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 April 11, 1996 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 III
(the "Trust") and The Bank of New York, a New York Banking
Corporation, as Indenture Trustee, dated as of April 11, 1996.
4.2 Officer's Issuance Certificate dated as of April
11, 1996.
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 April 11, 1996.
99.2 Trust Sale and Servicing Agreement among General Motors Acceptance
Corporation, as Servicer, the Seller and the Trust, dated as of
April 11, 1996.
99.3 Trust Agreement between Wholesale Auto Receivables Corporation and
The Chase Manhattan Bank (USA), as Owner Trustee, dated as of
April 11, 1996.
99.4 Administration Agreement among Superior Wholesale Inventory
Financing Trust III, as Issuer, and General Motors Acceptance
Corporation, as Administrator, and The Bank of New York, as
Indenture Trustee, dated as of April 11, 1996.
99.5 Custodian Agreement dated as of April 11, 1996,
between General Motors Acceptance Corporation, as
Custodian and Wholesale Auto Receivables
Corporation (the "Seller").
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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.
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(Jerome B. Van Orman Jr., Vice President)
Date: April 17, 1996
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Exhibit 4.1
SUPERIOR WHOLESALE INVENTORY FINANCING TRUST III
Asset-Backed Term Notes
Asset-Backed Revolving Notes
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INDENTURE
Dated as of April 11, 1996
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The Bank of New York,
a New York Banking Corporation,
Indenture Trustee
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CROSS-REFERENCE TABLE
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TIA Indenture
Section Section
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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
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N.A. means Not Applicable.
Note: This cross reference table shall not, for any purpose, be
deemed to be part of this Indenture.
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TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS AND INCORPORATION BY REFERENCE
1.1 Definitions.......................................2
1.2 Incorporation by Reference of Trust Indenture Act.2
ARTICLE II
THE NOTES
2.1 Issuance of Notes; Execution, Authentication and
Delivery..........................................2
2.2 Form of Notes and Indenture Trustee's Certificate
of Authentication.................................5
2.3 Temporary Notes...................................5
2.4 Registration; Registration of Transfer and
Exchange of Notes.................................6
2.5 Mutilated, Destroyed, Lost or Stolen Notes........7
2.6 Persons Deemed Noteholders........................8
2.7 Payment of Principal and Interest.................8
2.8 Cancellation of Notes.............................9
2.9 Release of Collateral............................10
2.10 Book-Entry Notes.................................10
2.11 Notices to Clearing Agency.......................11
2.12 Definitive Term Notes............................11
2.13 Seller as Noteholder.............................11
2.14 Tax Treatment....................................11
2.15 Special Terms Applicable to Subsequent
Transfers of Certain Notes.......................11
ARTICLE III
COVENANTS
3.1 Payment of Principal and Interest................12
3.2 Maintenance of Agency Office.....................13
3.3 Money for Payments To Be Held in Trust...........13
3.4 Existence........................................15
3.5 Protection of Trust Estate; Acknowledgment of
Pledge...........................................15
3.6 Opinions as to Trust Estate......................15
3.7 Performance of Obligations; Servicing of
Receivables......................................16
3.8 Negative Covenants...............................16
3.9 Annual Statement as to Compliance................17
3.10 Consolidation, Merger, etc., of Issuer;
Disposition of Trust Assets......................18
3.11 Successor or Transferee..........................20
3.12 No Other Business................................20
3.13 No Borrowing.....................................20
3.14 Guarantees, Loans, Advances and Other
Liabilities......................................20
3.15 Servicer's Obligations...........................20
3.16 Capital Expenditures.............................20
3.17 Removal of Administrator.........................21
3.18 Restricted Payments..............................21
3.19 Notice of Events of Default......................21
3.20 Further Instruments and Acts.....................21
3.21 Trustee's Assignment of Interests in Certain
Receivables......................................21
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3.22 Representations and Warranties by the Issuer to
the Indenture Trustee............................22
ARTICLE IV
SATISFACTION AND DISCHARGE
4.1 Satisfaction and Discharge of Indenture..........22
4.2 Application of Trust Money.......................23
4.3 Repayment of Monies Held by Paying Agent.........23
4.4 Duration of Position of Indenture Trustee........24
ARTICLE V
DEFAULT AND REMEDIES
5.1 Events of Default................................24
5.2 Acceleration of Maturity; Rescission and
Annulment........................................25
5.3 Collection of Indebtedness and Suits for
Enforcement by Indenture Trustee.................26
5.4 Remedies; Priorities.............................28
5.5 Optional Preservation of the Trust Estate........29
5.6 Limitation of Suits..............................29
5.7 Unconditional Rights of Noteholders To Receive
Principal and Interest...........................30
5.8 Restoration of Rights and Remedies...............30
5.9 Rights and Remedies Cumulative...................30
5.10 Delay or Omission Not a Waiver...................30
5.11 Control by Noteholders...........................31
5.12 Waiver of Past Defaults..........................31
5.13 Undertaking for Costs............................32
5.14 Waiver of Stay or Extension Laws.................32
5.15 Action on Notes..................................32
5.16 Performance and Enforcement of Certain
Obligations......................................32
ARTICLE VI
THE INDENTURE TRUSTEE
6.1 Duties of Indenture Trustee......................34
6.2 Rights of Indenture Trustee......................35
6.3 Indenture Trustee May Own Notes..................35
6.4 Indenture Trustee's Disclaimer...................36
6.5 Notice of Defaults...............................36
6.6 Reports by Indenture Trustee to Holders..........36
6.7 Compensation; Indemnity..........................36
6.8 Replacement of Indenture Trustee.................36
6.9 Merger or Consolidation of Indenture Trustee.....37
6.10 Appointment of Co-Indenture Trustee or Separate
Indenture Trustee................................38
6.11 Eligibility; Disqualification....................39
6.12 Preferential Collection of Claims Against Issuer.39
6.13 Representations and Warranties of Indenture
Trustee..........................................39
6.14 Indenture Trustee May Enforce Claims Without
Possession of Notes..............................40
6.15 Suit for Enforcement.............................40
6.16 Rights of Noteholders to Direct Indenture
Trustee..........................................41
ARTICLE VII
NOTEHOLDERS' LISTS AND REPORTS
7.1 Issuer To Furnish Indenture Trustee Names and
Addresses of Noteholders.........................41
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7.2 Preservation of Information, Communications to
Noteholders......................................41
7.3 Reports by Issuer................................42
7.4 Reports by Trustee...............................42
ARTICLE VIII
ACCOUNTS, DISBURSEMENTS AND RELEASES
8.1 Collection of Money..............................43
8.2 Designated Accounts; Payments....................43
8.3 General Provisions Regarding Designated Accounts.45
8.4 Release of Trust Estate..........................45
8.5 Opinion of Counsel...............................46
ARTICLE IX
SUPPLEMENTAL INDENTURES
9.1 Supplemental Indentures Without Consent of
Noteholders......................................46
9.2 Supplemental Indentures With Consent of
Noteholders......................................47
9.3 Execution of Supplemental Indentures.............49
9.4 Effect of Supplemental Indenture.................49
9.5 Conformity with Trust Indenture Act..............49
9.6 Reference in Notes to Supplemental Indentures....49
ARTICLE X
REDEMPTION OF TERM NOTES
10.1 Redemption.......................................50
10.2 Form of Redemption Notice........................50
10.3 Term Notes Payable on Redemption Date............51
ARTICLE XI
MISCELLANEOUS
11.1 Compliance Certificates and Opinions, etc........51
11.2 Form of Documents Delivered to Indenture Trustee.53
11.3 Acts of Noteholders..............................54
11.4 Notices, etc., to Indenture Trustee, Issuer and
Rating Agencies..................................54
11.5 Notices to Noteholders; Waiver...................55
11.6 Alternate Payment and Notice Provisions..........56
11.7 Conflict with Trust Indenture Act................56
11.8 Effect of Headings and Table of Contents.........56
11.9 Successors and Assigns...........................56
11.10 Separability.....................................56
11.11 Benefits of Indenture............................56
11.12 Legal Holidays...................................57
11.13 GOVERNING LAW....................................57
11.14 Counterparts.....................................57
11.15 Recording of Indenture...........................57
11.16 No Recourse......................................57
11.17 No Petition......................................58
11.18 Inspection.......................................58
EXHIBIT A Form of Transfer Certificate
EXHIBIT B Form of Undertaking Letter
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INDENTURE, dated as of April 11, 1996, between SUPERIOR WHOLESALE
INVENTORY FINANCING TRUST III, 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) each Basis Swap and
other Specified Support Arrangement, 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
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under this Indenture in accordance with the provisions of this
Indenture.
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 April 11, 1996 (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.
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.
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(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;
(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;
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(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
(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
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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.
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
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amount of Definitive Term Notes of authorized denominations. Until so delivered
in exchange, the Temporary Notes shall in all respects be entitled to the same
benefits under this Indenture as Definitive Term Notes.
SECTION 2.4 Registration; Registration of Transfer and Exchange of Notes.
(a) The Issuer shall cause to be kept the Note Register, comprising
separate registers for each series of Notes, in which, subject to such
reasonable regulations as the Issuer may prescribe, the Issuer shall provide for
the registration of the Notes and the registration of transfers and exchanges of
the Notes. The Indenture Trustee shall initially be the Note Registrar for the
purpose of registering the Notes and transfers of the Notes as herein provided.
Upon any resignation of any Note Registrar, the Issuer shall promptly appoint a
successor Note Registrar or, if it elects not to make such an appointment,
assume the duties of the Note Registrar.
(b) If a Person other than the Indenture Trustee is appointed by the
Issuer as Note Registrar, the Issuer shall give the Indenture Trustee prompt
written notice of the appointment of such Note Registrar and of the location,
and any change in the location, of the Note Register. The Indenture Trustee
shall have the right to inspect the Note Register at all reasonable times and to
obtain copies thereof. The Indenture Trustee shall have the right to rely upon a
certificate executed on behalf of the Note Registrar by an Executive Officer
thereof as to the names and addresses of the Noteholders and the principal
amounts and number of such Notes.
(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 exchanged 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 registration
of transfer or exchange shall be duly endorsed by, or be accompanied
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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.
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
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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.
(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
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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 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
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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 Sections 314(c) and
314(d)(1).
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 control;
(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
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percentage of the beneficial interest in the Notes and (ii) has delivered such
instructions to the Indenture Trustee.
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.
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.
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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 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.
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(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.
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.
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(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
(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
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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).
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; Acknowledgment
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, continuation statement or
other instrument required by the Indenture Trustee pursuant to this Section 3.5.
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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.
(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
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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.
(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 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
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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;
(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;
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(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;
(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;
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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 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.
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
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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:
(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
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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 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
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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:
(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
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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 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
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(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
(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 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.
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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 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
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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;
(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;
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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.
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
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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
distributable 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.
(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
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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
(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
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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.
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 Noteholders 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 representing 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;
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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 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 discretion 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).
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
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whatsoever, claim or take the benefit or advantage of, any stay or extension law
wherever enacted, now or at any time hereafter in force, that may affect the
covenants or the performance of this Indenture. The Issuer (to the extent that
it may lawfully do so) hereby expressly waives all benefit or advantage of any
such law, and covenants that it shall not hinder, delay or impede the execution
of any power herein granted to the Indenture Trustee, but shall suffer and
permit the execution of every such power as though no such law had been enacted.
SECTION 5.15 Action on Notes. The Indenture Trustee's right to seek and
recover judgment on the Notes or under this Indenture shall not be affected by
the seeking, obtaining or application of any other relief under or with respect
to this Indenture. Neither the lien of this Indenture nor any rights or remedies
of the Indenture Trustee or the Noteholders shall be impaired by the recovery of
any judgment by the Indenture Trustee against the Issuer or by the levy of any
execution under such judgment upon any portion of the Trust Estate or upon any
of the assets of the Issuer. Any money or property collected by the Indenture
Trustee shall be applied in accordance with Section 5.4(b) hereof.
SECTION 5.16 Performance and Enforcement of Certain Obligations.
(a) Promptly following a request from the Indenture Trustee to do so and
at the Administrator's expense, the Issuer agrees to take all such lawful action
as the Indenture Trustee may request to compel or secure the performance and
observance by the Seller and the Servicer of their respective obligations to the
Issuer under or in connection with the Trust Sale and Servicing Agreement and
the Pooling and Servicing Agreement or by GMAC of its obligations under or in
connection with the Pooling and Servicing Agreement in accordance with the terms
thereof, and to exercise any and all rights, remedies, powers and privileges
lawfully available to the Issuer under or in connection with the Trust Sale and
Servicing Agreement to the extent and in the manner directed by the Indenture
Trustee, including the transmission of notices of default on the part of the
Seller or the Servicer thereunder and the institution of legal or administrative
actions or proceedings to compel or secure performance by the Seller or the
Servicer of each of their obligations under the Trust Sale and Servicing
Agreement.
(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.
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(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.
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
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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.
(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
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or by or through agents or attorneys or a custodian or nominee, and the
Indenture Trustee shall not be responsible for any misconduct or negligence on
the part of, or for the supervision of, any such agent, attorney, custodian or
nominee appointed with due care by it hereunder.
(d) The Indenture Trustee shall not be liable for any action it takes or
omits to take in good faith which it believes to be authorized or within its
rights or powers; provided, however, that the Indenture Trustee's conduct does
not constitute wilful misconduct, negligence or bad faith.
(e) The Indenture Trustee may consult with counsel, and the advice or
opinion of counsel with respect to legal matters relating to this Indenture and
the Notes shall be full and complete authorization and protection from liability
in respect to any action taken, omitted or suffered by it hereunder in good
faith and in accordance with the advice or opinion of such counsel.
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
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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.
(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
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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.
(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
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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 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 ss. 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
Section 310(b); provided, however, that there shall be excluded from the
operation of TIA Section 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 Section 310(b)(1) are met.
SECTION 6.12 Preferential Collection of Claims Against Issuer. The
Indenture Trustee shall comply with TIA Section 311(a), excluding any creditor
relationship listed in TIA Section 311(b). A trustee who has resigned or been
removed shall be subject to TIA Section 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;
(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
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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.
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
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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 furnished.
(b) Noteholders may communicate pursuant to TIA Section 312(b) with other
Noteholders with respect to their rights under this Indenture or under the
Notes.
(c) The Issuer, the Indenture Trustee and the Note Registrar shall have
the protection of TIA Section 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
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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 Section 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 Section 313(a), within 60 days after each February
1, beginning with February 1, 1997, the Indenture Trustee shall mail to each
Noteholder as required by TIA Section 313(c) a brief report dated as of such
date that complies with TIA Section 313(a). The Indenture Trustee also shall
comply with TIA Section 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.
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.
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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 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
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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 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.
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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.
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.
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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.
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;
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(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;
(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
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thereof (or, in the case of redemption, on or after the
Redemption Date);
(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 supplemental 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.
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.
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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.
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
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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.
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
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(iv) a statement as to whether, in the opinion of each such
signatory, such condition or covenant has been complied with.
(b) (i) Prior to the deposit with the Indenture Trustee of any Collateral
or other property or securities that is to be made the basis for the release of
any property or securities subject to the lien of this Indenture, the Issuer
shall, in addition to any obligation imposed in Section 11.1(a) or elsewhere in
this Indenture, furnish to the Indenture Trustee an Officers' Certificate
certifying or stating the opinion of each Person signing such certificate as to
the fair value (within 90 days of such deposit) to the Issuer of the Collateral
or other property or securities to be so deposited.
(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
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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 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 representations 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
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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.
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
(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
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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 Agencies 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;
(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.
(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.
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(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 Sections 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.
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
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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.
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
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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 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,
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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.
* * * * *
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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 III
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:
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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 III, 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 11th day of April, 1996.
-----------------------------------
Notary Public in and for the State
of -------------------------------.
My commission expires:
- -----------------------------
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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 11th day of April, 1996.
--------------------------------------
Notary Public in and for the State
of
-----------------------------------.
My commission expires:
- ---------------------
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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, 12 East
New York, New York 10286
Attn: Corporate Trust Trustee Administration
as Indenture Trustee for Superior
Wholesale Inventory Financing Trust III
Ladies and Gentlemen:
In connection with the purchase of a Note subject to Section 2.15 of the
Indenture dated as of April 11, 1996 (the "Unregistered Note") of the Superior
Wholesale Inventory Financing Trust III, 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 prospective transferee certify to the
Indenture Trustee and the Seller in writing the facts surrounding such transfer,
which certification
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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.
|_| (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
DOC14.FIN
<PAGE>
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:
-------------------------------
DOC14.FIN
<PAGE>
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, 12 East
New York, New York 10286
Attn: Corporate Trust Trustee Administration
as Indenture Trustee for Superior
Wholesale Inventory Financing Trust III
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
April 11, 1996 (the "Unregistered Note") of the Superior Wholesale Inventory
Financing Trust III, 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:
-------------------------------
<PAGE>
EXHIBIT 4.2
Officer's Issuance Certificate
FLOATING RATE ASSET-BACKED TERM NOTES, SERIES 1996-A
The undersigned hereby certifies, pursuant to the Indenture dated as of
April 11, 1996 (the "Indenture"), between Superior Wholesale Inventory Financing
Trust III (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 1996-A (the "Series 1996-A Term Notes"). The Series
1996-A Term Notes shall be in the form set forth in Exhibit A hereto.
B. The aggregate principal amount of the Series 1996-A Term Notes which
may be authenticated and delivered under the Indenture (except for
Series 1996-A Term Notes authenticated and delivered upon registration
and transfer of, or in exchange for, or in lieu of, other Series 1996-A
Term Notes pursuant to the Indenture) is $500,000,000.
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 1996-A Term Notes:
1. Each Quarterly Distribution Date (and, if the Series
1996-A Term Notes are not paid in full on the
Targeted Final Payment Date for the Series 1996-A
Term Notes, each Distribution Date occurring after
such Targeted Final Payment Date until the Series
1996-A Term Notes are so paid in full) and each
Distribution Date related to an Early Amortization
Period shall be a Payment Date for the Series 1996-A
Term Notes.
2. The Stated Final Payment Date for the Series 1996-A Term Notes
shall be the Distribution Date in March 2001, on which date the
final payment of principal on the Series 1996-A Term Notes shall
be due and payable.
3. The Targeted Final Payment Date for the Series
1996-A Term Notes shall be the Quarterly
Distribution Date in March 1999.
4. The Record Date for the Series 1996-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
DOC15A.FIN
- 1 -
<PAGE>
are issued therefor, the last day of the preceding
Collection Period.
D. The Series 1996-A Term Notes shall bear interest at the
Series 1996-A Interest Rate. The Series 1996-A Interest
Rate, with respect to any Distribution Date, shall be
equal to the sum of the Fed Funds Rate for each day in
the related Interest Period, in each case divided by the
number of days in such Interest Period, plus 0.26% per
annum. Interest on the Outstanding Amount attributable
to the Series 1996-A Term Notes shall accrue from and
including the Initial Closing Date, or from and including
the most recent Quarterly Distribution Date or
Distribution Date, as applicable, on which interest has
been paid to but excluding the current Quarterly
Distribution Date or Distribution Date, as applicable,
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 1996-A Term Notes shall be paid on each
Payment Date for the Series 1996-A Term Notes as provided
in the Trust Sale and Servicing Agreement and the
Indenture. Interest on the Series 1996-A Term Notes
accrued as of any Payment Date but not paid on such
Payment Date shall be due on the next Payment Date.
"Interest Period" means, with respect to any Distribution Date, the
period from the preceding Distribution Date (or, with respect to the
Initial Distribution Date, the Initial Closing Date) to but excluding
such Distribution Date.
"Fed Funds Rate" means, for any day (a) if such day is a Fed Funds
Reset Date, the Federal Funds Weekly Rate for such day or (b) if such
day is not a Fed Funds Reset Date, the Federal Funds Weekly Rate for
the preceding Fed Funds Reset Date, provided, however, that for each
day from and including a Determination Date to but excluding the
Distribution Date relating to such Determination Date, the Fed Funds
Rate will be the rate applied on the day preceding the Determination
Date. All percentages resulting from a calculation with respect to the
Fed Funds Rate shall be rounded to the nearest one hundred- thousandth
of a percentage point, and all dollar amounts used in or resulting from
such calculation shall be rounded to the nearest cent.
"Fed Funds Reset Date" means Monday of each week.
"Federal Funds Weekly Rate" means, with respect to any Fed Funds Reset
Date, (a) the average of the rate on Federal Funds for the seven
calendar days ending on the Wednesday of the immediately preceding week
with the rates for days that are not Fed Funds Business Days deemed to
be the rate for the preceding Fed Funds Business Day (each, a "Federal
Funds Determination Period"), as published in H.15(519) under the
heading "Federal Funds (Effective)" or (b) if not published by 3:00
p.m., New York City time, on the first Fed Funds
DOC15A.FIN
- 2 -
<PAGE>
Business Day following such Fed Funds Reset Date, the average of the
rates for each day in the Federal Funds Determination Period as
published on Bloomberg FEDL01 Index GPO GO Page Forward ("Bloomberg")
under the heading "FED EFFECTIVE" and under the column "CLOSE," with
the rate for any day for which no rate is specified deemed to be the
rate on the preceding day for which a rate was published on Bloomberg.
If such rate is not published in H.15(519) and no rates are published
on Bloomberg for the related Federal Funds Determination Period, the
Federal Funds Weekly Rate will be the average of the rates for each day
in the Federal Funds Determination Period as published, with respect to
each day, on the next Fed Funds Business Day in The Wall Street Journal
for near closing bid, with the rate for any day for which no rate is
specified deemed to be the rate on the preceding day for which a rate
was published in The Wall Street Journal. Notwithstanding the above, if
for any day a rate other than the average weekly rate published in
H.15(519) is used, and such rate subsequently is published in H.15(519)
prior to the next Fed Funds Reset Date, then the rate as published in
H.15(519) will be considered the Federal Funds Weekly Rate as it
applies to each day following the day of publication of such rate in
H.15(519) but prior to the next Fed Funds Reset Date.
"Fed Funds Business Day" means any day other than a Saturday or Sunday
that is not a day on which banking institutions in The City of New York
are authorized or required by law, regulation or executive order to
close.
"H.15(519)" means the weekly statistical release designated as such,
published by the Board of Governors of the Federal Reserve System (or
such other release which may replace H.15(519)).
E. The Payment Period for the Series 1996-A Term Notes shall
be as follows:
1. The Payment Period for the Series 1996-A Term Notes
shall commence on the date determined as follows:
Unless an Early Amortization Period has commenced
and is continuing, the commencement date of the
Payment Period for the Series 1996-A Term Notes
shall be determined as follows: (a) on the November
1998 Determination Date, (i) if the Required Payment
Period Length is one or two, such commencement date
shall be determined on the December 1998
Determination Date and (ii) if the Required Payment
Period Length is three or greater, such commencement
date shall be December 1, 1998; (b) on the December
1998 Determination Date, if the Required Payment
Period Length is two or greater, such commencement
date shall be January 1, 1999; and (c) in all other
cases, such commencement date shall be February 1,
1999.
2. The Payment Period for the Series 1996-A Term Notes
shall continue until the earlier of (a) the
DOC15A.FIN
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<PAGE>
commencement of an Early Amortization Period, (b) the date on
which the Outstanding Amount of the Series 1996-A Term Notes is
reduced to zero and (c) the commencement of the Wind Down Period.
If terminated upon the occurrence of an Early Amortization Event
described in clause (j) of Section 9.1 of the Trust Sale and
Servicing Agreement and no other Early Amortization Event has
occurred and is continuing, such Payment Period may be
recommenced, if the Seller so elects, if the Seller elects to
recommence the Revolving Period as described in such clause (j).
F. Principal shall be due and payable on the Series 1996-A
Term Notes as follows:
1. During the Revolving Period, until the commencement of the Payment
Period for the Series 1996-A Term Notes, no payments of principal
on the Series 1996-A Term Notes shall be required or made and no
amounts shall be set aside for such purpose.
2. During the Payment Period for the Series 1996-A Term
Notes, subject to the terms of any Term Notes issued
after the Initial Closing Date, Trust Principal
Collections may be used to purchase Receivables on
any day only to the extent, if any, that the Cash
Collateral Amount on such day (after giving effect
to all additional borrowings (up to the Maximum
Revolver Balance) under and principal payments on
the Revolving Notes, all issuances of Securities and
all purchases of Receivables on such day) exceeds
the Required Payment for the Series 1996-A Term
Notes, and any other Term Notes that are in a
Payment Period, for the Distribution Date related to
the Collection Period in which such day occurs.
3. On each Distribution Date related to the Payment
Period for the Series 1996-A Term Notes, Available
Trust Principal in an amount equal to the Required
Payment for the Series 1996-A Term Notes for such
Distribution Date shall be applied to the Series
1996-A Term Notes (which amount shall be included in
Aggregate Noteholders' Principal for such
Distribution Date) and deposited into the Note
Distribution Account. For purposes of the foregoing
(including for purposes of determining the Required
Payment), on each Distribution Date on and after the
Targeted Final Payment Date for the Series 1996-A
Term Notes, Available Trust Principal shall include,
if and to the extent determined by the Seller, cash
held by the Trust, including proceeds from
additional issuances of Securities and additional
borrowings under any Revolving Notes to the extent
such cash is not otherwise required to be applied on
such Distribution Date. Principal will be due on
the Series 1996-A Term Notes on each Distribution
Date related to the Payment Period for the Series
1996-A Term Notes on and after the Targeted Final
DOC15A.FIN
- 4 -
<PAGE>
Payment Date for such Series 1996-A Term Notes in an amount equal
to the Required Payment (determined after giving effect to the
immediately preceding sentence) for such Series 1996-A Term Notes
for such Distribution Date and such principal shall be paid on
each such Distribution Date as provided in Section 8.2(f) of the
Indenture.
4. 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 1996-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, including any amounts on deposit in the Note
Distribution Account pursuant to the first sentence
of Section I.F.3. hereof (which shall be paid as
principal on the Series 1996-A Term Notes)).
5. The amount included in Aggregate Noteholders' Principal with
respect to the Series 1996-A Term Notes for any Distribution Date
shall not exceed the Outstanding Amount of the Series 1996-A Term
Notes less amounts on deposit in the Note Distribution Account for
the payment of principal on the Series 1996-A Term Notes.
G. The Series 1996-A Term Notes are not subject to optional
or mandatory purchase or redemption by the Issuer.
H. The terms of any series of Term Notes issued after the
Initial Closing Date with a Payment Period occurring, in
whole or in part, during the Payment Period for the
Series 1996-A Term Notes, may provide for the Required
Payment on such Term Notes to be payable during the
Payment Period for the Series 1996-A Term Notes together
with or after the Required Payment for the Series 1996-A
Term Notes.
I. The Series 1996-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 1996-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
DOC15A.FIN
- 5 -
<PAGE>
with. In the opinion of the undersigned, all such conditions precedent have
been complied with in respect of the Series 1996-A Term Notes.
III. Capitalized terms used herein and not defined shall have the
meanings assigned to such terms in the Indenture.
* * * *
DOC15A.FIN
- 6 -
<PAGE>
IN WITNESS WHEREOF, the undersigned has hereunto executed this
Officer's Issuance Certificate as of the 11th day of April, 1996.
WHOLESALE AUTO RECEIVABLES
CORPORATION
By:
Name: L.B. LaCombe, Jr.
Title: Vice President
DOC15A.FIN
<PAGE>
EXHIBIT A
[FORM OF NOTE]
DOC15A.FIN
<PAGE>
EXHIBIT B
[NOTE DEPOSITORY AGREEMENT]
DOC15A.FIN
<PAGE>
===============================================================================
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)
===============================================================================
-2-
<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.)
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
<PAGE>
based on incomplete information.
Item 2 may, however, be considered as correct unless amended by an
amendment to this Form T-1.
-4-
<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 9th day of April, 1996.
THE BANK OF NEW YORK
By: /S/ LLOYD A. MCKENZIE
-------------------------------
Name: LLOYD A. MCKENZIE
Title: ASSISTANT VICE PRESIDENT
<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 December 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 .................. $ 4,500,312
Interest-bearing balances .......... 643,938
Securities:
Held-to-maturity securities ........ 806,221
Available-for-sale securities ...... 2,036,768
Federal funds sold and securities
purchased under agreements to resell
in domestic offices of the bank:
Federal funds sold ................... 4,166,720
Securities purchased under agreements
to resell........................... 50,413
Loans and lease financing
receivables:
Loans and leases, net of unearned
income .................27,068,535
LESS: Allowance for loan and
lease losses ..............520,024
LESS: Allocated transfer risk
reserve......................1,000
Loans and leases, net of unearned
income and allowance, and reserve 26,547,511
Assets held in trading accounts ...... 758,462
Premises and fixed assets (including
capitalized leases) ................ 615,330
Other real estate owned .............. 63,769
Investments in unconsolidated
subsidiaries and associated
companies .......................... 223,174
Customers' liability to this bank on
acceptances outstanding ............ 900,795
Intangible assets .................... 212,220
Other assets ......................... 1,186,274
-----------
Total assets ......................... $42,711,907
===========
LIABILITIES
Deposits:
In domestic offices ................ $21,248,127
Noninterest-bearing .......9,172,079
Interest-bearing .........12,076,048
In foreign offices, Edge and
Agreement subsidiaries, and IBFs ... 9,535,088
Noninterest-bearing ..........64,417
Interest-bearing ......... 9,470,671
Federal funds purchased and secu-
-2-
<PAGE>
Exhibit 7
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 ............ 2,095,668
Securities sold under agreements
to repurchase .................... 69,212
Demand notes issued to the U.S.
Treasury ........................... 107,340
Trading liabilities .................. 615,718
Other borrowed money:
With original maturity of one year
or less .......................... 1,638,744
With original maturity of more than
one year ......................... 120,863
Bank's liability on acceptances exe-
cuted and outstanding .............. 909,527
Subordinated notes and debentures .... 1,047,860
Other liabilities .................... 1,836,573
----------
Total liabilities .................... 39,224,720
==========
EQUITY CAPITAL
Common stock ........................ 942,284
Surplus ............................. 525,666
Undivided profits and capital
reserves .......................... 1,995,316
Net unrealized holding gains
(losses) on available-for-sale
securities ........................ 29,668
Cumulative foreign currency transla-
tion adjustments .................. ( 5,747)
----------
Total equity capital ................ 3,487,187
----------
Total liabilities and equity
capital ........................... $42,711,907
==========
I, Robert E. Keilman, Senior Vice President and Comptroller of the
above-named bank do hereby declare that this Report of Condition has been
prepared in conformance with the instructions issued by the Board of Governors
of the Federal Reserve System and is true to the best of my knowledge and
belief.
Robert E. Keilman
We, the undersigned directors, attest to the correctness of this Report of
Condition and declare that it has been examined by us and to the best of our
knowledge and belief has been prepared in conformance with the instructions
issued by the Board of Governors of the Federal Reserve System and is true and
correct.
-
J. Carter Bacot |
Thomas A. Renyi | Directors
Alan R. Griffith |
-
<PAGE>
Exhibit 99.1
POOLING AND SERVICING AGREEMENT
BETWEEN
GENERAL MOTORS ACCEPTANCE CORPORATION
SELLER AND SERVICER
AND
WHOLESALE AUTO RECEIVABLES CORPORATION
PURCHASER
DATED AS OF APRIL 11, 1996
SUPERIOR WHOLESALE INVENTORY FINANCING TRUST III
<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........... 13
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
DOC11.FIN - i -
<PAGE>
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..................... 23
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
DOC11.FIN - ii -
<PAGE>
THIS POOLING AND SERVICING AGREEMENT is made as of April 11, 1996, 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 oligations 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 III (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 1.1. 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.
<PAGE>
ARTICLE II
PURCHASE AND SALE OF ELIGIBLE RECEIVABLES
SECTION 2.1. 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 2.2. 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 $1,918,189,751.62 (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,
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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 2.3. 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;
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(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 2.4. 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 2.5. 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 2.6. 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.
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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 3.1. 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 3.2. 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
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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
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(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 3.3. 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 3.4. 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.
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(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
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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
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(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 3.5. 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 3.6. 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 3.7. 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.
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ARTICLE IV
REPRESENTATIONS, WARRANTIES AND COVENANTS
SECTION 4.1. 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
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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 4.2. 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;
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(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
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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 4.3. 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;
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(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 4.4. Covenants of GMAC. GMAC hereby covenants that:
(a) Negative Pledge. Except for the conveyances hereunder and under the
Trust Sale and Servicing Agreement and the pledge of the Trust Estate to the
Indenture Trustee under the Indenture and as provided in Section 6.03, GMAC
shall not sell, pledge, assign or transfer to any other Person, or grant,
create, incur, assume or suffer to exist, any Lien on any Eligible Receivable in
any Account in the Pool of Accounts (and any related Vehicle Collateral
Security), whether now existing or hereafter created, or any interest therein,
and GMAC shall defend the right, title and interest of the Purchaser and any
Interested Party in, to and under such property, whether now existing or
hereafter created, against all claims of third parties claiming through or under
GMAC. GMAC shall notify the Purchaser and the Issuer promptly after becoming
aware of any Lien on any such property other than the conveyances hereunder or
under the Trust Sale and Servicing Agreement or the Indenture. Nothing herein
shall prohibit GMAC from granting, creating, incurring or suffering to exist any
Lien on all or any portion of the Retained Property.
(b) Delivery of Collections. All payments received by GMAC from or on
behalf of a Dealer in respect of Receivables in any Accounts in the Pool of
Accounts or any Collateral Security (except as contemplated in Section 6.03 with
respect to any property constituting Common Collateral that is not Vehicle
Collateral Security in connection with any Other Indebtedness) shall be received
by GMAC in its capacity as Servicer, unless GMAC is no longer the Servicer, in
which case GMAC shall deliver all such payments to the Servicer as soon as
practicable after receipt thereof, but in no event later than two Business Days
after receipt thereof.
(c) Compliance with Requirements of Law. GMAC shall comply in all material
respects with all Requirements of Law applicable to GMAC, except where any such
failure to comply would not have a material adverse effect on its ability to
perform its obligations under this Agreement.
(d) No Petition. Neither the Servicer nor GMAC shall at any time institute
against the Purchaser any bankruptcy, reorganization, arrangement, insolvency or
liquidation proceedings, or other proceedings under any United States Federal or
state bankruptcy or similar law.
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ARTICLE V
CERTAIN MATTERS RELATING TO GMAC
SECTION 5.1. 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 5.2. 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 5.3. 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 6.1. 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.
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(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 6.2. 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 6.3. 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").
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(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
urchaser agrees that with respect to the Receivables of each Dealer:
(i) the Purchaser's security interest in any Common Collateral that is
not Vehicle Collateral Security (and the proceeds thereof) in connection
with such Receivables assigned to the Purchaser hereunder is subordinate to
the security interest therein in connection with any Other Indebtedness;
(ii) the Purchaser (or the Servicer on its behalf) shall not apply the
proceeds of any such Common Collateral that is not Vehicle Collateral
Security in connection with any such Receivables in any manner that is
materially adverse to GMAC until all required payments in respect of such
Other Indebtedness have been made; and
(iii) in realizing upon any such Common Collateral that is not Vehicle
Collateral Security in connection with such Other Indebtedness, GMAC shall
not be obligated to protect or preserve the rights of the Purchaser or the
Issuer in such Collateral Security.
(d) Obligations of Issuer. The Trust Sale and Servicing Agreement shall
provide that the Issuer is subject to this Section 6.03.
(e) Obligations of Assignees and Transferees. If, other than pursuant
hereto, GMAC in any manner assigns or transfers any right or obligation with
respect to any Other Indebtedness or any property constituting Common
Collateral, GMAC shall make such assignment or transfer subject to the
provisions of this Section 6.03 and shall require such assignee or transferee to
acknowledge that it takes such assignment or transfer subject to the provisions
of this Section 6.03 and to agree that it shall require the same acknowledgment
from any subsequent assignee or transferee.
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ARTICLE VII
MISCELLANEOUS PROVISIONS
SECTION 7.1. 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 7.2. 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
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Agreement and to each notice furnished before such request indicating removal
from or addition to the Accounts in the Pool of Accounts.
SECTION 7.3. 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 7.4. 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 7.5. 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 7.6. 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 7.7. 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 7.8. 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
DOC11.FIN - 20 -
<PAGE>
jurisdiction and to evidence the repurchase of any interest in any
Receivable by GMAC or the Servicer.
SECTION 7.9. 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.
* * * *
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<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: P.D. Bull
Title: Vice President
WHOLESALE AUTO RECEIVABLES CORPORATION,
Purchaser
By:
---------------------------------
Name: L.B. LaCombe, Jr.
Title: Vice President
DOC11.FIN
<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 April 11, 1996 (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 April 11, 1996.
GENERAL MOTORS ACCEPTANCE CORPORATION
By:
--------------------------------
Name: P.D. Bull
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 April 11, 1996 (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 III.
<PAGE>
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 III
ISSUER
DATED AS OF APRIL 11, 1996
<PAGE>
TABLE OF CONTENTS
Page
ARTICLE I
CERTAIN DEFINITIONS
SECTION 1.1 Definitions..............................1
ARTICLE II
CONVEYANCE OF ELIGIBLE RECEIVABLES;ISSUANCE OF INITIAL
SECURITIES
SECTION 2.1 Conveyance of Eligible Receivables.......2
SECTION 2.2 Custody of Documentation.................3
SECTION 2.3 Acceptance by the Issuer.................3
SECTION 2.4 Representations and Warranties under the
Pooling and Servicing Agreement..........3
SECTION 2.5 Repurchase of Receivables Upon Breach of
Warranty; Administrative Receivables.....4
SECTION 2.6 Covenants................................5
SECTION 2.7 Addition of Accounts.....................6
SECTION 2.8 Optional Removal of Accounts.............7
SECTION 2.9 Removal of Ineligible Accounts...........8
ARTICLE III
THE SELLER
SECTION 3.1 Representations of the Seller............9
SECTION 3.2 Liability of Seller.....................12
SECTION 3.3 Merger or Consolidation of, or Assumption of
the Obligations of, Seller; Amendment of
Certificate of Incorporation............12
SECTION 3.4 Limitation on Liability of
Seller and Others.......................12
SECTION 3.5 Seller May Own Notes or Certificates....13
ARTICLE IV
SERVICER'S COVENANTS; DISTRIBUTIONS; RESERVE FUND;
STATEMENTS TO SECURITYHOLDERS
SECTION 4.1 Annual Statement as to Compliance; Notice
of Servicing Default....................13
SECTION 4.2 Annual Independent Accountants' Report..14
SECTION 4.3 Access to Certain Documentation and
Information Regarding Accounts and
Receivables.............................14
SECTION 4.4 Enforcement of Receivables..............15
SECTION 4.5 Allocations; Distributions..............15
SECTION 4.6 Reserve Fund............................19
SECTION 4.7 Net Deposits............................20
SECTION 4.8 Statements to Securityholders...........21
SECTION 4.9 New Issuances; Changes in Specified
Maximum Revolver Balance................22
ARTICLE V
SERVICING FEE
SECTION 5.1 Servicing Compensation..................24
DOC13.FIN
<PAGE>
ARTICLE VI
SECURITYHOLDER ACCOUNTS; COLLECTIONS,DEPOSITS AND INVESTMENTS;
ADVANCES
SECTION 6.1 Establishment of Accounts...............24
SECTION 6.2 Collections.............................27
ARTICLE VII
LIABILITIES OF SERVICER AND OTHERS SECTION 7.1 Liability of Servicer;
Indemnities......28 SECTION 7.2 Merger or Consolidation of, or Assumption
of the Obligations of, the Servicer.....29
SECTION 7.3 Limitation on Liability of Servicer and
Others..................................29
SECTION 7.4 Delegation of Duties....................30
SECTION 7.5 Servicer Not to Resign..................30
ARTICLE VIII
DEFAULT
SECTION 8.1 Servicing Defaults......................31
SECTION 8.2 Consequences of a Servicing Default.....32
SECTION 8.3 Indenture Trustee to Act; Appointment of
Successor...............................33
SECTION 8.4 Notification to Securityholders.........34
SECTION 8.5 Waiver of Past Defaults.................34
SECTION 8.6 Repayment of Advances...................34
ARTICLE IX
EARLY AMORTIZATION EVENTS; TERMINATION
SECTION 9.1 Early Amortization Events...............34
SECTION 9.2 Insolvency Events.......................37
SECTION 9.3 Optional Purchase by the Servicer.......38
SECTION 9.4 Termination.............................38
ARTICLE X
MISCELLANEOUS PROVISIONS
SECTION 10.1 Amendment..............................39
SECTION 10.2 Protection of Title to the
Owner Trust Estate.....................40
SECTION 10.3 Notices................................42
SECTION 10.4 GOVERNING LAW..........................43
SECTION 10.5 Severability of Provisions.............43
SECTION 10.6 Assignment.............................43
SECTION 10.7 Third-Party Beneficiaries..............43
SECTION 10.8 Counterparts...........................43
SECTION 10.9 Headings...............................43
SECTION 10.10 Assignment to Indenture Trustee.......43
SECTION 10.11 No Petition Covenants.................44
SECTION 10.12 Further Assurances....................44
SECTION 10.13 No Waiver; Cumulative Remedies........44
SECTION 10.14 Merger and Integration................44
SECTION 10.15 Limitation of Liability of Indenture
Trustee and Owner Trustee.............44
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<PAGE>
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
DOC13.FIN
<PAGE>
THIS TRUST SALE AND SERVICING AGREEMENT is made as of April 11, 1996,
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 III, 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.
DOC13.FIN
<PAGE>
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 1996-A Term Notes, the Series 1996-RN1 Revolving Notes, the
Series 1996-RN2 Revolving Notes, and Class A Certificates with an initial
Certificate Balance of $79,000,000 to, or upon the order of, the Seller, the
Seller does hereby enter into this Agreement and agree to fulfill all of its
obligations hereunder and does hereby sell, transfer, assign and otherwise
convey to the Issuer, without recourse (except as expressly provided herein),
pursuant to an assignment in the form of Exhibit A hereto, on the Initial
Closing Date (i) all of its right, title and interest in, to and under all of
the Eligible Receivables existing in the Accounts listed on the Schedule of
Accounts (which is on file at the locations set forth in Exhibit B) as of the
close of business on the Initial Cut-Off Date and all monies due or to become
due thereon after the Initial Cut-Off Date, all Collateral Security with respect
thereto and all amounts received with respect thereto, (ii) all of its right,
title and interest in, to and under Article IV and Sections 3.04(c) and 6.03 of
the Pooling and Servicing Agreement with respect to such Receivables, including
the right of the Seller to cause GMAC or the Servicer to repurchase Receivables
under certain circumstances, (iii) all of its right, title and interest in, to
and under the Custodian Agreement with respect to such Receivables and (iv) all
of its right, title and interest in all proceeds of the foregoing (including
"proceeds" as defined in Section 9-306 of the UCC and Recoveries).
(b) As of each Receivables Purchase Date, the Seller does hereby sell,
transfer, assign and otherwise convey to the Trust, without recourse (except as
expressly provided herein), (i) all of its right, title and interest in, to and
under all Eligible Receivables created or deemed created in the Accounts in the
Pool of Accounts on such date and all monies due or to become due thereon after
such Receivables Purchase Date, all Collateral Security with respect thereto and
all amounts received with respect thereto, (ii) all of its right, title and
interest in, to and under Article IV and Sections 3.04(c) and 6.03 of the
Pooling and Servicing Agreement, including the right of the Seller to cause GMAC
or the Servicer to repurchase Receivables under certain circumstances, (iii) all
of its right, title and interest in, to and under the Custodian Agreement with
respect to such Receivables and (iv) all of its right, title and interest in all
proceeds of the foregoing (including "proceeds" as defined in Section 9-306 of
the UCC and Recoveries). The Trust shall pay for the property purchased on any
Receivables Purchase Date as set forth in Section 4.5(d)(i), with the purchase
price equal to the principal balance of the Receivables so purchased on such
date.
DOC13.FIN
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<PAGE>
(c) It is the intention of the Seller and the Issuer that the transfers
and assignments contemplated by this Agreement shall constitute sales of the
property described in Sections 2.1(a) and (b) from the Seller to the Issuer and
that the beneficial interest in and title to such property shall not be part of
the Seller's estate in the event of the filing of a bankruptcy petition by or
against the Seller under any Insolvency Law. Notwithstanding the foregoing, in
the event a court of competent jurisdiction determines that such transfers and
assignments did not constitute such sales or that such beneficial interest is a
part of the Seller's estate, then the Seller shall be deemed to have granted to
the Issuer a first priority perfected security interest in all of the Seller's
right, title and interest in, to and under such property, and the Seller hereby
grants such security interest. For purposes of such grant, this Agreement shall
constitute a security agreement under the UCC. The foregoing sales, transfers,
assignments and conveyances and any subsequent sales, transfers, assignments and
conveyances do not constitute, and are not intended to result in, the creation
or an assumption by the Issuer of any obligation of the Seller or any other
Person in connection with the Receivables described above or under any agreement
or instrument relating thereto, including any obligation to any Dealers.
(d) Within two Business Days after the Initial Closing Date, GMAC, as
directed by the Seller in Section 3.06 of the Pooling and Servicing Agreement,
shall cause to be deposited into the Collection Account the collections with
respect to the Receivables described in Section 3.06 of the Pooling and
Servicing Agreement.
SECTION 2.2 Custody of Documentation. In connection with the sale,
transfer, assignment and conveyance of the Receivables in the Accounts in the
Pool of Accounts and related Collateral Security to the Issuer hereunder, GMAC,
as Custodian under the Custodian Agreement, agrees to act as Custodian
thereunder for the benefit of the Issuer. The Issuer hereby accepts and agrees
to the terms and provisions of the Custodian Agreement and designates GMAC as
custodian with respect to the documents and instruments (as more fully described
in the Custodian Agreement) associated with the Receivables related to the
Accounts in the Pool of Accounts.
SECTION 2.3 Acceptance by the Issuer; Other Acknowledgements.
(a) The Issuer hereby acknowledges its acceptance of all right, title
and interest previously held by the Seller to the property, now existing and
hereafter created, conveyed by the Seller pursuant to Section 2.1, and declares
that it shall hold such consideration upon the trust set forth in the Trust
Agreement for the benefit of the Securityholders, subject to the terms and
conditions of the Indenture, the Trust Agreement and this Agreement. The Issuer
hereby agrees and accepts the appointment 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
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<PAGE>
Agreement, the Seller delivered to the Trustee the Schedule of Accounts. The
parties agree that the rights, duties and obligations of GMAC as Servicer under
the Pooling and Servicing Agreement are subject to the provisions hereof,
including Sections 7.2, 7.4, 7.5 and 10.2 and Article VIII. The Trust and the
Indenture Trustee hereby confirm the authorization and empowerment of the
Servicer under Section 3.02 of the Pooling and Servicing Agreement.
(b) The Issuer acknowledges and agrees to the provisions of Section
6.03 of the Pooling and Servicing Agreement relating to Common Collateral and
accepts the interests and rights in Collateral Security sold and assigned to it
hereunder subject to the terms and conditions set forth in such Section 6.03.
SECTION 2.4 Representations and Warranties under the Pooling and
Servicing Agreement. The Seller hereby represents and warrants to the Issuer
that the Seller has taken no action which would cause the representations and
warranties of GMAC in Section 4.01(a) of the Pooling and Servicing Agreement to
be false in any material respect. The foregoing representation and warranty
speaks as of the Initial Cut-Off Date (as to Sections 4.01(a)(i) and (ii)), as
of the related Additional Cut-Off Date with respect to each Additional Account
(as to Section 4.01(a)(iii)) and as of the related Receivables Purchase Date
with respect to Receivables purchased and sold after the Initial Closing Date
(as to Section 4.01(a)(iv)), and shall survive the sales, transfers and
assignments under Section 2.1 to the Issuer and the pledge of the Issuer's
assets to the Indenture Trustee pursuant to the Indenture. The Seller further
acknowledges that the Issuer relies on the representations and warranties of the
Seller under this Agreement and of GMAC under the Pooling and Servicing
Agreement in accepting the Receivables hereunder and delivering the Securities.
The Servicer acknowledges that the Issuer is relying on the representations,
warranties and covenants of the Servicer in Section 3.04 of the Pooling and
Servicing Agreement in acquiring and holding Receivables and the related
Collateral Security hereunder and in issuing the Securities.
SECTION 2.5 Repurchase of Receivables Upon Breach of
Warranty; Administrative Receivables.
(a) Upon discovery by the Seller, the Servicer, the Owner Trustee or
the Indenture Trustee (i) of a breach of any of the representations and
warranties in Section 4.01(a) of the Pooling and Servicing Agreement or in
Section 2.4 or Section 3.1 of this Agreement that materially and adversely
affects the interests of the Trust in any Receivable or (ii) that the payment of
all or any portion of the principal amount of any Receivable held by the 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
DOC13.FIN
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<PAGE>
representations and warranties made by the Seller in Section 2.4 or Section
3.1(b), the Seller shall repurchase such Receivable, or in the event of a breach
of a representation and warranty under Section 4.01(a) of the Pooling and
Servicing Agreement or a deferral, the Seller and the Servicer shall use
reasonable efforts to enforce the obligation of GMAC under Section 4.01(a) of
the Pooling and Servicing Agreement to repurchase such Receivable from the
Issuer on such date; provided, however, that with respect to any breach of a
representation or warranty or a deferral that affects less than the entire
principal amount of any Receivable, although the Warranty Payment shall be paid
promptly as described below, no repurchase and assignment shall be required
until the remaining principal amount of such Receivable is collected in full or
written off as uncollectible. The purchase price to be paid by the Seller or
GMAC shall be an amount equal to the principal amount of such Receivable (in the
case of a breach or a deferral affecting less than the entire principal amount
of a Receivable, to the extent of the breach or deferral) plus all accrued and
unpaid interest thereon through the date of purchase (the "Warranty Payment") to
the extent of such breach of deferral, a "Warranty Receivable") and shall be
deposited into the Collection Account on such date of purchase. Without limiting
the generality of the foregoing, a Receivable shall not be an Eligible
Receivable, and thus shall be a Warranty Receivable and subject to repurchase,
if and to the extent that (A) the Servicer adjusts downward the principal amount
of such Receivable because of a rebate, refund, credit adjustment or billing
error to the related Dealer or (B) such Receivable was credited in respect of a
Vehicle which was refunded or returned by the related Dealer. It is understood
and agreed that the obligation of GMAC or the Seller, as applicable, to
repurchase any Receivable as to which a breach of a representation or warranty
made in Section 2.4 or Section 3.1 hereof or Section 4.01(a) of the Pooling and
Servicing Agreement has occurred and is continuing or as to which any such
deferral occurs, and the obligation of the Seller and the Servicer to enforce
GMAC's obligation to repurchase such Receivable pursuant to the Pooling and
Servicing Agreement shall constitute the sole remedy against the Seller, the
Servicer or GMAC for such breach or deferral available to the Issuer, the
Securityholders, the Owner Trustee or the Indenture Trustee.
(b) The Servicer also acknowledges its obligations to repurchase from
the Issuer Administrative Receivables pursuant to Section 3.04(c) of the Pooling
and Servicing Agreement. Upon discovery by the Indenture Trustee or the Owner
Trustee of a breach 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
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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.
(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
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(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 CutOff Date within two Business Days after such Addition
Date;
(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;
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(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.
(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.
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(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
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
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Account and the Servicer shall amend the Schedule of Accounts accordingly. At
any time after the Removal Date with respect to such Removed Account, the Owner
Trustee shall assign to the Seller, without recourse, representation or
warranty, effective as of the Removal Date, all of the Trust's right, title and
interest in, to and under the Receivables arising in such Account and related
Collateral Security.
ARTICLE III
THE SELLER
SECTION 3.1 Representations of the Seller. The Seller hereby makes, and
any successor to the Seller under this Agreement or under the Pooling and
Servicing Agreement shall make, as of each Closing Date (and as of the date of
such succession) the following representations and warranties on which the
Issuer relies in acquiring and holding the Receivables hereunder and the related
Collateral Security and issuing the Securities. The following representations
and warranties shall survive the sale, transfer and assignment of the Eligible
Receivables in the Accounts in the Pool of Accounts to the Issuer and the pledge
thereof to the Indenture Trustee.
(a) Representations and Warranties as to the Seller.
(i) Organization and Good Standing. The Seller has been duly
incorporated and is validly existing as a corporation in good standing
under the laws of the State of Delaware, with power and authority to own
its properties and to conduct its business as such properties are presently
owned 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 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 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
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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, 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.
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(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 properties (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 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)
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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 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.
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(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.
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
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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.
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
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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 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 the names of the
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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, Aggregate Revolver
Interest, Aggregate Certificateholders' Interest, any payment due under any
Specified Support Arrangement and, if required, the Required Payment Period
Length 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;
(B) (1) to the Note Distribution Account, an
amount equal to the Aggregate Noteholders' Interest for
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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 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
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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.
(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
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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 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
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(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).
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.
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(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 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.
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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) Notwithstanding anything in this Agreement or the Indenture
(including all Officer's Issuance Certificates) to the contrary, 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 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 Certificateholder 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;
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(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;
(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
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by the Code and applicable Treasury Regulations to enable such securityholder to
prepare its federal income tax returns.
(c) A copy of each statement provided pursuant to Section 4.8(a) shall
be made available for inspection at the Corporate Trust Office.
SECTION 4.9 New Issuances; Changes in Specified
Maximum Revolver Balance.
(a) The Seller may from time to time after the Initial Closing Date
direct the Indenture Trustee or the Owner Trustee, as applicable, on behalf of
the Trust, to issue one or more series of Term Notes or Revolving Notes or
additional Term Notes or Revolving Notes of any series outstanding pursuant to
the Indenture or increase or decrease the Specified Maximum Revolver Balance or
issue additional Certificates (including Certificates of a different class)
pursuant to the Trust Agreement. Except as otherwise provided in any supplement
hereto or any Officer's Issuance Certificate or Certificate Issuance Order, the
Term Notes of all outstanding series, the Revolving Notes of all outstanding
series and the Certificates of all outstanding classes shall be equally and
ratably entitled as and to the extent provided herein to the benefits of this
Agreement, the Indenture and the Pooling and Servicing Agreement without
preference, priority or distinction.
(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 (including any Series 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
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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
(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. In any such case, upon satisfaction of the above conditions, and upon
payment in full of any series of Term Notes, the Owner Trustee shall, to the
extent necessary, terminate, amend or modify the terms of any Specified Support
Arrangements (including the Basis Swaps) and enter into additional Specified
Support Arrangements.
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
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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) 20/360 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
III Collection Account (the "Collection Account"), bearing an additional
designation clearly indicating that the funds deposited therein are held
for the benefit of the Securityholders.
(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
III 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 III 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
III 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
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the Indenture Trustee an Eligible Deposit Account known as the Superior
Wholesale Inventory Financing Trust III Reserve Fund (the "Reserve Fund")
bearing an additional designation clearly indicating that the funds
deposited therein are held for the benefit of the Securityholders.
(b) (i) Each of the Designated Accounts shall be initially established
with the Indenture Trustee and shall be maintained with the Indenture
Trustee so long as (A) the short-term unsecured debt obligations of the
Indenture Trustee have the Required Deposit Rating or (B) each of the
Designated Accounts are maintained in the corporate trust department of the
Indenture Trustee and any securities of the Indenture Trustee have a credit
rating from each Rating Agency then rating such securities in one of its
generic rating categories that signifies investment grade. All amounts held
in the Designated Accounts (including amounts, if any, which the Servicer
is required to remit daily to the Collection Account pursuant to Section
6.2) shall, to the extent permitted by applicable laws, rules and
regulations, be invested, at the written direction of the Servicer, by such
bank or trust company in Eligible Investments (in the name of the Indenture
Trustee or its nominee). Such written direction shall 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).
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(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, 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.
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(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.
(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 confirmations described in (C) above, if then applicable, the Servicer
need not deposit Trust Principal Collections and Trust Interest Collections into
the Collection
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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.
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
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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 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
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(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.
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
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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 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;
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(b) any failure on the part of the Servicer duly to observe or perform
in any material respect any other covenant or agreement of the Servicer set
forth in this Agreement, the Pooling and Servicing Agreement, the Indenture or
the Trust Agreement, 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,
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floods or similar causes. The preceding 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 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
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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 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
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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.
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.
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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 undischarged 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;
(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
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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
preceeding Distribution Date, voting together as a single class, to declare such
incorrectness 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
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
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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 (and, if the Seller so elects, any then
occurring Payment Periods if and to the extent set forth in the related
Officer's Issuance Certificate) shall recommence if a notice rescinding and
annulling such declaration has been given pursuant to the Indenture;
(k) on any Distribution Date, the Reserve Fund Required Amount for such
Distribution Date exceeds the amount on deposit in the related Reserve Fund by
more than the Reserve Fund Trigger Amount;
(l) on any Distribution Date, the average Daily Trust Balance is less
than 75% of the sum of the average Outstanding Amount of the Term Notes and the
average Certificate Balance (in each case, such average being determined over
the six Collection Periods immediately preceding such Distribution Date (or, if
shorter, the period from the Initial Closing Date through and including the last
day of the immediately preceding Collection Period));
(m) except for a termination, amendment or modification of the terms of
any Basis Swap or entry into any other Specified Support Arrangement in
connection with the issuance of additional Securities, the payment in full of
any series of Term Notes or a change in the Specified Maximum Revolver Balance
or any Series Specified Maximum Revolver Balance so long as the conditions set
forth in Section 4.9 for such issuance or change are satisfied, any Basis Swap
or Specified Support Arrangement related to any Securities 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
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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 the 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.
(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. At any time, if (a) the
Daily Trust Balance is less than or equal to 10% of an amount equal to the
highest daily balance of the sum of the Daily Trust Balance and the Cash
Collateral Amount calculated as of the close of business on any day after the
Initial Closing Date, and (b) either (i) there are no Term Notes then
outstanding or (ii) it is during the Wind Down Period, the Servicer shall have
the option
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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. If
such option is exercised other than during the Wind Down Period, on such
Distribution Date, Available Trust Principal shall be applied first to the
payment of principal on all Revolving Notes then outstanding (pro rata in
accordance with the Outstanding Amount thereof, unless otherwise provided in the
terms of any such Revolving Notes) until all Revolving Notes are paid in full,
and then to the payment of the Certificate Balance of all Certificates then
outstanding.
SECTION 9.4 Termination. Notice of any termination of the Trust and the
Trust Agreement shall be given by the Servicer to the Owner Trustee and the
Indenture Trustee as soon as practicable after the Servicer has received notice
thereof. Following the satisfaction and discharge of the Indenture and the
payment in full of principal and interest on the Term Notes and the Revolving
Notes, the Certificateholders shall succeed to the rights of the Term
Noteholders and the Revolving Noteholders hereunder and the Owner Trustee shall
succeed to the rights of, and assume the obligations of, the Indenture Trustee
pursuant to this Agreement (subject to the continuing obligations of the
Indenture Trustee set forth in Section 4.4 of the Indenture). After payment to
the Indenture Trustee, the Owner Trustee, the Securityholders (including any
deposit into the Distribution Accounts for the benefit of the Securityholders)
and the Servicer of all amounts required to be paid (or so deposited) under this
Agreement, the Indenture and the Trust Agreement, any amounts on deposit in the
Reserve Fund and the Collection Account (after all other distributions required
to be made from the Reserve Fund have been made and all distributions to GMAC on
account of the Retained Property have been made) and any other assets of the
Trust, including any Receivables held by the Trust, shall be paid and delivered
to the Seller and this Agreement (except for Section 7.1) shall be terminated.
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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 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
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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.
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
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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.
(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
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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.
(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
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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: P.D.
Bull,Vice President, General Motors Acceptance Corporation, 3044 West Grand
Boulevard, Detroit, Michigan 48202, (c) in the case of the Trust or the
Indenture Trustee, at its Corporate Trust Office, (d) in the case of the Trust
or the Owner Trustee, to the Owner Trustee at its Corporate Trust Office, (e) in
the case of Moody's, to Moody's Investors Service, Inc., ABS Monitoring
Department, 99 Church Street, New York, New York 10007, (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
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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.
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
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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.
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.
* * * * *
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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 III, 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: P.D. Bull
Title: Vice President
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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:
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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 April 11, 1996 (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 III
(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 Sections 3.04(c) and 6.03 of the Pooling and
Servicing Agreement, dated as of April 11, 1996, 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.
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Capitalized terms used herein and not otherwise defined shall have the
meaning assigned to them in the Trust Sale and Servicing Agreement.
* * * * *
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IN WITNESS WHEREOF, the undersigned has caused this Assignment to be
duly executed as of April 11, 1996.
WHOLESALE AUTO RECEIVABLES CORPORATION
By:
Name: L.B. LaCombe, Jr.
Title: Vice President
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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>
EXHIBIT C
FORM OF ASSIGNMENT FOR EACH ADDITION DATE
For value received, in accordance with the Trust Sale and Servicing
Agreement, dated as of April 11, 1996 (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 III
(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
Sections 3.04(c) and 6.03 of the Pooling and Servicing Agreement, dated as of
April 11, 1996, between GMAC and the Seller, with respect to such Receivables,
including the right of the Seller to cause GMAC to repurchase Receivables under
certain circumstances, (iii) the Custodian Agreement with respect to such
Receivables and (iv) all proceeds of the foregoing (including "proceeds" as
defined in Section 9-306 of the UCC and Recoveries), in each case as more fully
described in the Trust Sale and Servicing Agreement.
The foregoing sale, transfer, assignment and conveyance and any sales,
transfers, assignments and conveyances subsequent to the date hereof do not
constitute, and are not intended to result in, the creation or an assumption by
the Trust of any obligation of the Seller, GMAC, General Motors or any other
Person in connection with the Accounts, the Receivables or under any agreement
or instrument relating thereto, including any obligation to any Dealers.
It is the intention of the Seller and the Trust that the transfers and
assignments contemplated by this Assignment, including transfers and assignments
subsequent to the date hereof, shall constitute a sale of the property described
herein and the Pooling and Servicing Agreement from the Seller to the Trust and
the beneficial interest in and title to such property shall not be part of the
Seller's estate in the event of the filing of a bankruptcy petition by or
against the Seller under any bankruptcy law.
This Assignment is made pursuant to and upon the
representations, warranties and agreements on the part of the
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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.
* * * * *
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IN WITNESS WHEREOF, the undersigned has caused this Assignment to be
duly executed as of _________, 199_.
WHOLESALE AUTO RECEIVABLES CORPORATION
By:
Name:
Title:
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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
April 11, 1996 among General Motors Acceptance Corporation, as servicer,
Wholesale Auto Receivables Corporation, as Seller (the "Seller"), and Superior
Wholesale Inventory Financing Trust III.
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.
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APPENDIX A
All terms defined in this Appendix shall have the defined meanings when
used in the Basic Documents, unless otherwise defined therein.
As used in this Appendix and in the Basic Documents, accounting terms
not defined in this Appendix or in the Basic Documents, and accounting terms
partly defined in this Appendix or in the Basic Documents, shall have the
respective meanings given to them under generally accepted accounting
principles. To the extent the definitions of accounting terms in this Appendix
or in the Basic Documents are inconsistent with the meanings of such terms under
generally accepted accounting principles, the definitions contained in this
Appendix or in the Basic Documents shall control.
The word "or" is not exclusive. Definitions contained in this Appendix
are applicable to the singular as well as the plural forms of such terms and to
the masculine as well as to the feminine and neuter genders of such terms.
Account: An individual line of credit or related lines of credit
represented by a Floor Plan Financing Agreement extended or maintained by GMAC
to a United States corporation or other Person engaged generally in the business
of purchasing Vehicles from a manufacturer or distributor thereof and holding
such Vehicles for sale or lease in the ordinary course of business.
Accountants' Report: The report described in Section 4.2
of the Trust Sale and Servicing Agreement.
Act: An Act as specified in Section 11.3(a) of the
Indenture.
Addition Date: The date as of which an Additional Account
is added to the Pool of Accounts.
Addition Notice: The notice specified in Section 2.7(a)
of the Trust Sale and Servicing Agreement.
Additional Account: An Account as described in Section
2.03(a) of the Pooling and Servicing Agreement to be included in the
Pool of Accounts after the Initial Cut-Off Date.
Additional Cut-Off Date: The date specified in the GMAC
Addition Notice described in Section 2.03(a) of the Pooling and
Servicing Agreement.
Additional Trust Principal: With respect to any date, the sum of (a)
the principal portion of all Warranty Payments and Administrative Purchase
Payments and (b) for any Distribution Date, the amount, if any, of Available
Trust Interest and funds in the Reserve Fund applied pursuant to Section
4.5(c)(i)(E) and (F) of the Trust Sale and Servicing Agreement.
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Administration Agreement: That certain Administration Agreement, dated
as of the Initial Closing Date, among GMAC, as Administrator, the Issuer and the
Indenture Trustee, as amended and supplemented from time to time.
Administrative Purchase Payment: The payment described
in Section 3.04(d) of the Pooling and Servicing Agreement.
Administrative Receivable: A Receivable described in
Section 3.04(c) of the Pooling and Servicing Agreement.
Administrator: GMAC or any successor Administrator under
the Administration Agreement.
Affiliate: With respect to any specified Person, any other Person
controlling, controlled by or under common control with such specified Person.
For the purposes of this definition, "control" when used with respect to any
specified Person means the power to direct the management and policies of such
Person, directly or indirectly, whether through the ownership of voting
securities, by contract or otherwise; and the terms "controlling" and
"controlled" have meanings correlative to the foregoing.
Agency Office: The office of the Issuer maintained
pursuant to Section 3.2 of the Indenture.
Aggregate Certificateholders' Interest: With respect to
any Distribution Date, an amount equal to the sum of (a) the
Certificateholders' Interest for all classes of Certificates and
(b) the Certificateholders' Interest Carryover Shortfall for the
preceding Distribution Date.
Aggregate Certificateholders' Principal: With respect to any
Distribution Date, the lesser of (i) the excess, if any, of Available Trust
Principal over the sum of the Aggregate Noteholders' Principal and the Required
Revolver Payment and (ii) the outstanding Certificate Balance. Aggregate
Certificateholders' Principal shall equal zero until the Outstanding Amount for
all Notes shall have been paid (or provided for) in full and either (i) such
Distribution Date relates to the Wind Down Period or an Early Amortization
Period or (ii) the Servicer has exercised its option under Section 9.3 of the
Trust Sale and Servicing Agreement.
Aggregate Noteholders' Interest: With respect to any Distribution Date,
the sum of (a) the Noteholders' Interest for the Series 1996-A Term Notes and
all other series of Term Notes and (b) the Noteholders' Interest Carryover
Shortfall for the preceding Distribution Date.
Aggregate Noteholders' Principal: With respect to any Distribution
Date, the sum of the amounts required to be paid as principal on each series of
Term Notes on such Distribution Date pursuant to the Indenture and the Trust
Sale and Servicing Agreement.
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Aggregate Revolver Interest: With respect to any Distribution Date, the
sum of (a) the Revolver Interest for all series of Revolving Notes and (b) the
Revolver Interest Carryover Shortfall for the preceding Distribution Date.
Applicable Trustee: So long as the Outstanding Amount for any series of
Term Notes or the Revolving Notes is greater than zero and the Indenture has not
been discharged in accordance with its terms, the Indenture Trustee, and
thereafter, the Owner Trustee.
Auction Vehicles: Under GMAC's current practices and
policies, vehicles purchased at a closed auction conducted by
General Motors.
Authorized Officer: With respect to the Issuer, any officer of the
Owner Trustee who is authorized to act for the Owner Trustee in matters relating
to the Issuer and who is identified on the list of Authorized Officers delivered
by the Owner Trustee to the Indenture Trustee on the Initial Closing Date (as
such list may be modified or supplemented from time to time thereafter) and, so
long as the Administration Agreement is in effect, any Vice President or more
senior officer of the Administrator who is authorized to act for the
Administrator in matters relating to the Issuer and to be acted upon by the
Administrator pursuant to the Administration Agreement and who is identified on
the list of Authorized Officers delivered by the Administrator to the Indenture
Trustee on the Initial Closing Date (as such list may be modified or
supplemented from time to time thereafter). With respect to any other Person,
any Vice President or more senior officer of such Person who is authorized to
act for such Person with respect to such matters.
Available Receivable: A Receivable that is identified by
GMAC as satisfying the criteria set forth in clauses (a) through (p)
of the definition of Eligible Receivable.
Available Trust Interest: With respect to any Distribution Date, the
sum of Trust Interest Collections, Investment Proceeds and amounts paid to the
Trust under any Specified Support Arrangements. If the Servicer exercises its
option to purchase the assets of the Trust under Section 9.3 of the Trust Sale
and Servicing Agreement, Available Trust Interest shall also include the amount
described as such in such Section.
Available Trust Principal: With respect to any Distribution Date, the
sum of: (a) Trust Principal Collections for each day during the related
Collection Period; (b) the aggregate amount, if any, of Additional Trust
Principal for each day during the related Collection Period and for such
Distribution Date (provided that, with respect to the first Distribution Date
for any Early Amortization Period, no amount shall be included pursuant to
clause (a) or (b) above for any day in such Collection Period that occurred
during the Revolving Period); (c) for the first Distribution Date not related to
the Revolving Period, the Cash Collateral Amount on the last day of the
Revolving Period; (d) the
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amount on deposit in the Reserve Fund (i) if and to the extent that, after
giving effect to all other required applications of the Reserve Fund on such
Distribution Date and all other amounts to be applied as Available Trust
Principal on such Distribution Date, the application of the amount on deposit in
the Reserve Fund as Available Trust Principal shall reduce the Outstanding
Amount of all Notes and the outstanding Certificate Balance to zero (after
giving effect to the payment and distribution of all amounts otherwise on
deposit (or to be deposited) in the Distribution Accounts on such Distribution
Date) or (ii) as otherwise required pursuant to the terms of any series of Notes
as set forth in the Indenture (including the Officer's Issuance Certificate with
respect thereto); and (e) for each Distribution Date related to the Wind Down
Period or an Early Amortization Period, if the amount on deposit in the Reserve
Fund on such Distribution Date exceeds zero (after giving effect to all
deposits, distributions and withdrawals on such Distribution Date, other than
the applications described in subclause (d)(i) above), the Supplemental
Principal Allocation for such current Distribution Date.
Bankruptcy Code: Title 11 of the United States Code, as
the same may be amended from time to time.
Basic Documents: The Certificate of Trust, the Trust Agreement, the
Pooling and Servicing Agreement, the Trust Sale and Servicing Agreement, the
Custodian Agreement, the Administration Agreement, the Indenture (including all
Officer's Issuance Certificates), any Note Depository Agreements, any
Certificate Depository Agreements and the other documents and certificates
delivered in connection therewith from time to time.
Basis Swap: Each of the Term Note Basis Swap, the Series
1996-RN1 Basis Swap, the Series 1996-RN2 Basis Swap and the
Certificate Basis Swap.
Benefit Plan: Any one of (a) an employee benefit plan (as described in
Section 3(3) of ERISA) that is subject to the provisions of Title I of ERISA,
(b) a plan described in Section 4975(e)(1) of the Code or (c) any entity whose
underlying assets include plan assets by reason of a plan's investment in such
entity.
Book-Entry Certificates: Certificates in which ownership and transfers
shall be made through book entries by a Clearing Agency as described in Section
3.11 of the Trust Agreement.
Book-Entry Notes: Term Notes in which ownership and transfers shall be
made through book entries by a Clearing Agency as described in Section 2.10 of
the Indenture.
Business Day: Any day other than a Saturday, a Sunday or any other day
on which banks in New York, New York or Detroit, Michigan, may, or are required
to, remain closed.
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Business Trust Statute: Chapter 38 of Title 12 of the
Delaware Code, 12 Del. Code Section 3801 et seq., as the same may be
amended from time to time.
Cash Collateral Amount: With respect to any date, the amount of cash
that is required to be held on behalf of the Trust in order to ensure that the
Daily Trust Balance equals the Daily Trust Invested Amount.
Cede: CEDE & Co., as the nominee of The Depository Trust Company, which
initially shall be the sole owner of record of the Series 1996-A Term Notes.
Certificate: Any one of the Certificates executed by the
Owner Trustee and authenticated by the Owner Trustee in
substantially the form set forth in Exhibit A to the Trust
Agreement.
Certificate Balance: With respect to any Distribution Date, (a)
$79,000,000, plus (b) the principal amount of Certificates issued after the
Initial Closing Date, minus (c) all distributions in respect of Certificate
Balance actually made on or prior to such date, minus (d) unreimbursed Trust
Charge-Offs on such Distribution Date (determined after giving effect to the
application of Available Trust Interest and other amounts available to reimburse
Trust Charge-Offs on such date), up to the Certificate Balance on such
Distribution date calculated without regard to this clause (d).
Certificate Basis Swap: The Certificate Basis Swap dated
as of the Initial Closing Date between the Trust and GMAC, as the
Basis Swap Counterparty.
Certificate Depository Agreement: With respect to any Certificates
originally issued as Book-Entry Certificates, the Agreement, dated as of the
Closing Date for such Certificates, among the Trust, the Administrator and the
Clearing Agency relating to the Certificates, as the same may be amended and
supplemented from time to time.
Certificate Distribution Account: The account designated
as such, established and maintained pursuant to Section 5.1(a) of
the Trust Agreement.
Certificate Issuance Order: An order establishing the terms of any
Certificates to be issued after the Initial Closing Date pursuant to Section
3.3(b) of the Trust Agreement.
Certificate of Trust: The certificate of trust of the Issuer
substantially in the form of Exhibit C to the Trust Agreement to be filed for
the Trust pursuant to Section 3810(a) of the Business Trust Statute.
Certificate Owner: With respect to a Book-Entry
Certificate, the Person who is the beneficial owner of such Book
Entry Certificate, as reflected on the books of the Clearing Agency,
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or on the books of a Person maintaining an account with such Clearing Agency
(directly as a Clearing Agency Participant or as an indirect participant, in
each case in accordance with the rules of such Clearing Agency).
Certificate Rate: With respect to any Distribution Date, (a) with
respect to the Class A Certificates, a rate equal to 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 .33% or (y) in the case of the Initial Distribution Date, 5.7675% and
(b) with respect to any other class of Certificates, the amount designated as
such pursuant to the Trust Agreement and in the related Certificate Issuance
Order.
Certificate Register: The register of Certificates
specified in Section 3.4(a) of the Trust Agreement.
Certificate Registrar: The registrar at any time of the
Certificate Register, appointed pursuant to Section 3.4(a) of the
Trust Agreement.
Certificateholder: A Person in whose name a Certificate
is registered on the Certificate Register.
Certificateholders' Interest: With respect to any Distribution Date,
for each class of Certificates, the product of (a) the Certificate Balance on
the prior Distribution Date (or, in the case of the first Distribution Date
following the issuance of such class of Certificates, on the related Closing
Date) plus the initial Certificate Balance of any Certificates of such class
issued since such prior Distribution Date and (b) the Certificate Rate for such
Distribution Date.
Certificateholders' Interest Carryover Shortfall: With respect to any
Distribution Date, the excess of (a) the Aggregate Certificateholders' Interest
for such Distribution Date over (b) the amount that was actually deposited in
the Certificate Distribution Account on such Distribution Date in respect of
Aggregate Certificateholders' Interest.
Class A Certificates: The Floating Rate Asset-Backed
Certificates, Class A described in the Trust Agreement.
Clearing Agency: An organization registered as a
"clearing agency" pursuant to Section 17A of the Exchange Act. The
Clearing Agency for the Series 1996-A Term Notes and the Class A
Certificates shall be Depository Trust Company.
Clearing Agency Participant: A securities broker, dealer,
bank, trust company, clearing corporation or other financial
institution or other Person for whom from time to time a Clearing
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Agency effects book entry transfers and pledges of securities deposited with the
Clearing Agency.
Closing Date: Each of the Initial Closing Date and any subsequent date
on which Term Notes, Certificates or Revolving Notes are issued or the Specified
Maximum Revolver Balance is increased or decreased pursuant to Section 4.9 of
the Trust Sale and Servicing Agreement.
Code: The Internal Revenue Code of 1986, as amended, and
the Treasury Regulations promulgated thereunder.
Collateral: The collateral specified in the granting
clause of the Indenture
Collateral Security: With respect to an Account included in the Pool of
Accounts and the Receivables arising in such Account, all collateral security
granted to secure the obligations of the related Dealer in connection therewith
and any proceeds therefrom, including all Vehicle Collateral Security, and, to
the extent applicable, other motor vehicles, parts inventory, equipment,
fixtures, service accounts, realty and guarantees.
Collection Account: The account designated as such,
established and maintained pursuant to Section 6.1(a)(i) of the
Trust Sale and Servicing Agreement.
Collection Period: With respect to any Distribution Date, the calendar
month preceding the month in which such Distribution Date occurs; provided,
however, that for the Initial Distribution Date, the related Collection Period
shall include only that portion of the preceding calendar month occurring after
the Initial Cut-Off Date.
Collections: Interest Collections and Principal
Collections.
Common Collateral: The property constituting Collateral
Security described as such in Section 6.03(a) of the Pooling and
Servicing Agreement.
Controlled Deposit Amount: With respect to any Distribution Date, for
any series of Term Notes, the amount provided by the terms of such Term Notes;
provided, however, that the Controlled Deposit Amount for any series of Term
Notes shall not exceed the then Outstanding Amount of such Notes.
Corporate Trust Office: With respect to the Indenture Trustee or the
Owner Trustee, the principal office at which at any particular time the
corporate trust business of the Indenture Trustee or Owner Trustee,
respectively, shall be administered, which offices at the Initial Closing Date
are located, in the case of the Indenture Trustee, at 101 Barclay Street, 12
East, New York, New York 10286, Attention: Corporate Trust Trustee
Administration, and in the case of the Owner Trustee, at The Chase Manhattan
Bank (USA),
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802 Delaware Avenue, Trust Group, 13th Floor, Wilmington, Delaware 19801,
Attention: Trust Department, provided that, when the definition of "Corporate
Trust Office" is used in connection with providing notice to the Owner Trustee,
a copy of such notice shall also be sent to The Chase Manhattan Bank, N.A., 4
Chase Metrotech Center, 3rd Floor, Brooklyn, New York 11245, Attention:
Institutional Trust Group.
Custodian: GMAC, as Servicer, or another custodian named
from time to time pursuant to the Custodian Agreement.
Custodian Agreement: The Custodian Agreement, dated as
of the Initial Closing Date, between the Custodian, GMAC and WARCO,
as amended and supplemented from time to time.
Daily Trust Balance: For any date, the aggregate principal balance of
all Receivables held by the Trust on such date (which shall not include the
Retained Property).
Daily Trust Invested Amount: For any date during a Collection Period,
an amount equal to (without duplication) (a) the aggregate Outstanding Amount of
the Term Notes on such date plus (b) the outstanding Certificate Balance on such
date plus (c) the Net Revolver Balance for such date minus (d) the Cash
Collateral Amount for such date minus (e) any amounts held on such date in a
related Distribution Account for payment of principal on the Notes or
distribution of Certificate Balance on the Certificates minus (f) the amount of
unreimbursed Trust Charge-Offs as of such date.
Dealer: Any corporation or other Person the Receivables
of which are included in the Trust.
Dealer Overconcentration Receivables: With respect to any date, with
respect to any Dealer or group of affiliated Dealers (as determined in
accordance with the Servicer's standard procedures for identifying and tracking
accounts of affiliated dealers), the outstanding Available Receivables with
respect to such Dealer or group of affiliated Dealers to the extent, if any, of
the excess of (a) the aggregate principal balance of all such Available
Receivables on such date over (b) 1% of the sum of (i) the Specified Maximum
Revolver Balance and (ii) the aggregate Outstanding Amount for all Term Notes as
of such date or, if applicable, as of the commencement of any then occurring
Early Amortization Period, Wind Down Period or Payment Period. If, on any date,
there exist Dealer Overconcentration Receivables with respect to a Dealer or
group of affiliated Dealers, those Receivables constituting Eligible Receivables
shall be those Available Receivables that were originated on the earliest dates,
with the more recently originated Receivables being Dealer Overconcentration
Receivables. If not all Available Receivables originated on any date are
Eligible Receivables, a Receivable related to a Vehicle with a lower vehicle
identification number shall constitute an Eligible Receivable before a
Receivable related to a Vehicle with a higher vehicle identification number. All
Available Receivables that are not Eligible Receivables pursuant to the
foregoing shall be Dealer
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Overconcentration Receivables. If an Available Receivable that is a Dealer
Overconcentration Receivable on the date such Receivable is created subsequently
ceases to be a Dealer Overconcentration Receivable such that such Receivable
becomes an Eligible Receivable pursuant to the foregoing, such Eligible
Receivable shall be deemed created on the date it so becomes an Eligible
Receivable.
Default: Any occurrence that is, or with notice or the
lapse of time or both would become, an Event of Default.
Defaulted Receivables: For any Distribution Date, all Receivables held
by the Trust that were charged-off as uncollectible during the related
Collection Period, other than any such Receivables that are subject to
repurchase by the Seller or GMAC or purchase by the Servicer on such
Distribution Date (unless certain events of bankruptcy, insolvency or
receivership have occurred with respect to the Seller, GMAC or the Servicer, as
the case may be, in which event Defaulted Receivables shall include the
principal amount of such otherwise excluded Receivables).
Definitive Certificates: The Certificates issued pursuant to the Trust
Agreement in definitive form either upon original issuance or upon termination
of book-entry registration with respect to such Certificates pursuant to Section
3.13 thereof.
Definitive Term Notes: The Term Notes issued pursuant to the Indenture
in definitive form either upon original issuance or upon termination of
book-entry registration with respect to such Term Notes pursuant to Section 2.12
of the Indenture.
Delivery: When used with respect to Designated Account
Property, "Delivery" means:
(i) with respect to bankers' acceptances, commercial paper,
certificates of deposit and other obligations that constitute "instruments"
within the meaning of Section 9-105(1)(i) of the UCC (which for purposes of
this definition means the UCC as in effect in the State of New York) and
are susceptible of physical delivery, transfer thereof to the Indenture
Trustee or its nominee or custodian by physical delivery to the Indenture
Trustee or its nominee or custodian endorsed to, or registered in the name
of, the Indenture Trustee or its nominee or custodian or endorsed in blank,
and, with respect to a certificated security (as defined in Section 8-102
of the UCC, but excluding the securities described in clause (ii) below)
transfer thereof (a) by physical delivery of such certificated security
endorsed to, or registered in the name of, the Indenture Trustee or its
nominee or custodian or endorsed in blank to a financial intermediary (as
defined in Section 8-313(4) of the UCC) and the making by such financial
intermediary of entries on its books and records identifying such
certificated securities as belonging to the Indenture Trustee or its
nominee or custodian and the sending by such financial intermediary of a
confirmation of the transfer to the Indenture Trustee or its nominee or
custodian
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of such certificated security, or (b) by delivery thereof to a "clearing
corporation" (as defined in Section 8-102(3) of the UCC) and the making by
such clearing corporation of appropriate entries on its books reducing the
appropriate securities account of the transferor and increasing the
appropriate securities account of a financial intermediary by the amount of
such certificated security, the identification by the clearing corporation
of the certificated securities for the sole and exclusive account of the
financial intermediary, the maintenance of such certificated securities by
such clearing corporation or a "custodian bank" (as defined in Section
8-102(4) of the UCC) or the nominee of either subject to the clearing
corporation's exclusive control, the sending of a confirmation by the
financial intermediary of the transfer to the Indenture Trustee or its
nominee or custodian of such securities and the making by such financial
intermediary of entries on its books and records identifying such
certificated securities as belonging to the Indenture Trustee or its
nominee or custodian (all of the foregoing, "Physical Property"); and such
additional or alternative procedures as may hereafter become appropriate to
effect the complete transfer of ownership of any such Designated Account
Property to the Indenture Trustee or its nominee or custodian, consistent
with changes in applicable law or regulations or the interpretation
thereof;
(ii) with respect to any security issued by the U.S. Treasury, the
Federal Home Loan Mortgage Corporation or by the Federal National Mortgage
Association that is a book-entry security held through the Federal Reserve
System pursuant to Federal book-entry regulations, the following
procedures, all in accordance with applicable law, including applicable
Federal regulations and Articles 8 and 9 of the UCC: book-entry
registration of such Designated Account Property to an appropriate
book-entry account maintained with a Federal Reserve Bank by a financial
intermediary which is also a "depositary" pursuant to applicable Federal
regulations and issuance by such financial intermediary of a deposit advice
or other written confirmation of such book-entry registration to the
Indenture Trustee or its nominee or custodian of the transfer to the
Indenture Trustee or its nominee or custodian of such book-entry
securities; the making by such financial intermediary of entries in its
books and records identifying such book-entry security as belonging to the
Indenture Trustee or its nominee or custodian and indicating that such
custodian holds such Designated Account Property solely as agent for the
Indenture Trustee or its nominee or custodian; the making by the Indenture
Trustee of entries in its books and records establishing that it holds such
Designated Account Property solely as Indenture Trustee under the terms of
Section 6.1 of the Trust Sale and Servicing Agreement; and such additional
or alternative procedures as may hereafter become appropriate to effect
complete transfer of ownership of any such Designated Account Property to
the Indenture Trustee or its nominee or
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custodian, consistent with changes in applicable law or
regulations or the interpretation thereof; and
(iii) with respect to any such Designated Account Property that is an
uncertificated security under Article 8 of the UCC (which term does not
include the securities described in clause (ii) above), registration on the
books and records of the issuer thereof in the name of a financial
intermediary, the sending of a confirmation by such financial intermediary
of the transfer to the Indenture Trustee or its nominee or custodian of
such uncertificated security and the making by such financial intermediary
of entries on its books and records identifying such uncertificated
securities as belonging to the Indenture Trustee or its nominee or
custodian.
Depository Agreements: The Note Depository Agreement and
the Certificate Depository Agreement(s), collectively.
Designated Account Property: The Designated Accounts, all amounts and
investments held from time to time in any Designated Account (whether in the
form of deposit accounts, Physical Property, book-entry securities,
uncertificated securities or otherwise), including the Reserve Fund Initial
Deposit, and all proceeds of the foregoing.
Designated Accounts: The Collection Account, the Note
Distribution Account, the Revolver Distribution Account and the
Reserve Fund, collectively.
Determination Date: The tenth day of each calendar month,
or if such tenth day is not a Business Day, the next succeeding
Business Day.
Distribution Accounts: The Note Distribution Account,
Certificate Distribution Account and Revolver Distribution Account.
Distribution Date: The fifteenth day of each calendar month or, if such
fifteenth day is not a Business Day, the next succeeding Business Day,
commencing on the Initial Distribution Date. A Distribution Date is related to
the Collection Period prior to the Collection Period in which such Distribution
Date occurs.
DPP: Delayed Payment Privilege, a policy of GMAC under which GMAC may
agree with a dealer not to require payment of principal promptly upon the sale
or lease of the vehicle to a customer.
Duff & Phelps: Duff & Phelps Credit Rating Co.
Early Amortization Event: An event described as such in
Section 9.1 of the Trust Sale and Servicing Agreement or any
amendment or supplement.
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Early Amortization Period: The period commencing on the day on which an
Early Amortization Event is deemed to have occurred, and ending on the first to
occur of (a) the payment in full of all outstanding Securities, (b) the
recommencement of the Revolving Period as described in Section 9.1(j) of the
Trust Sale and Servicing Agreement and (c) the Trust Termination Date. A
Distribution Date is for an Early Amortization Period if the last day of the
related Collection Period occurred during an Early Amortization Period.
Eligible Account: An Account which, as of the date of determination
thereof: (a) is in favor of a Person that is not subject to voluntary or
involuntary liquidation, that is not classified in "programmed" or "no credit"
status and in which General Motors or an Affiliate does not have a more than 20%
equity interest, (b) has been established by GMAC or General Motors, (c) is
maintained and serviced by GMAC and (d) is not a Fleet Account or a Marine
Account.
Eligible Deposit Account: Either (a) a segregated account with an
Eligible Institution or (b) a segregated trust account with the corporate trust
department of a depository institution organized under the laws of the United
States of America or any one of the states thereof or the District of Columbia
(or any domestic branch of a foreign bank), having corporate trust powers and
acting as trustee for funds deposited in such account so long as any of the
securities of such depository institution has a credit rating from each Rating
Agency then rating such securities in one of its generic rating categories which
signifies investment grade.
Eligible Institution: Either (a) the corporate trust department of the
Indenture Trustee or the Owner Trustee, as applicable, or (b) a depository
institution organized under the laws of the United States of America or any one
of the states thereof or the District of Columbia (or any domestic branch of a
foreign bank), (i) which has either (A) a long-term unsecured debt rating
acceptable to the Rating Agencies or (B) a short-term unsecured debt rating or
certificate of deposit rating acceptable to the Rating Agencies and (ii) whose
deposits are insured by the FDIC.
Eligible Investments: Book-entry securities, negotiable
instruments or securities represented by instruments in bearer or
registered form which (at the time made) evidence:
(a) direct obligations of, and obligations fully
guaranteed as to timely payment by, the United States of
America;
(b) demand deposits, time deposits or certificates of deposit of any
depository institution or trust company incorporated under the laws of the
United States of America or any state thereof (or any domestic branch of a
foreign bank) and subject to supervision and examination by Federal or
State banking or depository institution authorities; provided, however,
that at the time of the investment or contractual
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commitment to invest therein, the commercial paper or other short-term
unsecured debt obligations (other than such obligations the rating of which
is based on the credit of a Person other than such depository institution
or trust company) thereof shall have a credit rating from each of the
Rating Agencies then rating such obligations in the highest investment
category granted thereby;
(c) commercial paper having, at the time of the investment or
contractual commitment to invest therein, a rating from each of the Rating
Agencies then rating such commercial paper in the highest investment
category granted thereby;
(d) investments in money market or common trust funds having a rating
from each of the Rating Agencies then rating such funds in the highest
investment category granted thereby for money market funds (including funds
for which the Indenture Trustee or the Owner Trustee or any of their
respective affiliates is investment manager or advisor, so long as such
fund shall have such rating);
(e) bankers' acceptances issued by any depository
institution or trust company referred to in clause (b) above;
(f) repurchase obligations with respect to any security that is a
direct obligation of, or fully guaranteed by, the United States of America
or any agency or instrumentality thereof the obligations of which are
backed by the full faith and credit of the United States of America, in
either case entered into with a Person with the Required Deposit Rating or
otherwise approved by the Rating Agencies; and
(g) any other investment permitted by each of the Rating
Agencies; in each case, other than as permitted by the Rating
Agencies, maturing (i) not later than the Business Day
immediately preceding the next Distribution Date (or, with
respect to the Note Distribution Account, the next Payment
Date) or (ii) on such next Distribution Date (or, with respect
to the Note Distribution Account, the next Payment Date) if
either (A) such investment is in the institution with which
the Note Distribution Account or the Certificate Distribution
Account, as the case may be, is then maintained or (B) the
Indenture Trustee (so long as the short-term unsecured debt
obligations of the Indenture Trustee are rated at least P-1 by
Moody's and A-1 by Standard & Poor's on the date such
investment is made) shall advance funds on such Distribution
Date to the Note Distribution Account or the Certificate
Distribution Account, as the case may be, in the amount
payable on such investment on such Distribution Date (or, with
respect to the Note Distribution Account, the next Payment
Date) pending receipt thereof to the extent necessary to make
distributions on the Notes or the Certificates, as the case
may be, on such Distribution Date (or, with respect to the
Note Distribution Account, the next Payment Date). For
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purposes of the foregoing, unless the Indenture Trustee objects at the time
an investment is made, the Indenture Trustee shall be deemed to have agreed
to make such advance with respect to such investment.
Eligible Receivable: With respect to any date, a Receivable: (a) which
was originated by GMAC in the ordinary course of business or which was
originated by General Motors in the ordinary course of business and acquired by
GMAC; (b) which arose under an Account that was an Eligible Account (and not a
Selected Account) at the time of the transfer of such Receivable from GMAC to
the Seller; (c) which is payable in United States dollars; (d) to which GMAC had
good and marketable title immediately prior to the transfer thereof by GMAC to
the Seller and which has been the subject of a valid transfer and assignment
from GMAC to the Seller of all of GMAC's right, title and interest therein and
the related Vehicle Collateral Security (including any proceeds thereof); (e)
which is advanced against a Vehicle; (f) which at the time of transfer thereof
by GMAC to the Seller is secured by a first priority perfected security interest
in the Vehicle related thereto; (g) with respect to which all consents, licenses
and approvals of any Governmental Authority in connection with the transfer
thereof to the Seller and to the Trust have been obtained and are in full force
and effect; (h) which was created in compliance in all material respects with
all Requirements of Law applicable thereto; (i) as to which, at all times
following the transfer of such Receivable to the Trust, the Trust has either a
first priority perfected security interest or good and marketable title thereto,
free and clear of all Liens (other than Liens permitted pursuant to the Trust
Sale and Servicing Agreement); (j) which has been the subject of a valid
transfer and assignment from the Seller to the Trust of all the Seller's right,
title and interest therein and the related Vehicle Collateral Security
(including any proceeds thereof); (k) which is the legal, valid, binding and
assignable payment obligation of the Dealer relating thereto, enforceable
against such Dealer in accordance with its terms, except as such enforceability
may be limited by the Insolvency Laws; (l) which at the time of transfer thereof
by GMAC to the Seller is not subject to any valid right of rescission, setoff or
any other defense (including defenses arising out of violations of usury laws)
of the Dealer; (m) as to which, at the time of transfer thereof to the Trust,
GMAC and the Seller have satisfied in all material respects all their respective
obligations with respect to such Receivable required to be satisfied at such
time; (n) as to which, at the time of transfer thereof to the Trust, neither
GMAC nor the Seller has taken or failed to take any action that would impair the
rights of the Trust or the Securityholders therein; (o) which constitutes
"chattel paper", an "account" or a "general intangible" as defined in Article 9
of the UCC; (p) with respect to which the Dealer has not postponed principal
payment pursuant to DPP or WISP (or any similar arrangement) or any other
installment payment program; (q) which, at the time of transfer thereof to the
Trust, does not constitute a Dealer Overconcentration Receivable and (r) which,
at the time of transfer thereof to the Trust, does not constitute an Excess
Available Receivable. Notwithstanding the foregoing, any
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other Receivable identified by GMAC as an Eligible Receivable shall also be
deemed an Eligible Receivable unless and until such Receivable is thereafter
determined not to satisfy the eligibility criteria set forth above and
reassigned by the Trust to GMAC or the Seller pursuant to the Trust Sale and
Servicing Agreement and the Pooling and Servicing Agreement (it being understood
that any such subsequent determinations shall not affect any prior transfers of
such Receivable and such Receivable shall be reassigned to GMAC and the Seller
only as specifically provided in the Trust Sale and Servicing Agreement and the
Pooling and Servicing Agreement). An Eligible Receivable shall be deemed created
or originated on the date it is identified by GMAC as an Eligible Receivable.
With respect to any Dealer, Eligible Receivables shall be determined net of any
funds held by GMAC for such Dealer for cash management, liquidity and working
capital purposes. Within any such Account, Eligible Receivables shall be those
Available Receivables originated on the earliest dates. If not all Available
Receivables originated on any date are Eligible Receivables, a Receivable
relating to a Vehicle with a lower vehicle identification number shall
constitute an Eligible Receivable before a Receivable relating to a Vehicle with
a higher vehicle identification number. If there is a reduction on any date of
the amount so held for such Dealer, a Receivable or Receivables shall be deemed
created on such date to the extent of such reduction and such Receivable(s)
shall be Eligible Receivable(s) if the eligibility criteria set forth above are
satisfied and based on such date of origination and the vehicle identification
number of the related Vehicle as described above.
ERISA: The Employee Retirement Income Security Act of
1974, as amended.
Event of Default: An event described in Section 5.1 of
the Indenture.
Excess Available Receivables: For any date, Available Receivables to
the extent, if any, of the excess of (a) the aggregate principal balance of
Available Receivables less the aggregate principal balance of Dealer
Overconcentration Receivables over (b) the Maximum Pool Balance. If, on any
date, there exists Excess Available Receivables, a pro rata portion of the
Receivables in each Account in the Pool of Accounts shall constitute Excess
Available Receivables (based on the aggregate principal balance of the
Receivables in each such Account). Within each such Account, Eligible
Receivables shall be those Available Receivables that were originated on the
earliest dates, with the more recently originated Receivables being Excess
Available Receivables. If not all Available Receivables originated on any date
within an Account are Eligible Receivables, a Receivable related to a Vehicle
with a lower vehicle identification number shall constitute an Eligible
Receivable before a Receivable related to a Vehicle with a higher vehicle
identification number. All Available Receivables that are not Eligible
Receivables pursuant to the foregoing shall be Excess Available Receivables. If
an Available Receivable that is an Excess Available Receivable on the date such
Receivable is originated or created subsequently ceases to be an Excess
Available Receivable
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such that such Receivable becomes an Eligible Receivable pursuant to the
foregoing, such Eligible Receivable shall be deemed originated or created on the
date it so becomes an Eligible Receivable.
Exchange Act: The Securities Exchange Act of 1934, as
amended.
Executive Officer: With respect to any corporation, the Chief Executive
Officer, Chief Operating Officer, Chief Financial Officer, President, Executive
Vice President, any Vice President, the Secretary or the Treasurer of such
corporation; and with respect to any partnership, any general partner thereof.
Exempt Deposit Date: With respect to any Notes, a
Distribution Date which is not a Payment Date for such Notes.
FDIC: The Federal Deposit Insurance Corporation or any
successor thereto.
Fitch: Fitch Investors Service, L.P.
Fleet Accounts: Credit lines or accounts pursuant to which advances may
be made to finance Vehicles intended for sale to fleet customers generally in
lots of more than 10.
Floor Plan Financing Agreement: Collectively, the Wholesale Security
Agreement, and the related agreements between GMAC and a Dealer or the Wholesale
Instalment Sales Finance Agreement and related agreements between General Motors
and a Dealer, or, in each case, any successor agreements, pursuant to which GMAC
or General Motors, as the case may be, agrees to extend credit to such Dealer to
purchase or finance Vehicles and other vehicles and related items, and pursuant
to which such Dealer grants to GMAC or to General Motors, as the case may be, a
security interest in the specific Vehicles financed by GMAC or by General
Motors, certain other vehicles, certain other collateral and the proceeds
thereof.
Floor Plan Financing Guidelines: The Servicer's written policies and
procedures, as such policies and procedures may be amended from time to time,
relating to (a) the operation of its floor plan financing business, including
the policies and procedures for determining the interest rates charged to
Dealers and other terms and conditions relating to the Servicer's wholesale
financing accounts, the creditworthiness of Dealers and the extension of credit
to Dealers, and (b) the maintenance of accounts and collection of receivables.
General Motors: General Motors Corporation, a Delaware
corporation.
GMAC: General Motors Acceptance Corporation, a
corporation incorporated under the New York Banking Law relating to
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investment companies, and a wholly-owned subsidiary of General
Motors.
GMAC Addition Notice: The notice described in Section
2.03(a) of the Pooling and Servicing Agreement.
GMAC Removal Notice: The notice described in Section 2.04
of the Pooling and Servicing Agreement.
Governmental Authority: The United States of America, any state or
other political subdivision thereof and any entity exercising executive,
legislative, judicial, regulatory or administrative functions of or pertaining
to government.
Holder: The Person in whose name a Note or Certificate
is registered on the Note Register or the Certificate Register, as
applicable.
Indenture: The Indenture, dated as of the Initial Closing Date, between
the Issuer and the Indenture Trustee, as amended and supplemented from time to
time, including all Officer's Issuance Certificates.
Indenture Trustee: The Bank of New York, a New York banking
corporation, not in its individual capacity but solely as trustee under the
Indenture, or any successor trustee under the Indenture.
Independent: When used with respect to any specified Person, that the
Person (a) is in fact independent of the Issuer, any other obligor upon the
Notes, the Seller and any Affiliate of any of the foregoing Persons, (b) does
not have any direct financial interest or any material indirect financial
interest in the Issuer, any such other obligor, the Seller or any Affiliate of
any of the foregoing Persons and (c) is not connected with the Issuer, any such
other obligor, the Seller or any Affiliate of any of the foregoing Persons as an
officer, employee, promoter, underwriter, trustee, partner, director or person
performing similar functions.
Independent Certificate: A certificate or opinion to be delivered to
the Indenture Trustee under the circumstances described in, and otherwise
complying with, the applicable requirements of Section 11.1 of the Indenture,
made by an Independent appraiser or other expert appointed by an Issuer Order
and approved by the Indenture Trustee in the exercise of reasonable care, and
such opinion or certificate shall state that the signer has read the definition
of "Independent" and that the signer is Independent within the meaning thereof.
Indirect Participant: A securities broker, dealer, bank, trust company
or other Person that clears through or maintains a custodial relationship with a
Clearing Agency Participant, either directly or indirectly.
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Ineligible Account: An Account that does not satisfy the
criteria to be an Eligible Account.
Initial Account: An Account identified on the Schedule
of Accounts as in the Pool of Accounts as of the Initial Cut-Off
Date.
Initial Closing Date: April 11, 1996.
Initial Cut-Off Date: April 9, 1996.
Initial Distribution Date: May 15, 1996.
Initial Quarterly Distribution Date: June 17, 1996.
Initial Securities: The Series 1996-A Term Notes, the
Series 1996-RN1 Revolving Notes, the Series 1996-RN2 Revolving Notes
and the Class A Certificates.
Insolvency Event: With respect to a specified Person, (a) the entry of
a decree or order by a court, agency or supervisory authority having
jurisdiction in the premises for the appointment of a conservator, receiver,
trustee or liquidator for such Person, in any insolvency, readjustment of debt,
marshalling of assets and liabilities or similar proceedings, or for the
winding-up or liquidation of such Person's affairs, and the continuance of any
such decree or order unstayed and in effect for a period of 90 consecutive days,
(b) the consent by such Person to the appointment of a conservator, receiver or
liquidator in any insolvency, bankruptcy, readjustment of debt, marshalling of
assets and liabilities or similar proceedings of or relating to such Person or
of or relating to substantially all of such Person's property or (c) such Person
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 its obligations.
Insolvency Laws: The Bankruptcy Code and any other
applicable federal or State bankruptcy, insolvency or other similar
law.
Insolvency Proceeds: The proceeds described in Section
9.2(a) of the Trust Sale and Servicing Agreement.
Intercompany Advance Agreement: The Intercompany Advance
Agreement dated as of January 25, 1994 between WARCO and GMAC, as
amended and supplemented from time to time.
Interest Collections: For any Collection Period, collections received
during such Collection Period on the Receivables existing under the Accounts in
the Pool of Accounts that the Servicer attributes to interest and other
non-principal charges pursuant to the Floor Plan Financing Guidelines, including
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Administrative Purchase Payments and Warranty Payments in excess of the
principal portion thereof.
Interest Rate: With respect to any Distribution Date, (a) for the
Series 1996-A Term Notes, the Series 1996-A Interest Rate and (b) for any other
series of Term Notes, the amount designated as such pursuant to the applicable
Officer's Issuance Certificate.
Interested Party: GMAC, the Seller, the Issuer and each other party
identified or described in the Pooling and Servicing Agreement or in the Trust
Sale and Servicing Agreement as having an interest in Receivables as owner,
trustee, secured party or holder of the Securities.
Investment Company Act: The Investment Company Act of
1940, as amended.
Investment Proceeds: With respect to any Distribution Date, investment
earnings on funds deposited in the Designated Accounts and the Certificate
Distribution Account during the related Collection Period, net of losses and
investment expenses.
Involuntary Case: Any Proceeding provided for by any insolvency,
readjustment of debt, marshalling of assets and liabilities or similar
proceedings of or relating to any Person or relating to all or substantially all
of its property.
Issuer: The party named as such in the Pooling and Servicing Agreement,
the Trust Sale and Servicing Agreement and the Indenture until a successor
replaces it and, thereafter, the successor and, for purposes of any provision
contained herein and required by the TIA, each other obligor on the Notes.
Issuer Order and Issuer Request: A written order or request signed in
the name of the Issuer by any one of its Authorized Officers and delivered to
the Indenture Trustee.
LIBOR: With respect to each Distribution Date, for any series of
Securities, the rate for deposits in U.S. Dollars for a period of one month
which appears on the Dow Jones Telerate Service Page 3750 as of 11:00 a.m.,
London time, (x) for the Certificates and any series of Term Notes unless
otherwise specified in the related Officer's Issuance Certificate, on the day
that is two LIBOR Business Days prior to the Distribution Date immediately
preceding such Distribution Date and (y) for the Series 1996-RN1 Revolving Notes
and any other series of Revolving Notes unless otherwise specified in the
related Officer's Issuance Certificate, on the day that is two LIBOR Business
Days prior to the first day of the related Collection Period. If such rate does
not appear on such page (or such other page as may replace that page on that
service, or if such service is no longer offered, such other service for
displaying LIBOR or comparable rates as may be selected by the Indenture Trustee
after consultation with the Seller), the rate shall be the Reference Bank Rate.
The "Reference Bank Rate" shall
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be determined on the basis of the rates at which deposits in U.S. Dollars are
offered by the reference banks (which shall be four major banks that are engaged
in transactions in the London interbank market, selected by the Indenture
Trustee after consultation with the Seller) as of 11:00 a.m., London time, on
the day that is two LIBOR Business Days prior to the immediately preceding
Distribution Date or prior to the first day of the related Collection Period, as
applicable, to prime banks in the London interbank market for a period of one
month in amounts approximately equal to the Certificate Balance of the
Certificates then outstanding or the aggregate principal amount of the Series
1996-RN1 Revolving Notes or such other series of Revolving Notes then
outstanding, as applicable. The Indenture Trustee shall request the principal
London office of each of the reference banks to provide a quotation of its rate.
If at least two such quotations are provided, the rate shall be the arithmetic
mean of the quotations, rounded upwards to the nearest one-sixteenth of one
percent. If on any such date fewer than two quotations are provided as
requested, the rate shall be the arithmetic mean, rounded upwards to the nearest
one-sixteenth of one percent, of the rates quoted by one or more major banks in
New York City, selected by the Indenture Trustee after consultation with the
Seller, as of 11:00 a.m., New York City time, on such date to leading European
banks for United States dollar deposits for a period of one month in amounts
approximately equal to the Certificate Balance of the Certificates then
outstanding or the aggregate principal amount of the Series 1996-RN1 Revolving
Notes or such other series of Revolving Notes then outstanding, as applicable.
If no such quotations can be obtained, the rate shall be LIBOR for the prior
Distribution Date.
LIBOR Business Day : Any day other than a Saturday, Sunday or any other
day on which banks in London are required or authorized to be closed.
Lien: Any security interest, lien, charge, pledge, equity or
encumbrance of any kind, other than tax liens, mechanics' liens and any liens
that attach by operation of law.
Marine Accounts: Credit lines or accounts pursuant to
which advances are made to finance new and used boats and related
items.
Maximum Pool Balance: The sum of (a) the Maximum Revolver Balance, (b)
the aggregate outstanding principal balance of all Term Notes (after giving
effect to any amounts on deposit in the Note Distribution Account for payments
of principal) and (c) the aggregate outstanding Certificate Balance of all
Certificates (after giving effect to any amounts on deposit in the Certificate
Distribution Account for distributions with respect to Certificate Balance).
Maximum Revolver Balance: At any time, the Specified Maximum Revolver
Balance, as such amount may be increased or decreased from time to time in
accordance with the Trust Sale and Servicing Agreement; provided, however, that
at any time additional
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borrowings may not be made under a Revolving Note (including during the Wind
Down Period or an Early Amortization Period), the Maximum Revolver Balance shall
include the Specified Maximum Revolver Balance attributable to such Note only to
the extent of the Net Revolver Balance with respect to such Note. For purposes
of the foregoing, if and so long as the holder of any Revolving Notes has
determined not to make any further advances thereunder but additional borrowings
are otherwise then permitted thereunder, the proviso to the previous sentence
shall be applicable in determining Excess Available Receivables but shall
otherwise be inapplicable.
Monthly Payment Rate: For any Collection Period, the percentage
obtained by dividing Principal Collections for such Collection Period by the
average daily aggregate principal balance of all Receivables (including
Receivables included in the Retained Property) included in the Accounts in the
Pool of Accounts during such Collection Period.
Monthly Remittance Condition: Any of the conditions
specified in Section 6.2(b) of the Trust Sale and Servicing
Agreement.
Monthly Servicing Fee: The fee described in Section 5.1
of the Trust Sale and Servicing Agreement.
Moody's: Moody's Investors Service, Inc.
Net Receivables Rate: With respect to any Collection Period, a rate
equal to the product of (a) the quotient obtained by dividing (i) 360 by (ii)
the actual number of days elapsed in such Collection Period and (b) the
percentage equivalent of a fraction, the numerator of which is the amount of
Trust Interest Collections for the immediately preceding Collection Period,
after subtracting therefrom the Trust Defaulted Amount for the Distribution Date
related to such immediately preceding Collection Period, and the denominator of
which is the average Daily Trust Balance for such immediately preceding
Collection Period.
Net Revolver Balance: For any date, the aggregate outstanding principal
balance under the Revolving Notes minus any amounts on deposit in the Revolver
Distribution Account on such date for the payment of principal.
New Vehicles: Under GMAC's current practices and policies, vehicles of
any model year that are untitled and that generally have been driven less than
200 miles and that are not Auction Vehicles; provided, however, that vehicles
that are titled solely for purposes of state laws requiring demonstration
vehicles to be titled shall generally be considered New Vehicles if driven less
than 200 miles.
1996-RN2 Quarterly Distribution Date: The fifteenth day of each
January, April, July and October or, if such fifteenth day is not a Business
Day, the next succeeding Business Day, commencing on July 15, 1996.
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Note Depository: With respect to any Book-Entry Notes for which
Definitive Term Notes have not been issued, any depository selected from time to
time by the Indenture Trustee on behalf of the Trust in whose name a series of
Notes is registered. The Note Depository for the Series 1996-A Term Notes shall
be Cede & Co., the nominee of the Clearing Agency for such series.
Note Depository Agreement: With respect to any series of Term Notes
originally issued as Book-Entry Notes, the agreement, dated as of the Closing
Date for such series, among the Issuer, the Indenture Trustee and the Clearing
Agency relating to such Term Notes, as the same may be amended and supplemented
from time to time.
Note Distribution Account: The account designated as
such, established and maintained pursuant to Section 6.1(a)(ii) of
the Trust Sale and Servicing Agreement.
Note Owner: With respect to any Term Note issued as a Book Entry Note,
the Person who is the beneficial owner of such Book Entry Note, as reflected on
the books of the related Clearing Agency, or on the books of a Person
maintaining an account with such Clearing Agency (directly as a Clearing Agency
Participant or as an Indirect Participant, in each case in accordance with the
rules of such Clearing Agency).
Note Register: With respect to any series of Notes, the
register of such Notes specified in Section 2.4 of the Indenture.
Note Registrar: The registrar at any time of the Note
Register, appointed pursuant to Section 2.4 of the Indenture.
Noteholders: Holders of record of the Notes pursuant to the Indenture
and, with respect to any series of Notes, holders of record of such series of
Notes pursuant to the Indenture.
Noteholders' Interest: With respect to any Distribution Date, (a) with
respect to the Series 1996-A Term Notes, the product of (i) the outstanding
principal balance of the Series 1996-A Term Notes on the last day of the related
Collection Period (or, in the case of the Initial Distribution Date, on the
Initial Closing Date), (ii) the Series 1996-A Interest Rate for such
Distribution Date and (iii) 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 (b)
with respect to any other series of Term Notes, the amount required to be paid
as, or set aside for payment of, interest on such series of Term Notes on such
Distribution Date pursuant to its terms (not including any interest payable as a
result of shortfalls from prior Distribution Dates).
Noteholders' Interest Carryover Shortfall: With respect
to any Distribution Date, the excess of (a) the Aggregate
Noteholders' Interest for such Distribution Date over (b) the amount
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that was actually deposited in the Note Distribution Account on such
Distribution Date in respect of Aggregate Noteholders' Interest.
Notes: The Term Notes and the Revolving Notes.
Officer's Certificate: A certificate signed by any Authorized Officer
of the Issuer, under the circumstances described in, and otherwise complying
with, the applicable requirements of Section 11.1 of the Indenture, and
delivered to the Indenture Trustee. Unless otherwise specified, any reference in
the Indenture to an officer's certificate shall be to an Officer's Certificate
of any Authorized Officer of the Issuer.
Officer's Issuance Certificate: An Officer's Certificate
establishing the terms of any series of Notes pursuant to Section
2.1 of the Indenture.
Opinion of Counsel: A written opinion of counsel, who may, except as
otherwise expressly provided, be an employee of the Seller, the Servicer or
GMAC. In addition, for purposes of the Indenture: (a) such counsel shall be
satisfactory to the Indenture Trustee, (b) the opinion shall be addressed to the
Indenture Trustee as Trustee and (c) the opinion shall comply with any
applicable requirements of Section 11.1 of the Indenture and shall be in form
and substance satisfactory to the Indenture Trustee.
Other Indebtedness: The indebtedness of Dealers to GMAC
defined in Section 6.03(a) of the Pooling and Servicing Agreement.
Outstanding: With respect to any Notes, as of the date of
determination, subject to Section 4.5(f) of the Trust Sale and Servicing
Agreement, all such Notes theretofore authenticated and delivered under the
Indenture except:
(a) Notes theretofore canceled by the Indenture Trustee
or delivered to the Indenture Trustee for cancellation;
(b) Notes or portions thereof the payment for which money in the
necessary amount has been theretofore deposited with the Indenture Trustee or
any Paying Agent in trust for the Holders of such Notes; provided, however, that
if such Notes are to be redeemed, notice of such redemption has been duly given
pursuant to the Indenture or provision therefore, satisfactory to the Indenture
Trustee, has been made; and
(c) Notes in exchange for or in lieu of other Notes which have been
authenticated and delivered pursuant to this Indenture unless proof satisfactory
to the Indenture Trustee is presented that any such Notes are held by a bona
fide purchaser; provided, however, that in determining whether the Holders of
the requisite Outstanding Amount of the Notes have given any request, demand,
authorization, direction, notice, consent or waiver hereunder or under any Basic
Document, Notes owned by the Issuer, any other obligor upon the Notes, the
Seller or any Affiliate of any of the foregoing Persons shall be disregarded and
deemed not to be
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Outstanding, except that, in determining whether the Indenture Trustee shall be
protected in relying upon any such request, demand, authorization, direction,
notice, consent or waiver, only Notes that the Indenture Trustee knows to be so
owned shall be so disregarded. Notes so owned that have been pledged in good
faith may be regarded as Outstanding if the pledgee establishes to the
satisfaction of the Indenture Trustee the pledgor's right so to act with respect
to such Notes and that the pledgee is not the Issuer, any other obligor upon the
Notes, the Seller or any Affiliate of any of the foregoing Persons.
Outstanding Amount: As of any date, with respect to any series of Term
Notes or Revolving Notes, the aggregate principal amount of such Notes
Outstanding at such date.
Owner Trust Estate: All right, title and interest of the Trust in and
to the property and rights assigned to the Trust pursuant to Article II of the
Trust Sale and Servicing Agreement, all funds on deposit from time to time in
the Designated Accounts and the Certificate Distribution Account and all other
property of the Trust from time to time, including any rights of the Owner
Trustee and the Trust pursuant to the Trust Sale and Servicing Agreement and the
Administration Agreement.
Owner Trustee: The Chase Manhattan Bank (USA), a Delaware
banking corporation or any successor trustee under the Trust
Agreement.
Paying Agent: With respect to the Indenture, the Indenture Trustee or
any other Person that meets the eligibility standards for the Indenture Trustee
specified in Section 6.11 of the Indenture and is authorized by the Issuer to
make the payments to and distributions from the Collection Account, the Note
Distribution Account and the Revolver Distribution Account, including payment of
principal of or interest on the Notes on behalf of the Issuer. With respect to
the Trust Agreement, any paying agent or co-paying agent appointed pursuant to
Section 3.9 of the Trust Agreement that meets the eligibility standards for the
Owner Trustee specified in Section 6.13 of the Trust Agreement, and initially
The Chase Manhattan Bank, N.A.
Payment Date: With respect to a series of Notes, each date specified
for payment of interest or principal on the Notes pursuant to the Indenture.
With respect to a series of Notes providing for monthly payment of interest or
principal, Payment Date means a Distribution Date.
Payment Period: With respect to a series of Term Notes, the period, if
any, described in the related Officer's Issuance Certificate during which
amounts are required to be set aside and/or paid as principal on such Term Notes
prior to the Wind Down Period or an Early Amortization Period.
Person: Any legal person, including any individual,
corporation, partnership, joint venture, association, joint stock
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company, trust, unincorporated organization or Governmental
Authority.
Physical Property: The property described as such in the
definition of "Delivery."
Pool of Accounts: At any time, all Accounts identified on the Schedule
of Accounts as amended and supplemented from time to time pursuant to the
Pooling and Servicing Agreement and the Trust Sale and Servicing Agreement. From
and after the related Removal Date, an Account shall no longer be deemed
included in the Pool of Accounts.
Pooling and Servicing Agreement: The Pooling and Servicing Agreement,
dated as of the Initial Closing Date, between GMAC and the Purchaser, as amended
and supplemented from time to time.
Predecessor Note: With respect to any particular Note, every previous
Note evidencing all or a portion of the same debt as that evidenced by such
particular Note; and, for the purpose of this definition, any Note authenticated
and delivered under Section 2.5 of the Indenture in lieu of a mutilated, lost,
destroyed or stolen Note shall be deemed to evidence the same debt as the
mutilated, lost, destroyed or stolen Note.
Principal Collections: For any day or any period, collections received
on such date or during such period, as applicable, on the Receivables existing
under the Accounts in the Pool of Accounts that the Servicer attributes to
principal pursuant to the Floor Plan Financing Guidelines.
Proceeding: Any suit in equity, action at law or other
judicial or administrative proceeding.
Program: The program described in Section 4.2 of the
Trust Sale and Servicing Agreement.
Purchaser: Wholesale Auto Receivables Corporation, a
Delaware corporation, or its successor in interest pursuant to the
Pooling and Servicing Agreement.
Quarterly Distribution Date: The fifteenth day of each March, June,
September and December or, if such fifteenth day is not a Business Day, the next
succeeding Business Day, commencing on the Initial Quarterly Distribution Date.
Rating Agencies: As of any date, with respect to any series or class of
Securities, the nationally recognized statistical rating organizations that are
requested by the Seller to provide ratings on such Securities and that are
rating such Securities on such date.
Rating Agency Condition: With respect to any action, with
respect to any series or class of Securities that are then rated,
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the condition that each of the Rating Agencies with respect to such Securities
shall have notified the Seller, the Servicer and the Issuer in writing that such
action shall not result in a downgrade, suspension or withdrawal of the then
current rating of such Securities.
Reassignment Amount: For any Distribution Date, after giving effect to
any allocations, withdrawals and deposits otherwise to be made on such
Distribution Date, the sum of the Daily Trust Invested Amount (which, for such
purpose, shall be calculated without reduction for the Cash Collateral Amount)
and accrued but unpaid interest on all outstanding Securities to the extent not
previously distributed to Securityholders.
Receivable: At any time, the right to receive payment on
a loan made under an Account included in the Pool of Accounts.
Receivables Purchase Date: Each Business Day during the Revolving
Period on which Eligible Receivables are created in any Account then in the Pool
of Accounts, subject to Section 6.02 of the Pooling and Servicing Agreement.
Record Date: (a) With respect to any series of Term Notes that are
Book-Entry Notes and with respect to any Payment Date, the close of business on
the day immediately preceding such Payment Date, or if Definitive Term Notes are
issued therefor, the last day of the preceding Collection Period, (b) with
respect to any series of Notes other than those described in clause (a) and with
respect to any Payment Date, the last day of the preceding Collection Period and
(c) with respect to the Certificates and with respect to any Distribution Date,
the close of business on the last day of the preceding Collection Period.
Recoveries: For any Distribution Date, all amounts received, including
insurance proceeds, by the Servicer during the related Collection Period with
respect to Eligible Receivables that have previously become Defaulted
Receivables.
Redemption Date: The date specified as such by the Issuer
as described in Sections 10.1 and 10.2 of the Indenture.
Redemption Price: The price specified in the applicable
Officer's Issuance Certificate pursuant to Section 2.1(c)(i)(E) of the
Indenture.
Registered Holder: The Person in whose name a Note is
registered on the Note Register on the applicable Record Date.
Removal Balance: The balance described in Section 2.8 of
the Trust Sale and Servicing Agreement.
Removal Commencement Date: The date described as such in
Section 2.8 of the Trust Sale and Servicing Agreement.
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Removal Date: The date described as such in Section 2.8
of the Trust Sale and Servicing Agreement.
Removal Notice: The notice described in Section 2.8 of
the Trust Sale and Servicing Agreement.
Removed Account: An Account that has been removed from the Pool of
Accounts pursuant to Sections 2.04 or 2.05 of the Pooling and Servicing
Agreement and/or Sections 2.8 or 2.9 of the Trust Sale and Servicing Agreement.
Required Deposit Rating: A rating on short-term unsecured debt
obligations of P-1 by Moody's and A-1+ by Standard & Poor's. Any requirement
that short-term unsecured debt obligations have the "Required Deposit Rating"
shall mean that such short-term unsecured debt obligations have the foregoing
required ratings from each of such rating agencies.
Required Payment: For any Determination Date, (a) for the Series 1996-A
Term Notes, for any Determination Date related to the Payment Period for the
Series 1996-A Term Notes, the aggregate Outstanding Amount of the Series 1996-A
Term Notes, provided that the Required Payment for the Series 1996-A Term Notes
for the related Distribution Date (together with the Required Payment for such
Distribution Date for any other series of Term Notes to the extent provided by
the terms of such Term Notes) shall not exceed the Available Trust Principal for
such Distribution Date, and (b) for any other series of Notes, the amount
provided by the terms of such Notes.
Required Payment Period Length: For any Determination Date, (a) for the
Series 1996-A Term Notes, the ratio (rounded up to the nearest integer) of (i)
the product of (A) the minimum expected Daily Trust Balance during the period
between such Determination Date and February 28, 1999 as determined by the
Servicer and (B) the minimum Monthly Payment Rate for any Collection Period
during the last twelve Collection Periods divided by (ii) the outstanding
principal balance of the Series 1996-A Term Notes and all other Term Notes with
scheduled Payment Periods during the Payment Period for the Series 1996-A Term
Notes and (b) for any other series of Term Notes, as provided by the terms of
such Term Notes.
Required Revolver Payment: With respect to any Distribution Date, the
aggregate amount required to be paid (or set aside for payment) as principal on
all Revolving Notes on such Distribution Date pursuant to the Indenture and the
Trust Sale and Servicing Agreement.
Requirement of Law: With respect to any Person, the certificate of
incorporation and by-laws or other organizational or governing documents of such
Person, and any law, treaty, rule or regulation, or determination of an
arbitrator or Governmental Authority, in each case applicable to or binding upon
such Person
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or to which such Person is subject, whether Federal, state or local (including
usury laws and the Federal Truth in Lending Act).
Reserve Fund: The account designated as such, established
and maintained pursuant to Section 6.1(a)(v) of the Trust Sale and
Servicing Agreement.
Reserve Fund Deposit Amount: With respect to any Distribution Date, the
excess, if any, of the Reserve Fund Required Amount over the amount on deposit
in the Reserve Fund.
Reserve Fund Initial Deposit: $108,108,000.
Reserve Fund Property: The property described in Section
4.6(c) of the Trust Sale and Servicing Agreement.
Reserve Fund Required Amount: With respect to any Distribution Date,
(a) related to any Revolving Period or the Wind Down Period, 5.20% of the
Maximum Pool Balance as of such Distribution Date (or if, as of such
Distribution Date, Standard & Poor's has assigned GMAC a long-term debt rating
of less than BBB-, then 6.20%), and (b) related to any Early Amortization Period
or any Payment Period, 5.20% of the Maximum Pool Balance as of the last day of
the Revolving Period or the day prior to the first day of such Payment Period,
as applicable (or if, as of the last day of the Revolving Period or the day
prior to the first day of such Payment Period, as applicable, Standard & Poor's
has assigned GMAC a long-term debt rating of less than BBB-, then 6.20%), in
each case as the same may be adjusted from time to time.
Reserve Fund Trigger Amount: $10,000,000.
Responsible Officer: With respect to the Indenture Trustee or the Owner
Trustee, any officer within the Corporate Trust Office of such trustee, and,
with respect to the Servicer, the President, any Vice President, Assistant Vice
President, Secretary, Assistant Secretary or any other officer or assistant
officer of such Person customarily performing functions similar to those
performed by any of the above designated officers and also, with respect to a
particular matter, any other officer to whom such matter is referred because of
such officer's knowledge of and familiarity with the particular subject.
Retained Property: The interest of GMAC described in
Section 2.01(d) of the Pooling and Servicing Agreement.
Revolver Distribution Account: The account designated as
such, established and maintained pursuant to Section 6.1(a)(iii) of
the Trust Sale and Servicing Agreement.
Revolver Interest: With respect to any Distribution Date, for any
series of Revolving Notes, except as otherwise provided in the related Officer's
Issuance Certificate, the product of (a) the average daily Series Net Revolver
Balance for such series during the
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related Collection Period and (b) the Revolver Interest Rate for
such Distribution Date.
Revolver Interest Carryover Shortfall: For any Distribution Date, the
excess of (a) the Aggregate Revolver Interest for such Distribution Date over
(b) the amount that was actually deposited in the Revolver Distribution Account
on such Distribution Date in respect of Aggregate Revolver Interest.
Revolver Interest Rate: With respect to any Distribution Date (a) for
the Series 1996-RN1 Revolving Notes, the product of (i) a fraction, the
numerator of which is the number of days elapsed during the related Collection
Period (or, in the case of the Initial Distribution Date, during the related
Collection Period and from and including the Initial Closing Date) and the
denominator of which is 360 and (ii) either (x) LIBOR plus .32% or (y) in the
case of the Initial Distribution Date, 5.7575%, (b) for the Series 1996-RN2
Revolving Notes, the product of (i) a fraction, the numerator of which is the
number of days elapsed during the related Collection Period (or, in the case of
the Initial Distribution Date, during the related Collection Period and from and
including the Initial Closing Date) and the denominator of which is 360 and (ii)
either (x) 3- Month LIBOR plus 0.29% or (y) in the case of the Initial
Distribution Date, 5.75094% and (c) for any other series of Revolving Notes, the
interest rate specified as such in the applicable Officer's Issuance
Certificate.
Revolving Note: Any Asset-Backed Revolving Note executed by the Issuer
by any of its Authorized Officers and authenticated by the Indenture Trustee in
the form attached to an Officer's Issuance Certificate.
Revolving Noteholder: Any Holder of a Revolving Note.
Revolving Period: The period commencing on the Initial Cut-Off Date and
continuing until the earlier of (a) the commencement of an Early Amortization
Period and (b) the occurrence of the Scheduled Revolving Period Termination
Date; provided that, at the option of the Seller, the Revolving Period shall
recommence (subject to termination upon the earlier to occur of an event
described in the preceding clauses (a) and (b)) as described in Section 9.1(j)
of the Trust Sale and Servicing Agreement.
Schedule of Accounts: The list of Accounts that is required to be kept
at the locations specified in the Pooling and Servicing Agreement and the Trust
Sale and Servicing Agreement, as such list may be amended and supplemented from
time to time.
Scheduled Revolving Period Termination Date: February 28,
2001.
Secretary of State: The Secretary of State of the State
of Delaware.
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Securities: The Term Notes, the Revolving Notes and the
Certificates.
Securities Act: The Securities Act of 1933, as amended.
Securityholders: The Noteholders and the
Certificateholders.
Selected Account: An Account designated as such as
described in Section 2.8 or 2.9 of the Trust Sale and Servicing
Agreement.
Seller: The Person executing the Trust Sale and Servicing Agreement as
the Seller, or its successor in interest pursuant to Section 3.3 of the Trust
Sale and Servicing Agreement.
Series Net Revolver Balance: With respect to any series of Revolving
Notes, for any date, the aggregate outstanding principal balance under such
series of Revolving Notes minus any amounts on deposit in the Revolver
Distribution Account on such date for the payment of principal on such series of
Revolving Notes.
Series 1996-A Interest Rate: With respect to any
Distribution Date, as set forth in the related Officer's Issuance
Certificate.
Series 1996-A Note Underwriting Agreement: The Note Underwriting
Agreement, dated as of April 3, 1996, between Salomon Brothers Inc, on its own
behalf and as representative of the several underwriters named therein, and the
Seller with respect to the sale of the Series 1996-A Term Notes.
Series 1996-A Term Notes: The Floating Rate Asset-Backed
Term Notes, Series 1996-A, issued on the Initial Closing Date.
Series 1996-RN1 Basis Swap: The Series 1996-RN1 Basis Swap dated as of
the Initial Closing Date between the Trust and GMAC, as the Basis Swap
Counterparty.
Series 1996-RN1 Revolving Notes: The Floating Rate
Asset-Backed Revolving Notes, Series 1996-RN1, issued on the Initial
Closing Date.
Series 1996-RN2 Basis Swap: The Series 1996-RN2 Basis Swap dated as of
the Initial Closing Date between the Trust and GMAC, as the Basis Swap
Counterparty.
Series 1996-RN2 Revolving Notes: The Floating Rate
Asset-Backed Revolving Notes, Series 1996-RN2, issued on the Initial
Closing Date.
Series Specified Maximum Revolver Balance: (a) For the
Series 1996-RN1 Revolving Notes, $1,000,000,000, (b) for the Series
1996-RN2 Revolving Notes, $500,000,000 and (c) for any other series
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of Revolving Notes, as set forth in the related Officer's Issuance
Certificates.
Servicer: The Person executing the Trust Sale and Servicing Agreement
as the Servicer, or its successor in interest pursuant to Section 7.2 of the
Trust Sale and Servicing Agreement.
Servicer Advance: For any Distribution Date, the amount,
if any, advanced by the Servicer as described in Section 4.5(c) of
the Trust Sale and Servicing Agreement.
Servicer's Accounting: A certificate, completed by and
executed on behalf of the Servicer, in accordance with Section 3.05
of the Pooling and Servicing Agreement.
Servicing Default: An event described as such in Section
8.1 of the Trust Sale and Servicing Agreement.
Servicing Fee Rate: 1%.
Specified Certificate Percentage: 3.05%.
Specified Maximum Revolver Balance: $1,500,000,000.
Specified Support Arrangement: Any letter of credit, security bond,
cash collateral account, spread account, guaranteed rate agreement, maturity or
liquidity facility, tax protection agreement, interest rate swap agreement,
interest rate cap agreement, other derivative product or other arrangement to
provide liquidity or credit support for the benefit of holders of one or more
series or classes of Securities (other than the Reserve Fund), whether or not
such arrangement is an asset of the Trust, designated as such, including the
Basis Swaps.
Specified Trust Termination Date: April 1, 2010.
Standard & Poor's: Standard & Poor's Ratings Services.
State: Any one of the fifty states of the United States
of America or the District of Columbia.
Stated Final Payment Date: With respect to any series of Notes, the
date set forth as such in the related Officer's Issuance Certificate and with
respect to the Certificates, the Distribution Date in April 2003. The Stated
Final Payment Date for the Series 1996-A Term Notes shall be the Distribution
Date in March 2001, for the Series 1996-RN1 Revolving Notes shall be the
Distribution Date in April 2003 and for the Series 1996-RN2 Revolving Notes
shall be the Distribution Date in April 2003.
Supplemental Principal Allocation: With respect to any Distribution
Date related to the Wind Down Period or an Early Amortization Period, an amount
(not less than zero) equal to the lesser of (a) the excess, if any, of (i) the
product of (A) the percentage equivalent of a fraction (which shall never exceed
100%),
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the numerator of which is the Daily Trust Balance and the denominator of which
is the principal balance of all Receivables (including Receivables included in
the Retained Property) in the Accounts included in the Pool of Accounts, in each
case, as of the termination of the Revolving Period, and (B) the aggregate
amount of Principal Collections on all Receivables (including Receivables
included in the Retained Property) in the Accounts in the Pool of Accounts for
each day during the related Collection Period over (ii) the aggregate amount of
Trust Principal Collections for each day during the related Collection Period
(provided, that no amount shall be included pursuant to clause (i)(B) or (ii)
for any day in such Collection Period that occurred during the Revolving Period)
and (b) an amount equal to (i) the Daily Trust Balance as of the termination of
the Revolving Period plus (ii) the Cash Collateral Amount on the last day of the
Revolving Period minus (iii) the Available Trust Principal for each Distribution
Date from and after the final Distribution Date for the Revolving Period through
but excluding such current Distribution Date minus (iv) the amount added to
unreimbursed Trust Charge-Offs on each Distribution Date from and after the
final Distribution Date for the Revolving Period through and including such
current Distribution Date minus (v) Available Trust Principal for such current
Distribution Date (assuming the Supplemental Principal Allocation for such
Distribution Date was zero).
Targeted Final Payment Date: With respect to any series of Notes, the
date, if any, set forth as such in the related Officer's Issuance Certificate.
The Targeted Final Payment Date for the Series 1996-A Term Notes shall be the
Distribution Date in March 1999. The Targeted Final Payment Date for the Series
1996-RN1 Revolving Notes initially shall be the Distribution Date in July 1997
and shall be subject to extension as described in the related Officer's Issuance
Certificate. The Targeted Final Payment Date for the Series 1996-RN2 Revolving
Notes initially shall be the Distribution Date in July 1997 and shall be subject
to extension as described in the related Officer's Issuance Certificate.
Temporary Notes: The Notes specified in Section 2.3 of
the Indenture.
Term Note: Any Asset-Backed Term Note executed by the Issuer by any of
Authorized Officer's and authenticated by the Indenture Trustee in the form
attached to an Officer's Issuance Certificate.
Term Note Basis Swap: The Term Note Basis Swap dated as
of the Initial Closing Date between the Trust and GMAC, as the Basis
Swap Counterparty.
Term Noteholder: Any Holder of a Term Note.
3-Month LIBOR: With respect to each Distribution Date, for any series
of Securities, the rate for deposits in U.S. Dollars for a period of three
months which appears on the Dow Jones Telerate Service Page 3750 as of 11:00
a.m., London time, (x) for the Series
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1996-RN2 Revolving Notes, on the day that is two LIBOR Business Days prior to
the first day of the Collection Period in which the most recent 1996-RN2
Quarterly Distribution Date occurred or (y) for any other series of Notes, the
date specified as such in the related Officer's Issuance Certificate (the
"3-Month LIBOR Reference Date"). If such rate does not appear on such page (or
such other page as may replace that page on that service, or if such service is
no longer offered, such other service for displaying LIBOR or comparable rates
as may be selected by the Indenture Trustee after consultation with the Seller),
the rate shall be the Reference Bank Rate. The "Reference Bank Rate" shall be
determined on the basis of the rates at which deposits in U.S. Dollars are
offered by the reference banks (which shall be four major banks that are engaged
in transactions in the London interbank market, selected by the Indenture
Trustee after consultation with the Seller) as of 11:00 a.m., London time, on
the 3-Month LIBOR Reference Date to prime banks in the London interbank market
for a period of three months in an amount approximately equal to the aggregate
principal amount of the Series 1996-RN2 Revolving Notes or such other series of
Notes, as applicable, then outstanding. The Indenture Trustee shall request the
principal London office of each of the reference banks to provide a quotation of
its rate. If at least two such quotations are provided, the rate shall be the
arithmetic mean of the quotations, rounded upwards to the nearest one-sixteenth
of one percent. If on any such date fewer than two quotations are provided as
requested, the rate shall be the arithmetic mean, rounded upwards to the nearest
one-sixteenth of one percent, of the rates quoted by one or more major banks in
New York City, selected by the Indenture Trustee after consultation with the
Seller, as of 11:00 a.m., New York City time, on such date to leading European
banks for United States dollar deposits for a period of three months in amounts
approximately equal to the aggregate principal amount of the Series 1996-RN2
Revolving Notes or such other series of Notes, as applicable, then outstanding.
If no such quotations can be obtained, the rate shall be 3-Month LIBOR for the
prior Distribution Date.
Treasury Regulations: The regulations, including proposed or temporary
regulations, promulgated under the Code. References herein to specific
provisions of proposed or temporary regulations shall include analogous
provisions of final Treasury Regulations or other successor Treasury
Regulations.
Trust: Superior Wholesale Inventory Financing Trust III,
a Delaware business trust created pursuant to the Trust Agreement.
Trust Agreement: The Trust Agreement, dated as of the Initial Closing
Date, between the Seller and the Owner Trustee, as amended and supplemented from
time to time, including all Certificate Issuance Orders.
Trust Charge-Offs: With respect to any Distribution Date,
the amount of the Trust Defaulted Amount for such Distribution Date
that is not covered through the application of Trust Interest
Collections and funds in the Reserve Fund or otherwise. As of any
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date, unreimbursed Trust Charge-Offs shall equal aggregate Trust Charge-Offs for
all prior Distribution Dates unless and to the extent such amounts are treated
as Additional Trust Principal pursuant to Section 4.5(c) of the Trust Sale and
Servicing Agreement; provided, however, that any Trust Charge-Offs allocated to
any Notes as described in Section 4.5(f) of the Trust Sale and Servicing
Agreement at the time of the final principal payment on such Notes shall reduce
unreimbursed Trust Charge-Offs.
Trust Defaulted Amount: With respect to any Distribution
Date, an amount (not less than zero) equal to the principal amount
of all Defaulted Receivables.
Trust Estate: All money, instruments, rights and other property that
are subject or intended to be subject to the lien and security interest of the
Indenture for the benefit of the Noteholders and (only to the extent expressly
provided in the Indenture) the Certificateholders (including, without
limitation, the Collateral described in the Granting Clause of the Indenture),
including the proceeds thereof, the Reserve Fund and the Reserve Fund Property
pledged to the Indenture Trustee pursuant to the Trust Sale and Servicing
Agreement and any other property and interests that are pledged to the Indenture
Trustee for the benefit of Securityholders pursuant to a supplement to the Trust
Sale and Servicing Agreement or otherwise.
Trust Indenture Act or TIA: The Trust Indenture Act of
1939, as amended.
Trust Interest Collections: With respect to any Distribution Date
(subject to adjustment as described in Section 4.5(c)(v) of the Trust Sale and
Servicing Agreement), an amount equal to the sum of (a) the product of (i) the
Trust Percentage and (ii) Interest Collections for the related Collection Period
and (b) Recoveries.
Trust Percentage: With respect to any Distribution Date, the percentage
equivalent of a fraction (which shall never exceed 100%), (a) the numerator of
which is the average Daily Trust Balance during the related Collection Period
and (b) the denominator of which is the average daily aggregate principal
balance of all Receivables (including Receivables included in the Retained
Property) in the Accounts in the Pool of Accounts during the related Collection
Period.
Trust Principal Collections: With respect to any date,
the amount of Principal Collections on Receivables held by the
Trust.
Trust Sale and Servicing Agreement: The Trust Sale and Servicing
Agreement, dated as of the Initial Closing Date, between the Seller, the
Servicer and the Issuer, as amended and supplemented from time to time.
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Trust Termination Date: The date on which the first of the following
occurs: (a) 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 related Distribution Accounts) and the aggregate
Outstanding Amount of the Revolving Notes is zero, if the Seller elects to
terminate the Trust at such time, (b) at the time provided in Section 7.2 of the
Trust Agreement and (c) the Specified Trust Termination Date.
UCC: The Uniform Commercial Code as in effect in the
States of Delaware, Michigan, or New York, and as may be amended
from time to time.
Undertaking Letter: Any letter referred to in Sections
3.4 and 9.12 of the Trust Agreement or Section 2.15 of the
Indenture.
Unregistered Note: Any Note that has not been registered
under the Securities Act and is subject to the provisions of Section
2.15 of the Indenture.
Used Vehicles: Under GMAC's current practices and policies, Auction
Vehicles and vehicles which have been previously titled; provided, however, that
vehicles that are titled solely for purposes of state laws requiring
demonstration vehicles to be titled shall not be considered Used Vehicles.
Vehicle: An automobile or light truck.
Vehicle Collateral Security: With respect to an Account and the
Receivables arising under such Account, the security interest in the Vehicles of
the related Dealer granted to secure the obligations of such Dealer in
connection therewith and any proceeds therefrom.
Voting Interests: As of any date, the aggregate outstanding Certificate
Balance of all Certificates; provided, however, that Certificates owned by GMAC,
the Trust or any Affiliate of GMAC or the Trust (other than the Seller) shall be
disregarded and deemed not to be outstanding, except that, in determining
whether the Owner Trustee shall be protected in relying upon any such request,
demand, authorization, direction, notice, consent or waiver, only Certificates
that the Owner Trustee knows to be so owned shall be so disregarded.
Certificates so owned that have been pledged in good faith may be regarded as
outstanding if the pledgee establishes to the satisfaction of the Owner Trustee
the pledgor's right so to act with respect to such Certificates and that the
pledgee is not GMAC or the Trust or any Affiliate of GMAC or the Trust (other
than the Seller).
WARCO: Wholesale Auto Receivables Corporation, a Delaware
corporation and a wholly-owned subsidiary of GMAC.
Warranty Payment: The payment described in Section 2.5(a)
of the Trust Sale and Servicing Agreement.
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Warranty Receivable: A Receivable subject to repurchase
as and to the extent described in Section 2.5 of the Trust Sale and
Servicing Agreement.
Wind Down Period: The period commencing on the day immediately after
the Scheduled Revolving Period Termination Date and continuing until the earlier
of (a) the commencement of an Early Amortization Period and (b) the date on
which all of the Securities have been paid in full. The first Distribution Date
for the Wind Down Period shall be the Distribution Date related to the first
Collection Period included in the Wind Down Period.
WISP: The Wholesale Instalment Sales Program of GMAC pursuant to which
eligible General Motors-franchised dealers may remit 90% of the loan upon the
retail sale or lease of the related vehicle, with payment of the remaining 10%
balance due on the fifth day of the second month following the retail sale or
lease of such related vehicle.
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EXHIBIT 99.3
TRUST AGREEMENT
BETWEEN
WHOLESALE AUTO RECEIVABLES CORPORATION
SELLER
AND
THE CHASE MANHATTAN BANK (USA)
OWNER TRUSTEE
DATED AS OF APRIL 11, 1996
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TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS AND INCORPORATION BY REFERENCE
1.1 Definitions....................................1
ARTICLE II
ORGANIZATION
2.1 Name...........................................1
2.2 Office.........................................1
2.3 Purposes and Powers............................1
2.4 Appointment of Owner Trustee...................2
2.5 Initial Capital Contribution
of Owner Trust Estate..........................2
2.6 Declaration of Trust...........................2
2.7 Liability of the Seller and the
Certificate Owners.............................3
2.8 Title to Trust Property........................4
2.9 Situs of Trust.................................4
2.10 Representations and Warranties of the Seller...4
2.11 Tax Treatment..................................5
ARTICLE III
THE CERTIFICATES
3.1 [Intentionally Omitted]........................5
3.2 Form of the Certificates.......................5
3.3 Execution, Authentication and Delivery.........6
3.4 Registration; Registration of Transfer and Exchange
of Certificates................................6
3.5 Mutilated, Destroyed, Lost or Stolen
Certificates...................................8
3.6 Persons Deemed Certificateholders..............8
3.7 Access to List of Certificateholders' Names and
Addresses......................................9
3.8 Maintenance of Corporate Trust Office..........9
3.9 Appointment of Paying Agent....................9
3.10 Disposition by Seller.........................10
3.11 Book-Entry Certificates.......................10
3.12 Notices to Clearing Agency....................11
3.13 Termination of Book-Entry Registration........11
3.14 Seller as Certificateholder...................11
ARTICLE IV
ACTIONS BY OWNER TRUSTEE
4.1 Prior Notice to Certificateholders with
Respect to Certain Matters....................12
4.2 Action by Certificateholders with Respect
to Certain Matters............................12
4.3 Action by Certificateholders with
Respect to Bankruptcy.........................13
4.4 Restrictions on Certificateholders' Power.....13
4.5 Majority Control..............................13
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ARTICLE V
APPLICATION OF TRUST FUNDS; CERTAIN DUTIES
5.1 Establishment of Certificate
Distribution Account..........................13
5.2 Application of Trust Funds....................14
5.3 Method of Payment.............................15
5.4 Accounting and Reports to the Certificateholders,
the Internal Revenue Service and Others.......15
5.5 Signature on Returns; Tax Matters Partner.....15
ARTICLE VI
THE OWNER TRUSTEE
6.1 Duties of Owner Trustee.......................15
6.2 Rights of Owner Trustee.......................16
6.3 Acceptance of Trusts and Duties...............17
6.4 Action upon Instruction by Certificateholders.18
6.5 Furnishing of Documents.......................19
6.6 Representations and Warranties of Owner
Trustee.......................................19
6.7 Reliance; Advice of Counsel...................20
6.8 Owner Trustee May Own Certificates and Notes..21
6.9 Compensation and Indemnity....................21
6.10 Replacement of Owner Trustee..................21
6.11 Merger or Consolidation of Owner Trustee......22
6.12 Appointment of Co-Trustee or Separate Trustee.22
6.13 Eligibility Requirements for Owner Trustee....24
ARTICLE VII
TERMINATION OF TRUST AGREEMENT
7.1 Termination of Trust Agreement................24
7.2 Termination upon Bankruptcy of the Seller.....25
ARTICLE VIII
AMENDMENTS
8.1 Amendments Without Consent of Securityholders.26
8.2 Amendments With Consent of Certificateholders
and Noteholders...............................26
8.3 Form of Amendments............................27
ARTICLE IX
MISCELLANEOUS
9.1 No Legal Title to Owner Trust Estate..........28
9.2 Limitations on Rights of Others...............28
9.3 Derivative Actions............................28
9.4 Notices.......................................28
9.5 Severability of Provisions....................29
9.6 Counterparts..................................29
9.7 Successors and Assigns........................29
9.8 No Petition Covenants.........................29
9.9 No Recourse...................................29
9.10 Headings......................................30
9.11 Governing Law.................................30
9.12 Certificate Transfer Restrictions.............30
9.13 Indemnification by and Reimbursement
of the Servicer...............................31
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EXHIBITS
Exhibit A Form of Certificate
Exhibit B Form of Certificate Depository Agreement
Exhibit C Form of Certificate of Trust
Exhibit D Form of Undertaking Letter
Exhibit E Form of Investor Letter
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THIS TRUST AGREEMENT, dated as of April 11, 1996, 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 III" 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, hold and terminate liquidity, credit and
other enhancement arrangements, including each Basis Swap and other
Specified Support Arrangement from time to time, 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.
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
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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 Certificate 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 Certificateholder 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
(other than any withholding taxes, if and to the extent that (x) such
withholding taxes should have been (but in fact were not) withheld and paid over
by the Trust to the relevant taxing authority, (y) such taxing authority asserts
a claim for such withholding taxes against the Trust or the Seller, and (z) the
assets of the Trust are insufficient to satisfy such claim at the time a final
determination is made that such withholding taxes are due and payable), 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 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
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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.
(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
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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 Certificateholders 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, with the assets of the partnership being
the assets held by the Trust, 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.
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.
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(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 evidenced 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 $79,000,000 to be executed on
behalf of the Trust, authenticated and delivered to or upon the written order of
the Seller, signed by its chairman of the board, its president or any vice
president, without further corporate action by the Seller, in authorized
denominations. Such Certificates shall be designated as Floating Rate
Asset-Backed Certificates, Class A, and the Certificate Rate for such
Certificates shall equal, with respect to any Distribution Date, the product of
(i) a fraction, the numerator of which is the number of days elapsed from and
including the prior Distribution Date (or, in the case of the Initial
Distribution Date, from and including the Initial Closing Date) to but excluding
such Distribution Date and the denominator of which is 360 and (ii) either (x)
LIBOR plus 0.33% or (y) in the case of the Initial Distribution Date, 5.7675%.
(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
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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.
(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.
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(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 canceled 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 canceled and retained or
destroyed, as the case may be.
(e) No service charge shall be made for any registration 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 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
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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.
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
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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 Certificateholders in trust
for the benefit of the Certificateholders 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
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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;
(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
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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 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;
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(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);
(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.
SECTION 4.4 Restrictions on Certificateholders' Power.
The Certificateholders shall not direct the Owner Trustee to take
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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 Certificateholders, shall
establish and maintain in the name of the Owner Trustee an Eligible Deposit
Account known as the Superior Wholesale Inventory Financing Trust III
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.
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
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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.
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
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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.
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
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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 furnished 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.
(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
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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):
(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 Receivable 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;
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(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;
(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 Certificateholders.
(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
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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 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 performance 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
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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.
(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,
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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.
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.
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(b) If the Owner Trustee resigns or is removed or if a vacancy exists
in the office of Owner Trustee for any reason 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
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Administrator and the Owner Trustee acting jointly shall have 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, obligations, 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), neither 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 Certificateholders. 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.
(e) Upon the winding up of the Trust and its termination, the Owner
Trustee shall cause the Certificate of Trust to be canceled by filing a
certificate of cancellation with the
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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 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
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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 Certificateholders 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
Certificateholders 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: P.D. Bull, 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 enforceable to the fullest extent permitted, and if not so
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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
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
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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 Undertaking Letter in the form
set forth in Exhibit D. The Certificates are also subject to the minimum
denomination specified in Section 3.4(a).
(b) The Certificates will not be registered under the Securities Act or
the securities laws of any other jurisdiction. Consequently, the Certificates
are not transferable other than pursuant to an exemption from the registration
requirements of the Securities Act and satisfaction of certain other provisions
specified herein. No sale, pledge or other transfer of the Certificates (or
interest therein) may be made by any Person unless either (i) such sale, pledge
or other transfer is made to the Seller, (ii) such sale, pledge or other
transfer is made to an institutional investor that is an "accredited investor"
meeting the requirements of Rule 501(a)(1), (2), (3) or (7) of Regulation D
under the Securities Act (an "Institutional Accredited Investor") that executes
a certificate, substantially in the form attached hereto as Exhibit E, to the
effect that it is an Institutional Accredited Investor acting for its own
account (and not for the account of others) or as a fiduciary or agent for
others (which others also are Institutional Accredited Investors unless the
holder is a bank acting in its fiduciary capacity), (iii) so long as the
Certificates are eligible for resale pursuant to Rule 144A under the Securities
Act, such sale, pledge or other transfer is made to a person whom the seller
reasonably believes after due inquiry is a "qualified institutional buyers"
within the meaning of Rule 144A under the Securities Act (a "Qualified
Institutional Buyer") acting for its own account (and not for the account of
others) or as a fiduciary or agent for others (which others also are Qualified
Institutional Buyers) to whom notice is given that the sale, pledge or transfer
is being made in reliance on Rule 144A under the Securities Act, or (iv) such
sale, pledge or other transfer is
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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 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.
* * * * *
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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
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<PAGE>
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 ITS OWN
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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 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 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 SELLER DETERMINES THAT THE BENEFIT PLAN ACQUIRING THIS CERTIFICATE HAS
AVAILABLE TO IT AN EXEMPTION FROM THE PROHIBITED TRANSACTION RULES UNDER
SECTION 406(a) OF ERISA AND SECTION 4975 OF THE CODE AND SUCH EXEMPTION IS
APPLICABLE TO THE PURCHASE AND HOLDING OF THIS CERTIFICATE. UNLESS SUCH AN
EXEMPTION IS AVAILABLE, BY ACCEPTING AND HOLDING THIS CERTIFICATE, THE
HOLDER HEREOF
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AND THE CERTIFICATE OWNER SHALL EACH BE DEEMED TO HAVE REPRESENTED AND
WARRANTED THAT IT IS NOT A BENEFIT PLAN.
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, WITH THE ASSETS OF THE PARTNERSHIP BEING THE ASSETS HELD
BY THE TRUST, 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
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.
[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 III
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.)
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THIS CERTIFIES THAT __________ is the registered owner of a
nonassessable, fully-paid, fractional undivided interest in Superior Wholesale
Inventory Financing Trust III (the "Trust") formed by Wholesale Auto Receivables
Corporation, a Delaware corporation.
The Trust was created pursuant to a Trust Agreement, dated as of April
11, 1996 (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 May 15, 1996 (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 April 2003 (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.
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
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<PAGE>
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, with the assets of the partnership being the assets held by the
Trust, 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 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
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<PAGE>
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.
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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: April 11, 1996
SUPERIOR WHOLESALE INVENTORY
FINANCING TRUST III
By: THE CHASE MANHATTAN BANK
(USA), not in its
individual capacity but
solely as Owner Trustee
By:
Name:
Title:
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),
not in its individual capacity
but solely as Owner Trustee
By:
Name:
Title:
OR
THE CHASE MANHATTAN BANK (USA), not in its individual capacity but solely as
Owner Trustee by The Chase Manhattan Bank, N.A., as Authenticating Agent
By:
Name:
Title:
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<PAGE>
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 0.33% (or, in the case of the
Initial Distribution Date, 5.7675%).
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 Letter required by Section 9.12(a) of
the Trust Agreement, and thereupon one or more new Certificates of the same
class of
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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.
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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.
If such sale, pledge or other transfer is being made pursuant to (a) above, the
undersigned acknowledges that such institutional investor
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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.
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<PAGE>
EXHIBIT B
[FORM OF CERTIFICATE DEPOSITORY AGREEMENT]
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<PAGE>
EXHIBIT C
CERTIFICATE OF TRUST OF
SUPERIOR WHOLESALE INVENTORY FINANCING TRUST III
THIS Certificate of Trust of Superior Wholesale Inventory Financing
Trust III (the "Trust"), dated as of April ___, 1996, 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. Section 3801 et seq.).
1. Name. The name of the business trust formed hereby
is Superior Wholesale Inventory Financing Trust III.
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
April 11, 1996.
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 April
11, 1996
By:
Name:
Title:
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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 III, 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 acknowledgments,
representations and warranties, and agrees to notify you promptly in writing if
any of our representations or warranties herein cease to be accurate and
complete.
Name of Certificate Owner
By:
Name:
Title:
Date:
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EXHIBIT E
INVESTOR LETTER
Wholesale Auto Receivables Corporation
Corporation Trust Center
1209 Orange Street
Wilmington, Delaware 19801
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 III,
issued under a trust agreement, dated as of April 11, 1996 (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
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exempt from the registration requirements of the Securities Act, in
which case (A) the Owner Trustee shall require that both the
prospective transferor and the prospective transferee certify to the
Owner Trustee and the Seller in writing the facts surrounding such
transfer, which certification shall be in form and substance
satisfactory to the Owner Trustee and the Seller, and (B) the Owner
Trustee shall require a written opinion of counsel (which will not be
at the expense of the Seller or the Owner Trustee) satisfactory to the
Seller and the Owner Trustee to the effect that such transfer will not
violate the Securities Act, in each case in accordance with any
applicable securities laws of any state of the United States. We will
notify any purchaser of the Certificate from us of the above resale
restrictions, if then applicable. We further understand that in
connection with any transfer of the Certificate by us that the Seller
and the Owner Trustee may request, and if so requested we will furnish,
such certificates and other information as they may reasonably require
to confirm that any such transfer complies with the foregoing
restrictions. We understand that no sale, pledge or other transfer may
be made to any one person for Certificates with a face amount of less
than $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
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<PAGE>
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.
|_| (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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EXHIBIT 99.4
- -----------------------------------------------------------
ADMINISTRATION AGREEMENT
AMONG
SUPERIOR WHOLESALE INVENTORY FINANCING TRUST III
ISSUER
AND
GENERAL MOTORS ACCEPTANCE CORPORATION
ADMINISTRATOR
AND
THE BANK OF NEW YORK
INDENTURE TRUSTEE
DATED AS OF APRIL 11, 1996
- -----------------------------------------------------------
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<PAGE>
THIS ADMINISTRATION AGREEMENT is made as of April 11, 1996, among
SUPERIOR WHOLESALE INVENTORY FINANCING TRUST III, a Delaware business trust (the
"Issuer"), GENERAL MOTORS ACCEPTANCE CORPORATION, a corporation incorporated
under the New York Banking Law relating to investment companies, as
administrator (the "Administrator"), and THE BANK OF NEW YORK, a New York
banking corporation, not in its individual capacity but solely as Indenture
Trustee (the "Indenture Trustee").
WITNESSETH:
WHEREAS, the Issuer is issuing Term Notes and Revolving Notes on the
date hereof and may in the future issue additional Term Notes and Revolving
Notes, in each case pursuant to the Indenture between the Issuer and the
Indenture Trustee;
WHEREAS, the Issuer is issuing on the date hereof Certificates, and may
in the future issue additional Certificates, in each case pursuant to the Trust
Agreement;
WHEREAS, the Issuer has entered into (or assumed) certain agreements in
connection with the issuance of the Notes and the Certificates, including (i)
the Trust Sale and Servicing Agreement, (ii) the Depository Agreements and (iii)
the Indenture;
WHEREAS, pursuant to the Basic Documents, the Issuer and The Chase
Manhattan Bank (USA), as Owner Trustee, are required to perform certain duties
in connection with (i) the Notes, (ii) the Collateral and (iii) the
Certificates;
WHEREAS, the Issuer and the Owner Trustee desire to have the
Administrator perform certain of the duties of the Issuer and the Owner Trustee
referred to in the preceding clause, and to provide such additional services
consistent with the terms of this Agreement and the Basic Documents as the
Issuer and the Owner Trustee may from time to time request; and
WHEREAS, the Administrator has the capacity to provide the services
required hereby and is willing to perform such services for the Issuer and the
Owner Trustee on the terms set forth herein.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants herein contained, the parties agree as follows:
1. Certain Definitions. Certain capitalized terms used in this
Agreement are defined in and shall have the respective meanings assigned them in
Appendix A to the Trust Sale and Servicing Agreement dated as of April 11, 1996
among the Issuer, the Seller and General Motors Acceptance Corporation, as
Servicer (the "Trust Sale and Servicing Agreement"). All references herein to
"the Agreement" or "this Agreement" are to this Administration Agreement, as it
may be amended, supplemented or modified from time to time, and all references
herein to Sections are to Sections of this Agreement unless otherwise specified.
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2. Duties of the Administrator.
(a) Duties with Respect to the Depository Agreements and
the Indenture.
(i) The Administrator agrees to perform all its duties as Administrator
and the duties of the Issuer under the Indenture and the Depository
Agreements. In addition, the Administrator shall consult with the Owner
Trustee regarding the duties of the Issuer under the Indenture and the
Depository Agreements. The Administrator shall monitor the performance of
the Issuer and shall advise the Owner Trustee when action is necessary to
comply with the Issuer's duties under the Indenture and the Depository
Agreements. The Administrator shall prepare for execution by the Issuer or
shall cause the preparation by other appropriate persons of all such
documents, reports, filings, instruments, certificates, notices and
opinions as it shall be the duty of the Issuer to prepare, file or deliver
pursuant to the Indenture and the Depository Agreements. In furtherance of
the foregoing, the Administrator shall take all appropriate action that it
is the duty of the Issuer to take pursuant to the Indenture including,
without limitation, such of the foregoing as are required with respect to
the following matters under the Indenture (references are to sections of
the Indenture):
(A) the preparation of (or obtaining of) the documents and
instruments required for issuance of the Notes (if not prepared or
obtained by the Issuer), including the Officer's Issuance Certificate
and Opinion of Counsel to be delivered in connection with the issuance
of each series of Notes, the coordination with the holders of the
Revolving Notes of all borrowings under the Revolving Notes and all
matters relating to such borrowings, and the preparation of (or
obtaining of) the documents and instruments required for authentication
of the Notes and delivery of the same to the Indenture Trustee (Section
2.1);
(B) the duty to cause the Note Register to be kept and to give the
Indenture Trustee notice of any appointment of a new Note Registrar and
the location, or change in location, of the Note Register (Section
2.4);
(C) the notification of the Noteholders of each series of the
final principal payment on their Notes (Section 2.7(c));
(D) the preparation, obtaining or filing of the instruments,
opinions and certificates and other documents required for the release
of Collateral (Section 2.9);
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(E) the preparation of Definitive Term Notes and
arranging the delivery thereof (Section 2.12);
(F) the maintenance of an office in the Borough of Manhattan, the
City of New York, for registration of transfer or exchange of Notes
(Section 3.2);
(G) the duty to cause newly appointed Paying Agents, if any, to
deliver to the Indenture Trustee the instrument specified in the
Indenture regarding funds held in trust (Section 3.3);
(H) the direction to the Indenture Trustee to deposit monies with
Paying Agents, if any, other than the Indenture Trustee (Section 3.3);
(I) the obtaining and preservation of the Issuer's qualification
to do business in each jurisdiction in which such qualification is or
shall be necessary to protect the validity and enforceability of the
Indenture, the Notes, the Collateral and each other instrument and
agreement included in the Trust Estate (Section 3.4);
(J) the preparation of all supplements, amendments, financing
statements, continuation statements, assignments, certificates,
instruments of further assurance and other instruments, in accordance
with Section 3.5 of the Indenture, necessary to protect the Trust
Estate (Section 3.5);
(K) the delivery of the Opinion of Counsel on the Initial Closing
Date, in accordance with Section 3.6 of the Indenture, as to the Trust
Estate, and the annual delivery of the Officers' Certificate, in
accordance with Section 3.9 of the Indenture, as to compliance with the
Indenture (Sections 3.6 and 3.9);
(L) the identification to the Indenture Trustee in an Officers'
Certificate of a Person with whom the Issuer has contracted to perform
its duties under the Indenture (Section 3.7(b));
(M) the notification of the Indenture Trustee and the Rating
Agencies of a Servicing Default under the Trust Sale and Servicing
Agreement and, if such Servicing Default arises from the failure of the
Servicer to perform any of its duties under the Trust Sale and
Servicing Agreement or the Pooling and Servicing Agreement, the taking
of all reasonable steps available to remedy such failure (Section
3.7(d));
(N) the preparation and obtaining of documents and instruments
required for the release of the Issuer from its obligations under the
Indenture (Section 3.11(b));
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(O) the delivery of notice to the Indenture Trustee and the Rating
Agencies of each Event of Default under the Indenture, each Servicing
Default, any Insolvency Event with respect to the Seller, each default
on the part of the Seller or the Servicer of their respective
obligations under the Trust Sale and Servicing Agreement and each
default on the part of GMAC or the Servicer of their respective
obligations under the Pooling and Servicing Agreement (Section 3.19);
(P) the monitoring of the Issuer's obligations as to the
satisfaction and discharge of the Indenture, the preparation of an
Officers' Certificate, the obtaining of the Opinion of Counsel and, if
necessary, an Independent Certificate relating thereto (Section 4.1);
(Q) the compliance with any written directive of the Indenture
Trustee with respect to the sale of the Trust Estate in a commercially
reasonable manner if an Event of Default shall have occurred and be
continuing (Section 5.4(a));
(R) the preparation of any written instruments required to confirm
more fully the authority of any co-trustee or separate trustee and any
written instruments necessary in connection with the resignation or
removal of any co-trustee or separate trustee (Sections 6.8 and 6.10);
(S) the furnishing of the Indenture Trustee with the names and
addresses of Noteholders during any period when the Indenture Trustee
is not the Note Registrar (Section 7.1);
(T) the preparation and, after execution by the Issuer, the filing
with the Commission, any applicable state agencies and the Indenture
Trustee of documents required to be filed on a periodic basis with, and
summaries thereof as may be required by rules and regulations
prescribed by, the Commission and any applicable state agencies and the
transmission of such summaries, as necessary, to the Noteholders
(Section 7.3);
(U) the notification of the Indenture Trustee of the listing of
the Notes of any series on any stock exchange, if and when such Notes
are so listed (Section 7.4(a));
(V) the opening of one or more accounts in the Issuer's name, the
preparation of Issuer Orders, Officer's Certificates and Opinions of
Counsel and all other actions necessary with respect to investment and
reinvestment of funds in the Designated Accounts (Sections 8.2 and
8.3);
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(W) the preparation of an Issuer Request and Officer's Certificate
and the obtaining of an Opinion of Counsel and Independent
Certificates, if necessary, for the release of the Trust Estate
(Sections 8.4 and 8.5);
(X) the preparation of Issuer Orders and the obtaining of Opinions
of Counsel with respect to the execution of supplemental indentures and
the mailing to the Noteholders of notices with respect to such
supplemental indentures (Sections 9.1, 9.2 and 9.3);
(Y) the preparation and execution of new Notes
conforming to any supplemental indenture (Section 9.6);
(Z) the notification of Noteholders and the Rating Agencies of the
redemption of any Notes subject to redemption or the duty to cause the
Indenture Trustee to provide such notification (Sections 10.1 and
10.2);
(AA) the preparation of all Officer's Certificates, Opinions of
Counsel and Independent Certificates, if necessary, with respect to any
requests by the Issuer to the Indenture Trustee to take any action
under the
Indenture (Section 11.1(a));
(AB) the preparation and delivery of Officers' Certificates and
the obtaining of Independent Certificates, if necessary, for the
release of property from the lien of the Indenture (Section 11.1(b));
(AC) the notification of the Rating Agencies, upon the failure of
the Indenture Trustee to give such notification, of the information
required pursuant to Section 11.4 (Section 11.4);
(AD) the preparation and delivery to Noteholders and the Indenture
Trustee of any agreements with respect to alternate payment and notice
provisions (Section 11.6); and
(AE) the recording of the Indenture, if applicable, and the
obtaining of an Opinion of Counsel as required pursuant to Section
11.15 (Section 11.15).
(ii) The Administrator will perform those payment and indemnity
obligations of the Servicer under Section 3.02 of the Pooling and Servicing
Agreement and Section 7.1 of the Trust Sale and Servicing Agreement in the
event that the Servicer fails to perform such obligations.
(b) Additional Duties.
(i) In addition to the duties of the Administrator set forth above, the
Administrator shall perform such calculations and shall prepare for
execution by the Issuer or the Owner
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Trustee or shall cause the preparation by other appropriate persons of all
such documents, reports, filings, instruments, certificates, notices and
opinions as it shall be the duty of the Issuer or the Owner Trustee to
prepare, file or deliver pursuant to the Basic Documents, and at the
request of the Owner Trustee shall take all appropriate action that it is
the duty of the Issuer or the Owner Trustee to take pursuant to the Basic
Documents. Subject to Section 7 of this Agreement, and in accordance with
the directions of the Owner Trustee, the Administrator shall administer,
perform or supervise the performance of such other activities in connection
with the Collateral (including the Basic Documents) as are not covered by
any of the foregoing provisions and as are expressly requested by the Owner
Trustee and are reasonably within the capability of the Administrator.
(ii) The Administrator shall perform the duties of the Administrator
specified in Section 6.10 of the Trust Agreement required to be performed
in connection with the resignation or removal of the Owner Trustee, and any
other duties expressly required to be performed by the Administrator under
the Trust Agreement.
(iii) In carrying out the foregoing duties or any of its other
obligations under this Agreement, the Administrator may enter into
transactions with or otherwise deal with any of its Affiliates; provided,
however, that the terms of any such transactions or dealings shall be in
accordance with any directions received from the Issuer and shall be, in
the Administrator's opinion, no less favorable to the Issuer than would be
available from Persons that are not Affiliates of the Administrator.
(c) Non-Ministerial Matters.
(i) With respect to matters that in the reasonable judgment of the
Administrator are non-ministerial, the Administrator shall not take any
action unless, within a reasonable time before the taking of such action,
the Administrator shall have notified the Owner Trustee of the proposed
action and the Owner Trustee shall not have withheld consent or provided an
alternative direction. For the purpose of the preceding sentence,
"non-ministerial matters" shall include, without limitation:
(A) the amendment of or any supplement to the Indenture (other
than pursuant to or in connection with an Officer's Issuance
Certificate);
(B) the initiation of any claim or lawsuit by the Issuer and the
compromise of any action, claim or lawsuit brought by or against the
Issuer;
(C) the amendment, change or modification of any of
the Basic Documents;
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(D) the appointment of successor Note Registrars, successor Paying
Agents and successor Indenture Trustees pursuant to the Indenture or
the appointment of successor Administrators or successor Servicers, or
the consent to the assignment by the Note Registrar, Paying Agent or
Indenture Trustee of its obligations under the Indenture; and
(E) the removal of the Indenture Trustee.
(ii) Notwithstanding anything to the contrary in this Agreement, the
Administrator shall not be obligated to, and shall not, (x) make any
payments to the Noteholders under the Basic Documents, (y) except as
provided in Section 2(a)(i)(Q) hereof, sell the Trust Estate pursuant to
Section 5.4 of the Indenture or (z) take any other action that the Issuer
directs the Administrator not to take on its behalf.
3. Successor Servicer and Administrator. The Issuer shall undertake, as
promptly as possible after the giving of notice of termination to the Servicer
of the Servicer's rights and powers pursuant to Section 8.2 of the Trust Sale
and Servicing Agreement, to enforce the provisions of Sections 8.2, 8.3 and 8.4
of the Trust Sale and Servicing Agreement with respect to the appointment of a
successor Servicer. Such successor Servicer shall, upon compliance with Sections
10(e)(ii) and (iii), become the successor Administrator hereunder.
4. Records. The Administrator shall maintain appropriate books of
account and records relating to services performed hereunder, which books of
account and records shall be accessible for inspection by the Issuer and the
Seller at any time during normal business hours.
5. Compensation. As compensation for the performance
of the Administrator's obligations under this Agreement and as
reimbursement for its expenses related thereto, the Servicer shall
pay the Administrator a monthly fee in the amount of $1,500.
6. Additional Information To Be Furnished to the
Issuer. The Administrator shall furnish to the Issuer from time to
time such additional information regarding the Collateral as the
Issuer shall reasonably request.
7. Independence of the Administrator. For all purposes of this
Agreement, the Administrator shall be an independent contractor and shall not be
subject to the supervision of the Issuer or the Owner Trustee with respect to
the manner in which it accomplishes the performance of its obligations
hereunder. Unless expressly authorized by the Issuer, the Administrator shall
have no authority to represent the Issuer or the Owner Trustee in any way and
shall not otherwise be deemed an agent of the Issuer or the Owner Trustee.
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8. No Joint Venture. Nothing contained in this Agreement (a) shall
constitute the Administrator and either of the Issuer or the Owner Trustee as
members of any partnership, joint venture, association, syndicate,
unincorporated business or other separate entity, (b) shall be construed to
impose any liability as such on any of them or (c) shall be deemed to confer on
any of them any express, implied or apparent authority to incur any obligation
or liability on behalf of the others.
9. Other Activities of Administrator. Nothing herein shall prevent the
Administrator or its Affiliates from engaging in other businesses or, in its
sole discretion, from acting in a similar capacity as an administrator for any
other person or entity even though such person or entity may engage in business
activities similar to those of the Issuer, the Owner Trustee or the Indenture
Trustee.
10. Term of Agreement; Resignation and Removal of
Administrator.
(a) This Agreement shall continue in force until the dissolution of the
Issuer, upon which event this Agreement shall automatically terminate.
(b) Subject to Section 10(e), the Administrator may resign its duties
hereunder by providing the Issuer with at least 60 days' prior written notice.
(c) Subject to Section 10(e), the Issuer may remove the Administrator
without cause by providing the Administrator with at least 60 days' prior
written notice.
(d) Subject to Section 10(e), at the sole option of the Issuer, the
Administrator may be removed immediately upon written notice of termination from
the Issuer to the Administrator if any of the following events shall occur:
(i) the Administrator shall default in the performance of any of its
duties under this Agreement and, after notice from the Issuer of such
default, shall not cure such default within ten days (or, if such default
cannot be cured in such time, shall not give within ten days such assurance
of cure as shall be reasonably satisfactory to the Issuer);
(ii) a court having jurisdiction in the premises shall enter a decree
or order for relief, and such decree or order shall not have been vacated
within 60 days, in respect of the Administrator in any involuntary case
under any applicable bankruptcy, insolvency or other similar law now or
hereafter in effect or appoint a receiver, liquidator, assignee, custodian,
trustee, sequestrator or similar official for the Administrator or any
substantial part of its property or order the winding-up or liquidation of
its affairs; or
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(iii) the Administrator shall commence a voluntary case under any
applicable bankruptcy, insolvency or other similar law now or hereafter in
effect, shall consent to the entry of an order for relief in an involuntary
case under any such law, or shall consent to the appointment of a receiver,
liquidator, assignee, trustee, custodian, sequestrator or similar official
for the Administrator or any substantial part of its property, shall
consent to the taking of possession by any such official of any substantial
part of its property, shall make any general assignment for the benefit of
creditors or shall fail generally to pay its debts as they become due.
The Administrator agrees that if any of the events specified in clauses
(ii) or (iii) of this Section 10(d) shall occur, it shall give written notice
thereof to the Issuer and the Indenture Trustee within seven days after the
happening of such event.
(e) No resignation or removal of the Administrator pursuant to this
Section 10 shall be effective until (i) a successor Administrator shall have
been appointed by the Issuer, (ii) such successor Administrator shall have
agreed in writing to be bound by the terms of this Agreement in the same manner
as the Administrator is bound hereunder, and (iii) the Rating Agency Condition
has been satisfied with respect to such proposed appointment.
11. Action upon Termination, Resignation or Removal. Promptly upon the
effective date of termination of this Agreement pursuant to Section 10(a) or the
resignation or removal of the Administrator pursuant to Section 10(b) or (c),
respectively, the Administrator shall be entitled to be paid all fees and
reimbursable expenses accruing to it to the effective date of such termination,
resignation or removal. The Administrator shall forthwith upon such termination
pursuant to Section 10(a) deliver to the Issuer all property and documents of or
relating to the Collateral then in the custody of the Administrator. In the
event of the resignation or removal of the Administrator pursuant to Section
10(b) or (c), respectively, the Administrator shall cooperate with the Issuer
and take all reasonable steps requested to assist the Issuer in making an
orderly transfer of the duties of the Administrator.
12. Notices. All demands, notices and communications
given hereunder shall be in writing personally delivered 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 Issuer or
the Owner Trustee, addressed to the Issuer and Owner Trustee, at the
following address: The Chase Manhattan Bank (USA), 802 Delaware
Avenue, Trust Group, 13th Floor, Wilmington, Delaware 19801,
Attention: Trust Department, with a copy to The Chase Manhattan
Bank, N.A., 4 Chase Metrotech Center, 3rd Floor, Brooklyn, New York
11245, Attention: Institutional Trust Group; (b) in the case of the
Administrator, at the following address: P. D. Bull, Vice President,
General Motors Acceptance Corporation, 3044 West Grand Boulevard,
Detroit, Michigan 48202; and (c) in the case of the Indenture
Trustee, at the following address: The Bank of New York, 101
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Barclay Street, 12 East, New York, New York 10286, Attention: Corporate Trust
Trustee Administration, or at such other address as shall be designated by such
Person in a written notice to the other parties to this Agreement.
13. Amendments.
(a) This Agreement may be amended from time to time with prior notice
to the Rating Agencies by a written amendment duly executed and delivered by the
Issuer, the Administrator and the Indenture Trustee, with the written consent of
the Owner Trustee, without the consent of the Noteholders or the
Certificateholders, for any of the following purposes:
(i) to add provisions hereof for the benefit of the
Noteholders and Certificateholders or to surrender any right
or power herein conferred upon the Administrator;
(ii) to cure any ambiguity or to correct or supplement
any provision herein which may be inconsistent with any other
provision herein;
(iii) to evidence and provide for the appointment of a successor
Administrator hereunder and to add to or change any of the provisions of
this Agreement as shall be necessary to facilitate such succession; and
(iv) to add any provisions to or change in any manner or eliminate any
of the provisions of this Agreement or modify in any manner the rights of
the Noteholders or Certificateholders; provided, however, that such
amendment under this Section 13(a)(iv) shall not, as evidenced by an
Opinion of Counsel, materially and adversely affect in any material respect
the interest of any Noteholder or Certificateholder.
(b) This Agreement may also be amended by the Issuer, the Administrator
and the Indenture Trustee with prior notice to the Rating Agencies and with the
written consent of the Owner Trustee and the holders of Notes evidencing at
least a majority in the Outstanding Amount of the Notes as of the close of the
immediately preceding Distribution Date and the holders of Certificates
evidencing at least a majority of the Voting Interests as of the close of the
preceding Distribution Date for the purpose of adding any provisions to,
changing in any manner or eliminating any of the provisions of this Agreement or
modifying in any manner the rights of Noteholders or the Certificateholders;
provided, however, that no such amendment may (i) increase or reduce in any
manner the amount of, or accelerate or delay the timing of, Collections on the
Receivables held by the Trust or payments or distributions that are required to
be made for the benefit of the Noteholders or Certificateholders (it being
understood that the issuance of any Securities and the specification of the
terms and provisions thereof pursuant to an Officer's Issuance Certificate (in
the case of Notes) or a Certificate Issuance Order (in the case of Certificates)
shall
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not be deemed to have such effect for purposes hereof), (ii) reduce the
percentage of the Holders of Notes and Certificates which are required to
consent to any amendment of this Agreement or (iii) modify or alter any
provision of this Section 13, except to provide that certain additional
provisions of this Agreement and the Basic Documents cannot be modified or
waived without the consent of each Noteholder and Certificateholder affected
thereby, without, in any such case, the consent of the Holders of all the
outstanding Notes and Certificates.
(c) Notwithstanding Sections 13(a) and (b), the Administrator may not
amend this Agreement without the permission of the Seller, which permission
shall not be unreasonably withheld.
14. Successors and Assigns. This Agreement may not be assigned by the
Administrator unless such assignment is previously consented to in writing by
the Issuer and the Owner Trustee and subject to the satisfaction of the Rating
Agency Condition for each then outstanding series of Notes in respect thereof.
An assignment with such consent and satisfaction, if accepted by the assignee,
shall bind the assignee hereunder in the same manner as the Administrator is
bound hereunder. Notwithstanding the foregoing, this Agreement may be assigned
by the Administrator without the consent of the Issuer or the Owner Trustee to a
corporation or other organization that is a successor (by merger, consolidation
or purchase of assets) to the Administrator, provided that such successor
organization executes and delivers to the Issuer, the Owner Trustee and the
Indenture Trustee an agreement in which such corporation or other organization
agrees to be bound hereunder by the terms of such assignment in the same manner
as the Administrator is bound hereunder. Subject to the foregoing, this
Agreement shall bind any successors or assigns of the parties hereto.
15. GOVERNING LAW. THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF NEW YORK, WITHOUT REFERENCE TO ITS CONFLICT OF LAW
PROVISIONS, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER
SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
16. Headings. The section headings hereof have been
inserted for convenience of reference only and shall not define or
limit any of the terms or provisions hereof.
17. Separate Counterparts, This Agreement may be executed by the
parties in separate counterparts, each of which when so executed and delivered
shall be an original, but all such counterparts shall together constitute but
one and the same instrument.
18. Severability of Provisions. If any one or more of the covenants,
agreements, provisions or terms of this Agreement shall for any reason
whatsoever be held invalid, then such covenants, agreements, provisions or terms
shall be deemed severable from the remaining covenants, agreements, provisions
or terms of this Agreement and shall in no way affect the validity or
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enforceability of the other provisions of this Agreement or of the
Certificates or the rights of the holders thereof.
19. Not Applicable to General Motors Acceptance
Corporation in Other Capacities. Nothing in this Agreement shall
affect any obligation General Motors Acceptance Corporation may have
in any other capacity.
20. Limitation of Liability of Owner Trustee and
Indenture Trustee.
(a) Notwithstanding anything contained herein to the contrary, this
instrument has been executed by The Chase Manhattan Bank (USA), not in its
individual capacity but solely as Owner Trustee and in no event shall The Chase
Manhattan Bank (USA) 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 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.
(b) Notwithstanding anything contained herein to the contrary, this
Agreement has been executed by The Bank of New York, not in its individual
capacity but solely in its capacity 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.
21. Third-Party Beneficiary. The Owner Trustee is a
third-party beneficiary to this Agreement and is entitled to the
rights and benefits hereunder and may enforce the provisions hereof
as if it were a party hereto.
* * * * *
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IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed by their respective officers as of the day and year first above
written.
SUPERIOR WHOLESALE INVENTORY FINANCING
TRUST III
By: The Chase Manhattan Bank (USA), not
in its individual capacity, but
solely as Owner Trustee on behalf
of the Issuer
By:
Name:
Title:
THE BANK OF NEW YORK, as Indenture
Trustee
By: The Bank of New York, not in its
individual capacity, but solely as
Indenture Trustee
By:
Name:
Title:
GENERAL MOTORS ACCEPTANCE CORPORATION,
as Administrator
By:
Name: P. D. Bull
Title: Vice President
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Exhibit 99.5
CUSTODIAN AGREEMENT
BETWEEN
GENERAL MOTORS ACCEPTANCE CORPORATION
CUSTODIAN
AND
WHOLESALE AUTO RECEIVABLES CORPORATION
SELLER
DATED AS OF APRIL 11, 1996
<PAGE>
THIS CUSTODIAN AGREEMENT, dated as of April 11, 1996, is made between
General Motors Acceptance Corporation, a corporation organized 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 "Custodian"
in its capacity as Custodian of such Receivables), and Wholesale Auto
Receivables Corporation, a Delaware corporation (the "Seller").
WHEREAS, simultaneously herewith, GMAC and the Seller are entering into a
Pooling and Servicing Agreement, dated as of the date hereof (the "Pooling and
Servicing Agreement," the capitalized terms defined therein being used herein
with the same meanings), pursuant to which GMAC shall sell, transfer and assign
to the Seller without recourse all of its right, title and interest in, to and
under the Eligible Receivables existing or arising in the Accounts in the Pool
of Accounts;
WHEREAS, in connection with such sale, transfer and assignment, the Pooling
and Servicing Agreement provides that the Seller shall simultaneously enter into
a custodian agreement pursuant to which the Seller shall revocably appoint the
Custodian as custodian of the Wholesale Security Agreements between GMAC and
each Dealer and any other documents and instruments pertaining to such Eligible
Receivables (the "Eligible Receivables Files");
WHEREAS, the Pooling and Servicing Agreement contemplates that the Seller
will enter into the Trust Sale and Servicing Agreement with Superior Wholesale
Inventory Financing Trust III, a Delaware business trust (the "Issuer"),
pursuant to which the Seller shall sell, transfer and assign to the Issuer
without recourse all of the Seller's right, title and interest in and to such
Eligible Receivables and under the aforementioned custodian agreement;
WHEREAS, in connection with such sale, transfer and assignment, the Seller
desires for the Custodian to act as custodian of such Eligible Receivables for
the benefit of the Issuer; and
WHEREAS, GMAC will retain the Receivables in the Accounts in the Pool of
Accounts not so sold, transferred and assigned to the Seller (the "Retained
Receivables") and, in connection therewith, the Seller desires for (and GMAC is
willing to agree and accept) the Custodian to act as custodian of the Wholesale
Security Agreements between GMAC and each Dealer and any other documents and
instruments pertaining to the Receivables retained by GMAC (the "Retained
Receivables Files," and together with the Eligible Receivables Files, the
"Receivables Files");
NOW, THEREFORE, in consideration of the mutual agreements herein contained
and of other good and valuable consideration the receipt and adequacy of which
are hereby acknowledged, the parties agree as follows:
1. Appointment of Custodian; Acknowledgment of Receipt. Subject to the
terms and conditions hereof, the Seller hereby appoints the Custodian, and the
Custodian hereby accepts such appointment, to act as agent of the Seller as
Custodian to maintain custody of the Eligible Receivables Files pertaining to
the Eligible Receivables conveyed to the Seller from time to time under the
Pooling and Servicing Agreement. The Custodian hereby acknowledges that the
Seller desires to sell, transfer and assign all of its right, title and interest
in, to and under such Eligible Receivables and this Custodian Agreement to the
Issuer pursuant to the Trust Sale and Servicing
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Agreement. The Custodian hereby agrees, in connection with such sale, transfer
and assignment, to act as Custodian for the benefit of the Issuer with respect
to such Receivables. Subject to the terms and conditions hereof and at the
request of the Seller, GMAC hereby appoints the Custodian, and the Custodian
hereby accepts such appointment, to act as agent of GMAC as Custodian to
maintain custody of the Retained Receivables Files pertaining to the Retained
Receivables. In performing its duties hereunder, the Custodian agrees to act
with reasonable care, using that degree of skill and attention that the
Custodian exercises with respect to receivable files relating to comparable
wholesale receivables that the Custodian services and holds for itself or
others. The Custodian hereby acknowledges receipt of the Receivables Files for
(i) each Eligible Receivable conveyed to the Seller and (ii) each Retained
Receivable on the date hereof.
2. Maintenance at Office. The Custodian agrees to maintain each Receivables
File at one of its branch offices as identified in the List of Branch Offices
attached hereto as Exhibit A, or at such other office of the Custodian as shall
from time to time be identified to the Issuer upon 30 days' prior written
notice.
3. Duties of Custodian.
(a) Safekeeping. The Custodian shall hold each Receivables File described
herein on behalf of the Seller, the Issuer or GMAC, as the case may be, for the
use and benefit of the Seller, the Issuer, GMAC and the Interested Parties, as
applicable, and maintain such accurate and complete accounts, records and
computer systems pertaining to each Receivables File described herein as shall
enable GMAC, the Seller and the Issuer to comply with their respective
obligations under the Pooling and Servicing Agreement and the Trust Sale and
Servicing Agreement. Each Receivable subject hereto shall be identified as such
on the books and records of the Custodian to the extent the Custodian reasonably
determines to be necessary to comply with the terms and conditions of the
Pooling and Servicing Agreement and the Trust Sale and Servicing Agreement. The
Custodian shall conduct, or cause to be conducted, periodic physical inspections
of the Receivables Files held by it under this Custodian Agreement, and of the
related accounts, records and computer systems, in such a manner as shall enable
the Issuer, GMAC and the Custodian to verify the accuracy of the Custodian's
inventory and record keeping. The Custodian shall promptly report to the Issuer
or GMAC, as applicable, any failure on its part to hold the related Receivables
File as described herein and maintain its accounts, records and computer systems
as herein provided and promptly take appropriate action to remedy any such
failure.
(b) Access to Records. Subject only to the Custodian's security
requirements applicable to its own employees having access to similar records
held by the Custodian, the Custodian shall permit the Issuer, GMAC or their
respective duly authorized representatives, attorneys or auditors to inspect the
related Receivables Files described herein and the related accounts, records and
computer systems maintained by the Custodian pursuant hereto at such times as
the Issuer or GMAC may reasonably request.
(c) Release of Documents. The Custodian shall release any Receivable (and
its related Receivables File) GMAC, the Seller, the Servicer or the Issuer, as
appropriate, under the circumstances provided in the Pooling and Servicing
Agreement and the Trust Sale and Servicing Agreement or, in the case of the
Retained Receivables, as otherwise requested by GMAC (so long
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as such request is not inconsistent with the terms of the Pooling and Servicing
Agreement and the Trust Sale and Servicing Agreement).
(d) Administration; Reports. In general, the Custodian shall attend to all
non-discretionary details in connection with maintaining custody of the
Receivables Files as described herein. In addition, the Custodian shall assist
the Issuer or GMAC, as applicable, generally in the preparation of routine
reports to the Securityholders, if any, or to regulatory bodies, to the extent
necessitated by the Custodian's custody of the Receivables Files described
herein.
(e) Servicing. The Custodian is familiar with the duties of the Servicer,
the servicing procedures and the allocation and distribution provisions
(including those related to principal collections, losses and recoveries on
Receivables) set forth in the Pooling and Servicing Agreement, the Trust Sale
and Servicing Agreement and the Indenture and hereby agrees to maintain the
Receivables Files in a manner consistent therewith. The Custodian further agrees
to cooperate with the Servicer in the Servicer's performance of its duties under
the Pooling and Servicing Agreement and the Trust Sale and Servicing Agreement.
4. Instructions; Authority to Act. The Custodian shall be deemed to have
received proper instructions from the Issuer or GMAC, as the case may be, with
respect to the Receivables Files described herein upon its receipt of written
instructions signed by an Authorized Officer. A certified copy of a by-law or of
a resolution of the appropriate governing body of the Issuer or GMAC, as the
case may be (or, as appropriate, a trustee on behalf of the Issuer), may be
received and accepted by the Custodian as conclusive evidence of the authority
of any such officer to act and may be considered as in full force and effect
until receipt of written notice to the contrary. Such instructions may be
general or specific in terms.
5. Indemnification By the Custodian. The Custodian agrees to indemnify the
Issuer, GMAC and each trustee with respect to any Securities for any and all
liabilities, obligations, losses, damage, payments, costs or expenses of any
kind whatsoever that may be imposed on, incurred or asserted against the Issuer,
GMAC or any such trustee as the result of any act or omission in any way
relating to the maintenance and custody by the Custodian of the Receivables
Files described herein; provided, however, that the Custodian shall not be
liable to the Issuer, GMAC or any such trustee, respectively, for any portion of
any such amount resulting from the wilful misfeasance, bad faith or gross
negligence of the Issuer or any such trustee, respectively.
6. Advice of Counsel. The Custodian, GMAC, the Seller and, upon execution
of the Trust Sale and Servicing Agreement, the Issuer further agree that the
Custodian shall be entitled to rely and act upon advice of counsel with respect
to its performance hereunder and shall be without liability for any action
reasonably taken pursuant to such advice, provided that such action is not in
violation of applicable federal or state law.
7. Effective Period, Termination, and Amendment; Interpretive and
Additional Provisions. This Custodian Agreement shall become effective as of the
date hereof, shall continue in full force and effect until terminated as
hereinafter provided, may be amended at any time by mutual agreement of the
parties hereto and may be terminated by either party by written notice to the
other party, such termination to take effect no sooner than sixty (60) days
after the date of such notice. Notwithstanding the foregoing, if General Motors
Acceptance Corporation resigns as
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Servicer under the Trust Sale and Servicing Agreement or if all of the rights
and obligations of the Servicer have been terminated under the Trust Sale and
Servicing Agreement, this Custodian Agreement may be terminated by the Issuer or
GMAC or by any Persons to whom the Issuer or GMAC has assigned its rights
hereunder. As soon as practicable after the termination of this Custodian
Agreement, the Custodian shall deliver the Receivables Files described herein to
the Issuer, the Issuer's agent or GMAC at such place or places as the Issuer or
GMAC may reasonably designate.
8. Governing Law. This Custodian Agreement shall be governed by, and
construed in accordance with, the domestic 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.
9. Notices. All demands, notices and communications hereunder shall be in
writing, personally delivered 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 Custodian, at the following address: P. D. Bull, Vice President,
General Motors Acceptance Corporation, 3044 West Grand Boulevard, Detroit,
Michigan 48202, or at such other address as shall be designated by the Custodian
in a written notice to the other parties, (b) 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: 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 GMAC, at the following address: General Motors Acceptance
Corporation, 3044 West Grand Boulevard, Detroit, Michigan 48202.
10. Binding Effect. This Custodian Agreement shall be binding upon and
shall inure to the benefit of the Seller, GMAC, the Issuer, the Custodian and
their respective successors and assigns, including the Issuer.
11. Severability of Provisions. If any one or more of the covenants,
agreements, provisions or terms of this Custodian Agreement shall be for any
reason whatsoever held invalid, then such covenants, agreements, provisions or
terms shall be deemed severable from the remaining covenants, agreements,
provisions or terms of this Custodian Agreement and shall in no way affect the
validity or enforceability of the other provisions of this Custodian Agreement.
12. Assignment. Notwithstanding anything to the contrary contained in this
Custodian Agreement, this Custodian Agreement may not be assigned by the
Custodian without the prior written consent of the Seller or GMAC or any Persons
to whom the Seller or GMAC has assigned its rights hereunder, as applicable.
13. Headings. The headings of the various Sections herein are for
convenience of reference only and shall not define or limit any of the terms or
provisions hereof.
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14. Counterparts. This Custodian Agreement may be executed by the parties
in separate counterparts, each of which when so executed and delivered shall be
an original but all such counterparts shall together constitute but one and the
same instrument.
* * * * *
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IN WITNESS WHEREOF, each of the parties hereto has caused this Custodian
Agreement to be in its name and on its behalf by a duly authorized officer as of
the day and year first above written.
WHOLESALE AUTO RECEIVABLES CORPORATION
By:
----------------------------------
Name: L. B. LaCombe, Jr.
Title: Vice President
GENERAL MOTORS ACCEPTANCE CORPORATION,
as owner of the Retained Receivables
By:
----------------------------------
Name: P. D. Bull
Title: Vice President
GENERAL MOTORS ACCEPTANCE CORPORATION,
as Custodian
By:
----------------------------------
Name: P. D. Bull
Title: Vice President
DOC17.FIN
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