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 August 22, 1995 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 II (the "Trust") and The Bank of
New York, a New York Banking Corporation, as
Indenture Trustee, dated as of August 22, 1995
4.2 Officer's Issuance Certificate dated as of August
22, 1995.
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 August 22, 1995
99.2 Trust Sale and Servicing Agreement among General
Motors Acceptance Corporation, as Servicer, the
Seller and the Trust, dated as of August 22, 1995
99.3 Trust Agreement between Wholesale Auto Receivables
Corporation and The Chase Manhattan Bank (USA), as
Owner Trustee, dated as of August 22, 1995
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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/ Jerome B. Van Orman, Jr.
-----------------------------------------
(Jerome B. Van Orman Jr., Vice President)
Date: September 6, 1995
3
EXHIBIT 4.1
SUPERIOR WHOLESALE INVENTORY FINANCING TRUST II
ASSET-BACKED TERM NOTES
ASSET-BACKED REVOLVING NOTES
INDENTURE
DATED AS OF AUGUST 22, 1995
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 . . . . . . . . . . . . . . . . . . . . . . . .
1.2 Incorporation by Reference of Trust Indenture
Act . . . . . . . . . . . . . . . . . . . . . . . . . . . .
ARTICLE II
THE NOTES
2.1 Issuance of Notes; Execution, Authentication
and Delivery. . . . . . . . . . . . . . . . . . . . . . . .
2.2 Form of Notes and Indenture Trustee's
Certificate of Authentication . . . . . . . . . . . . . . .
2.3 Temporary Notes . . . . . . . . . . . . . . . . . . . . . .
2.4 Registration; Registration of Transfer and
Exchange of Notes . . . . . . . . . . . . . . . . . . . . .
2.5 Mutilated, Destroyed, Lost or Stolen Notes. . . . . . . . .
2.6 Persons Deemed Noteholders. . . . . . . . . . . . . . . . .
2.7 Payment of Principal and Interest . . . . . . . . . . . . .
2.8 Cancellation of Notes . . . . . . . . . . . . . . . . . . .
2.9 Release of Collateral . . . . . . . . . . . . . . . . . . . .
2.10 Book-Entry Notes. . . . . . . . . . . . . . . . . . . . . . .
2.11 Notices to Clearing Agency. . . . . . . . . . . . . . . . . .
2.12 Definitive Term Notes . . . . . . . . . . . . . . . . . . . .
2.13 Seller as Noteholder. . . . . . . . . . . . . . . . . . . . .
2.14 Tax Treatment . . . . . . . . . . . . . . . . . . . . . . . .
2.15 Special Terms Applicable to Subsequent
Transfers of Certain Notes. . . . . . . . . . . . . . . . . .
ARTICLE III
COVENANTS
3.1 Payment of Principal and Interest . . . . . . . . . . . . . .
3.2 Maintenance of Agency Office. . . . . . . . . . . . . . . . .
3.3 Money for Payments To Be Held in Trust. . . . . . . . . . . .
3.4 Existence . . . . . . . . . . . . . . . . . . . . . . . . . .
3.5 Protection of Trust Estate; Acknowledgment of
Pledge. . . . . . . . . . . . . . . . . . . . . . . . . . . .
3.6 Opinions as to Trust Estate . . . . . . . . . . . . . . . . .
3.7 Performance of Obligations; Servicing of
Receivables . . . . . . . . . . . . . . . . . . . . . . . . .
3.8 Negative Covenants. . . . . . . . . . . . . . . . . . . . . .
3.9 Annual Statement as to Compliance . . . . . . . . . . . . . .
3.10 Consolidation, Merger, etc., of Issuer;
Disposition of Trust Assets.. . . . . . . . . . . . . . . . .
3.11 Successor or Transferee . . . . . . . . . . . . . . . . . . .
3.12 No Other Business . . . . . . . . . . . . . . . . . . . . . .
3.13 No Borrowing. . . . . . . . . . . . . . . . . . . . . . . . .
3.14 Guarantees, Loans, Advances and Other
Liabilities . . . . . . . . . . . . . . . . . . . . .
3.15 Servicer's Obligation . . . . . . . . . . . . . . . .
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3.16 Capital Expenditures. . . . . . . . . . . . . . . . . . . . .
3.17 Removal of Administrator. . . . . . . . . . . . . . . . . . .
3.18 Restricted Payments . . . . . . . . . . . . . . . . . . . . .
3.19 Notice of Events of Default . . . . . . . . . . . . . . . . .
3.20 Further Instruments and Acts. . . . . . . . . . . . . . . . .
3.21 Trustee's Assignment of Interests in Certain
Receivables.. . . . . . . . . . . . . . . . . . . . . . . . .
3.22 Representations and Warranties by the Issuer
to the Indenture Trustee. . . . . . . . . . . . . . . . . . .
ARTICLE IV
SATISFACTION AND DISCHARGE
4.1 Satisfaction and Discharge of Indenture . . . . . . . . . . .
4.2 Application of Trust Money. . . . . . . . . . . . . . . . . .
4.3 Repayment of Monies Held by Paying Agent. . . . . . . . . . .
4.4 Duration of Position of Indenture Trustee . . . . . . . . . .
ARTICLE V
DEFAULT AND REMEDIES
5.1 Events of Default . . . . . . . . . . . . . . . . . . . . . .
5.2 Acceleration of Maturity; Rescission and
Annulment . . . . . . . . . . . . . . . . . . . . . . . . . .
5.3 Collection of Indebtedness and Suits for
Enforcement by Indenture Trustee. . . . . . . . . . . . . . .
5.4 Remedies; Priorities. . . . . . . . . . . . . . . . . . . . .
5.5 Optional Preservation of the Trust Estate . . . . . . . . . .
5.6 Limitation of Suits . . . . . . . . . . . . . . . . . . . . .
5.7 Unconditional Rights of Noteholders To Receive
Principal and Interest. . . . . . . . . . . . . . . . . . . .
5.8 Restoration of Rights and Remedies. . . . . . . . . . . . . .
5.9 Rights and Remedies Cumulative. . . . . . . . . . . . . . . .
5.10 Delay or Omission Not a Waiver. . . . . . . . . . . . . . . .
5.11 Control by Noteholders. . . . . . . . . . . . . . . . . . . .
5.12 Waiver of Past Defaults . . . . . . . . . . . . . . . . . . .
5.13 Undertaking for Costs . . . . . . . . . . . . . . . . . . . .
5.14 Waiver of Stay or Extension Laws. . . . . . . . . . . . . . .
5.15 Action on Notes . . . . . . . . . . . . . . . . . . . . . . .
5.16 Performance and Enforcement of Certain
Obligations . . . . . . . . . . . . . . . . . . . . . . . . .
ARTICLE VI
THE INDENTURE TRUSTEE
6.1 Duties of Indenture Trustee . . . . . . . . . . . . . . . . .
6.2 Rights of Indenture Trustee . . . . . . . . . . . . . . . . .
6.3 Indenture Trustee May Own Notes . . . . . . . . . . . . . . .
6.4 Indenture Trustee's Disclaimer. . . . . . . . . . . . . . . .
6.5 Notice of Defaults. . . . . . . . . . . . . . . . . . . . . .
6.6 Reports by Indenture Trustee to Holders . . . . . . . . . . .
6.7 Compensation; Indemnity . . . . . . . . . . . . . . . . . . .
6.8 Replacement of Indenture Trustee. . . . . . . . . . . . . . .
6.9 Merger or Consolidation of Indenture Trustee. . . . . . . . .
6.10 Appointment of Co-Indenture Trustee or
Separate Indenture Trustee. . . . . . . . . . . . . . . . . .
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6.11 Eligibility; Disqualification . . . . . . . . . . . . . . . .
6.12 Preferential Collection of Claims Against
Issuer. . . . . . . . . . . . . . . . . . . . . . . . . . . .
6.13 Representations and Warranties of Indenture
Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . .
6.14 Indenture Trustee May Enforce Claims Without
Possession of Notes . . . . . . . . . . . . . . . . . . . . .
6.15 Suit for Enforcement. . . . . . . . . . . . . . . . . . . . .
6.16 Rights of Noteholders to Direct Indenture
Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . .
ARTICLE VII
NOTEHOLDERS' LISTS AND REPORTS
7.1 Issuer To Furnish Indenture Trustee Names and
Addresses of Noteholders. . . . . . . . . . . . . . . . . . .
7.2 Preservation of Information, Communications to
Noteholders . . . . . . . . . . . . . . . . . . . . . . . . .
7.3 Reports by Issuer . . . . . . . . . . . . . . . . . . . . . .
7.4 Reports by Trustee. . . . . . . . . . . . . . . . . . . . . .
ARTICLE VIII
ACCOUNTS, DISBURSEMENTS AND RELEASES
8.1 Collection of Money . . . . . . . . . . . . . . . . . . . . .
8.2 Designated Accounts; Payments . . . . . . . . . . . . . . . .
8.3 General Provisions Regarding Designated
Accounts. . . . . . . . . . . . . . . . . . . . . . . . . . .
8.4 Release of Trust Estate . . . . . . . . . . . . . . . . . . .
8.5 Opinion of Counsel. . . . . . . . . . . . . . . . . . . . . .
ARTICLE IX
SUPPLEMENTAL INDENTURES
9.1 Supplemental Indentures Without Consent of
Noteholders . . . . . . . . . . . . . . . . . . . . . . . . .
9.2 Supplemental Indentures With Consent of
Noteholders . . . . . . . . . . . . . . . . . . . . . . . . .
9.3 Execution of Supplemental Indentures. . . . . . . . . . . . .
9.4 Effect of Supplemental Indenture. . . . . . . . . . . . . . .
9.5 Conformity with Trust Indenture Act . . . . . . . . . . . . .
9.6 Reference in Notes to Supplemental Indentures . . . . . . . .
ARTICLE X
REDEMPTION OF TERM NOTES
10.1 Redemption. . . . . . . . . . . . . . . . . . . . . . . . . .
10.2 Form of Redemption Notice . . . . . . . . . . . . . . . . . .
10.3 Term Notes Payable on Redemption Date . . . . . . . . . . . .
ARTICLE XI
MISCELLANEOUS
11.1 Compliance Certificates and Opinions, etc.. . . . . . . . . .
11.2 Form of Documents Delivered to Indenture
Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . .
11.3 Acts of Noteholders . . . . . . . . . . . . . . . . . . . . .
11.4 Notices, etc., to Indenture Trustee, Issuer
and Rating Agencies . . . . . . . . . . . . . . . . . . . . .
11.5 Notices to Noteholders; Waiver. . . . . . . . . . . . . . . .
11.6 Alternate Payment and Notice Provisions . . . . . . . . . . .
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11.7 Conflict with Trust Indenture Act . . . . . . . . . . . . . .
11.8 Effect of Headings and Table of Contents. . . . . . . . . . .
11.9 Successors and Assigns. . . . . . . . . . . . . . . . . . . .
11.10 Separability. . . . . . . . . . . . . . . . . . . . . . . . .
11.11 Benefits of Indenture . . . . . . . . . . . . . . . . . . . .
11.12 Legal Holidays. . . . . . . . . . . . . . . . . . . . . . . .
11.13 GOVERNING LAW . . . . . . . . . . . . . . . . . . . . . . . .
11.14 Counterparts. . . . . . . . . . . . . . . . . . . . . . . . .
11.15 Recording of Indenture. . . . . . . . . . . . . . . . . . . .
11.16 No Recourse . . . . . . . . . . . . . . . . . . . . . . . . .
11.17 No Petition . . . . . . . . . . . . . . . . . . . . . . . . .
11.18 Inspection. . . . . . . . . . . . . . . . . . . . . . . . . .
EXHIBIT A Form of Transfer Certificate
EXHIBIT B Form of Undertaking Letter
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INDENTURE, dated as of August 22, 1995, between
SUPERIOR WHOLESALE INVENTORY FINANCING TRUST II, 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 August 22, 1995 (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.
2
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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.
(d) 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.
5
<PAGE>12
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 Regis-
trar 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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<PAGE>13
(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.
7<PAGE>
<PAGE>14
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.
8
<PAGE>15
(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
9
<PAGE>16
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 instalment 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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<PAGE>17
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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<PAGE>18
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 accordance 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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<PAGE>19
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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<PAGE>20
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) Unless otherwise provided in the related Officer's
Issuance Certificate, the Unregistered Notes may not be acquired
by or for the account of a Benefit Plan and, 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)(if subsection (b) is
applicable) 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
15
<PAGE>22
(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, 1997, 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, 1997, 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:
(i) 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
(ii) 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)(ii) 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:
(a) such Holder has previously given written
notice to the Indenture Trustee of a continuing Event of
Default;
(b) 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;
(c) 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;
(d) 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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(e) 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:
(a) such direction shall not be in conflict with
any rule of law or with this Indenture;
(b) 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;
(c) 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
(d) 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 (y) 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 (z) 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 adminis-
trative 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 expressed
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 supervi-
sion 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 Sec-
tion 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: L. B.
LaCombe, Jr., 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 Services, 26 Broadway (20th Floor), New York, New York
10007, Attn: Asset Backed Surveillance Department; (iii) in the
case of Fitch, at the following address: Fitch Investor Services,
L. P., One State Street Plaza, 33rd Floor, New York, New York
10004, Attn: Asset Backed Surveillance Department ; and (iv) in
the case of Duff & Phelps, at the following address: Duff &
Phelps Credit Rating Co., 17 State Street, 12th Floor, New York,
New York 10004, Attn: Norman Last; 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>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>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>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.
SUPERIOR WHOLESALE INVENTORY
FINANCING TRUST II
By: The Chase Manhattan
Bank (USA), 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>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 II, 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 22nd
day of August, 1995.
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 22nd
day of August, 1995.
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 II
Ladies and Gentlemen:
In connection with the purchase of a Note subject to
Section 2.15 of the Indenture dated as of August 22, 1995 (the
"Unregistered Note") of the Superior Wholesale Inventory
Financing Trust II, 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>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>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>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 II
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 August 22, 1995 (the
"Unregistered Note") of the Superior Wholesale Inventory
Financing Trust II, 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 1995-A
The undersigned hereby certifies, pursuant to the Indenture dated as
of August 22 1995 (the "Indenture"), between Superior Wholesale Inventory
Financing Trust II (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 1995-A (the "Series 1995-A Term Notes"). The Series
1995-A Term Notes shall be in the form set forth in Exhibit A hereto.
B. The aggregate principal amount of the Series 1995-A Term Notes which
may be authenticated and delivered under the Indenture (except for Series
1995-A Term Notes authenticated and delivered upon registration and
transfer of, or in exchange for, or in lieu of, other Series 1995-A Term
Notes pursuant to the Indenture) is $1,000,000,000.
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 1995-A Term Notes:
1. Each Distribution Date shall be a Payment Date
for the Series 1995-A Term Notes.
2. The Stated Final Payment Date for the Series 1995-A Term Notes
shall be the Distribution Date in August 2000, on which date the
final payment of principal on the Series 1995-A Term Notes shall be
due and payable.
3. The Targeted Final Payment Date for the Series 1995-A Term Notes
shall be,at any time, the Distribution Date related to the third
month following the then Scheduled Revolving Period Termination Date
as described in the Trust Sale and
Servicing Agreement.
4. The Controlled Deposit Amount for the Series
1995-A Term Notes shall equal for any Distribution
Date, the excess, if any, of
<PAGE>
(i) the product of (A) one-third of the Outstanding Amount
attributable to the Series 1995-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 1995-A Term Notes during the Wind Down
Period prior to such Distribution Date; provided that (i) the
Controlled Deposit Amount for the Series 1995-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 1995-A Term Notes for
any Distribution Date shall not exceed the Outstanding Amount
attributable to the Series 1995-A Term Notes.
5. The Record Date for the Series 1995-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 1995-A Term Notes shall bear interest at the Series 1995-A
Interest Rate. The Series 1995-A Interest Rate, for any Distribution Date,
shall be LIBOR plus 0.13% per annum (or, in the case of the Initial
Distribution Date 6.01281% per annum). Interest on the Outstanding Amount
attributable to the Series 1995-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 1995-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 1995-A
Term Notes as follows:
1. During the Revolving Period, no payments of principal on the
Series 1995-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 Trust Principal shall be applied in the following order of
priority:
(a) first, to the Series 1995-A Term Notes (i) on each
Distribution Date prior to the Targeted Final Payment Date for
the Series 1995-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 1995-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 1995-A Term Notes until the
Outstanding Amount attributable to the Series 1995-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 1995-A Term Notes or (b) after the payment of the Controlled
Deposit Amount on the Series 1995-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 1995-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 1995-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 1995-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 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 1995-A Term Notes for any Distribution Date
shall not exceed the Outstanding Amount of the Series 1995-A Term
Notes less amounts on deposit in the Note Distribution Account for
the payment of principal on the Series 1995-A Term Notes.
F. The Series 1995-A Term Notes are not subject to optional or
mandatory purchase or redemption by the Issuer.
G. The Series 1995-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
1995-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 1995-A Term Notes.
III. Capitalized terms used herein and not defined shall have the meanings
assigned to such terms in the Indenture.
* * * *
<PAGE>
IN WITNESS WHEREOF, the undersigned has hereunto executed this
Officer's Issuance Certificate as of the 22nd day of August, 1995.
WHOLESALE AUTO RECEIVABLES CORPORATION
By:______________________________
Name: L.B. LaCombe, Jr.
Title: Vice President
<PAGE>
EXHIBIT A
[FORM OF NOTE]
<PAGE>
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>
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 of New York 33 Liberty Plaza, New York,
N.Y. 10045
Federal Deposit Insurance Corporation Washington, D.C. 20429
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.
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.)
-2-
<PAGE>
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>
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 21st day of August, 1995.
THE BANK OF NEW YORK
By: LLOYD A. MCKENZIE
------------------------
Name: Lloyd A. McKenzie
Title: Assistant Vice President
-4-
<PAGE>
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
March 31, 1995, 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 depos-
itory institutions:
Noninterest-bearing balances and
currency and coin .................. $ 3,575,856
Interest-bearing balances .......... 747,540
Securities:
Held-to-maturity securities ........ 1,283,680
Available-for-sale securities ...... 1,615,292
Federal funds sold in domestic
offices of the bank ................ 5,577,896
Loans and lease financing
receivables:
Loans and leases, net of unearned
income .................24,763,265
LESS: Allowance for loan and
lease losses ..............532,411
LESS: Allocated transfer risk
reserve .....................28,558
Loans and leases, net of unearned
income, allowance, and reserve 24,202,296
Assets held in trading accounts ...... 1,502,750
Premises and fixed assets (including
capitalized leases) ................ 618,958
Other real estate owned .............. 47,755
Investments in unconsolidated
subsidiaries and associated
companies .......................... 184,149
Customers' liability to this bank on
acceptances outstanding ............ 1,018,696
Intangible assets .................... 101,149
Other assets ......................... 1,227,291
Total assets ......................... $41,703,316
LIABILITIES
Deposits:
In domestic offices ................ $18,543,633
Noninterest-bearing .......6,949,896
Interest-bearing .........11,593,737
In foreign offices, Edge and
Agreement subsidiaries, and IBFs ... 11,303,075
Noninterest-bearing ..........65,927
Interest-bearing .........11,237,148
<PAGE>
Federal funds purchased and secu-
rities sold under agreements to re-
purchase in domestic offices of
the bank and of its Edge and
Agreement subsidiaries, and in
IBFs:
Federal funds purchased ............ 1,327,537
Securities sold under agreements
to repurchase .................... 37,400
Demand notes issued to the U.S.
Treasury ........................... 97,827
Trading liabilities .................. 1,349,293
Other borrowed money:
With original maturity of one year
or less .......................... 2,027,148
With original maturity of more than
one year ......................... 313,877
Bank's liability on acceptances exe-
cuted and outstanding .............. 1,018,848
Subordinated notes and debentures .... 1,056,320
Other liabilities .................... 1,435,093
Total liabilities .................... 38,510,051
EQUITY CAPITAL
Common stock ........................ 942,284
Surplus ............................. 525,666
Undivided profits and capital
reserves .......................... 1,753,592
Net unrealized holding gains
(losses) on available-for-sale
securities ........................ ( 22,501)
Cumulative foreign currency transla-
tion adjustments .................. ( 5,776)
Total equity capital ................ 3,193,265
Total liabilities and equity
capital ........................... $41,703,316
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.
Thomas A. Renyi |
J. Carter Bacot | Directors
Alan R. Griffith |
EXHIBIT 99.1
POOLING AND SERVICING AGREEMENT
BETWEEN
GENERAL MOTORS ACCEPTANCE CORPORATION
SELLER AND SERVICER
AND
WHOLESALE AUTO RECEIVABLES CORPORATION
PURCHASER
DATED AS OF AUGUST 22, 1995
SUPERIOR WHOLESALE INVENTORY FINANCING TRUST II
<PAGE>
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..........................................2
SECTION 2.03. ADDITION OF ACCOUNTS....................................3
SECTION 2.04. OPTIONAL REMOVAL OF ACCOUNTS............................4
SECTION 2.05. REMOVAL OF INELIGIBLE ACCOUNTS..........................4
SECTION 2.06. CUSTODY OF DOCUMENTATION................................5
ARTICLE III
ADMINISTRATION AND SERVICING OF RECEIVABLES......................5
SECTION 3.01. APPOINTMENT OF SERVICER AND ACCEPTANCE OF APPOINTMENT...5
SECTION 3.02. RIGHTS AND DUTIES OF THE SERVICER.......................5
SECTION 3.03. SERVICING COMPENSATION; PAYMENT OF CERTAIN EXPENSES BY
THE SERVICER............................................7
SECTION 3.04. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE
SERVICER ...............................................7
SECTION 3.05. SERVICER'S ACCOUNTING AND REPORTS......................10
SECTION 3.06. PRE-CLOSING COLLECTIONS................................11
SECTION 3.07. COLLECTIONS RECEIVED BY GMAC...........................11
ARTICLE IV
REPRESENTATIONS, WARRANTIES AND COVENANTS.......................11
SECTION 4.01. REPRESENTATIONS AND WARRANTIES OF GMAC RELATING TO THE
ACCOUNTS AND THE RECEIVABLES...........................11
SECTION 4.02. REPRESENTATIONS AND WARRANTIES OF GMAC RELATING TO GMAC
AND THE AGREEMENT......................................12
SECTION 4.03. REPRESENTATIONS AND WARRANTIES OF THE PURCHASER........15
SECTION 4.04. COVENANTS OF GMAC......................................16
ARTICLE V
CERTAIN MATTERS RELATING TO GMAC................................17
SECTION 5.01. MERGER OR CONSOLIDATION OF, OR ASSUMPTION OF THE
OBLIGATIONS OF, GMAC....................................17
SECTION 5.02. GMAC INDEMNIFICATION OF THE PURCHASER...................17
SECTION 5.03. GMAC ACKNOWLEDGMENT OF TRANSFERS TO THE ISSUER..........17
ARTICLE VI
ADDITIONAL AGREEMENTS...........................................18
SECTION 6.01. ADDITIONAL OBLIGATIONS OF GMAC AND THE PURCHASER.......18
SECTION 6.02. EFFECT OF INVOLUNTARY CASE INVOLVING GMAC..............18
SECTION 6.03. INTERCREDITOR AGREEMENTS...............................19
ARTICLE VII
MISCELLANEOUS PROVISIONS........................................20
SECTION 7.01. AMENDMENT..............................................20
SECTION 7.02. PROTECTION OF RIGHT, TITLE AND INTEREST IN AND TO
RECEIVABLES............................................20
SECTION 7.03. COSTS AND EXPENSES.....................................21
SECTION 7.04. GOVERNING LAW..........................................21
SECTION 7.05. NOTICES................................................21
SECTION 7.06. SEVERABILITY OF PROVISIONS.............................22
SECTION 7.07. ASSIGNMENT.............................................22
SECTION 7.08. FURTHER ASSURANCES.....................................22
SECTION 7.09. NO WAIVER; CUMULATIVE REMEDIES.........................22
SECTION 7.10. COUNTERPARTS...........................................22
SECTION 7.11. THIRD-PARTY BENEFICIARIES..............................22
SECTION 7.12. MERGER AND INTEGRATION.................................22
SECTION 7.13. CONFIDENTIAL INFORMATION...............................22
SECTION 7.14. HEADINGS...............................................23
SECTION 7.15. TERMINATION............................................23
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>
THIS POOLING AND SERVICING AGREEMENT is made as of August 22, 1995,
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 II
(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
Articles, Sections or subsections of this Agreement 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, assignments and
conveyances and any subsequent sales, transfers, assignments 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 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 $1,889,462,640.42 (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.
(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 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.
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
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 instruments, with respect to the Receivables and,
after the delinquency 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, applications,
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.
(c) Except as otherwise required to comply with all Requirements of
Law, the Servicer may change the terms and provisions 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 Agreement.
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).
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 representations, 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' 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.
(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, warranties 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, 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.
(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
(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.
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
conducted;
(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 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 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 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 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.
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, consolidation 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.
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 "INVOLUNTARY 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 continuation 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, 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 hereunder.
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 INDEBTEDNESS"), 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 Collateral.
(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.
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-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 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.
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.
* * * *
<PAGE>
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: L.B. LaCombe, Jr.
Title: Vice President
<PAGE>
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>
EXHIBIT B
FORM OF ASSIGNMENT FOR INITIAL CLOSING DATE
For value received, in accordance with the Pooling and Servicing
Agreement, dated as of August 22, 1995 (the "POOLING AND SERVICING Agreement"),
between General Motors Acceptance Corporation, 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>
IN WITNESS WHEREOF, the undersigned has caused this Assignment to be
duly executed as of August 22, 1995.
GENERAL MOTORS ACCEPTANCE CORPORATION
By: _________________________________
Name: J. B. Van Orman, Jr.
Title: Vice President
<PAGE>
EXHIBIT C
FORM OF ASSIGNMENT FOR EACH ADDITION DATE
For value received, in accordance with the Pooling and Servicing
Agreement, dated as of August 22, 1995 (the "POOLING AND SERVICING Agreement"),
between General Motors Acceptance Corporation, 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>
IN WITNESS WHEREOF, the undersigned has caused this Assignment to be
duly executed as of _________, 199_.
GENERAL MOTORS ACCEPTANCE CORPORATION
By: _________________________________
Name:
Title:
<PAGE>
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>
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 II.
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 II
ISSUER
DATED AS OF AUGUST 22, 1995
<PAGE>
<PAGE>2
TABLE OF CONTENTS
PAGE
ARTICLE I
CERTAIN DEFINITIONS
SECTION 1.1 Definitions. . . . . . . . . . . . . . . . . . . .
ARTICLE II
CONVEYANCE OF ELIGIBLE RECEIVABLES;
ISSUANCE OF INITIAL SECURITIES
SECTION 2.1 Conveyance of Eligible Receivables . . . . . . . .
SECTION 2.2 Custody of Documentation . . . . . . . . . . . . .
SECTION 2.3 Acceptance by the Issuer . . . . . . . . . . . . .
SECTION 2.4 Representations and Warranties under
the Pooling and Servicing Agreement. . . . . . . .
SECTION 2.5 Repurchase of Receivables Upon Breach . . .
of Warranty; Administrative
Receivables. . . . . . . . . . . . . . . . . . . .
SECTION 2.6 Covenants. . . . . . . . . . . . . . . . . . . . .
SECTION 2.7 Addition of Accounts.. . . . . . . . . . . . . . .
SECTION 2.8 Optional Removal of Accounts . . . . . . . . . . .
SECTION 2.9 Removal of Ineligible Accounts.. . . . . . . . . .
ARTICLE III
THE SELLER
SECTION 3.1 Representations of the Seller. . . . . . . . . . .
SECTION 3.2 Liability of Seller. . . . . . . . . . . . . . . . .
SECTION 3.3 Merger or Consolidation of, or
Assumption of the Obligations of,
Seller; Amendment of Certificate of
Incorporation. . . . . . . . . . . . . . . . . . . .
SECTION 3.4 Limitation on Liability of Seller and
Others . . . . . . . . . . . . . . . . . . . . . . .
SECTION 3.5 Seller May Own Notes or Certificates . . .
ARTICLE IV
SERVICER'S COVENANTS; DISTRIBUTIONS; RESERVE FUND;
STATEMENTS TO SECURITYHOLDERS
SECTION 4.1 Annual Statement as to Compliance;
Notice of Servicing Default. . . . . . . . . . . . .
SECTION 4.2 Annual Independent Accountants'
Report . . . . . . . . . . . . . . . . . . . . . . .
SECTION 4.3 Access to Certain Documentation and
Information Regarding Accounts and
Receivables. . . . . . . . . . . . . . . . . . . . .
SECTION 4.4 Enforcement of Receivables . . . . . . . . . . . . .
SECTION 4.5 Allocations; Distributions.. . . . . . . . . . . . .
SECTION 4.6 Reserve Fund. . . . . . . . . . . . . .
SECTION 4.7 Net Deposits . . . . . . . . . . . . . . . . . . . .
SECTION 4.8 Statements to Securityholders. . . . . . . . . . . .
SECTION 4.9 New Issuances; Changes in Specified
Maximum Revolver Balance . . . . . . . . . . . . . .
- i -
<PAGE>3
ARTICLE V
SERVICING FEE
SECTION 5.1 Servicing Compensation.. . . . . . . . . . . . . . .
ARTICLE VI
SECURITYHOLDER ACCOUNTS; COLLECTIONS,
DEPOSITS AND INVESTMENTS; ADVANCES
SECTION 6.1 Establishment of Accounts. . . . . . . . . . . . . .
SECTION 6.2 Collections. . . . . . . . . . . . . . . . . . . . .
ARTICLE VII
LIABILITIES OF SERVICER AND OTHERS
SECTION 7.1 Liability of Servicer; Indemnities . . . . . . . . .
SECTION 7.2 Merger or Consolidation of, or
Assumption of the Obligations of, the
Servicer . . . . . . . . . . . . . . . . . . . . . .
SECTION 7.3 Limitation on Liability of Servicer and
Others . . . . . . . . . . . . . . . . . . . . . . .
SECTION 7.4 Delegation of Duties . . . . . . . . . . . . . . . .
SECTION 7.5 Servicer Not to Resign . . . . . . . . . . . . . . .
ARTICLE VIII
DEFAULT
SECTION 8.1 Servicing Defaults . . . . . . . . . . . . . . . . .
SECTION 8.2 Consequences of a Servicing Default. . . . . . . . .
SECTION 8.3 Indenture Trustee to Act; Appointment
of Successor . . . . . . . . . . . . . . . . . . . .
SECTION 8.4 Notification to Securityholders. . . . . . . . . . .
SECTION 8.5 Waiver of Past Defaults. . . . . . . . . . . . . . .
SECTION 8.6 Repayment of Advances. . . . . . . . . . . . . . . .
ARTICLE IX
EARLY AMORTIZATION EVENTS; TERMINATION
SECTION 9.1 Early Amortization Events. . . . . . . . . . . . . .
SECTION 9.2 Insolvency Events. . . . . . . . . . . . . . . . . .
SECTION 9.3 Optional Purchase by the Servicer. . . . . . . . . .
SECTION 9.4 Termination. . . . . . . . . . . . . . . . . . . . .
ARTICLE X
MISCELLANEOUS PROVISIONS
SECTION 10.1 Amendment. . . . . . . . . . . . . . . . . . . . . .
SECTION 10.2 Protection of Title to the Owner Trust
Estate . . . . . . . . . . . . . . . . . . . . . . .
SECTION 10.3 Notices. . . . . . . . . . . . . . . . . . . . . . .
SECTION 10.4 GOVERNING LAW. . . . . . . . . . . . . . . . . . . .
SECTION 10.5 Severability of Provisions . . . . . . . . . . . . .
SECTION 10.6 Assignment . . . . . . . . . . . . . . . . . . . . .
SECTION 10.7 Third-Party Beneficiaries. . . . . . . . . . . . . .
SECTION 10.8 Counterparts . . . . . . . . . . . . . . . . . . . .
- ii -
<PAGE>4
SECTION 10.9 Headings . . . . . . . . . . . . . . . . . . . . . .
SECTION 10.10 Assignment to Indenture Trustee. . . . . . . . . . .
SECTION 10.11 No Petition Covenants. . . . . . . . . . . . . . . .
SECTION 10.12 Further Assurances . . . . . . . . . . . . . . . . .
SECTION 10.13 No Waiver; Cumulative Remedies . . . . . . . . . . .
SECTION 10.14 Merger and Integration . . . . . . . . . . . . . . .
SECTION 10.15 Limitation of Liability of Indenture Trustee
and Owner Trustee. . . . . . . . . . . . . . . . . .
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
- iii -
<PAGE>5
THIS TRUST SALE AND SERVICING AGREEMENT is made as of
August 22, 1995, 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 II, 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
Receivables in the Accounts in the Pool of Accounts to the Issuer
on the Initial Closing Date in exchange for the Initial
Securities pursuant 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.
- 1 -
<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 1995-A Notes, the Series 1995-
RN1 Revolving Notes and Class A Certificates with an initial
Certificate Balance of $72,750,000 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
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appointment 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
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held by the 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
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<PAGE>10
breach 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
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<PAGE>15
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 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 contemplated 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,
transfer 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, regardless of whether
such enforceability is considered in a proceeding 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 perfected
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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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,
transferred, assigned or pledged by the Seller to any Person
other than the Issuer; immediately prior to the conveyance
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of the 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 Outstanding 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 reassignment 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 or employee
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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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, 1997, 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, 1997 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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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 obligations 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 receivables (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
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<PAGE>22
the names of 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 Aggregate
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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<PAGE>28
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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<PAGE>29
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 out-
standing 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
Certificate 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) 14/360
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
Securityholders, shall establish and maintain in the name
of the Indenture Trustee an Eligible Deposit Account known
as the Superior Wholesale Inventory Financing Trust II
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 II 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 II 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 The Chase Manhattan Bank (USA) in the name of
the Owner Trustee an Eligible Deposit Account known as the
Superior Wholesale Inventory Financing Trust II 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 II
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
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direction shall 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 confirmation 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 confirma-
tions 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
harmless 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, without limitation, any sales, gross
receipts, general corporation, tangible personal property,
privilege or license taxes (but not including any taxes
asserted with respect to, and as of the date of, the sale
of 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
harmless 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 contained in this Agreement, the Basic Documents,
the Indenture (in the case of the Indenture Trustee),
including the administration 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
counsel 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 or employee
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 Indenture
Trustee pursuant to subsection 7.1(a)(iii) (y) or (z)) incurred
by reason of the Owner 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
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Agreement, 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, and provided, further, that
no Early Amortization Event shall be deemed to occur unless
Seller has received either (A) written notice of the election of
the Indenture Trustee or 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, voting together as
a single class, to declare such failure an Early Amortization
Event or (B), in the event the Notes have been paid in full and
the Indenture has been discharged in accordance with its terms,
written notice of the election of the Owner Trustee or the
Certificateholders whose Certificates evidence not less than a
majority of the Voting Interests as of the preceding Distribution
Date, to declare such failure an Early Amortization Event;
(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, and provided, further, that no Early Amortization
Event shall be deemed to occur unless Seller has received either
(A) written notice of the election of the Indenture Trustee or
Noteholders whose Notes evidence not less than a majority of the
Outstanding Amount of the Notes as of the close of the precedding
Distribution Date, voting together as a single class, to declare
such incorrectness an Early Amortization Event or (B), in the
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event the Notes have been paid in full and the Indenture has been
discharged in accordance with its terms, written notice of the
election of the Owner Trustee or the Certificateholders whose
Certificates evidence not less than a majority of the Voting
Interests as of the preceding Distribution Date, to declare such
incorrectness an Early Amortization Event;
(g) on any Distribution Date, the average of the
Monthly Payment Rates for the three preceding Collection Periods
is less than 25%;
(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 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));
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(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
EVENT") shall occur without any notice or other action on the
part of any party immediately upon the occurrence of such event.
With respect to the second provisos in each of subsections (e)
and (f) above, the Indenture Trustee and the Owner Trustee shall
give notice of such failure or inaccuracy, as the case may be, to
the Noteholders and the Certificateholders, respectively, no
later than 45 days after lapse of the 60 day period set forth in
such subsection and any election described in such subsection by
the Noteholders or Certificateholders, as applicable, shall not
be effective unless notice thereof is given within 60 days after
the receipt of notice of such failure or inaccuracy.
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 payments 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.
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(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, 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
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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
supplement 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 Securityholders), (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.
(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
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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 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.
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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
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.
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(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
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.
- 49 -
<PAGE>54
(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 (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: L. B. LaCombe, Jr., Vice
President, 3031 West Grand Boulevard, New Center One, Suite 695,
Detroit, Michigan 48202, (b) in the case of the Servicer, at the
following address: J. B. Van Orman, Jr., 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
- 50 -
<PAGE>55
Investors Service, Inc., ABS Monitoring Department, 99 Church
Street, New York, New York 10007, (f) in the case of Standard &
Poor's, to Standard & Poor's Ratings Services, 26 Broadway, 20th
Floor, New York, New York 10004, Attention: Asset Backed
Surveillance Department, (g) in the case of Fitch, to Fitch
Investors Service, L.P., One State Street Plaza, 33rd Floor, New
York, New York 10004, Attention: Asset Backed Surveillance
Department, and (h) in the case of Duff & Phelps Credit Rating
Co., 17 State Street, 12th 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.
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.
- 51 -
<PAGE>56
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.
The rights, remedies, powers and privileges herein provided are
cumulative and not exhaustive of any rights, remedies, power and
privileges provided by law.
- 52 -
<PAGE>57
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 The Chase Manhattan
Bank (USA) not in its individual capacity but solely in its
capacity as Owner Trustee of the Issuer and in no event shall The
Chase Manhattan Bank (USA) 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.
<PAGE>58
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 II, Issuer
By: The Chase Manhattan Bank (USA),
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: L. B. LaCombe, Jr.
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:
The Chase Manhattan Bank (USA)
not in its individual capacity
but solely as Owner Trustee,
By: ______________________________
Name:
Title:
<PAGE>59
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 August 22, 1995 (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 II (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 August 22,
1995, 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.
<PAGE>60
Capitalized terms used herein and not otherwise defined shall
have the meaning assigned to them in the Trust Sale and Servicing
Agreement.
* * * * *
IN WITNESS WHEREOF, the undersigned has caused this
Assignment to be duly executed as of August 22, 1995.
WHOLESALE AUTO RECEIVABLES CORPORATION
By: _________________________________
Name: L. B. LaCombe, Jr.
Title: Vice President
<PAGE>
<PAGE>61
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>62
EXHIBIT C
FORM OF ASSIGNMENT FOR EACH ADDITION DATE
For value received, in accordance with the Trust Sale
and Servicing Agreement, dated as of August 22, 1995 (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 II (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 August 22, 1995,
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.
<PAGE>63
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.
* * * * *
IN WITNESS WHEREOF, the undersigned has caused this
Assignment to be duly executed as of _________, 199_.
WHOLESALE AUTO RECEIVABLES CORPORATION
By: _________________________________
Name:
Title:
<PAGE>64
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)(ix)
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 August 22,
1995 among General Motors Acceptance Corporation, as servicer,
Wholesale Auto Receivables Corporation, as Seller (the "Seller"),
and Superior Wholesale Inventory Financing Trust II.
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
THE CHASE MANHATTAN BANK (USA)
OWNER TRUSTEE
DATED AS OF AUGUST 22, 1995
<PAGE>2
TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS AND INCORPORATION BY REFERENCE
1.1 Definitions. . . . . . . . . . . . . . . . . . . . . . . .
ARTICLE II
ORGANIZATION
2.1 Name . . . . . . . . . . . . . . . . . . . . . . . . . . .
2.2 Office . . . . . . . . . . . . . . . . . . . . . . . . . .
2.3 Purposes and Powers. . . . . . . . . . . . . . . . . . . .
2.4 Appointment of Owner Trustee . . . . . . . . . . . . . . .
2.5 Initial Capital Contribution of Owner Trust
Estate . . . . . . . . . . . . . . . . . . . . . . . . . .
2.6 Declaration of Trust . . . . . . . . . . . . . . . . . . .
2.7 Liability of the Seller and the Certificate
Owners . . . . . . . . . . . . . . . . . . . . . . . . . .
2.8 Title to Trust Property. . . . . . . . . . . . . . . . . .
2.9 Situs of Trust . . . . . . . . . . . . . . . . . . . . . .
2.10 Representations and Warranties of the Seller . . . . . . .
2.11 Tax Treatment. . . . . . . . . . . . . . . . . . . . . . .
ARTICLE III
THE CERTIFICATES
3.1 [Intentionally Omitted]. . . . . . . . . . . . . . . . . .
3.2 Form of the Certificates . . . . . . . . . . . . . . . . .
3.3 Execution, Authentication and Delivery . . . . . . . . . .
3.4 Registration; Registration of Transfer and
Exchange of Certificates . . . . . . . . . . . . . . . . .
3.5 Mutilated, Destroyed, Lost or Stolen
Certificates . . . . . . . . . . . . . . . . . . . . . . .
3.6 Persons Deemed Certificateholders. . . . . . . . . . . . .
3.7 Access to List of Certificateholders' Names
and Addresses. . . . . . . . . . . . . . . . . . . . . . .
3.8 Maintenance of Corporate Trust Office. . . . . . . . . . .
3.9 Appointment of Paying Agent. . . . . . . . . . . . . . . .
3.10 Disposition by Seller. . . . . . . . . . . . . . . . . . .
3.11 Book-Entry Certificates. . . . . . . . . . . . . . . . . .
3.12 Notices to Clearing Agency . . . . . . . . . . . . . . . .
3.13 Termination of Book-Entry Registration . . . . . . . . . .
3.14 Seller as Certificateholder. . . . . . . . . . . . . . . .
ARTICLE IV
ACTIONS BY OWNER TRUSTEE
4.1 Prior Notice to Certificateholders with
Respect to Certain Matters . . . . . . . . . . . . . . . .
4.2 Action by Certificateholders with Respect to
Certain Matters. . . . . . . . . . . . . . . . . . . . . .
4.3 Action by Certificateholders with Respect to
Bankruptcy . . . . . . . . . . . . . . . . . . . . . . . .
4.4 Restrictions on Certificateholders' Power. . . . . . . . .
4.5 Majority Control . . . . . . . . . . . . . . . . . . . . .
i
<PAGE>3
ARTICLE V
APPLICATION OF TRUST FUNDS; CERTAIN DUTIES
5.1 Establishment of Certificate Distribution
Account. . . . . . . . . . . . . . . . . . . . . . . . . .
5.2 Application of Trust Funds . . . . . . . . . . . . . . . .
5.3 Method of Payment. . . . . . . . . . . . . . . . . . . . .
5.4 Accounting and Reports to the Certificate-
holders, the Internal Revenue Service and
Others . . . . . . . . . . . . . . . . . . . . . . . . . .
5.5 Signature on Returns; Tax Matters Partner. . . . . . . . .
ARTICLE VI
THE OWNER TRUSTEE
6.1 Duties of Owner Trustee. . . . . . . . . . . . . . . . . .
6.2 Rights of Owner Trustee. . . . . . . . . . . . . . . . . .
6.3 Acceptance of Trusts and Duties. . . . . . . . . . . . . .
6.4 Action upon Instruction by Certificateholders. . . . . . .
6.5 Furnishing of Documents. . . . . . . . . . . . . . . . . .
6.6 Representations and Warranties of Owner
Trustee. . . . . . . . . . . . . . . . . . . . . . . . . .
6.7 Reliance; Advice of Counsel. . . . . . . . . . . . . . . .
6.8 Owner Trustee May Own Certificates and Notes . . . . . . .
6.9 Compensation and Indemnity . . . . . . . . . . . . . . . .
6.10 Replacement of Owner Trustee . . . . . . . . . . . . . . .
6.11 Merger or Consolidation of Owner Trustee . . . . . . . . .
6.12 Appointment of Co-Trustee or Separate Trustee. . . . . . .
6.13 Eligibility Requirements for Owner Trustee . . . . . . . .
ARTICLE VII
TERMINATION OF TRUST AGREEMENT
7.1 Termination of Trust Agreement . . . . . . . . . . . . . .
7.2 Termination upon Bankruptcy of the Seller. . . . . . . . .
ARTICLE VIII
AMENDMENTS
8.1 Amendments Without Consent of Securityholders. . . . . . .
8.2 Amendments With Consent of Certificateholders
and Noteholders. . . . . . . . . . . . . . . . . . . . . .
8.3 Form of Amendments . . . . . . . . . . . . . . . . . . . .
ARTICLE IX
MISCELLANEOUS
9.1 No Legal Title to Owner Trust Estate. . . . . . . . . . .
9.2 Limitations on Rights of Others. . . . . . . . . . . . . .
9.3 Derivative Actions . . . . . . . . . . . . . . . . . . . .
9.4 Notices. . . . . . . . . . . . . . . . . . . . . . . . . .
9.5 Severability of Provisions . . . . . . . . . . . . . . . .
9.6 Counterparts . . . . . . . . . . . . . . . . . . . . . . .
9.7 Successors and Assigns . . . . . . . . . . . . . . . . . .
9.8 No Petition Covenants. . . . . . . . . . . . . . . . . . .
9.9 No Recourse. . . . . . . . . . . . . . . . . . . . . . . .
9.10 Headings . . . . . . . . . . . . . . . . . . . . . . . . .
9.11 Governing Law. . . . . . . . . . . . . . . . . . . . . . .
9.12 Certificate Transfer Restrictions. . . . . . . . . . . . .
9.13 Indemnification by and Reimbursement of the
Servicer . . . . . . . . . . . . . . . . . . . . . . . . .
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
iii
<PAGE>5
THIS TRUST AGREEMENT, dated as of August 22, 1995,
between WHOLESALE AUTO RECEIVABLES CORPORATION, a Delaware
corporation, as Seller, and THE CHASE MANHATTAN BANK (USA), 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 II" 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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<PAGE>7
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 Section 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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<PAGE>8
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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<PAGE>9
(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 denominations
of $2,000,000 (or such other amount as the Seller may determine
in order to prevent the Trust from being treated as a "publicly
traded partnership" under Section 7704 of the Code, but in no
event less than $250,000). 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 $72,750,000 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 0.30%
or(y) in the case of the Initial Distribution Date, 6.18281%.
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<PAGE>11
(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.
The Chase Manhattan Bank, 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 $2,000,000 (or such other amount as the Seller
may determine in order to prevent the Trust from being treated as
a "publicly traded partnership" under Section 7704 of the Code,
but in no event less than $250,000) and any attempted transfer of
a Certificate in contravention of this restriction shall be void
ab initio and the purported transferor shall continue to be
treated as the owner of such Certificate for all purposes. The
Chase Manhattan Bank, 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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<PAGE>12
(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 The Chase
Manhattan Bank, 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 The Chase Manhattan
Bank, 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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<PAGE>13
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 The Chase Manhattan
Bank, 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 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 The Chase
Manhattan Bank, 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 The Chase Manhattan
Bank, N.A. The Chase Manhattan Bank, N.A. shall be permitted to
resign as Paying Agent upon 30 days' written notice to the Owner
Trustee. If The Chase Manhattan Bank, 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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<PAGE>15
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 II 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, The Chase Manhattan Bank (USA) 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;
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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 The Chase Manhattan Bank, 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
liquidity, credit or other enhancement arrangement for the
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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,
(vi)restrict transfers of Certificates (or interests therein) or
as otherwise required to prevent the Trust from being treated as
a "publicly traded partnership" under Section 7704 of the Code or
(vii) 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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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: L. B.
LaCombe, Jr., Vice President, 3031 West Grand Boulevard, New
Center One, Suite 695, Detroit, Michigan 48202, (ii) in the case
of the Servicer and the Administrator, at the following address:
J. B. Van Orman, Jr., 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,(vi) in the case of Standard & Poor's, to Standard & Poor's
Ratings Services, 26 Broadway (20th Floor), New York, New York
10007, Attention: Asset Backed Surveillance Department, (vii) in
the case of Fitch, to Fitch Investor Services, L.P., One State
Street Plaza, New York, New York 10004, Attention: Asset Backed
Surveillance Department and (viii) in the case of Duff & Phelps,
to Duff & Phelps Credit Rating Co., 17 State Street, 12th 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
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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 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
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acceptance of a Certificate (or beneficial interest therein)
shall agree that, except as expressly provided in the Basic
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 the Seller determines that
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 Under-
taking 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
34<PAGE>
<PAGE>39
Institutional Buyers) to whom notice is given that the sale,
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 $2,000,000 (or such other amount as the
Seller may determine in order to prevent the Trust from being
treated as a "publicly traded partnership" under Section 7704 of
the Code, but in no event 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 such amount $250,000 for each such third
party. Any attempted transfer in contravention of the
immediately preceding restriction will be void ab initio and the
purported transferor will continue to be treated as the owner of
the Certificates for all purposes. 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.
* * * * *
35
<PAGE>40
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.
THE CHASE MANHATTAN BANK (USA), as
Owner Trustee
By: ______________________________
Name:
Title:
WHOLESALE AUTO RECEIVABLES
CORPORATION, Seller
By: ______________________________
Name: L. B. LaCombe, Jr.
Title: Vice President
36
<PAGE>41
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>42
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 $2,000,000 (OR SUCH OTHER AMOUNT
AS THE SELLER MAY DETERMINE IN ORDER TO PREVENT THE TRUST
FROM BEING TREATED AS A "PUBLICLY TRADED PARTNERSHIP" UNDER
SECTION 7704 OF THE INTERNAL REVENUE CODE OF 1986, AS
AMENDED (THE "CODE"), BUT IN NO EVENT 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 SUCH AMOUNT FOR EACH SUCH THIRD PARTY. ANY
ATTEMPTED TRANSFER IN CONTRAVENTION OF THE IMMEDIATELY
PRECEDING RESTRICTION WILL BE VOID AB INITIO AND THE
PURPORTED TRANSFEROR WILL CONTINUE TO BE TREATED AS THE
OWNER OF THE OFFERED CERTIFICATES FOR ALL PURPOSES.
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
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 THE SELLER DETERMINES THAT 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>43
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 II
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>44
THIS CERTIFIES THAT __________ is the registered owner
of a nonassessable, fully-paid, fractional undivided interest in
Superior Wholesale Inventory Financing Trust II (the "TRUST")
formed by Wholesale Auto Receivables Corporation, a Delaware
corporation.
The Trust was created pursuant to a Trust Agreement,
dated as of August 22, 1995 (as amended and supplemented from
time to time, the "TRUST AGREEMENT"), between the Seller and The
Chase Manhattan Bank (USA), 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 September 15, 1995 (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 Certificateholders 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 August 2000 (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>45
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>46
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 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>47
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: ______________, 1995<PAGE>
SUPERIOR WHOLESALE INVENTORY
FINANCING TRUST II
THE CHASE MANHATTAN BANK (USA),
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.
THE CHASE MANHATTAN BANK (USA), OR THE CHASE MANHATTAN BANK
not in its individual capacity (USA), not its individual
but solely as Owner Trustee capacity but solely as
Owner Trustee by The Chase
Manhattan Bank, N.A.,
as Authenticating Agent
By:_________________________ By:________________________
Name: Name:
Title: Title:
7
<PAGE>48
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 instrumentality 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
Certificateholders 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 0.30% (or, in the case of the Initial Distribution
Date, 6.18281%).
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>49
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 The Chase Manhattan Bank, N.A.
The Certificates are issuable only as registered
Certificates without coupons in denominations of $2,000,000 (or
such other amount as the Seller may determine in order to
prevent the Trust from being treated as a "publicly traded
partnership" under Section 7704 of the Code, but in no event
less than $250,000). 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 $2,000,000 (or
such other amount as the Seller may determine in order to
prevent the Trust from being treated as a "publicly traded
partnership" under Section 7704 of the Code, but in no event
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>50
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>51
If such sale, pledge or other transfer is being made pursuant
to (a) above, the undersigned acknowledges that such institu-
tional 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>52
EXHIBIT B
[FORM OF CERTIFICATE DEPOSITORY AGREEMENT]
1
<PAGE>53
EXHIBIT C
CERTIFICATE OF TRUST OF
SUPERIOR WHOLESALE INVENTORY FINANCING TRUST II
THIS Certificate of Trust of Superior Wholesale
Inventory Financing Trust II (the "TRUST"), dated as of August
18, 1995, is being duly executed and filed by The Chase
Manhattan Bank (USA), 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 II.
2. DELAWARE TRUSTEE. The name and business
address of the trustee of the Trust in the State of Delaware is
The Chase Manhattan Bank (USA), 802 Delaware Avenue, Trust
Group, 13th Floor, Wilmington, Delaware 19801.
3. This Certificate of Trust shall be effective on
August 22, 1995.
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.
The Chase Manhattan Bank (USA),
not in its individual capacity
but solely as Owner Trustee
under a Trust Agreement dated as
of August 22, 1995
By:
_______________________________
Name:
Title:
2<PAGE>
<PAGE>54
EXHIBIT D
UNDERTAKING LETTER
Wholesale Auto Receivables Corporation
Corporation Trust Center
1209 Orange Street
Wilmington, DE 19801
The Chase Manhattan Bank (USA),
802 Delaware Avenue
Trust Group
13th Floor
Wilmington, Delaware 19801
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 II, 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:
________________________
3<PAGE>
<PAGE>55
EXHIBIT E
INVESTOR LETTER
Wholesale Auto Receivables Corporation
Corporation Trust Center
1209 Orange Street
Wilmington, Delaware 19801
The Chase Manhattan Bank (USA),
802 Delaware Avenue
Trust Group
13th Floor
Wilmington, Delaware 19801
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 II, issued
under a trust agreement, dated as of August 22, 1995 (the
"Trust Agreement"), between Wholesale Auto Receivables
Corporation, a Delaware corporation (the "Seller") and The
Chase Manhattan Bank (USA), 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
exempt from the registration requirements of the
Securities Act, in which case (A) the Owner Trustee
shall
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<PAGE>56
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 $2,000,000 (or such other
amount as the Seller may determine in order to
prevent the Trust from being treated as a "publicly
traded partnership" under Section 7704 of the Code,
but in no event 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 such amount for each such third
party. Any attempted transfer will be void ab
initio and the purported transferor will continue to
be treated as the owner of the offered Certificates
for all purposes.
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>57
/ / (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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