights of action and of asserting claims
under this Indenture, or under any of the Notes, may be enforced
by the Indenture Trustee without the possession of any of the
Notes or the production thereof in any trial or other
Proceedings relative thereto, and any such Proceedings
instituted by the Indenture Trustee shall be brought in its own
name as trustee of an express trust, and any recovery of
judgment, subject to the payment of the expenses, disbursements
and compensation of the Indenture Trustee, each predecessor
trustee and their respective agents and attorneys, shall be for
the ratable benefit of the Noteholders.
(g) In any Proceedings brought by the Indenture
Trustee (and also any Proceedings involving the interpretation
of any provision of this Indenture to which the Indenture
Trustee shall be a party), the Indenture Trustee shall be held
to represent all the Noteholders, and it shall not be necessary
to make any Noteholder a party to any such Proceedings.
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SECTION 5.4 REMEDIES; PRIORITIES.
(a) If an Event of Default shall have occurred and be
continuing and the Notes have been accelerated under Section
5.2(a), the Indenture Trustee may (but shall not be required to)
do one or more of the following (subject to Section 5.5):
(i) institute Proceedings in its own name and as
trustee of an express trust for the collection of all
amounts then payable on the Notes or under this Indenture
with respect thereto, whether by declaration of
acceleration or otherwise, enforce any judgment obtained,
and collect from the Issuer and any other obligor upon such
Notes monies adjudged due;
(ii) institute Proceedings from time to time for
the complete or partial foreclosure of this Indenture with
respect to the Trust Estate;
(iii) exercise any remedies of a secured party
under the UCC and take any other appropriate action to
protect and enforce the rights and remedies of the
Indenture Trustee and the Noteholders; and
(iv) sell the Trust Estate or any portion thereof
or rights or interest therein, at one or more public or
private sales called and conducted in any manner permitted
by law or elect to have the Issuer maintain possession of
the Trust Estate, including the Receivables included
therein, and continue to apply Collections on such
Receivables as if there had been no declaration of
acceleration;
PROVIDED, HOWEVER, that the Indenture Trustee may not sell or
otherwise liquidate the Trust Estate following an Event of
Default and acceleration of the Notes, unless (A) the Holders of
all of the aggregate Outstanding Amount of the Notes consent
thereto, (B) the proceeds of such sale or liquidation distribut-
able to the Securityholders are sufficient to discharge in full
the principal of and the accrued interest on the Notes and the
Certificate Balance of and accrued interest on the Certificates,
in each case as of the date of such sale or liquidation or
(C) (i) there has been an Event of Default under Section 5.1(a),
(b) or (c) or otherwise arising from a failure to make a
required payment of principal on any Notes, (ii) the Indenture
Trustee determines that the Trust Estate will not continue to
provide sufficient funds for the payment of principal of and
interest on the Notes as and when they would have become due if
the Notes had not been declared due and payable and (iii) the
Indenture Trustee obtains the consent of Holders of a majority
of the aggregate Outstanding Amount of the Notes. In
determining such sufficiency or insufficiency with respect to
clauses (B) and (C), the Indenture Trustee may, but need not,
obtain and rely upon an opinion of an Independent investment
banking or accounting firm of national reputation as to the
feasibility of such proposed action and as to the sufficiency of
the Trust Estate for such purpose.
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(b) If the Indenture Trustee collects any money or
property pursuant to this Article V, it shall pay out the money
or property in the following order:
FIRST: to the Indenture Trustee for amounts due
under Section 6.7; and
SECOND: to the Collection Account for
distribution pursuant to Section 9.2 of the Trust Sale and
Servicing Agreement.
SECTION 5.5 OPTIONAL PRESERVATION OF THE TRUST
ESTATE. If the Notes have been declared to be due and payable
under Section 5.2 following an Event of Default and such
declaration and its consequences have not been rescinded and
annulled, the Indenture Trustee may, but need not, elect to take
and maintain possession of the Trust Estate. It is the desire
of the parties hereto and the Noteholders that there be at all
times sufficient funds for the payment of principal of and
interest on the Notes, and the Indenture Trustee shall take such
desire into account when determining whether or not to take and
maintain possession of the Trust Estate. In determining whether
to take and maintain possession of the Trust Estate, the
Indenture Trustee may, but need not, obtain and rely upon an
opinion of an Independent investment banking or accounting firm
of national reputation as to the feasibility of such proposed
action and as to the sufficiency of the Trust Estate for such
purpose.
SECTION 5.6 LIMITATION OF SUITS. No Holder of any
Note shall have any right to institute any Proceeding, judicial
or otherwise, with respect to this Indenture, or for the
appointment of a receiver or trustee, or for any other remedy
hereunder, unless:
(i) such Holder has previously given written
notice to the Indenture Trustee of a continuing Event of
Default;
(ii) the Holders of not less than 25% of the
Outstanding Amount of the Notes have made written request
to the Indenture Trustee to institute such Proceeding in
respect of such Event of Default in its own name as
Indenture Trustee hereunder;
(iii) such Holder or Holders have offered to the
Indenture Trustee reasonable indemnity against the costs,
expenses and liabilities to be incurred in complying with
such request;
(iv) the Indenture Trustee for 60 days after its
receipt of such notice, request and offer of indemnity has
failed to institute such Proceedings; and
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(v) no direction inconsistent with such written
request has been given to the Indenture Trustee during such
60-day period by the Holders of a majority of the
Outstanding Amount of the Notes;
it being understood and intended that no one or more Holders of
Notes shall have any right in any manner whatever by virtue of,
or by availing of, any provision of this Indenture to affect,
disturb or prejudice the rights of any other Holders of Notes or
to obtain or to seek to obtain priority or preference over any
other Holders of Notes or to enforce any right under this
Indenture, except in the manner herein provided and for the
equal, ratable and common benefit of all holders of Notes. For
the protection and enforcement of the provisions of this Section
5.6, each and every Noteholder shall be entitled to such relief
as can be given either at law or in equity.
If the Indenture Trustee shall receive conflicting or
inconsistent requests and indemnity from two or more groups of
Holders of Notes, each representing less than a majority of the
Outstanding Amount of the Notes, the Indenture Trustee in its
sole discretion may determine what action, if any, shall be
taken, notwithstanding any other provisions of this Indenture.
SECTION 5.7 UNCONDITIONAL RIGHTS OF NOTEHOLDERS TO
RECEIVE PRINCIPAL AND INTEREST. Notwithstanding any other
provisions in this Indenture, the Holder of any Note shall have
the right, which is absolute and unconditional, to receive
payment of the principal of and interest on such Note on or
after the respective due dates thereof expressed in such Note or
in this Indenture (or, in the case of redemption, if applicable,
on or after the Redemption Date) and to institute suit for the
enforcement of any such payment, and such right shall not be
impaired without the consent of such Holder.
SECTION 5.8 RESTORATION OF RIGHTS AND REMEDIES. If
the Indenture Trustee or any Noteholder has instituted any
Proceeding to enforce any right or remedy under this Indenture
and such Proceeding has been discontinued or abandoned for any
reason or has been determined adversely to the Indenture Trustee
or to such Noteholder, then and in every such case the Issuer,
the Indenture Trustee and the Noteholders shall, subject to any
determination in such Proceeding, be restored severally and to
their respective former positions hereunder, and thereafter all
rights and remedies of the Indenture Trustee and the Noteholders
shall continue as though no such Proceeding had been instituted.
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SECTION 5.9 RIGHTS AND REMEDIES CUMULATIVE. No
right or remedy herein conferred upon or reserved to the
Indenture Trustee or to the Noteholders is intended to be
exclusive of any other right or remedy, and every right and
remedy shall, to the extent permitted by law, be cumulative and
in addition to every other right and remedy given hereunder or
now or hereafter existing at law or in equity or otherwise. The
assertion or employment of any right or remedy hereunder, or
otherwise, shall not prevent the concurrent assertion or
employment of any other appropriate right or remedy.
SECTION 5.10 DELAY OR OMISSION NOT A WAIVER. No
delay or omission of the Indenture Trustee or any Holder of any
Note to exercise any right or remedy accruing upon any Default
or Event of Default shall impair any such right or remedy or
constitute a waiver of any such Default or Event of Default or
an acquiescence therein. Every right and remedy given by this
Article V or by law to the Indenture Trustee or to the Notehold-
ers may be exercised from time to time, and as often as may be
deemed expedient, by the Indenture Trustee or by the
Noteholders, as the case may be.
SECTION 5.11 CONTROL BY NOTEHOLDERS. The Holders of
a majority of the Outstanding Amount of the Notes shall, subject
to provision being made for indemnification against costs,
expenses and liabilities in a form satisfactory to the Indenture
Trustee, have the right to direct the time, method and place of
conducting any Proceeding for any remedy available to the
Indenture Trustee with respect to the Notes or exercising any
trust or power conferred on the Indenture Trustee; PROVIDED,
HOWEVER, that:
(i) such direction shall not be in conflict with
any rule of law or with this Indenture;
(ii) subject to the express terms of Section 5.4,
any direction to the Indenture Trustee to sell or liquidate
the Trust Estate shall be by the Holders of Notes repre-
senting not less than 100% of the Outstanding Amount of the
Notes;
(iii) if the conditions set forth in Section 5.5
have been satisfied and the Indenture Trustee elects to
retain the Trust Estate pursuant to Section 5.5, then any
direction to the Indenture Trustee by Holders of Notes
representing less than 100% of the Outstanding Amount of
the Notes to sell or liquidate the Trust Estate shall be of
no force and effect; and
(iv) the Indenture Trustee may take any other
action deemed proper by the Indenture Trustee that is not
inconsistent with such direction;
PROVIDED, HOWEVER, that, subject to Section 6.1, the Indenture
Trustee need not take any action that it determines might cause
it to incur any liability (a) with respect to which the
Indenture Trustee shall have reasonable grounds to believe that
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adequate indemnity against such liability is not assured to it
and (b) which might materially adversely affect the rights of
any Noteholders not consenting to such action.
SECTION 5.12 WAIVER OF PAST DEFAULTS.
(a) Prior to the declaration of the acceleration of
the maturity of the Notes as provided in Section 5.2, the
Holders of not less than a majority of the Outstanding Amount of
the Notes may waive any past Default or Event of Default and its
consequences except a Default (i) in the payment of principal of
or interest on any of the Notes or (ii) in respect of a covenant
or provision hereof that cannot be modified or amended without
the consent of the Holder of each such Note. In the case of any
such waiver, the Issuer, the Indenture Trustee and the
Noteholders shall be restored to their former positions and
rights hereunder, respectively; but no such waiver shall extend
to any subsequent or other Default or impair any right
consequent thereto.
(b) Upon any such waiver, such Default shall cease to
exist and be deemed to have been cured and not to have occurred,
and any Event of Default arising therefrom shall be deemed to
have been cured and not to have occurred, for every purpose of
this Indenture; but no such waiver shall extend to any
subsequent or other Default or Event of Default or impair any
right consequent thereto.
SECTION 5.13 UNDERTAKING FOR COSTS. All parties to
this Indenture agree, and each Holder of any Note by such
Holder's acceptance thereof shall be deemed to have agreed, that
any court may in its discretion require, in any Proceeding for
the enforcement of any right or remedy under this Indenture, or
in any Proceeding against the Indenture Trustee for any action
taken, suffered or omitted by it as Trustee, the filing by any
party litigant in such Proceeding of an undertaking to pay the
costs of such Proceeding, and that such court may in its discre-
tion assess reasonable costs, including reasonable attorneys'
fees, against any party litigant in such Proceeding, having due
regard to the merits and good faith of the claims or defenses
made by such party litigant; but the provisions of this Section
5.13 shall not apply to:
(a) any Proceeding instituted by the Indenture
Trustee;
(b) any Proceeding instituted by any Noteholder, or
group of Noteholders, in each case holding in the aggregate more
than 10% of the Outstanding Amount of the Notes; or
(c) any Proceeding instituted by any Noteholder for
the enforcement of the payment of principal of or interest on
any Note on or after the respective due dates expressed in such
Note and in this Indenture (or, in the case of redemption, on or
after the Redemption Date).
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SECTION 5.14 WAIVER OF STAY OR EXTENSION LAWS. The
Issuer covenants (to the extent that it may lawfully do so) that
it shall not at any time insist upon, or plead or in any manner
whatsoever, claim or take the benefit or advantage of, any stay
or extension law wherever enacted, now or at any time hereafter
in force, that may affect the covenants or the performance of
this Indenture. The Issuer (to the extent that it may lawfully
do so) hereby expressly waives all benefit or advantage of any
such law, and covenants that it shall not hinder, delay or
impede the execution of any power herein granted to the
Indenture Trustee, but shall suffer and permit the execution of
every such power as though no such law had been enacted.
SECTION 5.15 ACTION ON NOTES. The Indenture
Trustee's right to seek and recover judgment on the Notes or
under this Indenture shall not be affected by the seeking,
obtaining or application of any other relief under or with
respect to this Indenture. Neither the lien of this Indenture
nor any rights or remedies of the Indenture Trustee or the
Noteholders shall be impaired by the recovery of any judgment by
the Indenture Trustee against the Issuer or by the levy of any
execution under such judgment upon any portion of the Trust
Estate or upon any of the assets of the Issuer. Any money or
property collected by the Indenture Trustee shall be applied in
accordance with Section 5.4(b) hereof.
SECTION 5.16 PERFORMANCE AND ENFORCEMENT OF CERTAIN
OBLIGATIONS.
(a) Promptly following a request from the Indenture
Trustee to do so and at the Administrator's expense, the Issuer
agrees to take all such lawful action as the Indenture Trustee
may request to compel or secure the performance and observance
by the Seller and the Servicer of their respective obligations
to the Issuer under or in connection with the Trust Sale and
Servicing Agreement and the Pooling and Servicing Agreement or
by GMAC of its obligations under or in connection with the
Pooling and Servicing Agreement in accordance with the terms
thereof, and to exercise any and all rights, remedies, powers
and privileges lawfully available to the Issuer under or in
connection with the Trust Sale and Servicing Agreement to the
extent and in the manner directed by the Indenture Trustee,
including the transmission of notices of default on the part of
the Seller or the Servicer thereunder and the institution of
legal or administrative actions or proceedings to compel or
secure performance by the Seller or the Servicer of each of
their obligations under the Trust Sale and Servicing Agreement.
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(b) If an Event of Default has occurred and is
continuing, the Indenture Trustee may, and, at the direction
(which direction shall be in writing or by telephone (confirmed
in writing promptly thereafter)) of the Holders of 66-2/3% of
the Outstanding Amount of the Notes shall, exercise all rights,
remedies, powers, privileges and claims of the Issuer against
the Seller or the Servicer under or in connection with the Trust
Sale and Servicing Agreement, including the right or power to
take any action to compel or secure performance or observance by
the Seller or the Servicer of each of their obligations to the
Issuer thereunder and to give any consent, request, notice,
direction, approval, extension or waiver under the Trust Sale
and Servicing Agreement, and any right of the Issuer to take
such action shall be suspended.
(c) Promptly following a request from the Indenture
Trustee to do so and at the Administrator's expense, the Issuer
agrees to take all such lawful action as the Indenture Trustee
may request to compel or secure the performance and observance
by GMAC and the Servicer of each of their obligations to the
Seller under or in connection with the Pooling and Servicing
Agreement in accordance with the terms thereof, and to exercise
any and all rights, remedies, powers and privileges lawfully
available to the Issuer under or in connection with the Pooling
and Servicing Agreement to the extent and in the manner directed
by the Indenture Trustee, including the transmission of notices
of default on the part of the Seller thereunder and the
institution of legal or administrative actions or proceedings to
compel or secure performance by GMAC and the Servicer of each of
their obligations under the Pooling and Servicing Agreement.
(d) If an Event of Default has occurred and is
continuing, the Indenture Trustee may, and, at the direction
(which direction shall be in writing or by telephone (confirmed
in writing promptly thereafter)) of the Holders of 66-2/3% of
the Outstanding Amount of the Notes shall, exercise all rights,
remedies, powers, privileges and claims of the Seller against
GMAC and the Servicer under or in connection with the Pooling
and Servicing Agreement, including the right or power to take
any action to compel or secure performance or observance by GMAC
and the Servicer of each of their obligations to the Seller
thereunder and to give any consent, request, notice, direction,
approval, extension or waiver under the Pooling and Servicing
Agreement, and any right of the Seller to take such action shall
be suspended.
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ARTICLE VI
THE INDENTURE TRUSTEE
SECTION 6.1 DUTIES OF INDENTURE TRUSTEE.
(a) If an Event of Default has occurred and is
continuing, the Indenture Trustee shall exercise the rights and
powers vested in it by this Indenture and use the same degree of
care and skill in their exercise as a prudent person would
exercise or use under the circumstances in the conduct of such
person's own affairs, including without limitation, continuing
to hold the Trust Estate and receive collections on the
Receivables included therein and provided in the Trust Sale and
Servicing Agreement.
(b) Except during the continuance of an Event of
Default:
(i) the Indenture Trustee undertakes to perform
such duties and only such duties as are specifically set
forth in this Indenture and the Trust Sale and Servicing
Agreement and no implied covenants or obligations shall be
read into this Indenture or the Trust Sale and Servicing
Agreement against the Indenture Trustee; and
(ii) in the absence of bad faith on its part, the
Indenture Trustee may conclusively rely, as to the truth of
the statements and the correctness of the opinions ex-
pressed therein, upon certificates or opinions furnished to
the Indenture Trustee and conforming to the requirements of
this Indenture; PROVIDED, HOWEVER, that the Indenture
Trustee shall examine the certificates and opinions to
determine whether or not they conform to the requirements
of this Indenture.
(c) The Indenture Trustee may not be relieved from
liability for its own negligent action, its own negligent
failure to act or its own wilful misconduct, except that:
(i) this Section 6.1(c) does not limit the
effect of Section 6.1(b);
(ii) the Indenture Trustee shall not be liable
for any error of judgment made in good faith by a
Responsible Officer unless it is proved that the Indenture
Trustee was negligent in ascertaining the pertinent facts;
and
(iii) the Indenture Trustee shall not be liable
with respect to any action it takes or omits to take in
good faith in accordance with a direction received by it
pursuant to Section 5.11.
(d) The Indenture Trustee shall not be liable for
interest on any money received by it except as the Indenture
Trustee may agree in writing with the Issuer.
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(e) Money held in trust by the Indenture Trustee need
not be segregated from other funds except to the extent required
by law or the terms of this Indenture or the Trust Sale and
Servicing Agreement.
(f) No provision of this Indenture shall require the
Indenture Trustee to expend or risk its own funds or otherwise
incur financial liability in the performance of any of its
duties hereunder or in the exercise of any of its rights or
powers, if it shall have reasonable grounds to believe that
repayments of such funds or adequate indemnity against such risk
or liability is not reasonably assured to it.
(g) Every provision of this Indenture relating to the
Indenture Trustee shall be subject to the provisions of this
Section 6.1 and to the provisions of the TIA.
SECTION 6.2 RIGHTS OF INDENTURE TRUSTEE.
(a) The Indenture Trustee may rely on any document
believed by it to be genuine and to have been signed or
presented by the proper Person. The Indenture Trustee need not
investigate any fact or matter stated in the document.
(b) Before the Indenture Trustee acts or refrains
from acting, it may require an Officer's Certificate from the
Issuer or an Opinion of Counsel that such action or omission is
required or permitted hereunder. The Indenture Trustee shall
not be liable for any action it takes or omits to take in good
faith in reliance on such Officer's Certificate or Opinion of
Counsel.
(c) The Indenture Trustee may execute any of the
trusts or powers hereunder or perform any duties hereunder
either directly or by or through agents or attorneys or a
custodian or nominee, and the Indenture Trustee shall not be
responsible for any misconduct or negligence on the part of, or
for the supervision of, any such agent, attorney, custodian or
nominee appointed with due care by it hereunder.
(d) The Indenture Trustee shall not be liable for any
action it takes or omits to take in good faith which it believes
to be authorized or within its rights or powers; PROVIDED,
HOWEVER, that the Indenture Trustee's conduct does not
constitute wilful misconduct, negligence or bad faith.
(e) The Indenture Trustee may consult with counsel,
and the advice or opinion of counsel with respect to legal
matters relating to this Indenture and the Notes shall be full
and complete authorization and protection from liability in
respect to any action taken, omitted or suffered by it hereunder
in good faith and in accordance with the advice or opinion of
such counsel.
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SECTION 6.3 INDENTURE TRUSTEE MAY OWN NOTES. The
Indenture Trustee in its individual or any other capacity may
become the owner or pledgee of Notes and may otherwise deal with
the Issuer, the Servicer or any of their respective Affiliates
with the same rights it would have if it were not Indenture
Trustee; PROVIDED, HOWEVER, that the Indenture Trustee shall
comply with Sections 6.10 and 6.11. Any Paying Agent, Note
Registrar, co-registrar or co-paying agent may do the same with
like rights.
SECTION 6.4 INDENTURE TRUSTEE'S DISCLAIMER. The
Indenture Trustee shall not be responsible for and makes no
representation as to the validity or adequacy of this Indenture
or the Notes, it shall not be accountable for the Issuer's use
of the proceeds from the Notes, and it shall not be responsible
for any statement of the Issuer in the Indenture or in any
document issued in connection with the sale of the Notes or in
the Notes other than the Indenture Trustee's certificate of
authentication.
SECTION 6.5 NOTICE OF DEFAULTS. If a Default
occurs and is continuing and if it is known to a Responsible
Officer of the Indenture Trustee, the Indenture Trustee shall
mail to each Noteholder notice of the Default within 90 days
after it occurs. Except in the case of a Default in payment of
principal of or interest on any Note, the Indenture Trustee may
withhold the notice if and so long as a committee of its
Responsible Officers in good faith determines that withholding
the notice is in the interests of Noteholders.
SECTION 6.6 REPORTS BY INDENTURE TRUSTEE TO
HOLDERS. The Indenture Trustee shall deliver to each Noteholder
the information and documents set forth in Article VII, and, in
addition, all such information with respect to the Notes as may
be required by the terms of the Trust Sale and Servicing
Agreement to be provided to Holders by the Indenture Trustee to
enable such Holder to prepare its federal and state income tax
returns.
SECTION 6.7 COMPENSATION; INDEMNITY.
(a) The Issuer shall cause the Servicer pursuant to
Section 3.03 of the Pooling and Servicing Agreement to pay to
the Indenture Trustee from time to time such compensation for
its services as shall be agreed upon in writing. The Indenture
Trustee's compensation shall not be limited by any law on
compensation of a trustee of an express trust. The Issuer shall
cause the Servicer pursuant to Section 3.03 of the Pooling and
Servicing Agreement to reimburse the Indenture Trustee for all
reasonable out-of-pocket expenses incurred or made by it,
including costs of collection, in addition to the compensation
for its services. Such expenses shall include the reasonable
compensation and expenses, disbursements and advances of the
Indenture Trustee's agents, counsel, accountants and experts.
The Issuer shall cause the Servicer pursuant to the Trust Sale
and Servicing Agreement to indemnify the Indenture Trustee in
accordance with Section 7.1 of the Trust Sale and Servicing
Agreement.
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(b) The Issuer's obligations to the Indenture Trustee
pursuant to this Section 6.7 shall survive the discharge of this
Indenture. When the Indenture Trustee incurs expenses after the
occurrence of a Default specified in Section 5.1(e) or (f) with
respect to the Issuer, the expenses are intended to constitute
expenses of administration under any Insolvency Law.
SECTION 6.8 REPLACEMENT OF INDENTURE TRUSTEE.
(a) The Indenture Trustee may at any time give notice
of its intent to resign by so notifying the Issuer; PROVIDED,
HOWEVER, that no such resignation shall become effective and the
Owner Trustee shall not resign prior to the time set forth in
Section 6.8(c). The Holders of a majority in Outstanding Amount
of the Notes may remove the Indenture Trustee by so notifying
the Indenture Trustee and may appoint a successor Indenture
Trustee. Such resignation or removal shall become effective in
accordance with Section 6.8(c). The Issuer shall remove the
Indenture Trustee if:
(i) the Indenture Trustee fails to comply with
Section 6.11;
(ii) the Indenture Trustee is adjudged bankrupt
or insolvent;
(iii) a receiver or other public officer takes
charge of the Indenture Trustee or its property; or
(iv) the Indenture Trustee otherwise becomes
incapable of acting.
(b) If the Indenture Trustee gives notice of its
intent to resign or is removed or if a vacancy exists in the
office of Indenture Trustee for any reason (the Indenture
Trustee in such event being referred to herein as the retiring
Indenture Trustee), the Issuer shall promptly appoint and
designate a successor Indenture Trustee.
(c) A successor Indenture Trustee shall deliver a
written acceptance of its appointment and designation to the
retiring Indenture Trustee and to the Issuer. Thereupon the
resignation or removal of the retiring Indenture Trustee shall
become effective, and the successor Indenture Trustee shall have
all the rights, powers and duties of the Indenture Trustee under
this Indenture. The successor Indenture Trustee shall mail a
notice of its succession to Noteholders. The retiring Indenture
Trustee shall promptly transfer all property held by it as
Indenture Trustee to the successor Indenture Trustee.
(d) If a successor Indenture Trustee does not take
office within 60 days after the retiring Indenture Trustee gives
notice of its intent to resign or is removed, the retiring
Trustee, the Issuer or the Holders of a majority of the
Outstanding Amount of the Notes may petition any court of
competent jurisdiction for the appointment and designation of a
successor Indenture Trustee.
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(e) If the Indenture Trustee fails to comply with
Section 6.11, any Noteholder may petition any court of competent
jurisdiction for the removal of the Indenture Trustee and the
appointment of a successor Indenture Trustee.
(f) Notwithstanding the replacement of the Indenture
Trustee pursuant to this Section 6.8, the Issuer's obligations
under Section 6.7 and the Servicer's corresponding obligations
under the Trust Sale and Servicing Agreement shall continue for
the benefit of the retiring Indenture Trustee.
SECTION 6.9 MERGER OR CONSOLIDATION OF INDENTURE
TRUSTEE.
(a) Any corporation into which the Indenture Trustee
may be merged or with which it may be consolidated, or any
corporation resulting from any merger or consolidation to which
the Indenture Trustee shall be a party, or any corporation
succeeding to the corporate trust business of the Indenture
Trustee, shall be the successor of the Indenture Trustee under
this Indenture; PROVIDED, HOWEVER, that such corporation shall
be eligible under the provisions of Section 6.11, without the
execution or filing of any instrument or any further act on the
part of any of the parties to this Indenture, anything in this
Indenture to the contrary notwithstanding.
(b) If at the time such successor or successors by
merger or consolidation to the Indenture Trustee shall succeed
to the trusts created by this Indenture, any of the Notes shall
have been authenticated but not delivered, any such successor to
the Indenture Trustee may adopt the certificate of
authentication of any predecessor trustee, and deliver such
Notes so authenticated; and in case at that time any of the
Notes shall not have been authenticated, any successor to the
Indenture Trustee may authenticate such Notes either in the name
of any predecessor hereunder or in the name of the successor to
the Indenture Trustee. In all such cases such certificate of
authentication shall have the same full force as is provided
anywhere in the Notes or herein with respect to the certificate
of authentication of the Indenture Trustee.
SECTION 6.10 APPOINTMENT OF CO-INDENTURE TRUSTEE OR
SEPARATE INDENTURE TRUSTEE.
(a) Notwithstanding any other provisions of this
Indenture, at any time, for the purpose of meeting any legal
requirement of any jurisdiction in which any part of the Issuer
or any Dealer may at the time be located, the Indenture Trustee
shall have the power and may execute and deliver all instruments
to appoint one or more Persons approved by the Indenture Trustee
to act as a co-trustee or co-trustees, jointly with the
Indenture Trustee, or separate trustee or separate trustees, of
all or any part of the
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Issuer, and to vest in such Person or Persons, in such capacity
and for the benefit of the Noteholders and (only to the extent
expressly provided herein) the Certificateholders, such title to
the Issuer, or any part hereof, and, subject to the other
provisions of this Section 6.10, such powers, duties,
obligations, rights and trusts as the Indenture Trustee may
consider necessary or desirable. No co-trustee or separate
trustee hereunder shall be required to meet the terms of
eligibility as a successor trustee under Section 6.11 and no
notice to Noteholders of the appointment of any co-trustee or
separate trustee shall be required under Section 6.8.
(b) Every separate trustee and co-trustee shall, to
the extent permitted by law, be appointed and act subject to the
following provisions and conditions:
(i) all rights, powers, duties and obligations
conferred or imposed upon the Indenture Trustee shall be
conferred or imposed upon and exercised or performed by the
Indenture Trustee and such separate trustee or co-trustee
jointly (it being understood that such separate trustee or
co-trustee is not authorized to act separately without the
Indenture Trustee joining in such act), except to the
extent that under any law of any jurisdiction in which any
particular act or acts are to be performed the Indenture
Trustee shall be incompetent or unqualified to perform such
act or acts, in which event such rights, powers, duties and
obligations (including the holding of title to the Issuer
or any portion thereof in any such jurisdiction) shall be
exercised and performed singly by such separate trustee or
co-trustee, but solely at the direction of the Indenture
Trustee;
(ii) no trustee hereunder shall be personally
liable by reason of any act or omission of any other
trustee hereunder; and
(iii) the Indenture Trustee may at any time accept
the resignation of or remove any separate trustee or
co-trustee.
(c) Any notice, request or other writing given to the
Indenture Trustee shall be deemed to have been given to each of
the then separate trustees and co-trustees, as effectively as if
given to each of them. Every instrument appointing any separate
trustee or co-trustee shall refer to this Indenture and the
conditions of this Article VI. Each separate trustee and
co-trustee, upon its acceptance of the trusts conferred, shall
be vested with the estates or property specified in its
instrument of appointment, either jointly with the Indenture
Trustee or separately, as may be provided therein, subject to
all the provisions of this Indenture, specifically including
every provision of this Indenture relating to the conduct of,
affecting the liability of, or affording protection to, the
Indenture Trustee. Every such instrument shall be filed with
the Indenture Trustee.
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(d) Any separate trustee or co-trustee may at any
time appoint the Indenture Trustee as its agent or
attorney-in-fact with full power and authority, to the extent
not prohibited by law, to do any lawful act under or in respect
of this Indenture on its behalf and in its name. If any
separate trustee or co-trustee shall die, become incapable of
acting, resign or be removed, all of its estates, properties,
rights, remedies and trusts shall vest in and be exercised by
the Indenture Trustee, to the extent permitted by law, without
the appointment of a new or successor trustee.
SECTION 6.11 ELIGIBILITY; DISQUALIFICATION. The
Indenture Trustee shall at all times satisfy the requirements of
TIA 310(a) and Section 26(a) of the Investment Company Act.
The Indenture Trustee shall have a combined capital and surplus,
and an aggregate capital, surplus and undivided profits, of at
least $50,000,000 as set forth in its most recent published
annual report of condition and (unless waived by Moody's) it
shall have a long term unsecured debt rating of Baa3 or better
by Moody's. The Indenture Trustee shall comply with TIA
310(b); PROVIDED, HOWEVER, that there shall be excluded from the
operation of TIA 310(b)(1) any indenture or indentures under
which other securities of the Issuer are outstanding if the
requirements for such exclusion set forth in TIA 310(b)(1) are
met.
SECTION 6.12 PREFERENTIAL COLLECTION OF CLAIMS
AGAINST ISSUER. The Indenture Trustee shall comply with TIA
311(a), excluding any creditor relationship listed in TIA
311(b). A trustee who has resigned or been removed shall be
subject to TIA 311(a) to the extent indicated.
SECTION 6.13 REPRESENTATIONS AND WARRANTIES OF
INDENTURE TRUSTEE. The Indenture Trustee represents and
warrants as of the Closing Date that:
(a) the Indenture Trustee is a national banking
association duly organized, validly existing and in good
standing under the laws of the United States of America and the
eligibility requirements set forth in Section 6.11 are satisfied
with respect to the Indenture Trustee;
(b) the Indenture Trustee has full power, authority
and legal right to execute, deliver and perform this Indenture,
and has taken all necessary action to authorize the execution,
delivery and performance by it of this Indenture;
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(c) the execution, delivery and performance by the
Indenture Trustee of this Indenture (i) shall not violate any
provision of any law or regulation governing the banking and
trust powers of the Indenture Trustee or any order, writ,
judgment or decree of any court, arbitrator, or Governmental
Authority applicable to the Indenture Trustee or any of its
assets, (ii) shall not violate any provision of the corporate
charter or by-laws of the Indenture Trustee or (iii) shall not
violate any provision of, or constitute, with or without notice
or lapse of time, a default under, or result in the creation or
imposition of any lien on any properties included in the Trust
Estate pursuant to the provisions of any mortgage, indenture,
contract, agreement or other undertaking to which it is a party,
which violation, default or lien could reasonably be expected to
have a materially adverse effect on the Indenture Trustee's
performance or ability to perform its duties under this
Indenture or on the transactions contemplated in this Indenture;
(d) the execution, delivery and performance by the
Indenture Trustee of this Indenture shall not require the
authorization, consent or approval of, the giving of notice to,
the filing or registration with, or the taking of any other
action in respect of, any Governmental Authority or agency
regulating the banking and corporate trust activities of the
Indenture Trustee; and
(e) this Indenture has been duly executed and
delivered by the Indenture Trustee and constitutes the legal,
valid and binding agreement of the Indenture Trustee,
enforceable in accordance with its terms.
SECTION 6.14 INDENTURE TRUSTEE MAY ENFORCE CLAIMS
WITHOUT POSSESSION OF NOTES. All rights of action and claims
under this Indenture or the Notes may be prosecuted and enforced
by the Indenture Trustee without the possession of any of the
Notes or the production thereof in any proceeding relating
thereto, and any such proceeding instituted by the Indenture
Trustee shall be brought in its own name as Indenture Trustee.
Any recovery of judgment shall, after provision for the payment
of the reasonable compensation, expenses, disbursements and
advances of the Indenture Trustee, its agents and counsel, be
for the ratable benefit of the Noteholders and (only to the
extent expressly provided herein) the Certificateholders in
respect of which such judgment has been obtained.
SECTION 6.15 SUIT FOR ENFORCEMENT. If an Event of
Default shall occur and be continuing, the Indenture Trustee, in
its discretion may, subject to the provisions of Section 6.1,
proceed to protect and enforce its rights and the rights of the
Noteholders under this Indenture by a Proceeding whether for the
specific performance of any covenant or agreement contained in
this Indenture or in aid of the execution of any power granted
in this Indenture or for the enforcement of any other legal,
equitable or other remedy as the Indenture Trustee, being
advised by counsel, shall deem most effectual to protect and
enforce any of the rights of the Indenture Trustee or the
Noteholders.
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SECTION 6.16 RIGHTS OF NOTEHOLDERS TO DIRECT
INDENTURE TRUSTEE. Holders of Notes evidencing not less than a
majority of the Outstanding Amount of the Notes shall have the
right to direct in writing the time, method and place of
conducting any Proceeding for any remedy available to the
Indenture Trustee or exercising any trust or power conferred on
the Indenture Trustee; PROVIDED, HOWEVER, that subject to
Section 6.1, the Indenture Trustee shall have the right to
decline to follow any such direction if the Indenture Trustee,
being advised by counsel, determines that the action so directed
may not lawfully be taken, or if the Indenture Trustee in good
faith shall, by a Responsible Officer, determine that the
proceedings so directed would be illegal or subject it to
personal liability or be unduly prejudicial to the rights of
Noteholders not parties to such direction; and PROVIDED,
FURTHER, that nothing in this Indenture shall impair the right
of the Indenture Trustee to take any action deemed proper by the
Indenture Trustee and which is not inconsistent with such
direction by the Noteholders.
ARTICLE VII
NOTEHOLDERS' LISTS AND REPORTS
SECTION 7.1 ISSUER TO FURNISH INDENTURE TRUSTEE
NAMES AND ADDRESSES OF NOTEHOLDERS. The Issuer shall furnish or
cause to be furnished by the Servicer to the Indenture Trustee
(a) not more than five days before each date on which payments
are to be made, a list, in such form as the Indenture Trustee
may reasonably require, of the names and addresses of the
Holders of Notes as of the close of business on the related
Record Date, and (b) at such other times as the Indenture
Trustee may request in writing, within 14 days after receipt by
the Issuer of any such request, a list of similar form and
content as of a date not more than 10 days prior to the time
such list is furnished; PROVIDED, HOWEVER, that so long as the
Indenture Trustee is the Note Registrar, no such list shall be
required to be furnished.
SECTION 7.2 PRESERVATION OF INFORMATION,
COMMUNICATIONS TO NOTEHOLDERS.
(a) The Indenture Trustee shall preserve, in as
current a form as is reasonably practicable, the names and
addresses of the Holders of Notes contained in the most recent
list furnished to the Indenture Trustee as provided in Section
7.1 and the names and addresses of Holders of Notes received by
the Indenture Trustee in its capacity as Note Registrar. The
Indenture Trustee may destroy any list furnished to it as
provided in such Section 7.1 upon receipt of a new list so fur-
nished.
(b) Noteholders may communicate pursuant to TIA
312(b) with other Noteholders with respect to their rights
under this Indenture or under the Notes.
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(c) The Issuer, the Indenture Trustee and the Note
Registrar shall have the protection of TIA 312(c).
SECTION 7.3 REPORTS BY ISSUER.
(a) The Issuer shall:
(i) file with the Indenture Trustee, within 15
days after the Issuer is required to file the same with the
Commission or any applicable state agencies, copies of the
annual reports and of the information, documents and other
reports (or copies of such portions of any of the foregoing
as the Commission may from time to time by rules and
regulations prescribe) which the Issuer may be required to
file with the Commission pursuant to Section 13 or 15(d) of
the Exchange Act or any applicable state agencies pursuant
to comparable regulation;
(ii) file with the Indenture Trustee and the
Commission or any applicable state agencies in accordance
with rules and regulations prescribed from time to time by
the Commission or any applicable state agencies such
additional information, documents and reports with respect
to compliance by the Issuer with the conditions and
covenants of this Indenture as may be required from time to
time by such rules and regulations; and
(iii) supply to the Indenture Trustee (and the
Indenture Trustee shall transmit by mail to all Noteholders
described in TIA 313(c)) such summaries of any
information, documents and reports required to be filed by
the Issuer pursuant to clauses (i) and (ii) of this Section
7.3(a) as may be required by rules and regulations
prescribed from time to time by the Commission or any
applicable state agencies.
(b) Unless the Issuer otherwise determines, the
fiscal year of the Issuer shall end on December 31 of such year.
SECTION 7.4 REPORTS BY TRUSTEE.
(a) If required by TIA 313(a), within 60 days after
each February 1, beginning with February 1, 1995, the Indenture
Trustee shall mail to each Noteholder as required by TIA 313(c)
a brief report dated as of such date that complies with TIA
313(a). The Indenture Trustee also shall comply with TIA
313(b). A copy of any report delivered pursuant to this
Section 7.4(a) shall, at the time of its mailing to Noteholders,
be filed by the Indenture Trustee with the Commission and each
stock exchange, if any, on which the Notes are listed. The
Issuer shall notify the Indenture Trustee if and when the Notes
are listed on any stock exchange.
(b) On each Payment Date, the Indenture Trustee shall
include with each payment to each Noteholder a copy of the
statement for the Collection Period or Periods applicable to
such Payment Date as required pursuant to Section 4.8 of the
Trust Sale and Servicing Agreement.
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ARTICLE VIII
ACCOUNTS, DISBURSEMENTS AND RELEASES
SECTION 8.1 COLLECTION OF MONEY. Except as
otherwise expressly provided herein, the Indenture Trustee may
demand payment or delivery of, and shall receive and collect,
directly and without intervention or assistance of any fiscal
agent or other intermediary, all money and other property
payable to or receivable by the Indenture Trustee pursuant to
this Indenture. The Indenture Trustee shall apply all such
money received by it as provided in this Indenture, the Pooling
and Servicing Agreement and the Trust Sale and Servicing
Agreement. Except as otherwise expressly provided in this
Indenture, if any default occurs in the making of any payment or
performance under any agreement or instrument that is part of
the Trust Estate, the Indenture Trustee may take such action as
may be appropriate to enforce such payment or performance,
including the institution and prosecution of appropriate
Proceedings. Any such action shall be without prejudice to any
right to claim an Event of Default under this Indenture and any
right to proceed thereafter as provided in Article V.
SECTION 8.2 DESIGNATED ACCOUNTS; PAYMENTS.
(a) On or prior to the Closing Date, the Issuer shall
cause the Servicer to establish and maintain, in the name of the
Indenture Trustee, for the benefit of the Noteholders and the
Certificateholders, the Designated Accounts as provided in
Articles IV and VI of the Trust Sale and Servicing Agreement.
(b) On each date during the Revolving Period that
amounts are transferred from the Collection Account to the
Revolver Distribution Account for payment of principal on
Revolving Notes as provided in Section 4.5(d)(i) of the Trust
Sale and Servicing Agreement, the Indenture Trustee shall
distribute such funds as principal to the Holders of each series
of Revolving Notes, unless otherwise provided in any related
Officer's Issuance Certificate, pro rata on the basis of the
Outstanding Amount attributable to each such series.
Distributions shall be made to the Holders of each such series
of Revolving Notes on each such date, pro rata on the basis of
the respective Outstanding Amounts attributable to the Revolving
Notes of each such Holder, (i) unless otherwise provided in any
Officer's Issuance Certificate or (ii) if and as otherwise
directed by the Issuer, in the respective amounts directed by
the Issuer (up to, in any such case, the Outstanding Amount of
the Revolving Note held by each such Holder). If and as
requested by the Holders of any series of Revolving Notes,
distributions may be made directly to the account(s) directed by
such Holders and such account(s) shall be the Revolver
Distribution Account for all purposes of this Indenture and the
Trust Sale and Servicing Agreement.
(c) On or before each Distribution Date (i) amounts
shall be deposited in the Collection Account as provided in
Section 4.5 of the Trust Sale and Servicing Agreement, (ii) the
Aggregate Noteholders' Interest and the Aggregate Revolver
Interest shall be transferred from the Collection Account to the
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Note Distribution Account and the Revolver Distribution Account,
respectively, if and to the extent provided in Section 4.5(c) of
the Trust Sale and Servicing Agreement, (iii) if such
Distribution Date is related to an Early Amortization Period or
the Wind Down Period, the Aggregate Noteholders' Principal and
the Required Revolver Payment shall be transferred from the
Collection Account to the Note Distribution Account and the
Revolver Distribution Account, respectively, as provided in
Section 4.5(d) of the Trust Sale and Servicing Agreement and
(iv) with respect to the Revolving Period, if such Distribution
Date is related to a Payment Period for a series of Notes or if
a principal payment is required to be made on (or set aside for)
any series of Revolving Notes on such Distribution Date, the
amount required to be deposited in the Note Distribution Account
or the Revolver Distribution Account, as applicable, on such
date pursuant to the related Officer's Issuance Certificate and
the Trust Sale and Servicing Agreement shall be transferred from
the Collection Account to such Distribution Account.
Notwithstanding the preceding sentence, to the extent permitted
and as provided by Section 4.7 of the Trust Sale and Servicing
Agreement, deposits may be netted against amounts owing to the
depositor and all distributions, deposits or other remittances
in respect of a series of Notes or the Note Distribution Account
or the Revolver Distribution Account, as applicable, which are
otherwise required to be made on an Exempt Deposit Date for such
series may be made on the next succeeding Payment Date for such
series, on which Payment Date the cumulative amount of all such
distributions, deposits and other remittances with respect to
such series for such Payment Date and the immediately preceding
Exempt Deposit Date or Dates shall be made.
(d) On each Distribution Date, the Indenture Trustee
shall (unless otherwise provided in any Officer's Issuance
Certificate) allocate the amount deposited into the Note
Distribution Account as Aggregate Noteholders' Interest pursuant
to Section 4.5(c) of the Trust Sale and Servicing Agreement
among all outstanding series of Term Notes pro rata on the basis
of the accrued and unpaid interest on such Term Notes. On the
related Payment Date (which may be such Distribution Date) for
each series of Term Notes, the Indenture Trustee shall pay to
the Holders of such series all amounts in the Note Distribution
Account so allocated to such series.
(e) On each Distribution Date, the Indenture Trustee
shall allocate the amount deposited into the Revolver
Distribution Account as Aggregate Revolver Interest pursuant to
Section 4.5(c) of the Trust Sale and Servicing Agreement among
all outstanding series of Revolving Notes pro rata on the basis
of the accrued and unpaid interest on such Revolving Notes. On
the related Payment Date (which may be such Distribution Date)
for each series of Revolving Notes, the Indenture Trustee shall
pay to the Holders of such series all amounts in the Revolver
Distribution Account so allocated to such series.
(f) On each Distribution Date described in subsection
(c) above, the Indenture Trustee shall allocate amounts
deposited in the Note Distribution Account and the Revolver
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Distribution Account for payments of principal among all series
of Term Notes and Revolving Notes, respectively, and pay amounts
to the Holders thereof, to the extent and at the times provided
in the related Officer's Issuance Certificates.
(g) On the first Distribution Date related to an
Early Amortization Period that commences during the Wind Down
Period or a Payment Period or during the Revolving Period (if
amounts are then being set aside for payments of principal on
any Revolving Notes), the Indenture Trustee shall, unless
otherwise provided in any Officer's Issuance Certificate, pay to
the Holders of each series of Term Notes and Revolving Notes all
amounts deposited in the Note Distribution Account or the
Revolver Distribution Account, as appropriate, on prior
Distribution Dates allocated to the payment of principal on such
Notes and not theretofore paid to the Holders of such Notes and,
to the extent described in the related Officer's Issuance
Certificate, such other amounts allocated to the payment of
principal on such Notes on such Distribution Date with respect
to the period prior to the commencement of such Early
Amortization Period.
(h) Notwithstanding anything to the contrary herein,
all investment earnings on funds on deposit in the Note
Distribution Account and the Revolver Distribution Account, net
of losses and investment expenses, shall constitute Investment
Proceeds and be applied as described in the Trust Sale and
Servicing Agreement.
SECTION 8.3 GENERAL PROVISIONS REGARDING DESIGNATED
ACCOUNTS.
(a) Subject to Section 6.1(c), the Indenture Trustee
shall not in any way be held liable by reason of any
insufficiency in any of the Designated Accounts resulting from
any loss on any Eligible Investment included therein except for
losses attributable to the Indenture Trustee's failure to make
payments on such Eligible Investments issued by the Indenture
Trustee, in its commercial capacity as principal obligor and not
as trustee, in accordance with their terms.
(b) If (i) the Servicer shall have failed to give
investment directions for any funds on deposit in the Designated
Accounts to the Indenture Trustee by 11:00 a.m., New York City
time (or such other time as may be agreed by the Servicer and
the Indenture Trustee) on any Business Day or (ii) an Event of
Default shall have occurred and be continuing with respect to
the Notes but the Notes shall not have been declared due and
payable pursuant to Section 5.2, or, if such Notes shall have
been declared due and payable following an Event of Default, but
amounts collected or receivable from the Trust Estate are being
applied in accordance with Section 5.5 as if there had not been
such a declaration, then the Indenture Trustee shall, to the
fullest extent practicable, invest and reinvest funds in the
Designated Accounts in one or more Eligible Investments selected
by the Indenture Trustee.
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SECTION 8.4 RELEASE OF TRUST ESTATE.
(a) Subject to the payment of its fees and expenses
pursuant to Section 6.7, the Indenture Trustee may, and when
required by the provisions of this Indenture shall, execute
instruments to release property from the lien of this Indenture,
or convey the Indenture Trustee's interest in the same, in a
manner and under circumstances that are consistent with the
provisions of this Indenture. No party relying upon an
instrument executed by the Indenture Trustee as provided in this
Article VIII shall be bound to ascertain the Indenture Trustee's
authority, inquire into the satisfaction of any conditions
precedent or see to the application of any monies.
(b) The Indenture Trustee shall, at such time as
there are no Notes Outstanding and all sums due to the Indenture
Trustee pursuant to Section 6.7 have been paid, notify the
Issuer thereof in writing and upon receipt of an Issuer Request,
release any remaining portion of the Trust Estate that secured
the Notes from the lien of this Indenture and release to the
Issuer or any other Person entitled thereto any funds then on
deposit in the Note Distribution Account and the Revolver
Distribution Account. The Indenture Trustee shall (i) release
any remaining portion of the Trust Estate that secured the
Certificates from the lien of this Indenture and (ii) release to
the Issuer or any other Person entitled thereto any funds then
on deposit in the Reserve Fund or the Collection Account only at
such time as (x) there are no Notes Outstanding, (y) all
payments in respect of Certificate Balance and interest due to
the Certificateholders have been paid in full and (z) all sums
due to the Indenture Trustee pursuant to Section 6.7 have been
paid.
SECTION 8.5 OPINION OF COUNSEL. The Indenture
Trustee shall receive at least seven days' notice when requested
by the Issuer to take any action pursuant to Section 8.4(a),
accompanied by copies of any instruments involved, and the
Indenture Trustee shall also require as a condition to such
action, an Opinion of Counsel, in form and substance
satisfactory to the Indenture Trustee, stating the legal effect
of any such action, outlining the steps required to complete the
same, and concluding that all conditions precedent to the taking
of such action have been complied with and such action shall not
materially and adversely impair the security for the Notes or
the rights of the Noteholders in contravention of the provisions
of this Indenture; PROVIDED, HOWEVER, that such Opinion of
Counsel shall not be required to express an opinion as to the
fair value of the Trust Estate. Counsel rendering any such
opinion may rely, without independent investigation, on the
accuracy and validity of any certificate or other instrument
delivered to the Indenture Trustee in connection with any such
action.
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ARTICLE IX
SUPPLEMENTAL INDENTURES
SECTION 9.1 SUPPLEMENTAL INDENTURES WITHOUT CONSENT
OF NOTEHOLDERS.
(a) Without the consent of the Holders of any Notes
but with prior notice to the Rating Agencies, the Issuer and the
Indenture Trustee, when authorized by an Issuer Order, at any
time and from time to time, may enter into one or more
indentures supplemental hereto (which shall conform to the
provisions of the Trust Indenture Act as in force at the date of
the execution thereof), in form satisfactory to the Indenture
Trustee, for any of the following purposes:
(i) to correct or amplify the description of any
property at any time subject to the lien of this Indenture,
or better to assure, convey and confirm unto the Indenture
Trustee any property subject or required to be subjected to
the lien of this Indenture, or to subject additional
property to the lien of this Indenture;
(ii) to evidence the succession, in compliance
with Section 3.10 and the applicable provisions hereof, of
another Person to the Issuer, and the assumption by any
such successor of the covenants of the Issuer contained
herein and in the Notes;
(iii) to add to the covenants of the Issuer for
the benefit of the Noteholders;
(iv) to convey, transfer, assign, mortgage or
pledge any property to or with the Indenture Trustee;
(v) to cure any ambiguity or to correct or
supplement any provision herein or in any supplemental
indenture which may be inconsistent with any other
provision herein or in any supplemental indenture;
(vi) to evidence and provide for the acceptance
of the appointment hereunder by a successor trustee with
respect to the Notes and to add to or change any of the
provisions of this Indenture as shall be necessary to
facilitate the administration of the trusts hereunder by
more than one trustee, pursuant to the requirements of
Article VI;
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(vii) to modify, eliminate or add to the
provisions of this Indenture to such extent as shall be
necessary to effect the qualification of this Indenture
under the TIA or under any similar federal statute
hereafter enacted and to add to this Indenture such other
provisions as may be expressly required by the TIA, and the
Indenture Trustee is hereby authorized to join in the
execution of any such supplemental indenture and to make
any further appropriate agreements and stipulations that
may be therein contained; or
(viii) to increase the Specified Maximum Revolver
Balance with respect to the Revolving Notes, subject to the
satisfaction of the Rating Agency Condition and the other
conditions set forth in the Trust Sale and Servicing
Agreement.
(b) The Issuer and the Indenture Trustee, when
authorized by an Issuer Order, may, also without the consent of
any of the Noteholders but with prior notice to the Rating
Agencies, at any time and from time to time enter into one or
more indentures supplemental hereto for the purpose of adding
any provisions to, changing in any manner, or eliminating any of
the provisions of, this Indenture or modifying in any manner the
rights of the Noteholders under this Indenture; PROVIDED,
HOWEVER, that such action shall not, as evidenced by an Opinion
of Counsel, adversely affect in any material respect the
interests of any Noteholder.
SECTION 9.2 SUPPLEMENTAL INDENTURES WITH CONSENT OF
NOTEHOLDERS.
(a) The Issuer and the Indenture Trustee, when
authorized by an Issuer Order, also may, with prior notice to
the Rating Agencies and with the consent of the Holders of not
less than a majority of the Outstanding Amount of the Notes, by
Act of such Holders delivered to the Issuer and the Indenture
Trustee, enter into an indenture or indentures supplemental
hereto for the purpose of adding any provisions to, changing in
any manner, or eliminating any of the provisions of, this
Indenture or modifying in any manner the rights of the
Noteholders under this Indenture; PROVIDED, HOWEVER, that no
such supplemental indenture shall, without the consent of the
Holder of each Outstanding Note affected thereby:
(i) change the due date of any instalment of
principal of or interest on any Note, or reduce the
principal amount thereof, the interest rate applicable
thereto, or the Redemption Price with respect thereto,
change any place of payment where, or the coin or currency
in which, any Note or any interest thereon is payable, or
impair the right to institute suit for the enforcement of
the provisions of this Indenture requiring the application
of funds available therefor, as provided in Article V, to
the payment of any such amount due on the Notes on or after
the respective due dates thereof (or, in the case of
redemption, on or after the Redemption Date);
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(ii) reduce the percentage of the Outstanding
Amount of the Notes, the consent of the Holders of which is
required for any such supplemental indenture, or the
consent of the Holders of which is required for any waiver
of compliance with certain provisions of this Indenture or
certain defaults hereunder and their consequences as
provided for in this Indenture;
(iii) modify or alter the provisions of the
proviso to the definition of the term "Outstanding";
(iv) reduce the percentage of the Outstanding
Amount of the Notes required to direct the Indenture
Trustee to sell or liquidate the Trust Estate pursuant to
Section 5.4 if the proceeds of such sale would be
insufficient to pay the principal amount of and accrued but
unpaid interest on the Outstanding Notes;
(v) modify any provision of this Section 9.2 to
decrease the required minimum percentage necessary to
approve any amendments to any provisions of this Indenture;
(vi) modify any of the provisions of this
Indenture in such manner as to affect the calculation of
the amount of any payment of interest or principal due on
any Note on any Payment Date (including the calculation of
any of the individual components of such calculation) (it
being understood that the issuance of any Notes and the
specification of the terms and provisions thereof pursuant
to an Officer's Issuance Certificate shall not be deemed to
have such effect for purposes hereof), or modify or alter
the provisions of the Indenture regarding the voting of
Notes held by the Issuer, the Seller or any Affiliate of
either of them; or
(vii) permit the creation of any Lien ranking
prior to or on a parity with the lien of this Indenture
with respect to any part of the Trust Estate or, except as
otherwise permitted or contemplated herein, terminate the
lien of this Indenture on any property at any time subject
hereto or deprive the Holder of any Note of the security
afforded by the lien of this Indenture.
(b) The Indenture Trustee may in its discretion
determine whether or not any Notes would be affected (such that
the consent of each Noteholder would be required) by any
supplemental indenture proposed pursuant to this Section 9.2 and
any such determination shall be conclusive and binding upon the
Holders of all Notes, whether authenticated and delivered
thereunder before or after the date upon which such supplemental
indenture becomes effective. The Indenture Trustee shall not be
liable for any such determination made in good faith.
(c) It shall be sufficient if an Act of Noteholders
approves the substance, but not the form, of any proposed
supplemental indenture.
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(d) Promptly after the execution by the Issuer and
the Indenture Trustee of any supplemental indenture pursuant to
this Section 9.2, the Indenture Trustee shall mail to the
Noteholders to which such amendment or supplemental indenture
relates a notice setting forth in general terms the substance of
such supplemental indenture. Any failure of the Indenture
Trustee to mail such notice, or any defect therein, shall not,
however, in any way impair or affect the validity of any such
supplemental indenture.
SECTION 9.3 EXECUTION OF SUPPLEMENTAL INDENTURES.
In executing, or permitting the additional trusts created by any
supplemental indenture permitted by this Article IX or the
modifications thereby of the trusts created by this Indenture,
the Indenture Trustee shall be entitled to receive, and subject
to Sections 6.1 and 6.2, shall be fully protected in relying
upon, an Opinion of Counsel stating that the execution of such
supplemental indenture is authorized or permitted by this
Indenture and that all conditions precedent to the execution of
any such amendment have been satisfied. The Indenture Trustee
may, but shall not be obligated to, enter into any such supple-
mental indenture that affects the Indenture Trustee's own
rights, duties, liabilities or immunities under this Indenture
or otherwise.
SECTION 9.4 EFFECT OF SUPPLEMENTAL INDENTURE. Upon
the execution of any supplemental indenture pursuant to the
provisions hereof, this Indenture shall be and be deemed to be
modified and amended in accordance therewith with respect to the
Notes affected thereby, and the respective rights, limitations
of rights, obligations, duties, liabilities and immunities under
this Indenture of the Indenture Trustee, the Issuer and the
Noteholders shall thereafter be determined, exercised and
enforced hereunder subject in all respects to such modifications
and amendments, and all the terms and conditions of any such
supplemental indenture shall be and be deemed to be part of the
terms and conditions of this Indenture for any and all purposes.
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SECTION 9.5 CONFORMITY WITH TRUST INDENTURE ACT.
Every amendment of this Indenture and every supplemental
indenture executed pursuant to this Article IX shall conform to
the requirements of the TIA as then in effect so long as this
Indenture shall then be qualified under the TIA.
SECTION 9.6 REFERENCE IN NOTES TO SUPPLEMENTAL
INDENTURES. Notes authenticated and delivered after the
execution of any supplemental indenture pursuant to this Article
IX may, and if required by the Indenture Trustee shall, bear a
notation in form approved by the Indenture Trustee as to any
matter provided for in such supplemental indenture. If the
Issuer or the Indenture Trustee shall so determine, new Notes so
modified as to conform, in the opinion of the Indenture Trustee
and the Issuer, to any such supplemental indenture may be
prepared and executed by the Issuer and authenticated and
delivered by the Indenture Trustee in exchange for Outstanding
Notes of the same series.
ARTICLE X
REDEMPTION OF TERM NOTES
SECTION 10.1 REDEMPTION.
(a) A series of Term Notes shall be subject to
redemption if and to the extent provided in the related
Officer's Issuance Certificate. The purchase price for any Term
Notes shall be equal to the applicable Redemption Price set
forth in the related Officer's Issuance Certificate, provided
the Issuer has available funds sufficient to pay such amount.
The Issuer shall furnish the Rating Agencies notice of any such
redemption. If any Term Notes are to be redeemed pursuant to
this Section 10.1(a), the Issuer shall furnish notice thereof to
the Indenture Trustee not later than 25 days prior to the
applicable Redemption Date and the Issuer shall deposit into the
Note Distribution Account, on or before the applicable
Redemption Date, the aggregate Redemption Price of the Term
Notes to be redeemed, whereupon all such Term Notes shall be due
and payable on the Redemption Date.
(b) If the assets of the Issuer are sold pursuant to
Section 7.2 of the Trust Agreement, all amounts deposited in the
Note Distribution Account and the Revolver Distribution Account
pursuant to the Trust Sale and Servicing Agreement as a result
thereof shall be paid to the Noteholders. If amounts are to be
paid to Noteholders pursuant to this Section 10.1(b), the
Servicer or the Issuer shall, to the extent practicable, furnish
notice of such event to the Indenture Trustee not later than 25
days prior to the applicable Redemption Date whereupon all such
amounts shall be payable on such Redemption Date.
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SECTION 10.2 FORM OF REDEMPTION NOTICE.
(a) Notice of redemption of any Term Notes under
Section 10.1(a) shall be given by the Indenture Trustee by
first-class mail, postage prepaid, mailed not less than five
days prior to the applicable Redemption Date to each Term
Noteholder of record of the Term Notes to be redeemed at such
Term Noteholder's address appearing in the Note Register.
(b) All notices of redemption shall state:
(i) the applicable Redemption Date;
(ii) the applicable Redemption Price;
(iii) the place where the Term Notes are to be
surrendered for payment of the Redemption Price (which
shall be the Agency Office of the Indenture Trustee to be
maintained as provided in Section 3.2);
(iv) the CUSIP number, if applicable; and
(v) the principal amount of Notes to be
redeemed.
(c) Notice of redemption of the Term Notes shall be
given by the Indenture Trustee in the name and at the expense of
the Issuer. Failure to give notice of redemption, or any defect
therein, to any Holder of any Term Note shall not impair or
affect the validity of the redemption of any other Term Note.
(d) Prior notice of redemption under Section 10.1(b)
is not required to be given to Noteholders.
SECTION 10.3 TERM NOTES PAYABLE ON REDEMPTION DATE.
With respect to any Term Notes, such Term Notes shall,
following notice of redemption as required by Section 10.2 (in
the case of redemption pursuant to Section 10.1(a)), on the
applicable Redemption Date cease to be Outstanding for purposes
of this Indenture and shall thereafter represent only the right
to receive the applicable Redemption Price and (unless the
Issuer shall default in the payment of such Redemption Price) no
interest shall accrue on such Redemption Price for any period
after the date to which accrued interest is calculated for
purposes of calculating such Redemption Price.
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ARTICLE XI
MISCELLANEOUS
SECTION 11.1 COMPLIANCE CERTIFICATES AND OPINIONS,
ETC.
(a) Upon any application or request by the Issuer to
the Indenture Trustee to take any action under any provision of
this Indenture, the Issuer shall furnish to the Indenture
Trustee: (i) an Officer's Certificate stating that all
conditions precedent, if any, provided for in this Indenture
relating to the proposed action have been complied with, (ii) an
Opinion of Counsel stating that in the opinion of such counsel
all such conditions precedent, if any, have been complied with
and (iii) (if required by the TIA) an Independent Certificate
from a firm of certified public accountants meeting the
applicable requirements of this Section 11.1, except that, in
the case of any such application or request as to which the
furnishing of such documents is specifically required by any
provision of this Indenture, no additional certificate or
opinion need be furnished. Every certificate or opinion with
respect to compliance with a condition or covenant provided for
in this Indenture shall include:
(i) a statement that each signatory of such
certificate or opinion has read or has caused to be read
such covenant or condition and the definitions herein
relating thereto;
(ii) a brief statement as to the nature and scope
of the examination or investigation upon which the
statements or opinions contained in such certificate or
opinion are based;
(iii) a statement that, in the judgment of each
such signatory, such signatory has made such examination or
investigation as is necessary to enable such signatory to
express an informed opinion as to whether or not such
covenant or condition has been complied with; and
(iv) a statement as to whether, in the opinion of
each such signatory, such condition or covenant has been
complied with.
(b) (i) Prior to the deposit with the Indenture
Trustee of any Collateral or other property or securities
that is to be made the basis for the release of any
property or securities subject to the lien of this
Indenture, the Issuer shall, in addition to any obligation
imposed in Section 11.1(a) or elsewhere in this Indenture,
furnish to the Indenture Trustee an Officers' Certificate
certifying or stating the opinion of each Person signing
such certificate as to the fair value (within 90 days of
such deposit) to the Issuer of the Collateral or other
property or securities to be so deposited.
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(ii) Whenever the Issuer is required to furnish
to the Indenture Trustee an Officers' Certificate
certifying or stating the opinion of any signer thereof as
to the matters described in clause (b)(i) above, the Issuer
shall also deliver to the Indenture Trustee an Independent
Certificate as to the same matters, if the fair value to
the Issuer of the securities to be so deposited and of all
other such securities made the basis of any such withdrawal
or release since the commencement of the then current
fiscal year of the Issuer, as set forth in the certificates
delivered pursuant to clause (i) above and this clause
(b)(ii), is 10% or more of the Outstanding Amount of the
Notes, but such a certificate need not be furnished with
respect to any securities so deposited, if the fair value
thereof to the Issuer as set forth in the related Officers'
Certificate is less than $25,000 or less than one percent
of the Outstanding Amount of the Notes.
(iii) Other than with respect to the release of
any Warranty Receivables, Administrative Receivables or
Defaulted Receivables, whenever any property or securities
are to be released from the lien of this Indenture, the
Issuer shall also furnish to the Indenture Trustee an
Officer's Certificate certifying or stating the opinion of
each Person signing such certificate as to the fair value
(within 90 days of such release) of the property or
securities proposed to be released and stating that in the
opinion of such Person the proposed release will not impair
the security under this Indenture in contravention of the
provisions hereof.
(iv) Whenever the Issuer is required to furnish
to the Indenture Trustee an Officer's Certificate
certifying or stating the opinion of any signatory thereof
as to the matters described in clause (b)(iii) above, the
Issuer shall also furnish to the Indenture Trustee an
Independent Certificate as to the same matters if the fair
value of the property or securities and of all other
property, other than Warranty Receivables, Administrative
Receivables or Defaulted Receivables, or securities
released from the lien of this Indenture since the
commencement of the then current calendar year, as set
forth in the certificates required by clause (b)(iii) above
and this clause (b)(iv), equals 10% or more of the
Outstanding Amount of the Notes, but such certificate need
not be furnished in the case of any release of property or
securities if the fair value thereof as set forth in the
related Officer's Certificate is less than $25,000 or less
than one percent of the then Outstanding Amount of the
Notes.
(v) Notwithstanding Section 2.9 or any other
provision of this Section 11.1, the Issuer may (A) collect,
liquidate, sell or otherwise dispose of Receivables and
related Collateral Security and proceeds of both as and to
the extent permitted or required by the Basic Documents,
(B) make cash payments out of the Designated Accounts and
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the Certificate Distribution Account as and to the extent
permitted or required by the Basic Documents and (C) take any
other action not inconsistent with the TIA.
SECTION 11.2 FORM OF DOCUMENTS DELIVERED TO
INDENTURE TRUSTEE.
(a) In any case where several matters are required to
be certified by, or covered by an opinion of, any specified
Person, it is not necessary that all such matters be certified
by, or covered by the opinion of, only one such Person, or that
they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some
matters and one or more other such Persons as to other matters,
and any such Person may certify or give an opinion as to such
matters in one or several documents.
(b) Any certificate or opinion of an Authorized
Officer of the Issuer may be based, insofar as it relates to
legal matters, upon a certificate or opinion of, or repre-
sentations by, counsel, unless such officer knows, or in the
exercise of reasonable care should know, that the certificate or
opinion or representations with respect to the matters upon
which his certificate or opinion is based are erroneous. Any
such certificate of an Authorized Officer or Opinion of Counsel
may be based, insofar as it relates to factual matters, upon a
certificate or opinion of, or representations by, an officer or
officers of the Servicer, the Seller, the Issuer or the
Administrator, stating that the information with respect to such
factual matters is in the possession of the Servicer, the
Seller, the Issuer or the Administrator, unless such counsel
knows, or in the exercise of reasonable care should know, that
the certificate or opinion or representations with respect to
such matters are erroneous.
(c) Where any Person is required to make, give or
execute two or more applications, requests, consents,
certificates, statements, opinions or other instruments under
this Indenture, they may, but need not, be consolidated and form
one instrument.
(d) Whenever in this Indenture, in connection with
any application or certificate or report to the Indenture
Trustee, it is provided that the Issuer shall deliver any
document as a condition of the granting of such application, or
as evidence of the Issuer's compliance with any term hereof, it
is intended that the truth and accuracy, at the time of the
granting of such application or at the effective date of such
certificate or report (as the case may be), of the facts and
opinions stated in such document shall in such case be
conditions precedent to the right of the Issuer to have such
application granted or to the sufficiency of such certificate or
report. The foregoing shall not, however, be construed to
affect the Indenture Trustee's right to rely upon the truth and
accuracy of any statement or opinion contained in any such
document as provided in Article VI.
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SECTION 11.3 ACTS OF NOTEHOLDERS.
(a) Any request, demand, authorization, direction,
notice, consent, waiver or other action provided by this
Indenture to be given or taken by Noteholders or a series of
Noteholders may be embodied in and evidenced by one or more
instruments of substantially similar tenor signed by such
Noteholders in person or by agents duly appointed in writing;
and except as herein otherwise expressly provided such action
shall become effective when such instrument or instruments are
delivered to the Indenture Trustee, and, where it is hereby
expressly required, to the Issuer. Such instrument or
instruments (and the action embodied therein and evidenced
thereby) are herein sometimes referred to as the "Act" of the
Noteholders signing such instrument or instruments. Proof of
execution of any such instrument or of a writing appointing any
such agent shall be sufficient for any purpose of this Indenture
and (subject to Section 6.1) conclusive in favor of the
Indenture Trustee and the Issuer, if made in the manner provided
in this Section 11.3.
(b) The fact and date of the execution by any Person
of any such instrument or writing may be proved in any manner
that the Indenture Trustee deems sufficient.
(c) The ownership of Notes shall be proved by the
Note Register.
(d) Any request, demand, authorization, direction,
notice, consent, waiver or other action by the Holder of any
Notes (or any one or more Predecessor Notes) shall bind the
Holder of every Note issued upon the registration thereof or in
exchange therefor or in lieu thereof, in respect of anything
done, omitted or suffered to be done by the Indenture Trustee or
the Issuer in reliance thereon, whether or not notation of such
action is made upon such Note.
SECTION 11.4 NOTICES, ETC., TO INDENTURE TRUSTEE,
ISSUER AND RATING AGENCIES. Any request, demand, authorization,
direction, notice, consent, waiver or Act of Noteholders or
other documents provided or permitted by this Indenture to be
made upon, given or furnished to or filed with:
(a) the Indenture Trustee by any Noteholder or by the
Issuer shall be sufficient for every purpose hereunder if made,
given, furnished or filed in writing to or with the Indenture
Trustee at its Corporate Trust Office, or
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(b) the Issuer by the Indenture Trustee or by any
Noteholder shall be sufficient for every purpose hereunder if in
writing and either sent by electronic facsimile transmission
(with hard copy to follow via first class mail) or mailed, by
certified mail, return receipt requested to the Issuer and the
Owner Trustee, care of the Owner Trustee at its Corporate Trust
Office and to Wholesale Auto Receivables Corporation, 3044 West
Grand Boulevard, Detroit, Michigan 48202, Attention: J. B. Van
Orman, Vice President or at any other address previously
furnished in writing to the Indenture Trustee by the Issuer.
The Issuer shall promptly transmit any notice received
by it from the Noteholders to the Indenture Trustee and the
Indenture Trustee shall likewise promptly transmit any notice
received by it from the Noteholders to the Issuer.
(c) Notices required to be given to the Rating Agen-
cies by the Issuer, the Indenture Trustee or the Owner Trustee
shall be in writing, personally delivered, sent by electronic
facsimile transmission (with hard copy to follow via first class
mail) or mailed by certified mail, return receipt requested to:
(i) in the case of Moody's, at the following address: Moody's
Investors Service, Inc., ABS Monitoring Department, 99 Church
Street, New York, New York 10007; and (ii) in the case of
Standard & Poor's, at the following address: Standard & Poor's
Ratings Group, 26 Broadway (20th Floor), New York, New York
10004, Attn: Asset Backed Surveillance Department; or as to each
of the foregoing, at such other address as shall be designated
by written notice to the other parties.
SECTION 11.5 NOTICES TO NOTEHOLDERS; WAIVER.
(a) Where this Indenture provides for notice to
Noteholders of any condition or event, such notice shall be
sufficiently given (unless otherwise herein expressly provided)
if it is in writing and mailed, first-class, postage prepaid to
each Noteholder affected by such event, at such Person's address
as it appears on the Note Register, not later than the latest
date, and not earlier than the earliest date, prescribed for the
giving of such notice. If notice to Noteholders is given by
mail, neither the failure to mail such notice nor any defect in
any notice so mailed to any particular Noteholder shall affect
the sufficiency of such notice with respect to other
Noteholders, and any notice that is mailed in the manner herein
provided shall conclusively be presumed to have been duly given
regardless of whether such notice is in fact actually received.
(b) Where this Indenture provides for notice in any
manner, such notice may be waived in writing by any Person
entitled to receive such notice, either before or after the
event, and such waiver shall be the equivalent of such notice.
Waivers of notice by Noteholders shall be filed with the
Indenture Trustee but such filing shall not be a condition
precedent to the validity of any action taken in reliance upon
such a waiver.
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(c) In case, by reason of the suspension of regular
mail service as a result of a strike, work stoppage or similar
activity, it shall be impractical to mail notice of any event of
Noteholders when such notice is required to be given pursuant to
any provision of this Indenture, then any manner of giving such
notice as shall be satisfactory to the Indenture Trustee shall
be deemed to be a sufficient giving of such notice.
(d) Where this Indenture provides for notice to the
Rating Agencies, failure to give such notice shall not affect
any other rights or obligations created hereunder, and shall not
under any circumstance constitute an Event of Default.
SECTION 11.6 ALTERNATE PAYMENT AND NOTICE
PROVISIONS.
Notwithstanding any provision of this Indenture or any
of the Notes to the contrary, the Issuer may enter into any
agreement with any Holder of a Note providing for a method of
payment, or notice by the Indenture Trustee or any Paying Agent
to such Holder, that is different from the methods provided for
in this Indenture for such payments or notices. The Issuer
shall furnish to the Indenture Trustee a copy of each such
agreement and the Indenture Trustee shall cause payments to be
made and notices to be given in accordance with such agreements.
SECTION 11.7 CONFLICT WITH TRUST INDENTURE ACT.
(a) If any provision hereof limits, qualifies or
conflicts with another provision hereof that is required to be
included in this Indenture by any of the provisions of the TIA,
such required provision shall control.
(b) The provisions of TIA 310 through 317 that impose
duties on any Person (including the provisions automatically
deemed included herein unless expressly excluded by this
Indenture) are a part of and govern this Indenture, whether or
not physically contained herein.
SECTION 11.8 EFFECT OF HEADINGS AND TABLE OF
CONTENTS.
The Article and Section headings herein and the Table
of Contents are for convenience only and shall not affect the
construction hereof.
SECTION 11.9 SUCCESSORS AND ASSIGNS.
(a) All covenants and agreements in this Indenture
and the Notes by the Issuer shall bind its successors and
assigns, whether so expressed or not.
(b) All covenants and agreements of the Indenture
Trustee in this Indenture shall bind its successors and assigns,
whether so expressed or not.
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SECTION 11.10 SEPARABILITY.
In case any provision in this Indenture or in the
Notes shall be invalid, illegal or unenforceable, the validity,
legality and enforceability of the remaining provisions shall
not in any way be affected or impaired thereby.
SECTION 11.11 BENEFITS OF INDENTURE.
Nothing in this Indenture or in the Notes, express or
implied, shall give to any Person, other than the parties hereto
and their successors hereunder, the Noteholders and the Note
Owners and (only to the extent expressly provided herein) the
Certificateholders and the Certificate Owners and any other
party secured hereunder, and any other Person with an ownership
interest in any part of the Trust Estate, any benefit or any
legal or equitable right, remedy or claim under this Indenture.
SECTION 11.12 LEGAL HOLIDAYS.
If the date on which any payment is due shall not be
a Business Day, then (notwithstanding any other provision of the
Notes or this Indenture) payment need not be made on such date,
but may be made on the next succeeding Business Day with the
same force and effect as if made on the date on which nominally
due, and no interest shall accrue for the period from and after
any such nominal date.
SECTION 11.13 GOVERNING LAW.
THIS INDENTURE SHALL BE CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF NEW YORK, WITHOUT REFERENCE TO ITS
CONFLICT OF LAW PROVISIONS, AND THE OBLIGATIONS, RIGHTS AND
REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN
ACCORDANCE WITH SUCH LAWS.
SECTION 11.14 COUNTERPARTS.
This Indenture may be executed in any number of
counterparts, each of which so executed shall be deemed to be an
original, but all such counterparts shall together constitute
but one and the same instrument.
SECTION 11.15 RECORDING OF INDENTURE.
If this Indenture is subject to recording in any
appropriate public recording offices, such recording is to be
effected by the Issuer and at its expense accompanied by an
Opinion of Counsel (which may be counsel to the Indenture
Trustee or any other counsel reasonably acceptable to the
Indenture Trustee) to the effect that such recording is
necessary either for the protection of the Noteholders or any
other Person secured hereunder or for the enforcement of any
right or remedy granted to the Indenture Trustee under this
Indenture.
65<PAGE>
<PAGE>72
SECTION 11.16 NO RECOURSE.
(a) Each Noteholder will agree by acceptance of a
Note (or interest therein) that no recourse may be taken,
directly or indirectly, with respect to the obligations of the
Issuer, the Owner Trustee or the Indenture Trustee on the Notes
or under this Indenture or any certificate or other writing
delivered in connection herewith or therewith, against:
(i) the Indenture Trustee or the Owner Trustee in its
individual capacity;
(ii) any owner of a beneficial interest in the Issuer;
or
(iii) any partner, owner, beneficiary, agent, officer,
director or employee of the Indenture Trustee or the Owner
Trustee in its individual capacity, any holder of a
beneficial interest in the Issuer, the Owner Trustee or the
Indenture Trustee or of any successor or assign of the
Indenture Trustee or the Owner Trustee in its individual
capacity, except as any such Person may have expressly
agreed (it being understood that the Indenture Trustee and
the Owner Trustee have no such obligations in their
individual capacity) and except that any such partner,
owner or beneficiary shall be fully liable, to the extent
provided by applicable law, for any unpaid consideration
for stock, unpaid capital contribution or failure to pay
any instalment or call owing to such entity. For all
purposes of this Indenture, 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 VI, VII and VIII
of the Trust Agreement.
(b) Except as expressly provided in the Basic
Documents, neither the Seller, the Servicer, the Indenture
Trustee nor the Owner Trustee in their respective individual
capacities, any owner of a beneficial interest in the Issuer,
nor any of their respective partners, owners, beneficiaries,
agents, officers, directors, employees or successors or assigns,
shall be personally liable for, nor shall recourse be had to any
of them for, the payment of principal of or interest on, or
performance of, or omission to perform, any of the covenants,
obligations or indemnifications contained in the Notes or this
Indenture, it being expressly understood that said covenants,
obligations and indemnifications have been made by the Owner
Trustee solely as the Owner Trustee in the assets of the Issuer.
Each Noteholder or Note Owner by the acceptance of a Note (or
beneficial interest therein) will agree that, except as
expressly provided in the Basic Documents, in the case of an
Event of Default under this Indenture, the Holder shall have no
claim against any of the foregoing for any deficiency, loss or
claim therefrom; PROVIDED, HOWEVER, that nothing contained
herein shall be taken to prevent recourse to, and enforcement
66<PAGE>
<PAGE>73
against, the assets of the Issuer for any and all liabilities,
obligations and undertakings contained in this Indenture or in
the Notes.
SECTION 11.17 NO PETITION.
The Indenture Trustee, by entering into this
Indenture, and each Noteholder and Note Owner, by accepting a
Note (or interest therein) issued hereunder, hereby covenant and
agree that they shall not, prior to the date which is one year
and one day after the termination of the Trust Agreement,
acquiesce, petition or otherwise invoke or cause the Seller or
the Issuer to invoke the process of any court or government
authority for the purpose of commencing or sustaining a case
against the Seller or the Issuer under any Insolvency Law or
appointing a receiver, liquidator, assignee, trustee, custodian,
sequestrator or other similar official of the Seller or the
Issuer or any substantial part of its property, or ordering the
winding up or liquidation of the affairs of the Seller or the
Issuer.
SECTION 11.18 INSPECTION.
The Issuer agrees that, on reasonable prior notice, it
shall permit any representative of the Indenture Trustee, during
the Issuer's normal business hours, to examine all the books of
account, records, reports and other papers of the Issuer, to
make copies and extracts therefrom, to cause such books to be
audited by Independent certified public accountants, and to
discuss the Issuer's affairs, finances and accounts with the
Issuer's officers, employees and Independent certified public
accountants, all at such reasonable times and as often as may be
reasonably requested. The Indenture Trustee shall and shall
cause its representatives to hold in confidence all such
information except to the extent disclosure may be required by
law (and all reasonable applications for confidential treatment
are unavailing) and except to the extent that the Indenture
Trustee may reasonably determine that such disclosure is
consistent with its obligations hereunder.
* * * * *
67<PAGE>
<PAGE>74
IN WITNESS WHEREOF, the Issuer and the Indenture
Trustee have caused this Indenture to be duly executed by their
respective officers, thereunto duly authorized, all as of the
day and year first above written.
<PAGE>
SUPERIOR WHOLESALE INVENTORY
FINANCING TRUST I
By: Citibank Delaware,
not in its individual
capacity but solely as
Owner Trustee,
By: __________________________
Name:
Title:
THE BANK OF NEW YORK as
Indenture Trustee,
By: __________________________
Name:
Title: <PAGE>
<PAGE>
<PAGE>75
STATE OF ________, )
) ss.:
COUNTY OF ________, )
BEFORE ME, the undersigned authority, a Notary Public
in and for said county and state, on this day personally
appeared _____________________________, known to me to be the
person and officer whose name is subscribed to the foregoing
instrument and acknowledged to me that the same was the act of
the said Superior Wholesale Inventory Financing Trust I, a
Delaware business trust, and that he executed the same as the
act of said business trust for the purpose and consideration
therein expressed, and in the capacities therein stated.
GIVEN UNDER MY HAND AND SEAL OF OFFICE, this the ____
day of January, 1994.
Notary Public in and for the
State of ________.
My commission expires:
____________________________
<PAGE>
<PAGE>76
STATE OF ________, )
) ss.:
COUNTY OF _______, )
BEFORE ME, the undersigned authority, a Notary Public
in and for said county and state, on this day personally
appeared ____________________, known to me to be the person and
officer whose name is subscribed to the foregoing instrument and
acknowledged to me that the same was the act of the said The
Bank of New York, a New York banking corporation, and that he
executed the same as the act of said New York banking
corporation for the purpose and consideration therein stated.
GIVEN UNDER MY HAND AND SEAL OF OFFICE, this the ____
day of January, 1994.
Notary Public in and for the
State of ________.
My commission expires:
____________________________
<PAGE>
<PAGE>77
EXHIBIT A
TRANSFER CERTIFICATE
Wholesale Auto Receivables Corporation
Corporation Trust Center
1209 Orange Street
Wilmington, DE 19801
The Bank of New York,
101 Barclay Street, 21 West
New York, New York 10286
Attn: Corporate Trust Trustee Administration
as Indenture Trustee for Superior
Wholesale Inventory Financing Trust I
Ladies and Gentlemen:
In connection with the purchase of a Note subject to
Section 2.15 of the Indenture dated as of January 25, 1994 (the
"Unregistered Note") of the Superior Wholesale Inventory
Financing Trust I, the undersigned buyer ("Buyer") hereby
acknowledges, represents and agrees that:
(a) The Buyer has received the [describe offering
document] relating to the offering of the Unregistered Note
(including exhibits thereto).
(b) The Buyer understands that the Unregistered Note has
not been registered under the Securities Act of 1933, as amended
(the "Securities Act"), and may not be sold except as permitted
in the following sentence. The Buyer agrees, on its own behalf
and on behalf of any accounts for which it is acting as
hereinafter stated, that such Unregistered Note may be resold,
pledged or transferred only (i) to an institutional investor
that is an "Accredited Investor" as defined in Rule
501(a)(1),(2),(3) or (7) (an "Institutional Accredited
Investor") under the Securities Act acting for its own account
(and not for the account of others) or as a fiduciary or agent
for others (which others also are Institutional Accredited
Investors unless the holder is a bank acting in its fiduciary
capacity) that, if so requested by the Seller or the Indenture
Trustee, executes a certificate in the form hereof, (ii) so long
as such Unregistered Note is eligible for resale pursuant to
Rule 144A under the Securities Act ("Rule 144A"), to a person
whom the Buyer reasonably believes after due inquiry to be a
"qualified institutional buyer" (as defined in Rule 144A) acting
for its own account (and not for the account of others) or as a
fiduciary or agent for others (which others also are "qualified
institutional buyers") that, if so requested by the Seller or
the Indenture Trustee, executes a certificate in the form hereof
or (iii) in a sale, pledge or other transfer made in a
transaction otherwise exempt from the registration requirements
of the Securities Act, in which case (A) the Indenture Trustee
shall require that both the prospective transferor and the
<PAGE>
<PAGE>78
prospective transferee certify to the Indenture Trustee and the
Seller in writing the facts surrounding such transfer, which
certification shall be in form and substance satisfactory to the
Indenture Trustee and the Seller, and (B) the Indenture Trustee
shall require a written opinion of counsel (which will not be at
the expense of the Seller, the Servicer or the Indenture
Trustee) satisfactory to the Seller and the Indenture Trustee to
the effect that such transfer will not violate the Securities
Act, in each case in accordance with any applicable securities
laws of any state of the United States. The Buyer will notify
any purchaser of the Unregistered Note from it of the above
resale restrictions, if then applicable. The Buyer further
understands that in connection with any transfer of the
Unregistered Note by it that the Seller and the Indenture
Trustee may request, and if so requested the Buyer will furnish,
such certificates and other information as they may reasonably
require to confirm that any such transfer complies with the
foregoing restrictions.
(c)
[CHECK ONE]
/ / (1) The Buyer is an institutional
investor and an "accredited
investor" (as defined in Rule
501(a)(1),(2),(3) or (7) of
Regulation D under the Securities
Act) acting for its own account
(and not for the account of
others) or as a fiduciary or
agent for others (which others
also are Institutional Accredited
Investors unless the Buyer is
bank acting in its fiduciary
capacity). The Buyer has such
knowledge and experience in
financial and business matters as
to be capable of evaluating the
merits and risks of its
investment in the Unregistered
Note, and the Buyer and any
accounts for which it is acting
are able to bear the economic
risk of investment in the
Unregistered Note for an
indefinite period of time. The
Buyer is acquiring the
Unregistered Note for investment
and not with a view to, or for
offer and sale in connection
with, a public distribution.
<PAGE>
<PAGE>79
/ / (2) The Buyer is a "qualified
institutional buyer" as defined
under Rule 144A under the
Securities Act and is acquiring
the Unregistered Note for its own
account (and not for the account
of others) or as a fiduciary or
agent for others (which others
also are "qualified institutional
buyers"). The Buyer is are
familiar with Rule 144A under the
Securities Act and is aware that
the seller of the Unregistered
Note and other parties intend to
rely on the statements made
herein and the exemption from the
registration requirements of the
Securities Act provided by Rule
144A.
(d) You are entitled to rely upon this letter and you
are irrevocably authorized to produce this letter or
a copy hereof to any interested party in any
administrative or legal proceeding or official inquiry
with respect to the matters covered hereby.
______________________________
Print Name of Buyer
By: _______________________
Name:
Title:
Date: ______________________
<PAGE>
<PAGE>80
EXHIBIT B
UNDERTAKING LETTER
Wholesale Auto Receivables Corporation
Corporation Trust Center
1209 Orange Street
Wilmington, DE 19801
The Bank of New York,
101 Barclay Street, 21 West
New York, New York 10286
Attn: Corporate Trust Trustee Administration
as Indenture Trustee for the of Superior Wholesale Inventory
Financing Trust I
Ladies and Gentlemen:
In connection with our purchase of record or
beneficial ownership of a Note subject to the provisions of
Section 2.15 of the Indenture dated as of January 25, 1994
(the "Unregistered Note") of the Superior Wholesale Inventory
Financing Trust I, the undersigned purchaser, record owner or
beneficial owner hereby acknowledges, represents and warrants
that such purchaser, record owner or beneficial owner:
(1) is not, and has not acquired the Unregistered
Note by or for the benefit of, (i) an employee benefit plan
(as defined in Section 3(3) of the Employee Retirement Income
Security Act of 1974, as amended ("ERISA")) that is subject to
the provisions of Title I of ERISA, (ii) a plan described in
Section 4975(e)(1) of the Internal Revenue Code of 1986, as
amended, or (iii) any entity whose underlying assets include
plan assets by reason of a plan's investment in such entity;
and
(2) acknowledges that you and others will rely on
our acknowledgements, representations and warranties, and
agrees to notify you promptly in writing if any of our
acknowledgments, representations or warranties herein cease to
be accurate and complete.
______________________________
Name of Note Owner
By:___________________________
Name:
Title:
Date: ________________________
EXHIBIT 4.2
OFFICER'S ISSUANCE CERTIFICATE
FLOATING RATE ASSET-BACKED TERM NOTES, SERIES 1994-A
The undersigned hereby certifies, pursuant to the
Indenture dated as of January 25, 1994 (the "INDENTURE"), between
Superior Wholesale Inventory Financing Trust I (the "ISSUER") and
The Bank of New York, a New York banking corporation, that:
I. There has been established pursuant to and in conformity
with resolutions duly adopted by the Board of Directors of
Wholesale Auto Receivables Corporation, a series of Notes to be
issued under and in conformity with the Indenture, which series
of Notes shall have the following terms:
A. The designation of the series of Notes is
Floating Rate Asset-Backed Term Notes, Series 1994-A
(the "SERIES 1994-A TERM NOTES"). The Series 1994-A
Term Notes shall be in the form set forth in Exhibit
A hereto.
B. The aggregate principal amount of the Series
1994-A Term Notes which may be authenticated and
delivered under the Indenture (except for Series 1994-A
Term Notes authenticated and delivered upon
registration and transfer of, or in exchange for, or
in lieu of, other Series 1994-A Term Notes pursuant to
the Indenture) is $1,250,000,000.
C. The following terms used in the Indenture, the
Trust Sale and Servicing Agreement and the other Basic
Documents shall have the indicated meanings with
respect to the Series 1994-A Term Notes:
1. Each Distribution Date shall be a
Payment Date for the Series 1994-A Term
Notes.
2. The Stated Final Payment Date for the
Series 1994-A Term Notes shall be the
Distribution Date in January 1999.
3. The Targeted Final Payment Date for the
Series 1994-A Term Notes shall be the
Distribution Date in March 1997.
4. The Controlled Deposit Amount for the
Series 1994-A Term Notes shall equal for any
Distribution Date, the excess, if any, of
(i) the product of (A) one-third of the
Outstanding Amount attributable to the
Series 1994-A Term Notes as of the last day
of the Revolving Period and (B) the number
of Distribution Dates that have occurred
with respect to the Wind Down Period through
and including such Distribution Date over
(ii) the aggregate amount paid as principal
on the Series 1994-A Term Notes during the
<PAGE>2
Wind Down Period prior to such Distribution
Date; PROVIDED that (i) the Controlled
Deposit Amount for the Series 1994-A Term
Notes for any Distribution Date (together
with the Controlled Deposit Amount for any
other series of Term Notes for such
Distribution Date to the extent provided by
the terms of such Term Notes) shall not
exceed the Available Trust Principal for
such Distribution Date and (ii) the
Controlled Deposit Amount for the Series
1994-A Term Notes for any Distribution Date
shall not exceed the Outstanding Amount
attributable to the Series 1994-A Term
Notes.
5. The Record Date for the Series 1994-A
Term Notes shall be with respect to any
Distribution Date the close of business on
the day immediately preceding such
Distribution Date or, if Definitive Term
Notes are issued therefor, the last day of
the preceding Collection Period.
D. The Series 1994-A Term Notes shall bear interest
at the Series 1994-A Interest Rate. The Series 1994-A
Interest Rate, for any Distribution Date, shall be
LIBOR plus 0.15% per annum (or, in the case of the
Initial Distribution Date 3.275% per annum). Interest
on the Outstanding Amount attributable to the Series
1994-A Term Notes shall accrue from and including the
Initial Closing Date, or from and including the most
recent Distribution Date on which interest has been
paid to but excluding the current Distribution Date,
and shall be calculated on the basis of a year of 360
days for the actual number of days occurring in the
period for which such interest is payable. Interest
on the Series 1994-A Term Notes accrued as of any
Distribution Date shall be paid on such Distribution
Date as provided in the Trust Sale and Servicing
Agreement and the Indenture and any interest not paid
on such Distribution Date shall be due on the next
Distribution Date.
E. Principal shall be due and payable on the Series
1994-A Term Notes as follows:
1. During the Revolving Period, no payments
of principal on the Series 1994-A Term Notes
shall be required or made and no amounts
shall be set aside for such purpose.
2. With respect to each Distribution Date
for the Wind Down Period, subject to the
terms of any series of Term Notes issued
after the Initial Closing Date (which shall
be limited as described below), Available
<PAGE>3
Trust Principal shall be applied in the
following order of priority:
(a) first, to the Series 1994-A
Term Notes (i) on each
Distribution Date prior to the
Targeted Final Payment Date for
the Series 1994-A Term Notes, to
the extent of the Controlled
Deposit Amount therefor and
(ii) on and after such Targeted
Final Payment Date, until the
Outstanding Amount attributable to
Series 1994-A Term Notes is
reduced to zero;
(b) second, to any Revolving
Notes then Outstanding until the
Outstanding Amount attributable to
such Revolving Notes is reduced to
zero;
(c) third, to the Series 1994-A
Term Notes until the Outstanding
Amount attributable to the Series
1994-A Term Notes is reduced to
zero; and
(d) fourth, to the Certificates
until the Certificate Balance is
reduced to zero.
The terms of any series of Term Notes issued after the
Initial Closing Date that do not have a Payment Period
may provide that principal on such Term Notes shall be
payable during the Wind Down Period (a) to the extent
of the Controlled Deposit Amount for such Term Notes,
together with the Controlled Deposit Amount for the
Series 1994-A Term Notes or (b) after the payment of
the Controlled Deposit Amount on the Series 1994-A Term
Notes and, subject to the applicable Controlled Deposit
Amount, if any, for such Term Notes, before, together
or after payment of principal on the Revolving Notes.
So long as any Series 1994-A Term Notes are then
Outstanding, no Term Notes that provide for payments
of principal prior to payment of the Controlled Deposit
Amount on the Series 1994-A Term Notes during the Wind
Down Period may be issued.
3. With respect to each Distribution Date
related to an Early Amortization Period,
Available Trust Principal shall be applied
to payments of principal on the Series 1994-
A Term Notes, Term Notes of other series and
the Revolving Notes, pro rata on the basis
of their respective Outstanding Amounts
(after giving effect to amounts paid or to
<PAGE>4
be paid pursuant to Section 8.2(g) of the
Indenture on the first Distribution Date
related to such Early Amortization Period).
4. The amount included in Aggregate
Noteholders' Principal with respect to the
Series 1994-A Term Notes for any
Distribution Date shall not exceed the
Outstanding Amount of the Series 1994-A Term
Notes less amounts on deposit in the Note
Distribution Account for the payment of
principal on the Series 1994-A Term Notes.
F. The Series 1994-A Term Notes are not subject to
optional or mandatory purchase or redemption by the Issuer.
G. The Series 1994-A Term Notes shall initially be
issued in book-entry form pursuant to Section 2.10 of
the Indenture and subject to the terms of the Note
Depository Agreement attached hereto as Exhibit B. The
Series 1994-A Term Notes will not be Unregistered Notes
under Section 2.15 of the Indenture.
II. The undersigned has read or has caused to be read the
Indenture, including the provisions of Section 2.1 and the
definitions relating thereto, and the resolutions adopted by the
Board of Directors referred to above. Based on such examination,
the undersigned has, in his opinion, made such examination or
investigation as is necessary to enable him to express an
informed opinion as to whether all conditions precedent set forth
in the Indenture and the other Basic Documents relating to the
establishment of the form and terms of a series of Notes under
the Indenture have been complied with. In the opinion of the
undersigned, all such conditions precedent have been complied
with in respect of the Series 1994-A Term Notes.
III. Capitalized terms used herein and not defined shall have
the meanings assigned to such terms in the Indenture.
* * * *<PAGE>
<PAGE>5
IN WITNESS WHEREOF, the undersigned has hereunto
executed this Officer's Issuance Certificate as of the 25th day
of January, 1994.
WHOLESALE AUTO RECEIVABLES
CORPORATION
By:________________________
Name: C.J. Rutkowski
Title: Vice President
<PAGE>
<PAGE>6
EXHIBIT A
[FORM OF NOTE]<PAGE>
<PAGE>7
EXHIBIT B
[NOTE DEPOSITORY AGREEMENT]
Exhibit 25.1
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
Check if an application to determine eligibility of a Trustee
pursuant to Section 305(b)(2) ________
______________________
THE BANK OF NEW YORK
(Exact name of trustee as specified in its charter)
New York 13-5160382
(State of incorporation (I.R.S. employer
if not a U.S. national bank) identification no.)
48 Wall Street, New York, N.Y. 10286
(Address of principal executive offices) (Zip code)
______________________
WHOLESALE AUTO RECEIVABLES CORPORATION
(Exact name of obligor as specified in its charter)
Delaware 38-3082709
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification no.)
Corporation Trust Center
1209 Orange Street
Wilmington, Delaware 19801
(Address of principal executive offices) (Zip code)
______________________
Asset-Backed Term Notes
(Title of the indenture securities)
<PAGE>
<PAGE>2
1. General information. Furnish the following information as
to the Trustee:
(a) Name and address of each examining or supervising
authority to which it is subject.
Name Address
- ----------------------------------------------------------------
Superintendent of Banks of the 2 Rector Street, New York,
State of New York N.Y. 10006, and
Albany, N.Y. 12203
Federal Reserve Bank 33 Liberty Plaza, New York,
of New York N.Y. 10045
Federal Deposit Insurance
Corporation Washington, D.C. 20549
New York Clearing House
Association New York, New York
(b) Whether it is authorized to exercise corporate trust
powers.
Yes.
2. Affiliations with Obligor.
If the obligor is an affiliate of the trustee, describe each
such affiliation.
None. (See Note on page 3.)
16. List of Exhibits.
Exhibits identified in parentheses below, on file with the
Commission, are incorporated herein by reference as an exhibit
hereto, pursuant to Rule 7a-29 under the Trust Indenture Act of
1939 (the "Act") and Rule 24 of the Commission's Rules of
Practice.
-2-
<PAGE>3
1. A copy of the Organization Certificate of The Bank of New
York (formerly Irving Trust Company) as now in effect, which
contains the authority to commence business and a grant of
powers to exercise corporate trust powers. (Exhibit 1 to
Amendment No. 1 to Form T-1 filed with Registration
Statement No. 33-6215, Exhibits 1a and 1b to Form T-1 filed
with Registration Statement No. 33-21672 and Exhibit 1 to
Form T-1 filed with Registration Statement No. 33-29637.)
4. A copy of the existing By-laws of the Trustee. (Exhibit 4
to Form T-1 filed with Registration Statement No.
33-31019.)
6. The consent of the Trustee required by Section 321(b) of the
Act. (Exhibit 6 to Form T-1 filed with Registration
Statement No. 33-44051.)
7. A copy of the latest report of condition of the Trustee
published pursuant to law or to the requirements of its
supervising or examining authority.
NOTE
Inasmuch as this Form T-1 is filed prior to the
ascertainment by the Trustee of all facts on which to base a
responsive answer to Item 2, the answer to said Item is based on
incomplete information.
Item 2 may, however, be considered as correct unless amended
by an amendment to this Form T-1.
- 3 -
<PAGE>
<PAGE>4
SIGNATURE
Pursuant to the requirements of the Act, the Trustee, The
Bank of New York, a corporation organized and existing under the
laws of the State of New York, has duly caused this statement of
eligibility to be signed on its behalf by the undersigned,
thereunto duly authorized, all in The City of New York, and State
of New York, on the 14th day of January, 1994.
THE BANK OF NEW YORK
By: LLOYD A. MCKENZIE
-------------------------------
Name: Lloyd A. McKenzie
Title: Assistant Vice President
- 4 -
<PAGE>5
Exhibit 7
Consolidated Report of Condition of
THE BANK OF NEW YORK
of 48 Wall Street, New York, N.Y. 10286
And Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System, at the close of business
September 30, 1993, published in accordance with a call made by
the Federal Reserve Bank of this District pursuant to the
provisions of the Federal Reserve Act.
Dollar Amounts
ASSETS in Thousands
Cash and balances due from depository
institutions:
Noninterest-bearing balances and
currency and coin .................. $ 4,112,299
interest-bearing balances .......... 607,187
Securities ........................... 3,712,310
Federal funds sold in domestic offices
of the bank ........................ 613,944
Loans and lease financing receivables:
Loans and leases, net of unearned
income .................23,923,315
Less Allowance for loan and lease
losses .....................800,277
Less allocated transfer risk
reserve .....................35,768
Loans and leases, net of unearned
income, allowance and reserve .... 23,087,270
Assets held in trading accounts ...... 959,333
Premises and fixed assets (including
capitalized leases) ................ 664,500
Other real estate owned .............. 102,235
Investments in unconsolidated subsi-
diaries and associated companies ... 170,664
Customers liability to this bank on
acceptances outstanding ............ 909,084
Intangible assets .................... 45,858
Other assets 1,562,551
Total assets $36,547,235
LIABILITIES
Deposits:
In domestic offices ................ $19,443,240
Noninterest-bearing .......7,387,665
Interest-bearing .........12,055,575
In foreign offices, Edge and Agree-
ment Subsidiaries, and IBFs ........ 8,104,447
Noninterest-bearing ..........80,823
Interest-bearing ..........8,023,624
5<PAGE>
<PAGE>6
Federal funds purchased and securities
sold under agreements to repurchase
in domestic offices of the bank and
of its Edge and Agreement subsi-
diaries, and in IBFs:
Federal funds purchased ............ 1,505,573
Securities sold under agreements to
repurchase ....................... 48,225
Demand notes issued to the U.S.
Treasury ........................... 300,000
Other borrowed money ................. 1,082,537
Bank's liability on acceptances exe-
cuted and outstanding .............. 909,970
Subordinated notes and debentures .... 1,070,780
Other liabilities .................... 1,305,376
Total liabilities .................... 33,770,148
EQUITY CAPITAL
Perpetual preferred stock and related
surplus ........................... 75,000
Common stock ........................ 942,284
Surplus ............................. 474,677
Undivided profits and capital
reserves .......................... 1,291,716
Cumulative foreign Currency transla-
tion adjustments .................. ( 6,590)
Total equity capital ................ 2,777,087
Total liabilities, limited-life pre-
ferred stock, and equity capital .. $36,547,235
I, Robert E. Keilman, Senior Vice President and Comptroller of
the above-named bank do hereby declare that this Report of
Condition has been prepared in conformance with the instructions
issued by the Board of Governors of the Federal Reserve System and
is true to the best of my knowledge and belief.
Robert E. Keilman
We, the undersigned directors, attest to the correctness of this
Report of Condition and declare that it has been examined by us and
to the best of our knowledge and belief has been prepared in
conformance with the instructions issued by the Board of Governors
of the Federal Reserve System and is true and correct.
+
J. Carter Bacot |
Alan R. Griffith | Directors
Thomas A. Renyi |
+
6
EXHIBIT 99.1
POOLING AND SERVICING AGREEMENT
BETWEEN
GENERAL MOTORS ACCEPTANCE CORPORATION
SELLER AND SERVICER
AND
WHOLESALE AUTO RECEIVABLES CORPORATION
PURCHASER
DATED AS OF JANUARY 25, 1994
SUPERIOR WHOLESALE INVENTORY FINANCING TRUST I
<PAGE>
<PAGE>2
TABLE OF CONTENTS
PAGE
ARTICLE I
DEFINITIONS. . . . . . . . . . . . . . . 1
SECTION 1.01. Definitions. . . . . . . . . . . . . . . . . . . . . 1
ARTICLE II
PURCHASE AND SALE OF ELIGIBLE RECEIVABLES . . . . . . . 2
SECTION 2.01. Purchase and Sale of Eligible Receivables. . . . . . 2
SECTION 2.02. Purchase Price . . . . . . . . . . . . . . . . . . . 3
SECTION 2.03. Addition of Accounts . . . . . . . . . . . . . . . . 3
SECTION 2.04. Optional Removal of Accounts . . . . . . . . . . . . 4
SECTION 2.05. Removal of Ineligible Accounts . . . . . . . . . . . 5
SECTION 2.06. Custody of Documentation . . . . . . . . . . . . . . 5
ARTICLE III
ADMINISTRATION AND SERVICING OF RECEIVABLES. . . . . . . 6
SECTION 3.01. Appointment of Servicer and Acceptance of
Appointment. . . . . . . . . . . . . . . . . . . . . 6
SECTION 3.02. Rights and Duties of the Servicer. . . . . . . . . . 6
SECTION 3.03. Servicing Compensation; Payment of Certain
Expenses by the Servicer . . . . . . . . . . . . . . 8
SECTION 3.04. Representations, Warranties and Covenants
of the Servicer. . . . . . . . . . . . . . . . . . . 9
SECTION 3.05. Servicer's Accounting and Reports. . . . . . . . . . 12
SECTION 3.06. Pre-Closing Collections. . . . . . . . . . . . . . . 13
SECTION 3.07. Collections Received by GMAC . . . . . . . . . . . . 13
ARTICLE IV
REPRESENTATIONS, WARRANTIES AND COVENANTS . . . . . . . 13
SECTION 4.01. Representations and Warranties of GMAC
Relating to the Accounts and the
Receivables. . . . . . . . . . . . . . . . . . . . . 13
SECTION 4.02. Representations and Warranties of GMAC
Relating to GMAC and the Agreement . . . . . . . . . 15
SECTION 4.03. Representations and Warranties of the
Purchaser. . . . . . . . . . . . . . . . . . . . . . 17
SECTION 4.04. Covenants of GMAC. . . . . . . . . . . . . . . . . . 19
ARTICLE V
CERTAIN MATTERS RELATING TO GMAC. . . . . . . . . . 20
SECTION 5.01. Merger or Consolidation of, or Assumption
of the Obligations of, GMAC. . . . . . . . . . . . . 20
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<PAGE>3
SECTION 5.02. GMAC Indemnification of the Purchaser. . . . . . . . 20
SECTION 5.03. GMAC Acknowledgment of Transfers to the
Issuer . . . . . . . . . . . . . . . . . . . . . . . 20
ARTICLE VI
ADDITIONAL AGREEMENTS . . . . . . . . . . . . 21
SECTION 6.01. Additional Obligations of GMAC and the
Purchaser. . . . . . . . . . . . . . . . . . . . . . 21
SECTION 6.02. Effect of Involuntary Case Involving GMAC. . . . . . 21
SECTION 6.03. Intercreditor Agreements . . . . . . . . . . . . . . 22
ARTICLE VII
MISCELLANEOUS PROVISIONS. . . . . . . . . . . . 24
SECTION 7.01. Amendment. . . . . . . . . . . . . . . . . . . . . . 24
SECTION 7.02. Protection of Right, Title and Interest in
and to Receivables . . . . . . . . . . . . . . . . . 24
SECTION 7.03. Costs and Expenses . . . . . . . . . . . . . . . . . 25
SECTION 7.04. GOVERNING LAW. . . . . . . . . . . . . . . . . . . . 25
SECTION 7.05. Notices. . . . . . . . . . . . . . . . . . . . . . . 25
SECTION 7.06. Severability of Provisions . . . . . . . . . . . . . 25
SECTION 7.07. Assignment . . . . . . . . . . . . . . . . . . . . . 26
SECTION 7.08. Further Assurances . . . . . . . . . . . . . . . . . 26
SECTION 7.09. No Waiver; Cumulative Remedies . . . . . . . . . . . 26
SECTION 7.10. Counterparts . . . . . . . . . . . . . . . . . . . . 26
SECTION 7.11. Third-Party Beneficiaries. . . . . . . . . . . . . . 26
SECTION 7.12. Merger and Integration . . . . . . . . . . . . . . . 26
SECTION 7.13. Confidential Information . . . . . . . . . . . . . . 27
SECTION 7.14. Headings . . . . . . . . . . . . . . . . . . . . . . 27
SECTION 7.15. Termination. . . . . . . . . . . . . . . . . . . . . 27
EXHIBIT A List of Locations of the Schedule of Accounts
EXHIBIT B Form of Assignment for the Initial Closing Date
EXHIBIT C Form of Assignment for Each Addition Date
EXHIBIT D Form of Opinion of Counsel With Respect to Addition of
Accounts
APPENDIX A Definitions
- ii -
<PAGE>4
THIS POOLING AND SERVICING AGREEMENT is made as of
January 25, 1994, between GENERAL MOTORS ACCEPTANCE CORPORATION, a
corporation incorporated under the New York Banking Law relating to
investment companies (referred to herein as "GMAC" in its capacity
as seller of the Receivables specified herein and as the "SERVICER"
in its capacity as servicer of the Receivables), and WHOLESALE AUTO
RECEIVABLES CORPORATION, a Delaware corporation (the "PURCHASER").
WHEREAS, GMAC, in the ordinary course of its business,
generates certain payment obligations by financing the floor plan
inventory of motor vehicle dealers;
WHEREAS, GMAC desires to sell and assign to the
Purchaser, and the Purchaser desires to purchase from GMAC, certain
of such existing and future payment obligations arising or acquired
from time to time;
WHEREAS, the Purchaser desires to transfer and assign its
interest in such payment obligations to Superior Wholesale
Inventory Financing Trust I (the "ISSUER") pursuant to the Trust
Sale and Servicing Agreement;
WHEREAS, the Issuer desires to issue the Initial
Securities to fund its acquisition of such payment obligations;
WHEREAS, the Purchaser, the Issuer and GMAC (as the
holder of such payment obligations not sold to the Purchaser
hereunder) desire that the Servicer shall service such payment
obligations; and
WHEREAS, the Servicer is willing to service such payment
obligations and related payment obligations in accordance with the
terms hereof and of the Trust Sale and Servicing Agreement for the
benefit of the Purchaser, GMAC, the Issuer and each other party
identified or described herein or in the Trust Sale and Servicing
Agreement as having an interest therein as owner, trustee, secured
party or holder of the Securities (all such parties being
collectively referred to herein as "INTERESTED PARTIES").
NOW, THEREFORE, in consideration of the premises and the
mutual covenants herein contained, the parties hereto agree as
follows:
ARTICLE I
DEFINITIONS
SECTION 1.01. DEFINITIONS. Certain capitalized terms
used in the above recitals and in this Agreement are defined in and
shall have the respective meanings assigned them in APPENDIX A to
this Agreement. All references herein to "the Agreement" or "this
Agreement" are to this Pooling and Servicing Agreement as it may be
amended, supplemented or modified from time to time, and all
references herein to Articles, Sections and subsections are to
- 1 -
<PAGE>5
Articles, Sections or subsections of this Agree1ment unless
otherwise specified.
ARTICLE II
PURCHASE AND SALE OF ELIGIBLE RECEIVABLES
SECTION 2.01. PURCHASE AND SALE OF ELIGIBLE RECEIVABLES.
(a) By execution of this Agreement, on the Initial
Closing Date, GMAC does hereby sell, transfer, assign and otherwise
convey to the Purchaser, without recourse, all of its right, title
and interest in, to and under all of the Eligible Receivables
existing in the Accounts listed on the Schedule of Accounts (which
is kept at locations listed in EXHIBIT A) as of the close of
business on the Initial Cut-Off Date and all monies due or to
become due thereon after the Initial Cut-Off Date, all Collateral
Security with respect thereto and all amounts received with respect
thereto and all proceeds thereof (including "proceeds" as defined
in Section 9-306 of the UCC and Recoveries).
(b) Subject to Section 6.02, as of each date during the
Revolving Period on which Receivables are created or deemed created
in the Accounts in the Pool of Accounts, GMAC does hereby sell,
transfer, assign and otherwise convey to the Purchaser, without
recourse, all of its right, title and interest in, to and under all
Eligible Receivables created or deemed created in the Accounts in
the Pool of Accounts on such date and all monies due or to become
due thereon after such date, all Collateral Security with respect
thereto and all amounts received with respect thereto and all
proceeds thereof (including "proceeds" as defined in Section 9-306
of the UCC and Recoveries).
(c) It is the intention of GMAC and the Purchaser that
the transfers and assignments contemplated by this Agreement shall
constitute sales of the property described in Sections 2.01(a) and
(b) from GMAC to the Purchaser and that the beneficial interest in
and title to such property shall not be part of GMAC's estate in
the event of the filing of a bankruptcy petition by or against GMAC
under any Insolvency Law. The foregoing sales, transfers, assign-
ments and conveyances and any subsequent sales, transfers, assign-
ments and conveyances contemplated hereby do not constitute, and
are not intended to result in, the creation or an assumption by the
Purchaser of any obligation of the Servicer, GMAC (if GMAC is not
the Servicer), General Motors or any other Person in connection
with the Receivables described above or under any agreement or
instrument relating thereto, including any obligation to any
Dealers.
(d) Subject to Section 2.06 and Article III hereof, GMAC
shall retain all right, title and interest in, to and under the
Receivables in the Accounts in the Pool of Accounts that GMAC has
not transferred to the Purchaser hereunder. Such Receivables,
together with any Receivables repurchased by GMAC or (so long as
- 2 -
<PAGE>6
GMAC is the Servicer) the Servicer from the Purchaser or the Trust
pursuant to this Agreement or the Trust Sale and Servicing
Agreement, all monies due or to become due on such Receivables, all
amounts received with respect thereto and all proceeds thereof
(including "proceeds" as defined in Section 9-306 of the UCC and
Recoveries) are collectively referred to herein as the "RETAINED
PROPERTY".
SECTION 2.02. PURCHASE PRICE. On the Initial Closing
Date, in consideration for the sale of the property described in
Section 2.01(a) to the Purchaser, the Purchaser shall pay to GMAC
$2,232,260,228.40 (representing the aggregate principal balance of
the Receivables as of the close of business on the Initial Cut-Off
Date so sold on the Initial Closing Date) in immediately available
funds, and GMAC shall deliver to the Purchaser an executed
assignment substantially in the form of EXHIBIT B hereto. The
Purchaser shall pay, subject to Section 6.02, for property
described in Section 2.03 sold by GMAC to the Purchaser on each
Addition Date and property described in Section 2.01(b) sold by
GMAC to the Purchaser on each Receivables Purchase Date, a price
equal to the principal balance of the Eligible Receivables to be
purchased on each such date. Such purchase price shall be payable
by the Purchaser on each such date in immediately available funds.
SECTION 2.03. ADDITION OF ACCOUNTS.
(a) OFFERS TO DESIGNATE ADDITIONAL ACCOUNTS. From time
to time, GMAC may, at its option, offer to designate and the
Purchaser may, at its option, request the designation of, one or
more Accounts (each, an "ADDITIONAL ACCOUNT") to be included as
Accounts in the Pool of Accounts, subject to the conditions
specified in Section 2.03(b) below. If the Purchaser, at its
option, elects to accept any such offer by GMAC or if GMAC, at its
option, agrees to any such request of the Purchaser, GMAC shall
sell and assign to the Purchaser, and the Purchaser shall purchase
from GMAC, all of GMAC's right, title and interest in, to and under
all of the Eligible Receivables in each such Additional Account as
of the related Additional Cut-Off Date and all monies due or to
become due thereon after such date, all Collateral Security with
respect thereto, all amounts received with respect thereto and all
proceeds thereof (including "proceeds" as defined in Section 9-306
of the UCC and Recoveries), effective as of the Addition Date
specified in a written notice provided by the Servicer, on behalf
of GMAC, to the Purchaser (the "GMAC ADDITION NOTICE"). Effective
as of each such Addition Date, such Additional Account shall be
included in the Pool of Accounts and Eligible Receivables arising
therein from and after the Additional Cut-Off Date shall be subject
to purchase under Section 2.01(b) above. Each GMAC Addition Notice
shall specify the related Additional Cut-Off Date and shall be
given (with a copy to the Rating Agencies) on or before the fifth
Business Day but not more than the thirtieth day prior to the
related Addition Date.
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<PAGE>7
(b) CONDITIONS. GMAC shall be permitted to designate,
and the Purchaser shall be permitted to accept the designation of,
Additional Accounts, in accordance with Section 2.03(a) only upon
satisfaction of each of the following conditions on or prior to the
related Addition Date:
(i) GMAC shall represent that as of the related
Additional Cut-Off Date each such Additional Account is an
Eligible Account and that each Receivable arising thereunder
identified as an Eligible Receivable and conveyed to the
Purchaser on such Addition Date is an Eligible Receivable;
(ii) GMAC shall have delivered to the Purchaser a
duly executed written assignment in substantially the form of
EXHIBIT C and the list required to be delivered pursuant to
Section 7.02(d);
(iii) GMAC shall have agreed to deliver to the
Purchaser, for deposit in the Collection Account, to the
extent required by the Trust Sale and Servicing Agreement, all
Collections with respect to the Eligible Receivables arising
in such Additional Accounts since the Additional Cut-Off Date
within two Business Days after such Addition Date;
(iv) as of the Addition Date, neither GMAC nor the
Purchaser is insolvent nor shall any of them have been made
insolvent by such transfer nor is either of them aware of any
pending insolvency;
(v) the Schedule of Accounts shall have been
amended to reflect such Additional Accounts and the Schedule
of Accounts as so amended shall be true and correct as of the
Addition Date;
(vi) GMAC shall have delivered to the Purchaser a
certificate of an Authorized Officer of GMAC confirming the
items set forth in clauses (i) through (v) above;
(vii) the conditions set forth in Section 2.7(b) of
the Trust Sale and Servicing Agreement shall have been
satisfied; and
(viii) GMAC shall have delivered to the Purchaser an
Opinion of Counsel of GMAC substantially in the form of
EXHIBIT D.
SECTION 2.04. OPTIONAL REMOVAL OF ACCOUNTS. From time
to time, GMAC may, at its option, request from the Purchaser, and
the Purchaser may, at its option, offer to GMAC, the right to
designate an Account for removal from the Pool of Accounts.
Subject to the satisfaction by the Purchaser of the conditions set
forth in Section 2.8 of the Trust Sale and Servicing Agreement,
GMAC, at its option, may accept offers to designate an Account for
removal or request from the Purchaser the right to designate an
- 4 -
<PAGE>8
Account for removal by furnishing a written notice (the "GMAC
REMOVAL NOTICE") to the Purchaser not less than five Business Days
but not more than 30 days prior to the Removal Commencement Date.
On and after the Removal Commencement Date with respect to a
Selected Account, GMAC shall not transfer Receivables with respect
to such Selected Account to the Purchaser. The Schedule of
Accounts shall be amended to reflect such designation as of the
Removal Commencement Date and to reflect such Account becoming a
Removed Account as of the Removal Date. At any time after the
Removal Date, at the written request of GMAC, the Purchaser shall
assign to GMAC, without recourse, representation or warranty,
effective as of the Removal Date, all of the Purchaser's right,
title and interest in, to and under the Receivables arising in such
Account and related Collateral Security.
SECTION 2.05. REMOVAL OF INELIGIBLE ACCOUNTS. If at
any time an Account shall be deemed a Selected Account as described
in Section 2.9 of the Trust Sale and Servicing Agreement, the
Purchaser shall give notice thereof to GMAC at the time it gives
notice to the parties identified in such Section 2.9. From and
after the Removal Commencement Date with respect to a Selected
Account pursuant to such Section 2.9, GMAC shall not transfer
Receivables with respect to such Selected Account to the Purchaser.
The Schedule of Accounts shall be amended to reflect such
designation as of the Removal Commencement Date and to reflect such
Account becoming a Removed Account as of the Removal Date. At any
time after such removal, at the written request of GMAC, the
Purchaser shall assign to GMAC, without recourse, representation or
warranty, effective as of the Removal Date, all of the Purchaser's
right, title and interest in, to and under the Receivables in such
Account and related Collateral Security.
SECTION 2.06. CUSTODY OF DOCUMENTATION. In connection
with the sale, transfer, assignment and conveyance of the
Receivables and related Collateral Security in the Accounts in the
Pool of Accounts to the Purchaser hereunder, the Purchaser is
executing simultaneously herewith the Custodian Agreement with the
Custodian, pursuant to which the Purchaser shall revocably appoint
the Custodian to act as agent of the Purchaser to maintain custody
of the documents and instruments (as more fully described in the
Custodian Agreement) associated with such Receivables, which shall
be constructively delivered to the Purchaser. GMAC, as the holder
of the Retained Property, hereby consents to the appointment of the
Custodian to act as agent of GMAC to maintain custody of the
documents and contracts (as more fully described in the Custodian
Agreement) associated with the Receivables included therein and is
simultaneously herewith executing the Custodian Agreement. The
Custodian has accepted such appointment by the Purchaser and GMAC
under the Custodian Agreement.
- 5 -
<PAGE>9
ARTICLE III
ADMINISTRATION AND SERVICING OF RECEIVABLES
SECTION 3.01. APPOINTMENT OF SERVICER AND ACCEPTANCE OF
APPOINTMENT. The Purchaser and GMAC hereby appoint the Servicer to
act as Servicer with respect to the Eligible Receivables and the
Receivables included in the Retained Property, existing in or
arising under the Accounts included in the Pool of Accounts from
time to time and authorize the Servicer to perform the duties of
Servicer under this Agreement and under the Trust Sale and
Servicing Agreement. The Servicer by execution of this Agreement
and by execution of the Trust Sale and Servicing Agreement hereby
accepts such appointment and the terms hereof and thereof.
SECTION 3.02. RIGHTS AND DUTIES OF THE SERVICER.
(a) The Servicer shall manage, service and administer
the Receivables described in Section 3.01, including, without
limitation, collecting payments due under the Receivables and
providing for charge-offs of uncollectible Receivables, with
reasonable care and all in accordance with the Servicer's customary
and usual servicing procedures for servicing wholesale receivables
comparable to the Receivables which the Servicer services for its
own account, including the Floor Plan Financing Guidelines, except
insofar as any failure to do so would not have a material adverse
effect on the interests of Securityholders. The Servicer shall
have full power and authority, acting alone or through any party
properly designated by it hereunder or under the Trust Sale and
Servicing Agreement, to do any and all things in connection with
such servicing and administration which it may deem necessary or
desirable, including monitoring the insurance maintained by
Dealers. The Servicer is hereby authorized to commence, in its own
name or in the name of any Interested Party, a Proceeding to
enforce any Receivable subject hereto, to enforce all obligations
of GMAC and the Purchaser under this Agreement and under the Trust
Sale and Servicing Agreement or to commence or participate in a
Proceeding (including without limitation a bankruptcy proceeding)
relating to or involving any such Receivable. If in any Proceeding
it is held that the Servicer may not enforce a Receivable arising
under an Account in the Pool of Accounts on the ground that it is
not a real party in interest or a holder entitled to enforce such
Receivable, the Purchaser, GMAC and each other Interested Party
shall, at the Servicer's expense, take such steps as the Servicer
reasonably deems necessary or appropriate to enforce the
Receivable, including bringing suit in the name of such Person. If
the Servicer commences or participates in such a Proceeding in its
own name, each Interested Party shall thereupon be deemed to have
automatically assigned such Receivable to the Servicer for purposes
of commencing or participating in any such Proceeding as a party or
claimant, and the Servicer is hereby authorized and empowered to
execute and deliver in the Servicer's name any notices, demands,
claims, complaints, responses, affidavits or other documents or
instruments in connection with any such Proceeding. Each
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<PAGE>10
Interested Party shall furnish the Servicer with any powers of
attorney and other documents and take any other steps which the
Servicer may reasonably deem necessary or appropriate to enable the
Servicer to carry out its servicing and administrative duties under
this Agreement and the Trust Sale and Servicing Agreement. Except
to the extent required by the preceding two sentences, the
authority and rights granted to the Servicer in this Section 3.02
shall be nonexclusive and shall not be construed to be in
derogation of the retention by any Interested Party (to the extent
of its rights in a Receivable) of equivalent authority and rights.
Without limiting the generality of the foregoing and subject to any
Servicing Default, the Servicer is hereby authorized and empowered,
unless such power and authority is revoked by any Interested Party
on account of the occurrence of such a Servicing Default, to:
(i) instruct the Issuer to make allocations,
withdrawals and payments to or from the Collection Account,
the Distribution Accounts, the Reserve Fund and any other
related bank accounts as set forth in the Trust Sale and
Servicing Agreement;
(ii) instruct the Issuer or any Interested Party to
take any action required or permitted under any Specified
Support Arrangement;
(iii) execute and deliver, on behalf of the Issuer
for the benefit of any related Securityholders, any and all
instruments of satisfaction or cancellation, or of partial or
full release or discharge, and all other comparable instru-
ments, with respect to the Receivables and, after the delin-
quency of any Receivable and to the extent permitted under and
in compliance with applicable requirements of law, to commence
enforcement proceedings with respect to any such Receivable;
and
(iv) make any filings, reports, notices, applica-
tions, registrations with, and seek any consents or
authorizations from, the Securities and Exchange Commission
and any State securities authority on behalf of the Issuer as
may be necessary or advisable to comply with any federal or
State securities law or reporting requirement.
(b) The Servicer shall not be obligated to use separate
servicing procedures, offices, employees or accounts for servicing
the Receivables in the Accounts in the Pool of Accounts from the
procedures, offices, employees and accounts used by the Servicer in
connection with servicing other receivables. The Servicer shall,
at its own expense, on or prior to the Initial Closing Date, in the
case of the Initial Accounts, and on or prior to the applicable
Addition Date, in the case of Additional Accounts, indicate in its
computer files that the Eligible Receivables in the Accounts in the
Pool of Accounts have been sold and transferred by GMAC to the
Purchaser hereunder and by the Purchaser to the Trust under the
Trust Sale and Servicing Agreement.
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<PAGE>11
(c) Except as otherwise required to comply with all
Requirements of Law, the Servicer may change the terms and provi-
sions of the Floor Plan Financing Agreements or the Floor Plan
Financing Guidelines in any respect (including the calculation of
the amount or the timing of charge-offs and the rate of the finance
charge assessed thereon), only if:
(i) in the reasonable belief of the Servicer, no
Early Amortization Event shall occur as a result of such
change;
(ii) such change is made applicable to the
comparable segment of any similar portfolio of accounts
serviced by the Servicer and not only to the Accounts in the
Pool of Accounts; and
(iii) in the case of a reduction in the rate of such
finance charges, the Servicer (and, if GMAC is not then the
Servicer, GMAC) does not reasonably expect any such reduction,
after considering amounts due and amounts payable under any
Specified Support Agreements and Investment Proceeds for the
related period, to result in the Net Receivables Rate for any
Collection Period being less than the sum of (A) the weighted
average of the rates of interest payable to all holders of
Securities and (B) the Monthly Servicing Fee for the related
period;
PROVIDED, HOWEVER, that nothing herein shall prevent the Servicer
from modifying the terms of the Floor Plan Financing Agreement with
any dealer on a case-by-case basis in a manner consistent with the
Floor Plan Financing Guidelines.
SECTION 3.03. SERVICING COMPENSATION; PAYMENT OF CERTAIN
EXPENSES BY THE SERVICER. The Servicer is entitled to receive the
Monthly Servicing Fee as described in the Trust Sale and Servicing
Agreement. The Monthly Servicing Fee shall be payable to the
Servicer solely to the extent amounts are available for payment in
accordance with the terms of the Trust Sale and Servicing Agree-
ment. Subject to any limitations on the Servicer's liability under
the Trust Sale and Servicing Agreement, the Servicer shall be
required to pay all expenses incurred by it in connection with its
activities under this Agreement and the Trust Sale and Servicing
Agreement (including disbursements of the Issuer, fees and
disbursements of any trustees, accountants and outside auditors,
taxes imposed on the Servicer, expenses incurred in connection with
distributions and reports to holders of Securities and all other
fees and expenses not expressly stated under this Agreement or the
Trust Sale and Servicing Agreements to be for the account of the
holders of Securities, but in no event including federal, state and
local income and franchise taxes, if any, of the Issuer or any
holder of the Securities).
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<PAGE>12
SECTION 3.04. REPRESENTATIONS, WARRANTIES AND COVENANTS
OF THE SERVICER.
(a) The Servicer hereby makes, and any successor
Servicer by its appointment under this Agreement and under the
Trust Sale and Servicing Agreement shall make, on each Closing Date
(and on the date of any such appointment) the following representa-
tions, warranties and covenants on which the Purchaser relies in
accepting and holding the Receivables and the related Collateral
Security hereunder and the Issuer shall rely in acquiring and
holding such Receivables and the related Collateral Security under
the Trust Sale and Servicing Agreement and in issuing the
Securities:
(i) ORGANIZATION AND GOOD STANDING. The Servicer
has been duly organized and is validly existing as a
corporation in good standing under the New York Banking Law
relating to investment companies (or, in the case of a
Servicer other than GMAC, other applicable law of its
jurisdiction of incorporation), with power and authority to
own its properties and to conduct its businesses as such
properties are presently owned and such businesses are
presently conducted.
(ii) DUE QUALIFICATION. The Servicer is duly
qualified to do business and, where necessary, is in good
standing as a foreign corporation (or is exempt from such
requirement) and has obtained all necessary licenses and
approvals in each jurisdiction in which the conduct of its
businesses requires such qualification, except where the
failure to so qualify or obtain licenses or approvals would
not have material adverse effect on its ability to perform its
obligations under this Agreement.
(iii) POWER AND AUTHORITY. The Servicer has the
power and authority to execute and deliver this Agreement and
the Trust Sale and Servicing Agreement, to carry out the terms
of each such agreement and to service the Accounts in the Pool
of Accounts and the Receivables arising therein as provided
herein and in the Trust Sale and Servicing Agreement, and the
execution, delivery and performance of this Agreement and the
Trust Sale and Servicing Agreement have been duly authorized
by the Servicer by all necessary corporate action on the part
of the Servicer.
(iv) BINDING OBLIGATION. This Agreement constitutes,
and the Trust Sale and Servicing Agreement, when duly executed
and delivered by the Servicer, shall constitute, the legal,
valid and binding obligation of the Servicer enforceable in
accordance with their respective terms, except as
enforceability may be limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws now or
hereinafter in effect, affecting the enforcement of creditors'
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<PAGE>13
rights in general and by general principles of equity, regardless
of whether such enforceability is considered in a proceeding in
equity or at law.
(v) NO VIOLATION. The execution of this Agreement
and the consummation of the transactions contemplated by this
Agreement and the Trust Sale and Servicing Agreement by the
Servicer and the fulfillment of the terms of this Agreement
and the Trust Sale and Servicing Agreement by the Servicer,
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) a default under, the articles of
incorporation or by-laws of the Servicer, or any indenture,
agreement, mortgage, deed of trust or other instrument to
which the Servicer is a party or by which it is bound, 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 pursuant to the Basic Documents), or violate any law or,
to the best of the Servicer's knowledge, any order, rule or
regulation applicable to the Servicer of any Governmental
Authority having jurisdiction over the Servicer or any of its
properties, except where any such conflict or violation would
not have a material adverse effect on its ability to perform
its obligations under this Agreement or the Trust Sale and
Servicing Agreement.
(vi) NO PROCEEDINGS. To the Servicer's knowledge,
there are no Proceedings or investigations pending, or
threatened, against the Servicer before any Governmental
Authority having jurisdiction over the Servicer or its
properties (A) asserting the invalidity of this Agreement or
the Trust Sale and Servicing Agreement or any Securities
issued thereunder, (B) seeking to prevent the issuance of the
such Securities, the execution of this Agreement or the
consummation of any of the transactions contemplated by this
Agreement or the Trust Sale and Servicing Agreement or (C)
seeking any determination or ruling that might materially and
adversely affect the performance by the Servicer of its
obligations under, or the validity and enforceability of, this
Agreement or the Trust Sale and Servicing Agreement.
(vii) COMPLIANCE WITH REQUIREMENTS OF LAW. The
Servicer shall duly satisfy all obligations on its part to be
fulfilled under or in connection with the Receivables and the
Accounts to be serviced under this Agreement and the Trust
Sale and Servicing Agreement, shall maintain in effect all
qualifications required under Requirements of Law in order to
service properly such Receivables and such Accounts and shall
comply in all material respects with all Requirements of Law
in connection with servicing such Receivables and such
Accounts, except, in each case, where a failure to do so would
not have a material adverse effect on the interests of the
Securityholders.
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<PAGE>14
(viii) NO RESCISSION OR CANCELLATION. Except pursuant
to the Floor Plan Financing Guidelines, the Servicer shall not
permit any rescission or cancellation of any Receivable sold
and assigned to the Purchaser hereunder that the Servicer
services under this Agreement and the Trust Sale and Servicing
Agreement, except as ordered by a court of competent
jurisdiction or other Governmental Authority.
(ix) PROTECTION OF INTERESTED PARTY RIGHTS. The
Servicer shall take no action, nor omit to take any action,
which would impair the rights or interests of Interested
Parties in the Receivables sold and assigned to the Purchaser
hereunder that the Servicer services under this Agreement and
the Trust Sale and Servicing Agreement or in the related
Vehicle Collateral Security nor shall it reschedule, revise or
defer payments due on any such Receivable except, in each
case, in a manner consistent with the Floor Plan Financing
Guidelines or as otherwise contemplated herein or in the Trust
Sale and Servicing Agreement. The Servicer shall not permit
any such Receivable to become subject to any right of set-off
or any offsetting balance.
(x) NEGATIVE PLEDGE. Except for the conveyances
hereunder, to the Issuer pursuant to the Trust Sale and
Servicing Agreement and the pledge of the Trust Estate to the
Indenture Trustee pursuant to the Indenture, and as provided
in Section 6.03, the Servicer shall not sell, pledge, assign
or transfer to any other Person, or grant, create, incur,
assume or suffer to exist, any Lien on any Receivable sold and
assigned to the Purchaser hereunder (and any related
Collateral Security), whether now existing or hereafter
created, or any interest therein, and the Servicer shall
defend the right, title and interest of the Purchaser, the
Issuer and any Interested Party in, to and under such
property, whether now existing or hereafter created, against
all claims of third parties claiming through or under the
Purchaser or the Servicer. The Servicer shall notify the
Purchaser promptly after becoming aware of any Lien on such
property other than the conveyances hereunder or under the
Trust Sale and Servicing Agreement or the Indenture.
(b) NOTICE OF BREACH. Upon discovery by the Purchaser
or the Servicer of a breach of any of the representations, warran-
ties and covenants set forth in this Section 3.04, the party
discovering such breach shall give prompt written notice to the
other parties.
(c) PURCHASE OF RECEIVABLES. If any covenants of the
Servicer under Section 3.04(a)(viii), (ix) or (x) has not been
complied with in all material respects with respect to any Eligible
Receivable or Account in the Pool of Accounts and such
noncompliance has a material adverse effect on the interests of
Securityholders or any other Interested Parties in such Receivable
or such Account, the Servicer shall purchase such Receivable (or,
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<PAGE>15
in the case of a breach affecting less than the entire principal
amount of a Receivable, to the extent of the breach) or all
Eligible Receivables under such Account (each, an "ADMINISTRATIVE
RECEIVABLE") from the Issuer, on the terms and conditions set forth
in this Section 3.04.
(d) PAYMENT OF PURCHASE PRICE. The Servicer shall
purchase each Administrative Receivable no later than two Business
Days (or such other period as may be agreed by the Applicable
Trustee) following discovery by the Servicer (including through the
receipt of notice thereof) of the event giving rise to such
Administrative Receivable by depositing in the Collection Account,
on the date on which such purchase is deemed to occur, an amount
(in immediately available funds) equal to the principal amount of
such Receivable plus accrued and unpaid interest thereon through
the date of purchase. The amount so deposited with respect to a
Receivable (an "ADMINISTRATIVE PURCHASE PAYMENT") shall be included
in Additional Trust Principal (to the extent of the principal
amount of such Receivable) and Interest Collections (as to the
remainder of such amount) on such date and shall be applied in
accordance with the terms of this Agreement and the Trust Sale and
Servicing Agreement.
(e) SOLE REMEDY. The obligation of the Servicer to
purchase Receivables as described in this Section 3.04, and to make
the deposits required to be made to the Collection Account as
provided in the preceding paragraph, shall constitute the sole
remedy respecting the event giving rise to such obligation
available to any Securityholders, the Purchaser, the Owner Trustee,
the Indenture Trustee or the Issuer.
SECTION 3.05. SERVICER'S ACCOUNTING AND REPORTS.
(a) On or before each Determination Date, the Servicer
shall deliver to the Purchaser, the Owner Trustee, the Indenture
Trustee and the Rating Agencies a Servicer's Accounting with
respect to the immediately preceding Collection Period executed by
an Authorized Officer of the Servicer containing all information
necessary for making the allocations, deposits and distributions
required by the Trust Sale and Servicing Agreement, the Trust
Agreement and the Indenture on the related Distribution Date, and
all information necessary to each such party for sending any
statements required to be sent to Securityholders with respect to
such Distribution Date under the Trust Sale and Servicing
Agreement.
(b) On each Business Day, the Servicer shall deliver to
the Indenture Trustee a Servicer's Accounting executed by an
Authorized Officer of the Servicer containing the Daily Trust
Balance, the Daily Trust Invested Amount and all related amounts to
the extent necessary to determine the Cash Collateral Amount for
such date as described in Section 4.5(d) of the Trust Sale and
Servicing Agreement.
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<PAGE>16
(c) At any time that GMAC does not have a long-term
rating of at least BBB- from Standard & Poor's and at least Baa3
from Moody's, the Servicer shall identify on a daily basis all
Eligible Receivables and, on or before each Determination Date, the
Servicer shall deliver to the Owner Trustee a list identifying all
Eligible Receivables as of the last day of the related Collection
Period.
SECTION 3.06. PRE-CLOSING COLLECTIONS. Within two
Business Days after the Initial Closing Date, GMAC shall deliver to
the Purchaser all collections on the Receivables in the Accounts in
the Pool of Accounts held by GMAC on the Initial Closing Date to
the extent such collections would be required to be on deposit on
such date if this Agreement and the Trust Sale and Servicing
Agreement had been in effect from and after the Initial Cut-Off
Date and the Revolving Period had commenced on such date. The
Purchaser hereby directs GMAC to deposit such amount on its behalf
into the Collection Account.
SECTION 3.07. COLLECTIONS RECEIVED BY GMAC. GMAC hereby
agrees to deliver all Collections on the Receivables in the
Accounts in the Pool of Accounts received by GMAC from or on behalf
of Dealers to the Servicer and consents to the application,
allocation and distribution thereof in accordance with the terms
and provisions of this Agreement and the Trust Sale and Servicing
Agreement.
ARTICLE IV
REPRESENTATIONS, WARRANTIES AND COVENANTS
SECTION 4.01. REPRESENTATIONS AND WARRANTIES OF GMAC
RELATING TO THE ACCOUNTS AND THE RECEIVABLES.
(a) REPRESENTATIONS AND WARRANTIES. As of the dates set
forth below, GMAC makes the following representations and
warranties to the Purchaser as to the Accounts in the Pool of
Accounts and the Receivables sold to the Purchaser hereunder, on
which the Purchaser relies in accepting such Receivables:
(i) as of the Initial Cut-Off Date, each Account
included in the Pool of Accounts is an Eligible Account;
(ii) as of the Initial Cut-Off Date, each Receivable
that is identified as an Eligible Receivable and conveyed to
the Purchaser on the Initial Closing Date is an Eligible
Receivable;
(iii) as of each Additional Cut-Off Date, each
related Additional Account is an Eligible Account and each
Receivable arising thereunder that is identified as an
Eligible Receivable and conveyed to the Purchaser on the
related Addition Date is an Eligible Receivable; and
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<PAGE>17
(iv) as of each date that Receivables are sold and
transferred hereunder pursuant to Section 2.01(b), each
Receivable that is identified as an Eligible Receivable and so
conveyed to the Purchaser on such date is an Eligible
Receivable.
(b) SURVIVAL; NOTICE OF BREACH. The representations and
warranties set forth in this Section 4.01 shall survive the
transfer and assignment of the Eligible Receivables in the Accounts
in the Pool of Accounts and related items to the Purchaser from
time to time and the subsequent assignment and transfer of its
interests therein to the Issuer pursuant to the Trust Sale and
Servicing Agreement. Upon discovery by GMAC or the Purchaser of a
breach of any of the representations and warranties set forth in
this Section 4.01, the party discovering such breach shall give
prompt written notice to the other party.
(c) REPURCHASE. GMAC acknowledges that the Purchaser
shall assign its rights and remedies hereunder with respect to the
Eligible Receivables arising in the Accounts in the Pool of
Accounts to the Issuer under the Trust Sale and Servicing
Agreement. GMAC hereby covenants and agrees with the Purchaser
that (i) in the event of a breach of any of GMAC's representations
and warranties contained in Section 4.01(a) with respect to any
Receivable or with respect to any Account that materially and
adversely affects the interests of the Purchaser or the Trust in
any Receivable or (ii) in the event that the payment of all or a
portion of the principal amount of any Receivable held by the
Purchaser or the Trust is deferred pursuant to DPP, WISP or any
other instalment sales program or similar arrangement, unless and
to the extent such breach or deferral shall have been cured in all
material respects, GMAC shall repurchase the interest of the Issuer
in such Receivable (to the extent of such breach or deferral) on
the date and for the amount specified in Section 2.5 of the Trust
Sale and Servicing Agreement, without further notice from the
Purchaser hereunder and without any representation, warranty or
recourse from the Purchaser or the Issuer. Without limiting the
generality of the foregoing, a Receivable shall not be an Eligible
Receivable, and thus shall be subject to repurchase, if and to the
extent that, (A) the Servicer adjusts downward the principal amount
of such Receivable because of a rebate, refund, credit adjustment
or billing error to the related Dealer or (B) such Receivable was
created in respect of a Vehicle which was refused or returned by
the related Dealer.
(d) SOLE REMEDY. The obligation of GMAC to repurchase
any Receivable shall constitute the sole remedy respecting the
event giving rise to such obligation available to the Purchaser and
to any Interested Party.
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<PAGE>18
SECTION 4.02. REPRESENTATIONS AND WARRANTIES OF GMAC
RELATING TO GMAC AND THE AGREEMENT.
(a) REPRESENTATIONS AND WARRANTIES. GMAC, in its
capacity as seller, hereby makes as of each Closing Date the
following representations and warranties on which the Purchaser
relies. The following representations and warranties shall survive
the sale, transfer and assignment of the Receivables hereunder:
(i) ORGANIZATION AND GOOD STANDING. GMAC has been
duly organized and is validly existing as a corporation in
good standing under the New York Banking Law relating to
investment companies, with power and authority to own its
properties and to conduct its businesses as such properties
are presently owned and such businesses are presently conduct-
ed;
(ii) DUE QUALIFICATION. GMAC is duly qualified to
do business and, where necessary, is in good standing as a
foreign corporation (or is exempt from such requirement) and
has obtained all necessary licenses and approvals in each
jurisdiction in which the conduct of its businesses requires
such qualification, except where the failure to so qualify or
obtain licenses or approvals would not have a material adverse
effect on its ability to perform its obligations under this
Agreement;
(iii) POWER AND AUTHORITY. GMAC has the power and
authority to execute and deliver this Agreement, to carry out
its terms, and to consummate the transactions contemplated
herein, and the execution, delivery and performance of this
Agreement and the consummation of the transactions
contemplated herein have been duly authorized by GMAC by all
necessary corporate action on the part of GMAC;
(iv) NO VIOLATION. The execution of this Agreement
and the consummation of the transactions contemplated by this
Agreement and the fulfillment of the terms of this Agreement
by GMAC 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) a default under, the articles of
incorporation or by-laws of GMAC, or any indenture, agreement,
mortgage, deed of trust or other instrument to which GMAC is
a party or by which it is bound, 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 pursuant to the Basic
Documents) or violate any law or, to the best of GMAC's
knowledge, any order, rule or regulation applicable to GMAC of
any Governmental Authority having jurisdiction over GMAC or
any of its properties, except where any such conflict or
violation would not have a material adverse effect on its
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<PAGE>19
ability to perform its obligations with respect to the
Purchaser or any Interested Party under this Agreement or the
Trust Sale and Servicing Agreement;
(v) NO PROCEEDINGS. To GMAC's knowledge, there
are no Proceedings or investigations pending, or threatened,
against GMAC before any Governmental Authority having
jurisdiction over GMAC or its properties (A) asserting the
invalidity of this Agreement, the Trust Sale and Servicing
Agreement, the Custodian Agreement or the Administration
Agreement, (B) seeking to prevent the execution of this
Agreement or the consummation of any of the transactions
contemplated by this Agreement, the Trust Sale and Servicing
Agreement, the Custodian Agreement or the Administration
Agreement or (C) seeking any determination or ruling that
might materially and adversely affect the performance by GMAC
of its obligations under, or the validity or enforceability
of, this Agreement, the Trust Sale and Servicing Agreement,
the Custodian Agreement or the Administration Agreement.
(vi) BINDING OBLIGATION. This Agreement constitutes
a legal, valid and binding obligation of GMAC, enforceable
against GMAC in accordance with its terms, except as such
enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or other similar laws
now or hereafter in effect affecting the enforcement of
creditors' rights in general and by general principles of
equity, regardless of whether such enforceability is
considered in a proceeding in equity or at law;
(vii) RECORD OF ACCOUNTS. The Schedule of Accounts
is an accurate and complete listing in all material respects
of all of the Accounts in the Pool of Accounts as of the
Initial Cut-Off Date or the applicable Additional Cut-Off
Date, as the case may be, and the information contained
therein with respect to the identity of such Accounts is true
and correct in all material respects; and
(viii) VALID SALE. With respect to the Initial
Accounts, this Agreement and the related assignment to be
delivered on the Initial Closing Date or, in the case of
Additional Accounts, the related assignment as described in
Section 2.03(b), when duly executed and delivered, shall
constitute a valid sale, transfer and assignment to the
Purchaser of all right, title and interest of GMAC in, to and
under the Eligible Receivables thereunder and the related
Vehicle Collateral Security, whether then existing or
thereafter created, and the proceeds thereof, enforceable
against creditors of and purchasers from GMAC. To the extent
such filings are required therefor, upon the filing of the
financing statements described in Section 7.02(a) (and, in the
case of Eligible Receivables hereafter created in the Accounts
in the Pool of Accounts and the proceeds thereof, upon the
creation thereof) the Purchaser shall have a first priority
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<PAGE>20
perfected ownership interest in such property, except for
Liens permitted under Section 4.04(a). Except as otherwise
provided in the Trust Sale and Servicing Agreement or this
Agreement, neither General Motors, GMAC nor any Person
claiming through or under General Motors or GMAC has any claim
to or interest in the Trust Estate.
(b) SURVIVAL; NOTICE OF BREACH. The representations and
warranties set forth in this Section 4.02 shall survive the
transfer and assignment of the Receivables and related items to the
Purchaser hereunder and the subsequent assignment and transfer of
its interests therein to the Issuer pursuant to the Trust Sale and
Servicing Agreement. Upon discovery by GMAC or the Purchaser of a
breach of any of the foregoing representations and warranties, the
party discovering such breach shall give prompt written notice to
the other party.
(c) REPURCHASE. If (i) the Purchaser is required to
purchase Receivables and related Collateral Security pursuant to
Section 3.1(c) of the Trust Sale and Servicing Agreement and (ii)
the condition giving rise to such purchase obligation shall also
constitute a breach of a representation or warranty pursuant to
Section 4.02(a), GMAC shall repurchase such Receivables and such
Collateral Security and shall pay to the Purchaser, prior to the
time the Purchaser is required to pay such amount pursuant to the
Trust Sale and Servicing Agreement, an amount equal to the
Reassignment Amount.
(d) SOLE REMEDY. The obligation of GMAC to purchase
such Receivables and such Collateral Security pursuant to this
Section 4.02 shall constitute the sole remedy available to the
Purchaser and to any Interested Party against GMAC respecting the
event giving rise to such obligation.
SECTION 4.03. REPRESENTATIONS AND WARRANTIES OF THE
PURCHASER. The Purchaser hereby represents and warrants to GMAC as
of each Closing Date that:
(a) ORGANIZATION AND GOOD STANDING. The Purchaser
has been duly organized and is validly existing as a
corporation in good standing under the laws of the State of
Delaware, with power and authority to own its properties and
to conduct its business as such properties are presently owned
and such business is presently conducted, and had at all
relevant times, and now has, power, authority and legal right
to acquire and own the Eligible Receivables arising in the
Accounts in the Pool of Accounts and the Collateral Security
related thereto;
(b) DUE QUALIFICATION. The Purchaser is duly
qualified to do business and, where necessary, is in good
standing as a foreign corporation (or is exempt from such
requirement) and has obtained all necessary licenses and
approvals in all jurisdictions in which the ownership or lease
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<PAGE>21
of property or the conduct of its business requires such
qualification, except where the failure to so qualify or
obtain licenses or approvals would not have a material adverse
effect on its ability to perform its obligations under this
Agreement;
(c) POWER AND AUTHORITY. The Purchaser has the power
and authority to execute and deliver this Agreement, to carry
out its terms and to consummate the transactions contemplated
herein, and the execution, delivery and performance of this
Agreement and the consummation of the transactions
contemplated herein have been duly authorized by the Purchaser
by all necessary corporate action on the part of the
Purchaser;
(d) NO VIOLATION. The execution of this Agreement
and the consummation of the transactions contemplated by this
Agreement by the Purchaser and the fulfillment of the terms of
this Agreement by the Purchaser 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) a default
under, the certificate of incorporation or by-laws of the
Purchaser, or any indenture, agreement, mortgage, deed of
trust or other instrument to which the Purchaser is a party or
by which it is bound, 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 pursuant to the Basic Documents),
or violate any law or, to the best of the Purchaser's
knowledge, any order, rule or regulation applicable to the
Purchaser of any Governmental Authority having jurisdiction
over the Purchaser or any of its properties, except where any
such conflict or violation would not have a material adverse
effect on its ability to perform its obligations with respect
to GMAC or any Interested Party under this Agreement or the
Trust Sale and Servicing Agreement;
(e) NO PROCEEDINGS. To the Purchaser's knowledge,
there are no Proceedings or investigations pending, or
threatened, against the Purchaser before any Governmental
Authority having jurisdiction over the Purchaser or its
properties (i) asserting the invalidity of this Agreement,
(ii) seeking to prevent the execution of this Agreement or the
consummation of any of the transactions contemplated by this
Agreement or (iii) seeking any determination or ruling that
might materially and adversely affect the performance by the
Purchaser of its obligations under, or the validity or
enforceability of, this Agreement; and
(f) BINDING OBLIGATION. This Agreement
constitutes a legal, valid and binding obligation of the
Purchaser, enforceable against the Purchaser in accordance
with its terms, except as such enforceability may be limited
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<PAGE>22
by applicable bankruptcy, insolvency, reorganization, moratorium or
other similar laws now or hereafter in effect affecting the
enforcement of creditors' rights in general and by general
principles or equity, regardless of whether such enforceability is
considered in a proceeding in equity or at law.
SECTION 4.04. COVENANTS OF GMAC. GMAC hereby covenants
that:
(a) NEGATIVE PLEDGE. Except for the conveyances
hereunder and under the Trust Sale and Servicing Agreement and the
pledge of the Trust Estate to the Indenture Trustee under the
Indenture and as provided in Section 6.03, GMAC shall not sell,
pledge, assign or transfer to any other Person, or grant, create,
incur, assume or suffer to exist, any Lien on any Eligible
Receivable in any Account in the Pool of Accounts (and any related
Vehicle Collateral Security), whether now existing or hereafter
created, or any interest therein, and GMAC shall defend the right,
title and interest of the Purchaser and any Interested Party in, to
and under such property, whether now existing or hereafter created,
against all claims of third parties claiming through or under GMAC.
GMAC shall notify the Purchaser and the Issuer promptly after
becoming aware of any Lien on any such property other than the
conveyances hereunder or under the Trust Sale and Servicing
Agreement or the Indenture. Nothing herein shall prohibit GMAC
from granting, creating, incurring or suffering to exist any Lien
on all or any portion of the Retained Property.
(b) DELIVERY OF COLLECTIONS. All payments received by
GMAC from or on behalf of a Dealer in respect of Receivables in
any Accounts in the Pool of Accounts or any Collateral Security
(except as contemplated in Section 6.03 with respect to any
property constituting Common Collateral that is not Vehicle
Collateral Security in connection with any Other Indebtedness)
shall be received by GMAC in its capacity as Servicer, unless GMAC
is no longer the Servicer, in which case GMAC shall deliver all
such payments to the Servicer as soon as practicable after receipt
thereof, but in no event later than two Business Days after receipt
thereof.
(c) COMPLIANCE WITH REQUIREMENTS OF LAW. GMAC shall
comply in all material respects with all Requirements of Law
applicable to GMAC, except where any such failure to comply would
not have a material adverse effect on its ability to perform its
obligations under this Agreement.
(d) NO PETITION. Neither the Servicer nor GMAC shall
at any time institute against the Purchaser any bankruptcy,
reorganization, arrangement, insolvency or liquidation proceedings,
or other proceedings under any United States Federal or state
bankruptcy or similar law.
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<PAGE>23
ARTICLE V
CERTAIN MATTERS RELATING TO GMAC
SECTION 5.01. MERGER OR CONSOLIDATION OF, OR ASSUMPTION
OF THE OBLIGATIONS OF, GMAC.
(a) Notwithstanding anything to the contrary in this
Agreement, any Person (i) into which GMAC may be merged or
consolidated, (ii) resulting from any merger, conversion or
consolidation to which GMAC shall be a party, (iii) succeeding to
the business of GMAC or (iv) more than 50% of the voting interests
of which is owned, directly or indirectly, by General Motors and
which is otherwise originating receivables, which Person in any of
the foregoing cases (other than GMAC as the surviving entity of
such merger or consolidation) executes an agreement of assumption
to perform every obligation of GMAC, as seller, under this
Agreement and the Trust Sale and Servicing Agreement, shall be the
successor to GMAC under this Agreement, as seller, without the
execution or filing of any document or any further act on the part
of any of the parties to this Agreement or the Trust Sale and
Servicing Agreement, anything in this Agreement to the contrary
notwithstanding.
(b) GMAC shall provide notice of any merger, consolida-
tion or succession pursuant to this Section 5.01 to the Rating
Agencies.
SECTION 5.02. GMAC INDEMNIFICATION OF THE PURCHASER.
GMAC shall indemnify the Purchaser for any liability as a result of
the failure of an Eligible Receivable sold hereunder to be
originated in compliance with all Requirements of Law. This
indemnity obligation shall be in addition to any obligation that
GMAC may otherwise have.
SECTION 5.03. GMAC ACKNOWLEDGMENT OF TRANSFERS TO THE
ISSUER. By its execution of the Trust Sale and Servicing
Agreement, GMAC acknowledges that the Purchaser shall, pursuant to
the Trust Sale and Servicing Agreement, transfer the Receivables
purchased hereunder and related Collateral Security to the Issuer
and assign its rights associated therewith under this Agreement to
the Issuer, subject to the terms and conditions of the Trust Sale
and Servicing Agreement, and that the Issuer shall in turn further
pledge, assign or transfer its rights in such property and this
Agreement to the Indenture Trustee under the Indenture. GMAC
further acknowledges that the Purchaser shall assign its rights
under the Custodian Agreement to the Issuer.
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<PAGE>24
ARTICLE VI
ADDITIONAL AGREEMENTS
SECTION 6.01. ADDITIONAL OBLIGATIONS OF GMAC AND THE
PURCHASER.
(a) SUPPLEMENTAL PRINCIPAL ALLOCATIONS. On or before
the Business Day prior to each Distribution Date for the Wind Down
Period or an Early Amortization Period, GMAC shall deposit into the
Collection Account, on behalf of the Purchaser, an amount equal to
the Supplemental Principal Allocation for such Distribution Date.
Such amount shall be recorded as an advance under the Intercompany
Advance Agreement and shall bear interest and be payable as
provided therein.
(b) REMOVED ACCOUNTS. With respect to each Removed
Account, if and to the extent that any related Receivable held by
the Trust on the related Removal Commencement Date (determined
without giving effect to the special allocation of Principal
Collections pursuant to Section 2.8(c) or Section 2.9(b), as
applicable, of the Trust Sale and Servicing Agreement) is charged-
off as uncollectible at any time following the related Removal
Date, the Purchaser shall pay the amount so charged-off to GMAC.
SECTION 6.02. EFFECT OF INVOLUNTARY CASE INVOLVING GMAC.
(a) SUSPENSION OF PURCHASES. The Purchaser shall
suspend the purchase (and GMAC shall suspend the sale) of
Receivables hereunder if either party shall receive notice at its
principal corporate office that GMAC has become an involuntary
party to (or has been made the subject of) any proceeding provided
for by any insolvency, readjustment of debt, marshalling of assets
and liabilities or similar proceedings of or relating to GMAC or
relating to all or substantially all of its property (an "INVOLUN-
TARY CASE").
(b) RESUMPTION OF PURCHASES. Notwithstanding any
cessation or suspension of purchases pursuant to Section 6.02(a),
if GMAC or the Purchaser has obtained an order from the court
having jurisdiction over an Involuntary Case approving the continu-
ation of the sale of Receivables by GMAC to the Purchaser and/or
approving the sale of Receivables originating in the Accounts in
the Pool of Accounts since the date of the suspension of such sales
on the same terms (including Section 6.03 hereof) as, or on terms
that do not have a material adverse effect on Securityholders as
compared to, the terms in effect prior to the commencement of such
Involuntary Case, and further providing that the Purchaser and any
of its transferees (including the Issuer) may rely on such order
for the validity and nonavoidance of such transfer (the "ORDER"),
the Purchaser may resume the purchase (and GMAC may resume the
sale) of Receivables pursuant to the terms hereof; PROVIDED,
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<PAGE>25
HOWEVER, that so long as such Involuntary Case shall continue,
notwithstanding anything in this Agreement to the contrary, the
purchase price of such Receivables (which shall not be less than
reasonably equivalent value therefor or greater than the principal
balance thereof) shall be paid by the Purchaser to GMAC in cash not
later than the same Business Day of any such sale, and such
Receivables shall be considered transferred to the Purchaser only
to the extent that the purchase price therefor has been paid in
cash on the same Business Day.
(c) CESSATION OF PURCHASES. If an Order is obtained but
subsequently is reversed or rescinded or expires, the Purchaser
shall immediately cease to purchase (and GMAC shall immediately
cease to sell) Receivables hereunder. Notwithstanding anything
contained in Section 6.02(b), if an Involuntary Case has not been
dismissed by the first Business Day following the 60 day period
beginning on the day on which notice of an Involuntary Case was
received by either party, whether or not an Order was obtained, the
Purchaser shall not thereafter purchase Receivables from GMAC
hereunder and GMAC shall not thereafter designate Additional
Accounts for transfer to the Purchaser or sell Receivables hereun-
der.
SECTION 6.03. INTERCREDITOR AGREEMENTS.
(a) COMMON COLLATERAL. In connection with loans or
advances made or to be made by GMAC to a Dealer from time to time
other than pursuant to an Account (collectively, "OTHER INDEBTED-
NESS"), GMAC may have a security interest in property constituting
Collateral Security (the "COMMON COLLATERAL").
(b) AGREEMENTS OF GMAC WITH RESPECT TO COMMON
COLLATERAL. GMAC agrees that with respect to the Receivables of
each Dealer:
(i) GMAC's security interest in any Common
Collateral that is Vehicle Collateral Security (and the
proceeds thereof) in connection with any Other Indebtedness is
subordinate to the security interest therein in connection
with such Receivables and assigned to the Purchaser hereunder;
(ii) GMAC shall not apply the proceeds of any such
Common Collateral that is Vehicle Collateral Security in
connection with any Other Indebtedness in any manner that is
materially adverse to the Purchaser or the Issuer and the
Securityholders until all required payments in respect of such
Receivable have been made; and
(iii) in realizing upon any such Common Collateral
that is Vehicle Collateral Security in connection with any
such Receivables, neither the Purchaser nor the Issuer (nor
the Servicer on behalf of either) shall be obligated to
protect or preserve the rights of GMAC in such Common Collat-
eral.
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<PAGE>26
(c) AGREEMENTS OF THE PURCHASER WITH RESPECT TO COMMON
COLLATERAL. The Purchaser agrees that with respect to the
Receivables of each Dealer:
(i) the Purchaser's security interest in any
Common Collateral that is not Vehicle Collateral Security (and
the proceeds thereof) in connection with such Receivables
assigned to the Purchaser hereunder is subordinate to the
security interest therein in connection with any Other
Indebtedness;
(ii) the Purchaser (or the Servicer on its behalf)
shall not apply the proceeds of any such Common Collateral
that is not Vehicle Collateral Security in connection with any
such Receivables in any manner that is materially adverse to
GMAC until all required payments in respect of such Other
Indebtedness have been made; and
(iii) in realizing upon any such Common Collateral
that is not Vehicle Collateral Security in connection with
such Other Indebtedness, GMAC shall not be obligated to
protect or preserve the rights of the Purchaser or the Issuer
in such Collateral Security.
(d) OBLIGATIONS OF ISSUER. The Trust Sale and Servicing
Agreement shall provide that the Issuer is subject to this Section
6.03.
(e) OBLIGATIONS OF ASSIGNEES AND TRANSFEREES. If, other
than pursuant hereto, GMAC in any manner assigns or transfers any
right or obligation with respect to any Other Indebtedness or any
property constituting Common Collateral, GMAC shall make such
assignment or transfer subject to the provisions of this Section
6.03 and shall require such assignee or transferee to acknowledge
that it takes such assignment or transfer subject to the provisions
of this Section 6.03 and to agree that it shall require the same
acknowledgment from any subsequent assignee or transferee.
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<PAGE>27
ARTICLE VII
MISCELLANEOUS PROVISIONS
SECTION 7.01. AMENDMENT. This Agreement may be amended
from time to time (subject to Section 10.1(g) of the Trust Sale and
Servicing Agreement) by a written amendment duly executed and
delivered by GMAC and the Purchaser.
SECTION 7.02. PROTECTION OF RIGHT, TITLE AND INTEREST
IN AND TO RECEIVABLES.
(a) GMAC or the Purchaser or both shall execute and file
such financing statements and cause to be executed and filed such
continuation statements or other statements, all in such manner and
in such places as may be required by law fully to evidence,
preserve, maintain and protect the interest of the Purchaser
hereunder in the Eligible Receivables arising in the Accounts in
the Pool of Accounts and the related Collateral Security and in the
proceeds thereof (including, without limitation, UCC-1 financing
statements on or prior to the Initial Closing Date). GMAC shall
deliver (or cause to be delivered) to the Purchaser file-stamped
copies of, or filing receipts for, any document filed as provided
above, as soon as available following such filing.
(b) Within 60 days after GMAC makes any change in its
name, identity or corporate structure that would make any financing
statement or continuation statement filed in accordance with
Section 7.02(a) seriously misleading within the meaning of Section
9-402(7) of the UCC, GMAC shall give the Purchaser notice of any
such change.
(c) GMAC shall give the Purchaser at least 60 days prior
written notice of any relocation of its principal executive office
if, as a result of such relocation, the applicable provisions of
the UCC would require the filing of any amendment of any previously
filed financing or continuation statement or of any new financing
statement. GMAC shall at all times maintain its principal
executive office within the United States of America.
(d) In connection with the sale and transfer hereunder
of the Receivables in the Accounts in the Pool of Accounts and the
related Collateral Security from GMAC to the Purchaser, GMAC shall,
at its own expense, on or prior to the Initial Closing Date, in the
case of the Initial Accounts, and on or prior to the applicable
Addition Date, in the case of Additional Accounts, (i) indicate in
its computer files that the Eligible Receivables in the Accounts in
the Pool of Accounts have been sold and transferred, and the
Collateral Security assigned, to the Purchaser pursuant to this
Agreement and that such property has been sold and transferred to
the Issuer pursuant to the Trust Sale and Servicing Agreement and
(ii) deliver to the Purchaser a true and complete list of all such
Accounts specifying for each such Account, as of the Initial Cut-
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<PAGE>28
Off Date, in the case of the Initial Accounts, and as of the
applicable Additional Cut-Off Date, in the case of Additional
Accounts, its account number and the outstanding principal balance
of Eligible Receivables in such Account. Such list, as
supplemented from time to time to reflect Additional Accounts,
Selected Accounts and Removed Accounts (including Accounts removed
as described in Section 2.05), shall be the Schedule of Accounts
and is hereby incorporated into and made a part of this Agreement.
(e) The Servicer shall furnish to the Purchaser at any
time upon request a list of all Accounts then included in the Pool
of Accounts, together with a reconciliation of such list to the
Schedule of Accounts as initially furnished pursuant to the Trust
Sale and Servicing Agreement and to each notice furnished before
such request indicating removal from or addition to the Accounts in
the Pool of Accounts.
SECTION 7.03. COSTS AND EXPENSES. GMAC agrees to pay
all reasonable out-of-pocket costs and expenses of the Purchaser,
including fees and expenses of counsel, in connection with the
perfection as against third parties of the Purchaser's right, title
and interest in, to and under the Receivables sold hereunder and
the enforcement of any obligation of GMAC hereunder.
SECTION 7.04. GOVERNING LAW. THIS AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW
YORK, WITHOUT REFERENCE TO THE PRINCIPLES OF CONFLICTS OF LAW
THEREOF OR OF ANY OTHER JURISDICTION, AND THE OBLIGATIONS, RIGHTS
AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN
ACCORDANCE WITH SUCH LAWS.
SECTION 7.05. NOTICES. All demands, notices and
communications under this Agreement shall be in writing, personally
delivered, sent by electronic facsimile (with a hard copy to follow
via first class mail) or mailed by certified mail, return receipt
requested, and shall be deemed to have been duly given upon receipt
(a) in the case of GMAC, at the following address: General Motors
Acceptance Corporation (to the attention of the individual
executing this Agreement on the signature page), 3044 West Grand
Boulevard, Detroit, Michigan 48202, (b) in the case of the
Purchaser, at the following address: Wholesale Auto Receivables
Corporation, Corporation Trust Center, 1209 Orange Street,
Wilmington, Delaware 19801, with a copy to the individual executing
this Agreement on the signature page hereto, Wholesale Auto
Receivables Corporation, 3044 West Grand Boulevard, Detroit,
Michigan 48202 and (c) in the case of any other Person identified
in Section 10.3 of the Trust Sale and Servicing Agreement, the
address described in such Section 10.3 or at such other address as
shall be designated by such party in a written notice to the other
parties.
SECTION 7.06. SEVERABILITY OF PROVISIONS. If any one
or more of the covenants, agreements, provisions or terms of this
Agreement shall for
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<PAGE>29
any reason whatsoever be held invalid, then such covenants,
agreements, provisions or terms shall be deemed enforceable to the
fullest extent permitted, and if not so permitted, shall be deemed
severable from the remaining covenants, agreements, provisions or
terms of this Agreement and shall in no way affect the validity or
enforceability of the other provisions of this Agreement or of any
Securities or rights of any Interested Parties.
SECTION 7.07. ASSIGNMENT. Notwithstanding anything to
the contrary contained herein, this Agreement may not be assigned
by GMAC without the prior written consent of the Purchaser and the
Issuer. The Purchaser may assign all or a portion of its rights,
remedies, powers and privileges under this Agreement to the Issuer
pursuant to the Trust Sale and Servicing Agreement.
SECTION 7.08. FURTHER ASSURANCES. GMAC and the
Purchaser agree to do and perform, from time to time, any and all
acts and to execute any and all further instruments required or
reasonably requested by the other more fully to effect the purposes
of this Agreement, including the execution of any financing
statements or continuation statements relating to the Receivables
for filing under the provisions of the Uniform Commercial Code of
any applicable jurisdiction and to evidence the repurchase of any
interest in any Receivable by GMAC or the Servicer.
SECTION 7.09. NO WAIVER; CUMULATIVE REMEDIES. No
failure or delay on the part of the Purchaser in exercising any
right, remedy, power or privilege under this Agreement shall
operate as a waiver thereof; nor shall any single or partial
exercise of any right, remedy, power or privilege under this
Agreement preclude any other or further exercise thereof or the
exercise of any other right, remedy, power or privilege. The
rights, remedies, powers and privileges herein provided are
cumulative and not exhaustive of any rights, remedies, powers and
privileges provided by law.
SECTION 7.10. COUNTERPARTS. This Agreement may be
executed in two or more counterparts (and by different parties on
separate counterparts), each of which shall be an original, but all
of which together shall constitute one and the same instrument.
SECTION 7.11. THIRD-PARTY BENEFICIARIES. This
Agreement shall inure to the benefit of and be binding upon the
parties hereto, the Interested Parties and their respective
successors and permitted assigns. Except as otherwise expressly
provided in this Agreement, no other Person shall have any right or
obligation hereunder.
SECTION 7.12. MERGER AND INTEGRATION. Except as
specifically stated otherwise herein, this Agreement sets forth the
entire understanding of the parties relating to the subject matter
hereof, and all prior understandings, written or oral, are
superseded by this Agreement. This Agreement may not be modified,
amended, waived, or supplemented except as provided herein.
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<PAGE>30
SECTION 7.13. CONFIDENTIAL INFORMATION. The Purchaser
agrees that it shall neither use nor disclose to any Person the
names and addresses of Dealers, except in connection with the
enforcement of the Purchaser's rights hereunder, under the Trust
Sale and Servicing Agreement, under the Receivables or as required
by law.
SECTION 7.14. HEADINGS. The headings herein are for
purposes of reference only and shall not otherwise affect the
meaning or interpretation of any provision hereof.
SECTION 7.15. TERMINATION. This Agreement (except for
Section 5.02) shall terminate immediately after the termination of
the Trust Sale and Servicing Agreement; provided, that if at the
time of the termination of the Trust Sale and Servicing Agreement,
the Purchaser has not made all payments to GMAC required to be made
under Section 6.01, this Agreement (except for Section 5.02) shall
not terminate until immediately after all such payments have been
made.
* * * *
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<PAGE>31
IN WITNESS WHEREOF, the parties hereby have caused this
Pooling and Servicing Agreement to be executed by their respective
officers thereunto duly authorized as of the date and year first
above written.
GENERAL MOTORS ACCEPTANCE CORPORATION,
Seller and Servicer
By: __________________________________
Name: J. B. Van Orman, Jr.
Title: Vice President
WHOLESALE AUTO RECEIVABLES CORPORATION,
Purchaser
By: __________________________________
Name: C. J. Rutkowski
Title: Vice President
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<PAGE>32
EXHIBIT A
LIST OF LOCATIONS OF THE
SCHEDULE OF ACCOUNTS
The Schedule of Accounts is
on file at the offices of:
1. The Indenture Trustee
2. The Owner Trustee
3. General Motors Acceptance Corporation
4. Wholesale Auto Receivables Corporation
<PAGE>33
EXHIBIT B
FORM OF ASSIGNMENT FOR INITIAL CLOSING DATE
For value received, in accordance with the Pooling and
Servicing Agreement, dated as of January 25, 1994 (the "POOLING AND
SERVICING AGREEMENT"), between General Motors Acceptance Corpora-
tion, a corporation incorporated under the New York Banking Law
relating to investment companies ("GMAC"), and Wholesale Auto
Receivables Corporation, a Delaware corporation (the "PURCHASER"),
GMAC does hereby sell, assign, transfer and otherwise convey unto
the Purchaser, without recourse, all of its right, title and
interest in, to and under all of the Eligible Receivables existing
in the Accounts listed in the Schedule of Accounts as of the close
of business on the Initial Cut-Off Date and, so long as each such
Account is included in the Pool of Accounts, all Eligible
Receivables created or deemed created thereunder on each
Receivables Purchase Date and all monies due or to become due
thereon after the Initial Cut-Off Date or such Receivables Purchase
Date, as appropriate, all Collateral Security with respect thereto
and all amounts received with respect thereto and all proceeds
thereof (including "proceeds" as defined in Section 9-306 of the
UCC and Recoveries).
The foregoing sale, transfer, assignment and conveyance
and any sales, transfers, assignments and conveyances subsequent to
the date hereof do not constitute, and are not intended to result
in, the creation or an assumption by the Purchaser of any
obligation of the Servicer, GMAC (if GMAC is not the Servicer),
General Motors or any other Person in connection with the Accounts,
the Receivables or under any agreement or instrument relating
thereto, including any obligation to any Dealers.
It is the intention of GMAC and the Purchaser that the
transfers and assignments contemplated by this Assignment,
including transfers and assignments subsequent to the date hereof,
shall constitute a sale of the property described herein and in the
Pooling and Servicing Agreement from GMAC to the Purchaser and the
beneficial interest in and title to such property shall not be part
of GMAC's estate in the event of the filing of a bankruptcy
petition by or against GMAC under any bankruptcy law.
This Assignment is made pursuant to and upon the
representations, warranties and agreements on the part of the
undersigned contained in the Pooling and Servicing Agreement and is
to be governed by the Pooling and Servicing Agreement.
Capitalized terms used herein and not otherwise defined
shall have the meaning assigned to them in the Pooling and
Servicing Agreement.
* * * * *<PAGE>
<PAGE>34
IN WITNESS WHEREOF, the undersigned has caused this
Assignment to be duly executed as of January 25, 1994.
GENERAL MOTORS ACCEPTANCE CORPORATION
By: _________________________________
Name: J. B. Van Orman, Jr.
Title: Vice President
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<PAGE>35
EXHIBIT C
FORM OF ASSIGNMENT FOR EACH ADDITION DATE
For value received, in accordance with the Pooling and
Servicing Agreement, dated as of January 25, 1994 (the "POOLING AND
SERVICING AGREEMENT"), between General Motors Acceptance Corpora-
tion, a corporation incorporated under the New York Banking Law
relating to investment companies ("GMAC"), and Wholesale Auto
Receivables Corporation, a Delaware corporation (the "PURCHASER"),
GMAC does hereby sell, assign, transfer and otherwise convey unto
the Purchaser, without recourse, with respect to the Additional
Accounts to which this Assignment relates, all of its right, title
and interest in, to and under all of the Eligible Receivables as of
the close of business on the related Additional Cut-Off Date in
such Additional Accounts and, so long as each such Account is
included in the Pool of Accounts, all Eligible Receivables created
or deemed created thereunder on each Receivables Purchase Date and
all monies due or to become due thereon after such Additional Cut-
Off Date or such Receivables Purchase Date, as appropriate, all
Collateral Security with respect thereto and all amounts received
with respect thereto and all proceeds thereof (including "proceeds"
as defined in Section 9-306 of the UCC and Recoveries).
The foregoing sale, transfer, assignment and conveyance
and any sales, transfers, assignments and conveyances subsequent to
the date hereof do not constitute, and are not intended to result
in, the creation or an assumption by the Purchaser of any
obligation of the Servicer, GMAC (if GMAC is not the Servicer),
General Motors or any other Person in connection with the Accounts,
the Receivables or under any agreement or instrument relating
thereto, including any obligation to any Dealers.
It is the intention of GMAC and the Purchaser that the
transfers and assignments contemplated by this Assignment,
including transfers and assignments subsequent to the date hereof,
shall constitute a sale of the property described herein and in the
Pooling and Servicing Agreement from GMAC to the Purchaser and the
beneficial interest in and title to such property shall not be part
of GMAC's estate in the event of the filing of a bankruptcy
petition by or against GMAC under any bankruptcy law.
This Assignment is made pursuant to and upon the
representations, warranties and agreements on the part of the
undersigned contained in the Pooling and Servicing Agreement and is
to be governed by the Pooling and Servicing Agreement.
Capitalized terms used herein and not otherwise defined
shall have the meaning assigned to them in the Pooling and
Servicing Agreement.
* * * * *<PAGE>
<PAGE>36
IN WITNESS WHEREOF, the undersigned has caused this
Assignment to be duly executed as of _________, 199_.
GENERAL MOTORS ACCEPTANCE CORPORATION
By: _________________________________
Name:
Title:
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<PAGE>37
EXHIBIT D
FORM OF OPINION OF COUNSEL
WITH RESPECT TO ADDITION OF ACCOUNTS
PROVISION TO BE INCLUDED IN OPINION OF COUNSEL
DELIVERED PURSUANT TO SECTION 2.03(B)(VIII)
OF THE POOLING AND SERVICING AGREEMENT
The opinion set forth below may be subject to standard
qualifications, assumptions, limitations and exceptions.
The Assignment delivered on the Addition Date
has been duly authorized, executed and delivered by
GMAC, and constitutes the valid and legally binding
obligation of GMAC, enforceable against GMAC in
accordance with its terms.
<PAGE>
<PAGE>38
APPENDIX A
For ease of reference, capitalized terms defined herein
have been consolidated with and are contained in Appendix A to the
Trust Sale and Servicing Agreement of even date herewith among
GMAC, Wholesale Auto Receivables Corporation and Superior Wholesale
Inventory Financing Trust I.
EXHIBIT 99.2
TRUST SALE AND SERVICING AGREEMENT
AMONG
GENERAL MOTORS ACCEPTANCE CORPORATION
SERVICER
WHOLESALE AUTO RECEIVABLES CORPORATION
SELLER
AND
SUPERIOR WHOLESALE INVENTORY FINANCING TRUST I
ISSUER
DATED AS OF JANUARY 25, 1994
<PAGE>
<PAGE>2
TABLE OF CONTENTS
PAGE
ARTICLE I
CERTAIN DEFINITIONS
SECTION 1.1 Definitions. . . . . . . . . . . . . . . . . . . . . 1
ARTICLE II
CONVEYANCE OF ELIGIBLE RECEIVABLES;
ISSUANCE OF INITIAL SECURITIES
SECTION 2.1 Conveyance of Eligible Receivables . . . . . . . . . 2
SECTION 2.2 Custody of Documentation . . . . . . . . . . . . . . 3
SECTION 2.3 Acceptance by the Issuer . . . . . . . . . . . . . . 3
SECTION 2.4 Representations and Warranties under the
Pooling and Servicing Agreement. . . . . . . . . . . 4
SECTION 2.5 Repurchase of Receivables Upon Breach of
Warranty; Administrative Receivables . . . . . . . . 4
SECTION 2.6 Covenants. . . . . . . . . . . . . . . . . . . . . . 6
SECTION 2.7 Addition of Accounts.. . . . . . . . . . . . . . . . 7
SECTION 2.8 Optional Removal of Accounts . . . . . . . . . . . . 8
SECTION 2.9 Removal of Ineligible Accounts.. . . . . . . . . . . 9
ARTICLE III
THE SELLER
SECTION 3.1 Representations of the Seller. . . . . . . . . . . . 10
SECTION 3.2 Liability of Seller. . . . . . . . . . . . . . . . . 14
SECTION 3.3 Merger or Consolidation of, or Assumption
of the Obligations of, Seller; Amendment
of Certificate of Incorporation. . . . . . . . . . . 14
SECTION 3.4 Limitation on Liability of Seller and
Others . . . . . . . . . . . . . . . . . . . . . . . 15
SECTION 3.5 Seller May Own Notes or Certificates . . . . . . . . 15
ARTICLE IV
SERVICER'S COVENANTS; DISTRIBUTIONS; RESERVE FUND;
STATEMENTS TO SECURITYHOLDERS
SECTION 4.1 Annual Statement as to Compliance; Notice
of Servicing Default . . . . . . . . . . . . . . . . 16
SECTION 4.2 Annual Independent Accountants' Report . . . . . . . 16
SECTION 4.3 Access to Certain Documentation and
Information Regarding Accounts and
Receivables. . . . . . . . . . . . . . . . . . . . . 17
SECTION 4.4 Enforcement of Receivables . . . . . . . . . . . . . 17
SECTION 4.5 Allocations; Distributions.. . . . . . . . . . . . . 18
SECTION 4.6 Reserve Fund.. . . . . . . . . . . . . . . . . . . . 23
SECTION 4.7 Net Deposits . . . . . . . . . . . . . . . . . . . . 24
SECTION 4.8 Statements to Securityholders. . . . . . . . . . . . 25
SECTION 4.9 New Issuances; Changes in Specified
Maximum Revolver Balance . . . . . . . . . . . . . . 26
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<PAGE>3
ARTICLE V
SERVICING FEE
SECTION 5.1 Servicing Compensation.. . . . . . . . . . . . . . . 28
ARTICLE VI
SECURITYHOLDER ACCOUNTS; COLLECTIONS,
DEPOSITS AND INVESTMENTS; ADVANCES
SECTION 6.1 Establishment of Accounts. . . . . . . . . . . . . . 28
SECTION 6.2 Collections. . . . . . . . . . . . . . . . . . . . . 32
ARTICLE VII
LIABILITIES OF SERVICER AND OTHERS
SECTION 7.1 Liability of Servicer; Indemnities . . . . . . . . . 33
SECTION 7.2 Merger or Consolidation of, or Assumption
of the Obligations of, the Servicer. . . . . . . . . 34
SECTION 7.3 Limitation on Liability of Servicer and
Others . . . . . . . . . . . . . . . . . . . . . . . 35
SECTION 7.4 Delegation of Duties . . . . . . . . . . . . . . . . 36
SECTION 7.5 Servicer Not to Resign . . . . . . . . . . . . . . . 36
ARTICLE VIII
DEFAULT
SECTION 8.1 Servicing Defaults . . . . . . . . . . . . . . . . . 36
SECTION 8.2 Consequences of a Servicing Default. . . . . . . . . 38
SECTION 8.3 Indenture Trustee to Act; Appointment of
Successor. . . . . . . . . . . . . . . . . . . . . . 39
SECTION 8.4 Notification to Securityholders. . . . . . . . . . . 40
SECTION 8.5 Waiver of Past Defaults. . . . . . . . . . . . . . . 40
SECTION 8.6 Repayment of Advances. . . . . . . . . . . . . . . . 41
ARTICLE IX
EARLY AMORTIZATION EVENTS; TERMINATION
SECTION 9.1 Early Amortization Events. . . . . . . . . . . . . . 41
SECTION 9.2 Insolvency Events. . . . . . . . . . . . . . . . . . 44
SECTION 9.3 Optional Purchase by the Servicer. . . . . . . . . . 44
SECTION 9.4 Termination. . . . . . . . . . . . . . . . . . . . . 45
ARTICLE X
MISCELLANEOUS PROVISIONS
SECTION 10.1 Amendment. . . . . . . . . . . . . . . . . . . . . . 45
SECTION 10.2 Protection of Title to the Owner Trust
Estate . . . . . . . . . . . . . . . . . . . . . . . 47
SECTION 10.3 Notices. . . . . . . . . . . . . . . . . . . . . . . 49
SECTION 10.4 GOVERNING LAW. . . . . . . . . . . . . . . . . . . . 50
SECTION 10.5 Severability of Provisions . . . . . . . . . . . . . 50
SECTION 10.6 Assignment . . . . . . . . . . . . . . . . . . . . . 50
SECTION 10.7 Third-Party Beneficiaries. . . . . . . . . . . . . . 50
SECTION 10.8 Counterparts . . . . . . . . . . . . . . . . . . . . 51
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SECTION 10.9 Headings . . . . . . . . . . . . . . . . . . . . . . 51
SECTION 10.10 Assignment to Indenture Trustee. . . . . . . . . . . 51
SECTION 10.11 No Petition Covenants. . . . . . . . . . . . . . . . 51
SECTION 10.12 Further Assurances . . . . . . . . . . . . . . . . . 51
SECTION 10.13 No Waiver; Cumulative Remedies . . . . . . . . . . . 51
SECTION 10.14 Merger and Integration . . . . . . . . . . . . . . . 52
SECTION 10.15 Limitation of Liability of Indenture Trustee
and Owner Trustee. . . . . . . . . . . . . . . . . . 52
EXHIBIT A Form of Assignment for the Initial Closing Date
EXHIBIT B Locations of Schedule of Accounts
EXHIBIT C Form of Assignment for Each Addition Date
EXHIBIT D Form of Opinion of Counsel With Respect to Addition
of Accounts
APPENDIX A Definitions
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<PAGE>5
THIS TRUST SALE AND SERVICING AGREEMENT is made as of
January 25, 1994, by and among GENERAL MOTORS ACCEPTANCE
CORPORATION, a corporation incorporated under the New York Banking
Law relating to investment companies ("GMAC") and in its capacity
as Servicer under the Pooling and Servicing Agreement and hereunder
(the "SERVICER"), WHOLESALE AUTO RECEIVABLES CORPORATION, a
Delaware corporation (the "SELLER"), and SUPERIOR WHOLESALE
INVENTORY FINANCING TRUST I, a Delaware business trust (the
"ISSUER").
WHEREAS, on the Initial Closing Date, GMAC has sold the
Eligible Receivables in the Accounts in the Pool of Accounts to the
Seller and, as Servicer, has agreed to service all Receivables in
such Accounts pursuant to the Pooling and Servicing Agreement;
WHEREAS, the Seller desires to sell the Eligible Receiv-
ables in the Accounts in the Pool of Accounts to the Issuer on the
Initial Closing Date in exchange for the Initial Securities pursu-
ant to the terms of this Agreement and to sell to the Issuer any
Eligible Receivables thereafter arising in such Accounts, and the
Issuer desires to purchase all such Eligible Receivables;
WHEREAS, the Servicer desires to perform the servicing
obligations set forth herein for and in consideration of the fees
and other benefits set forth in this Agreement and in the Pooling
and Servicing Agreement; and
WHEREAS, the Seller and the Issuer wish to set forth the
terms pursuant to which the Eligible Receivables in the Accounts in
the Pool of Accounts and all related Collateral Security are to be
sold by the Seller to the Issuer on the Initial Closing Date and
thereafter and all Receivables in such Accounts serviced by the
Servicer.
NOW, THEREFORE, in consideration of the premises and the
mutual covenants herein contained, the parties hereto agree as
follows:
ARTICLE I
CERTAIN DEFINITIONS
SECTION 1.1 DEFINITIONS. Certain capitalized terms
used in the above recitals and in this Agreement are defined in and
shall have the respective meanings assigned to them in APPENDIX A
to this Agreement. All references herein to "the Agreement" or
"this Agreement" are to this Trust Sale and Servicing Agreement as
it may be amended, supplemented or modified from time to time, and
all references herein to Articles, Sections and subsections are to
Articles, Sections or subsections of this Agreement unless
otherwise specified.
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<PAGE>6
ARTICLE II
CONVEYANCE OF ELIGIBLE RECEIVABLES;
ISSUANCE OF INITIAL SECURITIES
SECTION 2.1 CONVEYANCE OF ELIGIBLE RECEIVABLES.
(a) In consideration of the Issuer's delivery on the
Initial Closing Date of the Series 1994-A Notes, the Series 1994-
RN1 Revolving Notes and Class A Certificates with an initial
Certificate Balance of $132,000,000 to, or upon the order of, the
Seller, the Seller does hereby enter into this Agreement and agree
to fulfill all of its obligations hereunder and does hereby sell,
transfer, assign and otherwise convey to the Issuer, without
recourse (except as expressly provided herein), pursuant to an
assignment in the form of EXHIBIT A hereto, on the Initial Closing
Date (i) all of its right, title and interest in, to and under all
of the Eligible Receivables existing in the Accounts listed on the
Schedule of Accounts (which is on file at the locations set forth
in EXHIBIT B) as of the close of business on the Initial Cut-Off
Date and all monies due or to become due thereon after the Initial
Cut-Off Date, all Collateral Security with respect thereto and all
amounts received with respect thereto, (ii) all of its right, title
and interest in, to and under Article IV and Sections 3.04(c) and
6.03 of the Pooling and Servicing Agreement with respect to such
Receivables, including the right of the Seller to cause GMAC or the
Servicer to repurchase Receivables under certain circumstances,
(iii) all of its right, title and interest in, to and under the
Custodian Agreement with respect to such Receivables and (iv) all
of its right, title and interest in all proceeds of the foregoing
(including "proceeds" as defined in Section 9-306 of the UCC and
Recoveries).
(b) As of each Receivables Purchase Date, the Seller
does hereby sell, transfer, assign and otherwise convey to the
Trust, without recourse (except as expressly provided herein),
(i) all of its right, title and interest in, to and under all
Eligible Receivables created or deemed created in the Accounts in
the Pool of Accounts on such date and all monies due or to become
due thereon after such Receivables Purchase Date, all Collateral
Security with respect thereto and all amounts received with respect
thereto, (ii) all of its right, title and interest in, to and under
Article IV and Sections 3.04(c) and 6.03 of the Pooling and
Servicing Agreement, including the right of the Seller to cause
GMAC or the Servicer to repurchase Receivables under certain
circumstances, (iii) all of its right, title and interest in, to
and under the Custodian Agreement with respect to such Receivables
and (iv) all of its right, title and interest in all proceeds of
the foregoing (including "proceeds" as defined in Section 9-306 of
the UCC and Recoveries). The Trust shall pay for the property
purchased on any Receivables Purchase Date as set forth in Section
4.5(d)(i), with the purchase price equal to the principal balance
of the Receivables so purchased on such date.
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<PAGE>7
(c) It is the intention of the Seller and the Issuer
that the transfers and assignments contemplated by this Agreement
shall constitute sales of the property described in Sections 2.1(a)
and (b) from the Seller to the Issuer and that the beneficial
interest in and title to such property shall not be part of the
Seller's estate in the event of the filing of a bankruptcy petition
by or against the Seller under any Insolvency Law. Notwithstanding
the foregoing, in the event a court of competent jurisdiction
determines that such transfers and assignments did not constitute
such sales or that such beneficial interest is a part of the
Seller's estate, then the Seller shall be deemed to have granted to
the Issuer a first priority perfected security interest in all of
the Seller's right, title and interest in, to and under such
property, and the Seller hereby grants such security interest. For
purposes of such grant, this Agreement shall constitute a security
agreement under the UCC. The foregoing sales, transfers,
assignments and conveyances and any subsequent sales, transfers,
assignments and conveyances do not constitute, and are not intended
to result in, the creation or an assumption by the Issuer of any
obligation of the Seller or any other Person in connection with the
Receivables described above or under any agreement or instrument
relating thereto, including any obligation to any Dealers.
(d) Within two Business Days after the Initial Closing
Date, GMAC, as directed by the Seller in Section 3.06 of the
Pooling and Servicing Agreement, shall cause to be deposited into
the Collection Account the collections with respect to the
Receivables described in Section 3.06 of the Pooling and Servicing
Agreement.
SECTION 2.2 CUSTODY OF DOCUMENTATION. In connection
with the sale, transfer, assignment and conveyance of the
Receivables in the Accounts in the Pool of Accounts and related
Collateral Security to the Issuer hereunder, GMAC, as Custodian
under the Custodian Agreement, agrees to act as Custodian
thereunder for the benefit of the Issuer. The Issuer hereby
accepts and agrees to the terms and provisions of the Custodian
Agreement and designates GMAC as custodian with respect to the
documents and instruments (as more fully described in the Custodian
Agreement) associated with the Receivables related to the Accounts
in the Pool of Accounts.
SECTION 2.3 ACCEPTANCE BY THE ISSUER; OTHER
ACKNOWLEDGEMENTS.
(a) The Issuer hereby acknowledges its acceptance of all
right, title and interest previously held by the Seller to the
property, now existing and hereafter created, conveyed by the
Seller pursuant to Section 2.1, and declares that it shall hold
such consideration upon the trust set forth in the Trust Agreement
for the benefit of the Securityholders, subject to the terms and
conditions of the Indenture, the Trust Agreement and this
Agreement. The Issuer hereby agrees and accepts the appointment
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<PAGE>8
and authorization of GMAC as Servicer hereunder and under the
Pooling and Servicing Agreement. The Issuer further acknowledges
that, prior to or simultaneously with the execution and delivery of
this Agreement, the Seller delivered to the Trustee the Schedule of
Accounts. The parties agree that the rights, duties and
obligations of GMAC as Servicer under the Pooling and Servicing
Agreement are subject to the provisions hereof, including Sections
7.2, 7.4, 7.5 and 10.2 and Article VIII. The Trust and the
Indenture Trustee hereby confirm the authorization and empowerment
of the Servicer under Section 3.02 of the Pooling and Servicing
Agreement.
(b) The Issuer acknowledges and agrees to the provisions
of Section 6.03 of the Pooling and Servicing Agreement relating to
Common Collateral and accepts the interests and rights in
Collateral Security sold and assigned to it hereunder subject to
the terms and conditions set forth in such Section 6.03.
SECTION 2.4 REPRESENTATIONS AND WARRANTIES UNDER THE
POOLING AND SERVICING AGREEMENT. The Seller hereby represents and
warrants to the Issuer that the Seller has taken no action which
would cause the representations and warranties of GMAC in Section
4.01(a) of the Pooling and Servicing Agreement to be false in any
material respect. The foregoing representation and warranty speaks
as of the Initial Cut-Off Date (as to Sections 4.01(a)(i) and
(ii)), as of the related Additional Cut-Off Date with respect to
each Additional Account (as to Section 4.01(a)(iii)) and as of the
related Receivables Purchase Date with respect to Receivables
purchased and sold after the Initial Closing Date (as to Section
4.01(a)(iv)), and shall survive the sales, transfers and
assignments under Section 2.1 to the Issuer and the pledge of the
Issuer's assets to the Indenture Trustee pursuant to the Indenture.
The Seller further acknowledges that the Issuer relies on the
representations and warranties of the Seller under this Agreement
and of GMAC under the Pooling and Servicing Agreement in accepting
the Receivables hereunder and delivering the Securities. The
Servicer acknowledges that the Issuer is relying on the
representations, warranties and covenants of the Servicer in
Section 3.04 of the Pooling and Servicing Agreement in acquiring
and holding Receivables and the related Collateral Security
hereunder and in issuing the Securities.
SECTION 2.5 REPURCHASE OF RECEIVABLES UPON BREACH OF
WARRANTY; ADMINISTRATIVE RECEIVABLES.
(a) Upon discovery by the Seller, the Servicer, the
Owner Trustee or the Indenture Trustee (i) of a breach of any of
the representations and warranties in Section 4.01(a) of the
Pooling and Servicing Agreement or in Section 2.4 or Section 3.1 of
this Agreement that materially and adversely affects the interests
of the Trust in any Receivable or (ii) that the payment of all or
any portion of the principal amount of any Receivable held by the
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<PAGE>9
Trust is deferred pursuant to DPP, WISP or any other instalment
sales program or similar arrangement, the party discovering such
breach shall give prompt written notice thereof to the others. No
later than the second Business Day following discovery or receipt
of notice of breach or deferral by the Seller and the Servicer,
unless and to the extent, in the case of breach, such breach shall
have been cured in all material respects, in the event of a breach
of the representations and warranties made by the Seller in Section
2.4 or Section 3.1(b), the Seller shall repurchase such Receivable,
or in the event of a breach of a representation and warranty under
Section 4.01(a) of the Pooling and Servicing Agreement or a
deferral, the Seller and the Servicer shall use reasonable efforts
to enforce the obligation of GMAC under Section 4.01(a) of the
Pooling and Servicing Agreement to repurchase such Receivable from
the Issuer on such date; PROVIDED, HOWEVER, that with respect to
any breach of a representation or warranty or a deferral that
affects less than the entire principal amount of any Receivable,
although the Warranty Payment shall be paid promptly as described
below, no repurchase and assignment shall be required until the
remaining principal amount of such Receivable is collected in full
or written off as uncollectible. The purchase price to be paid by
the Seller or GMAC shall be an amount equal to the principal amount
of such Receivable (in the case of a breach or a deferral affecting
less than the entire principal amount of a Receivable, to the
extent of the breach or deferral) plus all accrued and unpaid
interest thereon through the date of purchase (the "WARRANTY
PAYMENT") to the extent of such breach of deferral, a "Warranty
Receivable") and shall be deposited into the Collection Account on
such date of purchase. Without limiting the generality of the
foregoing, a Receivable shall not be an Eligible Receivable, and
thus shall be a Warranty Receivable and subject to repurchase, if
and to the extent that (A) the Servicer adjusts downward the
principal amount of such Receivable because of a rebate, refund,
credit adjustment or billing error to the related Dealer or (B)
such Receivable was credited in respect of a Vehicle which was
refunded or returned by the related Dealer. It is understood and
agreed that the obligation of GMAC or the Seller, as applicable, to
repurchase any Receivable as to which a breach of a representation
or warranty made in Section 2.4 or Section 3.1 hereof or Section
4.01(a) of the Pooling and Servicing Agreement has occurred and is
continuing or as to which any such deferral occurs, and the
obligation of the Seller and the Servicer to enforce GMAC's
obligation to repurchase such Receivable pursuant to the Pooling
and Servicing Agreement shall constitute the sole remedy against
the Seller, the Servicer or GMAC for such breach or deferral
available to the Issuer, the Securityholders, the Owner Trustee or
the Indenture Trustee.
(b) The Servicer also acknowledges its obligations to
repurchase from the Issuer Administrative Receivables pursuant to
Section 3.04(c) of the Pooling and Servicing Agreement. Upon
discovery by the Indenture Trustee or the Owner Trustee of a breach
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<PAGE>10
of any of the covenants of the Servicer in Sections 3.04(a)(viii),
(ix) or (x) of the Pooling and Servicing Agreement, such party
shall give prompt written notice to the other, the Servicer and the
Seller.
(c) Upon each payment of the Administrative Purchase
Payment or the Warranty Payment with respect to a Receivable,
except as provided in Section 2.5, the Trust shall automatically
and without further action be deemed to have sold, transferred,
assigned and otherwise conveyed to the Seller or Servicer, as
appropriate, without recourse, representation or warranty, as of
the date of such payment, all right, title and interest of the
Trust in, to and under such Receivable, all monies due or to become
due with respect thereto on and after such payment date and all
proceeds thereof and, if such repurchase is made in connection with
the repurchase hereunder of all other Receivables in the related
Account held by the Trust, the related Collateral Security. The
Owner Trustee and the Indenture Trustee shall execute such
documents and instruments of transfer or assignment and take such
other actions as shall be reasonably requested by Seller or the
Servicer, as the case may be, to evidence such conveyance.
SECTION 2.6 COVENANTS. The Seller hereby covenants
that:
(a) NEGATIVE PLEDGE. Except for the conveyances
hereunder and the pledge of the Trust Estate to the Indenture
Trustee pursuant to the Indenture, and as provided in Section 6.03
of the Pooling and Servicing Agreement, the Seller shall not sell,
pledge, assign or transfer to any other Person, or grant, create,
incur, assume or suffer to exist, any Lien on any Eligible
Receivable in any Account in the Pool of Accounts (and any related
Vehicle Collateral Security), whether now existing or hereafter
created, or any interest therein, or the Seller's rights, remedies,
powers or privileges under the Pooling and Servicing Agreement
conveyed to the Trust hereunder and the Seller shall defend the
right, title and interest of the Trust and any Interested Party in,
to and under such property, whether now existing or hereafter
created against all claims of third parties claiming through or
under the Seller. The Seller shall notify the Issuer promptly
after becoming aware of any Lien on such property other than the
conveyances contemplated hereunder.
(b) DELIVERY OF COLLECTIONS. If the Seller or GMAC
receives payments by or on behalf of a Dealer in respect of
Receivables in any Account in the Pool of Accounts or any
Collateral Security (except as contemplated in Section 6.03 of the
Pooling and Servicing Agreement with respect to any property
constituting Common Collateral that is not Vehicle Collateral
Security in connection with Other Indebtedness), the Seller and
GMAC shall deliver such payments to the Servicer as soon as
practicable after receipt thereof, but in no event later than two
Business Days after the receipt thereof.
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<PAGE>11
(c) POOLING AND SERVICING AGREEMENT MATTERS. If GMAC
breaches any of its covenants in Sections 3.01, 3.02, 3.03, 3.05,
5.01, 6.01(a), 7.01 or 7.03 of the Pooling and Servicing Agreement
and such breach has a material adverse effect on the interests of
the Securityholders, WARCO shall enforce its rights under the
Pooling and Servicing Agreement arising from such breach.
SECTION 2.7 ADDITION OF ACCOUNTS.
(a) VOLUNTARY ADDITION. The Seller may from time to
time, in its sole discretion, subject to the conditions specified
in Section 2.7(b) below, designate one or more Accounts as
Additional Accounts to be included in the Pool of Accounts by
giving (or causing the Servicer to give on its behalf) a written
notice to the Indenture Trustee, the Owner Trustee and the Rating
Agencies specifying the Additional Cut-Off Date and the Addition
Date (the "ADDITION NOTICE"). An Addition Notice shall be provided
on or before the fifth Business Day but not more than the thirtieth
day prior to the related Addition Date. If Additional Accounts are
to be included in the Pool of Accounts, effective as of the related
Addition Date, the Seller shall sell and assign to the Trust, and
the Trust shall purchase from the Seller, all of the Seller's
right, title and interest in, to and under the Eligible Receivables
in the Additional Accounts and the related Collateral Security, as
more fully described in the assignment referred to in subsection
(b)(ii) below.
(b) CONDITIONS. The Seller may convey to the Trust all
Eligible Receivables and the related Collateral Security in any
Additional Accounts in accordance with Section 2.7(a) only upon
satisfaction of each of the following conditions on or prior to the
related Addition Date:
(i) the Seller shall represent and warrant that as of
the related Additional Cut-Off Date each such Additional
Account is an Eligible Account and that each Receivable
arising thereunder identified as an Eligible Receivable and
conveyed to the Trust on such Addition Date is an Eligible
Receivable;
(ii) the Seller shall have delivered to the Owner Trustee
a duly executed written assignment in substantially the form
of EXHIBIT C and the list required to be delivered pursuant to
Section 10.2(e);
(iii) the Seller shall, to the extent required by Section
6.2, have agreed to deposit in the Collection Account all
Collections with respect to Eligible Receivables arising in
such Additional Accounts since the Additional Cut-Off Date
within two Business Days after such Addition Date;
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<PAGE>12
(iv) as of the Addition Date, neither GMAC nor the Seller
is insolvent nor shall any of them have been made insolvent by
such transfer nor is either of them aware of any pending
insolvency;
(v) the Rating Agency Condition shall have been
satisfied with respect to such addition for each series or
class of Securities then outstanding;
(vi) the Seller shall represent and warrant that the
designation of such Additional Accounts, the inclusion of such
Additional Accounts in the Pool of Accounts and the purchase
of the related Receivables shall not, in the reasonable belief
of the Seller, result in the occurrence of an Early
Amortization Event;
(vii) the Schedule of Accounts shall have been amended to
reflect such Additional Accounts and the Schedule of Accounts
as so amended shall be true and correct as of the Addition
Date;
(viii) the Seller shall have delivered to the Indenture
Trustee and the Owner Trustee a certificate of an Authorized
Officer of the Seller confirming the items set forth in
clauses (i) through (vii) above; and
(ix) the Seller shall have delivered to the Owner Trustee
an Opinion of Counsel substantially in the form of EXHIBIT D.
SECTION 2.8 OPTIONAL REMOVAL OF ACCOUNTS.
(a) The Seller shall have the right from time to time as
described in this Section 2.8 to require the removal of Accounts
from the Pool of Accounts. To so remove Accounts, the Seller (or
the Servicer on its behalf) shall take the following actions and
make the following determinations:
(i) not less than five Business Days but not more than
30 days prior to the Removal Commencement Date, furnish to the
Indenture Trustee, the Owner Trustee and the Rating Agencies
a written notice (the "REMOVAL NOTICE") specifying the date
(the "REMOVAL COMMENCEMENT DATE") on which removal of one or
more Accounts will commence (the "SELECTED ACCOUNTS"); and
(ii) determine on the Removal Commencement Date with
respect to such Selected Accounts the aggregate principal
balance of Eligible Receivables in respect of each such
Selected Account (the "REMOVAL BALANCE") and amend the
Schedule of Accounts by delivering to the Owner Trustee a true
and complete list of the Selected Accounts, specifying for
each Selected Account as of the Removal Commencement Date its
account number and the Removal Balance.
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<PAGE>13
(b) The removal of any of such Accounts shall be subject
to the following conditions:
(i) the Seller shall represent and warrant that such
removal shall not, in the reasonable belief of the Seller,
result in the occurrence of an Early Amortization Event;
(ii) the Rating Agency Condition shall have been
satisfied with respect to such removal for each series or
class of outstanding Securities; and
(iii) on or before the related Removal Commencement Date,
the Seller shall have delivered to the Owner Trustee a
certificate of an Authorized Officer confirming the items set
forth in clauses (i) and (ii) above.
(c) Subject to the satisfaction of the conditions set
forth in Section 2.8(b), from and after the Removal Commencement
Date with respect to a Selected Account, (i) the Seller shall not
transfer Receivables with respect to such Selected Account to the
Trust, and (ii) until the Removal Balance has been reduced to zero
all Principal Collections with respect to such Selected Account
shall be allocated to the oldest outstanding principal balance of
Receivables arising under such Selected Accounts and amounts so
allocated to Receivables owned by the Trust shall constitute Trust
Principal Collections and shall reduce the Removal Balance. The
Removal Balance shall also be reduced to the extent Receivables in
the Selected Accounts held by the Trust on the Removal Commencement
Date become Defaulted Receivables.
(d) After the Removal Balance with respect to any such
Selected Account is reduced to zero, Collections thereon shall
cease to be allocated in accordance with 2.8(c) and such Selected
Account shall be deemed removed from the Pool of Accounts for all
purposes (a "REMOVED ACCOUNT") and the Servicer shall amend the
Schedule of Accounts accordingly. At any time after the date (the
"REMOVAL DATE") on which the Removal Balance is reduced to zero
with respect to a Removed Account, the Owner Trustee shall assign
to the Seller, without recourse, representation or warranty,
effective as of the Removal Date all of the Trust's right, title
and interest in, to and under the Receivables arising in such
Account and related Collateral Security.
SECTION 2.9 REMOVAL OF INELIGIBLE ACCOUNTS.
(a) On or before the fifth Business Day after the date
on which an Account becomes an Ineligible Account (which Business
Day shall be deemed to be the Removal Commencement Date with
respect to such Account) such Account shall be deemed a Selected
Account. Within five Business Days after the Removal Commencement
Date with respect to any Account that became a Selected Account
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<PAGE>14
pursuant to this Section 2.9, the Seller shall furnish a Removal
Notice to the Trustee stating that the Removal Commencement Date
for such Ineligible Account has occurred and specifying for each
such Selected Account as of the Removal Commencement Date its
account number and the Removal Balance. The Schedule of Accounts
shall be amended to reflect such designation as of the Removal
Commencement Date.
(b) From and after the Removal Commencement Date with
respect to a Selected Account subject to this Section 2.9, the
Seller shall not transfer Receivables with respect to such Selected
Account to the Trust and, until the Removal Balance has been
reduced to zero, all Principal Collections with respect to such
Selected Account shall be allocated to the oldest outstanding
principal balance of Receivables arising under such Selected
Account and amounts so allocated to Receivables owned by the Trust
shall constitute Trust Principal Collections. After the Removal
Balance with respect to any such Selected Account has been reduced
to zero, Collections thereon shall cease to be allocated in
accordance with the preceding sentence and such Selected Account
shall be a Removed Account and the Servicer shall amend the
Schedule of Accounts accordingly. At any time after the Removal
Date with respect to such Removed Account, the Owner Trustee shall
assign to the Seller, without recourse, representation or warranty,
effective as of the Removal Date, all of the Trust's right, title
and interest in, to and under the Receivables arising in such
Account and related Collateral Security.
ARTICLE III
THE SELLER
SECTION 3.1 REPRESENTATIONS OF THE SELLER. The Seller
hereby makes, and any successor to the Seller under this Agreement
or under the Pooling and Servicing Agreement shall make, as of each
Closing Date (and as of the date of such succession) the following
representations and warranties on which the Issuer relies in
acquiring and holding the Receivables hereunder and the related
Collateral Security and issuing the Securities. The following
representations and warranties shall survive the sale, transfer and
assignment of the Eligible Receivables in the Accounts in the Pool
of Accounts to the Issuer and the pledge thereof to the Indenture
Trustee.
(a) REPRESENTATIONS AND WARRANTIES AS TO THE SELLER.
(i) ORGANIZATION AND GOOD STANDING. The Seller has
been duly incorporated and is validly existing as a
corporation in good standing under the laws of the State of
Delaware, with power and authority to own its properties and
to conduct its business as such properties are presently owned
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<PAGE>15
and such business is presently conducted, and had at all
relevant times, and now has, power, authority and legal right
to acquire and own the Eligible Receivables in the Accounts in
the Pool of Accounts and the Collateral Security related
thereto.
(ii) DUE QUALIFICATION. The Seller is duly quali-
fied to do business and, where necessary, is in good standing
as a foreign corporation (or is exempt from such requirement)
and has obtained all necessary licenses and approvals in all
jurisdictions in which the ownership or lease of property or
the conduct of its business requires such qualifications,
except where the failure to so qualify or obtain licenses or
approvals would not have a material adverse effect on its
ability to perform its obligations under this Agreement.
(iii) POWER AND AUTHORITY. The Seller has the power
and authority to execute and deliver this Agreement, to carry
out its terms and to consummate the transactions contemplated
herein, and the execution, delivery and performance of this
Agreement and the consummation of the transactions contem-
plated herein have been duly authorized by the Seller by all
necessary corporate action on the part of the Seller.
(iv) VALID SALE; BINDING OBLIGATIONS. With respect
to the Initial Accounts and the related assignment to be
delivered on the Initial Closing Date, this Agreement
constitutes or, in the case of Additional Accounts, the
related assignment as described in Section 2.7(b), when duly
executed and delivered, shall constitute a valid sale, trans-
fer and assignment to the Issuer of all right, title and
interest of the Seller in, to and under the related Eligible
Receivables and the related Collateral Security, whether then
existing or thereafter created, and the proceeds thereof,
enforceable against creditors of and purchasers from the
Seller; and this Agreement when duly executed and delivered,
shall constitute a legal, valid and binding obligation of the
Seller enforceable against the Seller in accordance with its
terms, except as such enforceability may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium
or other similar laws affecting the enforcement of creditors'
rights in general and by general principles of equity, regard-
less of whether such enforceability is considered in a pro-
ceeding in equity or at law, and, upon the filing of the
financing statements described in Section 10.2(a) (and, in the
case of Eligible Receivables hereafter created in the Accounts
in the Pool of Accounts and the proceeds thereof, upon the
creation thereof) the Trust shall have a first priority per-
fected ownership interest in such property, except for Liens
permitted under Section 2.6(a). Except as otherwise provided
in this Agreement or the Pooling and Servicing Agreement,
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<PAGE>16
neither the Seller nor any Person claiming through or under
the Seller has any claim to or interest in the Trust Estate.
(v) NO VIOLATION. The execution of this Agreement
and the consummation of the transactions contemplated by this
Agreement by the Seller and the fulfillment of the terms of
this Agreement by the Seller 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) a default
under, the certificate of incorporation or by-laws of the
Seller, or any indenture, agreement, mortgage, deed of trust
or other instrument to which the Seller is a party or by which
it is bound, 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 pursuant to the Basic Documents), or
violate any law or, to the best of the Seller's knowledge, any
order, rule or regulation applicable to the Seller of any
Governmental Authority having jurisdiction over the Seller or
any of its properties, except where any such conflict or
violation would not have a material adverse effect on its
ability to perform its obligations with respect to the Issuer
or any Interested Party under this Agreement or the Pooling
and Servicing Agreement.
(vi) NO PROCEEDINGS. To the Seller's knowledge,
there are no Proceedings or investigations pending, or
threatened, against the Seller before any Governmental
Authority having jurisdiction over the Seller or its prop-
erties (A) asserting the invalidity of this Agreement, the
Securities, the Indenture, the Trust Agreement, the Custodian
Agreement or the Administration Agreement, (B) seeking to
prevent the issuance of the Securities, the execution of this
Agreement or the consummation of any of the transactions
contemplated by this Agreement, the Indenture, the Trust
Agreement, the Custodian Agreement or the Administration
Agreement, (C) seeking any determination or ruling that might
materially and adversely affect the performance by the Seller
of its obligations under, or the validity or enforceability
of, this Agreement, the Notes, the Certificates, the
Indenture, the Trust Agreement, the Custodian Agreement or the
Administration Agreement or (D) seeking to adversely affect
the federal income tax attributes of the Notes or the
Certificates.
(b) REPRESENTATIONS AND WARRANTIES AS TO THE ELIGIBLE
RECEIVABLES.
(i) GOOD TITLE. No Eligible Receivables included
in the Accounts in the Pool of Accounts have been sold, trans-
ferred, assigned or pledged by the Seller to any Person other
than the Issuer; immediately prior to the conveyance of the
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<PAGE>17
Eligible Receivables in the Accounts included in the Pool of
Accounts pursuant to this Agreement the Seller had good and
marketable title to such Receivables, free of any Lien; and,
upon execution and delivery of this Agreement by the Seller,
the Issuer shall have all of the right, title and interest of
the Seller in, to and under the Eligible Receivables in the
Accounts included in the Pool of Accounts, free of any Lien.
(ii) ALL FILINGS MADE. All filings (including,
without limitation, UCC filings) necessary in any jurisdiction
to give the Issuer a first priority perfected ownership
interest in the Eligible Receivables in the Accounts in the
Pool of Accounts shall have been made.
(c) REASSIGNMENT OF ALL RECEIVABLES.
(i) If any representation or warranty under Section
3.1(a) or (b) is not true and correct as of the date specified
therein and such breach has a material adverse effect on the
interests of the Securityholders, then any of the Indenture
Trustee, the Owner Trustee and the holders of outstanding
Securities evidencing not less than a majority of the Out-
standing Amount and a majority of the Voting Interests of all
outstanding Certificates, by written notice to the Seller with
a copy to the Servicer, the Indenture Trustee and the Owner
Trustee, may direct the Seller to accept the reassignment of
all Receivables held by the Trust and the related Collateral
Security pursuant to this Section 3.1(c) within 60 days of
such notice, or within such longer period specified in such
notice and pay the Reassignment Amount on any Distribution
Date within such period; PROVIDED, HOWEVER, that no such
reassignment shall be made if, prior to the time such reas-
signment is to occur, the breached representation or warranty
shall then be true and correct in all material respects and
any material adverse effect caused thereby shall have been
cured.
(ii) Upon the reassignment of all Receivables held
by the Trust and the related Collateral Security, subject to
the payment to the Trust of the Reassignment Amount, the Trust
shall automatically and without further action be deemed to
sell, transfer, assign and otherwise convey to the Seller,
without recourse, representation or warranty, all the right,
title and interest of the Trust in and to such Receivables and
such related Collateral Security. Each of the Indenture
Trustee and the Owner Trustee shall execute such documents and
instruments of transfer or assignment and take such other
actions as they shall reasonably be requested by the Seller to
effect the conveyance pursuant to this Section 3.1.
(iii) It is understood and agreed that the obligation
of the Seller to repurchase the Receivables (and the related
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<PAGE>18
Collateral Security) in the event of a breach of a
representation or warranty made in Section 3.1(a) or (b) has
occurred and is continuing and the obligation of the Seller to
pay the Reassignment Amount therefor shall, if such
obligations are fulfilled, constitute the sole remedy against
the Seller for such breach available to the Issuer, the
Securityholders, the Owner Trustee or the Indenture Trustee.
SECTION 3.2 LIABILITY OF SELLER. The Seller shall be
liable in accordance with this Agreement only to the extent of the
obligations in this Agreement specifically undertaken by the
Seller.
SECTION 3.3 MERGER OR CONSOLIDATION OF, OR ASSUMPTION OF
THE OBLIGATIONS OF, SELLER; AMENDMENT OF CERTIFICATE OF INCORPORATION.
(a) Any Person (i) into which the Seller may be merged
or consolidated, (ii) resulting from any merger or consolidation to
which the Seller shall be a party, (iii) succeeding to the business
of the Seller or (iv) more than 50% of the voting interests of
which is owned directly or indirectly by General Motors, which
Person in any of the foregoing cases (other than the Seller as the
surviving entity of such merger or consolidation) executes an
agreement of assumption to perform every obligation of the Seller
under this Agreement shall be the successor to the Seller under
this Agreement without the execution or filing of any document or
any further act on the part of any of the parties to this
Agreement, anything in this Agreement to the contrary
notwithstanding. The Seller shall provide 10 days' prior notice of
any merger, consolidation or succession pursuant to this Section
3.3 to the Rating Agencies.
(b) The Seller hereby agrees that during the term of
this Agreement it shall not (i) take any action prohibited by
Article Fourth of its certificate of incorporation, (ii) without
the prior written consent of the Indenture Trustee and the Owner
Trustee and without giving prior written notice to the Rating
Agencies, amend Article Third or Fourth of its certificate of
incorporation or (iii) incur any indebtedness, or assume or
guaranty indebtedness of any other entity, other than as
contemplated by the Basic Documents or pursuant to the Intercompany
Advance Agreement (without giving effect to any amendment to the
Intercompany Advance Agreement after the date hereof, unless the
Rating Agency Condition for each series or class of Securities then
outstanding was satisfied in connection therewith) if such action
would result in a downgrading of the then current rating of any
outstanding series or class of Securities by a Rating Agency for
such series or class.
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<PAGE>19
SECTION 3.4 LIMITATION ON LIABILITY OF SELLER AND
OTHERS.
(a) Neither the Seller nor any of the directors,
officers, employees or agents of the Seller in its capacity as such
shall be under any liability to the Issuer, the Indenture Trustee,
the Owner Trustee, the Securityholders or any other Person, except
as specifically provided in this Agreement, for any action taken or
for refraining from the taking of any action pursuant to the Basic
Documents or from errors in judgment; PROVIDED, HOWEVER, that this
provision shall not protect the Seller or any such Person against
any liability that would otherwise be imposed by reason of wilful
misfeasance, bad faith or negligence (except errors in judgment) in
the performance of duties or by reason of reckless disregard of
obligations and duties under the Basic Documents. The Seller and
any director or officer or employee or agent of the Seller may rely
in good faith on the advice of counsel or on any document of any
kind prima facie properly executed and submitted by any Person
respecting any matters arising under the Basic Documents.
(b) The Seller and any director, officer, employee or
agent of the Seller shall be reimbursed by the Owner Trustee for
any contractual damages, liability or expense incurred by reason of
such trustee's wilful misfeasance, bad faith or negligence (except
errors in judgment) in the performance of such trustee's duties
under such agreement or the Trust Agreement or by reason of
reckless disregard of its obligations and duties under such
agreements. The Seller shall not be under any obligation to appear
in, prosecute or defend any legal action that is not incidental to
its obligations as Seller of the Receivables and related Collateral
Security under this Agreement and that in its opinion may involve
it in any expense or liability.
SECTION 3.5 SELLER MAY OWN NOTES OR CERTIFICATES.
Each of the Seller and any Affiliate of the Seller may in its
individual or any other capacity become the owner or pledgee of
Notes or Certificates with the same rights (except as otherwise
specifically provided in the Basic Documents) as it would have if
it were not the Seller or an Affiliate thereof. Except as
otherwise specifically provided in the Basic Documents, Notes or
Certificates so owned by or pledged to the Seller or such Affiliate
shall have an equal and proportionate benefit under the provisions
of this Agreement, without preference, priority or distinction as
among all of such Notes or Certificates, respectively.
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<PAGE>20
ARTICLE IV
SERVICER'S COVENANTS; DISTRIBUTIONS; RESERVE FUND;
STATEMENTS TO SECURITYHOLDERS
SECTION 4.1 ANNUAL STATEMENT AS TO COMPLIANCE; NOTICE
OF SERVICING DEFAULT.
(a) The Servicer shall deliver to the Indenture Trustee
and the Owner Trustee, on or before August 15 of each year,
beginning August 15, 1995, an officer's certificate signed by the
President or any Vice President of the Servicer, dated as of June
30 of such year, stating that (i) a review of the activities of the
Servicer during the preceding 12-month period (or, with respect to
the first such certificate, such period as shall have elapsed from
the Initial Closing Date to the date of such certificate) and of
its performance under this Agreement and under the Pooling and
Servicing Agreement has been made under such officer's supervision
and (ii) to such officer's knowledge, based on such review, the
Servicer has fulfilled all its obligations under such agreements
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. A copy of
such certificate may be obtained by any Securityholder by a request
in writing to the Issuer addressed to the Corporate Trust Office of
the Indenture Trustee or the Owner Trustee, as applicable.
(b) The Servicer shall deliver to the Indenture Trustee,
the Owner Trustee and the Rating Agencies, promptly after having
obtained knowledge thereof, but in no event later than five
Business Days thereafter, written notice in an officer's
certificate of any event which, with the giving of notice or lapse
of time, or both, would become a Servicing Default under Section
8.1. The Seller shall deliver to the Indenture Trustee, the Owner
Trustee, the Servicer and the Rating Agencies, promptly after
having obtained knowledge thereof, but in no event later than five
Business Days thereafter, written notice in an officer's
certificate of any event which, with the giving of notice or lapse
of time, or both, would become a Servicing Default under clause (b)
of Section 8.1.
SECTION 4.2 ANNUAL INDEPENDENT ACCOUNTANTS' REPORT.
(a) The Servicer shall cause a firm of Independent
accountants, who may also render other services to the Servicer or
the Seller, to deliver to the Owner Trustee, the Indenture Trustee
and the Rating Agencies, on or before August 15 of each year,
beginning August 15, 1995 with respect to the twelve months ended
on the immediately preceding June 30 (or, with respect to the first
such report, such period as shall have elapsed from the Initial
Closing Date to the date of such certificate), a report (the
"ACCOUNTANTS' REPORT") addressed to the Board of Directors of the
Servicer and to the Indenture Trustee and the Owner Trustee, to the
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<PAGE>21
effect that such firm has audited the financial statements of the
Servicer and issued its report thereon and that such audit (i) was
made in accordance with generally accepted auditing standards,
(ii) included tests relating to wholesale receivables (including
financing arrangements with automobile dealers to finance their
automobile and light-duty truck inventory) serviced for others in
accordance with the requirements of the Uniform Single Audit
Program for Mortgage Bankers (the "PROGRAM"), to the extent the
procedures in the Program are applicable to the servicing obliga-
tions set forth in this Agreement and the Pooling and Servicing
Agreement and (iii) except as described in the report, disclosed no
exceptions or errors in the records relating to wholesale receiv-
ables (including financing arrangements with automobile dealers to
finance their automobile and light-duty truck inventory) serviced
for others that, in the firm's opinion, paragraph four of the
Program requires such firm to report.
(b) The Accountants' Report shall also indicate that the
firm is independent of the Seller and the Servicer within the
meaning of the Code of Professional Ethics of the American
Institute of Certified Public Accountants.
(c) A copy of the Accountants' Report may be obtained by
any Securityholder by a request in writing to the Issuer addressed
to the Corporate Trust Office of the Indenture Trustee or the Owner
Trustee.
SECTION 4.3 ACCESS TO CERTAIN DOCUMENTATION AND
INFORMATION REGARDING ACCOUNTS AND RECEIVABLES. The Servicer shall
provide to the Indenture Trustee and the Owner Trustee reasonable
access to the documentation regarding the Accounts in the Pool of
Accounts and the Receivables arising thereunder. The Servicer
shall provide such access to any Securityholder only in such cases
where a Securityholder is required by applicable statutes or
regulations to review such documentation. In each case, such access
shall be afforded without charge but only upon reasonable request
and during normal business hours at offices of the Servicer
designated by the Servicer. Nothing in this Section 4.3 shall
derogate from the obligation of the Servicer to observe any
applicable law prohibiting disclosure of information regarding any
Dealer, and the failure of the Servicer to provide access as
provided in this Section 4.3 as a result of such obligation shall
not constitute a breach of this Section 4.3.
SECTION 4.4 ENFORCEMENT OF RECEIVABLES. If in any
Proceeding it is held that the Servicer may not enforce a
Receivable that has been transferred to the Trust on the ground
that it is not a real party in interest or a holder entitled to
enforce such Receivable, the Indenture Trustee or the Owner
Trustee, as applicable, shall, at the Servicer's expense, take such
steps as the Servicer deems necessary to enforce such Receivable,
including bringing suit in the name of such Person or the names of
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<PAGE>22
the Securityholders. The Indenture Trustee and the Owner Trustee
agree to the provisions of Section 3.02 of the Pooling and
Servicing Agreement as such provisions apply to Interested Parties
(as used therein).
SECTION 4.5 ALLOCATIONS; DISTRIBUTIONS.
(a) The Trust, as the holder of the Receivables
transferred hereunder, shall be entitled to Principal Collections
and Interest Collections to the extent of Trust Principal
Collections and Trust Interest Collections and GMAC, as the holder
of the Retained Property, shall be entitled to such Principal
Collections and Interest Collections in excess thereof. Any
Principal Collections or Interest Collections on deposit in the
Collection Account which do not represent Trust Principal
Collections or Trust Interest Collections shall be paid to GMAC as
holder of the Retained Property.
(b) The Servicer shall calculate, in a manner consistent
with the Indenture (including all Officer's Issuance Certificates)
and the Trust Agreement, (i) no later than each Determination Date,
Available Trust Interest, the Monthly Servicing Fee, Aggregate
Noteholders' Interest, Revolver Interest, Aggregate
Certificateholders' Interest and any payment due under any
Specified Support Arrangement and (ii) no later than each
Determination Date for the Wind Down Period, an Early Amortization
Period, the Payment Period for any series of Term Notes or, if
principal payments are then required to be made (or set aside)
under any Revolving Notes, the Revolving Period, Available Trust
Principal, Aggregate Noteholders' Principal, Aggregate
Certificateholders' Principal, the Required Revolver Payment,
unreimbursed Trust Charge-Offs and the Trust Defaulted Amount and
in each case, all other amounts required to determine the amounts
to be deposited in or paid from each of the Collection Account, the
Note Distribution Account, the Revolver Distribution Account, the
Certificate Distribution Account and the Reserve Fund on the next
succeeding Distribution Date. The Servicer shall calculate on a
daily basis the Daily Trust Balance, the Daily Trust Invested
Amount and all related amounts to the extent necessary to determine
the Cash Collateral Amount for such date as described in Section
4.5(d).
(c)(i) With respect to each Distribution Date and the
related Collection Period, the Indenture Trustee (based on the
information contained in the Servicer's Accounting delivered
on the related Determination Date pursuant to Section 3.05 of
the Pooling and Servicing Agreement) shall apply Available
Trust Interest in the following amounts and in the following
priority:
(A) to the Servicer, an amount equal to the Monthly
Servicing Fee for such Distribution Date;
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<PAGE>23
(B) (1) to the Note Distribution Account, an amount
equal to the Aggregate Noteholders' Interest for such
Distribution Date, (2) to the Revolver Distribution
Account, an amount equal to the Revolver Interest for
such Distribution Date and (3) to or for the account of
the applicable counterparty under each Specified Support
Arrangement, the payment due (or to be set aside for
payment) for such Distribution Date in accordance with
the terms of such arrangement;
(C) to the Certificate Distribution Account, an
amount equal to the Aggregate Certificateholders'
Interest for such Distribution Date;
(D) to the Servicer, an amount equal to any
Servicer Advances not previously reimbursed;
(E) an amount equal to any Trust Defaulted Amount
for such Distribution Date shall be treated as Additional
Trust Principal for such Distribution Date;
(F) an amount equal to the aggregate amount of
unreimbursed Trust Charge-Offs shall be treated as
Additional Trust Principal for such Distribution Date;
and
(G) to the Reserve Fund, an amount equal to any
Reserve Fund Deposit Amount for such Distribution Date.
(ii) To the extent Available Trust Interest for a
Distribution Date is insufficient to make all of the
applications described in Sections 4.5(c)(i)(A) through (D),
there shall be a Deficiency Amount. If there is a Deficiency
Amount for such Distribution Date, the Servicer shall make a
Servicer Advance equal to such Deficiency Amount to complete
the applications pursuant to such Sections, to the extent the
Servicer, in its sole discretion, expects to recover such
Servicer Advance from Available Trust Interest to be applied
on future Distribution Dates as described above. The Servicer
shall have no obligation to make any Servicer Advances to the
extent it does not expect to recover such Servicer Advances.
To the extent the Available Trust Interest for a Distribution
Date (calculated after the adjustment, if any, to Trust
Interest Collections described in subsection (v) below) plus
the Servicer Advance, if any, made for such Distribution Date
are insufficient to make the full amounts of the applications
described in Sections 4.5(c)(i)(A) through (E), there shall be
an Unsatisfied Deficiency Amount. If there is an Unsatisfied
Deficiency Amount for such Distribution Date, the Servicer
shall instruct the Indenture Trustee to withdraw funds from
the Reserve Fund and apply such funds to reduce such
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<PAGE>24
Unsatisfied Deficiency Amount in the priorities set forth in
Sections 4.5(c)(i)(A) through (E); provided, that no amount
shall be withdrawn from the Reserve Fund and paid to the
Servicer pursuant to Section 4.5(c)(i)(D) in order to
reimburse the Servicer for advances with respect to
Receivables that are not Eligible Receivables (as determined
by the Servicer in accordance with its servicing procedures).
To the extent that, after application of the funds in the
Reserve Fund, the full amount of the Trust Defaulted Amount
has not been treated as Additional Trust Principal pursuant to
Section 4.5(c)(i)(E), the amount of such deficiency shall be
added to unreimbursed Trust Charge-Offs.
(iii) To the extent any Available Trust Interest
(calculated after the adjustment, if any, to Trust Interest
Collections described in subsection (v) below) is available on
any Distribution Date after making the applications described
in Section 4.5(c)(i), such amount shall be allocated and paid
to the Seller as compensation for making the initial and
other, if any, deposits into the Reserve Fund.
(iv) On each Distribution Date, the Servicer shall pay to
GMAC, as the holder of the Retained Property, any Interest
Collections for the related Collection Period that do not
constitute Trust Interest Collections (calculated after the
adjustment, if any, described in subsection (v) below) to the
extent not previously so paid to GMAC.
(v) If the Servicer does not make a Servicer Advance in
the amount of the full Deficiency Amount for a Distribution
Date, the Servicer shall calculate for each Account in the
Pool of Accounts in which the full amount of interest due for
the related Collection Period was not collected, the product
of (i) the amount of interest collected with respect to such
Collection Period and (ii) the difference between (A) the
percentage equivalent (which shall never exceed 100%) of a
fraction, the numerator of which is the average daily
aggregate principal balance of the Eligible Receivables in
such Account during the related Collection Period and the
denominator of which is the average daily aggregate principal
balance of all Receivables (including Receivables included in
the Retained Property) in such Account during the related
Collection Period and (B) the Trust Percentage for such
Distribution Date. With respect to each such Account, the
absolute amount of such amount so calculated shall be
(1) added to Trust Interest Collections for such Distribution
Date to the extent such amount is greater than zero or
(2) subtracted from Trust Interest Collections for such
Distribution Date to the extent such amount is less than zero.
No adjustment to Trust Interest Collections shall be made with
respect to the other Accounts in the Pool of Accounts.
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<PAGE>25
(d) The Indenture Trustee (based on the information
contained in the Servicer's Accounting delivered on any such
date or the related Determination Date pursuant to Section
3.05 of the Pooling and Servicing Agreement, as applicable)
shall apply Available Trust Principal in the following amounts
and in the following priority:
(i) Except as otherwise required pursuant to the terms
of any series of Revolving Notes or, during the Payment
Period, if any, for any series of Term Notes, pursuant to the
terms of such Term Notes (including pursuant to any related
supplement hereto), on each date during the Revolving Period,
all Trust Principal Collections and Additional Trust
Principal, together with the Cash Collateral Amount (including
any portion thereof on deposit in the Collection Account) and
the proceeds from any issuances of Securities and additional
borrowings under any Revolving Notes, shall be available for
the purchase of additional Receivables from the Seller on such
date pursuant to Section 2.1(b) hereof and shall be paid to
the Seller on account thereof by the Indenture Trustee;
PROVIDED, HOWEVER, that amounts shall be held as the Cash
Collateral Amount to the extent required to ensure that the
Daily Trust Balance equals the Daily Trust Invested Amount for
such date. Any amounts described in the preceding sentence as
being available for the purchase of additional Receivables not
required to be set aside for any series of Revolving Notes or
any series of Term Notes during its Payment Period pursuant to
the terms of such Notes shall be available for the purchase of
additional Receivables from the Seller on such date pursuant
to Section 2.1(b) as described in the preceding sentence. The
determinations under this Section 4.5(d)(i) shall be made
after giving effect to any payments of principal on, or
additional borrowings under, the Revolving Notes, all
acquisitions by the Trust of Receivables and all issuances of
Securities by the Trust on such date. The Cash Collateral
Amount shall be maintained on deposit in the Collection
Account to the extent required by Section 6.2.
(ii) On each Distribution Date for the Revolving Period
on which a principal payment is required to be made on (or set
aside for) any series of Revolving Notes and on each
Distribution Date related to the Payment Period, if any, for
a series of Term Notes, the Indenture Trustee shall apply
Available Trust Principal and make payments of principal on
such Notes (or set aside amounts for such purpose in the Note
Distribution Account or the Revolver Distribution Account, as
applicable) as provided in the terms of such Notes (including
any related supplement hereto or to the Indenture).
(iii) On each Distribution Date related to the Wind Down
Period, the Indenture Trustee shall apply Available Trust
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<PAGE>26
Principal in the following amounts and in the following
priority:
(A) to the Note Distribution Account, an amount
equal to the Aggregate Noteholders' Principal;
(B) to the Revolver Distribution Account, an amount
equal to the Required Revolver Payment; and
(C) to the Certificate Distribution Account, an
amount equal to the Aggregate Certificateholders'
Principal.
On each Distribution Date related to an Early
Amortization Period, the Indenture Trustee shall apply
Available Trust Principal in the following amounts and in the
following priority:
(A) to the Note Distribution Account, an amount
equal to the Aggregate Noteholders' Principal and to
the Revolver Distribution Account, an amount equal to
the Required Revolver Payment; and
(B) to the Certificate Distribution Account, an
amount equal to the Aggregate Certificateholders'
Principal.
(e) On each Distribution Date for the Wind Down Period or an
Early Amortization Period, the Seller shall (or shall use
reasonable efforts to cause GMAC on its behalf to) deposit in the
Collection Account an amount equal to the Supplemental Principal
Allocation for such Distribution Date. The Seller shall be
entitled to reimbursement of the aggregate amount of Supplemental
Principal Allocations for all Distribution Dates following the
payment in full of all Securities. The Trust's obligation to so
reimburse the Seller shall be limited to collections on Receivables
(as and when such amounts are received) and amounts on deposit in
the Reserve Fund.
(f) To the extent unreimbursed Trust Charge-Offs for any
Distribution Date exceed the Certificate Balance (calculated
without reduction for Trust Charge-Offs), such excess shall be
applied to reduce the Outstanding Amount attributable to each
series of Notes, pro rata on the basis of the Outstanding Amount
attributable to each such series (calculated without reduction for
Trust Charge-Offs after giving effect to any amounts to be paid on
such Distribution Date).
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<PAGE>27
SECTION 4.6 RESERVE FUND.
(a) The Reserve Fund shall include the money and other
property deposited and held therein pursuant to this Section 4.6
and Section 4.5. On the Initial Closing Date, the Seller shall
deposit the Reserve Fund Initial Deposit into the Reserve Fund.
The Seller may make additional deposits into the Reserve Fund from
time to time in connection with the issuance of Additional
Securities or an increase in the Specified Maximum Revolver Balance
(at which time the formula for the Reserve Fund Required Amount may
be adjusted). In addition, the Seller, in its sole discretion, may
at any time make an additional deposit into the Reserve Fund in an
amount up to 1% of the Maximum Pool Balance as of the date such
additional deposit is to be made. The Reserve Fund shall not under
any circumstances be deemed to be part of or otherwise included in
the Trust.
(b) If the amount on deposit in the Reserve Fund on any
Distribution Date (after giving effect to all deposits therein or
withdrawals therefrom on such Distribution Date) exceeds the
Reserve Fund Required Amount for such Distribution Date, the
Servicer shall instruct the Indenture Trustee to distribute an
amount equal to any such excess to the Seller, unless otherwise
agreed to by the Seller.
(c) In order to provide for timely payments in
accordance with Section 4.5 and the terms of any Securities, to
assure availability of the amounts maintained in the Reserve Fund
for the benefit of the Securityholders and the Servicer, and as
security for the performance by the Seller of its obligations
hereunder, the Seller on behalf of itself and its successors and
assigns, hereby pledges to the Indenture Trustee and its successors
and assigns, all its right, title and interest in and to (i) the
Reserve Fund and all proceeds of the foregoing, including, without
limitation, all other amounts and investments held from time to
time in the Reserve Fund (whether in the form of deposit accounts,
Physical Property, book-entry securities, uncertificated securities
or otherwise) and (ii) the Reserve Fund Initial Deposit and all
proceeds thereon ((i) and (ii), collectively, the "RESERVE FUND
PROPERTY"), to have and to hold all the aforesaid property, rights
and privileges unto the Indenture Trustee, its successors and
assigns, in trust for the uses and purposes, and subject to the
terms and provisions, set forth in this Section 4.6. The Indenture
Trustee hereby acknowledges such transfer and accepts the trust
hereunder and shall hold and distribute the Reserve Fund Property
in accordance with the terms and provisions of this Agreement.
(d) Each of the Seller and the Servicer agree to take or
cause to be taken such further actions, to execute, deliver and
file or cause to be executed, delivered and filed such further
documents and instruments (including, without limitation, any UCC
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financing statements or this Agreement) as may be determined to be
necessary, in an Opinion of Counsel to the Seller delivered to the
Indenture Trustee, in order to perfect the interests created by
this Section 4.6 and otherwise fully to effectuate the purposes,
terms and conditions of this Section 4.6. The Seller shall:
(i) promptly execute, deliver and file any financing
statements, amendments, continuation statements, assignments,
certificates and other documents with respect to such
interests and perform all such other acts as may be necessary
in order to perfect or to maintain the perfection of the
Indenture Trustee's security interest; and
(ii) make the necessary filings of financing statements
or amendments thereto within sixty days after the occurrence
of any of the following: (A) any change in their respective
corporate names or any trade names, (B) any change in the
location of their respective chief executive offices or
principal places of business and (C) any merger or
consolidation or other change in their respective identities
or corporate structures; and shall promptly notify the
Indenture Trustee of any such filings.
SECTION 4.7 NET DEPOSITS.
(a) The Servicer, the Seller, the Indenture Trustee and
the Owner Trustee may make any remittances pursuant to this Article
IV net of amounts to be distributed by the applicable recipient to
such remitting party. Nonetheless, each such party shall account
for all of the above described remittances and distributions as if
the amounts were deposited and/or transferred separately.
(b) For so long as the conditions specified in the first
sentence of Section 6.2(b) are satisfied, the Servicer, the Seller,
the Indenture Trustee and the Owner Trustee shall not be required
to make any distributions, deposits or other remittances in respect
of any Notes or to the related Distribution Account pursuant to
this Article IV (including deposits by the Servicer into the
Collection Account) which are to be made on an Exempt Deposit Date
with respect to such Notes. Distributions, deposits and other
remittances on Exempt Deposit Dates which are not required to be
made by virtue of the preceding sentence shall nonetheless be
accounted for as having been distributed, deposited or remitted for
purposes of determining other amounts required to be distributed,
deposited or otherwise remitted on such Exempt Deposit Date or the
next succeeding Payment Date. On the Payment Date next succeeding
any Exempt Deposit Date on which any of the Servicer, the Seller,
the Indenture Trustee or the Owner Trustee did not make
distributions, deposits and other remittances in reliance upon the
second preceding sentence, each such Person shall be required to
distribute, deposit or otherwise remit the cumulative amount of all
such distributions, deposits and other remittances for such Payment
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Date and the immediately preceding Exempt Deposit Date or Dates in
respect of such Notes and the related Distribution Account.
SECTION 4.8 STATEMENTS TO SECURITYHOLDERS.
(a) On or before each Distribution Date, the Owner
Trustee shall include with each distribution to each Certifi-
cateholder to be made on such date and the Indenture Trustee shall
include with each distribution to each Term Noteholder and each
Revolving Noteholder to be made on such date, a statement (which
statement shall also be provided to the Rating Agencies) based on
information in the Servicer's Accounting furnished pursuant to
Section 3.05 of the Pooling and Servicing Agreement. Except as
otherwise set forth in the Officer's Issuance Certificate with
respect to any series of Notes, each such statement to be delivered
to Securityholders shall set forth the following information
concerning the Term Notes, the Revolving Notes or the Certificates,
as appropriate, with respect to such Distribution Date or the
preceding Collection Period:
(i) the amount, if any, of the distribution allocable to
principal on each series of Term Notes and Revolving Notes and
to the Certificate Balance;
(ii) the amount, if any, of the distribution allocable to
interest on or with respect to each series or class of
Securities;
(iii) the aggregate Outstanding Amount for each series of
Term Notes, the Outstanding Amount of the Revolving Notes and
the Certificate Balance, each as of such date and after giving
effect to all payments reported under clause (i) above (or, in
the case of any Revolving Notes during the Revolving Period,
unless principal payments thereon are required on such
Distribution Date, as of the last day of such Collection
Period);
(iv) the amount of outstanding Servicer Advances on such
date;
(v) the amount of the Monthly Servicing Fee paid to the
Servicer with respect to the related Collection Period or
Periods, as the case may be;
(vi) the per annum interest rate for the next
Distribution Date or Payment Date, as the case may be, for any
series or class of Securities with a variable or adjustable
interest rate;
(vii) the amount, if any, withdrawn from or credited to
the Reserve Fund;
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(viii) the accumulated interest and principal shortfalls,
if any, on each series or class of Securities and the change
in each of such amounts from the preceding Payment Date or
Distribution Date, as the case may be;
(ix) the Trust Charge-Offs allocated to each series or
class of Securities and the change in such amounts from the
preceding Payment Date or Distribution Date, as the case may
be; and
(x) the balance of the Reserve Fund, if any, on such
date after giving effect to changes therein or any
distributions therefrom on such date.
Each amount set forth pursuant to clauses (i), (ii) and (viii)
above with respect to the Term Notes or the Certificates shall be
expressed as a dollar amount per $1,000 of initial principal amount
of the Term Notes or of Certificate Balance, as applicable.
(b) Within the prescribed period of time for tax
reporting purposes after the end of each calendar year during the
term of this Agreement, the Indenture Trustee and the Owner Trustee
shall furnish (or cause to be furnished), to each Person who at any
time during such calendar year shall have been a holder of record
of Notes or Certificates, respectively, and received any payment
thereon, a statement containing such information as may be required
by the Code and applicable Treasury Regulations to enable such
securityholder to prepare its federal income tax returns.
(c) A copy of each statement provided pursuant to
Section 4.8(a) shall be made available for inspection at the
Corporate Trust Office.
SECTION 4.9 NEW ISSUANCES; CHANGES IN SPECIFIED
MAXIMUM REVOLVER BALANCE.
(a) The Seller may from time to time after the Initial
Closing Date direct the Indenture Trustee or the Owner Trustee, as
applicable, on behalf of the Trust, to issue one or more series of
Term Notes or Revolving Notes or additional Term Notes or Revolving
Notes of any series outstanding pursuant to the Indenture or
increase or decrease the Specified Maximum Revolver Balance or
issue additional Certificates (including Certificates of a
different class) pursuant to the Trust Agreement. Except as
otherwise provided in any supplement hereto or any Officer's
Issuance Certificate or Certificate Issuance Order, the Term Notes
of all outstanding series, the Revolving Notes of all outstanding
series and the Certificates of all outstanding classes shall be
equally and ratably entitled as and to the extent provided herein
to the benefits of this Agreement, the Indenture and the Pooling
and Servicing Agreement without preference, priority or
distinction.
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(b) The obligation of the Indenture Trustee or the Owner
Trustee, as applicable, to issue Term Notes or Revolving Notes of
a new series or additional Term Notes or Revolving Notes of any
series, to increase or decrease the Specified Maximum Revolver
Balance or to issue any additional Certificates and to execute and
deliver any related documents, including a supplement hereto or to
the Indenture, is subject to the following conditions:
(i) on or before the fifth Business Day immediately
preceding the related Closing Date, the Seller shall have
given the Indenture Trustee, the Owner Trustee, the Servicer
and each Rating Agency notice of such issuance or of such
increase or decrease in the Specified Maximum Revolver Balance
and the Closing Date;
(ii) with respect to the issuance of a new series of Term
Notes or Revolving Notes, the Seller shall have delivered to
the Indenture Trustee and the Owner Trustee the related
supplement and/or Officer's Issuance Certificate, in form
reasonably satisfactory to such Trustees;
(iii) with respect to the issuance of Certificates, the
Seller shall have delivered to the Owner Trustee the related
Certificate Issuance Order, in form reasonably satisfactory to
the Owner Trustee;
(iv) the Seller shall have delivered to the Indenture
Trustee or the Owner Trustee, as applicable, any related
Specified Support Arrangement executed by each of the parties
thereto, other than such Trustee;
(v) the Rating Agency Condition shall have been
satisfied with respect to such issuance or increase in the
Specified Maximum Revolver Balance; PROVIDED, that any
decrease in the Specified Maximum Revolver Balance shall not
be subject to such condition;
(vi) the Seller shall have delivered to the Indenture
Trustee and the Owner Trustee a certificate of a Vice
President or more senior officer, dated the Closing Date, to
the effect that the Seller reasonably believes that such
issuance or increase or decrease shall not result in the
occurrence of an Early Amortization Event;
(vii) after giving effect to all issuances of Securities
and all changes in the Specified Maximum Revolver Balance on
the Closing Date, the quotient of (A) the outstanding Certif-
icate Balance of all then outstanding Certificates over
(B) the Maximum Pool Balance shall equal or exceed the
Specified Certificate Percentage; and
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(viii) with respect to the issuance of additional
Certificates, the initial Certificate Balance of the
Certificates to be issued on the Closing Date shall be less
than or equal to the lowest Certificate Balance outstanding at
all times during the twelve-month period preceding such
issuance.
Upon satisfaction of the above conditions with respect to Term
Notes or Revolving Notes, the Indenture Trustee shall, to the
extent necessary, execute a supplement to the Indenture and execute
and authenticate such Term Notes or Revolving Notes pursuant to the
Indenture. Upon satisfaction of the above conditions with respect
to the increase or decrease of the Specified Maximum Revolver
Balance, the Indenture Trustee shall, to the extent necessary,
amend the Revolving Notes or the Indenture. Upon satisfaction of
the above conditions with respect to the issuance of additional
Certificates, the Owner Trustee shall execute and authenticate such
additional Certificates pursuant to the Trust Agreement.
ARTICLE V
SERVICING FEE
SECTION 5.1 SERVICING COMPENSATION. The Monthly Servicing Fee
shall be payable to the Servicer, in arrears, on each Distribution
Date through and including the Distribution Date on which the final
distribution on the Securities is made, in an amount equal to the
product of (a) one-twelfth of the Servicing Fee Rate and (b) the
average daily balance of the Daily Trust Invested Amount for the
related Collection Period; PROVIDED, HOWEVER, that with respect to
the first Distribution Date, the Monthly Servicing Fee shall be
equal to the product of (a) 11/360 of the Servicing Fee Rate and
(b) the average daily balance of the Daily Trust Invested Amount
during the period from and including the Initial Cut-Off Date
through and including the last day of the Collection Period in
which the Initial Cut-Off Date occurs.
ARTICLE VI
SECURITYHOLDER ACCOUNTS; COLLECTIONS,
DEPOSITS AND INVESTMENTS; ADVANCES
SECTION 6.1 ESTABLISHMENT OF ACCOUNTS.
(a) (i) The Servicer, for the benefit of the Security-
holders, shall establish and maintain in the name of the
Indenture Trustee an Eligible Deposit Account known as the
Superior Wholesale Inventory Financing Trust I Collection
Account (the "COLLECTION ACCOUNT"), bearing an additional
designation clearly indicating that the funds deposited
therein are held for the benefit of the Securityholders.
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(ii) The Servicer, for the benefit of the Term
Noteholders, shall establish and maintain in the name of the
Indenture Trustee an Eligible Deposit Account known as the
Superior Wholesale Inventory Financing Trust I Note
Distribution Account (the "NOTE DISTRIBUTION ACCOUNT"),
bearing an additional designation clearly indicating that the
funds deposited therein are held for the benefit of the Term
Noteholders.
(iii) The Servicer, for the benefit of the Revolving
Noteholders, shall establish and maintain in the name of the
Indenture Trustee an Eligible Deposit Account known as the
Superior Wholesale Inventory Financing Trust I Revolver
Distribution Account (the "REVOLVER DISTRIBUTION ACCOUNT"),
bearing an additional designation clearly indicating that the
funds deposited therein are held for the benefit of the
Revolving Noteholders.
(iv) Pursuant to the Trust Agreement, the Servicer, for
the benefit of the Certificateholders, shall establish and
maintain at Citibank Delaware in the name of the Owner Trustee
an Eligible Deposit Account known as the Superior Wholesale
Inventory Financing Trust I Certificate Distribution Account
(the "CERTIFICATE DISTRIBUTION ACCOUNT") bearing an additional
designation clearly indicating that the funds deposited
therein are held for the benefit of the Certificateholders.
(v) The Servicer, for the benefit of the
Securityholders, shall establish and maintain in the name of
the Indenture Trustee an Eligible Deposit Account known as the
Superior Wholesale Inventory Financing Trust I Reserve Fund
(the "RESERVE FUND") bearing an additional designation clearly
indicating that the funds deposited therein are held for the
benefit of the Securityholders.
(b) (i) Each of the Designated Accounts shall be
initially established with the Indenture Trustee and shall be
maintained with the Indenture Trustee so long as (A) the
short-term unsecured debt obligations of the Indenture Trustee
have the Required Deposit Rating or (B) each of the Designated
Accounts are maintained in the corporate trust department of
the Indenture Trustee and any securities of the Indenture
Trustee have a credit rating from each Rating Agency then
rating such securities in one of its generic rating categories
that signifies investment grade. All amounts held in the
Designated Accounts (including amounts, if any, which the
Servicer is required to remit daily to the Collection Account
pursuant to Section 6.2) shall, to the extent permitted by
applicable laws, rules and regulations, be invested, at the
written direction of the Servicer, by such bank or trust
company in Eligible Investments (in the name of the Indenture
Trustee or its nominee). Such written direction shall
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constitute certification by the Servicer that any such
investment is authorized by this Section 6.1. Funds deposited
in the Reserve Fund shall be invested in Eligible Investments
and except, and then only to the extent, as shall be otherwise
permitted by the Rating Agencies, such investments shall not
be sold or disposed of prior to their maturity. Should the
short-term unsecured debt obligations of the Indenture Trustee
(or any other bank or trust company with which the Designated
Accounts are maintained) no longer have the Required Deposit
Rating, then the Servicer shall within 10 Business Days (or
such longer period, not to exceed 30 calendar days, as to
which each Rating Agency shall consent), with the Indenture
Trustee's assistance as necessary, cause the Designated
Accounts (A) to be moved to a bank or trust company, the
short-term unsecured debt obligations of which shall have the
Required Deposit Rating, or (B) so long as any securities of
the Indenture Trustee have a credit rating from each Rating
Agency then rating such securities in one of its generic
rating categories that signifies investment grade, to be moved
to the corporate trust department of the Indenture Trustee.
On each Distribution Date, all interest and other investment
earnings (net of losses and investment expenses) on funds
deposited in the Designated Accounts during the related
Collection Period (which shall represent Investment Proceeds)
shall be included in Available Trust Interest and applied as
set forth in Section 4.5(c).
(ii) With respect to the Designated Account Property, the
Indenture Trustee agrees, by its acceptance hereof, that:
(A) any Designated Account Property that is held in
deposit accounts shall be held solely in Eligible Deposit
Accounts; and each such Eligible Deposit Account shall be
subject to the exclusive custody and control of the
Indenture Trustee, and the Indenture Trustee shall have
sole signature authority with respect thereto;
(B) any Designated Account Property that
constitutes Physical Property shall be delivered to the
Indenture Trustee in accordance with paragraph (i) of the
definition of "Delivery" and shall be held, pending
maturity or disposition, solely by the Indenture Trustee
or a financial intermediary (as such term is defined in
Section 8-313(4) of the UCC) acting solely for the
Indenture Trustee;
(C) any Designated Account Property that is a
book-entry security held through the Federal Reserve
System pursuant to federal book-entry regulations shall
be delivered in accordance with paragraph (ii) of the
definition of "Delivery" and shall be maintained by the
Indenture Trustee, pending maturity or disposition,
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through continued book-entry registration of such
Designated Account Property as described in such
paragraph;
(D) any Designated Account Property that is an
"uncertificated security" under Article 8 of the UCC and
that is not governed by clause (C) above shall be
delivered to the Indenture Trustee in accordance with
paragraph (iii) of the definition of "Delivery" and shall
be maintained by the Indenture Trustee, pending maturity
or disposition, through continued registration of the
Indenture Trustee's (or its nominee's) ownership of such
security; and
(E) the Indenture Trustee shall maintain each item
of Designated Account Property in the particular
Designated Account to which such item originated and
shall not commingle items from different Designated
Accounts.
(iii) The Servicer shall have the power, revocable by the
Indenture Trustee (or by the Owner Trustee with the consent of
the Indenture Trustee) to instruct the Indenture Trustee to
make withdrawals and payments from the Designated Accounts for
the purpose of permitting the Servicer or the Owner Trustee to
carry out its respective duties hereunder or permitting the
Indenture Trustee to carry out its duties under the Indenture.
(c) Pursuant to the Trust Agreement, the Owner Trustee
shall possess all right, title and interest in and to all funds on
deposit from time to time in the Certificate Distribution Account
and in all proceeds thereof (except Investment Proceeds). Except as
otherwise provided herein or in the Trust Agreement, the
Certificate Distribution Account shall be under the sole dominion
and control of the Owner Trustee for the benefit of the
Certificateholders. All amounts in the Certificate Distribution
Account shall, to the extent permitted by applicable laws, rules
and regulations, be invested, at the written direction of the
Servicer, by the bank or trust company at which the Certificate
Distribution Account is maintained in Eligible Investments. Such
written direction shall constitute certification by the Servicer
that any such investment is authorized by this Section 6.1(c).
Investments in Eligible Investments shall be made in the name of
the Owner Trustee or its nominee. If, at any time, the Certificate
Distribution Account ceases to be an Eligible Deposit Account, the
Servicer shall within 10 Business Days (or such longer period, not
to exceed 30 calendar days, as to which each Rating Agency may
consent) establish a new Certificate Distribution Account as an
Eligible Deposit Account and shall cause the Owner Trustee to
transfer any cash and/or any investments in the old Certificate
Distribution Account to such new Certificate Distribution Account.
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(d) The Indenture Trustee, the Owner Trustee and each
other Eligible Deposit Institution with whom a Designated Account
or the Certificate Distribution Account is maintained hereby waives
any right of set-off, counterclaim, security interest or bankers'
lien to which it might otherwise be entitled.
SECTION 6.2 COLLECTIONS.
(a) Except as otherwise provided in Section 6.2(b), the
Servicer shall deposit Collections into the Collection Account as
promptly as possible after the date such Collections are processed
by the Servicer, but in no event later than the second Business Day
after such processing date.
(b) Notwithstanding anything in this Agreement to the
contrary, for so long as (i) GMAC is the Servicer, (ii) no
Servicing Default has occurred and is continuing and (iii) (A) GMAC
maintains a short-term rating of at least A-1 by Standard & Poor's
and P-1 by Moody's, (B) GMAC arranges for and maintains a letter of
credit or other form of Specified Support Arrangement in respect of
the Servicer's obligations to make deposits of Collections in the
Collection Account that is acceptable in form and substance to each
Rating Agency or (C) GMAC otherwise obtains the written confirma-
tion from each Rating Agency that the failure by GMAC to make daily
deposits shall not result in a downgrade, suspension or withdrawal
of the rating of any outstanding series or class of Securities with
respect to which it is a Rating Agency (each of clause (i), (ii)
and (iii), a "MONTHLY REMITTANCE CONDITION"), then, subject to any
limitations in the confirmations described in (C) above, if then
applicable, the Servicer need not deposit Trust Principal
Collections and Trust Interest Collections into the Collection
Account on a daily basis, but may make a single deposit into the
Collection Account in same-day or next-day funds not later than
12:00 noon, New York City time, on the Business Day immediately
preceding a Distribution Date (or, with the consent of the
Indenture Trustee, in same-day funds not later than 10:00 a.m., New
York City time, on a Distribution Date) in a net amount equal to
the amount which would have been on deposit in the Collection
Account on such Distribution Date with respect to the related
Collection Period; provided, that the amount of the Cash Collateral
Amount for the last day of any Collection Period shall be deposited
into the Collection Account (to the extent not already on deposit
therein) no later than the second Business Day of the following
Collection Period. If and so long as a Monthly Remittance
Condition ceases to be satisfied, the Servicer shall commence, if
not already doing so, making deposits in accordance with Section
6.2(a) no later than the first day of the first Collection Period
that begins at least two Business Days after the day on which such
Monthly Remittance Condition ceases to be satisfied.
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ARTICLE VII
LIABILITIES OF SERVICER AND OTHERS
SECTION 7.1 LIABILITY OF SERVICER; INDEMNITIES.
(a) The Servicer shall be liable in accordance with this
Agreement only to the extent of the obligations in this Agreement
and the Pooling and Servicing Agreement specifically undertaken by
the Servicer in its capacity as Servicer. Such obligations shall
include the following:
(i) The Servicer shall indemnify, defend and hold harm-
less the Indenture Trustee, the Owner Trustee, the Issuer and
the Securityholders from and against any taxes that may at any
time be asserted against any such Person with respect to the
transactions contemplated in this Agreement, including, with-
out limitation, any sales, gross receipts, general corpora-
tion, 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 any Eligible Receivables to the
Issuer hereunder or the issuance and original sale of any
Securities, or asserted with respect to ownership or sale of
any Eligible Receivables in the Accounts in the Pool of
Accounts or the Securities, or federal or other income taxes
arising out of distributions or receipt of payment on the
Securities, or any fees or other compensation payable to any
such Person) and costs and expenses in defending against the
same;
(ii) The Servicer shall indemnify, defend and hold
harmless the Indenture Trustee, the Owner Trustee, the Issuer
and the Securityholders from and against any and all costs,
expenses, losses, claims, damages and liabilities to the
extent that such cost, expense, loss, claim, damage or
liability arose out of, or was imposed upon the Indenture
Trustee, the Owner Trustee, the Issuer or the Securityholders
through the negligence, wilful misfeasance or bad faith of the
Servicer in the performance of its duties under this
Agreement, the Pooling and Servicing Agreement, the Indenture
or the Trust Agreement or by reason of reckless disregard of
its obligations and duties under this Agreement, the Pooling
and Servicing Agreement, the Indenture or the Trust Agreement;
and
(iii) The Servicer shall indemnify, defend and hold harm-
less the Indenture Trustee and the Owner Trustee, and their
respective agents and servants, from and against all costs,
expenses, losses, claims, damages and liabilities arising out
of or incurred in connection with (x) in the case of the Owner
Trustee, the Indenture Trustee's performance of its duties
under the Indenture, (y) in the case of the Indenture Trustee,
the Owner Trustee's performance of its duties under the Trust
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Agreement or (z) the acceptance, administration or performance
by, or action or inaction of, the Indenture Trustee or the
Owner Trustee, as applicable, of the trusts and duties con-
tained in this Agreement, the Basic Documents, the Indenture
(in the case of the Indenture Trustee), including the admin-
istration of the Owner Trust Estate, and the Trust Agreement
(in case of the Owner Trustee), including the administration
of the Trust Estate, except in each case to the extent that
such cost, expense, loss, claim, damage or liability: (A) is
due to the wilful misfeasance, bad faith or negligence (except
for errors in judgment) of the Person seeking to be
indemnified, (B) to the extent otherwise payable to the
Indenture Trustee, arises from the Indenture Trustee's breach
of any of its representations or warranties in Section 6.13 of
the Indenture, (C) to the extent otherwise payable to the
Owner Trustee, arises from the Owner Trustee's breach of any
of its representations or warranties set forth in Section 6.6
of the Trust Agreement or (D) shall arise out of or be
incurred in connection with the performance by the Indenture
Trustee of the duties of successor Servicer hereunder.
(b) Indemnification under this Section 7.1 shall
include, without limitation, reasonable fees and expenses of coun-
sel and expenses of litigation. If the Servicer has made any
indemnity payments pursuant to this Section 7.1 and the recipient
thereafter collects any of such amounts from others, the recipient
shall promptly repay such amounts collected to the Servicer,
without interest.
SECTION 7.2 MERGER OR CONSOLIDATION OF, OR ASSUMPTION
OF THE OBLIGATIONS OF, THE SERVICER. Any Person (a) into which the
Servicer may be merged or consolidated, (b) resulting from any
merger, conversion or consolidation to which the Servicer shall be
a party, (c) succeeding to the business of the Servicer or (d) more
than 50% of the voting interests of which is owned, directly or
indirectly, by General Motors and which is otherwise servicing
dealer receivables, which Person in any of the foregoing cases
(other than the Servicer as the surviving entity of any such merger
or consolidation) executes an agreement of assumption to perform
every obligation of the Servicer under this Agreement and the
Pooling and Servicing Agreement, shall be the successor to the
Servicer under this Agreement and the Pooling and Servicing
Agreement without the execution or filing of any document or any
further act on the part of any of the parties to this Agreement,
anything in this Agreement or in the Pooling and Servicing
Agreement to the contrary notwithstanding. The Servicer shall
provide notice of any merger, consolidation or succession pursuant
to this Section 7.2 to the Rating Agencies.
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SECTION 7.3 LIMITATION ON LIABILITY OF SERVICER AND
OTHERS.
(a) Neither the Servicer nor any of the directors,
officers, employees or agents of the Servicer in its capacity as
such shall be under any liability to the Issuer, the Indenture
Trustee, the Owner Trustee, the Securityholders or any other
Person, except as specifically provided in this Agreement and in
the Pooling and Servicing Agreement, for any action taken or for
refraining from the taking of any action pursuant to the Basic
Documents or for errors in judgment; PROVIDED, HOWEVER, that this
provision shall not protect the Servicer or any such Person against
any liability that would otherwise be imposed by reason of wilful
misfeasance, bad faith or negligence (except errors in judgment) in
the performance of duties or by reason of reckless disregard of
obligations and duties under the Basic Documents. The Servicer and
any director, officer, employee or agent of the Servicer may rely
in good faith on the advice of counsel or on any document of any
kind prima facie properly executed and submitted by any Person
respecting any matters arising under the Basic Documents.
(b) The Servicer and any director, officer, employee or
agent of the Servicer shall be reimbursed by the Owner Trustee for
any contractual damages, liability or expense (including, without
limitation, any obligation of the Servicer to the Owner Trustee
pursuant to subsection 7.1(a)(iii) (x) or (y)) incurred by reason
of such trustee's wilful misfeasance, bad faith or negligence
(except errors in judgment) in the performance of such trustee's
duties under this Agreement or the Trust Agreement or by reason of
reckless disregard of its obligations and duties under such
agreements.
(c) Except as provided in this Agreement or in the
Pooling and Servicing Agreement, the Servicer shall not be under
any obligation to appear in, prosecute or defend any legal action
that is not incidental to its duties to service the Receivables
arising under the Accounts in the Pool of Accounts in accordance
with this Agreement and the Pooling and Servicing Agreement and
that in its opinion may cause it to incur any expense or liability;
PROVIDED, HOWEVER, that the Servicer may undertake any reasonable
action that it may deem necessary or desirable in respect of the
Basic Documents and the rights and duties of the parties to the
Basic Documents and the interests of the Securityholders under the
Basic Documents. In such event, the legal expenses and costs for
such action and any liability resulting therefrom shall be
expenses, costs and liabilities of the Trust and the Servicer shall
be entitled to be reimbursed therefor.
(d) The Applicable Trustee shall distribute out of the
Collection Account on a Distribution Date any amounts permitted for
reimbursement pursuant to subsection 7.3(c) not therefor
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reimbursed; PROVIDED, HOWEVER, that the Applicable Trustee shall
not distribute such amounts if the amount on deposit in the Reserve
Fund (after giving effect to all withdrawals pursuant to Section
4.5, on such Distribution Date) is less than the Reserve Fund
Required Amount.
SECTION 7.4 DELEGATION OF DUTIES. So long as GMAC
acts as Servicer, the Servicer may, at any time without notice or
consent, delegate any duties under this Agreement or under the
Pooling and Servicing Agreement to any Person more than 50% of the
voting interests of which is owned, directly or indirectly, by
General Motors. The Servicer may at any time perform specific
duties as Servicer through sub-contractors who are in the business
of servicing dealer floor plan automotive or similar receivables;
PROVIDED, HOWEVER, that no such delegation shall relieve the
Servicer of its responsibility with respect to such duties.
SECTION 7.5 SERVICER NOT TO RESIGN. Subject to the
provisions of Section 7.2, the Servicer shall not resign from the
obligations and duties imposed on it by this Agreement and the
Pooling and Servicing Agreement as Servicer except upon
determination that the performance of its duties under this
Agreement or under the Pooling and Servicing Agreement, as the case
may be, is no longer permissible under applicable law. Any such
determination permitting the resignation of the Servicer shall be
evidenced by an Opinion of Counsel to such effect delivered to the
Indenture Trustee and the Owner Trustee. No such resignation shall
become effective until the Indenture Trustee or a successor
servicer shall have assumed the responsibilities and obligations of
the Servicer under the Basic Documents in accordance with Section
7.2.
ARTICLE VIII
DEFAULT
SECTION 8.1 SERVICING DEFAULTS. Each of the following
shall constitute a "Servicing Default":
(a) any failure by the Servicer to deliver to the
Indenture Trustee for deposit in any of the Designated Accounts or
to the Owner Trustee for deposit in the Certificate Distribution
Account any required payment or to direct the Indenture Trustee or
the Owner Trustee to make any required distribution therefrom,
which failure continues unremedied for a period of five Business
Days after written notice is received by the Servicer from the
Indenture Trustee or the Owner Trustee or after discovery of such
failure by an officer of the Servicer;
(b) any failure on the part of the Servicer duly to
observe or perform in any material respect any other covenant or
agreement of the Servicer set forth in this Agreement, the Pooling
and Servicing Agreement, the Indenture or the Trust Agreement,
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which failure (i) materially and adversely affects the rights of
Securityholders and (ii) continues unremedied for a period of 90
days after the date on which written notice of such failure,
requiring the same to be remedied, shall have been given to the
Servicer by the Indenture Trustee or the Owner Trustee, or to the
Servicer, the Indenture Trustee and the Owner Trustee by
Noteholders whose Notes evidence not less than 25% of the
Outstanding Amount of the Notes as of the close of the preceding
Distribution Date or by Certificateholders whose Certificates
evidence not less than 25% of the Voting Interests as of the close
of the preceding Distribution Date or after discovery of such
failure by an officer of the Servicer;
(c) any representation, warranty or certification made
by the Servicer in this Agreement or in any certificate delivered
pursuant to this Agreement proves to have been incorrect when made
and such inaccuracy has a material adverse effect on the rights of
the Securityholders and such material adverse effect continues for
a period of 60 days after the date on which written notice thereof,
requiring the same to be remedied, shall have been given to the
Servicer by the Indenture Trustee or the Owner Trustee; or
(d) the entry of a decree or order by a court or agency
or supervisory authority having jurisdiction in the premises for
the appointment of a conservator, receiver or liquidator for the
Servicer, in any insolvency, readjustment of debt, marshalling of
assets and liabilities or similar proceedings, or for the winding
up or liquidation of their respective affairs, and the continuance
of any such decree or order unstayed and in effect for a period of
90 consecutive days; or
(e) the consent by the Servicer to the appointment of a
conservator or receiver or liquidator in any insolvency,
readjustment of debt, marshalling of assets and liabilities, or
similar proceedings of or relating to the Seller or the Servicer or
of or relating to substantially all of their respective property;
or the Servicer shall admit in writing its inability to pay its
debts generally as they become due, file a petition to take
advantage of any applicable insolvency, bankruptcy or
reorganization statute, make an assignment for the benefit of its
creditors or voluntarily suspend payment of all or substantially
all of its obligations.
Notwithstanding the foregoing, there shall be no
Servicing Default where a Servicing Default would otherwise exist
due to a delay in or failure of performance under Section 8.1(a)
for a period of 10 Business Days, or under Section 8.1(b) or (c)
for a period of 60 days, if the delay or failure giving rise to
such Servicing Default was caused by an act of God or the public
enemy, acts of declared or undeclared war, public disorder,
rebellion or sabotage, epidemics, landslides, lightning, fire,
hurricanes, earthquakes, floods or similar causes. The preceding
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sentence shall not relieve the Servicer from using its best efforts
to perform its obligations in a timely manner in accordance with
the terms of this Agreement and the Pooling and Servicing Agreement
and the Servicer shall provide the Indenture Trustee, the Owner
Trustee, the Seller and the Securityholders with prompt notice of
such failure or delay by it, together with a description of its
efforts so to perform its obligations. The Servicer shall
immediately notify the Indenture Trustee and the Owner Trustee in
writing of any Servicing Default.
SECTION 8.2 CONSEQUENCES OF A SERVICING DEFAULT. If
a Servicing Default shall occur and be continuing, either the
Indenture Trustee or the Noteholders whose Notes evidence not less
than a majority of the Outstanding Amount attributable to such
Notes as of the close of the preceding Distribution Date (or, if
the Notes have been paid in full and the Indenture has been
discharged with respect thereto, by the Owner Trustee or
Certificateholders whose Certificates evidence not less than a
majority of the Voting Interests as of the close of the preceding
Distribution Date) by notice then given in writing to the Servicer
and the Owner Trustee (and to the Indenture Trustee if given by the
Noteholders or the Certificateholders) may terminate all, but not
less than all, of the rights and obligations (other than its
obligations that have accrued up to the time of such termination)
of the Servicer under this Agreement and the Pooling and Servicing
Agreement. On or after the receipt by the Servicer of such written
notice, all authority and power of the Servicer under this
Agreement and the Pooling and Servicing Agreement, whether with
respect to the Notes, the Certificates, the Accounts in the Pool of
Accounts, the related Receivables (including those held by the
Trust and those retained by GMAC) or otherwise, shall pass to and
be vested in the Indenture Trustee pursuant to and under this
Section 8.2. The Indenture Trustee is hereby authorized and
empowered (upon the failure of the Servicer to cooperate) to
execute and deliver, on behalf of the 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 Receivables arising
under the Accounts in the Pool of Accounts and related documents,
or otherwise. The Servicer agrees to cooperate with the Indenture
Trustee and the Owner Trustee in effecting the termination of the
responsibilities and rights of the Servicer under this Agreement
and the Pooling and Servicing Agreement, including, without
limitation, the transfer to the Indenture Trustee or the Owner
Trustee for administration by it of all Collections that shall at
the time be held by the Servicer for deposit, or that shall have
been deposited by the Servicer in the Collection Account, the Note
Distribution Account, the Revolver Distribution Account or the
Certificate Distribution Account or thereafter received with
respect to the Receivables in the Accounts in the Pool of Accounts
that shall at that time be held by the Servicer. In addition to
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any other amounts that are then payable to the Servicer under this
Agreement, the Servicer shall be entitled to receive from the
successor Servicer, as described in Section 8.6, reimbursements for
any outstanding Servicer Advances made during the period prior to
the notice pursuant to this Section 8.2 which terminates the
obligation and rights of the Servicer under this Agreement. To the
extent that compliance with this Section 8.2 shall require the
Servicer to disclose to the successor Servicer information of any
kind which the Servicer reasonably deems to be confidential, the
successor Servicer shall be required to enter into such customary
licensing and confidentiality agreements as the Servicer shall deem
necessary to protect its interest.
SECTION 8.3 INDENTURE TRUSTEE TO ACT; APPOINTMENT OF
SUCCESSOR.
(a) On and after the time the Servicer receives a notice
of termination pursuant to Section 8.2, the Indenture Trustee shall
be the successor in all respects to the Servicer in its capacity as
servicer under this Agreement and the Pooling and Servicing
Agreement and the transactions set forth or provided for in this
Agreement and the Pooling and Servicing Agreement, and shall be
subject to all the responsibilities, restrictions, duties and
liabilities relating thereto placed on the Servicer by the terms
and provisions of this Agreement and the Pooling and Servicing
Agreement. As compensation therefor, the Indenture Trustee shall
be entitled to such compensation (whether payable out of the
Collection Account or otherwise) as the Servicer would have been
entitled to under this Agreement if no such notice of termination
had been given. Notwithstanding the above, the Indenture Trustee
may, if it is unwilling to so act, or shall, if it is legally
unable so to act, appoint, or petition a court of competent
jurisdiction for the appointment of, a successor (i) having a net
worth of not less than $100,000,000, (ii) a long-term unsecured
debt rating from Moody's of at least Baa3 (unless such requirement
is expressly waived by Moody's) and (iii) whose regular business
includes the servicing of dealer floor plan automotive receivables,
as the successor to the Servicer under this Agreement and the
Pooling and Servicing Agreement in the assumption of all or any
part of the responsibilities, duties or liabilities of the Servicer
under this Agreement and the Pooling and Servicing Agreement
(except that such successor shall not be liable for any liabilities
incurred by any predecessor Servicer). Any successor to the
Servicer shall automatically agree to be bound by the terms and
provisions of any Specified Support Arrangement. In connection
with such appointment and assumption, the Indenture Trustee may
make such arrangements for the compensation of such successor out
of Collections as it and such successor shall agree; PROVIDED,
HOWEVER, that no such compensation shall be in excess of that
permitted the Servicer under this Agreement and the Pooling and
Servicing Agreement. The Indenture Trustee and such successor
shall take such action, consistent with this Agreement and the
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Pooling and Servicing Agreement, as shall be necessary to
effectuate any such succession.
(b) All authority and power granted to any successor
Servicer under this Agreement shall automatically cease and
terminate upon termination of the Trust pursuant to Section 7.1 of
the Trust Agreement, and shall pass to and be vested in the Seller
and, without limitation, the Seller is hereby authorized and
empowered to execute and deliver, on behalf of the successor
Servicer, as attorney-in-fact or otherwise, all documents and other
instruments, and to do and accomplish all other acts or things
necessary or appropriate to effect the purposes of such transfer of
servicing rights. The successor Servicer agrees to cooperate with
the Seller in effecting the termination of the responsibilities and
rights of the successor Servicer under this Agreement and the
Pooling and Servicing Agreement. The successor Servicer shall
transfer to the Seller its electronic records relating to the
Accounts and the Receivables serviced hereunder in such electronic
form as the Seller may reasonably request and shall transfer to the
Seller all other records, correspondence and documents in the
manner and at such times as the Seller shall reasonably request.
To the extent that compliance with this Section 8.3 shall require
the successor Servicer to disclose to the Seller information of any
kind which the successor Servicer deems to be confidential, the
Seller shall be required to enter into such customary licensing and
confidentiality agreements as the successor Servicer shall deem
necessary to protect its interests.
SECTION 8.4 NOTIFICATION TO SECURITYHOLDERS. Upon any
termination of, or appointment of a successor to, the Servicer
pursuant to this Article VIII, the Indenture Trustee shall give
prompt written notice thereof to the Term Noteholders, the
Revolving Noteholders and the Rating Agencies and the Owner Trustee
shall give prompt written notice thereof to the Certificateholders.
SECTION 8.5 WAIVER OF PAST DEFAULTS. Noteholders
whose Notes evidence not less than a majority of the Outstanding
Amount of the Notes as of the close of the preceding Distribution
Date (or, if all of the Notes have been paid in full and the
Indenture has been discharged in accordance with its terms,
Certificateholders whose Certificates evidence not less than a
majority of the Voting Interests as of the close of the preceding
Distribution Date), voting as a single class, may, on behalf of all
Securityholders, waive any default by the Servicer in the
performance of its obligations hereunder and under the Pooling and
Servicing Agreement and its consequences, except a Servicing
Default under Section 8.1(a) of this Agreement. Upon any such
waiver of a past default, such default shall cease to exist, and
any Servicing Default arising therefrom shall be deemed to have
been remedied for every purpose of this Agreement and the Pooling
and Servicing Agreement. No such waiver shall extend to any
subsequent or other default or impair any right consequent thereon.
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SECTION 8.6 REPAYMENT OF ADVANCES. If the identity of
the Servicer shall change, the predecessor Servicer shall be
entitled to receive, to the extent of available funds,
reimbursement for Servicer Advances in the manner specified in
Section 4.5, with respect to all previously unreimbursed Servicer
Advances made by such predecessor Servicer prior to the
reimbursement of any Servicer Advances made by the successor
Servicer.
ARTICLE IX
EARLY AMORTIZATION EVENTS; TERMINATION
SECTION 9.1 EARLY AMORTIZATION EVENTS. If any one of
the following events shall occur:
(a) an Insolvency Event with respect to the Seller or
the Servicer (or GMAC, if it is not the Servicer);
(b) General Motors shall file a petition commencing a
voluntary case under any chapter of the Federal bankruptcy laws; or
General Motors shall file a petition or answer or consent seeking
reorganization, arrangement, adjustment or composition under any
other similar applicable Federal law, or shall consent to the
filing of any such petition, answer or consent; or General Motors
shall appoint, or consent to the appointment of, a custodian,
receiver, liquidator, trustee, assignee, sequestrator or other
similar official in bankruptcy or insolvency of it or of any
substantial part of its property; or General Motors shall make an
assignment for the benefit of creditors, or shall admit in writing
its inability to pay its debts generally as they become due;
(c) any order for relief against General Motors shall
have been entered by a court having jurisdiction in the premises
under any chapter of the Federal bankruptcy laws, and such order
shall have continued undischarged or unstayed for a period of 60
days; or a decree or order by a court having jurisdiction in the
premises shall have been entered approving as properly filed a
petition seeking reorganization, arrangement, adjustment or
composition of General Motors under any other similar applicable
Federal law, and such decree or order shall have continued undis-
charged or unstayed for period of 120 days; or a decree or order of
a court having jurisdiction in the premises for the appointment of
a custodian, receiver, liquidator, trustee, assignee, sequestrator
or other similar official in bankruptcy or insolvency of General
Motors or of any substantial part of its property, or for the
winding up or liquidation of its affairs, shall have been entered,
and such decree or order shall have remained in force undischarged
or unstayed for a period of 120 days;
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(d) failure on the part of the Seller, the Servicer or
GMAC, as applicable, (i) to pay (or set aside for payment) pursuant
to Section 4.5(d)(ii) and (iii) all amounts required to be paid as
principal on any Notes or distributed as Certificate Balance on any
Certificates on or before the applicable Stated Final Payment Date;
(e) failure on the part of the Seller, the Servicer or
GMAC, as applicable, to duly observe or perform in any material
respect any other covenants or agreements of the Seller, the
Servicer or GMAC, as the case may be, set forth in this Agreement
or the Pooling and Servicing Agreement, which failure continues
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 by the Indenture Trustee or the Owner Trustee to
the Seller, PROVIDED, HOWEVER, that no Early Amortization Event
shall be deemed to occur if the Receivables affected by such
failure are repurchased by the Seller or the Servicer or GMAC (if
GMAC is not the Servicer), as applicable, in accordance with the
Basic Documents;
(f) any representation or warranty made by GMAC in the
Pooling and Servicing Agreement or the Seller in this Agreement or
any information contained on the Schedule of Accounts, (i) shall
prove to have been incorrect in any material respect when made or
when delivered, and shall continue to be incorrect in any material
respect 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 to the Seller by the Indenture Trustee or the Owner
Trustee and (ii) as a result of such incorrectness the interests of
the Securityholders are materially and adversely affected,
PROVIDED, HOWEVER, that no Early Amortization Event shall be deemed
to occur if the Receivables relating to such representation or
warranty are repurchased by GMAC or the Seller, as applicable, in
accordance with the Basic Documents;
(g) on any Distribution Date, the average of the Monthly
Payment Rates for the three preceding Collection Periods is less
than 20%;
(h) on any three consecutive Distribution Dates, the
amount on deposit in the Reserve Fund is less than the Reserve Fund
Required Amount;
(i) on any Distribution Date, as of the last day of the
related Collection Period, the aggregate principal balance of
Receivables owned by the Trust which were advanced against Used
Vehicles exceeded 10% of the Daily Trust Balance (for purposes of
this clause (i), General Motors vehicles that are sold to daily
rental car operations, repurchased pursuant to General Motors
repurchase agreements and subsequently sold at auction to a General
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Motors-franchised dealer shall not be considered to be Used
Vehicles);
(j) a notice setting forth one or more Events of Default
under the Indenture and declaring the unpaid principal amount of
Outstanding Notes (together with accrued and unpaid interest
thereon) immediately due and payable has been given pursuant to
Section 5.2(a) of the Indenture; PROVIDED, HOWEVER, that if no
other Early Amortization Event has occurred and is continuing and
so long as the Scheduled Revolving Period Termination Date has not
occurred, if the Seller so elects, the Early Amortization Period
resulting from such occurrence shall terminate and the Revolving
Period shall recommence if a notice rescinding and annulling such
declaration has been given pursuant to the Indenture;
(k) on any Distribution Date, the Reserve Fund Required
Amount for such Distribution Date exceeds the amount on deposit in
the related Reserve Fund by more than the Reserve Fund Trigger
Amount;
(l) on any Distribution Date, the average Daily Trust
Balance is less than 75% of the sum of the average Outstanding
Amount of the Term Notes and the average Certificate Balance (in
each case, such average being determined over the six Collection
Periods immediately preceding such Distribution Date (or, if
shorter, the period from the Initial Closing Date through and
including the last day of the immediately preceding Collection
Period));
(m) the Basis Swap or any similar arrangement related to
any Securities issued after the Initial Closing Date is terminated,
revoked, withdrawn, rescinded or found by a court of competent
jurisdiction to be unenforceable;
(n) on any Distribution Date, as of the last day of each
of the two immediately preceding Collection Periods, the aggregate
principal balance of all Available Receivables is less than 70% of
the aggregate principal balance of all Receivables (including
Receivables included in the Retained Property) in the Accounts in
the Pool of Accounts;
(o) for the last day of any Collection Period the
aggregate principal balance of the Eligible Receivables plus the
Cash Collateral Amount equals less than the sum of the aggregate
Outstanding Amount of all the Notes plus the aggregate outstanding
Certificate Balance and such situation remains unremedied on the
tenth day of the following Collection Period; or
(p) any other Early Amortization Event set forth in the
Officer's Issuance Certificate related to any series of Notes;
then, subject to applicable law, and after the applicable grace
period, if any, an amortization event (an "EARLY AMORTIZATION
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EVENT") shall occur without any notice or other action on the part
of any party immediately upon the occurrence of such event.
SECTION 9.2 INSOLVENCY EVENTS.
(a) Upon any sale, disposition or other liquidation of
the assets of the Trust pursuant to Section 7.2 of the Trust
Agreement or Article V of the Indenture, the Servicer shall
instruct the Applicable Trustee to deposit into the Collection
Account, respectively, (x) the proceeds from such sale, disposition
or other liquidation pursuant to the Trust Agreement after all pay-
ments and reserves therefrom have been made and (y) the amounts
specified in Section 5.4(b) of the Indenture (in either case, the
"INSOLVENCY PROCEEDS"). The Servicer shall determine conclusively
the amount of the Insolvency Proceeds which are deemed to be Trust
Interest Collections and Trust Principal Collections. The
Insolvency Proceeds shall be allocated and distributed to the
Securityholders in accordance with Article IV on the next
Distribution Date and the Trust (if not already so terminated) and
the Trust Agreement shall terminate as provided in Section 7.1 of
the Trust Agreement.
(b) Subject to Section 6.1(b), any investments on
deposit in the Reserve Fund which shall not mature on or before
such Distribution Date shall be sold by the Indenture Trustee at
such time as shall result in the Indenture Trustee receiving the
proceeds from such sale not later than the day immediately
preceding such Distribution Date. Any Insolvency Proceeds
remaining after the deposits described above shall be paid to the
Seller.
SECTION 9.3 OPTIONAL PURCHASE BY THE SERVICER. During
the Wind Down Period, from and after the time the Daily Trust
Balance is 10% or less of the sum of the Daily Trust Balance and
the Cash Collateral Amount as of the last day of the Revolving
Period, the Servicer shall have the option to purchase, as of the
last day of any Collection Period, the assets of the Trust other
than the Designated Accounts and the Certificate Distribution
Account. To exercise such option, with respect to any Collection
Period, the Servicer shall deposit in the Collection Account an
amount equal to the aggregate Administrative Purchase Payments for
the Receivables (including Defaulted Receivables) held by the Trust
on the last day of such Collection Period, plus the appraised value
of any such other property held by the Trust, such value to be
determined by an appraiser mutually agreed upon by the Servicer,
the Owner Trustee and the Indenture Trustee. Thereupon, the
Servicer shall succeed to all interests in and to the assets of the
Trust (other than the Designated Accounts and the Certificate
Distribution Account) and the Trust shall assign all such interest
to the Servicer. The amount so paid to the Trust shall be treated
as Additional Trust Principal to the extent of the principal
portion of the aggregate Administrative Purchase Payment so paid,
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with the remainder being Available Trust Interest on the related
Distribution Date.
SECTION 9.4 TERMINATION. Notice of any termination of
the Trust and the Trust Agreement shall be given by the Servicer to
the Owner Trustee and the Indenture Trustee as soon as practicable
after the Servicer has received notice thereof. Following the
satisfaction and discharge of the Indenture and the payment in full
of principal and interest on the Term Notes and the Revolving
Notes, the Certificateholders shall succeed to the rights of the
Term Noteholders and the Revolving Noteholders hereunder and the
Owner Trustee shall succeed to the rights of, and assume the
obligations of, the Indenture Trustee pursuant to this Agreement
(subject to the continuing obligations of the Indenture Trustee set
forth in Section 4.4 of the Indenture). After payment to the
Indenture Trustee, the Owner Trustee, the Securityholders
(including any deposit into the Distribution Accounts for the
benefit of the Securityholders) and the Servicer of all amounts
required to be paid (or so deposited) under this Agreement, the
Indenture and the Trust Agreement, any amounts on deposit in the
Reserve Fund and the Collection Account (after all other
distributions required to be made from the Reserve Fund have been
made and all distributions to GMAC on account of the Retained
Property have been made) and any other assets of the Trust,
including any Receivables held by the Trust, shall be paid and
delivered to the Seller and this Agreement (except for Section 7.1)
shall be terminated.
ARTICLE X
MISCELLANEOUS PROVISIONS
SECTION 10.1 AMENDMENT.
(a) This Agreement may be amended by the Seller, the
Servicer and the Owner Trustee with the consent of the Indenture
Trustee, but without the consent of any of the Securityholders,
(i) to cure any ambiguity, (ii) to correct or supplement any
provision in this Agreement that may be defective or inconsistent
with any other provision in this Agreement, (iii) to add or supple-
ment any Specified Support Arrangement for the benefit of any
Securityholders (provided that if any such addition shall affect
any series or class of Securityholders differently than any other
series or class of Securityholders, then such addition shall not,
as evidenced by an Opinion of Counsel, adversely affect in any
material respect the interests of any series or class of Security-
holders), (iv) to add to the covenants, restrictions or obligations
of the Seller, the Servicer, the Owner Trustee or the Indenture
Trustee for the benefit of the Securityholders or (v) to add,
change or eliminate any other provision of this Agreement in any
manner that shall not, as evidenced by an Opinion of Counsel,
adversely affect in any material respect the interests of the
Securityholders.
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(b) This Agreement may also be amended from time to time
by the Seller, the Servicer and the Owner Trustee with the consent
of the Indenture Trustee, the consent of Noteholders whose Notes
evidence not less than a majority of the Outstanding Amount of the
Notes as of the close of the preceding Distribution Date and the
consent of Certificateholders whose Certificates evidence not less
than a majority of the Voting Interests as of the close of the
preceding Distribution Date (which consent, whether given pursuant
to this Section 10.1 or pursuant to any other provision of this
Agreement, shall be conclusive and binding on such Person and on
all future holders of such Security and of any Security issued upon
the transfer thereof or in exchange thereof or in lieu thereof
whether or not notation of such consent is made upon the Security)
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 Securityholders;
PROVIDED, HOWEVER, that no such amendment shall (i) increase or
reduce in any manner the amount of, or accelerate or delay the
timing of, distributions or payments that shall be required to be
made on any Security without the consent of the holder thereof (it
being understood that the issuance of any Securities after the
Initial Closing Date as contemplated by this Agreement, the
Indenture and the Trust Agreement and the specification of the
terms and provisions thereof pursuant to an Officer's Issuance
Certificate (with respect to any Notes) or a Certificate Issuance
Order (with respect to any Certificates) shall not be deemed to
have such effect for purposes hereof) , (ii) adversely effect the
rating of any series or class of Securities by any Rating Agency
without the consent of the holders of two-thirds of the Outstanding
Amount of such series of Notes or the Voting Interests of such
class of Certificates, as appropriate, or (iii) reduce the
aforesaid percentage required to consent to any such amendment,
without the consent of such aforesaid percentage of
Securityholders.
(c) Prior to the execution of any such amendment,
supplement or consent, the Servicer shall furnish written
notification of the substance of such amendment or consent to the
Rating Agencies.
(d) Promptly after the execution of any such amendment,
supplement or consent, the Owner Trustee shall furnish written
notification of the substance of such amendment or consent to each
Securityholder.
(e) It shall not be necessary for the consent of
Securityholders pursuant to subsection 10.1(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
Securityholders provided for in this Agreement or in any other
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Basic Document) and of evidencing the authorization of the
execution thereof by Securityholders shall be subject to such
reasonable requirements as the Indenture Trustee or the Owner
Trustee may prescribe, including the establishment of record dates
pursuant to paragraph number 2 of the Depository Agreements.
(f) Prior to the execution of any amendment to this
Agreement, the Indenture Trustee and the Owner Trustee shall be
entitled to receive and rely upon an Opinion of Counsel stating
that the execution of such amendment is authorized or permitted by
this Agreement and the Opinion of Counsel referred to in subsection
10.2(i). The Indenture Trustee and the Owner Trustee may, but
shall not be obligated to, enter into any such amendment which
affects such trustee's own rights, duties or immunities under this
Agreement or otherwise.
(g) Each of GMAC and the Seller agrees that such Person
shall not amend or agree to any amendment of the Pooling and
Servicing Agreement unless such amendment would be permissible
under the terms of this Section 10.1 as if this Section 10.1 were
contained in the Pooling and Servicing Agreement.
SECTION 10.2 PROTECTION OF TITLE TO THE OWNER TRUST
ESTATE.
(a) The Seller or the Servicer or both shall execute and
file such financing statements and cause to be executed and filed
such continuation statements or other 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 Securityholders,
the Indenture Trustee and the Owner Trustee hereunder in the
Receivables in the Accounts in the Pool of Accounts and the related
Collateral Security and in the proceeds thereof (including, without
limitation, the filing of UCC-1 financing statements on or prior to
the Initial Closing Date). The Seller or the Servicer or both
shall deliver (or cause to be delivered) to the Indenture Trustee
and the Owner Trustee file-stamped copies of, or filing receipts
for, any document filed as provided above, as soon as available
following such filing. The Seller agrees to use reasonable efforts
to cause GMAC to comply with its obligations under Section 7.02 of
the Pooling and Servicing Agreement.
(b) Within 60 days after the Seller or the Servicer make
any change in its name, identity or corporate structure that would
make any financing statement or continuation statement filed in
accordance with paragraph (a) above seriously misleading within the
meaning of Section 9-402(7) of the UCC, the Seller or the Servicer
as applicable shall give the Indenture Trustee and the Owner
Trustee notice of any such change.
(c) Each of the Seller and the Servicer shall give the
Indenture Trustee and the Owner Trustee at least 60 days prior
- 47 -
<PAGE>52
written notice of any relocation of its principal executive office
if, as a result of such relocation, the applicable provisions of
the UCC would require the filing of any amendment of any previously
filed financing or continuation statement or of any new financing
statement. The Servicer shall at all times maintain each office
from which it services Receivables arising under the Accounts in
the Pool of Accounts and its principal executive office within the
United States of America.
(d) The Servicer shall maintain accounts and records as
to each Eligible Receivable arising under an Account in the Pool of
Accounts 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 such Receivable and the
amounts from time to time deposited in the Collection Account, Note
Distribution Account, Revolver Distribution Account and Certificate
Distribution Account.
(e) In connection with the sale and transfer hereunder
of the Receivables in the Accounts in the Pool of Accounts and the
related Collateral Security from the Seller to the Trust, the
Seller shall, at its own expense, on or prior to the Initial
Closing Date, in the case of the Initial Accounts, and on or prior
to the applicable Addition Date, in the case of Additional
Accounts, (i) indicate in its computer files and cause GMAC to
indicate in its computer files as required by the Pooling and
Servicing Agreement, that the Eligible Receivables in the Accounts
in the Pool of Accounts have been sold and transferred, and the
Collateral Security assigned, to the Seller pursuant to the Pooling
and Servicing Agreement and that such property has been sold and
transferred to the Trust pursuant to this Agreement for the benefit
of the Securityholders and (ii) deliver (or cause GMAC to deliver)
a true and complete list of all such Accounts to the Owner Trustee
specifying for each such Account, as of the Initial Cut-Off Date,
in the case of the Initial Accounts, and as of the applicable
Additional Cut-Off Date, in the case of Additional Accounts, its
account number and the outstanding principal balance of Eligible
Receivables in such Account. Such list, as supplemented from time
to time to reflect Additional Accounts, Selected Accounts and
Removed Accounts (including Accounts removed as described in
Section 2.9), shall be the Schedule of Accounts to this Agreement
and is hereby incorporated into and made a part of this Agreement.
The Owner Trustee shall be under no obligation whatsoever to verify
the accuracy or completeness of the information contained in the
Schedule of Accounts from time to time.
(f) If at any time the Seller or the Servicer proposes
to sell, grant a security interest in, or otherwise transfer any
interest in dealer floor plan automotive receivables to any
prospective purchaser, lender or other transferee, the Servicer
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<PAGE>53
shall give to such prospective purchaser, lender or other
transferee computer tapes, records or print-outs (including any
restored from back-up archives) that, if they refer in any manner
whatsoever to any Eligible Receivable arising under an Account in
the Pool of Accounts indicate clearly that an interest in such
Receivable has been sold and is owned by the Issuer.
(g) The Servicer shall permit the Indenture Trustee and
the Owner Trustee and their respective agents at any time to
inspect, audit and make copies of and abstracts from the Servicer's
records regarding any Receivable then or previously included in the
Owner Trust Estate.
(h) The Servicer shall furnish to the Indenture Trustee
and the Owner Trustee at any time upon request a list of all
Accounts then included in the Pool of Accounts, together with a
reconciliation of such list to the Schedule of Accounts as
initially furnished hereunder and to each notice furnished before
such request indicating removal from or addition to the Accounts in
the Pool of Accounts. Upon request, the Servicer shall furnish a
copy of any such list to the Seller. The Indenture Trustee, the
Owner Trustee and the Seller shall hold any such list and the
Schedule of Accounts and a copy of the Pooling and Servicing
Agreement, the Trust Sale and Servicing Agreement and the Indenture
for examination by interested parties during normal business hours
at their respective Corporate Trust Offices or, in the case of the
Seller, at its office, located at the addresses set forth in
Section 10.3.
(i) The Servicer shall deliver to the Indenture Trustee
and the Owner Trustee promptly after the execution and delivery of
this Agreement and of each amendment or supplement hereto, an
Opinion of Counsel either (a) stating that, in the opinion of such
counsel, all financing statements and continuation statements have
been executed and filed that are necessary fully to preserve and
protect the interest of the Indenture Trustee and the Owner Trustee
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) stating that, in the opinion of such counsel, no such
action is necessary to preserve and protect such interest.
(j) To the extent required by law, the Seller shall
cause the Term Notes (other than any Unregistered Notes) to be
registered with the Securities and Exchange Commission pursuant to
Section 12(b) or Section 12(g) of the Exchange Act within the time
periods specified in such sections.
SECTION 10.3 NOTICES. All demands, notices and
communications under this Agreement shall be in writing, personally
delivered, sent by electronic facsimile (with a hard copy to follow
via first class mail) or mailed by certified mail, return receipt
requested, and shall be deemed to have been duly given upon receipt
- 49 -
<PAGE>54
(a) in the case of the Seller, at the following address: Wholesale
Auto Receivables Corporation, Corporation Trust Center, 1209 Orange
Street, Wilmington, Delaware 19801, with a copy to: J. B. Van
Orman, Vice President, 3044 West Grand Boulevard, Detroit, Michigan
48202, (b) in the case of the Servicer, at the following address:
F. A. Henderson, Group Vice President, General Motors Acceptance
Corporation, 3044 West Grand Boulevard, Detroit, Michigan 48202,
(c) in the case of the Trust or the Indenture Trustee, at its
Corporate Trust Office, (d) in the case of the Trust or the Owner
Trustee, to the Owner Trustee at its Corporate Trust Office, (e) in
the case of Moody's, to Moody's Investors Service, Inc., ABS
Monitoring Department, 99 Church Street, New York, New York 10007,
and (f) in the case of Standard & Poor's, to Standard & Poor's
Ratings Group, 26 Broadway, 20th Floor, New York, New York 10004,
Attention: Asset Backed Surveillance Department, or at such other
address as shall be designated by such party in a written notice to
the other parties.
SECTION 10.4 GOVERNING LAW. THIS AGREEMENT SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF
THE STATE OF NEW YORK, WITHOUT REFERENCE TO THE PRINCIPLES OF
CONFLICTS OF LAW THEREOF OR OF ANY OTHER JURISDICTION, AND THE
OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE
DETERMINED IN ACCORDANCE WITH SUCH LAWS.
SECTION 10.5 SEVERABILITY OF PROVISIONS. 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
enforceable to the fullest extent permitted, and if not so
permitted, shall be deemed severable from the remaining covenants,
agreements, provisions or terms of this Agreement and shall in no
way affect the validity or enforceability of the other provisions
of this Agreement or of any of the Securities or rights of any
Interested Parties.
SECTION 10.6 ASSIGNMENT. Notwithstanding anything to
the contrary contained herein, this Agreement may not be assigned
by the Seller without the prior written consent of Noteholders
whose Notes evidence not less than 66% of the Outstanding Amount of
the Notes as of the close of the preceding Distribution Date and of
Certificateholders whose Certificates evidence not less than 66% of
the Voting Interests as of the close of the preceding Distribution
Date. The Seller shall provide notice of any such assignment to
the Rating Agencies.
SECTION 10.7 THIRD-PARTY BENEFICIARIES. This Agreement
shall inure to the benefit of and be binding upon the parties
hereto, the Securityholders and their respective successors and
permitted assigns. Except as otherwise provided in Section 7.1 or
in this Article X, no other person shall have any right or
obligation hereunder.
- 50 -
<PAGE>55
SECTION 10.8 COUNTERPARTS. This Agreement may be
executed in two or more counterparts (and by different parties on
separate counterparts), each of which shall be an original, but all
of which together shall constitute one and the same instrument.
SECTION 10.9 HEADINGS. The headings herein are for
purposes of reference only and shall not otherwise affect the
meaning or interpretation of any provision hereof.
SECTION 10.10 ASSIGNMENT TO INDENTURE TRUSTEE. The
Seller hereby acknowledges and consents to any 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 and (only to the extent expressly provided herein and
in the Indenture) the Certificateholders of all right, title and
interest of the Issuer in, to and under the Receivables and/or the
assignment of any or all of the Issuer's rights and obligations
hereunder to the Indenture Trustee.
SECTION 10.11 NO PETITION COVENANTS. Notwithstanding
any prior termination of this Agreement, the Servicer and the
Seller shall not, prior to the date which is one year and one day
after the final distribution with respect to the Securities to the
Note Distribution Account, the Revolver Distribution Account or the
Certificate Distribution Account, as applicable, acquiesce,
petition or otherwise invoke or cause the Issuer to invoke the
process of any court or governmental authority for the purpose of
commencing or sustaining a case against the Issuer under any
federal or state bankruptcy, insolvency or similar law or
appointing a receiver, liquidator, assignee, trustee, custodian,
sequestrator or other similar official of the Issuer or any
substantial part of its property, or ordering the winding up or
liquidation of the affairs of the Issuer.
SECTION 10.12 FURTHER ASSURANCES. The Seller, the Owner
Trustee and the Indenture Trustee agree to do and perform from time
to time, any and all acts and to execute any and all further
instruments required or reasonably requested by the other more
fully to effect the purposes of this Agreement, including the
execution of any financing statements or continuation statements
relating to the Accounts for filing under the provisions of the
Uniform Commercial Code of any applicable jurisdiction and to
evidence the repurchase of any interest in any Receivable by GMAC,
the Seller or the Servicer.
SECTION 10.13 NO WAIVER; CUMULATIVE REMEDIES. No
failure or delay on the part of the Owner Trustee or the Indenture
Trustee in exercising any right, remedy, power or privilege under
this Agreement shall operate as a waiver thereof nor shall any
single or partial exercise of any right, remedy, power or privilege
under this Agreement preclude any other or further exercise thereof
or the exercise of any other right, remedy, power or privilege.
- 51 -
<PAGE>56
The rights, remedies, powers and privileges herein provided are
cumulative and not exhaustive of any rights, remedies, power and
privileges provided by law.
SECTION 10.14 MERGER AND INTEGRATION. Except as
specifically stated otherwise herein, this Agreement sets forth the
entire understanding of the parties relating to the subject matter
hereof, and all prior understandings, written or oral, are
superseded by this Agreement. This Agreement may not be modified,
amended, waived or supplemented except as provided herein.
SECTION 10.15 LIMITATION OF LIABILITY OF INDENTURE
TRUSTEE AND OWNER TRUSTEE.
(a) Notwithstanding anything contained herein to the
contrary, this Agreement has been acknowledged and accepted by The
Bank of New York not in its individual capacity but solely as
Indenture Trustee and in no event shall The Bank of New York 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, the Indenture
Trustee shall be subject to, and entitled to the benefits of, the
terms and provisions of Article VI of the Indenture.
(b) Notwithstanding anything contained herein to the
contrary, this Agreement has been executed by Citibank Delaware not
in its individual capacity but solely in its capacity as Owner
Trustee of the Issuer and in no event shall Citibank Delaware in
its individual capacity or, except as expressly provided in the
Trust Agreement, as Owner Trustee of the Issuer 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 Article VI of the Trust Agreement.
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<PAGE>57
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed by their respective officers hereunto
duly authorized as of the day and year first above written.
SUPERIOR WHOLESALE INVENTORY FINANCING
TRUST I, Issuer
By: Citibank Delaware, not in its
individual capacity but solely as
Owner Trustee on behalf of the
Trust,
By: ______________________________
Name:
Title:
WHOLESALE AUTO RECEIVABLES CORPORATION,
Seller
By: ___________________________________
Name: C. J. Rutkowski
Title: Vice President
GENERAL MOTORS ACCEPTANCE CORPORATION,
Servicer
By: ___________________________________
Name: J. B. Van Orman, Jr.
Title: Vice President
Acknowledged and Accepted:
The Bank of New York, not in its
individual capacity but solely
as Indenture Trustee,
By: ______________________________
Name:
Title:
<PAGE>58
EXHIBIT A
FORM OF ASSIGNMENT FOR THE INITIAL CLOSING DATE
For value received, in accordance with the Trust Sale and Servicing
Agreement, dated as of January 25, 1994 (the "TRUST SALE AND
SERVICING AGREEMENT"), between General Motors Acceptance Corpora-
tion, a corporation incorporated under the New York Banking Law
relating to investment companies, as Servicer ("GMAC"), Wholesale
Auto Receivables Corporation, a Delaware corporation (the
"SELLER"), and Superior Wholesale Inventory Financing Trust I (the
"TRUST"), the Seller does hereby sell, assign, transfer and
otherwise convey unto the Trust, without recourse, all of its
right, title and interest in, to and under (i) all of the Eligible
Receivables existing in the Accounts listed in the Schedule of
Accounts as of the close of business on the Initial Cut-Off Date
and, so long as each such Account is included in the Pool of
Accounts, all Eligible Receivables created or deemed created
thereunder on each Receivables Purchase Date, all monies due or to
become due thereon after the Initial Cut-Off Date or such
Receivables Purchase Date, as appropriate, all Collateral Security
with respect thereto and all amounts received with respect thereto,
(ii) Article IV and Section 6.03 of the Pooling and Servicing
Agreement, dated as of January 25, 1994, between GMAC and the
Seller, with respect to such Receivables, (iii) the Custodian
Agreement with respect to such Receivables and (iv) all proceeds of
the foregoing (including "proceeds" as defined in Section 9-306 of
the UCC and Recoveries), in each case, as more fully described in
the Trust Sale and Servicing Agreement.
The foregoing sale, transfer, assignment and conveyance and any
sales, transfers, assignments and conveyances subsequent to the
date hereof do not constitute, and are not intended to result in,
the creation or an assumption by the Trust of any obligation of the
Seller, GMAC, General Motors or any other Person in connection with
the Accounts, the Receivables or under any agreement or instrument
relating thereto, including any obligation to any Dealers.
It is the intention of Seller and the Trust that the transfers and
assignments contemplated by this Assignment, including transfers
and assignments subsequent to the date hereof, shall constitute a
sale of the property described herein and in the Pooling and
Servicing Agreement from the Seller to the Trust and the beneficial
interest in and title to such property shall not be part of the
Seller's estate in the event of the filing of a bankruptcy petition
by or against the Seller under any bankruptcy law.
This Assignment is made pursuant to and upon the representations,
warranties and agreements on the part of the undersigned contained
in the Trust Sale and Servicing Agreement and is to be governed by
the Trust Sale and Servicing Agreement.
Capitalized terms used herein and not otherwise defined shall have
the meaning assigned to them in the Trust Sale and Servicing
Agreement.
* * * * *
<PAGE>59
IN WITNESS WHEREOF, the undersigned has caused this
Assignment to be duly executed as of January 25, 1994.
WHOLESALE AUTO RECEIVABLES CORPORATION
By: _________________________________
Name: C. J. Rutkowski
Title: Vice President
<PAGE>
<PAGE>60
EXHIBIT B
LOCATIONS OF SCHEDULE OF ACCOUNTS
The Schedule of Accounts is
on file at the offices of:
1. The Indenture Trustee
2. The Owner Trustee
3. General Motors Acceptance Corporation
4. Wholesale Auto Receivables Corporation
<PAGE>61
EXHIBIT C
FORM OF ASSIGNMENT FOR EACH ADDITION DATE
For value received, in accordance with the Trust Sale and
Servicing Agreement, dated as of January 25, 1994 (the "TRUST SALE AND
SERVICING AGREEMENT"), between General Motors Acceptance Corporation,
a corporation incorporated under the New York Banking Law relating to
investment companies, as Servicer ("GMAC"), Wholesale Auto Receivables
Corporation, a Delaware corporation (the "SELLER") and Superior
Wholesale Inventory Financing Trust I (the "TRUST"), the Seller does
hereby sell, assign, transfer and otherwise convey unto the Trust,
without recourse, with respect to the Additional Accounts to which
this Assignment relates, all of its right, title and interest in, to
and under (i) all of the Eligible Receivables as of the close of
business on the related Additional Cut-Off Date in such Additional
Accounts and, so long as each such Account is included in the Pool of
Accounts, all Eligible Receivables created or deemed created
thereunder on each Receivables Purchase Date, all monies due or to
become due thereon after such Additional Cut-Off Date or such
Receivables Purchase Date, as appropriate, all Collateral Security
with respect thereto and all amounts received with respect thereto,
(ii) Article IV and Section 6.03 of the Pooling and Servicing
Agreement, dated as of January 25, 1994, between GMAC and the Seller,
with respect to such Receivables, including the right of the Seller
to cause GMAC to repurchase Receivables under certain circumstances,
(iii) the Custodian Agreement with respect to such Receivables and
(iv) all proceeds of the foregoing (including "proceeds" as defined
in Section 9-306 of the UCC and Recoveries), in each case as more
fully described in the Trust Sale and Servicing Agreement.
The foregoing sale, transfer, assignment and conveyance and
any sales, transfers, assignments and conveyances subsequent to the
date hereof do not constitute, and are not intended to result in, the
creation or an assumption by the Trust of any obligation of the
Seller, GMAC, General Motors or any other Person in connection with
the Accounts, the Receivables or under any agreement or instrument
relating thereto, including any obligation to any Dealers.
It is the intention of the Seller and the Trust that the
transfers and assignments contemplated by this Assignment, including
transfers and assignments subsequent to the date hereof, shall
constitute a sale of the property described herein and the Pooling and
Servicing Agreement from the Seller to the Trust and the beneficial
interest in and title to such property shall not be part of the
Seller's estate in the event of the filing of a bankruptcy petition
by or against the Seller under any bankruptcy law.
This Assignment is made pursuant to and upon the representa-
tions, warranties and agreements on the part of the undersigned
contained in the Trust Sale and Servicing Agreement and is to be
governed by the Trust Sale and Servicing Agreement.
Capitalized terms used herein and not otherwise defined
shall have the meaning assigned to them in the Trust Sale and
Servicing Agreement.
* * * * *
<PAGE>62
IN WITNESS WHEREOF, the undersigned has caused this
Assignment to be duly executed as of _________, 199_.
WHOLESALE AUTO RECEIVABLES CORPORATION
By: _________________________________
Name:
Title:
<PAGE>
<PAGE>63
EXHIBIT D
FORM OF OPINION OF COUNSEL WITH RESPECT TO
ADDITION OF ACCOUNTS
PROVISION TO BE INCLUDED IN OPINION OF COUNSEL
DELIVERED PURSUANT TO SECTION 2.7(B)(VIII)
OF THE TRUST SALE AND SERVICING AGREEMENT
The opinion set forth below is subject to standard
qualifications, assumptions, limitations and exceptions. Capitalized
terms used but not defined herein are used as defined in the Trust
Sale and Servicing Agreement dated as of January 25, 1994 among
General Motors Acceptance Corporation, as servicer, Wholesale Auto
Receivables Corporation, as Seller (the "Seller"), and Superior
Wholesale Inventory Financing Trust I.
The Assignment delivered on the Addition Date has
been duly authorized, executed and delivered by the Seller,
and constitutes the valid and legally binding obligation of
the Seller, enforceable against the Seller in accordance
with its terms.
Exhibit 99.3
TRUST AGREEMENT
BETWEEN
WHOLESALE AUTO RECEIVABLES CORPORATION
SELLER
AND
CITIBANK DELAWARE
OWNER TRUSTEE
DATED AS OF JANUARY 25, 1994
<PAGE>
<PAGE>2
TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS AND INCORPORATION BY REFERENCE
1.1 Definitions. . . . . . . . . . . . . . . . . . . . . . . . 1
ARTICLE II
ORGANIZATION
2.1 Name . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
2.2 Office . . . . . . . . . . . . . . . . . . . . . . . . . . 1
2.3 Purposes and Powers. . . . . . . . . . . . . . . . . . . . 1
2.4 Appointment of Owner Trustee . . . . . . . . . . . . . . . 2
2.5 Initial Capital Contribution of Owner Trust
Estate . . . . . . . . . . . . . . . . . . . . . . . . . . 2
2.6 Declaration of Trust . . . . . . . . . . . . . . . . . . . 3
2.7 Liability of the Seller and the Certificate
Owners . . . . . . . . . . . . . . . . . . . . . . . . . . 3
2.8 Title to Trust Property. . . . . . . . . . . . . . . . . . 4
2.9 Situs of Trust . . . . . . . . . . . . . . . . . . . . . . 4
2.10 Representations and Warranties of the Seller . . . . . . . 4
2.11 Tax Treatment. . . . . . . . . . . . . . . . . . . . . . . 5
ARTICLE III
THE CERTIFICATES
3.1 [Intentionally Omitted]. . . . . . . . . . . . . . . . . . 6
3.2 Form of the Certificates . . . . . . . . . . . . . . . . . 6
3.3 Execution, Authentication and Delivery . . . . . . . . . . 6
3.4 Registration; Registration of Transfer and
Exchange of Certificates . . . . . . . . . . . . . . . . . 7
3.5 Mutilated, Destroyed, Lost or Stolen
Certificates . . . . . . . . . . . . . . . . . . . . . . . 8
3.6 Persons Deemed Certificateholders. . . . . . . . . . . . . 10
3.7 Access to List of Certificateholders' Names
and Addresses. . . . . . . . . . . . . . . . . . . . . . . 10
3.8 Maintenance of Corporate Trust Office. . . . . . . . . . . 10
3.9 Appointment of Paying Agent. . . . . . . . . . . . . . . . 10
3.10 Disposition by Seller. . . . . . . . . . . . . . . . . . . 11
3.11 Book-Entry Certificates. . . . . . . . . . . . . . . . . . 11
3.12 Notices to Clearing Agency . . . . . . . . . . . . . . . . 12
3.13 Termination of Book-Entry Registration . . . . . . . . . . 12
3.14 Seller as Certificateholder. . . . . . . . . . . . . . . . 13
ARTICLE IV
ACTIONS BY OWNER TRUSTEE
4.1 Prior Notice to Certificateholders with
Respect to Certain Matters . . . . . . . . . . . . . . . . 13
4.2 Action by Certificateholders with Respect to
Certain Matters. . . . . . . . . . . . . . . . . . . . . . 14
4.3 Action by Certificateholders with Respect to
Bankruptcy . . . . . . . . . . . . . . . . . . . . . . . . 14
4.4 Restrictions on Certificateholders' Power. . . . . . . . . 15
4.5 Majority Control . . . . . . . . . . . . . . . . . . . . . 15
i
<PAGE>3
ARTICLE V
APPLICATION OF TRUST FUNDS; CERTAIN DUTIES
5.1 Establishment of Certificate Distribution
Account. . . . . . . . . . . . . . . . . . . . . . . . . . 15
5.2 Application of Trust Funds . . . . . . . . . . . . . . . . 16
5.3 Method of Payment. . . . . . . . . . . . . . . . . . . . . 17
5.4 Accounting and Reports to the Certificate-
holders, the Internal Revenue Service and
Others . . . . . . . . . . . . . . . . . . . . . . . . . . 17
5.5 Signature on Returns; Tax Matters Partner. . . . . . . . . 18
ARTICLE VI
THE OWNER TRUSTEE
6.1 Duties of Owner Trustee. . . . . . . . . . . . . . . . . . 18
6.2 Rights of Owner Trustee. . . . . . . . . . . . . . . . . . 19
6.3 Acceptance of Trusts and Duties. . . . . . . . . . . . . . 19
6.4 Action upon Instruction by Certificateholders. . . . . . . 21
6.5 Furnishing of Documents. . . . . . . . . . . . . . . . . . 22
6.6 Representations and Warranties of Owner
Trustee. . . . . . . . . . . . . . . . . . . . . . . . . . 22
6.7 Reliance; Advice of Counsel. . . . . . . . . . . . . . . . 23
6.8 Owner Trustee May Own Certificates and Notes . . . . . . . 24
6.9 Compensation and Indemnity . . . . . . . . . . . . . . . . 24
6.10 Replacement of Owner Trustee . . . . . . . . . . . . . . . 24
6.11 Merger or Consolidation of Owner Trustee . . . . . . . . . 25
6.12 Appointment of Co-Trustee or Separate Trustee. . . . . . . 25
6.13 Eligibility Requirements for Owner Trustee . . . . . . . . 27
ARTICLE VII
TERMINATION OF TRUST AGREEMENT
7.1 Termination of Trust Agreement . . . . . . . . . . . . . . 27
7.2 Termination upon Bankruptcy of the Seller. . . . . . . . . 29
ARTICLE VIII
AMENDMENTS
8.1 Amendments Without Consent of Securityholders. . . . . . . 29
8.2 Amendments With Consent of Certificateholders
and Noteholders. . . . . . . . . . . . . . . . . . . . . . 30
8.3 Form of Amendments . . . . . . . . . . . . . . . . . . . . 31
ARTICLE IX
MISCELLANEOUS
9.1 No Legal Title to Owner Trust Estate. . . . . . . . . . . 31
9.2 Limitations on Rights of Others. . . . . . . . . . . . . . 31
9.3 Derivative Actions . . . . . . . . . . . . . . . . . . . . 32
9.4 Notices. . . . . . . . . . . . . . . . . . . . . . . . . . 32
9.5 Severability of Provisions . . . . . . . . . . . . . . . . 32
9.6 Counterparts . . . . . . . . . . . . . . . . . . . . . . . 33
9.7 Successors and Assigns . . . . . . . . . . . . . . . . . . 33
9.8 No Petition Covenants. . . . . . . . . . . . . . . . . . . 33
9.9 No Recourse. . . . . . . . . . . . . . . . . . . . . . . . 33
9.10 Headings . . . . . . . . . . . . . . . . . . . . . . . . . 34
9.11 Governing Law. . . . . . . . . . . . . . . . . . . . . . . 34
9.12 Certificate Transfer Restrictions. . . . . . . . . . . . . 34
9.13 Indemnification by and Reimbursement of the
Servicer . . . . . . . . . . . . . . . . . . . . . . . . . 35
ii
<PAGE>4
EXHIBITS
Exhibit A Form of Certificate
Exhibit B Form of Certificate Depository Agreement
Exhibit C Form of Certificate of Trust
Exhibit D Form of Undertaking Letter
Exhibit E Form of Investor Letter
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THIS TRUST AGREEMENT, dated as of January 25, 1994,
between WHOLESALE AUTO RECEIVABLES CORPORATION, a Delaware
corporation, as Seller, and CITIBANK DELAWARE, a Delaware banking
corporation, as Owner Trustee.
In consideration of the premises and the mutual
covenants herein contained, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.1 DEFINITIONS. Certain capitalized terms
used in this Agreement shall have the respective meanings
assigned to them in Appendix A to the Trust Sale and Servicing
Agreement of even date herewith, among the Seller, the Servicer
and the Trust (the "TRUST SALE AND SERVICING AGREEMENT"). All
references herein to "the Agreement" or "this Agreement" are to
the Trust Agreement as it may be amended and supplemented from
time to time, and all references herein to Articles, Sections and
subsections are to Articles, Sections and subsections of this
Agreement unless otherwise specified.
ARTICLE II
ORGANIZATION
SECTION 2.1 NAME. The Trust created hereby shall
be known as "Superior Wholesale Inventory Financing Trust I" in
which name the Owner Trustee may conduct the business of the
Trust, make and execute contracts and other instruments on behalf
of the Trust and sue and be sued on behalf of the Trust.
SECTION 2.2 OFFICE. The office of the Trust shall
be in care of the Owner Trustee at the Corporate Trust Office or
at such other address in Delaware as the Owner Trustee may
designate by written notice to the Certificate Owners and the
Seller.
SECTION 2.3 PURPOSES AND POWERS. (a) The purpose
of the Trust is to engage in the following activities:
(i) to acquire, manage and hold the Receivables to be
transferred to the Trust from time to time pursuant to the
Trust Sale and Servicing Agreement;
(ii) to issue and sell the Notes pursuant to the
Indenture or to another indenture, note purchase agreement
or similar agreement and the Certificates pursuant to this
Agreement, and to sell, transfer or exchange the Notes and
the Certificates;
(iii) to acquire property and assets from the Seller
pursuant to the Trust Sale and Servicing Agreement, to make
payments or distributions on the Securities, to make
withdrawals from the Reserve Fund and other accounts
established pursuant to the Basic Documents and to pay the
organizational, start-up and transactional expenses of the
Trust;
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(iv) to establish, acquire and hold liquidity, credit
and other enhancement arrangements, including the Basis Swap
and perform its obligations thereunder;
(v) to assign, grant, transfer, pledge, mortgage and
convey the Trust Estate pursuant to the terms of the
Indenture and to hold, manage and distribute to the
Certificate Owners pursuant to the terms of this Agreement
and the Trust Sale and Servicing Agreement any portion of
the Trust Estate released from the lien of, and remitted to
the Trust pursuant to, the Indenture;
(vi) to enter into and perform its obligations and
exercise its rights under the Basic Documents to which it
is to be a party;
(vii) to engage in those activities, including entering
into agreements, that are necessary, suitable or convenient
to accomplish the foregoing or are incidental thereto or
connected therewith; and
(viii) subject to compliance with the Basic Documents,
to engage in such other activities as may be required in
connection with conservation of the Owner Trust Estate and
the making of distributions to the Securityholders.
The Trust shall not engage in any activity other than in
connection with the foregoing or other than as required or
authorized by the terms of this Agreement or the Basic Documents.
SECTION 2.4 APPOINTMENT OF OWNER TRUSTEE. The
Seller hereby appoints the Owner Trustee as trustee of the Trust
effective as of the date hereof, to have all the rights, powers
and duties set forth herein.
SECTION 2.5 INITIAL CAPITAL CONTRIBUTION OF OWNER
TRUST ESTATE. The Seller hereby sells, assigns, transfers,
conveys and sets over to the Owner Trustee, as of the date
hereof, the sum of $1. The Owner Trustee hereby acknowledges
receipt in trust from the Seller, as of the date hereof, of the
foregoing contribution, which shall constitute the initial Owner
Trust Estate and shall be deposited in the Certificate
Distribution Account. The Seller shall pay organizational
expenses of the Trust as they may arise or shall, upon the
request of the Owner Trustee, promptly reimburse the Owner
Trustee for any such expenses paid by the Owner Trustee.
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SECTION 2.6 DECLARATION OF TRUST. The Owner Trustee
hereby declares that it shall hold the Owner Trust Estate in
trust upon and subject to the conditions and obligations set
forth herein and in the Trust Sale and Servicing Agreement for
the use and benefit of the Certificate Owners, subject to the
obligations of the Trust under the Basic Documents. It is the
intention of the parties hereto that the Trust constitute a
business trust under the Business Trust Statute, that this
Agreement constitute the governing instrument of such business
trust and that the Certificates represent the equity interests
therein. The rights of the Certificateholders shall be
determined as set forth herein and in the Business Trust Statute
and the relationship between the parties created by this
Agreement shall not constitute indebtedness for any purpose. It
is the intention of the parties hereto that, solely for purposes
of federal income, state and local income and franchise taxes,
Michigan single business tax and any other taxes imposed upon,
measured by, or based upon gross or net income, the Trust shall
be treated as a partnership. The parties agree that, unless
otherwise required by appropriate taxing authorities, the Trust
shall file or cause to be filed annual or other necessary
returns, reports and other forms consistent with the
characterization of the Trust as a partnership for such tax
purposes. Effective as of the date hereof, the Owner Trustee
shall have all rights, powers and duties set forth in this
Agreement, the Trust Sale and Servicing Agreement and the
Business Trust Statute with respect to accomplishing the purposes
of the Trust. The Owner Trustee agrees to file the certificate
required under 3810 et seq. of the Business Trust Statute in
connection with the formation of the Trust as a business trust
under the Business Trust Statute.
SECTION 2.7 LIABILITY OF THE SELLER AND THE CERTIFI-
CATE OWNERS.
(a) The Seller shall be liable directly to and shall
indemnify the injured party for all losses, claims, damages,
liabilities and expenses of the Trust (including expenses, to the
extent not paid out of the Owner Trust Estate) to the extent that
the Seller would be liable if the Trust were a partnership under
the Delaware Revised Uniform Limited Partnership Act in which the
Seller were a general partner; PROVIDED, HOWEVER, that the Seller
shall not be liable for (i) any losses incurred by a Certificate-
holder or a Certificate Owner in its capacity as an investor in
the Certificates or by a Noteholder or Note Owner in its capacity
as an investor in the Notes or (ii) any losses, claims, damages,
liabilities and expenses arising out of the imposition by any
taxing authority of any federal income, state or local income or
franchise taxes, Michigan single business tax, or any other taxes
imposed on or measured by gross or net income, gross or net
receipts, capital, net worth and similar items (including any
interest, penalties or additions with respect thereto) upon the
Certificateholders, the Certificate Owners, the Noteholders, the
Note Owners, the Owner Trustee or the Indenture Trustee
(including any liabilities, costs or expenses with respect
thereto) with respect to any Receivables not specifically
indemnified or represented to hereunder. In addition, any third
party creditors of the Trust (other than in connection with the
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obligations described in the preceding sentence for which the
Seller shall not be liable) shall be deemed third party
beneficiaries of this subsection 2.7(a). The obligations of the
Seller under this subsection 2.7(a) shall be evidenced by the
Certificates issued pursuant to Section 3.10, which for purposes
of the Business Trust Statute shall be deemed to be a separate
class of Certificates from all other Certificates issued by the
Trust; PROVIDED, HOWEVER, that the rights and obligations
evidenced by all Certificates, regardless of class, shall be
identical, except as provided in this subsection 2.7(a), Section
4.3, and in the definition of Voting Interests, except as to the
applicable Certificate Rate as contemplated by Section 3.3 and
except that Certificates may, but are not required to, be issued
in book-entry form.
(b) No Certificate Owner, other than to the extent set
forth in subsection 2.7(a) with respect to the Seller, shall have
any personal liability for any liability or obligation of the
Trust.
SECTION 2.8 TITLE TO TRUST PROPERTY. Legal title
to all the Owner Trust Estate shall be vested at all times in the
Trust as a separate legal entity except where applicable law in
any jurisdiction requires title to any part of the Owner Trust
Estate to be vested in a trustee or trustees, in which case title
shall be deemed to be vested in the Owner Trustee, a co-trustee
and/or a separate trustee, as the case may be.
SECTION 2.9 SITUS OF TRUST. The Trust shall be
located and administered in the State of Delaware. All bank
accounts maintained by the Owner Trustee on behalf of the Trust
shall be located in the State of Delaware or the State of New
York. The Trust shall not have any employees in any state other
than Delaware; PROVIDED, HOWEVER, that nothing herein shall
restrict or prohibit the Owner Trustee from having employees
within or without the State of Delaware. Payments shall be
received by the Trust only in Delaware or New York, and payments
and distributions shall be made by the Trust only from Delaware
or New York. The only office of the Trust shall be the Corporate
Trust Office in Delaware.
SECTION 2.10 REPRESENTATIONS AND WARRANTIES OF THE
SELLER. The Seller hereby represents and warrants to the Owner
Trustee that:
(a) The Seller has been duly organized and is validly
existing as a corporation in good standing under the laws
of the State of Delaware, with power and authority to own
its properties and to conduct its business as such
properties are presently owned and such business is
presently conducted, and had at all relevant times, and now
has, power, authority and legal right to acquire and own the
Receivables contemplated to be transferred to the Trust
pursuant to the Trust Sale and Servicing Agreement.
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(b) The Seller is duly qualified to do business and,
where necessary is in good standing (or is exempt from such
requirement), and has obtained all necessary licenses and
approvals in all jurisdictions in which the ownership or
lease of property or the conduct of its business requires
such qualifications, except where the failure to so qualify
or obtain licenses or approvals would not have a material
adverse effect on its ability to perform its obligations
under the Basic Documents to which it is a party.
(c) The Seller has the power and authority to execute
and deliver this Agreement, to carry out its terms and to
consummate the transactions contemplated herein; and the
execution, delivery and performance of this Agreement and
the consummation of the transactions contemplated herein
have been duly authorized by the Seller by all necessary
corporate action.
(d) The execution of this Agreement and the
consummation of the transactions contemplated herein by the
Seller and the fulfillment of the terms of this Agreement
by the Seller 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) a default under, the
certificate of incorporation or by-laws of the Seller, or
any indenture, agreement, mortgage, deed of trust or other
instrument to which the Seller is a party or by which it is
bound, 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 pursuant to the Basic Documents), or
violate any law or, to the best of the Seller's knowledge,
any order, rule or regulation applicable to the Seller of
any Governmental Authority having jurisdiction over the
Seller or any of its properties.
SECTION 2.11 TAX TREATMENT. The Seller and the Owner
Trustee, by entering into this Agreement, and the Certificate-
holders and the Certificate Owners, by acquiring any Certificate
or interest therein, (i) express their intention that the
Certificates shall qualify under applicable tax law as
partnership interests in a partnership which holds the Trust
Estate for their benefit and (ii) unless otherwise required by
appropriate taxing authorities, agree to treat the Certificates
as partnership interests in such a partnership for the purposes
of federal income, state and local income and franchise taxes,
Michigan single business tax and any other taxes imposed upon,
measured by or based upon gross or net income.
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ARTICLE III
THE CERTIFICATES
SECTION 3.1 [Intentionally Omitted].
SECTION 3.2 FORM OF THE CERTIFICATES.
(a) The Certificates shall be substantially in the
form set forth in EXHIBIT A and shall be issued in minimum
denominations of $250,000 and in integral multiples of $1,000 in
excess thereof. The Certificates shall be executed on behalf of
the Trust by manual or facsimile signature of a Responsible
Officer of the Owner Trustee. Certificates bearing the manual or
facsimile signatures of individuals who were, at the time when
such signatures shall have been affixed, authorized to sign on
behalf of the Trust, shall be duly issued, fully paid and non-
assessable beneficial interests in the Trust, notwithstanding
that such individuals or any of them shall have ceased to be so
authorized prior to the authentication and delivery of such
Certificates or did not hold such offices at the date of
authentication and delivery of such Certificates.
(b) The Definitive Certificates shall be typewritten,
printed, lithographed or engraved or produced by any combination
of these methods (with or without steel engraved borders) all as
determined by the officers executing such Certificates, as evi-
denced by their execution of such Certificates.
(c) The Certificates shall be issued in fully-
registered form. The terms of the Certificates as set forth in
EXHIBIT A shall form part of this Agreement.
SECTION 3.3 EXECUTION, AUTHENTICATION AND DELIVERY.
(a) On the Initial Closing Date, concurrently with the
initial sale, transfer and assignment of Receivables to the Trust
pursuant to the Trust Sale and Servicing Agreement, the Owner
Trustee shall cause Certificates with an aggregate initial
Certificate Balance equal to $132,000,000 to be executed on
behalf of the Trust, authenticated and delivered to or upon the
written order of the Seller, signed by its chairman of the board,
its president or any vice president, without further corporate
action by the Seller, in authorized denominations. Such
Certificates shall be designated as Floating Rate Asset-Backed
Certificates, Class A, and the Certificate Rate for such
Certificates shall equal, with respect to any Distribution Date,
the product of (i) a fraction, the numerator of which is the
number of days elapsed from and including the prior Distribution
Date (or, in the case of the Initial Distribution Date, from and
including the Initial Closing Date) to but excluding such
Distribution Date and the denominator of which is 360 and (ii)
either (x) LIBOR plus .45% or(y) in the case of the Initial
Distribution Date, 3.575%.
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(b) From time to time after the Initial Closing Date,
at the direction of the Seller (a "Certificate Issuance Order"),
and upon satisfaction of the conditions set forth in Section 4.9
of the Trust Sale and Servicing Agreement, the Owner Trustee
shall cause additional Certificates of any class theretofore
issued, or Certificates of a new class, with an aggregate initial
Certificate Balance specified by the Seller, to be executed on
behalf of the Trust, authenticated and delivered to or upon the
written order of the Seller, signed by its chairman of the board,
its president or any vice president, without further corporate
action by the Seller, in authorized denominations. All such
Certificates shall have the same terms, provisions and rights as
those Certificates issued on the Initial Closing Date; PROVIDED,
however, that any class of Certificates may have a different
Certificate Rate than the Certificates of any other class and may
be issued in book-entry form pursuant to Section 3.11 hereof.
The Certificate Rate for any such Certificates issued after the
Initial Closing Date shall be set forth in the related
Certificate Issuance Order. The terms of any Certificates as
provided in a Certificate Issuance Order shall be considered
terms of this Trust Agreement. Any Certificate Issuance Order
issued pursuant to this Section shall be considered a part of
this Agreement.
(c) No Certificate shall entitle its holder to any
benefit under this Agreement, or shall be valid for any purpose,
unless there shall appear on such Certificate a certificate of
authentication substantially in the form set forth in EXHIBIT A,
executed by the Owner Trustee or the Owner Trustee's
authenticating agent, by manual signature. Such authentication
shall constitute conclusive evidence that such Certificate shall
have been duly authenticated and delivered hereunder. All
Certificates shall be dated the date of their authentication.
Citibank, N.A. is hereby appointed as the Owner Trustee's
authenticating agent.
SECTION 3.4 REGISTRATION; REGISTRATION OF TRANSFER
AND EXCHANGE OF CERTIFICATES.
(a) The Certificate Registrar shall keep or cause to
be kept, at the office or agency maintained pursuant to Section
3.8, a Certificate Register in which, subject to such reasonable
regulations as it may prescribe, the Owner Trustee shall provide
for the registration of Certificates and of transfers and
exchanges of Certificates as provided herein; PROVIDED, HOWEVER,
that no Certificate may be subdivided upon transfer or exchange
in a manner such that the resulting Certificate if it had been
sold in the original offering would have had an initial offering
price of less than $250,000. Citibank, N.A. shall be the initial
Certificate Registrar. Upon any resignation of a Certificate
Registrar, the Owner Trustee shall promptly appoint a successor
or, if it elects not to make such an appointment, assume the
duties of Certificate Registrar.
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(b) Upon surrender for registration of transfer of any
Certificate at the office or agency maintained pursuant to
Section 3.8, the Owner Trustee shall execute on behalf of the
Trust, authenticate and deliver (or shall cause Citibank, N.A.,
as its authenticating agent to authenticate and deliver), in the
name of the designated transferee or transferees, one or more new
Certificates of the same class in authorized denominations of a
like aggregate amount dated the date of authentication by the
Owner Trustee or any authenticating agent. Notwithstanding the
foregoing, if the Seller shall have advised the Owner Trustee in
writing that an Undertaking Letter shall be required with respect
to any transfer, such transfer shall not be effective unless the
requirements of Section 9.12, with respect to the delivery of an
Undertaking Letter, shall have been complied with.
(c) At the option of a Holder, Certificates may be
exchanged for other Certificates of the same class in authorized
denominations of a like amount upon surrender of the Certificates
to be exchanged at the Corporate Trust Office maintained pursuant
to Section 3.8. Whenever any Certificates are so surrendered for
exchange, the Owner Trustee shall execute on behalf of the Trust,
authenticate and deliver (or shall cause Citibank, N.A., as its
authenticating agent, to authenticate and deliver) one or more
Certificates dated the date of authentication by the Owner
Trustee or any authenticating agent. Such Certificates shall be
delivered to the Holder making the exchange.
(d) Every Certificate presented or surrendered for
registration of transfer or exchange shall be accompanied by a
written instrument of transfer in form satisfactory to the Owner
Trustee and the Certificate Registrar duly executed by the Holder
or his attorney duly authorized in writing and such other
documents and instruments as may be required by Section 9.12.
Each Certificate surrendered for registration of transfer or
exchange shall be cancelled and subsequently destroyed by the
Owner Trustee or Certificate Registrar in accordance with its
customary practice. The Owner Trustee shall certify to the Seller
that surrendered Certificates have been duly cancelled and
retained or destroyed, as the case may be.
(e) No service charge shall be made for any registra-
tion of transfer or exchange of Certificates, but the Owner
Trustee or the Certificate Registrar may require payment of a sum
sufficient to cover any tax or governmental charge that may be
imposed in connection with any transfer or exchange of
Certificates.
SECTION 3.5 MUTILATED, DESTROYED, LOST OR STOLEN
CERTIFICATES.
(a) If (i) any mutilated Certificate is surrendered
to the Certificate Registrar, or the Certificate Registrar
receives evidence to its satisfaction of the destruction, loss or
theft of any Certificate and (ii) there is delivered to the
Certificate Registrar, the Owner Trustee and the Trust such
security or indemnity as may be required by them to hold each of
them harmless, then, in the absence of notice to the Certificate
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Registrar or the Owner Trustee that such Certificate has been
acquired by a bona fide purchaser, the Owner Trustee shall
execute on behalf of the Trust and the Owner Trustee shall
authenticate and deliver (or shall cause Citibank, N.A., as its
authenticating agent, to authenticate and deliver), in exchange
for or in lieu of any such mutilated, destroyed, lost or stolen
Certificate, a replacement Certificate of the same class in
authorized denominations of a like amount; PROVIDED, HOWEVER,
that if any such destroyed, lost or stolen Certificate, but not
a mutilated Certificate, shall have become or within seven days
shall be due and payable, then instead of issuing a replacement
Certificate the Owner Trustee may pay such destroyed, lost or
stolen Certificate when so due or payable.
(b) If, after the delivery of a replacement
Certificate or distribution in respect of a destroyed, lost or
stolen Certificate pursuant to subsection 3.5(a), a bona fide
purchaser of the original Certificate in lieu of which such
replacement Certificate was issued presents for payment such
original Certificate, the Owner Trustee shall be entitled to
recover such replacement Certificate (or such distribution) from
the Person to whom it was delivered or any Person taking such
replacement Certificate from such Person to whom such replacement
Certificate was delivered or any assignee of such Person, except
a bona fide purchaser, and shall be entitled to recover upon the
security or indemnity provided therefor to the extent of any
loss, damage, cost or expense incurred by the Owner Trustee in
connection therewith.
(c) In connection with the issuance of any replacement
Certificate under this Section 3.5, the Owner Trustee may require
the payment by the Holder of such Certificate of a sum sufficient
to cover any tax or other governmental charge that may be imposed
in relation thereto and any other reasonable expenses (including
the fees and expenses of the Owner Trustee and the Certificate
Registrar) connected therewith.
(d) Any duplicate Certificate issued pursuant to this
Section 3.5 in replacement of any mutilated, destroyed, lost or
stolen Certificate shall constitute an original additional
beneficial interest in the Trust, whether or not the mutilated,
destroyed, lost or stolen Certificate shall be found at any time
or be enforced by anyone, and shall be entitled to all the
benefits of this Agreement equally and proportionately with any
and all other Certificates duly issued hereunder.
(e) The provisions of this Section 3.5 are exclusive
and shall preclude (to the extent lawful) all other rights and
remedies with respect to the replacement or payment of mutilated,
destroyed, lost or stolen Certificates.
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SECTION 3.6 PERSONS DEEMED CERTIFICATEHOLDERS.
Prior to due presentation of a Certificate for registration of
transfer, the Owner Trustee or the Certificate Registrar may
treat the Person in whose name any Certificate shall be
registered in the Certificate Register as the Certificateholder
of such Certificate for the purpose of receiving distributions
pursuant to Article V and for all other purposes whatsoever, and
neither the Owner Trustee nor the Certificate Registrar shall be
affected by any notice to the contrary.
SECTION 3.7 ACCESS TO LIST OF CERTIFICATEHOLDERS'
NAMES AND ADDRESSES. The Owner Trustee shall furnish or cause to
be furnished to the Servicer and the Seller, within 15 days after
receipt by the Owner Trustee of a request therefor from the
Servicer or the Seller in writing, a list, in such form as the
Servicer or the Seller may reasonably require, of the names and
addresses of the Certificateholders as of the most recent Record
Date. Each Holder, by receiving and holding a Certificate, shall
be deemed to have agreed not to hold any of the Servicer, the
Seller or the Owner Trustee accountable by reason of the
disclosure of its name and address, regardless of the source from
which such information was derived.
SECTION 3.8 MAINTENANCE OF CORPORATE TRUST OFFICE.
The Owner Trustee shall maintain in the Borough of Manhattan, the
City of New York, an office or offices or agency or agencies
where Certificates may be surrendered for registration of
transfer or exchange and where notices and demands to or upon the
Owner Trustee in respect of the Certificates and the Basic
Documents may be served. The Owner Trustee initially designates
the offices of Citibank, N.A., as its principal office for such
purposes. The Owner Trustee shall give prompt written notice to
the Seller and to the Certificateholders of any change in the
location of the Certificate Register or any such office or
agency.
SECTION 3.9 APPOINTMENT OF PAYING AGENT. The Paying
Agent shall make distributions to Certificateholders from the
Certificate Distribution Account pursuant to Section 5.2 and
shall report the amounts of such distributions to the Owner
Trustee and the Servicer. Any Paying Agent shall have the
revocable power to withdraw funds from the Certificate
Distribution Account for the purpose of making the distributions
referred to above. The Owner Trustee may revoke such power and
remove the Paying Agent if the Owner Trustee determines in its
sole discretion that the Paying Agent shall have failed to
perform its obligations under this Agreement in any material
respect. The Paying Agent shall initially be Citibank, N.A.
Citibank, N.A. shall be permitted to resign as Paying Agent upon
30 days' written notice to the Owner Trustee. If Citibank, N.A.
shall no longer be the Paying Agent, the Owner Trustee shall
appoint a successor to act as Paying Agent (which shall be a bank
or trust company). The Owner Trustee shall cause such successor
Paying Agent or any additional Paying Agent appointed by the
Owner Trustee to execute and deliver to the Owner Trustee an
instrument in which such successor Paying Agent or additional
Paying Agent shall agree with the Owner Trustee that as Paying
Agent, such successor Paying Agent or additional Paying Agent
shall hold all sums, if any, held by it for distribution to the
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Certificateholders in trust for the benefit of the Certificate-
holders entitled thereto until such sums shall be paid to such
Certificateholders. The Paying Agent shall return all unclaimed
funds to the Owner Trustee and upon removal of a Paying Agent
such Paying Agent shall also return all funds in its possession
to the Owner Trustee. The provisions of Sections 6.3, 6.6, 6.7
and 6.9 shall apply to the Owner Trustee also in its role as
Paying Agent, for so long as the Owner Trustee shall act as
Paying Agent and, to the extent applicable, to any other paying
agent appointed hereunder. Any reference in this Agreement to
the Paying Agent shall include any co-paying agent unless the
context requires otherwise.
SECTION 3.10 DISPOSITION BY SELLER. On and after the
Initial Closing Date, the Seller shall retain beneficial and
record ownership of Certificates representing at least 1% of the
Certificate Balance of each class of Certificates. Any attempted
transfer of any Certificate that would reduce such interest of
the Seller below 1% of the Certificate Balance shall be void.
The Owner Trustee shall cause any Certificate issued to the
Seller to contain a legend to such effect. Certificates issued
to the Seller shall be in definitive form only.
SECTION 3.11 BOOK-ENTRY CERTIFICATES. The
Certificates to be issued on the Initial Closing Date (other than
those described in Section 3.10 and those to be issued to
Institutional Accredited Investors (as defined in Exhibit E))
shall be issued as Book-Entry Certificates and shall be subject
to a Certificate Depository Agreement substantially in the form
attached as Exhibit B hereto. Such Certificates shall be
delivered to The Depository Trust Company, the initial Clearing
Agency by or on behalf of the Trust and shall initially be
registered on the Certificate Register in the name of Cede & Co.,
the nominee of the initial Clearing Agency, and no such
Certificate Owner shall receive a Definitive Certificate. If,
and to the extent, so provided in the related Certificate
Issuance Order, Certificates to be issued after the Initial
Closing Date (other than those described in Section 3.10) may be
issued in the form of a typewritten certificate or certificates
representing Book-Entry Certificates. Any such Book-Entry
Certificate shall be delivered to the Clearing Agency by or on
behalf of the Trust and shall be registered on the Certificate
Register in the name of the Clearing Agency (or its nominee) and
no Certificate Owner shall receive a Definitive Certificate. If
and to the extent Book-Entry Certificates have been issued
pursuant to this Section 3.11 with respect to any Certificates:
(a) the provisions of this Section 3.11 shall be in
full force and effect;
(b) the Certificate Registrar and the Owner Trustee
shall be entitled to deal with the Clearing Agency for all
purposes of this Agreement (including the distribution of
Certificate Balance and interest on such Certificates and
the giving of instructions or directions hereunder) as the
sole Holder of such Certificates, and shall have no
obligation to the Certificate Owners;
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(c) to the extent that the provisions of this Section
3.11 conflict with any other provisions of this Agreement,
the provisions of this Section 3.11 shall control;
(d) the rights of the Certificate Owners shall be
exercised only through the Clearing Agency and shall be
limited to those established by law and agreements between
such Certificate Owners and the Clearing Agency and/or the
Clearing Agency Participants and, unless and until
Definitive Certificates are issued pursuant to Section 3.13,
the initial Clearing Agency shall make book-entry transfers
among the Clearing Agency Participants and receive and
transmit distributions of Certificate Balance and interest
on such Certificates to such Clearing Agency Participants;
and
(e) whenever this Agreement requires or permits
actions to be taken based upon instructions or directions
of Holders of Certificates evidencing a specified percentage
of the Voting Interests, the Clearing Agency shall be deemed
to represent such percentage only to the extent that it has
received written instructions to such effect from
Certificate Owners and/or Clearing Agency Participants
owning or representing, respectively, such required
percentage of Voting Interests and has delivered such
instructions to the Owner Trustee.
The Seller or the Owner Trustee may set a record date for the
purpose of determining the identity of Holders of Certificates
entitled to vote or to consent to any action by vote as provided
in this Agreement.
SECTION 3.12 NOTICES TO CLEARING AGENCY. With
respect to any Certificates issued as Book-Entry Certificates,
whenever a notice or other communication to the
Certificateholders is required under this Agreement, unless and
until Definitive Certificates representing such Certificates
shall have been issued to the related Certificate Owners pursuant
to Section 3.13, the Owner Trustee shall give all such notices
and communications specified herein to be given to the related
Certificateholders to the Clearing Agency and shall have no
further obligation to such Certificate Owners.
SECTION 3.13 TERMINATION OF BOOK-ENTRY REGISTRATION.
With respect to any Certificates issued as Book-Entry
Certificates, if (i) the Administrator advises the Owner Trustee
in writing that the Clearing Agency is no longer willing or able
to properly discharge its responsibilities with respect to the
Certificates, and the Administrator is unable to locate a
qualified successor, (ii) the Administrator at its option advises
the Owner Trustee in writing that it elects to terminate the
book-entry system through the Clearing Agency or (iii) after the
occurrence of an Event of Default or a Servicing Default,
Certificate Owners representing beneficial interests aggregating
at least a majority of the Voting Interests advise the Clearing
Agency in writing that the continuation of a book-entry system
through the Clearing Agency is no longer in the best interest of
the Certificate Owners, then the Clearing Agency shall notify all
Certificate Owners and the Owner Trustee of the occurrence of any
such event and of the availability of Definitive Certificates to
Certificate Owners requesting the same. Upon surrender to the
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Owner Trustee of the typewritten Certificate or Certificates
representing Book-Entry Certificates by the Clearing Agency,
accompanied by registration instructions, the Owner Trustee shall
execute and authenticate the related Definitive Certificates in
accordance with the instructions of the Clearing Agency. Neither
the Certificate Registrar nor the Owner Trustee shall be liable
for any delay in delivery of such instructions and may
conclusively rely on, and shall be protected in relying on, such
instructions. Additionally, Definitive Certificates shall be
issued to a Certificate Owner (or its nominee) at any time
(subject to the rules and procedures of the Clearing Agency) upon
the request of such Certificate Owner that its interest be
exchanged for a Definitive Certificate or Certificates. Upon the
issuance of such Definitive Certificates, the Owner Trustee shall
recognize the Holders of such Definitive Certificates as
Certificateholders.
SECTION 3.14 SELLER AS CERTIFICATEHOLDER. The Seller
in its individual or any other capacity may become the owner or
pledgee of Certificates and may otherwise deal with the Owner
Trustee or its Affiliates as if it were not the Seller.
ARTICLE IV
ACTIONS BY OWNER TRUSTEE
SECTION 4.1 PRIOR NOTICE TO CERTIFICATEHOLDERS WITH
RESPECT TO CERTAIN MATTERS. The Owner Trustee shall not take
action with respect to the following matters, unless (i) the
Owner Trustee shall have notified the Certificateholders in
writing of the proposed action at least 30 days before the taking
of such action, and (ii) the Certificateholders shall not have
notified the Owner Trustee in writing prior to the 30th day after
such notice is given that such Certificateholders have withheld
consent or provided alternative direction:
(a) the initiation of any claim or lawsuit by the
Trust and the compromise of any action, claim or lawsuit
brought by or against the Trust;
(b) the election by the Trust to file an amendment to
the Certificate of Trust, a conformed copy of which is
attached hereto as EXHIBIT C;
(c) the amendment of the Indenture by a supplemental
indenture in circumstances where the consent of any
Noteholder is required;
(d) the amendment of the Indenture by a supplemental
indenture in circumstances where the consent of any
Noteholder is not required and such amendment materially
adversely affects the interest of the Certificateholders (it
being understood that the issuance of additional
Certificates as contemplated by Section 3.3 shall not be
deemed to materially adversely affect the interests of the
Certificateholders);
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(e) the amendment, change or modification of the
Administration Agreement, except to cure any ambiguity or
to amend or supplement any provision in a manner that would
not materially adversely affect the interests of the
Certificateholders; or
(f) the appointment pursuant to the Indenture of a
successor Note Registrar, Paying Agent or Indenture Trustee
or pursuant to this Agreement of a successor Certificate
Registrar, or the consent to the assignment by the Note
Registrar, Paying Agent or Indenture Trustee or Certificate
Registrar of its obligations under the Indenture or this
Agreement, as applicable.
SECTION 4.2 ACTION BY CERTIFICATEHOLDERS WITH
RESPECT TO CERTAIN MATTERS. The Owner Trustee shall not have the
power, except upon the written direction of the
Certificateholders, to (a) remove the Administrator under the
Administration Agreement pursuant to Section 10 thereof, (b)
appoint a successor Administrator pursuant to Section 10 of the
Administration Agreement, (c) remove the Servicer under the Trust
Sale and Servicing Agreement pursuant to Section 8.2 thereof or
(d) except as expressly provided in the Basic Documents, sell the
Receivables transferred to the Trust pursuant to the Trust Sale
and Servicing Agreement or any interest therein after the
termination of the Indenture. The Owner Trustee shall take the
actions referred to in the preceding sentence only upon the
affirmative vote of, or a written consent signed by, the holders
of a majority of the Voting Interests upon at least 30 days prior
notice thereof.
SECTION 4.3 ACTION BY CERTIFICATEHOLDERS WITH
RESPECT TO BANKRUPTCY. The Owner Trustee shall not have the
power to commence a voluntary proceeding in bankruptcy relating
to the Trust without the unanimous prior approval of all Holders
of Certificates (including the Seller) and the delivery to the
Owner Trustee by each such Certificateholder of a certificate
certifying that such Certificateholder reasonably believes that
the Trust is insolvent. By its acceptance of any Certificate
issued pursuant to Section 3.10, the Seller agrees that it, as
the holder thereof, shall not approve or be deemed to have
approved the commencement of a voluntary proceeding in bankruptcy
relating to the Trust for purposes of this Section 4.3 unless
such commencement is approved by the affirmative vote of all of
the members of the Seller's board of directors.
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SECTION 4.4 RESTRICTIONS ON CERTIFICATEHOLDERS'
POWER. The Certificateholders shall not direct the Owner Trustee
to take or refrain from taking any action if such action or
inaction would be contrary to any obligation of the Trust or the
Owner Trustee under this Agreement or any of the Basic Documents
or would be contrary to Section 2.3, nor shall the Owner Trustee
be obligated to follow any such direction, if given.
SECTION 4.5 MAJORITY CONTROL. Except as expressly
provided herein, any action that may be taken or consent that may
be given or withheld by the Certificateholders under this
Agreement shall be effective if such action is taken or such
consent is given or withheld by the Holders of Certificates
evidencing not less than a majority of the Voting Interests
thereof. Except as expressly provided herein, any written notice
of the Certificateholders delivered pursuant to this Agreement
shall be effective if signed by Holders of Certificates
evidencing not less than a majority of the Voting Interests at
the time of the delivery of such notice.
ARTICLE V
APPLICATION OF TRUST FUNDS; CERTAIN DUTIES
SECTION 5.1 ESTABLISHMENT OF CERTIFICATE
DISTRIBUTION ACCOUNT.
(a) The Servicer, for the benefit of the Certificate-
holders, shall establish and maintain in the name of the Owner
Trustee an Eligible Deposit Account known as the Superior
Wholesale Inventory Financing Trust I Certificate Distribution
Account (the "CERTIFICATE DISTRIBUTION ACCOUNT"), bearing an
additional designation clearly indicating that the funds
deposited therein are held for the benefit of the
Certificateholders.
(b) The Owner Trustee shall possess all right, title
and interest in and to all funds on deposit from time to time in
the Certificate Distribution Account and in all proceeds thereof
(except Investment Proceeds therefrom as set forth in the Trust
Sale and Servicing Agreement) for the benefit of the
Certificateholders. Except as otherwise provided herein or in
the Trust Sale and Servicing Agreement, the Certificate
Distribution Account shall be under the sole dominion and control
of the Owner Trustee for the benefit of the Certificateholders.
If, at any time, the Certificate Distribution Account ceases to
be an Eligible Deposit Account, the Owner Trustee (or the
Servicer on behalf of the Owner Trustee, if the Certificate
Distribution Account is not then held by the Owner Trustee or an
Affiliate thereof) shall within 10 Business Days (or such longer
period, not to exceed 30 calendar days, as to which each Rating
Agency may consent) establish a new Certificate Distribution
Account as an Eligible Deposit Account and shall transfer any
cash and/or any investments to such new Certificate Distribution
Account.
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SECTION 5.2 APPLICATION OF TRUST FUNDS.
(a) On each Distribution Date, the Owner Trustee shall
distribute to the Certificateholders the amounts deposited in the
Certificate Distribution Account pursuant to Section 4.5 of the
Trust Sale and Servicing Agreement with respect to such
Distribution Date (i) to the extent of the amount deposited with
respect to Aggregate Certificateholders' Interest, pro rata based
upon the amount of interest due with respect to each Certificate
and (ii) to the extent of any amount deposited with respect to
Aggregate Certificateholder's Principal, on a pro rata basis.
(b) On each Distribution Date, the Owner Trustee shall
send to each Certificateholder the statement provided to the
Owner Trustee by the Servicer pursuant to Section 4.8 of the
Trust Sale and Servicing Agreement on such Distribution Date
setting forth, among other things, the amount of the distribution
allocable to Certificate Balance and to interest, the Certificate
Balance after giving effect to such distribution, the balance of
the Reserve Fund (and amounts, if any, distributed from the
Reserve Fund), and the Monthly Servicing Fee with respect to the
Distribution Date or the related Collection Period, as
applicable, each since the last statement so provided to
Certificateholders.
(c) If any withholding tax is imposed on the Trust's
distribution (or allocations of income) to a Certificateholder,
such tax shall reduce the amount otherwise distributable to the
Certificateholder in accordance with this Section 5.2. The Owner
Trustee is hereby authorized and directed to retain from amounts
otherwise distributable to the Certificateholders sufficient
funds for the payment of any tax that is legally owed by the
Trust (but such authorization shall not prevent the Owner Trustee
from contesting any such tax in appropriate proceedings and
withholding payment of such tax, if permitted by law, pending the
outcome of such proceedings). The amount of any withholding tax
imposed with respect to a Certificateholder shall be treated as
cash distributed to such Certificateholder at the time it is
withheld by the Trust and remitted to the appropriate taxing
authority. If there is a possibility that withholding tax is
payable with respect to a distribution (such as a distribution to
a non-U.S. Certificateholder), the Owner Trustee may in its sole
discretion withhold such amounts in accordance with this Section
5.2(c). If a Certificateholder wishes to apply for a refund of
any such withholding tax, the Owner Trustee shall reasonably
cooperate with such Certificateholder in making such claim so
long as such Certificateholder agrees to reimburse the Owner
Trustee for any out-of-pocket expenses incurred.
(d) If the Indenture Trustee holds escheated funds for
payment to the Trust pursuant to Section 3.3(e) of the Indenture,
the Owner Trustee shall, upon notice from the Indenture Trustee
that such funds exist, submit on behalf of the Trust an Issuer
Order to the Indenture Trustee pursuant to Section 3.3(e) of the
Indenture instructing the Indenture Trustee to pay such funds to
or at the order of the Seller.
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SECTION 5.3 METHOD OF PAYMENT. Subject to Section
7.1(c) and subject to the right of the Owner Trustee and the
Clearing Agency to agree otherwise in the case of Book-Entry
Certificates, distributions required to be made to
Certificateholders on any Distribution Date shall be made to each
Certificateholder of record on the related Record Date either by
wire transfer, in immediately available funds, to the account of
such Holder at a bank or other entity having appropriate
facilities therefor, if such Certificateholder shall have
provided to the Certificate Registrar appropriate written
instructions at least five Business Days prior to such Record
Date, or, if not, by check mailed to such Certificateholder at
the address of such Holder appearing in the Certificate Register.
SECTION 5.4 ACCOUNTING AND REPORTS TO THE
CERTIFICATEHOLDERS, THE INTERNAL REVENUE SERVICE AND OTHERS. The
Owner Trustee shall (a) maintain (or cause to be maintained) the
books of the Trust on a calendar year basis on the accrual method
of accounting, (b) deliver to each Certificateholder, as may be
required by the Code and applicable Treasury Regulations or
otherwise, such information as may be required to enable each
Certificateholder to prepare its federal income tax return, (c)
file such tax returns relating to the Trust and make such
elections as may from time to time be required or appropriate
under any applicable state or federal statute or rule or
regulation thereunder so as to maintain the Trust's
characterization as a partnership for federal income tax
purposes, (d) cause such tax returns to be signed in the manner
required by law and (e) collect or cause to be collected any
withholding tax as described in and in accordance with subsection
5.2(c) with respect to income or distributions to
Certificateholders. In preparing and filing tax returns for the
Trust, the Owner Trustee shall allocate taxable income of the
Trust for each Collection Period in the following manner: (A) to
the Certificateholders, an amount equal to the sum of (1)
interest distributable on the Certificates on the Distribution
Date related to such Collection Period and (2) any Trust income
attributable to discount on the Receivables that corresponds to
any excess of the Certificate Balance of the Certificates over
their initial issue price; and (B) to the Seller, if and to the
extent that the taxable income of the Trust for such Collection
Period exceeds the amount computed under (A) above. Unless
otherwise permitted or required by any applicable law or
regulation, the Owner Trustee shall allocate amounts of taxable
income of the Trust for a particular Collection Period among the
Certificateholders in proportion to the Certificate Balance owned
by them as of the Record Date for the related Distribution Date.
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SECTION 5.5 SIGNATURE ON RETURNS; TAX MATTERS
PARTNER. The Owner Trustee shall sign on behalf of the Trust any
and all tax returns of the Trust, unless applicable law requires
a Certificateholder to sign such documents, in which case such
documents shall be signed by the Seller. The Seller shall be the
"tax matters partner" of the Trust pursuant to the Code.
ARTICLE VI
THE OWNER TRUSTEE
SECTION 6.1 DUTIES OF OWNER TRUSTEE.
(a) The Owner Trustee undertakes to perform such
duties, and only such duties, as are specifically set forth in
this Agreement and the other Basic Documents, including the
administration of the Trust in the interest of the
Certificateholders, subject to the Basic Documents and in
accordance with the provisions of this Agreement. No implied
covenants or obligations shall be read into this Agreement.
(b) Notwithstanding the foregoing, the Owner Trustee
shall be deemed to have discharged its duties and
responsibilities hereunder and under the Basic Documents to the
extent the Administrator has agreed in the Administration
Agreement to perform any act or to discharge any duty of the
Owner Trustee hereunder or under any Basic Document, and the
Owner Trustee shall not be liable for the default or failure of
the Administrator to carry out its obligations under the
Administration Agreement.
(c) In the absence of bad faith on its part, the Owner
Trustee may conclusively rely upon certificates or opinions fur-
nished to the Owner Trustee and conforming to the requirements of
this Agreement in determining the truth of the statements and the
correctness of the opinions contained therein; PROVIDED, HOWEVER,
that the Owner Trustee shall have examined such certificates or
opinions so as to determine compliance of the same with the
requirements of this Agreement.
(d) The Owner Trustee may not be relieved from
liability for its own negligent action, its own negligent failure
to act or its own willful misconduct, except that:
(i) this subsection 6.1(d) shall not limit the effect
of subsection 6.1(a) or (b);
(ii) the Owner Trustee shall not be liable for any
error of judgment made in good faith by a Responsible
Officer unless it is proved that the Owner Trustee was
negligent in ascertaining the pertinent facts; and
(iii) the Owner Trustee shall not be liable with respect
to any action it takes or omits to take in good faith in
accordance with a direction received by it pursuant to
Section 4.1, 4.2 or 6.4.
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(e) Subject to Sections 5.1 and 5.2, monies received
by the Owner Trustee hereunder need not be segregated in any
manner except to the extent required by law or the Trust Sale and
Servicing Agreement and may be deposited under such general
conditions as may be prescribed by law, and the Owner Trustee
shall not be liable for any interest thereon.
(f) The Owner Trustee shall not take any action that
(i) is inconsistent with the purposes of the Trust set forth in
Section 2.3 or (ii) would, to the actual knowledge of a
Responsible Officer of the Owner Trustee, result in the Trust's
becoming taxable as a corporation for federal income tax
purposes.
(g) The Certificateholders shall not direct the Owner
Trustee to take action that would violate the provisions of this
Section 6.1.
SECTION 6.2 RIGHTS OF OWNER TRUSTEE. The Owner
Trustee is authorized and directed to execute and deliver the
Basic Documents and each certificate or other document attached
as an exhibit to or contemplated by the Basic Documents to which
the Trust is to be a party, in such form as the Seller shall
approve as evidenced conclusively by the Owner Trustee's
execution thereof. In addition to the foregoing, the Owner
Trustee is authorized, but shall not be obligated, to take all
actions required of the Trust pursuant to the Basic Documents.
The Owner Trustee is further authorized from time to time to take
such action as the Administrator recommends with respect to the
Basic Documents.
SECTION 6.3 ACCEPTANCE OF TRUSTS AND DUTIES. Except
as otherwise provided in this Article VI, in accepting the trusts
hereby created, Citibank Delaware acts solely as Owner Trustee
hereunder and not in its individual capacity and all Persons
having any claim against the Owner Trustee by reason of the
transactions contemplated by this Agreement or any Basic Document
shall look only to the Owner Trust Estate for payment or
satisfaction thereof. The Owner Trustee accepts the trusts
hereby created and agrees to perform its duties hereunder with
respect to such trusts but only upon the terms of this Agreement.
The Owner Trustee also agrees to disburse all monies actually
received by it constituting part of the Owner Trust Estate upon
the terms of the Basic Documents and this Agreement. The Owner
Trustee shall not be liable or accountable hereunder or under any
Basic Document under any circumstances, except (i) for its own
negligent action, its own negligent failure to act or its own
wilful misconduct or (ii) in the case of the inaccuracy of any
representation or warranty contained in Section 6.6 and expressly
made by the Owner Trustee. In particular, but not by way of
limitation (and subject to the exceptions set forth in the
preceding sentence):
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(a) the Owner Trustee shall at no time have any
responsibility or liability for or with respect to the
legality, validity and enforceability of any Receivable held
by the Trust, or the perfection and priority of any security
interest created by any such Receivable in any Vehicle or
the maintenance of any such perfection and priority, or for
or with respect to the sufficiency of the Owner Trust Estate
or its ability to generate the distributions and payments
to be made to Certificateholders under this Agreement or to
Noteholders under the Indenture, including, without
limitation: the existence and contents of any such Receiv-
able on any computer or other record thereof; the validity
of the assignment of any such Receivable to the Trust or of
any intervening assignment; the completeness of any such
Receivable; the performance or enforcement of any such
Receivable; the compliance by the Seller or the Servicer
with any warranty or representation made under any Basic
Document or in any related document or the accuracy of any
such warranty or representation or any action of the
Administrator, the Trustee or the Servicer or any
subservicer taken in the name of the Owner Trustee;
(b) the Owner Trustee shall not be liable with respect
to any action taken or omitted to be taken by it in
accordance with the instructions of the Administrator or any
Certificateholder;
(c) no provision of this Agreement or any Basic
Document shall require the Owner Trustee to expend or risk
funds or otherwise incur any financial liability in the
performance of any of its rights or powers hereunder or
under any Basic Document, if the Owner Trustee shall have
reasonable grounds for believing that repayment of such
funds or adequate indemnity against such risk or liability
is not reasonably assured or provided to it;
(d) under no circumstances shall the Owner Trustee be
liable for indebtedness evidenced by or arising under any
of the Basic Documents, including the principal of and
interest on the Notes or the Certificate Balance of and
interest on the Certificates;
(e) the Owner Trustee shall not be responsible for or
in respect of and makes no representation as to the validity
or sufficiency of any provision of this Agreement or for the
due execution hereof by the Seller or for the form,
character, genuineness, sufficiency, value or validity of
any of the Owner Trust Estate or for or in respect of the
validity or sufficiency of the Basic Documents, the Notes,
the Certificates (other than the certificate of
authentication on the Certificates) or of any Receivables
held by the Trust or any related documents, and the Owner
Trustee shall in no event assume or incur any liability,
duty or obligation to any Noteholder or to any
Certificateholder, other than as expressly provided for
herein and in the Basic Documents;
20<PAGE>
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(f) the Owner Trustee shall not be liable for the
default or misconduct of the Administrator, the Indenture
Trustee, the Seller or the Servicer under any of the Basic
Documents or otherwise and the Owner Trustee shall have no
obligation or liability to perform the obligations of the
Trust under this Agreement or the Basic Documents that are
required to be performed by the Administrator under the
Administration Agreement, the Indenture Trustee under the
Indenture or the Servicer under the Pooling and Servicing
Agreement or the Trust Sale and Servicing Agreement; and
(g) the Owner Trustee shall be under no obligation to
exercise any of the rights or powers vested in it by this
Agreement, or to institute, conduct or defend any litigation
under this Agreement or otherwise or in relation to this
Agreement or any Basic Document, at the request, order or
direction of any of the Certificateholders, unless such
Certificateholders have offered to the Owner Trustee
security or indemnity satisfactory to it against the costs,
expenses and liabilities that may be incurred by the Owner
Trustee therein or thereby. The right of the Owner Trustee
to perform any discretionary act enumerated in this
Agreement or in any Basic Document shall not be construed
as a duty, and the Owner Trustee shall not be answerable for
other than its negligence or wilful misconduct in the
performance of any such act.
SECTION 6.4 ACTION UPON INSTRUCTION BY CERTIFICATE-
HOLDERS.
(a) Subject to Section 4.4, the Certificateholders may
by written instruction direct the Owner Trustee in the management
of the Trust. Such direction may be exercised at any time by
written instruction of the Certificateholders pursuant to Section
4.5.
(b) Notwithstanding the foregoing, the Owner Trustee
shall not be required to take any action hereunder or under any
Basic Document if the Owner Trustee shall have reasonably
determined, or shall have been advised by counsel, that such
action is likely to result in liability on the part of the Owner
Trustee or is contrary to the terms hereof or of any Basic
Document or is otherwise contrary to law.
(c) Whenever the Owner Trustee is unable to decide
between alternative courses of action permitted or required by
the terms of this Agreement or any Basic Document, or is unsure
as to the application, intent, interpretation or meaning of any
provision of this Agreement or the Basic Documents, the Owner
Trustee shall promptly give notice (in such form as shall be
appropriate under the circumstances) to the Certificateholders
requesting instruction as to the course of action to be adopted,
and, to the extent the Owner Trustee acts in good faith in
accordance with any such instruction received, the Owner Trustee
shall not be liable on account of such action to any Person. If
the Owner Trustee shall not have received appropriate
instructions within ten days of such notice (or within such
shorter period of time as reasonably may be specified in such
notice or may be necessary under the circumstances) it may, but
shall be under no duty to, take or refrain from taking such
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action which is consistent, in its view, with this Agreement or
the Basic Documents, and as it shall deem to be in the best
interests of the Certificateholders, and the Owner Trustee shall
have no liability to any Person for any such action or inaction.
SECTION 6.5 FURNISHING OF DOCUMENTS. The Owner
Trustee shall furnish (a) to the Certificateholders, promptly
upon receipt of a written request therefor, duplicates or copies
of all reports, notices, requests, demands, certificates,
financial statements and any other instruments furnished to the
Owner Trustee under the Basic Documents and (b) to the
Noteholders and the Certificateholders, promptly upon receipt of
a written request therefor, copies of the Pooling and Servicing
Agreement, the Trust Sale and Servicing Agreement, the
Administration Agreement, the Custodian Agreement and this
Agreement.
SECTION 6.6 REPRESENTATIONS AND WARRANTIES OF OWNER
TRUSTEE. The Owner Trustee hereby represents and warrants to the
Seller, for the benefit of the Certificateholders, that:
(a) It is a banking corporation duly organized,
validly existing and in good standing under the laws of the state
of its incorporation.
(b) It has full power, authority and legal right to
execute, deliver and perform this Agreement, and has taken all
necessary action to authorize the execution, delivery and per-
formance by it of this Agreement. The eligibility requirements
set forth in Section 6.13 are satisfied with respect to it.
(c) The execution, delivery and performance by it of
this Agreement (i) shall not violate any provision of any law or
regulation governing the banking and trust powers of the Owner
Trustee or any order, writ, judgment or decree of any court,
arbitrator or governmental authority applicable to the Owner
Trustee or any of its assets, (ii) shall not violate any
provision of the corporate charter or by-laws of the Owner
Trustee or (iii) shall not violate any provision of, or
constitute, with or without notice or lapse of time, a default
under, or result in the creation or imposition of any lien on any
properties included in the Trust pursuant to the provisions of
any mortgage, indenture, contract, agreement or other undertaking
to which it is a party, which violation, default or lien could
reasonably be expected to have a materially adverse effect on the
Owner Trustee's performance or ability to perform its duties as
Owner Trustee under this Agreement or on the transactions
contemplated in this Agreement.
(d) The execution, delivery and performance by the
Owner Trustee of this Agreement shall not require the
authorization, consent or approval of, the giving of notice to,
the filing or registration with, or the taking of any other
action in respect of, any Governmental Authority regulating the
banking and corporate trust activities of banks or trust
companies in the jurisdiction in which the Trust was formed.
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(e) This Agreement has been duly executed and
delivered by the Owner Trustee and constitutes the legal, valid
and binding agreement of the Owner Trustee, enforceable in
accordance with its terms, except as enforceability may be
limited by bankruptcy, insolvency, reorganization, or other
similar laws affecting the enforcement of creditors' rights in
general and by general principles of equity, regardless of
whether such enforceability is considered in a proceeding in
equity or at law.
SECTION 6.7 RELIANCE; ADVICE OF COUNSEL.
(a) The Owner Trustee shall incur no liability to
anyone in acting upon any signature, instrument, notice,
resolution, request, consent, order, certificate, report,
opinion, bond or other document or paper believed by it to be
genuine and believed by it to be signed by the proper party or
parties and need not investigate any fact or matter in any such
document. The Owner Trustee may accept a certified copy of a
resolution of the board of directors or other governing body of
any corporate party as conclusive evidence that such resolution
has been duly adopted by such body and that the same is in full
force and effect. As to any fact or matter the method of the
determination of which is not specifically prescribed herein, the
Owner Trustee may for all purposes hereof rely on a certificate,
signed by the president or any vice president or by the treasurer
or other authorized officers of the relevant party, as to such
fact or matter, and such certificate shall constitute full
protection to the Owner Trustee for any action taken or omitted
to be taken by it in good faith in reliance thereon.
(b) In the exercise or administration of the trusts
hereunder and in the performance of its duties and obligations
under this Agreement or the Basic Documents, the Owner Trustee:
(i) may act directly or through its agents, attorneys, custodians
or nominees (including the granting of a power of attorney to
officers of Citibank, N.A. to execute and deliver any Basic
Documents, Certificate, Note or other documents related thereto
on behalf of the Owner Trustee) pursuant to agreements entered
into with any of them, and the Owner Trustee shall not be liable
for the conduct or misconduct of such agents, attorneys,
custodians or nominees if such agents, attorneys, custodians or
nominees shall have been selected by the Owner Trustee with
reasonable care; and (ii) may consult with counsel, accountants
and other skilled professionals to be selected with reasonable
care and employed by it. The Owner Trustee shall not be liable
for anything done, suffered or omitted in good faith by it in
accordance with the opinion or advice of any such counsel,
accountants or other such Persons and not contrary to this
Agreement or any Basic Document.
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SECTION 6.8 OWNER TRUSTEE MAY OWN CERTIFICATES AND
NOTES. The Owner Trustee in its individual or any other capacity
may become the owner or pledgee of Certificates or Notes and may
deal with the Seller, the Administrator, the Indenture Trustee
and the Servicer in transactions in the same manner as it would
have if it were not the Owner Trustee.
SECTION 6.9 COMPENSATION AND INDEMNITY. The Owner
Trustee shall receive as compensation for its services hereunder
such fees as have been separately agreed upon before the date
hereof between the Seller and the Owner Trustee, and the Owner
Trustee shall be entitled to be reimbursed by the Servicer for
its other reasonable expenses hereunder, including the reasonable
compensation, expenses and disbursements of such agents,
custodians, nominees, representatives, experts and counsel as the
Owner Trustee may employ in connection with the exercise and
performance of its rights and its duties hereunder. The Servicer
shall indemnify the Owner Trustee and its successors, assigns,
agents and servants in accordance with the provisions of Section
7.1 of the Trust Sale and Servicing Agreement. The indemnities
contained in this Section 6.9 shall survive the resignation or
termination of the Owner Trustee or the termination of this
Agreement. Any amounts paid to the Owner Trustee pursuant to
this Article VI shall be deemed not to be a part of the Owner
Trust Estate immediately after such payment.
SECTION 6.10 REPLACEMENT OF OWNER TRUSTEE.
(a) The Owner Trustee may at any time give notice of
its intent to resign and be discharged from the trusts hereby
created by giving written notice thereof to the Administrator;
PROVIDED that no such resignation shall become effective, and the
Owner Trustee shall not resign, prior to the time set forth in
Section 6.10(c). The Administrator may appoint a successor Owner
Trustee by delivering written instrument, in duplicate, to the
resigning Owner Trustee and the successor Owner Trustee. If no
successor Owner Trustee shall have been appointed and have
accepted appointment within 30 days after the giving of such
notice, the resigning Owner Trustee giving such notice may
petition any court of competent jurisdiction for the appointment
of a successor Owner Trustee. The Administrator shall remove the
Owner Trustee if:
(i) the Owner Trustee shall cease to be eligible in
accordance with the provisions of Section 6.13 and shall
fail to resign after written request therefor by the
Administrator;
(ii) the Owner Trustee shall be adjudged bankrupt or
insolvent;
(iii) a receiver or other public officer shall be
appointed or take charge or control of the Owner Trustee or
of its property or affairs for the purpose of
rehabilitation, conservation or liquidation; or
(iv) the Owner Trustee shall otherwise be incapable of
acting.
(b) If the Owner Trustee resigns or is removed or if
a vacancy exists in the office of Owner Trustee for any reason
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the Administrator shall promptly appoint a successor Owner
Trustee by written instrument, in duplicate (one copy of which
instrument shall be delivered to the outgoing Owner Trustee so
removed and one copy to the successor Owner Trustee) and shall
pay all fees owed to the outgoing Owner Trustee.
(c) Any resignation or removal of the Owner Trustee
and appointment of a successor Owner Trustee pursuant to any of
the provisions of this Section 6.10 shall not become effective,
and no such resignation shall be deemed to have occurred, until
a written acceptance of appointment is delivered by the successor
Owner Trustee to the outgoing Owner Trustee and the
Administrator, and all fees and expenses due to the outgoing
Owner Trustee are paid. Any successor Owner Trustee appointed
pursuant to this Section 6.10 shall be eligible to act in such
capacity in accordance with Section 6.13 and, following
compliance with the preceding sentence, shall become fully vested
with all the rights, powers, duties and obligations of its
predecessor under this Agreement, with like effect as if
originally named as Owner Trustee. The Administrator shall
provide notice of such resignation or removal of the Owner
Trustee to each of the Rating Agencies.
(d) The predecessor Owner Trustee shall upon payment
of its fees and expenses deliver to the successor Owner Trustee
all documents and statements and monies held by it under this
Agreement. The Administrator and the predecessor Owner Trustee
shall execute and deliver such instruments and do such other
things as may reasonably be required for fully and certainly
vesting and confirming in the successor Owner Trustee all such
rights, powers, duties and obligations.
(e) Upon acceptance of appointment by a successor
Owner Trustee pursuant to this Section 6.10, the Administrator
shall mail notice of the successor of such Owner Trustee to all
Certificateholders, the Indenture Trustee, the Noteholders and
the Rating Agencies.
SECTION 6.11 MERGER OR CONSOLIDATION OF OWNER
TRUSTEE. Any Person into which the Owner Trustee may be merged
or converted or with which it may be consolidated, or any
corporation resulting from any merger, conversion or
consolidation to which the Owner Trustee shall be a party, or any
Person succeeding to all or substantially all of the corporate
trust business of the Owner Trustee, shall be the successor of
the Owner Trustee hereunder, provided such Person shall be
eligible pursuant to Section 6.13, and without the execution or
filing of any instrument or any further act on the part of any of
the parties hereto; PROVIDED, HOWEVER, that the Owner Trustee
shall mail notice of such merger or consolidation to the Rating
Agencies.
SECTION 6.12 APPOINTMENT OF CO-TRUSTEE OR SEPARATE
TRUSTEE.
(a) Notwithstanding any other provisions of this
Agreement, at any time, for the purpose of meeting any legal
requirement of any jurisdiction in which any part of the Owner
Trust Estate or any of the Dealers may at the time be located,
the Administrator and the Owner Trustee acting jointly shall have
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the power and shall execute and deliver all instruments to
appoint one or more Persons approved by the Owner Trustee to act
as co-trustee, jointly with the Owner Trustee, or as separate
trustee or trustees, of all or any part of the Owner Trust
Estate, and to vest in such Person, in such capacity, such title
to the Trust, or any part thereof, and, subject to the other
provisions of this Section 6.12, such powers, duties, obliga-
tions, rights and trusts as the Administrator and the Owner
Trustee may consider necessary or desirable. If the
Administrator shall not have joined in such appointment within 15
days after the receipt by it of a request so to do, the Owner
Trustee alone shall have the power to make such appointment. No
co-trustee or separate trustee under this Agreement shall be
required to meet the terms of eligibility as a successor trustee
pursuant to Section 6.13 and no notice of the appointment of any
co-trustee or separate trustee shall be required pursuant to
Section 6.10.
(b) Each separate trustee and co-trustee shall, to the
extent permitted by law, be appointed and act subject to the
following provisions and conditions:
(i) all rights, powers, duties and obligations
conferred or imposed upon the Owner Trustee shall be
conferred upon and exercised or performed by the Owner
Trustee and such separate trustee or co-trustee jointly (it
being understood that such separate trustee or co-trustee
is not authorized to act separately without the Owner
Trustee joining in such act), except to the extent that
under any law of any jurisdiction in which any particular
act or acts are to be performed, the Owner Trustee shall be
incompetent or unqualified to perform such act or acts, in
which event such rights, powers, duties and obligations
(including the holding of title to the Trust or any portion
thereof in any such jurisdiction) shall be exercised and
performed singly by such separate trustee or co-trustee, but
solely at the direction of the Owner Trustee;
(ii) no trustee under this Agreement shall be
personally liable by reason of any act or omission of any
other trustee under this Agreement; and
(iii) the Administrator and the Owner Trustee acting
jointly may at any time accept the resignation of or remove
any separate trustee or co-trustee.
(c) Any notice, request or other writing given to the
Owner Trustee shall be deemed to have been given to each of the
then separate trustees and co-trustees, as effectively as if
given to each of them. Every instrument appointing any separate
trustee or co-trustee shall refer to this Agreement and the
conditions of this Article. Each separate trustee and co-
trustee, upon its acceptance of the trusts conferred, shall be
vested with the estates or property specified in its instrument
of appointment, either jointly with the Owner Trustee or
separately, as may be provided therein, subject to all the
provisions of this Agreement, specifically including every
provision of this Agreement relating to the conduct of, affecting
the liability of, or affording protection to, the Owner Trustee.
Each such instrument shall be filed with the Owner Trustee and a
copy thereof given to the Administrator.
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(d) Any separate trustee or co-trustee may at any time
appoint the Owner Trustee as its agent or attorney-in-fact with
full power and authority, to the extent not prohibited by law, to
do any lawful act under or in respect of this Agreement on its
behalf and in its name. If any separate trustee or co-trustee
shall die, become incapable of acting, resign or be removed, all
of its estates, properties, rights, remedies and trusts shall
vest in and be exercised by the Owner Trustee, to the extent
permitted by law, without the appointment of a new or successor
trustee.
SECTION 6.13 ELIGIBILITY REQUIREMENTS FOR OWNER
TRUSTEE. The Owner Trustee shall at all times satisfy the
requirements of Section 26(a)(1) of the Investment Company Act.
The Owner Trustee shall at all times: (a) be a corporation
satisfying the provisions of Section 3807(a) of the Business
Trust Statute; (b) be authorized to exercise corporate trust
powers; (c) have an aggregate capital, surplus and undivided
profits of at least $50,000,000 and be subject to supervision or
examination by federal or state authorities; and (d) have (or
have a parent which has) a long-term unsecured debt rating of at
least BBB- by Standard & Poor's and at least Baa3 by Moody's. If
such corporation shall publish reports of condition at least
annually, pursuant to law or to the requirements of the aforesaid
supervising or examining authority, then for the purpose of this
Section 6.13, the aggregate capital, surplus and undivided
profits of such corporation shall be deemed to be its aggregate
capital, surplus and undivided profits as set forth in its most
recent report of condition so published. If at any time the
Owner Trustee shall cease to be eligible in accordance with the
provisions of this Section 6.13, the Owner Trustee shall resign
immediately in the manner and with the effect specified in
Section 6.10.
ARTICLE VII
TERMINATION OF TRUST AGREEMENT
SECTION 7.1 TERMINATION OF TRUST AGREEMENT.
(a) The Trust shall terminate on the date (the "Trust
Termination Date") on which the first of the following occurs:
(i) if the Seller so elects, the day following the Distribution
Date on which all amounts required to be paid to the
Securityholders pursuant to the Basic Documents have been paid
(or deposited in the Note Distribution Account, the Certificate
Distribution Account or the Revolver Distribution Account) and
the aggregate Outstanding Amount of the Revolving Notes is zero;
(ii) at the time provided in Section 7.2; and (iii) the Specified
Trust Termination Date. This Agreement and the obligations of
the parties hereunder (other than Section 6.9 hereof and as
otherwise expressly provided herein) shall terminate and be of no
further force or effect (i) if the Trust Termination Date is
determined pursuant to clause (i) above, on the Trust Termination
Date, (ii) if the Trust Termination Date is determined pursuant
to clause (ii) above, at the time provided in Section 7.2 and
(iii) if the Trust Termination Date is determined pursuant to
clause (iii) above, on the date following the Distribution Date
on which the final payments to be made to the Securityholders
pursuant to the Basic Documents have been paid (or deposited in
the appropriate Distribution Accounts).
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(b) The bankruptcy, liquidation, dissolution, death
or incapacity of any Certificateholder, other than the Seller as
described in Section 7.2, shall not (x) operate to terminate this
Agreement or the Trust, nor (y) entitle such Certificateholder's
legal representatives or heirs to claim an accounting or to take
any action or proceeding in any court for a partition or winding
up of all or any part of the Trust or the Owner Trust Estate nor
(z) otherwise affect the rights, obligations and liabilities of
the parties hereto. Except as provided in Section 7.1(a), nei-
ther the Seller nor any Certificateholder shall be entitled to
revoke or terminate the Trust or this Agreement.
(c) Notice of any termination of the Trust, except as
otherwise provided in Section 7.2, specifying the Distribution
Date upon which the Certificateholders shall surrender their
Certificates to the Paying Agent for distribution of the final
distribution and cancellation, shall be given by the Owner
Trustee by letter to Certificateholders mailed within five
Business Days of receipt of notice of such termination from the
Servicer given pursuant to Section 9.4 of the Trust Sale and
Servicing Agreement, stating: (i) the Distribution Date upon or
with respect to which the final distribution of the Certificate
Balance of the Certificates shall be made upon presentation and
surrender of the Certificates at the office of the Paying Agent
therein designated; (ii) the amount of any such final
distribution of the Certificate Balance; and (iii) that the
Record Date otherwise applicable to such Distribution Date is not
applicable, distributions being made only upon presentation and
surrender of the Certificates at the office of the Paying Agent
therein specified. The Owner Trustee shall give such notice to
the Certificate Registrar (if other than the Owner Trustee) and
the Paying Agent at the time such notice is given to Certif-
icateholders. Upon presentation and surrender of the
Certificates, the Paying Agent shall cause to be distributed to
Certificateholders amounts distributable on such Distribution
Date pursuant to Section 5.2.
(d) If all of the Certificateholders shall not
surrender their Certificates for cancellation within six months
after the date specified in the written notice specified in
subsection 7.1(c), the Owner Trustee shall give a second written
notice to the remaining Certificateholders to surrender their
Certificates for cancellation and receive the final distribution
with respect thereto. If within one year after the second notice
all the Certificates shall not have been surrendered for
cancellation, the Owner Trustee may take appropriate steps, or
may appoint an agent to take appropriate steps, to contact the
remaining Certificateholders concerning surrender of their
Certificates, and the cost thereof shall be paid out of the funds
and other assets that shall remain subject to this Agreement.
Subject to applicable laws with respect to escheat of funds, any
funds remaining in the Trust after exhaustion of such remedies in
the preceding sentence shall be deemed property of the Seller and
distributed by the Owner Trustee to the Seller and the Owner
Trustee shall have no further liability to the Certificateholders
with respect thereto.
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(e) Upon the winding up of the Trust and its termina-
tion, the Owner Trustee shall cause the Certificate of Trust to
be cancelled by filing a certificate of cancellation with the
Secretary of State in accordance with the provisions of Section
3810 of the Business Trust Statute.
SECTION 7.2 TERMINATION UPON BANKRUPTCY OF THE
SELLER. Upon the occurrence of an Insolvency Event with respect
to the Seller, the Trust shall terminate, subject to the
liquidation, winding-up and dissolution procedures described
below, and provided that the rights and obligations of the
parties to this Agreement shall not terminate during such
liquidation, winding-up and dissolution. Promptly after the
occurrence of any Insolvency Event with respect to the Seller:
(i) the Seller shall give the Indenture Trustee and the Owner
Trustee written notice of such Insolvency Event; (ii) the Owner
Trustee shall, upon the receipt of such written notice from the
Seller, give prompt written notice to the Certificateholders and
the Indenture Trustee of the occurrence of such event; and
(iii) the Indenture Trustee shall, upon receipt of written notice
of such Insolvency Event from the Owner Trustee or the Seller,
give prompt written notice to the Noteholders of the occurrence
of such event; PROVIDED, HOWEVER, that any failure to give a
notice required by this sentence shall not prevent or delay in
any manner a termination of the Trust pursuant to the first
sentence of this Section 7.2. Ninety days after the date the
Seller gives the notice described in the preceding sentence,
unless the Owner Trustee shall have received written instructions
from each of the Certificateholders (other than the Seller and
any of its Affiliates) to the effect that each such party
disapproves of the liquidation of the assets held by the Trust
and the termination of the Trust and wishes to reconstitute the
Trust pursuant to terms corresponding to the terms of this
Agreement, the Owner Trustee shall direct the Indenture Trustee
promptly to sell, dispose or otherwise liquidate the assets of
the Trust (other than the Designated Accounts and the Certificate
Distribution Account) in a commercially reasonable manner and on
commercially reasonable terms (which may include continuing to
hold the Receivables and receiving collections thereon). The
proceeds of any such sale, disposition or liquidation shall be
treated as Collections on the Receivables in the Accounts in the
Pool of Accounts and deposited in the Collection Account pursuant
to Section 9.2 of the Trust Sale and Servicing Agreement, and
thereupon this Agreement and the respective obligations and
responsibilities of the Seller, the Servicer, the Owner Trustee
and the Indenture Trustee shall terminate (except as otherwise
expressly provided herein).
ARTICLE VIII
AMENDMENTS
SECTION 8.1 AMENDMENTS WITHOUT CONSENT OF
SECURITYHOLDERS. This Agreement may be amended by the Seller and
the Owner Trustee without the consent of any of the
Securityholders (but with prior notice to the Rating Agencies) to
(i) cure any ambiguity, (ii) correct or supplement any provision
in this Agreement that may be defective or inconsistent with any
other provision in this Agreement, (iii) add or supplement any
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<PAGE>34
liquidity, credit or other enhancement arrangement for the
benefit of any Securityholders (provided that if any such
addition shall affect any series of Securityholders differently
than any other series of Securityholders, then such addition
shall not, as evidenced by an Opinion of Counsel, adversely
affect in any material respect the interests of any series of
Securityholders), (iv) add to the covenants, restrictions or
obligations of the Seller or the Owner Trustee for the benefit of
the Securityholders, (v) evidence and provide for the acceptance
of the appointment of a successor trustee with respect to the
Owner Trust Estate and add to or change any provisions as shall
be necessary to facilitate the administration of the trusts
hereunder by more than one trustee pursuant to Article VI or (vi)
add, change or eliminate any other provision of this Agreement in
any manner that shall not, as evidenced by an Opinion of Counsel,
adversely affect in any material respect the interests of the
Securityholders.
SECTION 8.2 AMENDMENTS WITH CONSENT OF CERTIFICATE-
HOLDERS AND NOTEHOLDERS. This Agreement may be amended from time
to time by the Seller and the Owner Trustee with the consent of
Noteholders whose Notes evidence not less than a majority of the
Outstanding Amount of the Notes as of the close of business on
the preceding Distribution Date and the consent of Certificate-
holders whose Certificates evidence not less than a majority of
the Voting Interests as of the close of business on the preceding
Distribution Date (which consent, whether given pursuant to this
Section 8.2 or pursuant to any other provision of this Agreement,
shall be conclusive and binding on such Person and on all future
holders of such Notes or Certificates and of any Notes or
Certificates issued upon the transfer thereof or in exchange
thereof or in lieu thereof whether or not notation of such
consent is made upon the Notes or Certificates) 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 or the
Certificateholders; PROVIDED, HOWEVER, that no such amendment
shall (a) increase or reduce in any manner the amount of, or
accelerate or delay the timing of, distributions that shall be
required to be made on any Security without the consent of the
Holder thereof (it being understood that the issuance of any
Securities after the Initial Closing Date as contemplated by this
Agreement, the Trust Sale and Servicing Agreement and the
Indenture and the specification of the terms and provisions
thereof pursuant to a Certificate Issuance Order (with respect to
any Certificates) or an Officer's Issuance Certificate (with
respect to any Notes) shall not be deemed to have such effect for
purposes hereof), (b) adversely effect the rating of any series
of Securities without the consent of the holders of two-thirds of
the Outstanding Amount of such series of Notes or the Voting
Interests with respect to such Certificates, as appropriate or
(c) reduce the aforesaid percentage required to consent to any
such amendment, without the consent of the Holders of all of the
Notes and all of the Voting Interests with respect to
Certificates then outstanding. Prior to the execution of any
such amendment, supplement or consent, the Owner Trustee shall
furnish written notification of the substance of such amendment,
supplement or consent to the Rating Agencies.
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<PAGE>35
SECTION 8.3 FORM OF AMENDMENTS.
(a) Promptly after the execution of any amendment,
supplement or consent pursuant to Section 8.1 or 8.2, the Owner
Trustee shall furnish written notification of the substance of
such amendment or consent to each Certificateholder and the
Indenture Trustee.
(b) It shall not be necessary for the consent of
Securityholders or the Indenture Trustee pursuant to Section 8.2
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 Securityholders provided for in this
Agreement or in any other Basic Document) and of evidencing the
authorization of the execution thereof by Securityholders shall
be subject to such reasonable requirements as the Owner Trustee
may prescribe.
(c) Promptly after the execution of any amendment to
the Certificate of Trust, the Owner Trustee shall cause the
filing of such amendment with the Secretary of State.
(d) Prior to the execution of any amendment to this
Agreement or the Certificate of Trust, the Owner Trustee shall be
entitled to receive and rely upon an Opinion of Counsel stating
that the execution of such amendment is authorized or permitted
by this Agreement. The Owner Trustee may, but shall not be
obligated to, enter into any such amendment which affects the
Owner Trustee's own rights, duties or immunities under this
Agreement or otherwise.
ARTICLE IX
MISCELLANEOUS
SECTION 9.1 NO LEGAL TITLE TO OWNER TRUST ESTATE.
The Certificateholders shall not have legal title to any part of
the Owner Trust Estate. The Certificateholders shall be entitled
to receive distributions with respect to their undivided
ownership interest therein only in accordance with Articles V and
VII. No transfer, by operation of law or otherwise, of any
right, title, and interest of the Certificateholders to and in
their ownership interest in the Owner Trust Estate shall operate
to terminate this Agreement or the trusts hereunder or entitle
any transferee to an accounting or to the transfer to it of legal
title to any part of the Owner Trust Estate.
SECTION 9.2 LIMITATIONS ON RIGHTS OF OTHERS. Except
for Section 2.7 and Section 9.13, the provisions of this
Agreement are solely for the benefit of the Owner Trustee, the
Seller, the Certificateholders, the Administrator and, to the
extent expressly provided herein, the Indenture Trustee and the
Noteholders, and nothing in this Agreement, whether express or
implied, shall be construed to give to any other Person any legal
or equitable right, remedy or claim in the Owner Trust Estate or
under or in respect of this Agreement or any covenants,
conditions or provisions contained herein.
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SECTION 9.3 DERIVATIVE ACTIONS. Any provision
contained herein to the contrary notwithstanding, the right of
any Certificate Owner to bring a derivative action in the right
of the Trust is hereby made expressly subject to the following
limitations and requirements:
(a) such Certificate Owner must meet all requirements
set forth in the Business Trust Statute; and
(b) no Certificate Owner may bring a derivative action
in the right of the Trust without the prior written consent of
Certificate Owners owning, in the aggregate, a beneficial
interest in Certificates representing 50% of the then outstanding
Certificate Balance.
SECTION 9.4 NOTICES.
(a) All demands, notices and communications upon or
to the Seller, the Servicer, the Administrator, the Indenture
Trustee, the Owner Trustee or the Rating Agencies under this
Agreement shall be in writing, personally delivered, sent by
electronic facsimile (with hard copy to follow via first class
mail) or mailed by certified mail-return receipt requested, and
shall be deemed to have been duly given upon receipt (i) in the
case of the Seller, at the following address: Wholesale Auto
Receivables Corporation, Corporation Trust Center, 1209 Orange
Street, Wilmington, Delaware 19801, with a copy to: J. B.
Van Orman, Vice President, 3044 West Grand Boulevard, Detroit,
Michigan 48202, (ii) in the case of the Servicer and the
Administrator, at the following address: F. A. Henderson, Group
Vice President, General Motors Acceptance Corporation, 3044 West
Grand Boulevard, Detroit, Michigan 48202, (iii) in the case of
the Indenture Trustee, at its Corporate Trust Office, (iv) in the
case of the Trust or the Owner Trustee, to the Owner Trustee at
its Corporate Trust Office, (v) in the case of Moody's, to
Moody's Investors Service, Inc., ABS Monitoring Department, 99
Church Street, New York, New York 10007 and (vi) in the case of
Standard & Poor's, to Standard & Poor's Ratings Group, 26
Broadway (15th Floor), New York, New York 10004, Attention: Asset
Backed Surveillance Department or at such other address as shall
be designated by such Person in a written notice to the other
parties to this Agreement.
(b) Any notice required or permitted to be given to
a Certificateholder shall be given by first-class mail, postage
prepaid, at the address of such Holder as shown in the
Certificate Register. Any notice so mailed within the time
prescribed in this Agreement shall be conclusively presumed to
have been duly given, whether or not the Certificateholder
receives such notice.
SECTION 9.5 SEVERABILITY OF PROVISIONS. 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
enforceable to the fullest extent permitted, and if not so
permitted, shall be deemed severable from the remaining
covenants, agreements, provisions or terms of this Agreement and
shall in no way affect the validity or enforceability of the
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other provisions of this Agreement or of the Certificates or the
rights of the holders thereof.
SECTION 9.6 COUNTERPARTS. This Agreement may be
executed in two or more counterparts (and by different parties on
separate counterparts), each of which shall be an original, but
all of which together shall constitute one and the same
instrument.
SECTION 9.7 SUCCESSORS AND ASSIGNS. All covenants
and agreements contained herein shall be binding upon, and inure
to the benefit of, the Seller, the Owner Trustee and each
Certificateholder and their respective successors and permitted
assigns, all as herein provided. Any request, notice, direction,
consent, waiver or other instrument or action by a
Certificateholder shall bind the successors and assigns of such
Certificateholder.
SECTION 9.8 NO PETITION COVENANTS. Notwithstanding
any prior termination of this Agreement, the Trust (or the Owner
Trustee on behalf of the Trust) and each Certificateholder or
Certificate Owner, by accepting a Certificate (or interest
therein), hereby covenants and agrees that they shall not, prior
to the date which is one year and one day after the termination
of this Agreement, acquiesce, petition or otherwise invoke or
cause the Seller to invoke the process of any court or
governmental authority for the purpose of commencing or
sustaining a case against the Seller under any federal or state
bankruptcy, insolvency or similar law or appointing a receiver,
liquidator, assignee, trustee, custodian, sequestrator or other
similar official of the Seller or any substantial part of its
property, or ordering the winding up or liquidation of the
affairs of the Seller.
SECTION 9.9 NO RECOURSE. Each Certificateholder and
Certificate Owner, by accepting a Certificate (or interest
therein), shall agree that such Person's Certificates (or
interest therein) represent beneficial interests in the Trust
only and do not represent interests in or obligations of the
Seller, the Servicer, the Administrator, the Owner Trustee, the
Indenture Trustee or any Affiliate thereof and no recourse,
either directly or indirectly, may be had against such parties or
their assets, except as may be expressly set forth or
contemplated in this Agreement, the Certificates or the Basic
Documents. Except as expressly provided in the Basic Documents,
neither the Seller, the Servicer nor the Owner Trustee in their
respective individual capacities, nor any of their respective
partners, beneficiaries, agents, officers, directors, employees
or successors or assigns, shall be personally liable for, nor
shall recourse be had to any of them for, the distribution of
Certificate Balance with respect to or interest on, or
performance of, or omission to perform, any of the covenants,
obligations or indemnifications contained in the Certificates or
this Agreement, it being expressly understood that said
covenants, obligations and indemnifications have been made by the
Owner Trustee solely as the Owner Trustee in the assets of the
Issuer. Each Certificateholder or Certificate Owner by the
acceptance of a Certificate (or beneficial interest therein)
shall agree that, except as expressly provided in the Basic
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Documents, in the case of nonpayment of any amounts with respect
to the Certificates, it shall have no claim against any of the
foregoing for any deficiency, loss or claim therefrom.
SECTION 9.10 HEADINGS. The headings herein are for
purposes of reference only and shall not affect the meaning or
interpretation of any provision hereof.
SECTION 9.11 GOVERNING LAW. THIS AGREEMENT SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF
THE STATE OF DELAWARE, WITHOUT REFERENCE TO THE PRINCIPLES OF
CONFLICTS OF LAW THEREOF OR OF ANY OTHER JURISDICTION, AND THE
OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL
BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
SECTION 9.12 CERTIFICATE TRANSFER RESTRICTIONS.
(a) The Certificates may not be acquired by or for the
account of a Benefit Plan unless the Benefit Plan acquiring a
Certificate has available to it an exemption from the prohibited
transaction rules under Section 406(a) of ERISA and Section 4975
of the Code and such exemption is applicable to the purchase and
holding of the Certificates. Unless such an exemption is
available, by accepting and holding a Certificate, the Holder
thereof and the Certificate Owner shall each be deemed to have
represented and warranted that it is not a Benefit Plan and, if
requested to do so by the Seller pursuant to Section 3.4(b), the
Certificateholder and the Certificate Owner shall execute and
deliver to the Owner Trustee an Undertaking Letter in the form
set forth in EXHIBIT D. The Certificates are also subject to the
minimum denomination specified in Section 3.4(a).
(b) The Certificates will not be registered under the
Securities Act or the securities laws of any other jurisdiction.
Consequently, the Certificates are not transferable other than
pursuant to an exemption from the registration requirements of
the Securities Act and satisfaction of certain other provisions
specified herein. No sale, pledge or other transfer of the
Certificates (or interest therein) may be made by any Person
unless either (i) such sale, pledge or other transfer is made to
the Seller, (ii) such sale, pledge or other transfer is made to
an institutional investor that is an "accredited investor"
meeting the requirements of Rule 501(a)(1), (2), (3) or (7) of
Regulation D under the Securities Act (an "Institutional
Accredited Investor") that executes a certificate, substantially
in the form attached hereto as Exhibit E, to the effect that it
is an Institutional Accredited Investor acting for its own
account (and not for the account of others) or as a fiduciary or
agent for others (which others also are Institutional Accredited
Investors unless the holder is a bank acting in its fiduciary
capacity), (iii) so long as the Certificates are eligible for
resale pursuant to Rule 144A under the Securities Act, such sale,
pledge or other transfer is made to a person whom the seller
reasonably believes after due inquiry is a "qualified
institutional buyers" within the meaning of Rule 144A under the
Securities Act (a "Qualified Institutional Buyer") acting for its
own account (and not for the account of others) or as a fiduciary
or agent for others (which others also are Qualified
Institutional Buyers) to whom notice is given that the sale,
34<PAGE>
<PAGE>39
pledge or transfer is being made in reliance on Rule 144A under
the Securities Act, or (iv) such sale, pledge or other transfer
is otherwise made in a transaction exempt from the registration
requirements of the Securities Act, in which case (A) the Owner
Trustee shall require that both the prospective transferor and
the prospective transferee certify to the Owner Trustee and the
Seller in writing the facts surrounding such transfer, which
certification shall be in form and substance satisfactory to the
Owner Trustee and the Seller, and (B) the Owner Trustee shall
require a written opinion of counsel (which will not be at the
expense of the Seller or the Owner Trustee) satisfactory to the
Seller and the Owner Trustee to the effect that such transfer
will not violate the Securities Act. No sale, pledge or other
transfer may be made to any one person for Certificates with a
face amount of less than $250,000 and, in the case of any person
acting on behalf of one or more third parties (other than a bank
(as defined in Section 3(a)(2) of the Securities Act) acting in
its fiduciary capacity), for Certificates with a face amount of
less than $250,000 for each such third party. Neither the Seller
nor the Owner Trustee shall be obligated to register the
Certificates under the Securities Act, qualify the Certificates
under the securities laws of any state or provide registration
rights to any purchaser or holder thereof.
(c) Each Certificate shall bear a legend to the effect
set forth in subsections (a) and (b) above.
(d) The Seller shall be responsible for determining
compliance with the restrictions set forth in this Section 9.12.
SECTION 9.13 INDEMNIFICATION BY AND REIMBURSEMENT OF
THE SERVICER. The Owner Trustee acknowledges and agrees to
reimburse (i) the Servicer and its directors, officers, employees
and agents in accordance with Section 7.3(b) of the Trust Sale
and Servicing Agreement and (ii) the Seller and its directors,
officers, employees and agents in accordance with Section 3.4 of
the Trust Sale and Servicing Agreement. The Owner Trustee
further acknowledges and accepts the conditions and limitations
with respect to the Servicer's obligation to indemnify, defend
and hold the Owner Trustee harmless as set forth in Section
7.1(a) of the Trust Sale and Servicing Agreement.
* * * * *
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed by their respective officers
hereunto duly authorized, as of the day and year first above
written.
CITIBANK DELAWARE, as Owner Trustee
By: ______________________________
Name:
Title:
WHOLESALE AUTO RECEIVABLES
CORPORATION, Seller
By: ______________________________
Name: Christopher J. Rutkowski
Title: Vice President
35
<PAGE>40
EXHIBIT A
[FORM OF CERTIFICATE]
NUMBER $
R- CUSIP NO.
SEE REVERSE FOR CERTAIN DEFINITIONS
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN
AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST
COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE ISSUER
OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR
DISTRIBUTION, AND ANY CERTIFICATE ISSUED IS REGISTERED
IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND
ANY DISTRIBUTION IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE
OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL
INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO.,
HAS AN INTEREST HEREIN.]
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED
(THE "SECURITIES ACT"), OR UNDER THE SECURITIES OR BLUE
SKY LAWS OF ANY STATE IN THE UNITED STATES OR ANY
FOREIGN SECURITIES LAWS. BY ITS ACCEPTANCE OF THIS
CERTIFICATE THE HOLDER OF THIS CERTIFICATE (A) IS
DEEMED TO REPRESENT TO THE SELLER AND THE OWNER TRUSTEE
(i) THAT IT IS AN INSTITUTIONAL INVESTOR THAT IS AN
"ACCREDITED INVESTOR" AS DEFINED IN RULE
501(a)(1),(2),(3) OR (7) OF REGULATION D PROMULGATED
UNDER THE SECURITIES ACT (AN "INSTITUTIONAL ACCREDITED
INVESTOR") AND THAT IT IS ACQUIRING THIS CERTIFICATE
FOR ITS OWN ACCOUNT (AND NOT FOR THE ACCOUNT OF OTHERS)
OR AS A FIDUCIARY OR AGENT FOR OTHERS (WHICH OTHERS
ALSO ARE INSTITUTIONAL ACCREDITED INVESTORS UNLESS THE
HOLDER IS A BANK ACTING IN ITS FIDUCIARY CAPACITY) FOR
INVESTMENT AND NOT WITH A VIEW TO, OR FOR OFFER OR SALE
IN CONNECTION WITH, THE PUBLIC DISTRIBUTION HEREOF OR
(ii) THAT IT IS A "QUALIFIED INSTITUTIONAL BUYER" AS
DEFINED IN RULE 144A UNDER THE SECURITIES ACT AND IS
ACQUIRING SUCH CERTIFICATE FOR ITS OWN ACCOUNT (AND NOT
FOR THE ACCOUNT OF OTHERS) OR AS A FIDUCIARY OR AGENT
FOR OTHERS (WHICH OTHERS ALSO ARE QUALIFIED
INSTITUTIONAL BUYERS).
NO SALE, PLEDGE OR OTHER TRANSFER OF THIS
CERTIFICATE MAY BE MADE BY ANY PERSON UNLESS EITHER (i)
SUCH SALE, PLEDGE OR OTHER TRANSFER IS MADE TO THE
SELLER, (ii) SUCH SALE, PLEDGE OR OTHER TRANSFER IS
MADE TO AN INSTITUTIONAL ACCREDITED INVESTOR THAT
EXECUTES A CERTIFICATE, SUBSTANTIALLY IN THE FORM
SPECIFIED IN THE TRUST AGREEMENT, TO THE EFFECT THAT
IT IS AN INSTITUTIONAL ACCREDITED INVESTOR ACTING FOR
1
<PAGE>41
ITS OWN ACCOUNT (AND NOT FOR THE ACCOUNT OF OTHERS) OR AS
A FIDUCIARY OR AGENT FOR OTHERS (WHICH OTHERS ALSO ARE
INSTITUTIONAL ACCREDITED INVESTORS UNLESS THE HOLDER IS A
BANK ACTING IN ITS FIDUCIARY CAPACITY), (iii) SO LONG AS
THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE
144A UNDER THE SECURITIES ACT, SUCH SALE, PLEDGE OR OTHER
TRANSFER IS MADE TO A PERSON WHOM THE SELLER REASONABLY
BELIEVES AFTER DUE INQUIRY IS A "QUALIFIED INSTITUTIONAL
BUYER" (AS DEFINED IN RULE 144A), ACTING FOR ITS OWN ACCOUNT
(AND NOT FOR THE ACCOUNT OF OTHERS) OR AS A FIDUCIARY OR
AGENT FOR OTHERS (WHICH OTHERS ALSO ARE QUALIFIED
INSTITUTIONAL BUYERS) TO WHOM NOTICE IS GIVEN THAT THE SALE,
PLEDGE OR TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A,
OR (iv) SUCH SALE, PLEDGE OR OTHER TRANSFER IS OTHERWISE
MADE IN A TRANSACTION EXEMPT FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT, IN WHICH CASE (A) THE
OWNER TRUSTEE SHALL REQUIRE THAT BOTH THE PROSPECTIVE
TRANSFEROR AND THE PROSPECTIVE TRANSFEREE CERTIFY TO THE
OWNER TRUSTEE AND THE SELLER IN WRITING THE FACTS
SURROUNDING SUCH TRANSFER, WHICH CERTIFICATION SHALL BE IN
FORM AND SUBSTANCE SATISFACTORY TO THE OWNER TRUSTEE AND THE
SELLER, AND (B) THE OWNER TRUSTEE SHALL REQUIRE A WRITTEN
OPINION OF COUNSEL (WHICH SHALL NOT BE AT THE EXPENSE OF THE
SELLER OR THE OWNER TRUSTEE) SATISFACTORY TO THE SELLER AND
THE OWNER TRUSTEE TO THE EFFECT THAT SUCH TRANSFER WILL NOT
VIOLATE THE SECURITIES ACT. NO SALE, PLEDGE OR OTHER
TRANSFER MAY BE MADE TO ANY ONE PERSON FOR CERTIFICATES WITH
A FACE AMOUNT OF LESS THAN $250,000 AND, IN THE CASE OF ANY
PERSON ACTING ON BEHALF OF ONE OR MORE THIRD PARTIES (OTHER
THAN A BANK (AS DEFINED IN SECTION 3(a)(2) OF THE SECURITIES
ACT) ACTING IN ITS FIDUCIARY CAPACITY), FOR OFFERED
CERTIFICATES WITH A FACE AMOUNT OF LESS THAN $250,000 FOR
EACH SUCH THIRD PARTY.
THIS CERTIFICATE MAY NOT BE ACQUIRED BY OR FOR
THE ACCOUNT OF (i) AN "EMPLOYEE BENEFIT PLAN" (AS
DEFINED IN SECTION 3(3) OF THE EMPLOYEE RETIREMENT
INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA")),
THAT IS SUBJECT TO THE PROVISIONS OF TITLE I OF ERISA,
(ii) A PLAN DESCRIBED IN SECTION 4975(e)(1) OF THE
INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"),
OR (iii) ANY ENTITY WHOSE UNDERLYING ASSETS INCLUDE
PLAN ASSETS BY REASON OF A PLAN'S INVESTMENT IN THE
ENTITY, UNLESS THE BENEFIT PLAN ACQUIRING THIS
CERTIFICATE HAS AVAILABLE TO IT AN EXEMPTION FROM THE
PROHIBITED TRANSACTION RULES UNDER SECTION 406(a) OF
ERISA AND SECTION 4975 OF THE CODE AND SUCH EXEMPTION
IS APPLICABLE TO THE PURCHASE AND HOLDING OF THIS
CERTIFICATE. UNLESS SUCH AN EXEMPTION IS AVAILABLE,
BY ACCEPTING AND HOLDING THIS CERTIFICATE, THE HOLDER
HEREOF AND THE CERTIFICATE OWNER SHALL EACH BE DEEMED
TO HAVE REPRESENTED AND WARRANTED THAT IT IS NOT A
BENEFIT PLAN.
2
<PAGE>42
EACH CERTIFICATEHOLDER OR CERTIFICATE OWNER, BY
ACCEPTING THIS CERTIFICATE (OR INTEREST THEREIN), (i)
EXPRESSES ITS INTENTION THAT THE CERTIFICATES WILL
QUALIFY UNDER APPLICABLE TAX LAW AS PARTNERSHIP
INTERESTS IN A PARTNERSHIP THAT HOLDS THE ESTATE OF THE
TRUST FOR THE BENEFIT OF THE CERTIFICATEHOLDERS AND
(ii) UNLESS OTHERWISE REQUIRED BY APPROPRIATE TAXING
AUTHORITIES, AGREES TO TREAT THE CERTIFICATES AS
INTERESTS IN SUCH A PARTNERSHIP FOR PURPOSES OF FEDERAL
INCOME, STATE AND LOCAL INCOME AND FRANCHISE TAXES,
MICHIGAN SINGLE BUSINESS TAX AND ANY OTHER TAXES
IMPOSED UPON, MEASURED BY OR BASED UPON GROSS OR NET
INCOME.
EACH CERTIFICATEHOLDER OR CERTIFICATE OWNER, BY
ITS ACCEPTANCE OF THIS CERTIFICATE (OR INTEREST
THEREIN), COVENANTS AND AGREES THAT SUCH CERTIF-
ICATEHOLDER OR CERTIFICATE OWNER, AS THE CASE MAY BE,
SHALL NOT, PRIOR TO THE DATE WHICH IS ONE YEAR AND ONE
DAY AFTER THE TERMINATION OF THE TRUST AGREEMENT,
ACQUIESCE, PETITION OR OTHERWISE INVOKE OR CAUSE THE
SELLER TO INVOKE THE PROCESS OF ANY COURT OR
GOVERNMENTAL AUTHORITY FOR THE PURPOSE OF COMMENCING
OR SUSTAINING A CASE AGAINST THE SELLER UNDER ANY
FEDERAL OR STATE BANKRUPTCY, INSOLVENCY, REORGANIZATION
OR SIMILAR LAW OR APPOINTING A RECEIVER, LIQUIDATOR,
ASSIGNEE, TRUSTEE, CUSTODIAN, SEQUESTRATOR OR OTHER
SIMILAR OFFICIAL OF THE SELLER OR ANY SUBSTANTIAL PART
OF ITS PROPERTY, OR ORDERING THE WINDING UP OR
LIQUIDATION OF THE AFFAIRS OF THE SELLER.
[PURSUANT TO THE TRUST AGREEMENT, WHOLESALE AUTO
RECEIVABLES CORPORATION ("WARCO") SHALL RETAIN
BENEFICIAL AND RECORD OWNERSHIP OF CERTIFICATES
REPRESENTING AT LEAST 1% OF THE CERTIFICATE BALANCE,
AND ANY ATTEMPTED TRANSFER OF THIS CERTIFICATE THAT
REDUCES THE BENEFICIAL AND RECORD INTEREST OF WARCO TO
BELOW 1% OF THE CERTIFICATE BALANCE SHALL BE VOID.]
SUPERIOR WHOLESALE INVENTORY FINANCING TRUST I
FLOATING RATE ASSET-BACKED CERTIFICATE, CLASS A
evidencing a fractional undivided interest in the
Trust, as defined below, the property of which includes
a pool of wholesale receivables generated from time to
time in a portfolio of revolving financing arrangements
with dealers to finance automobile and other vehicle
inventories and collections thereon and certain other
property.
(This Certificate does not represent an interest in or
obligation of Wholesale Auto Receivables Corporation,
General Motors Acceptance Corporation, General Motors
Corporation, the Owner Trustee or any of their
respective affiliates, except to the extent described
in the Basic Documents.)
3
<PAGE>43
THIS CERTIFIES THAT __________ is the registered owner
of a nonassessable, fully-paid, fractional undivided interest in
Superior Wholesale Inventory Financing Trust I (the "TRUST")
formed by Wholesale Auto Receivables Corporation, a Delaware
corporation.
The Trust was created pursuant to a Trust Agreement,
dated as of January 25, 1994 (as amended and supplemented from
time to time, the "TRUST AGREEMENT"), between the Seller and
Citibank Delaware, as owner trustee (the "OWNER TRUSTEE"), a
summary of certain of the pertinent provisions of which is set
forth below. To the extent not otherwise defined herein, the
capitalized terms used herein have the meanings assigned to them
in the Trust Agreement.
This Certificate is one of the duly authorized
Certificates designated as "Floating Rate Asset-Backed
Certificates, Class A" (the "CERTIFICATES"). This Certificate is
issued under and is subject to the terms, provisions and
conditions of the Trust Agreement, the terms of which are
incorporated herein by reference and made a part hereof, to which
Trust Agreement the holder of this Certificate by virtue of the
acceptance hereof assents and by which such holder is bound.
Under the Trust Agreement, there shall be distributed
on the 15th day of each calendar month or, if such 15th day is
not a Business Day, the next succeeding Business Day, commencing
on February 15, 1994 (each, a "DISTRIBUTION DATE"), to the person
in whose name this Certificate is registered on the related
Record Date (as defined below), interest accrued hereon to the
extent of funds available therefor and such Certificateholder's
fractional undivided interest in the amount of distributions in
respect of Certificate Balance to be distributed to Certificate-
holders on such Distribution Date. Interest shall accrue on this
Certificate at the applicable Certificate Rate (as set forth on
the reverse hereof) and interest accrued hereon as of any
Distribution Date but not distributed on such Distribution Date
shall be due on the next Distribution Date. No distributions of
Certificate Balance shall be made on any Certificate until all
Notes have been paid (or provided for) in full. The entire
unpaid Certificate Balance on this Certificate shall be due and
payable on the Distribution Date in January 1999 (the "STATED
FINAL PAYMENT DATE"). However, the actual distribution in full
of the Certificate could occur sooner or later than such date.
The "Record Date," with respect to any Distribution Date, means
the last day of the preceding Collection Period.
The distributions in respect of Certificate Balance and
interest on this Certificate are payable in such coin or currency
of the United States of America as at the time of distribution is
legal tender for payment of public and private debts. All
distributions made by the Trust with respect to this Certificate
shall be applied first to interest due and payable on this
Certificate as provided above and then to the unpaid
distributions in respect of Certificate Balance of this
Certificate.
4
<PAGE>44
The Holder of this Certificate acknowledges and agrees
that its rights to receive distributions in respect of this
Certificate are subordinated to the rights of the Noteholders as
and to the extent described in the Trust Sale and Servicing
Agreement and the Indenture.
It is the intention of the Seller, the Servicer and the
Certificateholders and Certificate Owners that, solely for
purposes of federal income, state and local income and franchise
taxes, Michigan single business tax and any other taxes imposed
upon, measured by or based upon gross or net income, the Trust
shall be treated as a partnership. Except as otherwise required
by appropriate taxing authorities, the Seller and the other
Certificateholders and Certificate Owners by acceptance of a
Certificate (or interest therein), agree to treat, and to take no
action inconsistent with the treatment of, the Certificates for
such tax purposes as interests in such partnership.
Each Certificateholder or Certificate Owner, by its
acceptance of a Certificate (or interest therein), (i) expresses
its intention that the Certificates will qualify under applicable
tax law as partnership interests in a partnership which holds the
estate of the Trust for the benefit of the Certificateholders and
(ii) unless otherwise required by appropriate taxing authorities,
agrees to treat the Certificates as interests in such a
partnership for purposes of federal income, state and local
income and franchise taxes, Michigan single business tax and any
other taxes imposed upon, measured by or based upon gross or net
income.
Each Certificateholder or Certificate Owner, by its
acceptance of a Certificate (or interest therein), covenants and
agrees that such Certificateholder or Certificate Owner, as the
case may be, shall not, prior to the date which is one year and
one day after the termination of the Trust Agreement, acquiesce,
petition or otherwise invoke or cause the Seller to invoke the
process of any court or governmental authority for the purpose of
commencing or sustaining a case against the Seller under any
federal or state bankruptcy, insolvency, reorganization or
similar law or appointing a receiver, liquidator, assignee,
trustee, custodian, sequestrator or other similar official of the
Seller or any substantial part of its property, or ordering the
winding up or liquidation of the affairs of the Seller. [By its
acceptance of this Certificate, the Seller agrees that it shall
not be deemed to have approved the commencement of a voluntary
proceeding in bankruptcy relating to the Trust for purposes of
Section 4.3 of the Trust Agreement unless such commencement was
approved by the affirmative vote of all of the members of the
Seller's board of directors.]
Distributions on this Certificate shall be made as
provided in the Trust Agreement without the presentation or
surrender of this Certificate or the making of any notation
hereon, to each Certificateholder of record on the immediately
preceding Record Date either by wire transfer, in immediately
available funds, to the account of such Holder at a bank or other
entity having appropriate facilities therefor, if such
5
<PAGE>45
Certificateholder shall have provided to the Certificate
Registrar appropriate written instructions at least five Business
Days prior to such Record Date, or, if not, by check mailed to
such Certificateholder at the address of such Holder appearing in
the Certificate Register; provided that with respect to
Certificates registered on the Record Date in the name of the
nominee of the Clearing Agency (initially, such nominee to be
Cede & Co.), distributions shall be made by wire transfer in
immediately available funds to the account designated by such
nominee. Except as otherwise provided in the Trust Agreement and
notwithstanding the above, the final distribution on this
Certificate shall be made after due notice by the Owner Trustee
of the pendency of such distribution and only upon presentation
and surrender of this Certificate at the office maintained for
such purpose by the Owner Trustee in the Borough of Manhattan,
the City of New York.
Reference is hereby made to the further provisions of
this Certificate set forth on the reverse hereof, which further
provisions shall for all purposes have the same effect as if set
forth at this place.
Unless the certificate of authentication hereon shall
have been executed by an authorized officer of the Owner Trustee
by manual signature, this Certificate shall not entitle the
holder hereof to any benefit under the Trust Agreement or the
Trust Sale and Servicing Agreement or be valid for any purpose.
THIS CERTIFICATE SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF DELAWARE,
WITHOUT REFERENCE TO THE PRINCIPLES OF CONFLICTS OF LAW THEREOF
OR OF ANY OTHER JURISDICTION, AND THE OBLIGATIONS, RIGHTS AND
REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN
ACCORDANCE WITH SUCH LAWS.
6<PAGE>
<PAGE>46
IN WITNESS WHEREOF, the Owner Trustee, on behalf of the
Trust and not in its individual capacity, has caused this
Certificate to be duly executed.
Dated: ______________, 1994<PAGE>
SUPERIOR WHOLESALE INVENTORY
FINANCING TRUST I
CITIBANK DELAWARE,
not in its individual capacity
but solely as Owner Trustee
By:_________________________
Name:
Title:<PAGE>
OWNER TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Certificates referred to in the
within-mentioned Trust Agreement.
CITIBANK DELAWARE,
not in its individual
capacity but solely
OR
as Owner Trustee
By:_________________________
Name:
Title:<PAGE>
CITIBANK DELAWARE,
not in its individual
capacity but solely
as Owner Trustee
by CITIBANK, N.A.,
as Authenticating Agent
By:_________________________
Name:
Title:<PAGE>
7<PAGE>
<PAGE>47
REVERSE OF CERTIFICATE
The Certificates do not represent an obligation of, or an
interest in, the Seller, the Servicer, General Motors Corporation,
the Indenture Trustee, the Owner Trustee or any affiliates of any
of them and no recourse may be had against such parties or their
assets, except as may be expressly set forth or contemplated herein
or in the Trust Agreement or the Basic Documents. In addition, this
Certificate is not guaranteed by any governmental agency or instru-
mentality and is limited in right of payment to certain collections
and recoveries with respect to the Receivables held by the Trust
(and certain other amounts), all as more specifically set forth
herein, in the Trust Agreement and the Trust Sale and Servicing
Agreement. A copy of each of the Trust Sale and Servicing Agreement
and the Trust Agreement may be examined during normal business hours
at the principal office of the Seller, and at such other places, if
any, designated by the Seller, by any Certificateholder upon written
request.
The Trust Agreement permits, with certain exceptions
therein provided, the amendment thereof and the modification of the
rights and obligations of the Seller and the rights of the Certifi-
cateholders under the Trust Agreement at any time by the Seller and
the Owner Trustee with the consent of the Holders of the Notes
evidencing not less than a majority of the Outstanding Amount of the
Notes as of the close of the preceding Distribution Date and the
consent of Certificateholders whose Certificates evidence not less
than a majority of the Voting Interests as of the close of the
preceding Distribution Date. Any such consent by the Holder of this
Certificate shall be conclusive and binding on such holder and on
all future Holders of this Certificate and of any Certificate issued
upon the transfer hereof or in exchange herefor or in lieu hereof
whether or not notation of such consent is made upon this
Certificate. The Trust Agreement also permits the amendment
thereof, in certain circumstances, without the consent of the
Holders of any of the Certificates or the Notes.
The term "Certificate Rate" as used in this Certificate
means, with respect to any Distribution Date, the product of (i) a
fraction, the numerator of which is the number of days elapsed from
and including the prior Distribution Date (or, in the case of the
Initial Distribution Date, from and including the Initial Closing
Date) to but excluding such Distribution Date and the denominator
of which is 360 and (ii) LIBOR plus .45% (or, in the case of the
Initial Distribution Date, 3.575%).
As provided in the Trust Agreement and subject to certain
limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register upon surrender of this
Certificate for registration of transfer at the offices or agencies
of the Certificate Registrar maintained by the Owner Trustee in the
City of New York, accompanied by (i) a written instrument of
transfer in form satisfactory to the Owner Trustee and the
Certificate Registrar duly executed by the Holder hereof or such
Holder's attorney duly authorized in writing, (ii) any certificate
and/or Opinion of Counsel required by Section 9.12(b) of the Trust
Agreement, and (iii) if requested by the Seller, the Undertaking
1<PAGE>
<PAGE>48
Letter required by Section 9.12(a) of the Trust Agreement, and
thereupon one or more new Certificates of the same class of
authorized denominations evidencing the same aggregate interest in
the Trust shall be issued to the designated transferee.
The initial Certificate Registrar appointed under the
Trust Agreement is Citibank, N.A.
The Certificates are issuable only as registered
Certificates without coupons in denominations of $250,000 or
integral multiples of $1,000 in excess thereof. As provided in the
Trust Agreement and subject to certain limitations therein set
forth, Certificates are exchangeable for new Certificates of the
same class of authorized denominations evidencing the same aggregate
denomination, as requested by the Holder surrendering the same;
PROVIDED, HOWEVER, that no Certificate may be subdivided upon
transfer or exchange in a manner such that the resulting Certificate
if it had been sold in the original offering would have had an
initial offering price of less than $250,000. No service charge
shall be made for any such registration of transfer or exchange, but
the Owner Trustee or the Certificate Registrar may require payment
of a sum sufficient to cover any tax or governmental charge payable
in connection therewith.
The Owner Trustee, the Certificate Registrar and any agent
of the Owner Trustee or the Certificate Registrar may treat the
person in whose name this Certificate is registered as the owner
hereof for all purposes, and none of the Owner Trustee, the
Certificate Registrar or any such agent shall be affected by any
notice to the contrary.
The obligations and responsibilities created by the Trust
Agreement and the Trust created thereby shall terminate upon the
distribution to Certificateholders of all amounts required to be
paid to them pursuant to the Trust Agreement and the Trust Sale and
Servicing Agreement and the disposition of all property held as part
of the Trust.
2<PAGE>
<PAGE>49
CERTIFICATE OF TRANSFER
FOR VALUE RECEIVED the undersigned hereby sells, assigns and
transfers unto
PLEASE INSERT SOCIAL SECURITY
OR OTHER IDENTIFYING NUMBER
OF ASSIGNEE
_________________________________________________________________
___________________________
(Please print or type name and address, including postal zip code,
of assignee)
_________________________________________________________________
___________________________
the within Certificate, and all rights thereunder, hereby
irrevocably constituting and appointing
_________________________________________________________ Attorney
to transfer said Certificate on the books of the Certificate
Registrar, with full power of substitution in the premises.
In connection with any sale, pledge or transfer of this
Certificate the undersigned hereby represents to the Owner Trustee
and the Seller that such sale, pledge or transfer is being made:
[CHECK ONE]
/ / (a) to an institutional investor that is an "accredited
investor" (as defined in Rule 501(a)(1), (2), (3) or (7) of
Regulation D under the Securities Act of 1933, as amended)
acting for its own account (and not for the account of others)
or as a fiduciary or agent for others (which others also are
such institutional investors unless it is a bank acting in its
fiduciary capacity);
or
/ / (b) to a person whom the undersigned reasonably believes after
due inquiry is a "qualified institutional buyer" (as defined
in Rule 144A under the Securities Act of 1933, as amended)
acting for its own account (and not for the account of others)
or as a fiduciary or agent for others (which others also are
qualified institutional buyers) to whom notice is given that
the resale, pledge or transfer is being made in reliance on
Rule 144A.
3
<PAGE>50
If such sale, pledge or other transfer is being made pursuant to (a)
above, the undersigned acknowledges that such institutional investor
must execute a certificate substantially in the form specified in
the Trust Agreement.
Dated:
_____________________________*
Signature Guaranteed:
_____________________________*
* NOTICE: The signature to this assignment must correspond with the
name as it appears upon the face of the within Certificate in every
particular, without alteration, enlargement or any change whatever.
Such signature must be guaranteed by a member firm of the New York
Stock Exchange or a commercial bank or trust company.
4<PAGE>
<PAGE>51
EXHIBIT B
[FORM OF CERTIFICATE DEPOSITORY AGREEMENT]
1<PAGE>
<PAGE>52
EXHIBIT C
CERTIFICATE OF TRUST OF
SUPERIOR WHOLESALE INVENTORY FINANCING TRUST I
THIS Certificate of Trust of Superior Wholesale Inventory
Financing Trust I (the "TRUST"), dated as of January ___, 1994, is
being duly executed and filed by Citibank Delaware, a Delaware
banking corporation, as trustee, to form a business trust under the
Delaware Business Trust Act (12 DEL. C. 3801 ET SEQ.).
1. NAME. The name of the business trust formed hereby
is Superior Wholesale Inventory Financing Trust I.
2. DELAWARE TRUSTEE. The name and business address of
the trustee of the Trust in the State of Delaware is Citibank
Delaware, One Penn's Way, New Castle, Delaware 19720.
3. This Certificate of Trust shall be effective on
January 25, 1994.
IN WITNESS WHEREOF, the undersigned, being the sole
trustee of the Trust, has executed this Certificate of Trust as of
the date first-above written.
Citibank Delaware, not in its
individual capacity but solely as
Owner Trustee under a Trust
Agreement dated as of January 25,
1994
By: _______________________________
Name:
Title:
2<PAGE>
<PAGE>53
EXHIBIT D
UNDERTAKING LETTER
Wholesale Auto Receivables Corporation
Corporation Trust Center
1209 Orange Street
Wilmington, DE 19801
Citibank Delaware,
as Owner Trustee of Superior Wholesale Inventory Financing Trust I
One Penn's Way
New Castle, DE 19720
Ladies and Gentlemen:
In connection with our purchase or record or beneficial
ownership of the Floating Rate Asset-Backed Certificate, Class A
(the "Certificate") of Superior Wholesale Inventory Financing Trust
I, the undersigned purchaser, record owner or beneficial owner
hereby acknowledges, represents and warrants that such purchaser,
record owner or beneficial owner:
(1) is not, and has not acquired the Certificate by or
for the benefit of, (i) an employee benefit plan (as defined in
Section 3(3) of the Employee Retirement Income Security Act of 1974,
as amended ("ERISA")) that is subject to the provisions of Title I
of ERISA, (ii) a plan described in Section 4975(e)(1) of the
Internal Revenue Code of 1986, as amended, or (iii) any entity whose
underlying assets include plan assets by reason of a plan's
investment in such entity; and
(2) acknowledges that you and others will rely on our
acknowledgements, representations and warranties, and agrees to
notify you promptly in writing if any of our representations or
warranties herein cease to be accurate and complete.
______________________________
Name of Certificate Owner
By:___________________________
Name:
Title:
Date: ________________________
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EXHIBIT E
INVESTOR LETTER
Wholesale Auto Receivables Corporation
Corporation Trust Center
1209 Orange Street
Wilmington, Delaware 19801
Citibank Delaware,
as Owner Trustee of Superior Wholesale Inventory Financing Trust I
One Penn's Way
New Castle, Delaware 19720
Ladies and Gentlemen:
In connection with our proposed purchase of a Floating
Rate Asset-Backed Certificate, Class A (the "Certificate"),
representing a fractional undivided interest in the Superior
Wholesale Inventory Financing Trust I, issued under a trust
agreement, dated as of January 25, 1994 (the "Trust Agreement"),
between Wholesale Auto Receivables Corporation, a Delaware
corporation (the "Seller") and Citibank Delaware, as owner trustee,
acting thereunder not in its individual capacity but solely as owner
trustee of the Trust (the "Owner Trustee"), we confirm that:
1. We understand that the Certificate has not been
registered under the Securities Act of 1933, as amended
(the "Securities Act"), and may not be sold except as
permitted in the following sentence. We agree, on our
own behalf and on behalf of any accounts for which we are
acting as hereinafter stated, that such Certificate may
be resold, pledged or transferred only (i) to the Seller,
(ii) to an institutional investor that is an "Accredited
Investor" as defined in Rule 501(a)(1),(2),(3) or (7) (an
"Institutional Accredited Investor") under the Securities
Act (as indicated by the box checked by the transferor on
the Certificate of Transfer on the reverse of the
certificate for the Certificate) acting for its own
account (and not for the account of others) or as a
fiduciary or agent for others (which others also are
Institutional Accredited Investors unless the holder is
a bank acting in its fiduciary capacity) that executes a
certificate substantially in the form hereof, (iii) so
long as such Certificate is eligible for resale pursuant
to Rule 144A under the Securities Act ("Rule 144A"), to
a person whom we reasonably believe after due inquiry to
be a "qualified institutional buyer" as defined in Rule
144A acting for its own account (and not for the account
of others) or as a fiduciary or agent for others (which
others also are "qualified institutional buyers" to whom
notice is given that the resale, pledge or transfer is
being made in reliance on Rule 144A, or (iv) in a sale,
pledge or other transfer made in a transaction otherwise
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exempt from the registration requirements of the
Securities Act, in which case (A) the Owner Trustee shall
require that both the prospective transferor and the
prospective transferee certify to the Owner Trustee and
the Seller in writing the facts surrounding such
transfer, which certification shall be in form and
substance satisfactory to the Owner Trustee and the
Seller, and (B) the Owner Trustee shall require a written
opinion of counsel (which will not be at the expense of
the Seller or the Owner Trustee) satisfactory to the
Seller and the Owner Trustee to the effect that such
transfer will not violate the Securities Act, in each
case in accordance with any applicable securities laws of
any state of the United States. We will notify any
purchaser of the Certificate from us of the above resale
restrictions, if then applicable. We further understand
that in connection with any transfer of the Certificate
by us that the Seller and the Owner Trustee may request,
and if so requested we will furnish, such certificates
and other information as they may reasonably require to
confirm that any such transfer complies with the
foregoing restrictions. We understand that no sale,
pledge or other transfer may be made to any one person
for Certificates with a face amount of less than $250,000
and, in the case of any person acting on behalf of one or
more third parties (other than a bank (as defined in
Section 3(a)(2) of the Securities Act) acting in its
fiduciary capacity), for Certificates with a face amount
of less than $250,000 for each such third party.
2.
[CHECK ONE]
/ / (a) We are an institutional investor
and an "accredited investor" (as
defined in Rule 501(a)(1),(2),(3) or
(7) of Regulation D under the
Securities Act) acting for our own
account (and not for the account of
others) or as a fiduciary or agent
for others (which others also are
Institutional Accredited Investors
unless we are bank acting in its
fiduciary capacity). We have such
knowledge and experience in
financial and business matters as to
be capable of evaluating the merits
and risks of our investment in the
Certificate, and we and any accounts
for which we are acting are each
able to bear the economic risk of
our or its investment for an
indefinite period of time. We are
acquiring the Certificate for
investment and not with a view to,
or for offer and sale in connection
with, a public distribution.
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<PAGE>56
/ / (b) We are a "qualified
institutional buyer" as defined
under Rule 144A under the Securities
Act and are acquiring the
Certificate for our own account (and
not for the account of others) or as
a fiduciary or agent for others
(which others also are "qualified
institutional buyers"). We are
familiar with Rule 144A under the
Securities Act and are aware that
the seller of the Certificate and
other parties intend to rely on the
statements made herein and the
exemption from the registration
requirements of the Securities Act
provided by Rule 144A.
3. You are entitled to rely upon this letter and you
are irrevocably authorized to produce this letter or a
copy hereof to any interested party in any administrative
or legal proceeding or official inquiry with respect to
the matters covered hereby.
Very truly yours,
___________________________________
(Name of Purchaser)
By: _______________________________
Date: _____________________________
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