<PAGE> 1
UNTIED STATES SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 of 15(d) of the Securities Exchange Act of 1934
Date of Report: June 9, 1999
WHOLESALE AUTO RECEIVABLES CORPORATION
------------------------------------------------------
(Exact name of registrant as specified in its charter)
Delaware 33-50323 38-3082709
- ------------------------------- ---------------- --------------------
(State or other jurisdiction of Commission (I.R.S. Employer
incorporation or organization) File Number Identification No.)
Corporate Trust Center
1209 Orange Street, Washington, DE 19801
- ---------------------------------------- ----------
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code 302-658-7851
------------
Items 1-6. Not Applicable.
Item 7. Financial Statements and Exhibits.
(a) Not applicable
(b) Not applicable
(c) Exhibits
4.1 Indenture between Superior Wholesale Inventory Financing Trust V
(the "Trust") and the Bank of New York, as Indenture Trustee dated
as of May 18, 1999
4.2 Officer's Issuance Certificate dated as of May 18, 1999
25.1 Supplemental Statement of Eligibility on Form T-1 of the Bank of
New York as Indenture Trustee under the Indenture
<PAGE> 2
99.1 Trust Sale and Servicing Agreement among General Motors Acceptance
Corporation, as Servicer, Wholesale Auto Receivables Corporation, as
the Seller and Superior Wholesale Inventory Financing Trust V, as the
Issuer, dated as of May 18, 1999
99.2 Trust Agreement between Wholesale Auto Receivables Corporation, as
Seller, and Chase Manhattan Bank Delaware as Owner Trustee, dated
as of May 18, 1999
99.3 Pooling and Servicing Agreement between General Motors Acceptance
Corporation and Wholesale Auto Receivables Corporation, dated as of
May 18, 1999
99.4 Administration Agreement among Superior Wholesale Inventory Financing
Trust V, as Issuer, and General Motors Acceptance Corporation, as
Administrator, and The Bank of New York, as Indenture Trustee, dated
as of May 18, 1999
99.5 Custodian Agreement between General Motors Acceptance Corporation, as
Custodian, and Wholesale Auto Receivables Corporation, as Seller,
dated as of May 18, 1999
SIGNATURES
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/ William F. Muir
--------------------------------------
Dated: June 9, 1999 William F. Muir, Chairman of the Board
-----------------------
s/ John D. Finnegan
--------------------------------------
Dated: June 9, 1999 John D. Finnegan, President and Director
-----------------------
<PAGE> 3
EXHIBIT INDEX
Exhibit Description
- ------- -----------
4.1 Indenture between Superior Wholesale Inventory Financing Trust V (the
"Trust") and the Bank of New York, as Indenture Trustee, dated as of May
18, 1999
4.2 Officer's Issuance Certificate dated as of May 18, 1999
25.1 Supplemental Statement of Eligibility on Form T-1 of the Bank of New York
as Indenture Trustee under the Indenture
99.1 Trust Sale and Servicing Agreement among General Motors Acceptance
Corporation, as Servicer, Wholesale Auto Receivables Corporation, as the
Seller and Superior Wholesale Inventory Financing Trust V, as the Issuer,
dated as of May 18, 1999
99.2 Trust Agreement between Wholesale Auto Receivables Corporation, as Seller,
and Chase Manhattan Bank Delaware as Owner Trustee, dated as of May 18,
1999
99.3 Pooling and Servicing Agreement between General Motors Acceptance
Corporation and Wholesale Auto Receivables Corporation, dated as of May
18, 1999
99.4 Administration Agreement among Superior Wholesale Inventory Financing
Trust V, as Issuer, and General Motors Acceptance Corporation, as
Administrator, and The Bank of New York, as Indenture Trustee, dated as of
May 18, 1999
99.5 Custodian Agreement between General Motors Acceptance Corporation, as
Custodian, and Wholesale Auto Receivables Corporation, as Seller, dated as
of May 18, 1999
<PAGE> 1
EXHIBIT 4.1
SUPERIOR WHOLESALE INVENTORY FINANCING TRUST V
ASSET-BACKED TERM NOTES
ASSET-BACKED REVOLVING NOTES
--------------------------------------------------------------
INDENTURE
DATED AS OF MAY 18, 1999
--------------------------------------------------------------
THE BANK OF NEW YORK,
A NEW YORK BANKING CORPORATION,
INDENTURE TRUSTEE
<PAGE> 2
CROSS-REFERENCE TABLE
<TABLE>
<CAPTION>
TIA INDENTURE
SECTION SECTION
------- -------
<S> <C> <C>
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
</TABLE>
N.A. means Not Applicable.
Note: This cross reference table shall not, for any purpose, be deemed to be
part of this Indenture.
-i-
<PAGE> 3
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
----
<S> <C> <C>
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..................................................17
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
</TABLE>
-ii-
<PAGE> 4
<TABLE>
<S> <C> <C>
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
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..................33
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....................................37
6.9 Merger or Consolidation of Indenture Trustee........................38
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
</TABLE>
-iii-
<PAGE> 5
<TABLE>
<S> <C> <C>
6.13 Representations and Warranties of Indenture Trustee.................40
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
7.2 Preservation of Information, Communications to Noteholders..........41
7.3 Reports by Issuer...................................................42
7.4 Reports by Indenture 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.......................50
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.............................55
11.7 Conflict with Trust Indenture Act...................................55
11.8 Effect of Headings and Table of Contents............................56
11.9 Successors and Assigns..............................................56
</TABLE>
-iv-
<PAGE> 6
<TABLE>
<S> <C> <C>
11.10 Separability........................................................56
11.11 Benefits of Indenture...............................................56
11.12 Legal Holidays......................................................56
11.13 GOVERNING LAW.......................................................56
11.14 Counterparts........................................................57
11.15 Recording of Indenture..............................................57
11.16 No Recourse.........................................................57
11.17 No Petition.........................................................58
11.18 Inspection..........................................................58
</TABLE>
EXHIBIT A Form of Transfer Certificate
EXHIBIT B Form of Undertaking Letter
-v-
<PAGE> 7
INDENTURE, dated as of May 18, 1999, between SUPERIOR
WHOLESALE INVENTORY FINANCING TRUST V, a Delaware business trust (the "Issuer"
or the "Trust"), 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 any 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 under this Indenture in
accordance with the provisions of this Indenture.
-1-
<PAGE> 8
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 Part I of Appendix
A to the Trust Sale and Servicing Agreement dated as of May 18, 1999 (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. The rules of
construction set forth in Part II of such Appendix A shall be applicable to this
Agreement.
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.
-2-
<PAGE> 9
(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;
-3-
<PAGE> 10
(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 in accordance with the
terms of this Indenture and may have such letters, numbers or other marks of
identification or designation and such legends or endorsements printed,
lithographed or engraved thereon as the Issuer may deem appropriate and as are
not
-4-
<PAGE> 11
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:
Dated:
-------------------------------------------------
(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
-5-
<PAGE> 12
Notes at the Agency Office of the Issuer to be maintained as provided in Section
3.2, without charge to the Noteholder. Upon surrender for cancellation of any
one or more Temporary Notes, the Issuer shall execute and the Indenture Trustee
shall authenticate and deliver in exchange therefor a like principal amount of
Definitive Term Notes of authorized denominations. Until so delivered in
exchange, the Temporary Notes shall in all respects be entitled to the same
benefits under this Indenture as Definitive Term Notes.
SECTION 2.4 Registration; Registration of Transfer and Exchange of
Notes.
(a) The Issuer shall cause to be kept the Note Register, comprising
separate registers for each series of Notes, in which, subject to such
reasonable regulations as the Issuer may prescribe, the Issuer shall provide for
the registration of the Notes and the registration of transfers and exchanges of
the Notes. The Indenture Trustee shall initially be the Note Registrar for the
purpose of registering the Notes and transfers of the Notes as herein provided.
Upon any resignation of any Note Registrar, the Issuer shall promptly appoint a
successor Note Registrar or, if it elects not to make such an appointment,
assume the duties of the Note Registrar.
(b) If a Person other than the Indenture Trustee is appointed by the
Issuer as Note Registrar, the Issuer shall give the Indenture Trustee prompt
written notice of the appointment of such Note Registrar and of the location,
and any change in the location, of the Note Register. The Indenture Trustee
shall have the right to inspect the Note Register at all reasonable times and to
obtain copies thereof. The Indenture Trustee shall have the right to rely upon a
certificate executed on behalf of the Note Registrar by an Executive Officer
thereof as to the names and addresses of the Noteholders and the principal
amounts and number of such Notes.
(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 by a written instrument
of transfer in form satisfactory
-6-
<PAGE> 13
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 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
-7-
<PAGE> 14
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 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
-8-
<PAGE> 15
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 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
ss.ss. 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
-9-
<PAGE> 16
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 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
-10-
<PAGE> 17
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.
SECTION 2.15 Special Terms Applicable to Subsequent Transfers of
Certain Notes.
(a) The Revolving Notes have not and will 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") 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 or in the related Officer's Issuance
Certificate. An interest in the Revolving Notes is being sold in a private
placement on the date hereof. Unless otherwise provided in the related Officer's
Issuance Certificate, no sale, pledge or other transfer of any Unregistered Note
(or interest therein) after the date thereof 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 investor that is an "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
-11-
<PAGE> 18
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.
(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.
-12-
<PAGE> 19
SECTION 3.3 Money for Payments To Be Held in Trust.
(a) As provided in Section 8.2, all payments of amounts due and payable
with respect to any Notes that are to be made from amounts withdrawn from the
Note Distribution Account or Revolver Distribution Account pursuant to Section
8.2(c) shall be made on behalf of the Issuer by the Indenture Trustee or by
another Paying Agent, and no amounts so withdrawn from the Note Distribution
Account or Revolver Distribution Account for payments of Term Notes or Revolving
Notes, respectively, shall be paid over to the Issuer except as provided in this
Section 3.3.
(b) On or before each date on which payments are to be made or the
Redemption Date (if applicable), the Issuer shall deposit or cause to be
deposited in the Note Distribution Account and Revolver Distribution Account
(including pursuant to Section 4.5 of the Trust Sale and Servicing Agreement)
aggregate sums sufficient to pay the amounts then becoming due with respect to
the Term Notes and Revolving Notes, respectively, such sums to be held in trust
for the benefit of the Persons entitled thereto.
(c) The Issuer shall cause each Paying Agent other than the Indenture
Trustee to execute and deliver to the Indenture Trustee an instrument in which
such Paying Agent shall agree with the Indenture Trustee (and if the Indenture
Trustee acts as Paying Agent, it hereby so agrees), subject to the provisions of
this Section 3.3, that such Paying Agent shall:
(i) hold all sums held by it for the payment of amounts due with
respect to the Notes in trust for the benefit of the Persons entitled
thereto until such sums shall be paid to such Persons or otherwise
disposed of as herein provided and pay such sums to such Persons as
herein provided;
(ii) give the Indenture Trustee notice of any default by the
Issuer (or any other obligor upon the Notes) of which it has actual
knowledge in the making of any payment required to be made with respect
to the Notes;
(iii) at any time during the continuance of any such default, upon
the written request of the Indenture Trustee, forthwith pay to the
Indenture Trustee all sums so held in trust by such Paying Agent;
(iv) immediately resign as a Paying Agent and forthwith pay to the
Indenture Trustee all sums held by it in trust for the payment of Notes
if at any time it ceases to meet the standards required to be met by a
Paying Agent in effect at the time of determination; and
(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
-13-
<PAGE> 20
to the Indenture Trustee all sums held in trust by such Paying Agent, such sums
to be held by the Indenture Trustee upon the same trusts as those upon which the
sums were held by such Paying Agent; and upon such payment by any Paying Agent
to the Indenture Trustee, such Paying Agent shall be released from all further
liability with respect to such money.
(e) Subject to applicable laws with respect to escheat of funds, any
money held by the Indenture Trustee or any Paying Agent in trust for the payment
of any amount due with respect to any Note and remaining unclaimed for one year
after such amount has become due and payable shall be discharged from such trust
and be paid by the Indenture Trustee to the Issuer; and the Holder of such Note
shall thereafter, as an unsecured general creditor, look only to the Issuer for
payment thereof (but only to the extent of the amounts so paid to the Issuer),
and all liability of the Indenture Trustee or such Paying Agent with respect to
such trust money shall thereupon cease; provided, however, that the Indenture
Trustee or such Paying Agent, before being required to make any such payment,
may at the expense of the Issuer cause to be published once, in a newspaper
published in the English language, customarily published on each Business Day
and of general circulation in the City of New York, notice that such money
remains unclaimed and that, after a date specified therein, which shall not be
less than 30 days from the date of such publication, any unclaimed balance of
such money then remaining shall be paid to the Issuer. The Indenture Trustee may
also adopt and employ, at the expense of the Issuer, any other reasonable means
of notification of such repayment (including, but not limited to, mailing notice
of such repayment to Holders whose Notes have been called but have not been
surrendered for redemption or whose right to or interest in monies due and
payable but not claimed is determinable from the records of the Indenture
Trustee or of any Paying Agent, at the last address of record for each such
Holder).
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, including by making the necessary filings of financing statements or
amendments thereto within sixty days after the occurrence of any of the
following: (A) any change in the Issuer's name, (B) any change in the location
of the Issuer's principal place of business, (C) any merger or consolidation or
other change in the Issuer's identity or organizational structure and by
promptly notifying the Indenture Trustee of any such filings and
-14-
<PAGE> 21
(D) any other change or occurrence that would make any financing statement or
amendment seriously misleading within the meaning of Section 9-402(7) of the
UCC;
(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 pursuant to this Section 3.5.
SECTION 3.6 Opinions as to Trust Estate.
(a) On the Initial Closing Date, the Issuer shall furnish to the
Indenture Trustee an Opinion of Counsel either stating that, in the opinion of
such counsel, such action has been taken with respect to the recording and
filing of this Indenture, any indentures supplemental hereto and any other
requisite documents, and with respect to the execution and filing of any
financing statements and continuation statements as are necessary to perfect and
make effective the lien and security interest of this Indenture and reciting the
details of such action, or stating that, in the opinion of such counsel, no such
action is necessary to make such lien and security interest effective.
(b) On or before August 15 in each calendar year, beginning August 15,
2000, 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
-15-
<PAGE> 22
expressly provided in this Indenture, the Trust Sale and Servicing Agreement,
the Pooling and Servicing Agreement, the Administration Agreement or such other
instrument or agreement.
(b) The Issuer may contract with other Persons to assist it in
performing its duties under this Indenture, and any performance of such duties
by a Person identified to the Indenture Trustee herein or in the Basic Documents
or an Officers' Certificate of the Issuer shall be deemed to be action taken by
the Issuer. Initially, the Issuer has contracted with the Servicer and the
Administrator to assist the Issuer in performing its duties under this
Indenture.
(c) The Issuer shall punctually perform and observe all of its
obligations and agreements contained in this Indenture, the Basic Documents and
in the instruments and agreements included in the Trust Estate, including but
not limited to filing or causing to be filed all Uniform Commercial Code
financing statements and continuation statements required to be filed under the
terms of this Indenture, the Trust Sale and Servicing Agreement and the Pooling
and Servicing Agreement in accordance with and within the time periods provided
for herein and therein.
(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,
marshaling 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
-16-
<PAGE> 23
(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 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, 2000, 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
-17-
<PAGE> 24
(v) the Issuer shall have delivered to the Indenture Trustee an
Officers' Certificate and an Opinion of Counsel addressed to the Issuer,
each stating:
(A) that such consolidation or merger and such supplemental
indenture comply with this Section 3.10;
(B) that such consolidation or merger and such supplemental
indenture shall have no material adverse tax consequence to the Issuer
or any Noteholder or Certificateholder; and
(C) that all conditions precedent herein provided for in this
Section 3.10 have been complied with, which shall include any filing
required by the Exchange Act.
(b) Except as otherwise expressly permitted by this Indenture or the
other Basic Documents, the Issuer shall not sell, convey, exchange, transfer or
otherwise dispose of any material portion of the properties and assets included
in the Trust Estate to any Person, unless:
(i) the Person that acquires such properties or assets of the
Issuer (A) shall be a United States citizen or a Person organized and
existing under the laws of the United States of America or any State and
(B) by an indenture supplemental hereto, executed and delivered to the
Indenture Trustee, in form satisfactory to the Indenture Trustee:
(1) expressly assumes the due and punctual payment of the
principal of and interest on all Notes and the performance or
observance of every agreement and covenant of this Indenture (and
so long as any Specified Support Arrangement is in effect, such
Specified Support Arrangements and all related documents) 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;
-18-
<PAGE> 25
(ii) immediately after giving effect to such transaction, no Event
of Default shall have occurred and be continuing;
(iii) the Rating Agency Condition shall have been satisfied with
respect to such transaction and such Person for each then outstanding series of
Notes;
(iv) any action as is necessary to maintain the lien and security
interest created by this Indenture shall have been taken; and
(v) the Issuer shall have delivered to the Indenture Trustee an
Officers' Certificate and an Opinion of Counsel addressed to the Issuer, each
stating that:
(A) such sale, conveyance, exchange, transfer or disposition
and such supplemental indenture comply with this Section 3.10;
(B) such sale, conveyance, exchange, transfer or disposition
and such supplemental indenture have no material adverse tax
consequence to the Issuer or to any Noteholders or Certificateholders;
and
(C) that all conditions precedent herein provided for in this
Section 3.10 have been complied with, which shall include any filing
required by the Exchange Act.
SECTION 3.11 Successor or Transferee.
(a) Upon any consolidation or merger of the Issuer in accordance with
Section 3.10(a), the Person formed by or surviving such consolidation or merger
(if other than the Issuer) shall succeed to, and be substituted for, and may
exercise every right and power of, the Issuer under this Indenture with the same
effect as if such Person had been named as the Issuer herein.
(b) Upon a conveyance or transfer of all the assets and properties of
the Issuer pursuant to Section 3.10(b), the Issuer shall be released from every
covenant and agreement of this Indenture to be observed or performed on the part
of the Issuer with respect to the Notes immediately upon the delivery of written
notice to the Indenture Trustee from the Person acquiring such assets and
properties stating that the Issuer is to be so released.
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, including entering into and making
payments under any Specified Support Arrangements.
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
-19-
<PAGE> 26
than indebtedness for money borrowed in respect of the Notes or in accordance
with the Basic Documents.
SECTION 3.14 Guarantees, Loans, Advances and Other Liabilities. Except
as contemplated by this Indenture or the other Basic Documents, the Issuer shall
not make any loan or advance or credit to, or guarantee (directly or indirectly
or by an instrument having the effect of assuring another's payment or
performance on any obligation or capability of so doing or otherwise), endorse
or otherwise become contingently liable, directly or indirectly, in connection
with the obligations, stocks or dividends of, or own, purchase, repurchase or
acquire (or agree contingently to do so) any stock, obligations, assets or
securities of, or any other interest in, or make any capital contribution to,
any other Person.
SECTION 3.15 Servicer's Obligations. The Issuer shall use its best
efforts to cause the Servicer to comply with its obligations under Section 3.05
of the Pooling and Servicing Agreement and Sections 4.1, 4.2 and 4.8 of the
Trust Sale and Servicing Agreement.
SECTION 3.16 Capital Expenditures. The Issuer shall not make any
expenditure (whether by long-term or operating lease or otherwise) for capital
assets (either real, personal or intangible property) other than the purchase of
the Receivables and other property and rights from the Seller on the Initial
Closing Date and from time to time thereafter pursuant to the Trust Sale and
Servicing Agreement.
SECTION 3.17 Removal of Administrator. So long as any Notes are
Outstanding, the Issuer shall not remove the Administrator without cause unless
the Rating Agency Condition for each series of Notes then outstanding shall have
been satisfied in connection with such removal.
SECTION 3.18 Restricted Payments. Except for payments of principal or
interest on or redemption of the Notes, so long as any Notes are Outstanding,
the Issuer shall not, directly or indirectly:
(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 or any other Designated
Account except in accordance with the Basic Documents.
-20-
<PAGE> 27
SECTION 3.19 Notice of Events of Default. The Issuer agrees to give the
Indenture Trustee and the Rating Agencies written notice of each Event of
Default hereunder, each Servicing Default, any Insolvency Event with respect to
the Seller, each default on the part of the Seller or the Servicer of its
respective obligations under the Trust Sale and Servicing Agreement and each
default on the part of GMAC or the Servicer of its respective obligations under
the Pooling and Servicing Agreement, in each case promptly after the discovery
thereof by the Issuer.
SECTION 3.20 Further Instruments and Acts. Upon request of the
Indenture Trustee, the Issuer shall execute and deliver such further instruments
and do such further acts as may be reasonably necessary or proper to carry out
more effectively the purpose of this Indenture.
SECTION 3.21 Trustee's Assignment of Interests in Certain Receivables.
The Indenture Trustee shall assign, without recourse, representation or
warranty, to the Servicer, GMAC or the Seller, as the case may be, all of the
Indenture Trustee's right, title and interest in and to any Receivable assigned
by the Issuer to the Servicer, GMAC or the Seller, as applicable, pursuant to
the Pooling and Servicing Agreement or the Trust Sale and Servicing Agreement
(including, without limitation, Section 9.3 thereof) (in each case, to the
extent so assigned and upon the receipt of any related payment, if applicable),
such assignment being an assignment outright and not for security; and the
Servicer, GMAC or the Seller, as applicable, shall thereupon own the interest
purchased in such Receivable, free of any further obligation to the Indenture
Trustee, the Noteholders or 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.
-21-
<PAGE> 28
ARTICLE IV
SATISFACTION AND DISCHARGE
SECTION 4.1 Satisfaction and Discharge of Indenture. This Indenture
shall cease to be of further effect with respect to the Notes except as to: (i)
rights of registration of transfer and exchange; (ii) substitution of mutilated,
destroyed, lost or stolen Notes; (iii) rights of Noteholders to receive payments
of principal thereof and interest thereon; (iv) Sections 3.3, 3.4, 3.5, 3.8,
3.10, 3.12, 3.13, 3.19 and 3.21; (v) the rights, obligations and immunities of
the Indenture Trustee hereunder (including the rights of the Indenture Trustee
under Section 6.7 and the obligations of the Indenture Trustee under Sections
4.2 and 4.4); and (vi) the rights of Noteholders as beneficiaries hereof with
respect to the property so deposited with the Indenture Trustee payable to all
or any of them, and the Indenture Trustee, on demand of and at the expense of
the Issuer, shall execute proper instruments acknowledging satisfaction and
discharge of this Indenture with respect to the Notes, if:
(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
-22-
<PAGE> 29
(c) the Issuer has delivered to the Indenture Trustee an Officer's
Certificate of the Issuer, an Opinion of Counsel and (if required by the TIA or
the Indenture Trustee) an Independent Certificate from a firm of certified
public accountants, each meeting the applicable requirements of Section 11.1(a)
and each stating that all conditions precedent herein provided for relating to
the satisfaction and discharge of this Indenture have been complied with.
SECTION 4.2 Application of Trust Money. All monies deposited with the
Indenture Trustee pursuant to Section 4.1 shall be held in trust and applied by
it, in accordance with the provisions of the Notes and this Indenture and the
applicable provisions of the Trust Sale and Servicing Agreement, including
without limitation Section 4.5 thereof, 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, a
-23-
<PAGE> 30
written notice specifying such default and demanding that it be remedied and
stating that such notice is a "Notice of Default" hereunder; or
(c) failure to pay in full the Outstanding Amount attributable to any
series of Notes on or prior to the Stated Final Payment Date for such series; or
(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.
-24-
<PAGE> 31
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 parties to receive such
amounts pursuant to the terms of this Indenture, 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,
with all such amounts applied as described in clause SECOND of Section 5.4(b).
(b) If the Issuer shall fail forthwith to pay such amounts upon such
demand, the Indenture Trustee, in its own name and as trustee of an express
trust, may institute a Proceeding for the collection of the sums so due and
unpaid, and may prosecute such Proceeding to judgment or final decree, and may
enforce the same against the Issuer or other obligor upon such Notes and collect
in the manner provided by law out of the property of the Issuer or other obligor
upon such Notes, wherever situated, the monies adjudged or decreed to be
payable.
-25-
<PAGE> 32
(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;
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
-26-
<PAGE> 33
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 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
-27-
<PAGE> 34
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 4.5 of the Trust Sale and Servicing Agreement, with such amounts
being deemed to be Available Trust Principal and Available Trust Interest
in the same proportion as the outstanding principal balance of the Notes
bears to the accrued and unpaid interest on the Notes (and, if any series
of Notes has Specified Support Arrangements, the amount unpaid under such
Specified Support Arrangement).
SECTION 5.5 Optional Preservation of the Trust Estate. If the Notes
have been declared to be due and payable under Section 5.2 following an Event of
Default and such declaration and its consequences have not been rescinded and
annulled, the Indenture Trustee may, but need not, elect to take and maintain
possession of the Trust Estate. It is the desire of the parties hereto and the
Noteholders that there be at all times sufficient funds for the payment of
principal of and interest on the Notes, and the Indenture Trustee shall take
such desire into account when determining whether or not to take and maintain
possession of the Trust Estate. In determining whether to take and maintain
possession of the Trust Estate, the Indenture Trustee may, but need not, obtain
and rely upon an opinion of an Independent investment banking or accounting firm
of national reputation as to the feasibility of such proposed action and as to
the sufficiency of the Trust Estate for such purpose.
-28-
<PAGE> 35
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 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
-29-
<PAGE> 36
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;
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
-30-
<PAGE> 37
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
and expenses, 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 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
-31-
<PAGE> 38
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.
(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
-32-
<PAGE> 39
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 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 (but need not
confirm or investigate the accuracy of any mathematical calculations or
other facts stated therein).
(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);
-33-
<PAGE> 40
(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 conclusively rely on any document
believed by it to be genuine and to have been signed or presented by the proper
Person. The Indenture Trustee need not investigate any fact or matter stated in
the document.
(b) Before the Indenture Trustee acts or refrains from acting, it may
require an Officer's Certificate from the Issuer or an Opinion of Counsel that
such action or omission is required or permitted hereunder. The Indenture
Trustee shall not be liable for any action it takes or omits to take in good
faith in reliance on such Officer's Certificate or Opinion of Counsel.
(c) The Indenture Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or through
agents or attorneys or a custodian or nominee, and the Indenture Trustee shall
not be responsible for any misconduct or negligence on the part of, or for the
supervision of, any such agent, attorney, custodian or nominee appointed with
due care by it hereunder.
(d) The Indenture Trustee shall not be liable for any action it takes
or omits to take in good faith which it believes to be authorized or within its
rights or powers; provided, however, that the Indenture Trustee's conduct does
not constitute wilful misconduct, negligence or bad faith.
-34-
<PAGE> 41
(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 withIndnt-v6.fin
Sections 6.10 and 6.11. Any Paying Agent, Note Registrar, co-registrar or
co-paying agent may do the same with like rights.
SECTION 6.4 Indenture Trustee's Disclaimer. The Indenture Trustee shall
not be responsible for and makes no representation as to the validity or
adequacy of this Indenture or the Notes, it shall not be accountable for the
Issuer's use of the proceeds from the Notes, and it shall not be responsible for
any statement of the Issuer in the Indenture or in any document issued in
connection with the sale of the Notes or in the Notes other than the Indenture
Trustee's certificate of authentication.
SECTION 6.5 Notice of Defaults. If a Default occurs and is continuing
and if it is known to a Responsible Officer of the Indenture Trustee, the
Indenture Trustee shall mail to each Noteholder notice of the Default within 90
days after it occurs. Except in the case of a Default in payment of principal of
or interest on any Note, the Indenture Trustee may withhold the notice if and so
long as a committee of its Responsible Officers in good faith determines that
withholding the notice is in the interests of Noteholders.
SECTION 6.6 Reports by Indenture Trustee to Holders. The Indenture
Trustee shall deliver to each Noteholder the information and documents set forth
in Article VII, and, in addition, all such information with respect to the Notes
as may be required by the terms of the Trust Sale and Servicing Agreement to be
provided to Holders by the Indenture Trustee to enable such Holder to prepare
its federal and state income tax returns.
SECTION 6.7 Compensation; Indemnity.
(a) The Issuer shall cause the Servicer pursuant to Section 3.03 of the
Pooling and Servicing Agreement to pay to the Indenture Trustee from time to
time such compensation for its services as shall be agreed upon in writing. The
Indenture Trustee's compensation shall not be limited by any law on compensation
of a trustee of an express trust. The Issuer shall cause the Servicer pursuant
to Section 3.03 of the Pooling and Servicing Agreement to reimburse the
Indenture Trustee for all reasonable out-of-pocket expenses incurred or made by
it, including costs of collection, in addition to the compensation for its
services. Such expenses shall include the reasonable compensation and expenses,
disbursements and advances of the Indenture Trustee's agents, counsel,
accountants and experts. The Issuer shall cause the Servicer pursuant to the
Trust Sale and Servicing Agreement to indemnify the Indenture Trustee in
accordance with Section 7.1 of the Trust Sale and Servicing Agreement.
-35-
<PAGE> 42
(b) The Issuer's obligation to cause the Servicer to honor the Issuer's
obligations to the Indenture Trustee specified in Section 6.7(a) 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, if the Survivor has failed to honor such obligation the
expenses are intended to constitute expenses of administration under any
Insolvency Law.
SECTION 6.8 Replacement of Indenture Trustee.
(a) The Indenture Trustee may at any time give notice of its intent to
resign by so notifying the Issuer; provided, however, that no such resignation
shall become effective and the Owner Trustee shall not resign prior to the time
set forth in Section 6.8(c). The Holders of a majority in Outstanding Amount of
the Notes may remove the Indenture Trustee by so notifying the Indenture Trustee
and may appoint a successor Indenture Trustee. Such resignation or removal shall
become effective in accordance with Section 6.8(c). The Issuer shall remove the
Indenture Trustee if:
(i) the Indenture Trustee fails to comply with Section 6.11;
(ii) the Indenture Trustee is adjudged bankrupt or insolvent;
(iii) a receiver or other public officer takes charge of the
Indenture Trustee or its property; or
(iv) the Indenture Trustee otherwise becomes incapable of acting.
(b) If the Indenture Trustee gives notice of its intent to resign or is
removed or if a vacancy exists in the office of Indenture Trustee for any reason
(the Indenture Trustee in such event being referred to herein as the retiring
Indenture Trustee), the Issuer shall promptly appoint and designate a successor
Indenture Trustee.
(c) A successor Indenture Trustee shall deliver a written acceptance of
its appointment and designation to the retiring Indenture Trustee and to the
Issuer. Thereupon the resignation or removal of the retiring Indenture Trustee
shall become effective, and the successor Indenture Trustee shall have all the
rights, powers and duties of the Indenture Trustee under this Indenture. The
successor Indenture Trustee shall mail a notice of its succession to
Noteholders. The retiring Indenture Trustee shall promptly transfer all property
held by it as Indenture Trustee to the successor Indenture Trustee.
(d) If a successor Indenture Trustee does not take office within 60
days after the retiring Indenture Trustee gives notice of its intent to resign
or is removed, the retiring Indenture 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.
-36-
<PAGE> 43
(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 all or substantially all of the corporate trust
business of the Indenture Trustee, shall be the successor of the Indenture
Trustee under this Indenture; provided, however, that such corporation shall be
eligible under the provisions of Section 6.11, without the execution or filing
of any instrument or any further act on the part of any of the parties to this
Indenture, anything in this Indenture to the contrary notwithstanding.
(b) If at the time such successor or successors by merger or
consolidation to the Indenture Trustee shall succeed to the trusts created by
this Indenture, any of the Notes shall have been authenticated but not
delivered, any such successor to the Indenture Trustee may adopt the certificate
of authentication of any predecessor trustee, and deliver such Notes so
authenticated; and in case at that time any of the Notes shall not have been
authenticated, any successor to the Indenture Trustee may authenticate such
Notes either in the name of any predecessor hereunder or in the name of the
successor to the Indenture Trustee. In all such cases such certificate of
authentication shall have the same full force as is provided anywhere in the
Notes or herein with respect to the certificate of authentication of the
Indenture Trustee.
SECTION 6.10 Appointment of Co-Indenture Trustee or Separate Indenture
Trustee.
(a) Notwithstanding any other provisions of this Indenture, at any
time, for the purpose of meeting any legal requirement of any jurisdiction in
which any part of the Issuer or any Dealer may at the time be located, the
Indenture Trustee shall have the power and may execute and deliver all
instruments to appoint one or more Persons approved by the Indenture Trustee to
act as a co-trustee or co-trustees, jointly with the Indenture Trustee, or
separate trustee or separate trustees, of all or any part of the 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.
-37-
<PAGE> 44
(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.
(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 ss.
310(b); provided, however, that there shall be excluded from the operation of
TIA ss. 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 ss. 310(b)(1) are met.
-38-
<PAGE> 45
SECTION 6.12 Preferential Collection of Claims Against Issuer. The
Indenture Trustee shall comply with TIA ss. 311(a), excluding any creditor
relationship listed in TIA ss. 311(b). A trustee who has resigned or been
removed shall be subject to TIA ss. 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 New York banking corporation 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 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.
-39-
<PAGE> 46
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 necessary 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 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 ss. 312(b) with other
Noteholders with respect to their rights under this Indenture or under the
Notes.
-40-
<PAGE> 47
(c) The Issuer, the Indenture Trustee and the Note Registrar shall have
the protection of TIA ss. 312(c).
SECTION 7.3 Reports by Issuer.
(a) The Issuer shall:
(i) file with the Indenture Trustee, within 15 days after the
Issuer is required to file the same with the Commission or any applicable
state agencies, copies of the annual reports and of the information,
documents and other reports (or copies of such portions of any of the
foregoing as the Commission may from time to time by rules and regulations
prescribe) which the Issuer may be required to file with the Commission
pursuant to Section 13 or 15(d) of the Exchange Act or any applicable state
agencies pursuant to comparable regulation;
(ii) file with the Indenture Trustee and the Commission or any
applicable state agencies in accordance with rules and regulations
prescribed from time to time by the Commission or any applicable state
agencies such additional information, documents and reports with respect to
compliance by the Issuer with the conditions and covenants of this
Indenture as may be required from time to time by such rules and
regulations; and
(iii) supply to the Indenture Trustee (and the Indenture Trustee
shall transmit by mail to all Noteholders described in TIA ss. 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 Indenture Trustee.
(a) If required by TIA ss. 313(a), within 60 days after each May 1,
beginning with May 1, 2000, the Indenture Trustee shall mail to each Noteholder
as required by TIA ss. 313(c) a brief report dated as of such date that complies
with TIA ss. 313(a). The Indenture Trustee also shall comply with TIA ss.
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.
-41-
<PAGE> 48
ARTICLE VIII
ACCOUNTS, DISBURSEMENTS AND RELEASES
SECTION 8.1 Collection of Money. Except as otherwise expressly provided
herein, the Indenture Trustee may demand payment or delivery of, and shall
receive and collect, directly and without intervention or assistance of any
fiscal agent or other intermediary, all money and other property payable to or
receivable by the Indenture Trustee pursuant to this Indenture. The Indenture
Trustee shall apply all such money received by it as provided in this Indenture,
the Pooling and Servicing Agreement and the Trust Sale and Servicing Agreement.
Except as otherwise expressly provided in this Indenture, if any default occurs
in the making of any payment or performance under any agreement or instrument
that is part of the Trust Estate, the Indenture Trustee may take such action as
may be appropriate to enforce such payment or performance, including the
institution and prosecution of appropriate Proceedings. Any such action shall be
without prejudice to any right to claim an Event of Default under this Indenture
and any right to proceed thereafter as provided in Article V.
SECTION 8.2 Designated Accounts; Payments.
(a) On or prior to the Closing Date, the Issuer shall cause the
Servicer to establish and maintain, in the name of the Indenture Trustee, for
the benefit of the Noteholders and the Certificateholders, the Designated
Accounts as provided in Articles IV and VI of the Trust Sale and Servicing
Agreement (or with respect to any Designated Account for any series of Notes
issued after the Closing Date, on or prior to the closing date with respect to
such series of Notes).
(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 or as otherwise provided in the Officer's Certificate with
respect to any series of Notes and to 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
-42-
<PAGE> 49
Aggregate Noteholders' Principal and the Required Revolver Payment shall be
transferred from the Collection Account or the Accumulation Accounts 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 Notes on such Distribution Date, the
amount required to be deposited or paid in the Note Distribution Account, the
Revolver Distribution Account or as otherwise provided in the Officer's Issuance
Certificate with respect to any series of Notes, 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 or the
Accumulation Accounts or any other applicable account. Notwithstanding the
preceding sentence, to the extent permitted and as provided by Section 4.7 of
the Trust Sale and Servicing Agreement, deposits may be netted against amounts
owing to the depositor and all distributions, deposits or other remittances in
respect of a series of Notes or the Note Distribution Account or the Revolver
Distribution Account, as applicable, which are otherwise required to be made on
an Exempt Deposit Date for such series may be made on the next succeeding
Payment Date for such series, on which Payment Date the cumulative amount of all
such distributions, deposits and other remittances with respect to such series
for such Payment Date and the immediately preceding Exempt Deposit Date or Dates
shall be made.
(d) On each Distribution Date, the Indenture Trustee shall (unless
otherwise provided in any Officer's Issuance Certificate) allocate the amount
deposited into the Note Distribution Account or as otherwise provided in the
Officer's Certificate with respect to any series of Notes pursuant to Section
4.5(c) of the Trust Sale and Servicing Agreement for the payment of interest on
each outstanding series of Term Notes to such Term Notes and, to the extent of
the funds available for such purpose, make the payments required under any
Specified Support Arrangements to the extent and at the times as provided in the
related Officer's Issuance Certificate. On the related Payment Date (which may
be such Distribution Date) for each series of Term Notes, the Indenture Trustee
shall pay amounts to the Holders of such series to the extent and at the times
provided in the related Officer's Issuance Certificate.
(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
-43-
<PAGE> 50
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, the
Revolver Distribution Account or as otherwise provided in the Officer's Issuance
Certificate with respect to any series of Notes, as appropriate, on prior
Distribution Dates allocated to the payment of principal on such Notes and not
theretofore paid to the Holders of such Notes and, to the extent described in
the related Officer's Issuance Certificate, such other amounts allocated to the
payment of principal on such Notes on such Distribution Date with respect to the
period prior to the commencement of such Early Amortization Period.
(h) Notwithstanding anything to the contrary herein, all investment
earnings on funds on deposit in the Note Distribution Account and the Revolver
Distribution Account, net of losses and investment expenses, shall constitute
Investment Proceeds and be applied as described in the Trust Sale and Servicing
Agreement.
SECTION 8.3 General Provisions Regarding Designated Accounts.
(a) Subject to Section 6.1(c), the Indenture Trustee shall not in any
way be held liable by reason of any insufficiency in any of the Designated
Accounts resulting from any loss on any Eligible Investment included therein
except for losses attributable to the Indenture Trustee's failure to make
payments on such Eligible Investments issued by the Indenture Trustee, in its
commercial capacity as principal obligor and not as trustee, in accordance with
their terms.
(b) If (i) the Servicer shall have failed to give investment directions
for any funds on deposit in the Designated Accounts to the Indenture Trustee by
11:00 a.m., New York City time (or such other time as may be agreed by the
Servicer and the Indenture Trustee) on any Business Day or (ii) an Event of
Default shall have occurred and be continuing with respect to the Notes but the
Notes shall not have been declared due and payable pursuant to Section 5.2, or,
if such Notes shall have been declared due and payable following an Event of
Default, but amounts collected or receivable from the Trust Estate are being
applied in accordance with Section 5.5 as if there had not been such a
declaration, then the Indenture Trustee shall, to the fullest extent
practicable, invest and reinvest funds in the Designated Accounts in one or more
Eligible Investments selected by the Indenture Trustee.
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
-44-
<PAGE> 51
thereof in writing and upon receipt of an Issuer Request, release any remaining
portion of the Trust Estate that secured the Notes from the lien of this
Indenture and release to the Issuer or any other Person entitled thereto any
funds then on deposit in the Note Distribution Account and the Revolver
Distribution Account. The Indenture Trustee shall (i) release any remaining
portion of the Trust Estate that secured the Certificates from the lien of this
Indenture and (ii) release to the Issuer or any other Person entitled thereto
any funds then on deposit in the Reserve Fund or the Collection Account only at
such time as (x) there are no Notes Outstanding, (y) all payments in respect of
Certificate Balance and interest due to the Certificateholders have been paid in
full and (z) all sums due to the Indenture Trustee pursuant to Section 6.7 have
been paid.
SECTION 8.5 Opinion of Counsel. The Indenture Trustee shall receive at
least seven days' notice when requested by the Issuer to take any action
pursuant to Section 8.4(a), accompanied by copies of any instruments involved,
and the Indenture Trustee shall also require as a condition to such action, an
Opinion of Counsel, in form and substance satisfactory to the Indenture Trustee,
stating the legal effect of any such action, outlining the steps required to
complete the same, and concluding that all conditions precedent to the taking of
such action have been complied with and such action shall not materially and
adversely impair the security for the Notes or the rights of the Noteholders in
contravention of the provisions of this Indenture; provided, however, that such
Opinion of Counsel shall not be required to express an opinion as to the fair
value of the Trust Estate. Counsel rendering any such opinion may rely, without
independent investigation, on the accuracy and validity of any certificate or
other instrument delivered to the Indenture Trustee pursuant to the provisions
of this Indenture 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;
-45
<PAGE> 52
(iv) to convey, transfer, assign, mortgage or pledge any property
to or with the Indenture Trustee;
(v) to cure any ambiguity or to correct or supplement any
provision herein or in any supplemental indenture which may be inconsistent
with any other provision herein or in any supplemental indenture;
(vi) to evidence and provide for the acceptance of the
appointment hereunder by a successor trustee with respect to the Notes and
the Indenture 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 or decrease the Specified Maximum Revolver
Balance with respect to the Revolving Notes, subject to the satisfaction of
the Rating Agency Condition, in the case of an increase, 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:
-46-
<PAGE> 53
(i) change the due date of any instalment of principal of or
interest on any Note, or reduce the principal amount thereof, the interest
rate applicable thereto, or the Redemption Price with respect thereto,
change any place of payment where, or the coin or currency in which, any
Note or any interest thereon is payable, or impair the right to institute
suit for the enforcement of the provisions of this Indenture requiring the
application of funds available therefor, as provided in Article V, to the
payment of any such amount due on the Notes on or after the respective due
dates thereof (or, in the case of redemption, on or after the Redemption
Date);
(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
-47-
<PAGE> 54
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.
(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.
-48-
<PAGE> 55
ARTICLE X
REDEMPTION OF TERM NOTES
SECTION 10.1 Redemption. 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,
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.
SECTION 10.2 Form of Redemption Notice.
(a) Notice of redemption of any Term Notes under Section 10.1 shall be
given by the Indenture Trustee by first-class mail, postage prepaid, mailed not
less than five days prior to the applicable Redemption Date to each Term
Noteholder of record of the Term Notes to be redeemed at such Term Noteholder's
address appearing in the Note Register.
(b) All notices of redemption shall state:
(i) the applicable Redemption Date;
(ii) the applicable Redemption Price;
(iii) the place where the Term Notes are to be surrendered for
payment of the Redemption Price (which shall be the Agency Office of the
Indenture Trustee to be maintained as provided in Section 3.2);
(iv) the CUSIP number, if applicable; and
(v) the principal amount of Notes to be redeemed.
(c) Notice of redemption of the Term Notes shall be given by the
Indenture Trustee in the name and at the expense of the Issuer. Failure to give
notice of redemption, or any defect therein, to any Holder of any Term Note
shall not impair or affect the validity of the redemption of any other Term
Note.
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), 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
-49-
<PAGE> 56
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
(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
-50-
<PAGE> 57
described in clause (b)(i) above, the Issuer shall also deliver to the
Indenture Trustee an Independent Certificate as to the same matters, if the
fair value to the Issuer of the securities to be so deposited and of all
other such securities made the basis of any such withdrawal or release
since the commencement of the then current fiscal year of the Issuer, as
set forth in the certificates delivered pursuant to clause (i) above and
this clause (b)(ii), is 10% or more of the Outstanding Amount of the Notes,
but such a certificate need not be furnished with respect to any securities
so deposited, if the fair value thereof to the Issuer as set forth in the
related Officers' Certificate is less than $25,000 or less than one percent
of the Outstanding Amount of the Notes.
(iii) Other than with respect to the release of any Warranty
Receivables, Administrative Receivables or Defaulted Receivables, whenever
any property or securities are to be released from the lien of this
Indenture, the Issuer shall also furnish to the Indenture Trustee an
Officer's Certificate certifying or stating the opinion of each Person
signing such certificate as to the fair value (within 90 days of such
release) of the property or securities proposed to be released and stating
that in the opinion of such Person the proposed release will not impair the
security under this Indenture in contravention of the provisions hereof.
(iv) Whenever the Issuer is required to furnish to the Indenture
Trustee an Officer's Certificate certifying or stating the opinion of any
signatory thereof as to the matters described in clause (b)(iii) above, the
Issuer shall also furnish to the Indenture Trustee an Independent
Certificate as to the same matters if the fair value of the property or
securities and of all other property, other than Warranty Receivables,
Administrative Receivables or Defaulted Receivables, or securities released
from the lien of this Indenture since the commencement of the then current
calendar year, as set forth in the certificates required by clause (b)(iii)
above and this clause (b)(iv), equals 10% or more of the Outstanding Amount
of the Notes, but such certificate need not be furnished in the case of any
release of property or securities if the fair value thereof as set forth in
the related Officer's Certificate is less than $25,000 or less than one
percent of the then Outstanding Amount of the Notes.
(v) Notwithstanding Section 2.9 or any other provision of this
Section 11.1, the Issuer may (A) collect, liquidate, sell or otherwise
dispose of Receivables and related Collateral Security and proceeds of both
as and to the extent permitted or required by the Basic Documents, (B) make
cash payments out of the Designated Accounts and 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.
-51-
<PAGE> 58
(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 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
-52-
<PAGE> 59
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 each at the address specified in Appendix B to the Trust Sale
and Servicing Agreement.
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 delivered as specified in
Appendix B to the Trust Sale and Servicing Agreement.
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.
-53-
<PAGE> 60
(c) In case, by reason of the suspension of regular mail service as a
result of a strike, work stoppage or similar activity, it shall be impractical
to mail notice of any event of Noteholders when such notice is required to be
given pursuant to any provision of this Indenture, then any manner of giving
such notice as shall be satisfactory to the Indenture Trustee shall be deemed to
be a sufficient giving of such notice.
(d) Where this Indenture provides for notice to the Rating Agencies,
failure to give such notice shall not affect any other rights or obligations
created hereunder, and shall not under any circumstance constitute an Event of
Default.
SECTION 11.6 Alternate Payment and Notice Provisions.
Notwithstanding any provision of this Indenture or any of the Notes to
the contrary, the Issuer may enter into any agreement with any Holder of a Note
providing for a method of payment, or notice by the Indenture Trustee or any
Paying Agent to such Holder, that is different from the methods provided for in
this Indenture for such payments or notices. The Issuer shall furnish to the
Indenture Trustee a copy of each such agreement and the Indenture Trustee shall
cause payments to be made and notices to be given in accordance with such
agreements.
SECTION 11.7 Conflict with Trust Indenture Act.
(a) If any provision hereof limits, qualifies or conflicts with another
provision hereof that is required to be included in this Indenture by any of the
provisions of the TIA, such required provision shall control.
(b) The provisions of TIA ss.ss. 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.
-54-
<PAGE> 61
SECTION 11.10 Separatability.
In case any provision in this Indenture or in the Notes shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.
SECTION 11.11 Benefits of Indenture.
Nothing in this Indenture or in the Notes, express or implied, shall
give to any Person, other than the parties hereto and their successors
hereunder, the Noteholders and the Note Owners and (only to the extent expressly
provided herein) the Certificateholders and the Certificate Owners and any other
party secured hereunder, and any other Person with an ownership interest in any
part of the Trust Estate, any benefit or any legal or equitable right, remedy or
claim under this Indenture.
SECTION 11.12 Legal Holidays.
If the date on which any payment is due shall not be a Business Day,
then (notwithstanding any other provision of the Notes or this Indenture)
payment need not be made on such date, but may be made on the next succeeding
Business Day with the same force and effect as if made on the date on which
nominally due, and no interest shall accrue for the period from and after any
such nominal date.
SECTION 11.13 GOVERNING LAW.
THIS INDENTURE SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF NEW YORK, WITHOUT REFERENCE TO ITS CONFLICT OF LAW PROVISIONS, AND THE
OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN
ACCORDANCE WITH SUCH LAWS.
SECTION 11.14 Counterparts.
This Indenture may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same instrument.
SECTION 11.15 Recording of Indenture.
If this Indenture is subject to recording in any appropriate public
recording offices, such recording is to be effected by the Issuer and at its
expense accompanied by an Opinion of Counsel (which may be counsel to the
Indenture Trustee or any other counsel reasonably acceptable to the Indenture
Trustee) to the effect that such recording is necessary either for the
protection of the Noteholders or any other Person secured hereunder or for the
enforcement of any right or remedy granted to the Indenture Trustee under this
Indenture.
-55-
<PAGE> 62
SECTION 11.16 No Recourse.
(a) Each Noteholder will agree by acceptance of a Note (or interest
therein) that no recourse may be taken, directly or indirectly, with respect to
the obligations of the Issuer, the Owner Trustee or the Indenture Trustee on the
Notes or under this Indenture or any certificate or other writing delivered in
connection herewith or therewith, against:
(i) the Indenture Trustee or the Owner Trustee in its individual
capacity;
(ii) any owner of a beneficial interest in the Issuer; or
(iii) any partner, owner, beneficiary, agent, officer, director or
employee of the Indenture Trustee or the Owner Trustee in its individual
capacity, any holder of a beneficial interest in the Issuer, the Owner
Trustee or the Indenture Trustee or of any successor or assign of the
Indenture Trustee or the Owner Trustee in its individual capacity, except
as any such Person may have expressly agreed (it being understood that the
Indenture Trustee and the Owner Trustee have no such obligations in their
individual capacity) and except that any such partner, owner or beneficiary
shall be fully liable, to the extent provided by applicable law, for any
unpaid consideration for stock, unpaid capital contribution or failure to
pay any instalment or call owing to such entity. For all purposes of this
Indenture, in the performance of any duties or obligations of the Issuer
hereunder, the Owner Trustee shall be subject to, and entitled to the
benefits of, the terms and provisions of Articles VI, VII and VIII of the
Trust Agreement.
(b) Except as expressly provided in the Basic Documents, neither the
Seller, the Servicer, the Indenture Trustee nor the Owner Trustee in their
respective individual capacities, any owner of a beneficial interest in the
Issuer, nor any of their respective partners, owners, beneficiaries, agents,
officers, directors, employees or successors or assigns, shall be personally
liable for, nor shall recourse be had to any of them for, the payment of
principal of or interest on, or performance of, or omission to perform, any of
the covenants, obligations or indemnifications contained in the Notes or this
Indenture, it being expressly understood that said covenants, obligations and
indemnifications have been made by the Owner Trustee solely as the Owner Trustee
in the assets of the Issuer. Each Noteholder or Note Owner by the acceptance of
a Note (or beneficial interest therein) will agree that, except as expressly
provided in the Basic Documents, in the case of an Event of Default under this
Indenture, the Holder shall have no claim against any of the foregoing for any
deficiency, loss or claim therefrom; provided, however, that nothing contained
herein shall be taken to prevent recourse to, and enforcement 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
-56-
<PAGE> 63
against the Seller or the Issuer under any Insolvency Law or appointing a
receiver, liquidator, assignee, trustee, custodian, sequestrator or other
similar official of the Seller or the Issuer or any substantial part of its
property, or ordering the winding up or liquidation of the affairs of the Seller
or the Issuer.
SECTION 11.18 Inspection.
The Issuer agrees that, on reasonable prior notice, it shall permit any
representative of the Indenture Trustee, during the Issuer's normal business
hours, to examine all the books of account, records, reports and other papers of
the Issuer, to make copies and extracts therefrom, to cause such books to be
audited by Independent certified public accountants, and to discuss the Issuer's
affairs, finances and accounts with the Issuer's officers, employees and
Independent certified public accountants, all at such reasonable times and as
often as may be reasonably requested. The Indenture Trustee shall and shall
cause its representatives to hold in confidence all such information except to
the extent disclosure may be required by law (and all reasonable applications
for confidential treatment are unavailing) and except to the extent that the
Indenture Trustee may reasonably determine that such disclosure is consistent
with its obligations hereunder.
* * * * *
-57-
<PAGE> 64
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 V
By: Chase Manhattan Bank Delaware, not
in its individual capacity but solely as
Owner Trustee
By:
------------------------------------------------
Name:
Title:
THE BANK OF NEW YORK, as Indenture
Trustee
By:
------------------------------------------------
Name:
Title:
<PAGE> 65
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 V
Ladies and Gentlemen:
In connection with the purchase of a Note subject to Section 2.15 of
the Indenture dated as of May 18, 1999 (the "Unregistered Note") of the Superior
Wholesale Inventory Financing Trust V, 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
<PAGE> 66
certification shall be in form and substance satisfactory to the Indenture
Trustee and the Seller, and (B) the Indenture Trustee shall require a written
opinion of counsel (which will not be at the expense of the Seller, the Servicer
or the Indenture Trustee) satisfactory to the Seller and the Indenture Trustee
to the effect that such transfer will not violate the Securities Act, in each
case in accordance with any applicable securities laws of any state of the
United States. The Buyer will notify any purchaser of the Unregistered Note from
it of the above resale restrictions, if then applicable. The Buyer further
understands that in connection with any transfer of the Unregistered Note by it
that the Seller and the Indenture Trustee may request, and if so requested the
Buyer will furnish, such certificates and other information as they may
reasonably require to confirm that any such transfer complies with the foregoing
restrictions.
(c)
[CHECK ONE]
- (1) The Buyer is an institutional investor and an "accredited
investor" (as defined in Rule 501(a)(1),(2),(3) or (7) of Regulation
D under the Securities Act) acting for its own account (and not for
the account of others) or as a fiduciary or agent for others (which
others also are Institutional Accredited Investors unless the Buyer
is bank acting in its fiduciary capacity). The Buyer has such
knowledge and experience in financial and business matters as to be
capable of evaluating the merits and risks of its investment in the
Unregistered Note, and the Buyer and any accounts for which it is
acting are able to bear the economic risk of investment in the
Unregistered Note for an indefinite period of time. The Buyer is
acquiring the Unregistered Note for investment and not with a view
to, or for offer and sale in connection with, a public distribution.
- (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.
<PAGE> 67
(d) You are entitled to rely upon this letter and you are irrevocably
authorized to produce this letter or a copy hereof to any interested party in
any administrative or legal proceeding or official inquiry with respect to the
matters covered hereby.
----------------------------------------------
Print Name of Buyer
By:
-------------------------------------------
Name:
-----------------------------------------
Title:
----------------------------------------
Date:
-----------------------------------------
<PAGE> 68
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 V
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 May
18, 1999 (the "Unregistered Note") of the Superior Wholesale Inventory Financing
Trust V, 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 acknowledgments,
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> 1
EXHIBIT 4.2
Officer's Issuance Certificate
FLOATING RATE ASSET-BACKED TERM NOTES, SERIES 1999-A
The undersigned hereby certifies, pursuant to the Indenture
dated as of May 18, 1999 (the "Indenture"), between Superior Wholesale Inventory
Financing Trust V (the "Issuer" or the "Trust") 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 Delaware 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 1999-A (the "1999-A Term
Notes"). The 1999-A Term Notes shall be in the form set forth
in Exhibit A hereto.
B. The aggregate principal amount of the 1999-A Term Notes which
may be authenticated and delivered under the Indenture (except
for 1999-A Term Notes authenticated and delivered upon
registration and transfer of, or in exchange for, or in lieu
of, other 1999-A Term Notes pursuant to the Indenture) is
$750,000,000.
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 1999-A Term Notes:
1. Each Distribution Date shall be a Payment Date for
the 1999-A Term Notes.
2. The Stated Final Payment Date for the 1999-A Term
Notes shall be the Distribution Date in May 2006, on
which date the final payment of principal on the
1999-A Term Notes shall be due and payable.
3. The Targeted Final Payment Date for the 1999-A Term
Notes shall be the Distribution Date in May 2004.
4. The "1999-A Term Note Interest Rate" shall mean the
interest rate specified in Part I.D. of this
Officer's Issuance Certificate.
5. The "Cash Accumulation Reserve Fund" shall be the
account established as provided in Part I.I.1. of
this Officer's Issuance Certificate.
-1-
<PAGE> 2
6. The "Cash Accumulation Account" shall be the account
established as provided in Part I.I.2. of this
Officer's Issuance Certificate.
7. The "Note Distribution Subaccount" for the 1999-A
Term Notes shall be established as provided in Part
I.I.3. of this Officer's Issuance Certificate.
8. A "Daily Remittance Period" shall be in effect at any
time that a Rapid Amortization Period, Cash
Accumulation Period or Payment Period is in effect
for the 1999-A Term Notes, until such time as the
Fully Funded Date has occurred.
D. The 1999-A Term Notes shall bear interest, with respect to any
Distribution Date, at an interest rate equal to LIBOR plus
0.125% per annum, calculated on the basis of a 360-day year
and the actual 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. Interest on the
1999-A Term Notes accrued as of any Distribution Date but not
paid on such Distribution Date shall be due on the next
Distribution Date.
E. On each Distribution Date, amounts deposited in the Note
Distribution Account which have been allocated to the 1999-A
Term Notes pursuant to clause (2)(a) of Section 4.5(c)(i) of
the Trust Sale and Servicing Agreement and any amounts
allocated to interest on the 1999-A Term Notes pursuant to the
other provisions of Section 4.5(c) of the Trust Sale and
Servicing Agreement shall be paid to the holders of the 1999-A
Term Notes, in an amount not to exceed the 1999-A Term Notes'
Noteholders Interest for such Distribution Date.
F. Principal shall be due and payable on the 1999-A Term Notes as
follows:
1. During the Revolving Period, until the commencement
of either the Payment Period for the 1999-A Term
Notes or a Rapid Amortization Period for the 1999-A
Term Notes which is not an Early Amortization Period
for the Trust, no payments of principal on the 1999-A
Term Notes shall be required or made and Available
Trust Principal shall not be set aside for such
purpose.
2. Unless a Cash Accumulation Period or a Rapid
Amortization Period for the 1999-A Term Notes has
commenced and is continuing, the Payment Period for
the 1999-A Term Notes will commence upon a date that
is no earlier than January 1, 2004 and no later than
April 1, 2004 (the "Latest Commencement Date"). On
the Determination Date in December, 2003 and on each
Determination Date thereafter before the commencement
of the Payment Period, the Servicer will determine
the date, if any, on which the Payment Period shall
commence prior to the Latest Commencement Date, by
calculating the Required Payment Period Length. The
Payment Period will commence with the first day of
the Collection Period which follows the first
Determination Date on which the Required Payment
Period Length is equal
-2-
<PAGE> 3
to or greater than the number of full Collection
Periods remaining between such Determination Date and
the Targeted Final Payment Date, subject to earlier
commencement on the Latest Commencement Date. The
Payment Period for the 1999-A Term Notes will
terminate upon the earlier of the occurrence of a
Cash Accumulation Event and a Rapid Amortization
Event.
3. If the Payment Period for the 1999-A Term Notes shall
be terminated upon the occurrence of an Early
Amortization Event described in clauses (i), (j) or
(l) of Section 9.1 of the Trust Sale and Servicing
Agreement and no other Early Amortization Event has
occurred, such Payment Period may be recommenced if
the Seller elects to recommence the Revolving Period
as described in Section 9.5(a) of the Trust Sale and
Servicing Agreement. If the Payment Period for the
1999-A Term Notes shall be terminated upon the
commencement of the Wind Down Period prior to the
Final Revolving Period Termination Date, such Payment
Period may be recommenced, if the Seller elects to
recommence the Revolving Period as described in
Section 9.5(b) of the Trust Sale and Servicing
Agreement.
4. During any Collection Period occurring during the
Payment Period or a Rapid Amortization Period for the
1999-A Term Notes which is not an Early Amortization
Period for the Trust, all principal and other funds
allocated to the 1999-A Term Notes in respect of the
payment of principal shall be set aside in the Note
Distribution Subaccount for the 1999-A Term Notes.
5. On the Targeted Final Payment Date for the 1999-A
Term Notes, the Trust will pay to the holders of the
1999-A Term Notes the outstanding principal balance
of the 1999-A Term Notes (or such lesser amount as
has been set aside for such purpose) and, to the
extent not paid in full on the Targeted Final Payment
Date, on each Distribution Date thereafter until so
paid in full, from funds on deposit in the Cash
Accumulation Account, the Note Distribution
Subaccount established for the 1999-A Term Notes and
any other accounts in which funds have been set aside
for the payment of principal on the 1999-A Term
Notes.
6. During a Cash Accumulation Period, the 1999-A Term
Notes' Principal Allocation Percentage of Available
Trust Principal for any day during a Collection
Period will be allocated and set aside in the Cash
Accumulation Account. During a Cash Accumulation
Period occurring prior to the Targeted Final Payment
Date, amounts allocated to the 1999-A Term Notes on
such Distribution Date and the related Collection
Period shall be retained in the Cash Accumulation
Account and shall not be paid as principal on the
1999-A Term Notes until the Targeted Final Payment
Date. On the Targeted Final Payment Date for the
1999-A Term Notes, the Trust will pay to the holders
of the 1999-A Term Notes the outstanding principal
balance of the 1999-A Notes (or such lesser amount as
has been set aside for such purpose) and, to the
extent not paid in full on the Targeted Final Payment
Date, on each
-3-
<PAGE> 4
Distribution Date thereafter until so paid in full,
from funds on deposit in the Cash Accumulation
Account.
7. On each Distribution Date during a Rapid Amortization
Period, beginning with the Distribution Date related
to the Collection Period in which such Rapid
Amortization Period commenced, all amounts in respect
of principal held in the Cash Accumulation Account
and the Note Distribution Account, together with all
Available Trust Principal allocated to the 1999-A
Term Notes for such Distribution Date, shall be paid
to the holders of the 1999-A Term Notes as principal
on the 1999-A Term Note on such Distribution Date.
8. During any period in which funds are being set aside
or paid out in respect of the outstanding principal
balance of the 1999-A Term Notes, no amount shall be
set aside or paid to the extent that it would cause
the total amount so set aside or paid to exceed the
outstanding principal balance of the 1999-A Term
Notes.
A "Cash Accumulation Period" for the 1999-A Term
Notes will commence upon a Cash Accumulation Event
for the 1999-A Term Notes and will terminate on the
earliest of :
(a) the date on which the 1999-A Term Notes are
paid in full,
(b) the occurrence of a Rapid Amortization Event
for 1999-A Term Notes,
(c) the Trust Termination Date, and
(d) under limited circumstances described in the
Trust Sale and Servicing Agreement, the
remediation of the Cash Accumulation Event
and the recommencement of the Revolving
Period.
If a Cash Accumulation Period commences as a result
of the occurrence of an Early Amortization Event
described in clauses (i), (j) or (l) of Section 9.1
of the Trust Sale and Servicing Agreement and no
other Early Amortization Event has occurred, such
Cash Accumulation Period may be terminated, and the
Revolving Period may be recommenced, if the Seller
elects to recommence the Revolving Period as
described in Section 9.5(a) of the Trust Sale and
Servicing Agreement.
A "Cash Accumulation Event" for the 1999-A Term Notes
means:
(A) any of the Early Amortization Events other
than Early Amortization Events which are
also Rapid Amortization Events and
(B) the commencement of the Wind Down Period.
-4-
<PAGE> 5
A "Rapid Amortization Period" for the 1999-A Term
Notes will commence upon the occurrence of a Rapid
Amortization Event and will end upon the earliest of
(a) the date on which the 1999-A Term Notes are paid
in full and (b) the Trust Termination Date.
A "Rapid Amortization Event" for the 1999-A Term
Notes means:
(1) the occurrence of any of the Early
Amortization Events set out in Sections
9.1(a), (b), (c) and (d) of the Trust Sale
and Servicing Agreement,
(2) either the Trust or the Seller becoming
required to register as an "investment
company" within the meaning of the
Investment Company Act of 1940 and
(3) on any Distribution Date, the balance in the
Cash Accumulation Reserve Fund would be less
than $218,750 (after giving effect to all
withdrawals and additions on such
Distribution Date).
G. The 1999-A Term Notes are not subject to optional or mandatory
purchase or redemption by the Issuer.
H. The 1999-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 1999-A Term Notes will not be Unregistered
Notes under Section 2.15 of the Indenture.
I. Cash Accumulation Reserve Fund, Cash Accumulation Account and
Note Distribution Subaccount.
1. The Servicer, for the benefit of the holders of the
1999-A Term Notes, shall establish and maintain in
the name of the Indenture Trustee an Eligible Deposit
Account known as the Superior Wholesale Inventory
Financing Trust V Cash Accumulation Reserve Fund
bearing an additional designation clearly indicating
that the funds deposited therein are held for the
benefit of the holders of the 1999-A Term Notes.
2. The Servicer, for the benefit of the holders of the
1999-A Term Notes, shall establish and maintain in
the name of the Indenture Trustee an Eligible Deposit
Account known as the Superior Wholesale Inventory
Financing Trust V Cash Accumulation Account bearing
an additional designation clearly indicating that the
funds deposited therein are held for the benefit of
the holders of the 1999-A Term Notes.
3. The Servicer shall instruct the Indenture Trustee to
maintain a subaccount within the Note Distribution
Account for the benefit of the
-5-
<PAGE> 6
holders of the 1999-A Term Notes, which subaccount
shall be referred to in this Officer's Issuance
Certificate as the Note Distribution Subaccount for
the 1999-A Term Notes.
4. On the Initial Closing Date, the Seller shall deposit
the Cash Accumulation Reserve Fund Initial Deposit
into the Cash Accumulation Reserve Fund. The Seller,
in its sole discretion, may at any time make
additional deposits into the Cash Accumulation
Reserve Fund. If the amounts on deposit in the Cash
Accumulation Reserve Fund on any Distribution Date
(after giving effect to all deposits therein or
withdrawals therefrom on such Distribution Date)
exceeds the Cash Accumulation Reserve Fund Required
Amount, the Servicer shall instruct the Indenture
Trustee to distribute an amount equal to any such
excess to the Seller, unless otherwise agreed by the
Seller.
5. Cash Accumulation Account Earnings and Investment
Proceeds of the Cash Accumulation Reserve Fund shall
not constitute Shared Investment Proceeds.
6. In order to provide for timely payments in accordance
with Section 4.5 of the Trust Sale and Servicing
Agreement and the terms of the 1999-A Term Notes, to
assure the availability for the benefit of the
Noteholders and the Servicer of the amounts
maintained in the Cash Accumulation Reserve Fund, the
Cash Accumulation Account and the Note Distribution
Subaccount for the 1999-A Term Notes, 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 Cash Accumulation Reserve
Fund and all proceeds of the foregoing,
including, without limitation, all other
amounts and investments held from time to
time in the Cash Accumulation Reserve Fund
(whether in the form of deposit accounts,
Physical Property, book-entry securities,
uncertificated securities or otherwise),
(ii) the Cash Accumulation Reserve
Fund Initial Deposit and all proceeds
thereof,
(iii) the Cash Accumulation Account
and all proceeds of the foregoing,
including, without limitation, all other
amounts and investments held from time to
time in the Cash Accumulation Account
(whether in the form of deposit accounts,
Physical Property, book-entry securities,
uncertificated securities or otherwise),
(iv) the Note Distribution
Subaccount for the 1999-A Term Notes and all
proceeds of the foregoing, including,
without limitation, all other amounts and
investments held from time to time in the
Cash Accumulation Account (whether in the
form of deposit accounts,
-6-
<PAGE> 7
Physical Property, book-entry securities,
uncertificated securities or otherwise)
(collectively, the "1999-A Account 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 Officer's Issuance Certificate and
in Section 4.6 of the Trust Sale and Servicing
Agreement. The Indenture Trustee shall hold and
distribute the 1999-A Account Property in accordance
with the terms and provisions of the Trust Sale and
Servicing Agreement. By its authentication of the
1999-A Term Notes, the Indenture Trustee acknowledges
and accepts such trusts as are specified herein with
respect to the 1999-A Account Property.
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 the
undersigned's opinion, made such examination or investigation as is
necessary to enable the undersigned to express an informed opinion as
to whether all conditions precedent set forth in the Indenture and the
other Basic Documents relating to the establishment of the form and
terms of a series of Notes under the Indenture have been complied with.
In the opinion of the undersigned, all such conditions precedent have
been complied with in respect of the 1999-A Term Notes.
III. Capitalized terms used herein and not defined shall have the meanings
assigned to such terms in the Indenture and in Appendix A to the Trust
Sale and Servicing Agreement dated as of May 18, 1999 among General
Motors Acceptance Corporation, as Servicer, Wholesale Auto Receivables
Corporation, as Seller, and Superior Wholesale Inventory Financing
Trust V, as Issuer.
* * * *
-7-
<PAGE> 8
IN WITNESS WHEREOF, the undersigned has hereunto executed this
Officer's Issuance Certificate as of the18th day of May, 1999.
WHOLESALE AUTO RECEIVABLES
CORPORATION
By:
----------------------------
Name: N.L. Bugg
Title: Manager - Securitization
<PAGE> 9
EXHIBIT A
[FORM OF NOTE]
-9-
<PAGE> 10
EXHIBIT B
[NOTE DEPOSITORY AGREEMENT]
-10-
<PAGE> 1
EXHIBIT 25.1
FORM T-1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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.)
One 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 19801
1209 Orange Street (Zip code)
Wilmington, Delaware
(Address of principal executive offices)
Asset-Backed Term Notes
(Title of the indenture securities)
= = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = =
<PAGE> 2
1. General information. Furnish the following information
as to the Trustee:
(A) NAME AND ADDRESS OF EACH EXAMINING OR SUPERVISING AUTHORITY TO
WHICH IT IS SUBJECT.
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------------------------------
Name Address
- ------------------------------------------------------------------------------------------------------------
<S> <C>
Superintendent of Banks of the State of New York 2 Rector Street, 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 10005
</TABLE>
(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.
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 17
C.F.R. 229.10(D).
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.
-2-
<PAGE> 3
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 8th day of June, 1999.
THE BANK OF NEW YORK
By: \S\ MARY LAGUMINA
--------------------------------
Name: MARY LAGUMINA
Title: ASSISTANT VICE PRESIDENT
-3-
<PAGE> 4
EXHIBIT 7
---------
- --------------------------------------------------------------------------------
Consolidated Report of Condition of
THE BANK OF NEW YORK
of One Wall Street, New York, N.Y. 10286
And Foreign and Domestic Subsidiaries, a member of the Federal Reserve
System, at the close of business March 31, 1999, published in accordance with a
call made by the Federal Reserve Bank of this District pursuant to the
provisions of the Federal Reserve Act.
<TABLE>
<CAPTION>
DOLLAR AMOUNTS
IN THOUSANDS
<S> <C>
ASSETS
Cash and balances due from depository institutions:
Noninterest-bearing balances and currency and coin.. $ 4,508,742
Interest-bearing balances........................... 4,425,071
Securities:
Held-to-maturity securities......................... 836,304
Available-for-sale securities....................... 4,047,851
Federal funds sold and Securities purchased under
agreements to resell................................ 1,743,269
Loans and lease financing receivables:
Loans and leases, net of unearned
income..................................39,349,679
LESS: Allowance for loan and
lease losses...............................603,025
LESS: Allocated transfer risk
reserve.....................................15,906
Loans and leases, net of unearned income,
allowance, and reserve............................ 38,730,748
Trading Assets......................................... 1,571,372
Premises and fixed assets (including capitalized
leases)............................................. 685,674
Other real estate owned................................ 10,331
Investments in unconsolidated subsidiaries and
associated companies................................ 182,449
Customers' liability to this bank on acceptances
outstanding......................................... 1,184,822
Intangible assets...................................... 1,129,636
Other assets........................................... 2,632,309
-----------
Total assets........................................... $61,688,578
===========
LIABILITIES
Deposits:
In domestic offices................................. $25,731,036
Noninterest-bearing.......................10,252,589
Interest-bearing..........................15,478,447
In foreign offices, Edge and Agreement
subsidiaries, and IBFs............................ 18,756,302
Noninterest-bearing..........................111,386
Interest-bearing..........................18,644,916
Federal funds purchased and Securities sold under
agreements to repurchase............................ 3,276,362
Demand notes issued to the U.S.Treasury................ 230,671
Trading liabilities.................................... 1,554,493
Other borrowed money:
With remaining maturity of one year or less......... 1,154,502
With remaining maturity of more than one year
through three years............................... 465
With remaining maturity of more than three years.... 31,080
Bank's liability on acceptances executed and
outstanding......................................... 1,185,364
Subordinated notes and debentures...................... 1,308,000
Other liabilities...................................... 2,743,590
-----------
Total liabilities...................................... 55,971,865
===========
EQUITY CAPITAL
Common stock........................................... 1,135,284
Surplus................................................ 764,443
Undivided profits and capital reserves................. 3,807,697
Net unrealized holding gains (losses) on
available-for-sale securities....................... 44,106
Cumulative foreign currency translation adjustments.... ( 34,817)
-----------
Total equity capital................................... 5,716,713
-----------
Total liabilities and equity capital................... $61,688,578
===========
</TABLE>
I, Thomas J. Mastro, 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.
Thomas J. Mastro
We, the undersigned directors, attest to the correctness of this Report
of Condition and declare that it has been examined by us and to the best of our
knowledge and belief has been prepared in conformance with the instructions
issued by the Board of Governors of the Federal Reserve System and is true and
correct.
Thomas A. Reyni
Alan R. Griffith Directors
Gerald L. Hassell
- --------------------------------------------------------------------------------
<PAGE> 1
EXHIBIT 99.1
TRUST SALE AND SERVICING AGREEMENT
AMONG
GENERAL MOTORS ACCEPTANCE CORPORATION
SERVICER
WHOLESALE AUTO RECEIVABLES CORPORATION
SELLER
AND
SUPERIOR WHOLESALE INVENTORY FINANCING TRUST V
ISSUER
DATED AS OF MAY 18, 1999
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
<S> <C>
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..........................................................11
SECTION 3.3 Merger or Consolidation of, or Assumption of the Obligations
of, Seller; Amendment of Certificate of Incorporation........................11
SECTION 3.4 Limitation on Liability of Seller and Others.................................13
SECTION 3.5 Seller May Own Notes or Certificates.........................................13
ARTICLE IV
SERVICER'S COVENANTS; DISTRIBUTIONS; RESERVE FUNDS;
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 SWIFT V Reserve Funds and the Reserve Fund...................................24
SECTION 4.7 Net Deposits.................................................................26
SECTION 4.8 Statements to Securityholders................................................26
</TABLE>
-i-
<PAGE> 3
<TABLE>
<S> <C>
SECTION 4.9 New Issuances; Changes in Specified Maximum Revolver B
Balance......................................................................28
ARTICLE V
SERVICING FEE
SECTION 5.1 Servicing Compensation.......................................................29
ARTICLE VI
SECURITYHOLDER ACCOUNTS; COLLECTIONS,
DEPOSITS AND INVESTMENTS; ADVANCES
SECTION 6.1 Establishment of Accounts....................................................30
SECTION 6.2 Collections..................................................................34
ARTICLE VII
LIABILITIES OF SERVICER AND OTHERS
SECTION 7.1 Liability of Servicer; Indemnities...........................................35
SECTION 7.2 Merger or Consolidation of, or Assumption of the Obligations
of, the Servicer.............................................................37
SECTION 7.3 Limitation on Liability of Servicer and Others...............................37
SECTION 7.4 Delegation of Duties.........................................................38
SECTION 7.5 Servicer Not to Resign.......................................................38
ARTICLE VIII
DEFAULT
SECTION 8.1 Servicing Defaults...........................................................38
SECTION 8.2 Consequences of a Servicing Default..........................................39
SECTION 8.3 Indenture Trustee to Act; Appointment of Successor...........................40
SECTION 8.4 Notification to Securityholders..............................................41
SECTION 8.5 Waiver of Past Defaults......................................................41
SECTION 8.6 Repayment of Advances........................................................42
ARTICLE IX
EARLY AMORTIZATION EVENTS; TERMINATION
SECTION 9.1 Early Amortization Events....................................................42
SECTION 9.2 Insolvency Events............................................................44
SECTION 9.3 Optional Purchase by the Servicer............................................44
SECTION 9.4 Termination..................................................................45
SECTION 9.5 Recommencement of Revolving Period...........................................45
ARTICLE X
MISCELLANEOUS PROVISIONS
SECTION 10.1 Amendment....................................................................47
SECTION 10.2 Protection of Title to the Owner Trust Estate................................49
</TABLE>
-ii-
<PAGE> 4
<TABLE>
<S> <C> <C>
SECTION 10.3 Notices ....................................................................51
SECTION 10.4 GOVERNING LAW................................................................51
SECTION 10.5 Severability of Provisions...................................................51
SECTION 10.6 Assignment...................................................................51
SECTION 10.7 Third-Party Beneficiaries....................................................51
SECTION 10.8 Counterparts.................................................................52
SECTION 10.9 Headings ....................................................................52
SECTION 10.10 Assignment to Indenture Trustee..............................................52
SECTION 10.11 No Petition Covenants........................................................52
SECTION 10.12 Further Assurances...........................................................52
SECTION 10.13 No Waiver; Cumulative Remedies...............................................52
SECTION 10.14 Merger and Integration.......................................................52
SECTION 10.15 Limitation of Liability of Indenture Trustee and
Owner Trustee................................................................53
</TABLE>
<TABLE>
<S> <C>
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 and Rules of Construction
APPENDIX B Notices and Addresses
</TABLE>
-iii-
<PAGE> 5
THIS TRUST SALE AND SERVICING AGREEMENT is made as of May 18,
1999, by and among GENERAL MOTORS ACCEPTANCE CORPORATION, a Delaware corporation
("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 V, a Delaware business trust (the "Issuer" or the
"Trust").
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 Part I of 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, the exhibits hereto and the capitalized terms used herein which
are defined in Appendix A, and all references herein to Articles, Sections and
subsections are to Articles, Sections or subsections of this Agreement unless
otherwise specified. The rules of construction set forth in Part II of Appendix
A shall be applicable to this Agreement.
<PAGE> 6
ARTICLE II
CONVEYANCE OF ELIGIBLE RECEIVABLES;
ISSUANCE OF INITIAL SECURITIES
SECTION 2.1 Conveyance of Eligible Receivables.
(a) In consideration of the Issuer's delivery on the Initial
Closing Date of the 1999-A Term Notes, the 1999-RN1 Revolving Note and the
1999-A Certificates with an initial Certificate Balance of $185,800,000 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 hereto) 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 (including all Interest Collections received in the calendar month in
which the Initial Cut-Off Date occurs, whether or not received prior to the
Initial Cut-Off Date), (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.
(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
-2-
<PAGE> 7
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
(or such later date as may be permitted pursuant to Section 6.2), 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 Acknowledgments.
(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 Agreement, the Seller delivered to the Owner 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
-3-
<PAGE> 8
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 or any other instalment sales program or similar
arrangement, the party discovering such breach shall give prompt written notice
thereof to the others. No later than the second Business Day following discovery
or receipt of notice of breach or deferral by the Seller and the Servicer,
unless and to the extent, in the case of breach, such breach shall have been
cured in all material respects, in the event of a breach of the representations
and warranties made by the Seller in Section 2.4 or Section 3.1(b), the Seller
shall repurchase such Receivable, or in the event of a breach of a
representation and warranty under Section 4.01(a) of the Pooling and Servicing
Agreement or a deferral, the Seller and the Servicer shall use reasonable
efforts to enforce the obligation of GMAC under Section 4.01(a) of the Pooling
and Servicing Agreement to repurchase such Receivable from the Issuer on such
date; provided, however, that with respect to any breach of a representation or
warranty or a deferral that affects less than the entire principal amount of any
Receivable, although the Warranty Payment shall be paid promptly as described
below, no repurchase and assignment shall be required until the remaining
principal amount of such Receivable is collected in full or written off as
uncollectible. The purchase price to be paid by the Seller or GMAC shall be an
amount equal to the principal amount of such Receivable (in the case of a breach
or a deferral affecting less than the entire principal amount of a Receivable,
to the extent of the breach or deferral) plus all accrued and unpaid interest
thereon through the date of purchase (the "Warranty Payment") to the extent of
such breach of a representation or warranty or 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,
-4-
<PAGE> 9
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(a), the Trust shall automatically and without further action be
deemed to have sold, transferred, assigned and otherwise conveyed to the Seller
or Servicer, as appropriate, without recourse, representation or warranty, as of
the date of such payment, all right, title and interest of the Trust in, to and
under such Receivable, all monies due or to become due with respect thereto on
and after such payment date and all proceeds thereof and, if such repurchase is
made in connection with the repurchase hereunder of all other Receivables in the
related Account held by the Trust, the related Collateral Security. The Owner
Trustee and the Indenture Trustee shall execute such documents and instruments
of transfer or assignment and take such other actions as shall be reasonably
requested by the 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
-5-
<PAGE> 10
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, the Seller shall enforce
its rights under the Pooling and Servicing Agreement arising from such breach.
SECTION 2.7 Addition of Accounts.
(a) Voluntary Addition. The Seller may from time to time, in
its sole discretion, subject to the conditions specified in Section 2.7(b)
below, designate one or more Accounts as Additional Accounts to be included in
the Pool of Accounts by giving (or causing the Servicer to give on its behalf) a
written notice to the Indenture Trustee, the Owner Trustee and the Rating
Agencies specifying the Additional Cut-Off Date and the Addition Date (the
"Addition Notice"). An Addition Notice shall be provided on or before the fifth
Business Day but not more than the thirtieth day prior to the related Addition
Date. If Additional Accounts are to be included in the Pool of Accounts,
effective as of the related Addition Date, the Seller shall sell and assign to
the Trust, and the Trust shall purchase from the Seller, all of the Seller's
right, title and interest in, to and under the Eligible Receivables in the
Additional Accounts and the related Collateral Security, as more fully described
in the assignment referred to in subsection (b)(ii) below.
(b) Conditions. The Seller may convey to the Trust all
Eligible Receivables and the related Collateral Security in any Additional
Accounts in accordance with Section 2.7(a) only upon satisfaction of each of the
following conditions on or prior to the related Addition Date:
(i) the Seller shall represent and warrant that as of
the related Additional Cut-Off Date each such Additional Account is an
Eligible Account and that each Receivable arising thereunder identified
as an Eligible Receivable and conveyed to the Trust on such Addition
Date is an Eligible Receivable;
(ii) the Seller shall have delivered to the Owner
Trustee a duly executed written assignment in substantially the form of
Exhibit C hereto and the list required to be delivered pursuant to
Section 10.2(e);
(iii) the Seller shall have agreed to deposit in the
Collection Account all Collections with respect to Eligible Receivables
arising in such Additional Accounts since the Additional Cut-Off Date
within two Business Days after such Addition Date (or such later date
as may be permitted pursuant to Section 6.2(b);
(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;
-6-
<PAGE> 11
(vi) the Seller shall represent and warrant that the
designation of such Additional Accounts, the inclusion of such
Additional Accounts in the Pool of Accounts and the purchase of the
related Receivables shall not, in the reasonable belief of the Seller,
result in the occurrence of an Early Amortization Event;
(vii) the Schedule of Accounts shall have been amended to
reflect such Additional Accounts and the Schedule of Accounts as so
amended shall be true and correct as of the Addition Date;
(viii) the Seller shall have delivered to the Indenture
Trustee and the Owner Trustee a certificate of an Authorized Officer of
the Seller confirming the items set forth in clauses (i) through (vii)
above; and
(ix) the Seller shall have delivered to the Owner
Trustee an Opinion of Counsel substantially in the form of Exhibit D
hereto.
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
-7-
<PAGE> 12
(iii) on or before the related Removal Commencement Date,
the Seller shall have delivered to the Owner Trustee a certificate of
an Authorized Officer confirming the items set forth in clauses (i) and
(ii) above.
(c) Subject to the satisfaction of the conditions set forth in
Section 2.8(b), from and after the Removal Commencement Date with respect to a
Selected Account, (i) the Seller shall not transfer Receivables with respect to
such Selected Account to the Trust, and (ii) until the Removal Balance has been
reduced to zero all Principal Collections with respect to such Selected Account
shall be allocated to the oldest outstanding principal balance of Receivables
arising under such Selected Accounts and amounts so allocated to Receivables
owned by the Trust shall constitute Trust Principal Collections and shall reduce
the Removal Balance. The Removal Balance shall also be reduced to the extent
Receivables in the Selected Accounts held by the Trust on the Removal
Commencement Date become Defaulted Receivables.
(d) After the Removal Balance with respect to any such
Selected Account is reduced to zero, Collections thereon shall cease to be
allocated in accordance with Section 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 Owner Trustee stating that the Removal Commencement Date for such
Ineligible Account has occurred and specifying for each such Selected Account as
of the Removal Commencement Date its account number and the Removal Balance. The
Schedule of Accounts shall be amended to reflect such designation as of the
Removal Commencement Date.
(b) From and after the Removal Commencement Date with respect
to a Selected Account subject to this Section 2.9, the Seller shall not transfer
Receivables with respect to such Selected Account to the Trust and, until the
Removal Balance has been reduced to zero, all Principal Collections with respect
to such Selected Account shall be allocated to the oldest outstanding principal
balance of Receivables arising under such Selected Account and amounts so
allocated to Receivables owned by the Trust shall constitute Trust Principal
Collections. After the Removal Balance with respect to any such Selected Account
has been reduced to zero, Collections thereon shall cease to be allocated in
accordance with the preceding sentence and such Selected Account shall be a
Removed Account and the Servicer shall amend the Schedule of Accounts
accordingly. At any time after the Removal Date with respect to such Removed
Account, the Owner Trustee shall assign to the Seller, without recourse,
representation or warranty, effective as of the Removal Date,
-8-
<PAGE> 13
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 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
-9-
<PAGE> 14
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.
(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
-10-
<PAGE> 15
Accounts included in the Pool of Accounts pursuant to this Agreement
the Seller had good and marketable title to such Receivables, free of
any Lien; and, upon execution and delivery of this Agreement by the
Seller, the Issuer shall have all of the right, title and interest of
the Seller in, to and under the Eligible Receivables in the Accounts
included in the Pool of Accounts, free of any Lien.
(ii) All Filings Made. All filings (including, without
limitation, UCC filings) necessary in any jurisdiction to give the
Issuer a first priority perfected ownership interest in the Eligible
Receivables in the Accounts in the Pool of Accounts shall have been
made.
(c) Reassignment of All Receivables.
(i) If any representation or warranty under Section
3.1(a) or (b) is not true and correct as of the date specified therein
and such breach has a material adverse effect on the interests of the
Securityholders, then any of the Indenture Trustee, the Owner Trustee
and the holders of outstanding Securities evidencing not less than a
majority of the Outstanding Amount and a majority of the Voting
Interests of all outstanding Certificates, by written notice to the
Seller with a copy to the Servicer, the Indenture Trustee and the Owner
Trustee, may direct the Seller to accept the reassignment of all
Receivables held by the Trust and the related Collateral Security
pursuant to this Section 3.1(c) within 60 days of such notice, or
within such longer period specified in such notice and pay the
Reassignment Amount on any Distribution Date within such period;
provided, however, that no such reassignment shall be made if, prior to
the time such reassignment is to occur, the breached representation or
warranty shall then be true and correct in all material respects and
any material adverse effect caused thereby shall have been cured.
(ii) Upon the reassignment of all Receivables held by the
Trust and the related Collateral Security, subject to the payment to
the Trust of the Reassignment Amount, the Trust shall automatically and
without further action be deemed to sell, transfer, assign and
otherwise convey to the Seller, without recourse, representation or
warranty, all the right, title and interest of the Trust in and to such
Receivables and such related Collateral Security. Each of the Indenture
Trustee and the Owner Trustee shall execute such documents and
instruments of transfer or assignment and take such other actions as
they shall reasonably be requested by the Seller to effect the
conveyance pursuant to this Section 3.1(c).
(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.
-11-
<PAGE> 16
SECTION 3.3 Merger or Consolidation of, or Assumption of the
Obligations of, Seller; Amendment of Certificate of Incorporation.
(a) Any Person (i) into which the Seller may be merged or
consolidated, (ii) resulting from any merger or consolidation to which the
Seller shall be a party, (iii) succeeding to the business of the Seller or (iv)
more than 50% of the voting interests of which is owned directly or indirectly
by General Motors, which Person in any of the foregoing cases (other than the
Seller as the surviving entity of such merger or consolidation) executes an
agreement of assumption to perform every obligation of the Seller under this
Agreement shall be the successor to the Seller under this Agreement without the
execution or filing of any document or any further act on the part of any of the
parties to this Agreement, anything in this Agreement to the contrary
notwithstanding. The Seller shall provide 10 days' prior notice of any merger,
consolidation or succession pursuant to this Section 3.3 to the Rating Agencies.
(b) The Seller hereby agrees that during the term of this
Agreement it shall not (i) take any action prohibited by Article Fourth of its
certificate of incorporation, (ii) without the prior written consent of the
Indenture Trustee and the Owner Trustee and without giving prior written notice
to the Rating Agencies, amend Article Third or Fourth of its certificate of
incorporation or (iii) incur any indebtedness, or assume or guaranty
indebtedness of any other entity, other than as contemplated by the Basic
Documents or pursuant to the Intercompany Advance Agreement (without giving
effect to any amendment to the Intercompany Advance Agreement after the date
hereof, unless the Rating Agency Condition for each series or class of
Securities then outstanding was satisfied in connection therewith) if such
action would result in a downgrading of the then current rating of any
outstanding series or class of Securities by a Rating Agency for such series or
class.
-12-
<PAGE> 17
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 for errors in judgment; provided, however,
that this provision shall not protect the Seller or any such Person against any
liability that would otherwise be imposed by reason of wilful misfeasance, bad
faith or negligence (except errors in judgment) in the performance of duties or
by reason of reckless disregard of obligations and duties under the Basic
Documents. The Seller and any director or officer or employee or agent of the
Seller may rely in good faith on the advice of counsel or on any document of any
kind prima facie properly executed and submitted by any Person respecting any
matters arising under the Basic Documents.
(b) The Seller and any director, officer or employee of the
Seller shall be reimbursed by the Owner Trustee for any contractual damages,
liability or expense incurred by reason of such trustee's wilful misfeasance,
bad faith or negligence (except errors in judgment) in the performance of such
trustee's duties under such agreement or the Trust Agreement or by reason of
reckless disregard of its obligations and duties under such agreements. The
Seller shall not be under any obligation to appear in, prosecute or defend any
legal action that is not incidental to its obligations as Seller of the
Receivables and related Collateral Security under this Agreement and that in its
opinion may involve it in any expense or liability.
SECTION 3.5 Seller May Own Notes or Certificates. Each of the
Seller and any Affiliate of the Seller may in its individual or any other
capacity become the owner or pledgee of Notes or Certificates with the same
rights (except as otherwise specifically provided in the Basic Documents) as it
would have if it were not the Seller or an Affiliate thereof. Except as
otherwise specifically provided in the Basic Documents, Notes or Certificates so
owned by or pledged to the Seller or such Affiliate shall have an equal and
proportionate benefit under the provisions of this Agreement, without
preference, priority or distinction as among all of such Notes or Certificates,
respectively.
ARTICLE IV
SERVICER'S COVENANTS; DISTRIBUTIONS; RESERVE FUNDS;
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,
2000, 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
-13-
<PAGE> 18
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, 2000 with respect to
the twelve months ended on the immediately preceding June 30 (or, with respect
to the first such report, such period as shall have elapsed from the Initial
Closing Date to the date of such certificate), a report (the "Accountants'
Report") addressed to the Board of Directors of the Servicer and to the
Indenture Trustee and the Owner Trustee, to the 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
-14-
<PAGE> 19
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 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, for each of the four (4) Determination Dates
immediately preceding the Determination Date preceding the Targeted Final
Payment Date for the Term Notes, 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 Notes or, if principal
payments are then required to be made (or set aside) under any series of Notes,
the Revolving Period, Available Trust Principal, Aggregate Noteholders'
Principal, Aggregate Revolver Principal, Aggregate Certificateholders'
Principal, the Required Revolver Payment, unreimbursed Trust Charge-Offs, the
Trust Defaulted Amount and the Principal Allocation Percentage for each series
of Notes, 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 Accumulation
Accounts, the Note Distribution Account, the Revolver Distribution Account, the
Certificate Distribution Account, the SWIFT V Reserve Funds and any other
Designated Account on the next succeeding Distribution Date and (iii) on each
Business Day that any series of Notes requires Available Trust Principal to be
retained or set aside with respect to such series of Notes, the Principal
Allocation Percentage and the
-15-
<PAGE> 20
maximum amount required to be set aside for such series of Notes. 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 priority of clauses (1), (2)
and (3) below:
CLAUSE (1) For each Collection Period, the Indenture Trustee will apply
Trust Interest Collections together with the other amounts comprising Available
Trust Interest for the related Distribution Date in the following order of
priority:
(a) an amount equal to the Monthly Servicing Fee for such
Distribution Date will be paid to the Servicer; and
(b) an amount equal to the Trust Interest Allocation for each
series of Notes will be made available to that series and applied in
clause (2) below.
CLAUSE (2) On each Distribution Date, the Indenture Trustee will apply
the amounts from clause (1)(b), together with the funds specified below, to each
series of Notes as follows:
(A) FOR THE 1999-A TERM NOTES:
(i) the Indenture Trustee will identify and make available
the amounts identified in the following clauses (A) through
(E) below:
(A) the Trust Interest Allocation for the 1999-A Term
Notes;
(B) the net amount, if any, received by the Trust
under the 1999-A Term Notes Basis Swap;
(C) all Note Distribution Subaccount Earnings in
respect of the 1999-A Term Notes;
(D) all Cash Accumulation Account Earnings; and
(E) if the 1999-A Term Notes are then in a Cash
Accumulation Period and if the amounts specified in the
foregoing subclauses (A) through (D) are less than the
1999-A Term Notes Monthly Carrying Costs for such
Distribution Date, then the lesser of
(x) such shortfall,
-16-
<PAGE> 21
(y) the Cash Accumulation Reserve Fund Release
Amount and
(z) the amount of funds on deposit in the Cash
Accumulation Reserve Fund.
The amounts identified and made available pursuant to the
foregoing clauses (2)(a)(i)(A) through (E) will be the "1999-A
TERM NOTES MONTHLY AVAILABLE AMOUNT" for such Distribution
Date.
(ii) Next, the Indenture Trustee will aggregate and apply
the 1999- A Term Notes Monthly Available Amount as follows:
(A) first, the lesser of
(x) the 1999-A Term Notes Monthly Available Amount
and
(y) the net payment, if any, due from the Trust
under the 1999-A Term Notes Basis Swap
will be paid in accordance with the terms of the 1999-A
Term Notes Basis Swap; and
(B) second, the lesser of
(x) the 1999-A Term Notes Monthly Available Amount
remaining after the application in subclause (A) and
(y) an amount equal to the 1999-A Term Notes'
Noteholders' Interest for the related Distribution
Date
will be transferred to the Note Distribution Account for
payment of interest on the 1999-A Term Notes.
Any shortfall of the 1999-A Term Notes Monthly Available
Amount below the 1999-A Term Notes Monthly Carrying Costs will
be treated as a Series Shortfall for the 1999-A Term Notes.
Any excess of the 1999-A Term Notes Monthly Available Amount
over the 1999-A Term Notes Monthly Carrying Costs will be
treated as Remaining Interest Amounts.
(B) FOR THE 1999-RN1 REVOLVING NOTE:
(i) the Indenture Trustee will identify and make available
the amounts identified in the following clauses (A) and (B):
-17-
<PAGE> 22
(A) the Trust Interest Allocation for the 1999-RN1
Revolving Note; and
(B) the net amount, if any, received by the Trust
under the 1999-RN1 Revolving Note Basis Swap.
The amounts made available pursuant to the foregoing
clauses (2)(b)(i)(A) and (B) will be the "1999-RN1 REVOLVING
NOTE MONTHLY AVAILABLE AMOUNT."
(ii) Next, the Indenture Trustee will aggregate and apply
the 1999- RN1 Revolving Note Monthly Available Amount as
follows:
(A) first, the lesser of
(x) the 1999-RN1 Revolving Note Monthly Available
Amount and
(y) the net payment, if any, due from the Trust
under the 1999-RN1 Basis Swap
will be paid in accordance with the terms of the 1999-RN1
Basis Swap; and
(B) second, the lesser of
(x) the 1999-RN1 Revolving Note Monthly Available
Amount remaining after the application in subclause
(A) and
(y) an amount not to exceed the 1999-RN1 Revolving
Note's Noteholders' Interest for the related
Distribution Date
will be transferred to the Revolver Distribution Account
for payment of interest on the 1999-RN1 Revolving Note.
Any shortfall of the 1999-RN1 Revolving Note Monthly Available
Amount below the 1999-RN1 Revolving Note Monthly Carrying Costs will be
treated as a Series Shortfall for the 1999-RN1 Revolving Note. Any
excess of the 1999-RN1 Revolving Note Monthly Available Amount over the
1999-RN1 Revolving Note Monthly Carrying Costs will be treated as
Remaining Interest Amounts.
(C) FOR EACH OTHER SERIES OF NOTES, in accordance with the
terms of such series, the Indenture Trustee will apply (x) the Trust
Interest Allocation for such series, (y) any amounts received from or
owing under Specified Support Arrangements in accordance with
-18-
<PAGE> 23
the terms of such series of Notes and (z) if such series is a series of
Term Notes, Note Distribution Subaccount Earnings, if any, for such
series to pay the monthly carrying costs for such series of Term Notes.
Shortfalls in such applications will be treated as a Series Shortfall
for such series and excess amounts will be treated as Remaining
Interest Amounts.
CLAUSE (3) On each Distribution Date, the Indenture Trustee will
aggregate the Remaining Interest Amounts from all series of Notes and apply such
amounts in the following order of priority:
(a) with respect to any series of Notes which has a Series
Shortfall, pro rata on the basis of the respective Series Shortfalls,
an amount equal to the Series Shortfall for that series of Notes for
that Distribution Date will be transferred to the Note Distribution
Account in respect of such series or other applicable account for the
payment of amounts owing under the Basis Swap or in respect of interest
on such Notes;
(b) an amount equal to the net payment, if any, due from the
Trust under the 1999-A Certificates Basis Swap and under any Basis Swap
with respect to any other class of Certificates will be paid in
accordance with each such Basis Swap;
(c) an amount equal to any Servicer Advances not previously
reimbursed will be paid to the Servicer, except as otherwise provided
in the Trust Sale and Servicing Agreement and the Pooling and Servicing
Agreement;
(d) an amount equal to any Reserve Fund Deposit Amount for such
Distribution Date will be deposited into the Reserve Fund;
(e) pro rata among the following amounts specified in (A) and
(B) for such Distribution Date,
(i) an amount equal to the Cash Accumulation Reserve Fund
Deposit Amount will be deposited into the Cash Accumulation
Reserve Fund and
(ii) an amount equal to any deposit required under the terms
of any other Specified Support Arrangements will be deposited
into the account designated by the terms of such Specified
Support Arrangement;
(f) an amount equal to the Aggregate Certificateholders'
Interest for such Distribution Date will be transferred to the
Certificate Distribution Account;
(g) an amount equal to any Trust Defaulted Amount will be
treated as Additional Trust Principal on such Distribution Date;
(h) an amount equal to the aggregate amount of unreimbursed
Trust Charge-Offs will be treated as Additional Trust Principal on such
Distribution Date; and
-19-
<PAGE> 24
(i) an amount equal to the Certificate Reserve Fund Deposit
Amount for such Distribution Date will be deposited into the
Certificate Reserve Fund, if any.
(ii) To the extent the Monthly Available Amount is not
sufficient to make all payments required by clauses (1), (2) and (3) of
Section 4.5(c)(i), then the funds described below will be applied in
the following order:
First, if any Monthly Carrying Costs or any amounts
specified in Section 4.5(c)(i)(3)(a), (b) and (c) remain
unpaid, then a "Deficiency Amount" will exist for such
Distribution Date, and the Servicer shall make a Servicer
Advance equal to such Deficiency Amount to complete the
applications pursuant to such Section (but only to the
extent that the Servicer, in its sole discretion, expects to
recover such Servicer Advance from Remaining Interest
Amounts, applied as described above on subsequent
Distribution Dates, and from amounts applied to reimburse
Servicer Advances pursuant to the terms of any Officer's
Issuance Certificate (including Section I(E) of the
Officer's Issuance Certificate for the 1999-A Term Notes),
and such Servicer Advances will be applied to reduce such
Deficiency Amount in the priorities set forth above in
Section 4.5(c)(i) clauses (2) and (3); and
Second, if any Monthly Carrying Costs or any amounts
specified in Section 4.5(c) clauses (3)(a), (b), (c), (g)
and (h) for such Distribution Date (calculated after the
adjustment, if any, to Trust Interest Collections described
in subsection (v) below) remain unpaid after the application
described in the preceding clause First, then an Unsatisfied
Deficiency Amount will exist for such Distribution Date, and
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) clauses (1), (2) and (3);
provided that no amount shall be withdrawn from the Reserve
Fund and paid to the Servicer pursuant to Section 4.5(c)(i)
clause (3)(c) in order to reimburse the Servicer for
Servicer Advances with respect to Receivables that are not
Eligible Receivables (as determined by the Servicer in
accordance with its servicing procedures) and no amount
shall be applied to clauses (3)(d), (e), (f) or (i) of
Section 4.5(c)(i).
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) clause (3)(g), 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
-20-
<PAGE> 25
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 any other
deposits into the SWIFT V Reserve Funds.
(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
value 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 Trust Principal Collections and Available
Trust Principal in the following manner:
(i) On each Business Day during the Revolving Period, all
Trust Principal Collections and Additional Trust Principal shall be
applied as follows:
(A) if no series of Notes is then in a Payment Period or a
Rapid Amortization Period which is not an Early Amortization
Period during which Available Trust Principal is required to
be retained or set aside or paid to fund principal payments,
then
(1) if any Servicer Liquidity Advance for any series
of Term Notes is outstanding, an amount not to exceed the
product of Trust Principal Collections and a fraction, the
numerator of which is the outstanding principal balance of
such series of Term Notes and the denominator of which is
the outstanding principal balance of all Notes as of such
Business Day, shall be paid to the Servicer in
reimbursement of such Servicer Liquidity Advance and
-21-
<PAGE> 26
(2) all remaining Trust Principal Collections shall be
applied as provided in Section 4.5(d)(iii);
(B) if one or more series of Notes is then in a Payment Period
or a Rapid Amortization Period which is not an Early Amortization
Period during which Available Trust Principal is required to be
retained or set aside or paid to fund principal payments, then
(1) if any Servicer Liquidity Advance is outstanding
for any series of Term Notes that does not then require
Available Trust Principal to be retained or set aside to fund
principal payments with respect thereto, an amount not to
exceed the product of Trust Principal Collections and a
fraction, the numerator of which is the outstanding principal
balance of such series of Term Notes, and the denominator of
which is the outstanding principal balance of all Notes as of
such Business Day, shall be paid to the Servicer in
reimbursement of such Servicer Liquidity Advance, and
(2) each such series that requires Available Trust
Principal to be retained or set aside shall be allocated its
Principal Allocation Percentage of the Available Trust
Principal (prior to giving effect to any reimbursement of
Servicer Liquidity Advances with respect to such series for
such Business Day) and such amounts shall,
first, be applied to reimburse the Servicer for
any outstanding Servicer Liquidity Advances, if any,
related to such series and,
second, (and to the extent specified in the
Officer's Issuance Certificate with respect to such
series), be retained or set aside in the account
specified in the Officer's Issuance Certificate with
respect to such series, and
(3) any amounts in excess of the amount required to be
reimbursed, retained or set aside in the foregoing clauses (1)
and (2) shall be applied as provided in Section 4.5(d)(iii);
(ii) On each Business Day during the Revolving Period,
proceeds from the issuance of Securities and additional borrowings
under any Revolving Notes shall be applied
-22-
<PAGE> 27
(A) first, if so directed by the Seller, to the payment
of principal of any series of Notes then in a Payment Period,
(B) second, if so directed by the Seller, to the
reimbursement of Servicer Liquidity Advances and
(C) thereafter, as provided in Section 4.5(d)(iii);
(iii) On each Business Day during the Revolving Period, after
making the applications specified in Sections 4.5(d)(i) and 4.5(d)(ii),
the Indenture Trustee shall apply the amounts in the Collection Account
in respect of Trust Principal Collections for such Business Day, the
Cash Collateral Amount from the prior Business Day, proceeds from the
issuance of Securities and additional borrowings under the Revolving
Notes, and (if such Business Day is a Distribution Date) Additional
Trust Principal as follows:
(A) the Indenture Trustee shall set aside in the
Collection Account as the Cash Collateral Amount such amount
of funds as is necessary to maintain Trust Equilibrium, and
(B) the Indenture Trustee shall apply any remaining such
funds, if so directed by the Seller in its sole discretion, to
Trust Receivables Purchases or to make payments of principal
on any series of Revolving Notes (to the extent permitted
under the Officer's Issuance Certificate with respect to such
Revolving Notes);
(iv) On each Business Day during the Wind Down Period or an
Early Amortization Period, the Indenture Trustee shall
(A) with respect to each series of Notes,
(1) allocate to such series its Principal Allocation
Percentage of Available Trust Principal for such
Business Day,
(2) unless otherwise set forth in the Officer's
Issuance Certificate with respect to such series, after
the reimbursement of any Servicer Liquidity Advance with
respect to such series, set aside in the account
specified in the Officer's Issuance Certificate for such
series its Principal Allocation Percentage of Available
Trust Principal, and
(3) on each related Distribution Date pay the
amounts set aside along with the Principal Allocation
Percentage for such series of Available Trust Principal
for such Distribution Date as provided in the Officer's
Issuance Certificate with respect to such series of
Notes;
-23-
<PAGE> 28
(B) to the extent of any Available Trust Principal
remaining after the applications described in the preceding
clause (A), allocate such amounts to Priority Payment Amounts
and distribute them as specified in the applicable Officer's
Issuance Certificate or Certificate Issuance Order;
(C) to the extent of any Available Trust Principal
remaining after the applications described in the preceding
clauses (A) and (B), allocate to the Certificates any
remaining amounts up to the Aggregate Certificate Principal
for the related Distribution Date and pay to the
Certificateholders the amounts set aside along with any
unallocated Available Trust Principal for such Distribution
Date; and
(D) to the extent of any Available Trust Principal
remaining after the applications described in the preceding
clauses (A) through (C), pay such amounts to the Seller.
(v) The Indenture Trustee shall not make payments of principal
with respect to the Certificate Balance on any Certificates until all
Term Notes and all Revolving Notes are paid in full (or otherwise fully
provided for) and any Priority Payment Amount, if any, has been paid in
full.
(e) Unless otherwise set forth in the Officer's Issuance
Certificate with respect to a series of Term Notes, if the terms of any series
of Term Notes provide for a Servicer Liquidity Advance in the event a Required
Payment on such series cannot be made from other available funds, then to the
extent that a Required Payment for any Distribution Date during a Payment Period
for such series cannot be made as provided by the terms of such series (after
giving effect to all issuances of securities and additional borrowings under the
Revolving Notes on such Distribution Date), the Servicer shall make a Servicer
Liquidity Advance in an amount sufficient to complete such series' Required
Payment, to the extent that the Servicer, in its sole discretion, expects to
recover such Servicer Liquidity Advance from subsequent Trust Principal
Collections allocated as provided in subsection 4.5(d)(i), and such Servicer
Liquidity Advance shall be used to make such Required Payment.
(f) 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.
(g) 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
-24-
<PAGE> 29
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 SWIFT V Reserve Funds and the Reserve Fund.
(a) Each of the SWIFT V Reserve Funds shall include the money
and other property deposited and held therein pursuant to this Section 4.6 and
Section 4.5. The Seller shall make such deposits into any of the SWIFT V Reserve
Funds on the Initial Closing Date and from time to time thereafter 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 or the required amount for any other SWIFT V Reserve Fund may be
adjusted) as are specified herein or in any Officer's Issuance Certificate or
Certificate Issuance Order. None of the SWIFT V Reserve Funds shall under any
circumstances be deemed to be part of or otherwise included in the Trust.
(b) On the Initial Closing Date, the Seller shall deposit the
Reserve Fund Initial Deposit into the Reserve Fund. 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. 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 Noteholders 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. By its
authentication of any series of Notes issued pursuant to an Officer's Issuance
Certificate, the Indenture Trustee shall acknowledge and accept such trusts as
are specified therein with respect to any SWIFT V Reserve Fund established
thereunder.
(d) Each of the Seller and the Servicer agrees 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 any Officers'
-25-
<PAGE> 30
Issuance Certificate in any SWIFT V Reserve Fund and otherwise fully to
effectuate the purposes, terms and conditions of this Section 4.6 and any
Officer's Issuance Certificate. The Seller shall:
(i) promptly execute, deliver and file any financing
statements, amendments, continuation statements, assignments,
certificates and other documents with respect to such interests and
perform all such other acts as may be necessary in order to perfect or
to maintain the perfection of the Indenture Trustee's security
interest; and
(ii) make the necessary filings of financing
statements or amendments thereto within sixty days after the occurrence
of any of the following: (A) any change in their respective corporate
names or any trade names, (B) any change in the location of their
respective chief executive offices or principal places of business and
(C) any merger or consolidation or other change in their respective
identities or corporate structures; and shall promptly notify the
Indenture Trustee of any such filings.
SECTION 4.7 Net Deposits.
(a) The Servicer, the Seller, the Indenture Trustee and the
Owner Trustee may make any remittances pursuant to this Article IV net of
amounts to be distributed by the applicable recipient to such remitting party.
Nonetheless, each such party shall account for all of the above described
remittances and distributions as if the amounts were deposited and/or
transferred separately.
(b) 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 (except as otherwise provided in the Trust Agreement) deliver to each
Certificateholder to be made on such date and the Indenture Trustee shall
include with each distribution to each Term Noteholder and each
-26-
<PAGE> 31
Revolving Noteholder to be made on such date, a statement (which statement shall
also be provided to the Rating Agencies) prepared by the Servicer based on
information in the Servicer's Accounting furnished pursuant to Section 3.05 of
the Pooling and Servicing Agreement. Except as otherwise set forth in the
Officer's Issuance Certificate with respect to any series of Notes, each such
statement to be delivered to Securityholders shall set forth the following
information concerning the Term Notes, the Revolving Notes or the Certificates,
as appropriate, with respect to such Distribution Date or the preceding
Collection Period:
(i) the amount, if any, of the distribution
allocable to principal on each series of Term Notes and Revolving Notes
and to the Certificate Balance;
(ii) the amount, if any, of the distribution
allocable to interest on or with respect to each series or class of
Securities;
(iii) the aggregate Outstanding Amount for each
series of Term Notes, the Outstanding Amount of the Revolving Notes and
the Certificate Balance, each as of such date and after giving effect
to all payments reported under clause (i) above (or, in the case of any
Revolving Notes during the Revolving Period, unless principal payments
thereon are required on such Distribution Date, as of the last day of
such Collection Period);
(iv) the amount of outstanding Servicer Advances on
such date;
(v) the amount of the Monthly Servicing Fee paid
to the Servicer with respect to the related Collection Period or
Periods, as the case may be;
(vi) the per annum interest rate for the next
Distribution Date or Payment Date, as the case may be, for any series
or class of Securities with a variable or adjustable interest rate;
(vii) the amount, if any, withdrawn from or credited
to each of the SWIFT V Reserve Funds;
(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 each of the SWIFT V Reserve
Funds, 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.
-27-
<PAGE> 32
(b) Within the prescribed period of time for tax reporting
purposes after the end of each calendar year during the term of this Agreement,
the Indenture Trustee and the Owner Trustee shall furnish (or cause to be
furnished), to each Person who at any time during such calendar year shall have
been a holder of record of Notes or Certificates, respectively, and received any
payment thereon, a statement containing such information as may be required by
the Code and applicable Treasury Regulations to enable such Securityholder to
prepare its federal income tax returns.
(c) A copy of each statement provided pursuant to Section
4.8(a) shall be made available for inspection at the Corporate Trust Office.
SECTION 4.9 New Issuances; Changes in Specified Maximum
Revolver Balance.
(a) The Seller may from time to time after the Initial Closing
Date direct the Indenture Trustee or the Owner Trustee, as applicable, on behalf
of the Trust, to issue one or more series of Term Notes or Revolving Notes, or
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,
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;
-28-
<PAGE> 33
(iv) the Seller shall have delivered to the Indenture
Trustee or the Owner Trustee, as applicable, any related Specified
Support Arrangement executed by each of the parties thereto, other than
such Trustee;
(v) the Rating Agency Condition shall have been
satisfied with respect to such issuance or increase in the Specified
Maximum Revolver Balance; provided that any decrease in the Specified
Maximum Revolver Balance shall not be subject to such condition;
(vi) the Seller shall have delivered to the Indenture
Trustee and the Owner Trustee a certificate of a Vice President or more
senior officer, dated the Closing Date, to the effect that the Seller
reasonably believes that such issuance or increase or decrease shall
not result in the occurrence of an Early Amortization Event;
(vii) after giving effect to all issuances of Securities
and all changes in the Specified Maximum Revolver Balance on the
Closing Date, the quotient of (A) the outstanding Certificate Balance
of all then outstanding Certificates over (B) the Maximum Pool Balance
shall equal or exceed the Specified Certificate Percentage; and
(viii) with respect to the issuance of additional
Certificates (unless otherwise agreed by the holders of all outstanding
Certificates or unless the Rating Agency Condition is satisfied) 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 the issuance of
additional 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 equal to the product of (a) one-twelfth of the
Servicing Fee Rate and (b) the average daily balance of the Daily Trust Invested
Amount for the related Collection Period; provided, however, that with respect
to the first Distribution Date, the Monthly Servicing Fee shall be equal to the
product of (a) 14/360 of the
-29-
<PAGE> 34
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; Deposits; Investments.
(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 V 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 V 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. Upon the commencement of a Payment Period for a
series of Term Notes, the Servicer, for the benefit of the Term
Noteholders, shall establish a subaccount of the Note Distribution
Account (a "Note Distribution Subaccount") (which account may be kept
only on the books of the Trust) in which to maintain all the funds
deposited in the Note Distribution Account in respect of principal for
the series of Term Notes beginning its Payment Period.
(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 V 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 in the name of the Issuer an Eligible Deposit
Account known as the Superior Wholesale Inventory Financing Trust V
Certificate Distribution Account (the "Certificate Distribution
Account") bearing an additional designation clearly indicating that the
funds deposited therein are held for the benefit of the
Certificateholders.
(v) The Servicer, for the benefit of the
Securityholders, shall establish and maintain in the name of the
Indenture Trustee an Eligible Deposit Account known as the Superior
Wholesale Inventory Financing Trust V Reserve Fund (the "Reserve Fund")
bearing
-30-
<PAGE> 35
an additional designation clearly indicating that the funds deposited
therein are held for the benefit of the Securityholders.
(vi) The Servicer, for the benefit of the respective
Noteholders, shall establish and maintain in the name of the Indenture
Trustee any Eligible Deposit Accounts and subaccounts as set forth in
the Officer's Issuance Certificates with respect to such series of
Notes (each, an "Accumulation Account", and together with the Cash
Accumulation Account, the "Accumulation Accounts"), each bearing an
additional designation clearly indicating that the funds deposited
therein are held for the benefit of the Noteholders of such series of
Notes.
(vii) If Certificates are issued to a non-Affiliate of the
Seller, the Servicer, for the benefit of such Certificateholders, may
establish and maintain in the name of the Indenture Trustee an Eligible
Deposit Account known as the Superior Wholesale Inventory Financing
Trust V Certificate Reserve Fund (the "Certificate Reserve Fund")
bearing an additional designation clearly indicating that the funds
deposited therein are held for the benefit of such Certificateholders.
As of the Initial Closing Date, there is no Certificate Reserve Fund.
(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 (other than the Cash Accumulation Account and any other
Designated Account with respect to a series of Notes specified otherwise in the
Officer's Issuance Certificate with respect to such Series of Notes) (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 (provided, however, with respect to a series of Term Notes, the
Officer's Issuance Certificate with respect to such series of Term Notes may
provide that under specified conditions a person other than the Servicer shall
direct the investment of funds in deposit in the Designated Accounts with
respect to such series of Term Notes on the terms set forth in such Officer's
Issuance Certificate), 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 (or such other Person) that any such
investment is authorized by this Section 6.1. Funds deposited in each of the
Reserve Funds 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
-31-
<PAGE> 36
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,
Shared Investment Proceeds shall be included in Available Trust Interest and
applied as set forth in Section 4.5(c). The Indenture Trustee or the other
Person holding the Designated Accounts as provided in this Section 6.1(b)(i)
shall be the "Securities Intermediary." If the Securities Intermediary shall be
a Person other than the Indenture Trustee, the Servicer shall obtain the express
agreement of such Person to the obligations of the Securities Intermediary set
forth in this Section 6.1 and an Opinion of Counsel that such Person can perform
such Obligations.
(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. The Designated Accounts are accounts to which
Financial Assets will be credited.
(B) All securities or other property underlying
any Financial Assets credited to the Designated Accounts shall
be registered in the name of the Securities Intermediary,
indorsed to the Securities Intermediary or in blank or
credited to another securities account maintained in the name
of the Securities Intermediary and in no case will any
Financial Asset credited to any of the Designated Accounts be
registered in the name of the Issuer, the Servicer or the
Seller, payable to the order of the Issuer, the Servicer or
the Seller or specially indorsed to the Issuer, the Servicer
or the Seller except to the extent the foregoing have been
specially indorsed to the Securities Intermediary or in blank.
(C) All property delivered to the Securities
Intermediary pursuant to this Agreement will be credited upon
receipt of such property to the appropriate Designated
Account.
(D) Each item of property (whether investments,
investment property, Financial Asset, security, instrument or
cash) credited to a Designated Account shall be treated as a
"financial asset" within the meaning of Section 8-102(a)(9) of
the New York UCC.
(E) If at any time the Securities Intermediary
shall receive any order from the Indenture Trustee directing
transfer or redemption of any Financial Asset relating to the
Designated Accounts, the Securities Intermediary shall comply
with such order without further consent by the Trust, the
Servicer, the Seller or any other Person.
(F) The Designated Accounts shall be governed by
the laws of the State of New York, regardless of any provision
in any other agreement. For purposes of the UCC, New York
shall be deemed to be the
-32-
<PAGE> 37
Securities Intermediary's jurisdiction and the Designated
Accounts (as well as the Security Entitlements related
thereto) shall be governed by the laws of the State of New
York.
(G) The Securities Intermediary has not entered
into, and until the termination of this Agreement will not
enter into, any agreement with any other Person relating to
the Designated Accounts and/or any Financial Assets or other
property credited thereto pursuant to which it has agreed to
comply with entitlement orders (as defined in Section
8-102(a)(8) of the New York UCC) of such other Person and the
Securities Intermediary has not entered into, and until the
termination of this Agreement will not enter into, any
agreement with the Issuer, the Seller, the Servicer or the
Indenture Trustee purporting to limit or condition the
obligation of the Securities Intermediary to comply with
entitlement orders as set forth in Section 6.1(b)(ii)(E)
hereof.
(H) Except for the claims and interest of the
Indenture Trustee in the Designated Accounts, the Securities
Intermediary has no knowledge of claims to, or interests in,
the Designated Accounts or in any Financial Asset credited
thereto. If any other Person asserts any Lien, encumbrance or
adverse claim (including any writ, garnishment, judgment,
warrant of attachment, execution or similar process) against
the Designated Accounts or in any Financial Asset carried
therein, the Securities Intermediary will promptly notify the
Indenture Trustee, the Servicer and the Issuer thereof.
(I) The Securities Intermediary will promptly
send copies of all statements, confirmations and other
correspondence concerning the Designated Accounts and/or any
Designated Account Property simultaneously to each of the
Servicer and the Indenture Trustee, at the addresses set forth
in Appendix B to this Agreement.
(J) 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.
(K) The Servicer or other Person directing the
investment of funds in the Designated Accounts shall not
direct the Indenture Trustee to:
(1) invest in any Physical Property, any
Uncertificated Security that is not a Federal
Book-Entry Security or any Certificated Security
unless the Indenture Trustee takes Delivery of
such item; or
-33-
<PAGE> 38
(2) invest in any Security Entitlement or
Federal Book-Entry Security unless the Indenture
Trustee obtains Control over such investment.
(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.
(iv) The Indenture Trustee shall possess all right,
title and interest in and to all funds on deposit from time to time in
the Designated Accounts and in all proceeds thereof (except Investment
Proceeds). Except as otherwise provided herein or in the Indenture, the
Designated Accounts shall be under the exclusive dominion and control
of the Indenture Trustee for the benefit of the Securityholders and the
Indenture Trustee shall have sole signature power and authority with
respect thereto.
(v) The Servicer shall not direct the Indenture
Trustee to make any investment of any funds or to sell any investment
held in any of the Designated Accounts unless the security interest
granted and perfected in such account shall continue to be perfected in
such investment or the proceeds of such sale, in either case without
any further action by any Person, and, in connection with any direction
to the Indenture Trustee to make any such investment or sale, if
requested by the Indenture Trustee, the Servicer shall deliver to the
Indenture Trustee an Opinion of Counsel, acceptable to the Indenture
Trustee, to such effect.
(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, the Securities
Intermediary and each other Eligible Deposit Institution with whom a Designated
Account or the Certificate
-34-
<PAGE> 39
Distribution Account is maintained 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,
(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, and
(iv) no Daily Remittance Period specified in the
Officer's Issuance Certificate of any series of Notes is in effect
(each of clause (i), (ii), (iii) and (iv), a "Monthly Remittance Condition"),
then, subject to any limitations in the confirmations described in (C) above, if
then applicable, the Servicer need not deposit Trust Principal Collections and
Trust Interest Collections into the Collection Account on a daily basis during a
Collection Period or make the deposits on any dates during such Collection
Period otherwise specified in Sections 2.1(d), 2.6(b) and 2.7(b)(iii), 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 the related 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; 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
-35-
<PAGE> 40
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 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
-36-
<PAGE> 41
administration of the Trust Estate, except in each case to the extent
that such cost, expense, loss, claim, damage or liability: (A) is due
to the wilful misfeasance, bad faith or negligence (except for errors
in judgment) of the Person seeking to be indemnified, (B) to the extent
otherwise payable to the Indenture Trustee, arises from the Indenture
Trustee's breach of any of its representations or warranties in Section
6.13 of the Indenture, (C) to the extent otherwise payable to the Owner
Trustee, arises from the Owner Trustee's breach of any of its
representations or warranties set forth in Section 6.6 of the Trust
Agreement or (D) shall arise out of or be incurred in connection with
the performance by the Indenture Trustee of the duties of successor
Servicer hereunder.
(b) Indemnification under this Section 7.1 shall include,
without limitation, reasonable fees and expenses of counsel and expenses of
litigation. If the Servicer has made any indemnity payments pursuant to this
Section 7.1 and the recipient thereafter collects any of such amounts from
others, the recipient shall promptly repay such amounts collected to the
Servicer, without interest.
SECTION 7.2 Merger or Consolidation of, or Assumption of the
Obligations of, the Servicer. Any Person (a) into which the Servicer may be
merged or consolidated, (b) resulting from any merger, conversion or
consolidation to which the Servicer shall be a party, (c) succeeding to the
business of the Servicer or (d) more than 50% of the voting interests of which
is owned, directly or indirectly, by General Motors and which is otherwise
servicing dealer receivables, which Person in any of the foregoing cases (other
than the Servicer as the surviving entity of any such merger or consolidation)
executes an agreement of assumption to perform every obligation of the Servicer
under this Agreement and the Pooling and Servicing Agreement, shall be the
successor to the Servicer under this Agreement and the Pooling and Servicing
Agreement without the execution or filing of any document or any further act on
the part of any of the parties to this Agreement, anything in this Agreement or
in the Pooling and Servicing Agreement to the contrary notwithstanding. The
Servicer shall provide notice of any merger, consolidation or succession
pursuant to this Section 7.2 to the Rating Agencies.
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.
-37-
<PAGE> 42
(b) The Servicer and any director, officer or employee of the
Servicer shall be reimbursed by the Owner Trustee for any contractual damages,
liability or expense (including, without limitation, any obligation of the
Servicer to the Indenture Trustee pursuant to subsection 7.1(a)(iii)(y) or (z))
incurred by reason of the Owner Trustee's wilful misfeasance, bad faith or
negligence (except errors in judgment) in the performance of such trustee's
duties under this Agreement or the Trust Agreement or by reason of reckless
disregard of its obligations and duties under such agreements.
(c) Except as provided in this Agreement or in the Pooling and
Servicing Agreement, the Servicer shall not be under any obligation to appear
in, prosecute or defend any legal action that is not incidental to its duties to
service the Receivables arising under the Accounts in the Pool of Accounts in
accordance with this Agreement and the Pooling and Servicing Agreement and that
in its opinion may cause it to incur any expense or liability; provided,
however, that the Servicer may undertake any reasonable action that it may deem
necessary or desirable in respect of the Basic Documents and the rights and
duties of the parties to the Basic Documents and the interests of the
Securityholders under the Basic Documents. In such event, the legal expenses and
costs for such action and any liability resulting therefrom shall be expenses,
costs and liabilities of the Trust and the Servicer shall be entitled to be
reimbursed therefor.
(d) The Applicable Trustee shall distribute out of the
Collection Account on a Distribution Date any amounts permitted for
reimbursement pursuant to subsection 7.3(c) not therefor 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.
-38-
<PAGE> 43
ARTICLE VIII
DEFAULT
SECTION 8.1 Servicing Defaults. Each of the following shall
constitute a "Servicing Default":
(a) any failure by the Servicer to deliver to the Indenture
Trustee for deposit in any of the Designated Accounts or to the Owner Trustee
for deposit in the Certificate Distribution Account any required payment or to
direct the Indenture Trustee or the Owner Trustee to make any required
distribution therefrom, which failure continues unremedied for a period of five
Business Days after written notice is received by the Servicer from the
Indenture Trustee or the Owner Trustee or after discovery of such failure by an
officer of the Servicer;
(b) any failure on the part of the Servicer duly to observe or
perform in any material respect any other covenant or agreement of the Servicer
set forth in this Agreement, the Pooling and Servicing Agreement, the Indenture
or the Trust Agreement, 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, marshaling 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,
marshaling 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
-39-
<PAGE> 44
failure giving rise to such Servicing Default was caused by an act of God or the
public enemy, acts of declared or undeclared war, public disorder, rebellion or
sabotage, epidemics, landslides, lightning, fire, hurricanes, earthquakes,
floods or similar causes. The preceding 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, the Certificate
Distribution Account or any other Designated 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 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.
-40-
<PAGE> 45
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 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.
-41-
<PAGE> 46
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, 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.
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
-42-
<PAGE> 47
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), (iii) and (iv) all amounts required to be paid as principal on any
Notes or distributed as Certificate Balance on any Certificates on the
applicable Stated Final Payment Date;
(e) failure on the part of the Seller, the Servicer or GMAC,
as applicable, to duly observe or perform in any material respect any other
covenants or agreements of the Seller, the Servicer or GMAC, as the case may be,
set forth in this Agreement or the Pooling and Servicing Agreement, which
failure continues unremedied for a period of 60 days after the date on which
written notice of such failure, requiring the same to be remedied, shall have
been given by the Indenture Trustee or the Owner Trustee to the Seller,
provided, however, that no Early Amortization Event shall be deemed to occur if
the Receivables affected by such failure are repurchased by the Seller or the
Servicer or GMAC (if GMAC is not the Servicer), as applicable, in accordance
with the Basic Documents;
(f) any representation or warranty made by GMAC in the Pooling
and Servicing Agreement or the Seller in this Agreement or any information
contained on the Schedule of Accounts, (i) shall prove to have been incorrect in
any material respect when made or when delivered, and shall continue to be
incorrect in any material respect for a period of 60 days after the date on
which written notice of such failure, requiring the same to be remedied, shall
have been given to the Seller by the Indenture Trustee or the Owner Trustee and
(ii) as a result of such incorrectness the interests of the Securityholders are
materially and adversely affected, provided, however, that no Early Amortization
Event shall be deemed to occur if the Receivables relating to such
representation or warranty are repurchased by GMAC or the Seller, as applicable,
in accordance with the Basic Documents;
(g) on any Distribution Date, the average of the Monthly
Payment Rates for the three preceding Collection Periods is less than 25%;
(h) on any three consecutive Distribution Dates, the amount on
deposit in the Reserve Fund is less than the Reserve Fund Required Amount;
(i) on any Distribution Date, as of the last day of the
related Collection Period, the aggregate principal balance of Receivables owned
by the Trust which were advanced against Used Vehicles exceeded 20% 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);
-43-
<PAGE> 48
(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 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 or an Insolvency Event with respect to a Basis Swap
Counterparty;
(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; or
(o) 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.
SECTION 9.2 Insolvency Events.
(a) Upon any sale, disposition or other liquidation of the
assets of the Trust pursuant to Article V of the Indenture, the Servicer shall
instruct the Indenture Trustee to deposit into the Collection Account the
amounts specified in Section 5.4(b) of the Indenture (the "Insolvency
-44-
<PAGE> 49
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
any of the Reserve Funds 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
from and after the time that,
(a) the Daily Trust Balance is less than or equal to 10% of an
amount equal to the highest sum, on any date since the Initial Closing Date, of
the Daily Trust Balance plus the Cash Collateral Amount plus amounts on deposit
in the Cash Accumulation Account and Note Distribution Account (all such amounts
being calculated as of the close of business on such day), and
(b) either
(i) there are no Term Notes then outstanding or
(ii) the Wind Down Period is then in effect,
the Servicer shall have the option to purchase, as of the last day of any
Collection Period, the assets of the Trust other than the Designated Accounts
and the Certificate Distribution Account. To exercise such option, with respect
to any Collection Period, the Servicer shall deposit in the Collection Account
an amount equal to the aggregate Administrative Purchase Payments for the
Receivables (including Defaulted Receivables) held by the Trust on the last day
of such Collection Period, plus the appraised value of any such other property
held by the Trust, such value to be determined by an appraiser mutually agreed
upon by the Servicer, the Owner Trustee and the Indenture Trustee (such amount
will not be less than the outstanding principal balance and unpaid interest on
all Notes). 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 Trust Principal
Collections received during such Collection Period to the extent of the
principal portion of the aggregate Administrative Purchase Payment so paid, with
the remainder being treated as Trust Interest Collections received during such
Collection Period.
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
-45-
<PAGE> 50
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 each of the Reserve
Funds and the Collection Account (after all other distributions required to be
made from each of the Reserve Funds 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.
SECTION 9.5 Recommencement of Revolving Period.
(a) If an Early Amortization Event described in Section
9.1(i), (j) or (l) has occurred with the result that the Revolving Period has
terminated and the Early Amortization Period has commenced, the Seller may
nonetheless elect to terminate the Early Amortization Period and recommence the
Revolving Period, but only if
(i) such recommencement begins no later than the first
anniversary of the termination of the Revolving Period;
(ii) as of the date of recommencement, if the event
giving rise to such Early Amortization Event was Section 9.1(i) or (l),
such event was not reoccurring on each of the three Distribution Dates
immediately preceding the date of recommencement or, if the event
giving rise to such Early Amortization Event was Section 9.1(j), the
provisions of the proviso thereof have been satisfied;
(iii) the Final Revolving Period Termination Date has not
occurred;
(iv) the long term debt obligations of GMAC are rated at
least "Baa3" by Moody's;
(v) the Reserve Fund Funding Condition is satisfied; and
(vi) after giving effect to all issuances of securities
and all changes in the Specified Maximum Revolver Balance on the date
of the recommencement, the quotient of
(A) the outstanding Certificate Balance of all
outstanding Certificates over
(B) the Maximum Pool Balance shall equal or exceed
the Specified Certificate Percentage.
-46-
<PAGE> 51
Written notice of such election to recommence the Revolving Period must be given
to the Servicer, the Owner Trustee, the Indenture Trustee and the Rating
Agencies at least ten Business Days prior to the proposed date of
recommencement.
(b) If the Revolving Period has terminated and the Wind Down
Period has commenced prior to the Final Revolving Period Termination Date, the
Seller may nonetheless elect to terminate the Wind Down Period and recommence
the Revolving Period, but only if
(i) such recommencement begins no later than the first
anniversary of the termination of the Revolving Period;
(ii) if an Early Amortization Event has occurred, the
Revolving Period was or on or before the recommencement date will be
recommenced in accordance with Section 9.5(a);
(iii) the Final Revolving Period Termination Date has not
occurred;
(iv) the Reserve Fund Funding Condition is satisfied; and
(v) after giving effect to all issuances of securities
and all changes in the Specified Maximum Revolver Balance on the date
of the recommencement, the quotient of
(A) the outstanding Certificate Balance of all
outstanding 1999-A Certificates over
(B) the Maximum Pool Balance shall equal or exceed
the Specified Certificate Percentage.
Written notice of such election to recommence the Revolving Period must be given
to the Servicer, the Owner Trustee, the Indenture Trustee and the Rating
Agencies at least ten Business Days prior to the proposed date of
recommencement.
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,
-47-
<PAGE> 52
(ii) to correct or supplement any provision in this
Agreement that may be defective or inconsistent with any other
provision in this Agreement or any other Basic Documents,
(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,
materially and 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, materially and adversely affect 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 affect the rating of any series or class
of Securities by any Rating Agency without the consent of the holders
of two-thirds of the Outstanding Amount of such series of Notes or the
Voting Interests of such class of Certificates, as appropriate, or
(iii) reduce the aforesaid percentage required to consent
to any such amendment, without the consent of such aforesaid percentage
of Securityholders.
-48-
<PAGE> 53
(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 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
-49-
<PAGE> 54
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 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.
-50-
<PAGE> 55
(g) The Servicer shall permit the Indenture Trustee and the
Owner Trustee and their respective agents at any time to inspect, audit and make
copies of and abstracts from the Servicer's records regarding any Receivable
then or previously included in the Owner Trust Estate.
(h) The Servicer shall furnish to the Indenture Trustee and
the Owner Trustee at any time upon request a list of all Accounts then included
in the Pool of Accounts, together with a reconciliation of such list to the
Schedule of Accounts as initially furnished hereunder and to each notice
furnished before such request indicating removal from or addition to the
Accounts in the Pool of Accounts. Upon request, the Servicer shall furnish a
copy of any such list to the Seller. The Indenture Trustee, the Owner Trustee
and the Seller shall hold any such list and the Schedule of Accounts and a copy
of the Pooling and Servicing Agreement, the Trust Sale and Servicing Agreement
and the Indenture for examination by interested parties during normal business
hours at their respective Corporate Trust Offices or, in the case of the Seller,
at its office, located at the addresses set forth in Section 10.3.
(i) The Servicer shall deliver to the Indenture Trustee and
the Owner Trustee promptly after the execution and delivery of this Agreement
and of each amendment or supplement hereto, an Opinion of Counsel either (a)
stating that, in the opinion of such counsel, all financing statements and
continuation statements have been executed and filed that are necessary fully to
preserve and protect the interest of the Indenture Trustee and the Owner Trustee
in the Receivables, and reciting the details of such filings or referring to
prior Opinions of Counsel in which such details are given, or (b) stating that,
in the opinion of such counsel, no such action is necessary to preserve and
protect such interest.
(j) To the extent required by law, the Seller shall cause the
Term Notes (other than any Unregistered Notes) to be registered with the
Securities and Exchange Commission pursuant to Section 12(b) or Section 12(g) of
the Exchange Act within the time periods specified in such sections.
SECTION 10.3 Notices. All demands, notices and communications
upon or to the Seller, the Servicer, the Indenture Trustee, the Owner Trustee or
the Rating Agencies under this Agreement shall be delivered as specified in
Appendix B hereto.
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
-51-
<PAGE> 56
enforceability of the other provisions of this Agreement or of any of the
Securities or rights of any Interested Parties.
SECTION 10.6 Assignment. Notwithstanding anything to the
contrary contained herein, this Agreement may not be assigned by the Seller
without the prior written consent of Noteholders whose Notes evidence not less
than 66% of the Outstanding Amount of the Notes as of the close of the preceding
Distribution Date and of Certificateholders whose Certificates evidence not less
than 66% of the Voting Interests as of the close of the preceding Distribution
Date. The Seller shall provide notice of any such assignment to the Rating
Agencies.
SECTION 10.7 Third-Party Beneficiaries. This Agreement shall
inure to the benefit of and be binding upon the parties hereto, the
Securityholders and their respective successors and permitted assigns. Except as
otherwise provided in Section 7.1 or in this Article X, no other person shall
have any right or obligation hereunder.
SECTION 10.8 Counterparts. This Agreement may be executed in
two or more counterparts (and by different parties on separate counterparts),
each of which shall be an original, but all of which together shall constitute
one and the same instrument.
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 UCC
of any applicable jurisdiction and to evidence the repurchase of any interest in
any Receivable by GMAC, the Seller or the Servicer.
-52-
<PAGE> 57
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 Chase Manhattan Bank Delaware not in its
individual capacity but solely in its capacity as Owner Trustee of the Issuer
and in no event shall Chase Manhattan Bank Delaware in its individual capacity
or, except as expressly provided in the Trust Agreement, as Owner Trustee of the
Issuer have any liability for the representations, warranties, covenants,
agreements or other obligations of the Issuer hereunder or in any of the
certificates, notices or agreements delivered pursuant hereto, as to all of
which recourse shall be had solely to the assets of the Issuer. For all purposes
of this Agreement, in the performance of its duties or obligations hereunder or
in the performance of any duties or obligations of the Issuer hereunder, the
Owner Trustee shall be subject to, and entitled to the benefits of, the terms
and provisions of Article VI of the Trust Agreement.
* * * * *
-53-
<PAGE> 58
IN WITNESS WHEREOF, the parties hereto have caused this Trust
Sale and Servicing 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 V, Issuer
By: Chase Manhattan Bank Delaware, not in its
individual capacity but solely as Owner Trustee
on behalf of the Trust
By:
-----------------------------------------
Name:
Title:
WHOLESALE AUTO RECEIVABLES CORPORATION,
Seller
By:
--------------------------------------------------
Name: N.L. Bugg
Title: Manager - Securitization
GENERAL MOTORS ACCEPTANCE CORPORATION,
Servicer
By:
--------------------------------------------------
Name: D.C. Walker
Title: Director - U.S. Funding & Securitization
<PAGE> 59
Acknowledged and Accepted:
The Bank of New York, not in its
individual capacity but solely
as Indenture Trustee,
By:
--------------------------------
Name:
Title:
Chase Manhattan Bank Delaware,
not in its individual capacity
but solely as Owner Trustee,
By:
--------------------------------
Name:
Title:
<PAGE> 60
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 May 18, 1999 (the "Trust Sale and Servicing
Agreement"), between General Motors Acceptance Corporation, a Delaware
corporation, as Servicer ("GMAC"), Wholesale Auto Receivables Corporation, a
Delaware corporation (the "Seller"), and Superior Wholesale Inventory Financing
Trust V (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 May 18, 1999, between GMAC and the Seller, with
respect to such Receivables, (iii) the Custodian Agreement with respect to such
Receivables and (iv) all proceeds of the foregoing (including "proceeds" as
defined in Section 9-306 of the UCC and Recoveries), in each case, as more fully
described in the Trust Sale and Servicing Agreement.
The foregoing sale, transfer, assignment and conveyance and
any sales, transfers, assignments and conveyances subsequent to the date hereof
do not constitute, and are not intended to result in, the creation or an
assumption by the Trust of any obligation of the Seller, GMAC, General Motors or
any other Person in connection with the Accounts, the Receivables or under any
agreement or instrument relating thereto, including any obligation to any
Dealers.
It is the intention of Seller and the Trust that the transfers
and assignments contemplated by this Assignment, including transfers and
assignments subsequent to the date hereof, shall constitute a sale of the
property described herein and in the Pooling and Servicing Agreement from the
Seller to the Trust and the beneficial interest in and title to such property
shall not be part of the Seller's estate in the event of the filing of a
bankruptcy petition by or against the Seller under any bankruptcy law.
This Assignment is made pursuant to and upon the
representations, warranties and agreements on the part of the undersigned
contained in the Trust Sale and Servicing Agreement and is to be governed by the
Trust Sale and Servicing Agreement.
Capitalized terms used herein and not otherwise defined shall
have the meaning assigned to them in the Trust Sale and Servicing Agreement.
* * * * *
-1-
<PAGE> 61
IN WITNESS WHEREOF, the undersigned has caused this Assignment
to be duly executed as of May 18, 1999.
WHOLESALE AUTO RECEIVABLES CORPORATION
By:
-----------------------------------------
Name: N.L. Bugg
Title: Manager - Securitization
-2-
<PAGE> 62
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
-1-
<PAGE> 63
EXHIBIT C
FORM OF ASSIGNMENT FOR EACH ADDITION DATE
For value received, in accordance with the Trust Sale and
Servicing Agreement, dated as of May 18, 1999 (the "Trust Sale and Servicing
Agreement"), between General Motors Acceptance Corporation, a Delaware
corporation, as Servicer ("GMAC"), Wholesale Auto Receivables Corporation, a
Delaware corporation (the "Seller") and Superior Wholesale Inventory Financing
Trust V (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 May 18, 1999, 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 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.
* * * * *
-1-
<PAGE> 64
IN WITNESS WHEREOF, the undersigned has caused this Assignment
to be duly executed as of , .
WHOLESALE AUTO RECEIVABLES CORPORATION
By:
----------------------------------------
Name:
Title:
-2-
<PAGE> 65
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 May 18, 1999 among General Motors Acceptance Corporation,
as servicer, Wholesale Auto Receivables Corporation, as Seller (the "Seller"),
and Superior Wholesale Inventory Financing Trust V.
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.
-1-
<PAGE> 66
APPENDIX A
PART I - DEFINITIONS
All terms defined in this Appendix shall have the defined meanings when
used in the Basic Documents, unless otherwise defined therein.
1999-A Certificate Basis Swap: The Class 1999-A Certificate
Basis Swap dated as of the Initial Closing Date between the Trust and GMAC, as
the Basis Swap Counterparty.
1999-A Certificate Notional Amount: With respect to any day
during a Collection Period, the outstanding Certificate Balance of the 1999-A
Certificates as of that date, including after giving effect to unreimbursed
Trust Charge-Offs as of the close of business on the Distribution Date during
that Collection Period.
1999-A Certificates: The Floating Rate Asset-Backed
Certificates, Class 1999-A described in the Trust Agreement.
1999-A Note Underwriting Agreement: The Note Underwriting
Agreement, dated as of May 6, 1999, between Bear, Stearns & Co. Inc., Salomon
Smith Barney and the Seller with respect to the sale of the 1999-A Term Notes.
1999-A Term Note Interest Rate: The 1999-A Term Notes Interest
Rate set forth in the Officer's Issuance Certificate for such series.
1999-A Term Note Notional Amount: With respect to any day
during a Collection Period, the outstanding principal balance of the 1999-A Term
Notes as of such day, including after giving effect to unreimbursed Trust
Charge-Offs as of the close of business on the Distribution Date during such
Collection Period.
1999-A Term Notes: The Floating Rate Asset-Backed Term Notes,
Series 1999-A, issued on the Initial Closing Date.
1999-A Term Notes Basis Swap: The 1999-A Term Notes Basis Swap
dated as of the Initial Closing Date between the Trust and GMAC, as Basis Swap
Counterparty.
1999-A Term Notes Monthly Available Amount: The amount
described in clause (2)(a) of Section 4.5(c)(i) of the Trust Sale and Servicing
Agreement.
1999-A Term Notes Monthly Carrying Costs: With respect to any
Distribution Date, the sum for such Distribution Date of (A) the net payment, if
any, due to the Basis Swap Counterparty under the 1999-A Term Notes Basis Swap
and (B) the amount of Noteholders' Interest for such Distribution Date with
respect to the 1999-A Term Notes.
<PAGE> 67
1999-RN1 Basis Swap: The 1999-RN1 Basis Swap dated as of the
Initial Closing Date between the Trust and GMAC, as the Basis Swap Counterparty.
1999-RN1 Revolving Note: The Floating Rate Asset-Backed
Revolving Note, Series 1999-RN1, issued on the Initial Closing Date.
1999-RN1 Revolving Note Monthly Available Amount: The amount
described in clause 2(b) of Section 4.5(c)(i) of the Trust Sale and Servicing
Agreement.
1999-RN1 Revolving Note Monthly Carrying Costs: With respect
to any Distribution Date, the sum for such Distribution Date of (A) the net
payment, if any, due to the Basis Swap Counterparty under the 1999-RN1 Basis
Swap and (B) the amount of Noteholders' Interest for such Distribution Date with
respect to the 1999-RN1 Revolving Note.
1999-RN1 Revolving Notional Amount: With respect to any day
during a Collection Period, the outstanding principal balance of the 1999-RN1
Revolving Note as of that date, including after giving effect to unreimbursed
Trust Charge-Offs as of the close of business on the Distribution Date during
such Collection Period.
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 located in the United States
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.
Accumulation Account: With respect to any series of Notes, an
Eligible Deposit Account established and maintained by the Servicer with the
Indenture Trustee, in the name of the Indenture Trustee, on behalf of the
holders of such series of Notes, which shall constitute a Designated Account,
and which shall have such additional terms and provisions as shall be set forth
in the Officer's Issuance Certificate with respect to such series of Notes.
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.
-2-
<PAGE> 68
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 Distribution
Date, the amount, if any, of Available Trust Interest and funds in the Reserve
Fund applied to cover the Trust Defaulted Amount or to cover unreimbursed Trust
Charge-Offs on such Distribution Date.
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: means:
(i) the payment described in Section 3.04(d) of the Pooling
and Servicing Agreement and
(ii) any payment by the Servicer pursuant to Section 9.3 of
the Trust Sale and Servicing Agreement (which payment, in the
case of this clause (ii), shall equal the greater of (A) the
amount computed as specified in Section 3.04 of the Pooling
and Servicing Agreement with respect to the Receivables and
(B) the outstanding principal balance and accrued and unpaid
interest on all Notes on the related Distribution Date).
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 for such Distribution Date 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
-3-
<PAGE> 69
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, the obligations of the Trust to the Basis Swap
Counterparty shall have been paid 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 the Noteholders' Interest for all series of Term
Notes.
Aggregate Noteholders' Principal: With respect to any
Distribution Date, the sum of the amounts required to be paid (or set aside for
payment in an Accumulation Account, or in the Note Distribution Account or
otherwise) as principal on each series of Term Notes on such Distribution Date
pursuant to the Indenture and the Trust Sale and Servicing Agreement.
Aggregate Revolver Interest: With respect to any Distribution
Date, the sum of (a) the Revolver Interest for all series of Revolving Notes for
such Distribution Date 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 or others.
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:
(1) Trust Interest Collections,
(2) Shared Investment Proceeds,
-4-
<PAGE> 70
(3) the net amounts, if any, paid to the Trust under any
other Specified Support Arrangements which have not
been designated as specific to any series of Notes,
(4) the net amounts, if any, paid to the Trust under all
Basis Swaps entered into with respect to a series of
certificates, including the 1999-A Certificate Basis
Swap, and
(5) if the Servicer exercises its option to purchase the
assets of the Trust under Section 9.3 of the Trust
Sale and Servicing Agreement, the amount described in
such section as being treated as Available Trust
Interest.
Available Trust Principal:
(i) With respect to any day during a Collection Period, Trust
Principal Collections for such day minus any amounts paid out of Trust
Principal Collections on such day to the Servicer as reimbursement for
outstanding Servicer Liquidity Advances, and
(ii) On the Distribution Date related to such Collection
Period, the sum of
(a) Additional Trust Principal, if any, for such
Distribution Date;
(b) the Cash Collateral Amount on such Distribution
Date; and
(c) 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, 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 Agreement,
the Specified Support Arrangements and the other documents and certificates
delivered in connection therewith from time to time.
Basis Swap Counterparty: GMAC.
Basis Swaps: Each of the 1999-A Term Notes Basis Swap, the
1999-RN1 Revolving Note Basis Swap, the 1999-A Certificate Basis Swap and any
other basis swap for a series of notes or class of certificates.
-5-
<PAGE> 71
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, be closed.
Business Trust Statute: Chapter 38 of Title 12 of the Delaware
Code, 12 Del. Code ss. 3801 et seq., as the same may be amended from time to
time.
Cash Accumulation Account: With respect to the 1999-A Term
Notes, an Eligible Deposit Account established and maintained by the Servicer
with the Indenture Trustee, in the name of the Indenture Trustee, on behalf of
the holders of the 1999-A Term Notes. The Cash Accumulation Account will
constitute a Designated Account and an Accumulation Account.
Cash Accumulation Account Earnings: With respect to a
Distribution Date, the investment earnings during the related Collection Period
on funds deposited in the Cash Accumulation Account, net of losses and
investment expenses with respect to such funds.
Cash Accumulation Event: Any of the events designated as such
in the 1999-A Term Notes' Officer's Issuance Certificate.
Cash Accumulation Period: The period designated as such in the
1999-A Term Notes' Officer's Issuance Certificate.
Cash Accumulation Reserve Fund: The account designated as
such, established and maintained pursuant to Part I.I.2 of the Officer's
Issuance Certificate for the 1999-A Term Notes.
Cash Accumulation Reserve Fund Deposit Amount: For any
Distribution Date, the excess, if any, of the Cash Accumulation Reserve Fund
Required Amount over the amount on deposit in the Cash Accumulation Reserve
Fund.
Cash Accumulation Reserve Fund Initial Deposit: $10,620,000.
Cash Accumulation Reserve Fund Release Amount: For any
Distribution Date, the Cash Accumulation Reserve Fund Release Amount shall never
be less than zero and shall always equal zero except during a Cash Accumulation
Period or a Rapid Amortization Period when it shall equal an amount calculated
as follows:
-6-
<PAGE> 72
<TABLE>
<CAPTION>
<S><C>
Cash Accumulation
Reserve Fund = ( (CAB) x (LIBOR Rate) x (Actual Days) )- (Interest Earned)
Release Amount ---------------------
360
</TABLE>
where, for purposes of this equation only:
"CAB" is the sum of (a) the daily average balance in the Cash
Accumulation Account and (b) the daily average balance in the
Note Distribution Subaccount in respect of the 1999-A Term
Notes prior to any deposits or withdrawals in respect of
principal into or from either of such accounts on such
Distribution Date; provided that earnings on such accounts
during the related Collection Period will be excluded from
such balances.
"LIBOR Rate" is the 1999-A Term Notes' Interest Rate in effect
for such Distribution Date.
"Actual Days" is the actual numbers of days elapsed from and
including the prior Distribution Date (or if applicable, the
Initial Closing Date) to but excluding such Distribution Date.
"Interest Earned" is the sum of the Cash Accumulation Account
Earnings and the Note Distribution Subaccount Earnings during
the related Collection Period.
Cash Accumulation Reserve Fund Required Amount: With respect
to any Determination Date, the sum of (1) the present value, discounted at 2.5%
per annum, of the Monthly Mismatch Amounts for each Distribution Date following
the Distribution Date for which such calculation is being made to the
Distribution Date preceding the Targeted Final Payment Date for the 1999-A Term
Notes and (2) $218,750.
Cash Collateral Amount: As specified in Section 4.5(d)(iii) of
the Trust Sale and Servicing Agreement, with respect to any date, the amount
that is required to be held on behalf of the Trust in order to maintain Trust
Equilibrium.
Cede: CEDE & Co., as the nominee of The Depository Trust
Company, which initially shall be the sole owner of record of the 1999-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,
(i) with respect to the 1999-A Certificates (a) $185,800,000, plus (b) the
principal amount of 1999-A Certificates issued after the Initial Closing Date,
minus (c) all distributions in respect of Certificate Balance of the 1999- A
Certificates 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
-7-
<PAGE> 73
and other amounts available to reimburse Trust Charge-Offs on such date)
allocated to the 1999-A Certificates, up to the Certificate Balance of the
1999-A Certificates on such Distribution Date calculated without regard to this
clause (d); and (ii) with respect to any other class of Certificates, the amount
set forth in the terms of such class of Certificates. Any unreimbursed Trust
Charge-Offs applied to reduce the Certificate Balance shall be applied against
each class of Certificates on such Distribution Date, pro rata on the basis of
the Certificate Balance of the Certificates of such class outstanding on the
preceding Distribution Date (calculated without reduction for any unreimbursed
Trust Charge-Offs).
Certificate Distribution Account: The account designated as
such, established and maintained pursuant to Section 6.1(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 B 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, 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 1999- 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) LIBOR plus
2.25% 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.
Certificate Reserve Fund: The account designated as such,
established and maintained pursuant to Section 6.1(a) of the Trust Sale and
Servicing Agreement.
Certificate Reserve Fund Deposit Amount: Such amount, if any,
as shall be specified in the Certificate Issuance Order for any class of
Certificates.
-8-
<PAGE> 74
Certificated Security: As of any date, has the meaning given
to such term under the applicable UCC in effect on such date.
Certificateholder: A Person in whose name a Certificate is
registered on the Certificate Register.
Certificateholders' Interest: With respect to any Distribution
Date, for any class of Certificates, the product of (a) the Certificate Balance
for such class 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.
Clearing Agency: An organization registered as a "clearing
agency" pursuant to Section 17A of the Exchange Act. The Clearing Agency for the
1999-A Term Notes and the 1999-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 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
-9-
<PAGE> 75
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.
Control: (x) The Indenture Trustee shall have obtained
"Control" over a Security Entitlement if:
(i) (a) the Indenture Trustee is the
Securities Intermediary for the
Designated Account in which such
Security Entitlement is held, or
(b) the Indenture Trustee
(1) is identified in the
records of the Securities
Intermediary as the person
having such a Security
Entitlement against the
Securities Intermediary, or
(2) has obtained the agreement,
in writing, of the
Securities Intermediary for
such Security Entitlement
that it will comply with
orders of the Indenture
Trustee regarding the sale
or redemption of the
Security Entitlement
without further consent of
any other person, and
(ii) the Securities Intermediary for such
Security Entitlement
(a) is the registered owner of the
related Financial Asset,
(b) is the holder of the Security
Certificate for the related
Financial Asset, or
(c) holds its interest in the related
Financial Asset directly through a
clearing corporation (as defined in
Revised Article 8); and
(y) the Indenture Trustee shall have obtained "Control" over a
Federal Book-Entry Security if:
(i) (a) the Indenture Trustee is a
participant in the book entry system
maintained by the Federal Reserve
Bank that is acting as fiscal agent
for the issuer of such Federal
Book-Entry Security; and
-10-
<PAGE> 76
(b) such Federal Reserve Bank has
indicated by book entry that such
Federal Book-Entry Security has been
credited to the Indenture Trustee's
securities account in such book
entry system; or
(ii) (a) the Indenture Trustee
(1) is identified in the
records of a Securities
Intermediary as the Person
having a Security
Entitlement in respect of
such Federal Book-Entry
Security against such
Securities Intermediary; or
(2) has obtained the agreement,
in writing, of the
Securities Intermediary for
such Security Entitlement
that it will comply with
orders of the Trustee
regarding the sale or
redemption of the Security
Entitlement without further
consent of any other
Person; and
(b) the Securities Intermediary for such
Security Entitlement is a
participant in the book entry system
maintained by the Federal Reserve
Bank that is acting as fiscal agent
for the issuer of such Federal
Book-Entry Security; and
(c) such Federal Reserve Bank has
indicated by book entry that such
Federal Book-Entry Security has been
credited to the Securities
Intermediary's securities account in
such book entry system.
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:
-11-
<PAGE> 77
Chase Manhattan Bank Delaware
1201 Market Street, Corporate Trust, 9th Floor
Wilmington, Delaware 19801
Attention: Corporate Trustee Administration
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
450 W. 33rd Street
New York, New York 10001
Attention: Global Trust Services
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 Remittance Period: The periods designated as such in the
Officer's Issuance Certificate of any series of Notes.
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, Cash Accumulation Account or other 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.
-12-
<PAGE> 78
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 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).
Deficiency Amount: The amounts determined to be Deficiency
Amounts in Section 4.5(c)(ii) of the Trust Sale and Servicing Agreement.
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.
-13-
<PAGE> 79
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) (a) with respect to Physical Property or any
Certificated Security, 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
(b) with respect to a Security Certificate or
any other Designated Account Property that
constitutes Physical Property and that is
not a Security Entitlement transfer of such
Security Certificate or other Designated
Account Property 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
(ii) with respect to any Uncertificated Security that is not a
Federal Book-Entry Security:
(a) if the issuer of such Uncertificated
Security is organized under the laws of a
jurisdiction that has not adopted Revised
Article 8, registration on the books and
records of the issuer thereof in the name of
the financial intermediary, the sending of a
confirmation by the 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; and
(b) if the issuer of such Uncertificated
Security is organized under the laws of a
jurisdiction that has adopted Revised
Article 8, (x) the issuer registers the
Indenture Trustee as the registered owner or
(y) the Indenture Trustee otherwise
satisfies the requirements for obtaining
"control" under Section 8-106(c) of Revised
Article 8.
Depository Agreement: The Note Depository Agreement and any
similar agreement executed in connection with the issuance of any series of
Securities originally issued as Book-Entry Notes.
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
-14-
<PAGE> 80
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, the Accumulation
Accounts, the Reserve Fund, the Cash Accumulation Reserve Fund and any other
account so designated in an Officer's Issuance Certificate, 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.
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 Sections 9.1(j) and 9.5
of the Trust Sale and Servicing Agreement and (c) the Trust Termination Date. A
Distribution Date is related to 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,
(d) is not a Fleet Account or a Marine Account,
-15-
<PAGE> 81
(e) with respect to which, during the preceding 12 months,
GMAC has not charged off, without recovering, any amount in
excess of $25,000 and
(f) there has been no material breach by the related obligor
of its obligation to pay the related Receivable upon sale of
the Vehicle related thereto (a material breach, for these
purposes, includes, without limitation, any failure to pay
such Receivable which GMAC knows to be attributable in whole
or in part to such obligor's unwillingness or financial
inability to pay).
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 or any
successor thereto.
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 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
-16-
<PAGE> 82
rating such obligations in the highest investment category (it being
understood that if an investment category is subdivided into
subcategories, the highest such subcategory) 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, provided, however, that no
funds in the Cash Accumulation Account or the Note Distribution
Subaccount for the 1999-A Term Notes shall be invested in Eligible
Investments described in this clause (d));
(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, the Certificate
Distribution Account or the Accumulation Accounts, 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, the Certificate Distribution
Account or the Accumulation Accounts, 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)
-17-
<PAGE> 83
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 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;
-18-
<PAGE> 84
(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 related 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 as then in
effect in the State of Michigan;
(p) with respect to which the related Dealer has not postponed
principal payment pursuant to DPP (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 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.
-19-
<PAGE> 85
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 exist 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 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.
Federal Book-Entry Security: An obligation issued by the U.S.
Treasury, the Federal Home Loan Mortgage Corporation or the Federal National
Mortgage Association, or any other direct obligation of, or obligation fully
guaranteed as to timely payment of principal and interest by, the United States
of America, that is a book-entry security held through the Federal Reserve
System pursuant to Federal Book-entry regulations.
FDIC: The Federal Deposit Insurance Corporation or any
successor thereto.
Final Revolving Period Termination Date: January 31, 2005.
Financial Asset: Has the meaning given such term in Article 8
of the New York UCC. As used herein, the Financial Asset "related to" a Security
Entitlement is the Financial Asset in which the entitlement holder (as defined
in Article 8 of the New York UCC) holding such Security Entitlement has the
rights and property interest specified in Article 8 of the New York UCC.
-20-
<PAGE> 86
Fitch: Fitch IBCA, Inc.
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.
Fully Funded Date: With respect to a series of Notes, the
first Distribution Date on which:
(a) for the 1999-A Term Notes,
(1) the sum of the amount on deposit in the Cash
Accumulation Account and in the Note Distribution
Subaccount for the 1999-A Term Notes for the payment
of principal equals the outstanding principal balance
of the 1999-A Term Notes, or
(2) the 1999-A Term Notes have been paid in full;
(b) for each other outstanding series of Term Notes,
(1) the outstanding principal balance of that series
has been reduced to zero,
(2) an amount equal to such principal balance has
been set aside in a segregated account for the
benefit of such Notes, or
(3) some other arrangement with respect to the
repayment of principal of such Notes has been made
which is satisfactory to the Rating Agencies; or
(c) for the Revolving Notes, the principal balance has been
reduced to zero and the Specified Maximum Revolver Balance has been
reduced to zero.
-21-
<PAGE> 87
General Motors: General Motors Corporation, a Delaware
corporation.
GMAC: General Motors Acceptance Corporation, a Delaware
corporation, 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.
-22-
<PAGE> 88
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: May 18, 1999.
Initial Cut-Off Date: May 14, 1999.
Initial Distribution Date: June 15, 1999.
Initial Securities: The 1999-A Term Notes, the 1999-RN1
Revolving Note and the 1999-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 Administrative Purchase Payments and Warranty Payments in excess of
the principal portion thereof.
-23-
<PAGE> 89
Interest Rate: With respect to any Distribution Date, (a) for
the 1999-A Term Notes, (b) the 1999-RN1 Revolving Note and (c) for any other
series of 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 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, 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 1999-A Term Notes and the 1999-A Certificates, on
the day that is two LIBOR Business Days prior to the Distribution Date
(or, in the case of the Initial Distribution Date, two LIBOR Business
Days prior to the Initial Closing Date) immediately preceding such
Distribution Date; and
(y) for the 1999-RN1 Revolving Note, on the day that is two
LIBOR Business Days prior to the first day of the related Collection
Period (or, in the case of the Initial Distribution Date, two LIBOR
Business Days prior to the Initial Closing 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 will be the
Reference Bank Rate. The "Reference Bank Rate" will 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
-24-
<PAGE> 90
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 principal balance of the 1999-A Term Notes
outstanding, the Certificate Balance of the Certificates then outstanding or the
aggregate principal amount of the 1999-RN1 Revolving Note then outstanding, as
applicable. The Indenture Trustee will 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 will 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 will
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 principal balance of the 1999-A Term Notes outstanding, the
Certificate Balance of the Certificates then outstanding or the aggregate
principal amount of the 1999-RN1 Revolving Note then outstanding, as applicable.
If no such quotation can be obtained, the rate will 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 borrowings may not be made under a Revolving Note
(including, if applicable, 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
-25-
<PAGE> 91
permitted thereunder, the proviso to the previous sentence shall be applicable
in determining Excess Available Receivables but shall otherwise be inapplicable.
Monthly Available Amount: For any Distribution Date, the
aggregate of the 1999-A Term Notes Monthly Available Amount, the 1999-RN1
Revolving Note Monthly Available Amount and the comparable monthly available
amounts for each other series of Term Notes and Revolving Notes, if any.
Monthly Carrying Costs: For any Distribution Date, the
aggregate of the Monthly Servicing Fee, the 1999-A Term Notes Monthly Carrying
Costs, the 1999-RN1 Revolving Note Monthly Carrying Costs and the comparable
monthly carrying costs for each other series of Term Notes and Revolving Notes,
if any.
Monthly Mismatch Amount: For a Distribution Date is calculated
as follows:
Monthly Mismatch Amount = (Term Note Balance) x (Mismatch Rate)
--------------------
12
where, for purposes of this equation only:
"Term Note Balance" is the outstanding principal
balance on the 1999-A Term Notes on the Distribution
Date on which the Cash Accumulation Reserve Fund
Required Amount is being calculated (after giving
effect to any distribution of principal on that
Distribution Date) and
"Mismatch Rate" is 0.30%.
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 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 not Auction Vehicles, that generally have
been driven less than 200 miles and that are
-26-
<PAGE> 92
either (a) untitled or (b) titled solely for purposes of state laws requiring
demonstration vehicles to be titled.
New York UCC: The UCC as in effect in the State of New York.
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 1999-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 Distribution Subaccount: With respect to any series of
Notes, a subaccount of the Note Distribution Account which is used as specified
in the Officer's Issuance Certificate for such series of Notes.
Note Distribution Subaccount Earnings: With respect to any
series of Notes, any Investment Proceeds in respect of funds in the Note
Distribution Subaccount for such series.
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 1999-A Term Notes, the sum of
(1) the product of
-27-
<PAGE> 93
(i) the outstanding principal balance of the 1999-A
Term Notes on the last day of the related Collection
Period (or, in the case of the Initial Distribution
Date, the outstanding principal balance on the
Initial Closing Date),
(ii) the 1999-A Term Notes' 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
(2) the excess of the Noteholders' Interest for the 1999-A
Term Notes for the preceding Distribution Date over the amount
that was actually deposited in the Note Distribution Account
on the preceding Distribution Date for the payment of interest
on the 1999-A Term Notes,
(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 that
series of Term Notes on the Distribution Date under its terms
(including any interest payable as a result of shortfalls from prior
Distribution Dates) and
(c) with respect to any series of Revolving Notes, the sum of
(1) the Revolver Interest and
(2) the Revolver Interest Carryover Shortfall, in each case,
for that series of Revolving Notes for the preceding
Distribution Date.
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.
-28-
<PAGE> 94
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(g) 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 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, the
Specified Support Arrangements 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: Chase Manhattan Bank Delaware, 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
-29-
<PAGE> 95
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.
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 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 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 company,
trust, unincorporated organization or Governmental Authority.
Physical Property: Means bankers' acceptances, commercial
paper, negotiable certificates of deposit and other obligations that constitute
"instruments" within the meaning of Section 9-105(1)(i) of the UCC and are
susceptible of physical 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 Allocation Percentage: for a series of Notes (the
"Referent Series") which requires Available Trust Principal to be retained or
set aside during any period to fund principal payments with respect to the
Referent Series on any date, is calculated as follows:
(1) if such date does not relate to a Wind Down Period or an Early
Amortization Period for the Trust:
-30-
<PAGE> 96
<TABLE>
<CAPTION>
<S><C>
(Principal Allocation (Aggregate Principal Balance of Referent Series)
Percentage for a Referent -----------------------------------------------------------------------------
Series) = (Sum of Aggregate Principal Balance for all Referent Series)
</TABLE>
where, for purposes of this equation only:
"Aggregate Principal Balance of Referent Series" is
(A) with respect to any Referent Series of Term
Notes, the aggregate initial principal
balance with respect to such Referent Series
or
(B) with respect to any Referent Series of
Revolving Notes, the outstanding principal
balance of such Referent Series as of the
close of business on the day preceding the
first day of the Payment Period with respect
to such series
"Sum of Aggregate Principal Balance for all Referent Series"
is the sum of the "Aggregate Principal Balance of Referent
Series" for each series of Notes which is on that date a
Referent Series
(2) if such date relates to a Wind Down Period or an Early Amortization
Period for the Trust:
<TABLE>
<CAPTION>
<S><C>
Principal Allocation (Aggregate Principal Balance of Referent Series)
Percentage for a Referent ------------------------------------------------------------------------------
Series = (Sum of Aggregate Principal Balance for each Series of Notes)
</TABLE>
where, for purposes of this equation only:
"Aggregate Principal Balance of Referent Series" is the
aggregate outstanding principal balance of the Referent Series
then outstanding on the last day of the Revolving Period
"Sum of Aggregate Principal Balance for each Series of Notes"
is the sum of the "Aggregate Principal Balance of Referent
Series" for all series then outstanding on the last day of the
Revolving Period, except for any series the principal balance
of which has been fully paid or provided for (calculated for
this purpose as though each outstanding series is a Referent
Series on that date)
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, including the
principal portion of Warranty Payments and Administrative Purchase Payments.
Priority Payment Amount: any make-whole payment, payment to an
interest rate swap counterparty, or other payment or deposit obligation
specified in an Officers' Issuance Certificate for
-31-
<PAGE> 97
a series of Notes or a Certificate Issuance Order as constituting a "Priority
Payment Amount," which designates such amount as having priority of payment over
the principal balance of the Certificates; provided, that no amount shall
constitute a Priority Payment Amount unless either (x) each holder of a
Certificate has consented to the designation of such amount as a Priority
Payment Amount or (y) the Rating Agency Condition has been satisfied with
respect to such designation.
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.
Rapid Amortization Event: The events designated as such in the
Officer's Issuance Certificate for the 1999-A Term Notes.
Rapid Amortization Period: The meaning given to such term in
the Officer's Issuance Certificate for the 1999-A Term Notes.
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, 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
-32-
<PAGE> 98
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.
Remaining Interest Amounts: The amounts designated as
Remaining Interest Amounts in Section 4.5(c) of the Trust Sale and Servicing
Agreement.
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.
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: With respect to any series of Term Notes,
the amount provided by the Officer's Issuance Certificate with respect to such
Term Notes.
-33-
<PAGE> 99
Required Payment Period Length: as of a Determination Date, is
calculated as follows (rounded up to the nearest whole integer):
<TABLE>
<CAPTION>
<S><C>
Required (Outstanding Note Principal Balance)
Payment Period --------------------------------------------------------------------------------------------------
Length = (Recent Minimum Daily Trust Balance) x (Minimum Monthly Payment Rate)
</TABLE>
where, for purposes of this equation only:
"Outstanding Note Principal Balance" is the outstanding
principal balance of all 1999-A Term Notes and all other Term
Notes with scheduled Payment Periods during the Payment Period
for the 1999-A Term Notes;
"Recent Minimum Daily Trust Balance" is the minimum expected
Daily Trust Balance during the period between such
Determination Date and April 30, 2004 as determined by the
Servicer; and
"Minimum Monthly Payment Rate" is the minimum Monthly Payment
Rate during the twelve Collection Periods preceding such
Determination Date.
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 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) 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 (after taking into account any withdrawals from the
Reserve Fund on such Distribution Date).
Reserve Fund Funding Condition: Will be satisfied on the date
of recommencement of the Revolving Period if:
(a) the amount on deposit in the Reserve Fund equals or
exceeds the Reserve Fund Required Amount as of such date of
recommencement;
(b) the amount on deposit in the Cash Accumulation Reserve
Fund equals or exceeds the Cash Accumulation Reserve Fund Required
Amount as of such date of recommencement; and
-34-
<PAGE> 100
(c) the amount on deposit in the Certificate Reserve Fund
equals or exceeds the amount required to be on deposit in the
Certificate Reserve Fund, if any.
Reserve Fund Initial Deposit: $10,929,000.
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) for any Distribution Date related to the Revolving Period
or Wind Down Period, 0.5% of the Maximum Pool Balance as of such
Distribution Date (or if, as of such Distribution Date, the long-term
debt obligations of GMAC are rated less than "BBB-" by Standard &
Poor's, then 1.5%),
(b) for any Distribution Date related to any Early
Amortization Period occurring prior to the Fully Funded Date having
occurred for all series of Notes, 0.5% of the Maximum Pool Balance as
of the last day of the Revolving Period (or if, as of the last day of
the Revolving Period the long-term debt obligations of GMAC are rated
less than "BBB-" by Standard & Poor's, then 1.5%), and
(c) for any Distribution Date falling on or after the Fully
Funded Date has occurred for all series of Notes, zero.
Reserve Fund Trigger Amount: With respect to any Distribution
Date, 25% of the Reserve Fund Required Amount for such Distribution Date.
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.
Revised Article 8: Revised Article 8 (1994 Version) (and
corresponding amendments to Article 9) as promulgated in 1994 by the National
Conference of Commissioners on Uniform State Laws, in the form in which it has
been adopted in the State of New York.
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.
-35-
<PAGE> 101
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 related Collection Period and (b)
the Revolver Interest Rate for such series 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: For any 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 the Officer's Issuance Certificate applicable to
such series of revolving notes.
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) or (b)) as described in Sections
9.1(j) and 9.5 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: June 30, 1999;
provided that the Scheduled Revolving Period Termination Date shall be
automatically extended to the last day of each succeeding month (but not beyond
January 31, 2005) unless the Seller, prior to the then Scheduled Revolving
Period Termination Date, elects to cause such extension not to occur by
providing written notice to such effect to the Servicer, the Owner Trustee (who
shall provide notice to the Certificateholders), the Indenture Trustee and the
Rating Agencies. Unless such notice is given, each such extension shall become
effective as of the Business Day prior to the then Scheduled Revolving Period
Termination Date. In addition, the Seller may, at any time prior to the then
Scheduled Revolving Period Termination Date, elect to extend the Scheduled
Revolving Period Termination Date to the last day of any specified month (but
not beyond January 31, 2005), subject thereafter to further automatic extensions
beyond the last day of such specified month as described in the preceding two
sentences.
Secretary of State: The Secretary of State of the State of
Delaware.
Securities: The Term Notes, the Revolving Notes and the
Certificates.
-36-
<PAGE> 102
Securities Act: The Securities Act of 1933, as amended.
Securities Intermediary: Has the meaning given to such term in
Section 6.1(b)(i) of the Trust Sale and Servicing Agreement.
Security Certificate: Has the meaning given such term in
Revised Article 8.
Security Entitlement: Has the meaning given such term in
Revised Article 8.
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 Shortfall: With respect to a series of Notes, the
amounts treated as such in Section 4.5(c) of the Trust Sale and Servicing
Agreement.
Series Specified Maximum Revolver Balance: (a) For the
1999-RN1 Revolving Note, $1,250,000,000 and (b) for any other series 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 Liquidity Advance: The advance described as such in
the Officer's Issuance Certificate for the 1999-A Term Notes.
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%.
-37-
<PAGE> 103
Shared Investment Proceeds: Investment Proceeds other than:
(A) Cash Accumulation Account Earnings,
(B) Note Distribution Subaccount Earnings for the 1999-A
Term Notes,
(C) Investment Proceeds from the Cash Accumulation
Reserve Fund,
(D) Investment Proceeds from any other account established
for other series of Term Notes in which funds are accumulated to pay
principal on such Notes at designated times, and
(E) any other Investment Proceeds which are designated in an
Officer's Issuance Certificate as not constituting Shared Investment
Proceeds.
Specified Certificate Percentage: 8.5%.
Specified Maximum Revolver Balance: The maximum aggregate
amount of borrowings that may be made under the Revolving Notes during the
Revolving Period, which shall initially be $1,250,000,000.
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 holder 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. As
of the Initial Closing Date, the Specified Support Arrangements will consist of
the Basis Swaps and the Cash Accumulation Reserve Fund.
Specified Trust Termination Date: April 1, 2019.
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: The Stated Final Payment Date
shall be:
(a) for the 1999-A Term Notes, the Distribution Date in
May, 2006;
(b) for the 1999-RN1 Revolving Note, the Distribution
Date in March, 2007,
(c) for any other series of Notes, the date set forth as such
in the related Officer's Issuance Certificate, and
(d) for the Certificates, the Distribution Date in March,
2007.
-38-
<PAGE> 104
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%), 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).
SWIFT V Reserve Funds: The Reserve Fund, the Cash Accumulation
Reserve Fund, the Certificate Reserve Fund, if any, and any other fund
designated as a SWIFT V Reserve Fund in an Officer's Issuance Certificate.
-39-
<PAGE> 105
Targeted Final Payment Date: The Targeted Final Payment Date
for the 1999-A Term Notes shall be the Distribution Date in May, 2004. The
Targeted Final Payment Date for the 1999-RN1 Revolving Note initially shall be
the Distribution Date in October, 1999 and shall be subject to extension as
described in the related Officer's Issuance Certificate. With respect to any
other series of Notes, the date, if any, set forth as such 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 its Authorized Officers and authenticated by the Indenture Trustee in
the form attached to the Officer's Issuance Certificate applicable to such
series of term notes.
Term Noteholder: Any Holder of a Term Note.
Term Notional Amount: For any day during a Collection Period,
the Unaccumulated Principal Balance of the 1999-A Term Notes as of that day,
including after giving effect to unreimbursed Trust Charge-Offs as of the close
of business on the Distribution Date during that Collection Period.
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 V, 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 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(g)
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 Equilibrium: Is achieved when the Daily Trust Balance
equals the Daily Trust Invested Amount.
-40-
<PAGE> 106
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 Allocation: For any series of Notes, for any
Distribution Date, an amount equal to the product of (1) Available Trust
Interest less the amounts paid to the Servicer pursuant to clause (1) of Section
4.5(c)(i) of the Trust Sale and Servicing Agreement and (2) the Trust Interest
Allocation Percentage for such series.
Trust Interest Allocation Percentage: With respect to any
series of Notes, for any Distribution Date, a fraction calculated as set forth
in the following equation:
<TABLE>
<CAPTION>
<S><C>
Trust Interest Allocation (UPB of Note Series)
Percentage = ------------------------------------------------------------------------
(UPB of All Term Notes) + (UPB of All Revolving Notes)
</TABLE>
where, for purposes of this equation only:
"UPB of Note Series" is
(1) for a series of Term Notes, the
Unaccumulated Principal Balance for such
series of Term Notes and
(2) for a series of Revolving Notes,
the daily average outstanding principal
balance for such series of Revolving Notes
during the related Collection Period
"UPB of All Term Notes" is the Unaccumulated
Principal Balances of all series of Term Notes then
outstanding; and
"UPB of All Revolving Notes" is the daily average of
the outstanding principal balance of all Revolving
Notes during the related Collection Period.
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.
-41-
<PAGE> 107
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 sum
of (a) the amount of Principal Collections on Receivables held by the Trust and
(b) the principal portion of all Warranty Payments and Administrative Purchase
Payments, if any, on such date.
Trust Receivables Purchases: On any Business Day, the purchase
by the Trust from the Seller of additional Receivables pursuant to Section
2.1(b) of the Trust Sale and Servicing Agreement.
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.
Trust Termination Date: The date specified in Section 7.1 of
the Trust Agreement.
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.
Unaccumulated Principal Balance: With respect to any series of
Term Notes as of a Distribution Date,
(1) the daily average of the outstanding principal balance of
such Term Notes during the related Collection Period minus
(2) with respect to the 1999-A Term Notes the daily average
during the related Collection Period of,
(x) the sum of the amount of funds on deposit in the
Cash Accumulation Account, and
(y) the amount of funds on deposit in the Note
Distribution Account in respect of the outstanding
principal balance of the 1999-A Term Notes or, with
respect to other series of Term Notes, the daily
average of the amount of funds on deposit in any
account during the related Collection Period for
which funds are accumulated to pay principal on such
series as specified under the terms of that series of
Term Notes.
Uncertificated Security: As of any date, has the meaning given
to such term under the applicable UCC as in effect on such date.
-42-
<PAGE> 108
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.
Unsatisfied Deficiency Amount: The amounts determined to be
Unsatisfied Deficiency Amounts in Section 4.5(c)(ii) of the Trust Sale and
Servicing Agreement.
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 if GMAC and its
affiliates own less than 100% of the Certificates, 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.
Warranty Receivable: A Receivable subject to repurchase as and
to the extent described in Section 2.5(a) 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.
-43-
<PAGE> 109
PART II - RULES OF CONSTRUCTION
(A) Accounting Terms. As used in this Appendix or the Basic Documents,
accounting terms which are not defined, and accounting terms partly
defined, herein or therein shall have the respective meanings given to
them under generally accepted accounting principles. To the extent that
the definitions of accounting terms in this Appendix or the Basic
Documents are inconsistent with the meanings of such terms under
generally accepted accounting principles, the definitions contained in
this Appendix or the Basic Documents will control.
(B) "Hereof," etc. The words "hereof," "herein" and "hereunder" and words
of similar import when used in this Appendix or any Basic Document will
refer to this Appendix or such Basic Document as a whole and not to any
particular provision of this Appendix or such Basic Document; and
Section, Schedule and Exhibit references contained in this Appendix or
any Basic Document are references to Sections, Schedules and Exhibits
in or to this Appendix or such Basic Document unless otherwise
specified. The word "or" is not exclusive.
(C) Reference to Distribution Dates. With respect to any Distribution Date,
the "related Collection Period," and the "related Record Date," will
mean the Collection Period and Record Date, respectively, immediately
preceding such Distribution Date, and the relationships among
Collection Periods and Record Dates will be correlative to the
foregoing relationships.
(D) Number and Gender. Each defined term used in this Appendix or the Basic
Documents has a comparable meaning when used in its plural or singular
form. Each gender-specific term used in this Appendix or the Basic
Documents has a comparable meaning whether used in a masculine,
feminine or gender-neutral form.
(E) Including. Whenever the term "including" (whether or not that term is
followed by the phrase "but not limited to" or "without limitation" or
words of similar effect) is used in this Appendix or the Basic
Documents in connection with a listing of items within a particular
classification, that listing will be interpreted to be illustrative
only and will not be interpreted as a limitation on, or exclusive
listing of, the items within that classification.
<PAGE> 110
APPENDIX B
NOTICE ADDRESSES AND PROCEDURES
All requests, demands, directions, consents, waivers, notices,
authorizations and communications provided or permitted under any Basic Document
to be made upon, given or furnished to or filed with the Seller, the Servicer,
the Administrator, the Indenture Trustee, the Issuer, the Owner Trustee, the
Custodian or the Rating Agencies shall be in writing, personally delivered, sent
by facsimile with a 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:
D.C. Walker, Vice President
3031 West Grand Boulevard
Detroit, Michigan 48202
(B) in the case of the Servicer, the Administrator or the
Custodian, at the following address:
P. D. Bull, Vice President
General Motors Acceptance Corporation
3031 West Grand Boulevard
Detroit, Michigan 48202
(C) in the case of the Indenture Trustee, at its
Corporate Trust Office,
(D) in the case of the Issuer or the Owner Trustee, to
the Owner Trustee at its Corporate Trust Office,
with a copy to:
Wholesale Auto Receivables Corporation
Attention: D. C. Walker, Vice President
3031 West Grand Boulevard
Detroit, Michigan 48202
-2-
<PAGE> 111
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.
(E) in the case of Moody's Investors Service, Inc., 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 Ratings Services,
to:
Standard & Poor's Ratings Services
25 Broadway
New York, New York 10004
Attention: Asset Backed Surveillance Department,
Or after June 1, 1999
Standard & Poor's Ratings Services
55 Water Street
29th Floor
New York, NY 10041-0003
(G) in the case of Fitch IBCA, Inc., to:
Fitch IBCA, Inc.
One State Street Plaza
New York, New York 10004
Attention: Asset-Backed Surveillance
(H) in the case of Duff & Phelps Credit Rating Co., to:
Duff & Phelps Credit Rating Co.
55 E. Monroe Street
Chicago, Illinois 60603
Attention: Structured Finance Research & Monitoring
or at such other address as shall be designated by such Person in a written
notice to the other parties to this Agreement.
Where any Basic Document provides for notice to Noteholders or
Certificateholders 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 or Certificateholder
affected by such condition or event, at such Person's address as it appears on
the
-3-
<PAGE> 112
Note Register or Certificate Register, as applicable, not later than the latest
date, and not earlier than the earliest date, prescribed in such Basic Document
for the giving of such notice. If notice to Noteholders or Certificateholders is
given by mail, neither the failure to mail such notice nor any defect in any
notice so mailed to any particular Noteholders or Certificateholders shall
affect the sufficiency of such notice with respect to other Noteholders or
Certificateholders, 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.
-4-
<PAGE> 1
Exhibit 99.2
TRUST AGREEMENT
BETWEEN
WHOLESALE AUTO RECEIVABLES CORPORATION
SELLER
AND
CHASE MANHATTAN BANK DELAWARE
OWNER TRUSTEE
DATED AS OF MAY 18, 1999
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
<S> <C>
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 Certificate Owners.........................................................3
2.8 Title to Trust Property.....................................................................3
2.9 Situs of Trust..............................................................................3
2.10 Representations and Warranties of the Seller................................................3
2.11 Tax Treatment...............................................................................4
ARTICLE III
THE CERTIFICATES
3.1 [Intentionally Omitted].....................................................................4
3.2 Form of the Certificates....................................................................4
3.3 Execution, Authentication and Delivery......................................................5
3.4 Registration; Registration of Transfer and Exchange of Certificates.........................6
3.5 Mutilated, Destroyed, Lost or Stolen Certificates...........................................7
3.6 Persons Deemed Certificateholders...........................................................8
3.7 Access to List of Certificateholders' Names and Addresses...................................8
3.8 Maintenance of Corporate Trust Office.......................................................8
3.9 Appointment of Paying Agent.................................................................9
3.10 [Reserved]..................................................................................9
3.11 Book-Entry Certificates.....................................................................9
3.12 Notices to Clearing Agency.................................................................10
3.13 Termination of Book-Entry Registration.....................................................10
3.14 Seller as Certificateholder................................................................11
</TABLE>
-i-
<PAGE> 3
<TABLE>
<CAPTION>
<S> <C> <C>
ARTICLE IV
ACTIONS BY OWNER TRUSTEE
4.1 Prior Notice to Certificateholders with Respect to Certain Matters.........................11
4.2 Action by Certificateholders with Respect to Certain Matters...............................12
4.3 Action by Certificateholders with Respect to Bankruptcy....................................12
4.4 Restrictions on Certificateholders' Power..................................................12
4.5 Majority Control...........................................................................12
ARTICLE V
APPLICATION OF TRUST FUNDS; CERTAIN DUTIES
5.1 Establishment of Certificate Distribution Account..........................................13
5.2 Application of Trust Funds.................................................................13
5.3 Method of Payment..........................................................................14
5.4 Accounting and Reports to the Certificateholders, the Internal Revenue
Service and Others....................................................................14
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............................................................16
6.4 Action upon Instruction by Certificateholders..............................................18
6.5 Furnishing of Documents....................................................................18
6.6 Representations and Warranties of Owner Trustee............................................19
6.7 Reliance; Advice of Counsel................................................................19
6.8 Owner Trustee May Own Certificates and Notes...............................................20
6.9 Compensation and Indemnity.................................................................20
6.10 Replacement of Owner Trustee...............................................................20
6.11 Merger or Consolidation of Owner Trustee...................................................21
6.12 Appointment of Co-Trustee or Separate Trustee..............................................22
6.13 Eligibility Requirements for Owner Trustee.................................................23
ARTICLE VII
TERMINATION OF TRUST AGREEMENT
7.1 Termination of Trust Agreement.............................................................23
7.2 [Reserved].................................................................................25
</TABLE>
-ii-
<PAGE> 4
<TABLE>
<CAPTION>
<S> <C> <C>
ARTICLE VIII
AMENDMENTS
8.1 Amendments Without Consent of Securityholders..............................................25
8.2 Amendments With Consent of Certificateholders and Noteholders..............................25
8.3 Form of Amendments.........................................................................26
ARTICLE IX
MISCELLANEOUS
9.1 No Legal Title to Owner Trust Estate.......................................................27
9.2 Limitations on Rights of Others............................................................27
9.3 Derivative Actions.........................................................................27
9.4 Notices....................................................................................27
9.5 Severability of Provisions.................................................................27
9.6 Counterparts...............................................................................28
9.7 Successors and Assigns.....................................................................28
9.8 No Petition Covenants......................................................................28
9.9 No Recourse................................................................................28
9.10 Headings...................................................................................28
9.11 Governing Law..............................................................................29
9.12 Certificate Transfer Restrictions..........................................................29
9.13 Indemnification by and Reimbursement of the Servicer.......................................30
EXHIBITS
Exhibit A Form of Certificate
Exhibit B Form of Certificate of Trust
Exhibit C Form of Undertaking Letter
Exhibit D Form of Investor Letter
</TABLE>
-iii-
<PAGE> 5
THIS TRUST AGREEMENT, dated as of May 18, 1999, between
WHOLESALE AUTO RECEIVABLES CORPORATION, a Delaware corporation, as Seller, and
CHASE MANHATTAN BANK DELAWARE, a Delaware banking corporation, as Owner Trustee.
In consideration of the premises and the mutual covenants
herein contained, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.1 Definitions. Certain capitalized terms used in
this Agreement shall have the respective meanings assigned to them in Part I of
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. The rules
of construction set forth in Part II of such Appendix shall be applicable to
this Agreement.
ARTICLE II
ORGANIZATION
SECTION 2.1 Name. The Trust created hereby shall be known as
"Superior Wholesale Inventory Financing Trust V" 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, and the Trust shall have the power and authority, 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
-1-
<PAGE> 6
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;
(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
-2-
<PAGE> 7
forth herein and in the Business Trust Statute and the relationship between the
parties created by this Agreement shall not constitute indebtedness. The parties
hereto 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 ss. 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 Certificate Owners.
Certificateholders and holders of beneficial interests therein shall be entitled
to the same limitation of personal liability extended to stockholders of private
corporations for profit organized under the Delaware General Corporation Law.
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.
-3-
<PAGE> 8
(c) The Seller has the power and authority to execute and
deliver this Agreement, to carry out its terms and to consummate the
transactions contemplated herein; and the execution, delivery and
performance of this Agreement and the consummation of the transactions
contemplated herein have been duly authorized by the Seller by all
necessary corporate action.
(d) The execution of this Agreement and the consummation of
the transactions contemplated herein by the Seller and the fulfillment
of the terms of this Agreement by the Seller shall not conflict with,
result in any breach of any of the terms and provisions of or
constitute (with or without notice or lapse of time) a default under,
the certificate of incorporation or by-laws of the Seller, or any
indenture, agreement, mortgage, deed of trust or other instrument to
which the Seller is a party or by which it is bound, or result in the
creation or imposition of any Lien upon any of its properties pursuant
to the terms of any such indenture, agreement, mortgage, deed of trust
or other instrument (other than pursuant to the Basic Documents), or
violate any law or, to the best of the Seller's knowledge, any order,
rule or regulation applicable to the Seller of any Governmental
Authority having jurisdiction over the Seller or any of its properties.
SECTION 2.11 Tax Treatment. As long as the Seller is the sole
owner of the Certificates, the Seller and Owner Trustee, by entering into this
Agreement, (i) express their intention that the Trust will be disregarded for
federal income tax purposes and will be treated as a division of the Seller and
(ii) agree that paragraph 5.5 of this Agreement will not be applicable. If the
Seller is not the sole owner of the Certificates, through sale of Certificates,
issuance by the Trust of additional Certificates to a person other than the
Seller, or otherwise, the Seller and Owner Trustee, by entering into this
Agreement, and the Certificateholders and the Certificate Owners, by acquiring
any Certificate or interest in the Trust, (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 held by the Trust, (ii) unless
otherwise required by appropriate taxing authorities, agree to treat the
Certificates as partnership interests for purposes of federal, 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, and (iii) agree
that immediately upon there being more than one owner of Certificates, paragraph
5.5 of this Agreement will become applicable.
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 $4,000,000 or greater
(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 represent the
entire beneficial interest in the Trust. The Certificates shall be executed on
behalf of the Trust by
-4-
<PAGE> 9
manual or facsimile signature of a Responsible Officer of the Owner Trustee.
Certificates bearing the manual or facsimile signatures of individuals who were,
at the time when such signatures shall have been affixed, authorized to sign on
behalf of the Trust, shall be duly issued, fully paid and non-assessable
beneficial interests in the Trust, notwithstanding that such individuals or any
of them shall have ceased to be so authorized prior to the authentication and
delivery of such Certificates or did not hold such offices at the date of
authentication and delivery of such Certificates.
(b) The Definitive Certificates shall be typewritten, printed,
lithographed or engraved or produced by any combination of these methods (with
or without steel engraved borders) all as determined by the officers executing
such Certificates, as 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 $185,800,000 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 1999-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) LIBOR plus
2.25%.
(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 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
-5-
<PAGE> 10
authentication substantially in the form set forth in Exhibit A, executed by the
Owner Trustee or the Owner Trustee's authenticating agent, by manual signature.
Such authentication shall constitute conclusive evidence that such Certificate
shall have been duly authenticated and delivered hereunder. All Certificates
shall be dated the date of their authentication. The Chase Manhattan Bank 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 $4,000,000 (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 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) Certificateholders may at any time, without consent of the
Noteholders, sell, transfer, convey or assign in any manner whatsoever their
rights to and interests in the Certificates, provided that the following
conditions are satisfied: (i) the transferee provides written verification from
the applicable Rating Agencies that such sale, transfer, conveyance or
assignment will not result in a reduction or withdrawal of the rating of any
class of Notes then outstanding, (ii) the transferee provides to the Owner
Trustee and the Indenture Trustee an opinion of independent counsel that such
action will not cause the Trust to be treated as an association (or publicly
traded partnership) taxable as a corporation for Federal income tax purposes,
(iii) such transferee or assignee agrees in writing to take positions for tax
purposes consistent with the tax positions agreed to be taken by the initial
Certificateholders herein, (iv) the transferee provides the Owner Trustee (and
the Certificate Registrar if not the Owner Trustee) with an opinion of counsel
satisfactory to the Owner Trustee stating that such transfer (x) is exempt from
registration under applicable state and federal securities laws, (y) will not
cause the Trust to be an "investment company" or under the "control" of an
"investment company" within the meaning of the Investment Company Act and (z)
otherwise complies with the restrictions on transfer contained in this
Agreement, and (v) the transferee certifies to the Owner Trustee that it is not
a Benefit Plan. The Owner Trustee shall have no obligation to determine whether
a transferee of a Trust Certificate is or is not a Benefit Plan.
(c) Subject to Section 3.4(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, 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
-6-
<PAGE> 11
aggregate amount dated the date of authentication by the Owner Trustee or any
authenticating agent.
(d) 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, 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.
(e) 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 3.4(b). 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.
(f) 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 protected 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, 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 distributions to 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 protected 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 (and any distributions or payments made with respect thereto) from
the Person to whom it was delivered
-7-
<PAGE> 12
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
protected purchaser, and shall be entitled to recover upon the security or
indemnity provided therefor to the extent of any loss, damage, cost or expense
incurred by the Owner Trustee in connection therewith.
(c) In connection with the issuance of any replacement
Certificate under this Section 3.5, the Owner Trustee may require the payment by
the Holder of such Certificate of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
reasonable expenses (including the fees and expenses of the Owner Trustee and
the Certificate Registrar) connected therewith.
(d) Any duplicate Certificate issued pursuant to this Section
3.5 in replacement of any mutilated, destroyed, lost or stolen Certificate shall
constitute an original additional beneficial interest in the Trust, whether or
not the mutilated, destroyed, lost or stolen Certificate shall be found at any
time or be enforced by anyone, and shall be entitled to all the benefits of this
Agreement equally and proportionately with any and all other Certificates duly
issued hereunder.
(e) The provisions of this Section 3.5 are exclusive and shall
preclude (to the extent lawful) all other rights and remedies with respect to
the replacement or payment of mutilated, destroyed, lost or stolen Certificates.
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, 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.
-8-
<PAGE> 13
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; provided that no such
reports shall be required so long as the Seller is the sole Certificateholder.
Any Paying Agent shall have the revocable power to withdraw funds from the
Certificate Distribution Account for the purpose of making the distributions
referred to above. The Owner Trustee may revoke such power and remove the Paying
Agent if the Owner Trustee determines in its sole discretion that the Paying
Agent shall have failed to perform its obligations under this Agreement in any
material respect. The Paying Agent shall initially be The Chase Manhattan Bank.
The Chase Manhattan Bank shall be permitted to resign as Paying Agent upon 30
days' written notice to the Owner Trustee. If The Chase Manhattan Bank 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 [Reserved]
SECTION 3.11 Book-Entry Certificates. The Certificates to be
issued on the Initial Closing Date shall be issued in definitive form. If, and
to the extent, so provided in the related Certificate Issuance Order,
Certificates to be issued after the Initial Closing Date (other than those
described in Section 3.10) may be issued in the form of a typewritten
certificate or certificates representing Book-Entry Certificates. Any such
Book-Entry Certificate shall be delivered to the Clearing Agency by or on behalf
of the Trust and shall be registered on the Certificate Register in the name of
the Clearing Agency (or its nominee) and no Certificate Owner shall receive a
Definitive Certificate. If and to the extent Book-Entry Certificates have been
issued pursuant to this Section 3.11 with respect to any Certificates:
(a) the provisions of this Section 3.11 shall be in full force
and effect;
(b) the Certificate Registrar and the Owner Trustee shall be
entitled to deal with the Clearing Agency for all purposes of this
Agreement (including the distribution of Certificate Balance and
interest on such Certificates and the giving of instructions or
directions hereunder) as the sole Holder of such Certificates, and
shall have no obligation to the Certificate Owners;
-9-
<PAGE> 14
(c) to the extent that the provisions of this Section 3.11
conflict with any other provisions of this Agreement, the provisions of
this Section 3.11 shall control;
(d) the rights of the Certificate Owners shall be exercised
only through the Clearing Agency and shall be limited to those
established by law and agreements between such Certificate Owners and
the Clearing Agency and/or the Clearing Agency Participants and, unless
and until Definitive Certificates are issued pursuant to Section 3.13,
the initial Clearing Agency shall make book-entry transfers among the
Clearing Agency Participants and receive and transmit distributions of
Certificate Balance and interest on such Certificates to such Clearing
Agency Participants; and
(e) whenever this Agreement requires or permits actions to be
taken based upon instructions or directions of Holders of Certificates
evidencing a specified percentage of the Voting Interests, the Clearing
Agency shall be deemed to represent such percentage only to the extent
that it has received written instructions to such effect from
Certificate Owners and/or Clearing Agency Participants owning or
representing, respectively, such required percentage of Voting
Interests and has delivered such instructions to the Owner Trustee.
The Seller or the Owner Trustee may set a record date for the purpose of
determining the identity of Holders of Certificates entitled to vote or to
consent to any action by vote as provided in this Agreement.
SECTION 3.12 Notices to Clearing Agency. With respect to any
Certificates issued as Book-Entry Certificates, whenever a notice or other
communication to the Certificateholders is required under this Agreement, unless
and until Definitive Certificates representing such Certificates shall have been
issued to the related Certificate Owners pursuant to Section 3.13, the Owner
Trustee shall give all such notices and communications specified herein to be
given to the related Certificateholders to the Clearing Agency and shall have no
further obligation to such Certificate Owners.
SECTION 3.13 Termination of Book-Entry Registration. With
respect to any Certificates issued as Book-Entry Certificates, if (i) the
Administrator advises the Owner Trustee in writing that the Clearing Agency is
no longer willing or able to properly discharge its responsibilities with
respect to the Certificates, and the Administrator is unable to locate a
qualified successor, (ii) the Administrator at its option advises the Owner
Trustee in writing that it elects to terminate the book-entry system through the
Clearing Agency or (iii) after the occurrence of an Event of Default or a
Servicing Default, Certificate Owners representing beneficial interests
aggregating at least a majority of the Voting Interests advise the Clearing
Agency in writing that the continuation of a book-entry system through the
Clearing Agency is no longer in the best interest of the Certificate Owners,
then the Clearing Agency shall notify all Certificate Owners and the Owner
Trustee of the occurrence of any such event and of the availability of
Definitive Certificates to Certificate Owners requesting the same. Upon
surrender to the 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
-10-
<PAGE> 15
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 (other
than an action to collect on a Receivable or an action by the Indenture
Trustee pursuant to the Indenture) and the compromise of any action,
claim or lawsuit brought by or against the Trust (other than an action
to collect on a Receivable or an action by the Indenture Trustee
pursuant to the Indenture);
(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 B;
(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
-11-
<PAGE> 16
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 to it on the Closing Date, the Seller
agrees that it, at any time that it is 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 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.
-12-
<PAGE> 17
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 V
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. The Certificate
Distribution Account shall initially be established with The Chase Manhattan
Bank.
(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 the
extent of any amount deposited with respect to Aggregate Certificateholder's
Principal, on a pro rata basis. Notwithstanding the foregoing or anything else
to the contrary in this Agreement or the other Basic Documents, so long as
Certificates representing in the aggregate a 100% beneficial interest in the
Trust are held by the Seller, (i) no Certificate Distribution Account shall be
required to be established or maintained and (ii) all distributions and payments
on the Certificates (including the final distribution as contemplated by Section
7.1(c) hereof) required hereunder or under the Trust Sale and Servicing
Agreement shall be made directly to the Seller by the Indenture Trustee (whether
or not the Trust Sale and Servicing Agreement otherwise contemplates deposit
into the Certificate Distribution Account) and the Owner Trustee shall have no
duty or liability to see to such distribution.
(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
-13-
<PAGE> 18
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; provided that no such statement shall be required to be sent
by the Owner Trustee so long as the Seller is the sole Certificateholder.
(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; provided that the Owner Trustee shall not have an
obligation to withhold any such amount so long as the Seller is the sole
Certificateholder. 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
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
-14-
<PAGE> 19
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.
Subject to Section 2.11, the Owner Trustee shall sign on behalf of the Trust any
and all tax returns of the Trust, unless applicable law requires a
Certificateholder to sign such documents, in which case such documents shall be
signed by the Seller. The Seller shall be the "tax matters partner" of the Trust
pursuant to the Code.
ARTICLE VI
THE OWNER TRUSTEE
SECTION 6.1 Duties of Owner Trustee.
(a) The Owner Trustee undertakes to perform such duties, and
only such duties, as are specifically set forth in this Agreement and the other
Basic Documents, including the administration of the Trust in the interest of
the Certificateholders, subject to the Basic Documents and in accordance with
the provisions of this Agreement. No implied covenants or obligations shall be
read into this Agreement.
(b) Notwithstanding the foregoing, the Owner Trustee shall be
deemed to have discharged its duties and responsibilities hereunder and under
the Basic Documents to the extent the Administrator has agreed in the
Administration Agreement to perform any act or to discharge any duty of the
Owner Trustee hereunder or under any Basic Document, and the Owner Trustee shall
not be liable for the default or failure of the Administrator to carry out its
obligations under the Administration Agreement.
(c) In the absence of bad faith on its part, the Owner Trustee
may conclusively rely upon certificates or opinions 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.
-15-
<PAGE> 20
(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 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,
Chase Manhattan Bank Delaware acts solely as Owner Trustee hereunder and not in
its individual capacity and all Persons having any claim against the Owner
Trustee by reason of the transactions contemplated by this Agreement or any
Basic Document shall look only to the Owner Trust Estate for payment or
satisfaction thereof. The Owner Trustee accepts the trusts hereby created and
agrees to perform its duties hereunder with respect to such trusts but only upon
the terms of this Agreement. The Owner Trustee also agrees to disburse all
monies actually received by it constituting part of the Owner Trust Estate upon
the terms of the Basic Documents and this Agreement. The Owner Trustee shall not
be liable or accountable hereunder or under any Basic Document under any
circumstances, except (i) for its own negligent action, its own negligent
failure to act or its own wilful misconduct or (ii) in the case of the
-16-
<PAGE> 21
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;
(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
-17-
<PAGE> 22
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 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
-18-
<PAGE> 23
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 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
-19-
<PAGE> 24
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 pursuant to agreements entered into with any
of them, and the Owner Trustee shall not be liable for the conduct or misconduct
of such agents, attorneys, custodians or nominees if such agents, attorneys,
custodians or nominees shall have been selected by the Owner Trustee with
reasonable care; and (ii) may consult with counsel, accountants and other
skilled professionals to be selected with reasonable care and employed by it.
The Owner Trustee shall not be liable for anything done, suffered or omitted in
good faith by it in accordance with the opinion or advice of any such counsel,
accountants or other such Persons and not contrary to this Agreement or any
Basic Document.
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
-20-
<PAGE> 25
accepted appointment within 30 days after the giving of such notice, the
resigning Owner Trustee giving such notice may petition any court of competent
jurisdiction for the appointment of a successor Owner Trustee. The Administrator
shall remove the Owner Trustee if:
(i) the Owner Trustee shall cease to be eligible in
accordance with the provisions of Section 6.13 and shall fail to resign
after written request therefor by the Administrator;
(ii) the Owner Trustee shall be adjudged bankrupt or
insolvent;
(iii) a receiver or other public officer shall be appointed or
take charge or control of the Owner Trustee or of its property or
affairs for the purpose of rehabilitation, conservation or liquidation;
or
(iv) the Owner Trustee shall otherwise be incapable of
acting.
(b) If the Owner Trustee resigns or is removed or if a
vacancy exists in the office of Owner Trustee for any reason 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
-21-
<PAGE> 26
Owner Trustee, shall be the successor of the Owner Trustee hereunder, provided
such Person shall be eligible pursuant to Section 6.13, and without the
execution or filing of any instrument or any further act on the part of any of
the parties hereto; provided, however, that the Owner Trustee shall mail notice
of such merger or consolidation to the Rating Agencies.
SECTION 6.12 Appointment of Co-Trustee or Separate Trustee.
(a) Notwithstanding any other provisions of this Agreement,
at any time, for the purpose of meeting any legal requirement of any
jurisdiction in which any part of the Owner Trust Estate or any of the Dealers
may at the time be located, the Administrator and the Owner Trustee acting
jointly shall have 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
-22-
<PAGE> 27
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.
(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 in accordance with Section 3808
of the Business Trust Statute 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 and (ii) 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 and (ii) if the Trust
Termination Date is determined pursuant to clause (ii) above, on the date
following the Distribution Date on which the final payments to be made to the
-23-
<PAGE> 28
Securityholders pursuant to the Basic Documents have been paid (or deposited in
the appropriate Distribution Accounts).
(b) The bankruptcy, liquidation, dissolution, death or
incapacity of any Certificateholder 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 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) Notice of any termination of the Trust 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. The Seller shall have the beneficial interest in
any assets remaining in the Trust following final payment of the Certificates.
(e) 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
-24-
<PAGE> 29
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.
(f) 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 Secretary of State in accordance with the
provisions of Section 3810 of the Business Trust Statute.
SECTION 7.2 [Reserved].
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 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, materially and adversely affect 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
-25-
<PAGE> 30
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.
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.
-26-
<PAGE> 31
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, Section 7.1(c) 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.
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 delivered as
specified in Appendix B to the Trust Sale and Servicing Agreement.
(b) Any notice required or permitted to be given to a
Certificateholder shall be given by first-class mail, postage prepaid, at the
address of such Holder as shown in the Certificate Register. Any notice so
mailed within the time prescribed in this Agreement shall be conclusively
presumed to have been duly given, whether or not the Certificateholder receives
such notice.
SECTION 9.5 Severability of Provisions. If any one or more of
the covenants, agreements, provisions or terms of this Agreement shall be for
any reason whatsoever held invalid, then such covenants, agreements, provisions
or terms shall be deemed enforceable to the fullest extent permitted, and if not
so permitted, shall be deemed severable from the remaining covenants,
agreements, provisions or terms of this Agreement and shall in no way affect the
validity or
-27-
<PAGE> 32
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. The Owner Trustee by
entering this Trust Agreement and each Certificateholder, by accepting a
Certificate (or interest therein) issued hereunder, hereby covenants and agrees
that they shall not, prior to the day that is one year and one day after the
termination of the Trust, acquiesce, petition or otherwise invoke or cause the
Seller or the Trust to invoke in any court or government authority for the
purpose of commencing or sustaining a case against the Seller or the Trust 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 the Trust or any substantial part of its
property, or ordering the winding up or liquidation of the affairs of the Seller
or the Trust.
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 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.
-28-
<PAGE> 33
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 C. 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 Accredited Investor that
executes a certificate, substantially in the form attached hereto as Exhibit D,
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 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 $4,000,000 (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)
-29-
<PAGE> 34
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.
* * * * *
-30-
<PAGE> 35
IN WITNESS WHEREOF, the parties hereto have caused this Trust
Agreement to be duly executed by their respective officers hereunto duly
authorized, as of the day and year first above written.
CHASE MANHATTAN BANK DELAWARE, as
Owner Trustee
By:
--------------------------------------------
Name:
Title:
WHOLESALE AUTO RECEIVABLES
CORPORATION, Seller
By:
--------------------------------------------
Name: N.L. Bugg
Title: Manager - Securitization
-31-
<PAGE> 36
EXHIBIT A
[FORM OF CERTIFICATE]
NUMBER $185,800,000
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.(1)
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
- --------
(1) Applicable only to Book-Entry Certificates.
-1-
<PAGE> 37
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 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
$4,000,000 (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
-2-
<PAGE> 38
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 AND THE
CERTIFICATE OWNER SHALL EACH BE DEEMED TO HAVE REPRESENTED AND
WARRANTED THAT IT IS NOT AN EMPLOYEE BENEFIT PLAN.
IN THE EVENT WHOLESALE AUTO RECEIVABLES CORPORATION OR ITS
ASSIGNEE OR SUCCESSOR ("SELLER") IS NOT THE SOLE OWNER OF THE
CERTIFICATES, THEN THE SELLER AND 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
-3-
<PAGE> 39
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.
SUPERIOR WHOLESALE INVENTORY FINANCING TRUST V
FLOATING RATE ASSET-BACKED CERTIFICATE, CLASS 1999-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.)
THIS CERTIFIES THAT __________ is the registered owner of a
nonassessable, fully-paid, fractional undivided interest in Superior Wholesale
Inventory Financing Trust V (the "Trust") formed by Wholesale Auto Receivables
Corporation, a Delaware corporation.
The Trust was created pursuant to a Trust Agreement, dated as
of May 18, 1999 (as amended and supplemented from time to time, the "Trust
Agreement"), between the Seller and Chase Manhattan Bank Delaware, as owner
trustee (the "Owner Trustee"), a summary of certain of the pertinent provisions
of which is set forth below. To the extent not otherwise defined herein, the
capitalized terms used herein have the meanings assigned to them in the Trust
Agreement.
This Certificate is one of the duly authorized Certificates
designated as "Floating Rate Asset-Backed Certificates, Class 1999-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 June 15, 1999 (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
-4-
<PAGE> 40
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 March, 2007 (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 to the extent described in
the Trust Sale and Servicing Agreement and the Indenture.
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. 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.
-5-
<PAGE> 41
Reference is hereby made to the further provisions of this
Certificate set forth on the reverse hereof, which further provisions shall for
all purposes have the same effect as if set forth at this place.
Unless the certificate of authentication hereon shall have
been executed by an authorized officer of the Owner Trustee by manual signature,
this Certificate shall not entitle the holder hereof to any benefit under the
Trust Agreement or the Trust Sale and Servicing Agreement or be valid for any
purpose.
THIS CERTIFICATE SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF DELAWARE, WITHOUT REFERENCE TO
THE PRINCIPLES OF CONFLICTS OF LAW THEREOF OR OF ANY OTHER JURISDICTION, AND THE
OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN
ACCORDANCE WITH SUCH LAWS.
-6-
<PAGE> 42
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: May 18, 1999
SUPERIOR WHOLESALE INVENTORY
FINANCING TRUST V
By: CHASE MANHATTAN BANK
DELAWARE, 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.
<TABLE>
<S> <C> <C>
CHASE MANHATTAN BANK OR CHASE MANHATTAN BANK
DELAWARE, not in its individual capacity but DELAWARE, not in its individual capacity
solely as Owner Trustee but solely as Owner Trustee by The Chase
Manhattan Bank, as Authenticating Agent
By: By:
----------------------------------------- ---------------------------------------
Name: Name:
Title: Title:
</TABLE>
-7-
<PAGE> 43
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 2.25%.
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 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.
-1-
<PAGE> 44
The Certificates are issuable only as registered Certificates
without coupons in denominations of $4,000,000 or greater (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
$4,000,000 (or such other amount as the Seller may determine in order to prevent
the Trust from being treated as a "publicly traded partnership" under Section
7704 of the Code, but in no event less than $250,000). No service charge shall
be made for any such registration of transfer or exchange, but the Owner Trustee
or the Certificate Registrar may require payment of a sum sufficient to cover
any tax or governmental charge payable in connection therewith.
The Owner Trustee, the Certificate Registrar and any agent of
the Owner Trustee or the Certificate Registrar may treat the person in whose
name this Certificate is registered as the owner hereof for all purposes, and
none of the Owner Trustee, the Certificate Registrar or any such agent shall be
affected by any notice to the contrary.
The obligations and responsibilities created by the Trust
Agreement and the Trust created thereby shall terminate upon the distribution to
Certificateholders of all amounts required to be paid to them pursuant to the
Trust Agreement and the Trust Sale and Servicing Agreement and the disposition
of all property held as part of the Trust.
-2-
<PAGE> 45
CERTIFICATE OF TRANSFER
FOR VALUE RECEIVED the undersigned hereby sells, assigns and transfers
unto
PLEASE INSERT SOCIAL SECURITY
OR OTHER IDENTIFYING NUMBER
OF ASSIGNEE
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
(Please print or type name and address, including postal zip code, of assignee)
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
the within Certificate, and all rights thereunder, hereby irrevocably
constituting and appointing
_________________________________________________________ Attorney to transfer
said Certificate on the books of the Certificate Registrar, with full power of
substitution in the premises.
In connection with any sale, pledge or transfer of this Certificate the
undersigned hereby represents to the Owner Trustee and the Seller that such
sale, pledge or transfer is being made:
[CHECK ONE]
- - (a) to an institutional investor that is an "accredited investor" (as
defined in Rule 501(a)(1), (2), (3) or (7) of Regulation D under the
Securities Act of 1933, as amended) acting for its own account (and not
for the account of others) or as a fiduciary or agent for others (which
others also are such institutional investors unless it is a bank acting
in its fiduciary capacity);
or
- - (b) to a person whom the undersigned reasonably believes after due
inquiry is a "qualified institutional buyer" (as defined in Rule 144A
under the Securities Act of 1933, as amended) acting for its own
account (and not for the account of others) or as a fiduciary or agent
for others (which others also are qualified institutional buyers) to
whom notice is given that the resale, pledge or transfer is being made
in reliance on Rule 144A.
-3-
<PAGE> 46
If such sale, pledge or other transfer is being made pursuant to (a) above, the
undersigned acknowledges that such institutional investor must execute a
certificate substantially in the form specified in the Trust Agreement.
Dated: -----------------------------*
Signature Guaranteed:
-----------------------------*
* NOTICE: The signature to this assignment must correspond with the name as it
appears upon the face of the within Certificate in every particular, without
alteration, enlargement or any change whatever. Such signature must be
guaranteed by a member firm of the New York Stock Exchange or a commercial bank
or trust company.
-4-
<PAGE> 47
EXHIBIT B
CERTIFICATE OF TRUST OF
SUPERIOR WHOLESALE INVENTORY FINANCING TRUST V
THIS Certificate of Trust of Superior Wholesale Inventory
Financing Trust V (the "Trust"), dated as of May 18, 1999, is being duly
executed and filed by Chase Manhattan Bank Delaware, a Delaware banking
corporation, as trustee, to form a business trust under the Delaware Business
Trust Act (12 Del. C. ss.3801 et seq.).
1. Name. The name of the business trust formed hereby is
Superior Wholesale Inventory Financing Trust V.
2. Delaware Trustee. The name and business address of the
trustee of the Trust in the State of Delaware is Chase Manhattan Bank Delaware,
1201 Market Street, Wilmington, Delaware 19801.
3. This Certificate of Trust shall be effective on May 18,
1999. 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.
Chase Manhattan Bank Delaware, not in its
individual capacity but solely as Owner
Trustee under a Trust Agreement dated as
of May 18, 1999.
By:
---------------------------------------
Name:
Title:
-1-
<PAGE> 48
EXHIBIT C
UNDERTAKING LETTER
Wholesale Auto Receivables Corporation
Corporation Trust Center
1209 Orange Street
Wilmington, DE 19801
Chase Manhattan Bank Delaware
1201 Market Street
Wilmington, Delaware 19801
Ladies and Gentlemen:
In connection with our purchase or record or beneficial
ownership of the Floating Rate Asset-Backed Certificate, Class 1999-A (the
"Certificate") of Superior Wholesale Inventory Financing Trust V, 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:
-----------------------------------
-1-
<PAGE> 49
EXHIBIT D
INVESTOR LETTER
Wholesale Auto Receivables Corporation
Corporation Trust Center
1209 Orange Street
Wilmington, Delaware 19801
Chase Manhattan Bank Delaware
1201 Market Street
Wilmington, Delaware 19801
Ladies and Gentlemen:
In connection with our proposed purchase of a Floating Rate
Asset-Backed Certificate, Class 1999-A (the "Certificate"), representing a
fractional undivided interest in the Superior Wholesale Inventory Financing
Trust V, issued under a trust agreement, dated as of May 18, 1999 (the "Trust
Agreement"), between Wholesale Auto Receivables Corporation, a Delaware
corporation (the "Seller") and Chase Manhattan Bank Delaware, as owner trustee,
acting thereunder not in its individual capacity but solely as owner trustee of
the Trust (the "Owner Trustee"), we confirm that:
1. We understand that the Certificate has not been registered
under the Securities Act of 1933, as amended (the "Securities
Act"), and may not be sold except as permitted in the
following sentence. We agree, on our own behalf and on behalf
of any accounts for which we are acting as hereinafter stated,
that such Certificate may be resold, pledged or transferred
only (i) to the Seller, (ii) to an institutional investor that
is an "accredited investor" as defined in Rule 501(a)(1), (2),
(3) or (7) (an "Institutional Accredited Investor") under the
Securities Act (as indicated by the box checked by the
transferor on the Certificate of Transfer on the reverse of
the certificate for the Certificate) acting for its own
account (and not for the account of others) or as a fiduciary
or agent for others (which others also are Institutional
Accredited Investors unless the holder is a bank acting in its
fiduciary capacity) that executes a certificate substantially
in the form hereof, (iii) so long as such Certificate is
eligible for resale pursuant to Rule 144A under the Securities
Act ("Rule 144A"), to a person whom we reasonably believe
after due inquiry to be a "qualified institutional buyer" as
defined in Rule 144A acting for its own account (and not for
the account of others) or as a fiduciary or agent for others
(which others also are "qualified institutional buyers") to
whom notice is given that the resale, pledge or transfer is
being made in reliance on Rule 144A, or (iv) in a sale, pledge
or other transfer made in a transaction otherwise exempt from
the registration requirements of the Securities Act, in which
case (A) the Owner Trustee shall require that both the
-1-
<PAGE> 50
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 $4,000,000 (or such other
amount as the Seller may determine in order to prevent the
Trust from being treated as a "publicly traded partnership"
under Section 7704 of the Code, but in no event less than
$250,000) and, in the case of any person acting on behalf of
one or more third parties (other than a bank (as defined in
Section 3(a)(2) of the Securities Act) acting in its fiduciary
capacity), for Certificates with a face amount of less than
such amount for each such third party. Any attempted transfer
will be void ab initio and the purported transferor will
continue to be treated as the owner of the offered
Certificates for all purposes.
2.
[CHECK ONE]
- (a) We are an institutional investor and an
"accredited investor" (as defined in Rule 501(a)(1),
(2), (3) or (7) of Regulation D under the Securities
Act) acting for our own account (and not for the
account of others) or as a fiduciary or agent for
others (which others also are Institutional
Accredited Investors unless we are bank acting in its
fiduciary capacity). We have such knowledge and
experience in financial and business matters as to be
capable of evaluating the merits and risks of our
investment in the Certificate, and we and any
accounts for which we are acting are each able to
bear the economic risk of our or its investment for
an indefinite period of time. We are acquiring the
Certificate for investment and not with a view to, or
for offer and sale in connection with, a public
distribution.
- (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
-2-
<PAGE> 51
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:
-------------------------------
-3-
<PAGE> 1
EXHIBIT 99.3
POOLING AND SERVICING AGREEMENT
BETWEEN
GENERAL MOTORS ACCEPTANCE CORPORATION
SELLER AND SERVICER
AND
WHOLESALE AUTO RECEIVABLES CORPORATION
PURCHASER
DATED AS OF MAY 18, 1999
SUPERIOR WHOLESALE INVENTORY FINANCING TRUST V
<PAGE> 2
TABLE OF CONTENTS
PAGE
ARTICLE I
DEFINITIONS.................................................................1
SECTION 1.01. Definitions...............................................1
ARTICLE II
PURCHASE AND SALE OF ELIGIBLE RECEIVABLES...................................2
SECTION 2.01. Purchase and Sale of Eligible Receivables.................2
SECTION 2.02. Purchase Price............................................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..........................................8
SECTION 3.05. Servicer's Accounting and Reports........................12
SECTION 3.06. Pre-Closing Collections..................................12
SECTION 3.07. Collections Received by GMAC.............................12
ARTICLE IV
REPRESENTATIONS, WARRANTIES AND COVENANTS..................................12
SECTION 4.01. Representations and Warranties of GMAC
Relating to the Accounts and the
Receivables.............................................13
SECTION 4.02. Representations and Warranties of GMAC
Relating to GMAC and the Agreement......................15
SECTION 4.03. Representations and Warranties of the
Purchaser...............................................17
SECTION 4.04. Covenants of GMAC........................................18
ARTICLE V
CERTAIN MATTERS RELATING TO GMAC...........................................19
SECTION 5.01. Merger or Consolidation of, or Assumption
of the Obligations of, GMAC.............................19
SECTION 5.02. GMAC Indemnification of the Purchaser....................19
SECTION 5.03. GMAC Acknowledgment of Transfers to the Issuer...........19
ARTICLE VI
ADDITIONAL AGREEMENTS......................................................20
-i-
<PAGE> 3
SECTION 6.01. Additional Obligations of GMAC and the Purchaser.........20
SECTION 6.02. Effect of Involuntary Case Involving GMAC................20
SECTION 6.03. Intercreditor Agreements.................................21
ARTICLE VII
MISCELLANEOUS PROVISIONS...................................................23
SECTION 7.01. Amendment................................................23
SECTION 7.02. Protection of Right, Title and Interest in
and to Receivables......................................23
SECTION 7.03. Costs and Expenses.......................................24
SECTION 7.04. GOVERNING LAW............................................24
SECTION 7.05. Notices..................................................25
SECTION 7.06. Severability of Provisions...............................25
SECTION 7.07. Assignment...............................................25
SECTION 7.08. Further Assurances.......................................25
SECTION 7.09. No Waiver; Cumulative Remedies...........................25
SECTION 7.10. Counterparts.............................................25
SECTION 7.11. Third-Party Beneficiaries................................25
SECTION 7.12. Merger and Integration...................................25
SECTION 7.13. Confidential Information.................................26
SECTION 7.14. Headings.................................................26
SECTION 7.15. Termination..............................................26
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 and Rules of Construction
-ii-
<PAGE> 4
THIS POOLING AND SERVICING AGREEMENT is made as of May 18,
1999, between GENERAL MOTORS ACCEPTANCE CORPORATION, a Delaware corporation
(referred to herein as "GMAC" in its capacity as seller of the Receivables
specified herein and as the "Servicer" in its capacity as servicer of the
Receivables), and WHOLESALE AUTO RECEIVABLES CORPORATION, a Delaware corporation
(the "Purchaser").
WHEREAS, GMAC, in the ordinary course of its business,
generates certain payment obligations by financing the floor plan inventory of
motor vehicle dealers;
WHEREAS, GMAC desires to sell and assign to the Purchaser, and
the Purchaser desires to purchase from GMAC, certain of such existing and future
payment obligations arising or acquired from time to time;
WHEREAS, the Purchaser desires to transfer and assign its
interest in such payment obligations to Superior Wholesale Inventory Financing
Trust V (the "Issuer") pursuant to the Trust Sale and Servicing Agreement;
WHEREAS, the Issuer desires to issue the Initial Securities to
fund its acquisition of such payment obligations;
WHEREAS, the Purchaser, the Issuer and GMAC (as the holder of
such payment obligations not sold to the Purchaser hereunder) desire that the
Servicer shall service such payment obligations; and
WHEREAS, the Servicer is willing to service such payment
obligations and related payment obligations in accordance with the terms hereof
and of the Trust Sale and Servicing Agreement for the benefit of the Purchaser,
GMAC, the Issuer and each other party identified or described herein or in the
Trust Sale and Servicing Agreement as having an interest therein as owner,
trustee, secured party or holder of the Securities (all such parties being
collectively referred to herein as "Interested Parties").
NOW, THEREFORE, in consideration of the premises and the
mutual covenants herein contained, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01. Definitions. Certain capitalized terms used in
the above recitals and in this Agreement are defined in and shall have the
respective meanings assigned them in Part I of 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.
The rules of construction set forth in Part II of such Appendix A shall be
applicable to this Agreement.
<PAGE> 5
ARTICLE II
PURCHASE AND SALE OF ELIGIBLE RECEIVABLES
SECTION 2.01. Purchase and Sale of Eligible Receivables.
(a) By execution of this Agreement, on the Initial Closing
Date, GMAC does hereby sell, transfer, assign and otherwise convey to the
Purchaser, without recourse, all of its right, title and interest in, to and
under all of the Eligible Receivables existing in the Accounts listed on the
Schedule of Accounts (which is kept at locations listed in Exhibit A) as of the
close of business on the Initial Cut-Off Date and all monies due or to become
due thereon after the Initial Cut-Off Date, all Collateral Security with respect
thereto and all amounts received with respect thereto (including all Interest
Collections received in the calendar month in which the Initial Cut-Off Date
occurs, whether or not received prior to the Initial Cut-Off Date) 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 Receivables Purchase
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 Eligible Receivables created or deemed created in the Accounts in the
Pool of Accounts on such date and all monies due or to become due thereon after
such date, all Collateral Security with respect thereto and all amounts received
with respect thereto and all proceeds thereof (including "proceeds" as defined
in Section 9-306 of the UCC and Recoveries).
(c) It is the intention of GMAC and the Purchaser that the
transfers and assignments contemplated by this Agreement shall constitute sales
of the property described in Sections 2.01(a) and (b) from GMAC to the Purchaser
and that the beneficial interest in and title to such property shall not be part
of GMAC's estate in the event of the filing of a bankruptcy petition by or
against GMAC under any Insolvency Law. The foregoing sales, transfers,
assignments and conveyances and any subsequent sales, transfers, assignments and
conveyances contemplated hereby do not constitute, and are not intended to
result in, the creation or an assumption by the Purchaser of any obligation of
the Servicer, GMAC (if GMAC is not the Servicer), General Motors or any other
Person in connection with the Receivables described above or under any agreement
or instrument relating thereto, including any obligation to any Dealers.
(d) Subject to Section 2.06 and Article III hereof, GMAC shall
retain all right, title and interest in, to and under the Receivables in the
Accounts in the Pool of Accounts that GMAC has not transferred to the Purchaser
hereunder. Such Receivables, together with any Receivables repurchased by GMAC
or (so long as GMAC is the Servicer) the Servicer from the Purchaser or the
Trust pursuant to this Agreement or the Trust Sale and Servicing Agreement, all
monies due or to become due on such Receivables, all amounts received with
respect thereto and all proceeds thereof (including "proceeds" as defined in
Section 9-306 of the UCC and Recoveries) are collectively referred to herein as
the "Retained Property".
SECTION 2.02. Purchase Price. On the Initial Closing Date, in
consideration for the sale of the property described in Section 2.01(a) to the
Purchaser, the Purchaser shall pay to GMAC $2,185,800,000 (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
-2-
<PAGE> 6
available funds, and GMAC shall deliver to the Purchaser an executed assignment
substantially in the form of Exhibit B hereto. The Purchaser shall pay, subject
to Section 6.02, for property described in Section 2.03 sold by GMAC to the
Purchaser on each Addition Date and property described in Section 2.01(b) sold
by GMAC to the Purchaser on each Receivables Purchase Date, a price equal to the
principal balance of the Eligible Receivables to be purchased on each such date.
Such purchase price shall be payable by the Purchaser on each such date in
immediately available funds.
SECTION 2.03. Addition of Accounts.
(a) Offers to Designate Additional Accounts. From time to
time, GMAC may, at its option, offer to designate and the Purchaser may, at its
option, request the designation of, one or more Accounts (each, an "Additional
Account") to be included as Accounts in the Pool of Accounts, subject to the
conditions specified in Section 2.03(b) below. If the Purchaser, at its option,
elects to accept any such offer by GMAC or if GMAC, at its option, agrees to any
such request of the Purchaser, GMAC shall sell and assign to the Purchaser, and
the Purchaser shall purchase from GMAC, all of GMAC's right, title and interest
in, to and under all of the Eligible Receivables in each such Additional Account
as of the related Additional Cut-Off Date and all monies due or to become due
thereon after such date, all Collateral Security with respect thereto, all
amounts received with respect thereto and all proceeds thereof (including
"proceeds" as defined in Section 9-306 of the UCC and Recoveries), effective as
of the Addition Date specified in a written notice provided by the Servicer, on
behalf of GMAC, to the Purchaser (the "GMAC Addition Notice"). Effective as of
each such Addition Date, such Additional Account shall be included in the Pool
of Accounts and Eligible Receivables arising therein from and after the
Additional Cut-Off Date shall be subject to purchase under Section 2.01(b)
above. Each GMAC Addition Notice shall specify the related Additional CutOff
Date and shall be given (with a copy to the Rating Agencies) on or before the
fifth Business Day but not more than 30 days 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;
-3-
<PAGE> 7
(iv) as of the Addition Date, neither GMAC nor the
Purchaser is insolvent nor shall any of them have been made insolvent
by such transfer nor is either of them aware of any pending insolvency;
(v) the Schedule of Accounts shall have been
amended to reflect such Additional Accounts and the Schedule of
Accounts as so amended shall be true and correct as of the Addition
Date;
(vi) GMAC shall have delivered to the Purchaser a
certificate of an Authorized Officer of GMAC confirming the items set
forth in clauses (i) through (v) above;
(vii) the conditions set forth in Section 2.7(b) of
the Trust Sale and Servicing Agreement shall have been satisfied; and
(viii) GMAC shall have delivered to the Purchaser an
Opinion of Counsel of GMAC substantially in the form of Exhibit D.
SECTION 2.04. Optional Removal of Accounts. From time to time,
GMAC may, at its option, request from the Purchaser, and the Purchaser may, at
its option, offer to GMAC, the right to designate an Account for removal from
the Pool of Accounts. Subject to the satisfaction by the Purchaser of the
conditions set forth in Section 2.8 of the Trust Sale and Servicing Agreement,
GMAC, at its option, may accept offers to designate an Account for removal or
request from the Purchaser the right to designate an Account for removal by
furnishing a written notice (the "GMAC Removal Notice") to the Purchaser not
less than five Business Days but not more than 30 days prior to the Removal
Commencement Date. On and after the Removal Commencement Date with respect to a
Selected Account, GMAC shall not transfer Receivables with respect to such
Selected Account to the Purchaser. The Schedule of Accounts shall be amended to
reflect such designation as of the Removal Commencement Date and to reflect such
Account becoming a Removed Account as of the Removal Date. At any time after the
Removal Date, at the written request of GMAC, the Purchaser shall assign to
GMAC, without recourse, representation or warranty, effective as of the Removal
Date, all of the Purchaser's right, title and interest in, to and under the
Receivables arising in such Account and related Collateral Security.
SECTION 2.05. Removal of Ineligible Accounts. If at any time
an Account shall be deemed a Selected Account as described in Section 2.9 of the
Trust Sale and Servicing Agreement, the Purchaser shall give notice thereof to
GMAC at the time it gives notice to the parties identified in such Section 2.9.
From and after the Removal Commencement Date with respect to a Selected Account
pursuant to such Section 2.9, GMAC shall not transfer Receivables with respect
to such Selected Account to the Purchaser. The Schedule of Accounts shall be
amended to reflect such designation as of the Removal Commencement Date and to
reflect such Account becoming a Removed Account as of the Removal Date. At any
time after such removal, at the written request of GMAC, the Purchaser shall
assign to GMAC, without recourse, representation or warranty, effective as of
the Removal Date, all of the Purchaser's right, title and interest in, to and
under the Receivables in such Account and related Collateral Security.
-4-
<PAGE> 8
SECTION 2.06. Custody of Documentation. In connection with the
sale, transfer, assignment and conveyance of the Receivables and related
Collateral Security in the Accounts in the Pool of Accounts to the Purchaser
hereunder, the Purchaser is executing simultaneously herewith the Custodian
Agreement with the Custodian, pursuant to which the Purchaser shall revocably
appoint the Custodian to act as agent of the Purchaser to maintain custody of
the documents and instruments (as more fully described in the Custodian
Agreement) associated with such Receivables, which shall be constructively
delivered to the Purchaser. GMAC, as the holder of the Retained Property, hereby
consents to the appointment of the Custodian to act as agent of GMAC to maintain
custody of the documents and contracts (as more fully described in the Custodian
Agreement) associated with the Receivables included therein and is
simultaneously herewith executing the Custodian Agreement. The Custodian has
accepted such appointment by the Purchaser and GMAC under the Custodian
Agreement.
ARTICLE III
ADMINISTRATION AND SERVICING OF RECEIVABLES
SECTION 3.01. Appointment of Servicer and Acceptance of
Appointment. The Purchaser and GMAC hereby appoint the Servicer to act as
Servicer with respect to the Eligible Receivables and the Receivables included
in the Retained Property, existing in or arising under the Accounts included in
the Pool of Accounts from time to time and authorize the Servicer to perform the
duties of Servicer under this Agreement and under the Trust Sale and Servicing
Agreement. The Servicer by execution of this Agreement and by execution of the
Trust Sale and Servicing Agreement hereby accepts such appointment and the terms
hereof and thereof.
SECTION 3.02. Rights and Duties of the Servicer.
(a) The Servicer shall manage, service and administer the
Receivables described in Section 3.01, including, without limitation, collecting
payments due under the Receivables and providing for charge-offs of
uncollectible Receivables, with reasonable care and all in accordance with the
Servicer's customary and usual servicing procedures for servicing wholesale
receivables comparable to the Receivables which the Servicer services for its
own account, including the Floor Plan Financing Guidelines, except insofar as
any failure to do so would not have a material adverse effect on the interests
of Securityholders. The Servicer shall have full power and authority, acting
alone or through any party properly designated by it hereunder or under the
Trust Sale and Servicing Agreement, to do any and all things in connection with
such servicing and administration which it may deem necessary or desirable,
including monitoring the insurance maintained by Dealers. The Servicer is hereby
authorized to commence, in its own name or in the name of any Interested Party,
a Proceeding to enforce any Receivable subject hereto, to enforce all
obligations of GMAC and the Purchaser under this Agreement and under the Trust
Sale and Servicing Agreement or to commence or participate in a Proceeding
(including without limitation a bankruptcy proceeding) relating to or involving
any such Receivable. If in any Proceeding it is held that the Servicer may not
enforce a Receivable arising under an Account in the Pool of Accounts on the
ground that it is not a real party in interest or a holder entitled to enforce
such Receivable, the Purchaser, GMAC and each other Interested Party shall, at
the Servicer's expense, take such steps as the Servicer reasonably deems
necessary or appropriate to enforce the Receivable, including bringing suit in
the name of such
-5-
<PAGE> 9
Person. If the Servicer commences or participates in such a Proceeding in its
own name, each Interested Party shall thereupon be deemed to have automatically
assigned such Receivable to the Servicer for purposes of commencing or
participating in any such Proceeding as a party or claimant, and the Servicer is
hereby authorized and empowered to execute and deliver in the Servicer's name
any notices, demands, claims, complaints, responses, affidavits or other
documents or instruments in connection with any such Proceeding. Each Interested
Party shall furnish the Servicer with any powers of attorney and other documents
and take any other steps which the Servicer may reasonably deem necessary or
appropriate to enable the Servicer to carry out its servicing and administrative
duties under this Agreement and the Trust Sale and Servicing Agreement. Except
to the extent required by the preceding two sentences, the authority and rights
granted to the Servicer in this Section 3.02 shall be nonexclusive and shall not
be construed to be in derogation of the retention by any Interested Party (to
the extent of its rights in a Receivable) of equivalent authority and rights.
Without limiting the generality of the foregoing and subject to any Servicing
Default, the Servicer is hereby authorized and empowered, unless such power and
authority is revoked by any Interested Party on account of the occurrence of
such a Servicing Default, to:
(i) instruct the Issuer to make allocations,
withdrawals and payments to or from the Collection Account, the
Distribution Accounts, the Reserve Fund, the Cash Accumulation Reserve
Fund and any other related bank accounts or funds 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.
-6-
<PAGE> 10
(c) Except as otherwise required to comply with all
Requirements of Law, the Servicer may change the terms and provisions of the
Floor Plan Financing Agreements or the Floor Plan Financing Guidelines in any
respect (including the calculation of the amount or the timing of charge-offs
and the rate of the finance charge assessed thereon), only if:
(i) in the reasonable belief of the Servicer, no
Early Amortization Event shall occur as a result of such change;
(ii) such change is made applicable to the
comparable segment of any similar portfolio of accounts serviced by the
Servicer and not only to the Accounts in the Pool of Accounts; and
(iii) in the case of a reduction in the rate of such
finance charges, the Servicer (and, if GMAC is not then the Servicer,
GMAC) does not reasonably expect any such reduction, after considering
amounts due and amounts payable under any Specified Support Agreements
and Investment Proceeds for the related period, to result in the Net
Receivables Rate for any Collection Period being less than the sum of
(A) the weighted average of the rates of interest payable to all
holders of Securities and (B) the Monthly Servicing Fee for the related
period;
provided, however, that nothing herein shall prevent the Servicer from modifying
the terms of the Floor Plan Financing Agreement with any dealer on a
case-by-case basis in a manner consistent with the Floor Plan Financing
Guidelines.
SECTION 3.03. Servicing Compensation; Payment of Certain
Expenses by the Servicer. The Servicer is entitled to receive the Monthly
Servicing Fee as described in the Trust Sale and Servicing Agreement. The
Monthly Servicing Fee shall be payable to the Servicer solely to the extent
amounts are available for payment in accordance with the terms of the Trust Sale
and Servicing Agreement. Subject to any limitations on the Servicer's liability
under the Trust Sale and Servicing Agreement, the Servicer shall be required to
pay all expenses incurred by it in connection with its activities under this
Agreement and the Trust Sale and Servicing Agreement (including disbursements of
the Issuer, fees and disbursements of any trustees, accountants and outside
auditors, taxes imposed on the Servicer, expenses incurred in connection with
distributions and reports to Securityholders and all other fees and expenses not
expressly stated under this Agreement or the Trust Sale and Servicing Agreement
to be for the account of the Securityholders, but in no event including federal,
state and local income and franchise taxes, if any, of the Issuer or any holder
of the Securities).
SECTION 3.04. Representations, Warranties and Covenants of the
Servicer.
(a) The Servicer hereby makes, and any successor Servicer by
its appointment under this Agreement and under the Trust Sale and Servicing
Agreement shall make, on each Closing Date (and on the date of any such
appointment) the following representations, warranties and covenants on which
the Purchaser relies in accepting and holding the Receivables and the related
Collateral Security hereunder and the Issuer shall rely in acquiring and holding
such Receivables and
-7-
<PAGE> 11
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 laws of the State of Delaware (or, in the case
of a Servicer other than GMAC, other applicable law of its jurisdiction
of incorporation), with power and authority to own its properties and
to conduct its businesses as such properties are presently owned and
such businesses are presently conducted.
(ii) Due Qualification. The Servicer is duly
qualified to do business and, where necessary, is in good standing as a
foreign corporation (or is exempt from such requirement) and has
obtained all necessary licenses and approvals in each jurisdiction in
which the conduct of its businesses requires such qualification, except
where the failure to so qualify or obtain licenses or approvals would
not have material adverse effect on its ability to perform its
obligations under this Agreement.
(iii) Power and Authority. The Servicer has the power
and authority to execute and deliver this Agreement and the Trust Sale
and Servicing Agreement, to carry out the terms of each such agreement
and to service the Accounts in the Pool of Accounts and the Receivables
arising therein as provided herein and in the Trust Sale and Servicing
Agreement, and the execution, delivery and performance of this
Agreement and the Trust Sale and Servicing Agreement have been duly
authorized by the Servicer by all necessary corporate action on the
part of the Servicer.
(iv) Binding Obligation. This Agreement constitutes,
and the Trust Sale and Servicing Agreement, when duly executed and
delivered by the Servicer, shall constitute, the legal, valid and
binding obligation of the Servicer enforceable in accordance with their
respective terms, except as enforceability may be limited by
bankruptcy, insolvency, reorganization, moratorium or other similar
laws now or hereinafter in effect, affecting the enforcement of
creditors' rights in general and by general principles of equity,
regardless of whether such enforceability is considered in a proceeding
in equity or at law.
(v) No Violation. The execution of this Agreement
and the consummation of the transactions contemplated by this Agreement
and the Trust Sale and Servicing Agreement by the Servicer and the
fulfillment of the terms of this Agreement and the Trust Sale and
Servicing Agreement by the Servicer, shall not conflict with, result in
any breach of any of the terms and provisions of or constitute (with or
without notice or lapse of time) a default under, the articles of
incorporation or by-laws of the Servicer, or any indenture, agreement,
mortgage, deed of trust or other instrument to which the Servicer is a
party or by which it is bound, or result in the creation or imposition
of any Lien upon any of its properties pursuant to the terms of any
such indenture, agreement, mortgage, deed of trust or other instrument
(other than pursuant to the Basic Documents), or violate any law or, to
the best of the Servicer's knowledge, any order, rule or regulation
applicable to the Servicer of any Governmental Authority having
jurisdiction over the Servicer or any of its properties, except
-8-
<PAGE> 12
where any such conflict or violation would not have a material adverse
effect on its ability to perform its obligations under this Agreement
or the Trust Sale and Servicing Agreement.
(vi) No Proceedings. To the Servicer's knowledge,
there are no Proceedings or investigations pending, or threatened,
against the Servicer before any Governmental Authority having
jurisdiction over the Servicer or its properties (A) asserting the
invalidity of this Agreement or the Trust Sale and Servicing Agreement
or any Securities issued thereunder, (B) seeking to prevent the
issuance of the such Securities, the execution of this Agreement or the
consummation of any of the transactions contemplated by this Agreement
or the Trust Sale and Servicing Agreement or (C) seeking any
determination or ruling that might materially and adversely affect the
performance by the Servicer of its obligations under, or the validity
and enforceability of, this Agreement or the Trust Sale and Servicing
Agreement.
(vii) Compliance with Requirements of Law. The
Servicer shall duly satisfy all obligations on its part to be fulfilled
under or in connection with the Receivables and the Accounts to be
serviced under this Agreement and the Trust Sale and Servicing
Agreement, shall maintain in effect all qualifications required under
Requirements of Law in order to service properly such Receivables and
such Accounts and shall comply in all material respects with all
Requirements of Law in connection with servicing such Receivables and
such Accounts, except, in each case, where a failure to do so would not
have a material adverse effect on the interests of the Securityholders.
(viii) No Rescission or Cancellation. Except pursuant
to the Floor Plan Financing Guidelines, the Servicer shall not permit
any rescission or cancellation of any Receivable sold and assigned to
the Purchaser hereunder that the Servicer services under this Agreement
and the Trust Sale and Servicing Agreement, except as ordered by a
court of competent jurisdiction or other Governmental Authority.
(ix) Protection of Interested Party Rights. The
Servicer shall take no action, nor omit to take any action, which would
impair the rights or interests of Interested Parties in the Receivables
sold and assigned to the Purchaser hereunder that the Servicer services
under this Agreement and the Trust Sale and Servicing Agreement or in
the related Vehicle Collateral Security nor shall it reschedule, revise
or defer payments due on any such Receivable except, in each case, in a
manner consistent with the Floor Plan Financing Guidelines or as
otherwise contemplated herein or in the Trust Sale and Servicing
Agreement. The Servicer shall not permit any such Receivable to become
subject to any right of set-off or any offsetting balance.
(x) Negative Pledge. Except for the conveyances
hereunder to the Issuer pursuant to the Trust Sale and Servicing
Agreement and the pledge of the Trust Estate to the Indenture Trustee
pursuant to the Indenture, and as provided in Section 6.03, the
Servicer shall not sell, pledge, assign or transfer to any other
Person, or grant, create, incur, assume or suffer to exist, any Lien on
any Receivable sold and assigned to the Purchaser hereunder (and any
related Collateral Security), whether now existing or hereafter
created, or any interest therein, and the Servicer shall defend the
right, title and interest of the Purchaser, the
-9-
<PAGE> 13
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 party.
(c) Purchase of Receivables. If any covenants of the Servicer
under Section 3.04(a)(viii), (ix) or (x) has not been complied with in all
material respects with respect to any Eligible Receivable or Account in the Pool
of Accounts and such noncompliance has a material adverse effect on the
interests of Securityholders or any other Interested Parties in such Receivable
or such Account, the Servicer shall purchase such Receivable (or, in the case of
a breach affecting less than the entire principal amount of a Receivable, to the
extent of the breach) or all Eligible Receivables under such Account (each, an
"Administrative Receivable") from the Issuer, on the terms and conditions set
forth in this Section 3.04.
(d) Payment of Purchase Price. The Servicer shall purchase
each Administrative Receivable no later than two Business Days (or such other
period as may be agreed by the Applicable Trustee) following discovery by the
Servicer (including through the receipt of notice thereof) of the event giving
rise to such Administrative Receivable by depositing in the Collection Account,
on the date on which such purchase is deemed to occur, an amount (in immediately
available funds) equal to the principal amount of such Receivable plus accrued
and unpaid interest thereon through the date of purchase. The amount so
deposited with respect to a Receivable (an "Administrative Purchase Payment")
shall be included in Trust Principal Collections (to the extent of the principal
amount of such Receivable) and Interest Collections (as to the remainder of such
amount) on such date and shall be applied in accordance with the terms of this
Agreement and the Trust Sale and Servicing Agreement.
(e) Sole Remedy. The obligation of the Servicer to purchase
Receivables as described in this Section 3.04, and to make the deposits required
to be made to the Collection Account as provided in the preceding paragraph,
shall constitute the sole remedy respecting the event giving rise to such
obligation available to any Securityholders, the Purchaser, the Owner Trustee,
the Indenture Trustee or the Issuer.
SECTION 3.05. Servicer's Accounting and Reports.
(a) On or before each Determination Date, the Servicer shall
deliver to the Purchaser, the Owner Trustee, the Indenture Trustee and the
Rating Agencies a Servicer's Accounting with respect to the immediately
preceding Collection Period executed by an Authorized Officer of the Servicer
containing all information necessary for making the allocations, deposits and
distributions required by the Trust Sale and Servicing Agreement, the Trust
Agreement and the Indenture on the related Distribution Date, and all
information necessary to each such party for
-10-
<PAGE> 14
sending any statements required to be sent to Securityholders with respect to
such Distribution Date under the Trust Sale and Servicing Agreement.
(b) On each Business Day, the Servicer shall deliver to the
Indenture Trustee a Servicer's Accounting executed by an Authorized Officer of
the Servicer containing the Daily Trust Balance, the Daily Trust Invested Amount
and all related amounts to the extent necessary to determine the Cash Collateral
Amount for such date as described in Section 4.5(d) of the Trust Sale and
Servicing Agreement.
(c) At any time that GMAC does not have a long-term rating of
at least BBB- from Standard & Poor's and at least Baa3 from Moody's, the
Servicer shall identify on a daily basis all Eligible Receivables and, on or
before each Determination Date, the Servicer shall deliver to the Owner Trustee
a list identifying all Eligible Receivables as of the last day of the related
Collection Period.
SECTION 3.06. Pre-Closing Collections. Within two Business
Days after the Initial Closing Date, GMAC shall deliver to the Purchaser all
collections on the Receivables in the Accounts in the Pool of Accounts held by
GMAC on the Initial Closing Date to the extent such collections would be
required to be on deposit on such date if this Agreement and the Trust Sale and
Servicing Agreement had been in effect from and after the Initial Cut-Off Date
and the Revolving Period had commenced on such date. The Purchaser hereby
directs GMAC to deposit such amount on its behalf into the Collection Account.
SECTION 3.07. Collections Received by GMAC. GMAC hereby agrees
to deliver all Collections on the Receivables in the Accounts in the Pool of
Accounts received by GMAC from or on behalf of Dealers to the Servicer and
consents to the application, allocation and distribution thereof in accordance
with the terms and provisions of this Agreement and the Trust Sale and Servicing
Agreement.
ARTICLE IV
REPRESENTATIONS, WARRANTIES AND COVENANTS
SECTION 4.01. Representations and Warranties of GMAC Relating
to the Accounts and the Receivables.
(a) Representations and Warranties. As of the dates set forth
below, GMAC makes the following representations and warranties to the Purchaser
as to the Accounts in the Pool of Accounts and the Receivables sold to the
Purchaser hereunder, on which the Purchaser relies in accepting such
Receivables:
(i) as of the Initial Cut-Off Date, each Account
included in the Pool of Accounts is an Eligible Account;
-11-
<PAGE> 15
(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 or any other instalment
sales program or similar arrangement, unless and to the extent such breach or
deferral shall have been cured in all material respects, GMAC shall repurchase
the interest of the Issuer in such Receivable (to the extent of such breach or
deferral) on the date and for the amount specified in Section 2.5 of the Trust
Sale and Servicing Agreement, without further notice from the Purchaser
hereunder and without any representation, warranty or recourse from the
Purchaser or the Issuer. Without limiting the generality of the foregoing, a
Receivable shall not be an Eligible Receivable, and thus shall be subject to
repurchase, if and to the extent that, (A) the Servicer adjusts downward the
principal amount of such Receivable because of a rebate, refund, credit
adjustment or billing error to the related Dealer or (B) such Receivable was
created in respect of a Vehicle which was refused or returned by the related
Dealer.
(d) Sole Remedy. The obligation of GMAC to repurchase any
Receivable shall constitute the sole remedy respecting the event giving rise to
such obligation available to the Purchaser and to any Interested Party.
-12-
<PAGE> 16
SECTION 4.02. Representations and Warranties of GMAC Relating
to GMAC and the Agreement.
(a) Representations and Warranties. GMAC, in its capacity as
seller, hereby makes as of each Closing Date the following representations and
warranties on which the Purchaser relies. The following representations and
warranties shall survive the sale, transfer and assignment of the Receivables
hereunder:
(i) Organization and Good Standing. GMAC has been duly
organized and is validly existing as a corporation in good standing
under the laws of the State of Delaware, with power and authority to
own its properties and to conduct its businesses as such properties are
presently owned and such businesses are presently conducted;
(ii) Due Qualification. GMAC is duly qualified to do
business and, where necessary, is in good standing as a foreign
corporation (or is exempt from such requirement) and has obtained all
necessary licenses and approvals in each jurisdiction in which the
conduct of its businesses requires such qualification, except where the
failure to so qualify or obtain licenses or approvals would not have a
material adverse effect on its ability to perform its obligations under
this Agreement;
(iii) Power and Authority. GMAC has the power and
authority to execute and deliver this Agreement, to carry out its
terms, and to consummate the transactions contemplated herein, and the
execution, delivery and performance of this Agreement and the
consummation of the transactions contemplated herein have been duly
authorized by GMAC by all necessary corporate action on the part of
GMAC;
(iv) No Violation. The execution of this Agreement and
the consummation of the transactions contemplated by this Agreement and
the fulfillment of the terms of this Agreement by GMAC shall not
conflict with, result in any breach of any of the terms and provisions
of, or constitute (with or without notice or lapse of time) a default
under, the articles of incorporation or by-laws of GMAC, or any
indenture, agreement, mortgage, deed of trust or other instrument to
which GMAC is a party or by which it is bound, or result in the
creation or imposition of any Lien upon any of its properties pursuant
to the terms of any such indenture, agreement, mortgage, deed of trust
or other instrument (other than pursuant to the Basic Documents) or
violate any law or, to the best of GMAC's knowledge, any order, rule or
regulation applicable to GMAC of any Governmental Authority having
jurisdiction over GMAC or any of its properties, except where any such
conflict or violation would not have a material adverse effect on its
ability to perform its obligations with respect to the Purchaser or any
Interested Party under this Agreement or the Trust Sale and Servicing
Agreement;
(v) No Proceedings. To GMAC's knowledge, there are no
Proceedings or investigations pending, or threatened, against GMAC
before any Governmental Authority having jurisdiction over GMAC or its
properties (A) asserting the invalidity of this Agreement, the Trust
Sale and Servicing Agreement, the Custodian Agreement or the
Administration Agreement, (B) seeking to prevent the execution of this
Agreement or the
-13-
<PAGE> 17
consummation of any of the transactions contemplated by this Agreement,
the Trust Sale and Servicing Agreement, the Custodian Agreement or the
Administration Agreement or (C) seeking any determination or ruling
that might materially and adversely affect the performance by GMAC of
its obligations under, or the validity or enforceability of, this
Agreement, the Trust Sale and Servicing Agreement, the Custodian
Agreement or the Administration Agreement;
(vi) Binding Obligation. This Agreement constitutes a
legal, valid and binding obligation of GMAC, enforceable against GMAC
in accordance with its terms, except as such enforceability may be
limited by applicable bankruptcy, insolvency, reorganization,
moratorium or other similar laws now or hereafter in effect affecting
the enforcement of creditors' rights in general and by general
principles of equity, regardless of whether such enforceability is
considered in a proceeding in equity or at law;
(vii) Record of Accounts. The Schedule of Accounts is an
accurate and complete listing in all material respects of all of the
Accounts in the Pool of Accounts as of the Initial Cut-Off Date or the
applicable Additional Cut-Off Date, as the case may be, and the
information contained therein with respect to the identity of such
Accounts is true and correct in all material respects; and
(viii) Valid Sale. With respect to the Initial Accounts,
this Agreement and the related assignment to be delivered on the
Initial Closing Date or, in the case of Additional Accounts, the
related assignment as described in Section 2.03(b), when duly executed
and delivered, shall constitute a valid sale, transfer and assignment
to the Purchaser of all right, title and interest of GMAC in, to and
under the Eligible Receivables thereunder and the related Vehicle
Collateral Security, whether then existing or thereafter created, and
the proceeds thereof, enforceable against creditors of and purchasers
from GMAC. To the extent such filings are required therefor, upon the
filing of the financing statements described in Section 7.02(a) (and,
in the case of Eligible Receivables hereafter created in the Accounts
in the Pool of Accounts and the proceeds thereof, upon the creation
thereof) the Purchaser shall have a first priority perfected ownership
interest in such property, except for Liens permitted under Section
4.04(a). Except as otherwise provided in the Trust Sale and Servicing
Agreement or this Agreement, neither General Motors, GMAC nor any
Person claiming through or under General Motors or GMAC has any claim
to or interest in the Trust Estate.
(b) Survival; Notice of Breach. The representations and
warranties set forth in this Section 4.02 shall survive the transfer and
assignment of the Receivables and related items to the Purchaser hereunder and
the subsequent assignment and transfer of its interests therein to the Issuer
pursuant to the Trust Sale and Servicing Agreement. Upon discovery by GMAC or
the Purchaser of a breach of any of the foregoing representations and
warranties, the party discovering such breach shall give prompt written notice
to the other party.
(c) Repurchase. If (i) the Purchaser is required to purchase
Receivables and related Collateral Security pursuant to Section 3.1(c) of the
Trust Sale and Servicing Agreement and (ii) the condition giving rise to such
purchase obligation shall also constitute a breach of a representation or
warranty pursuant to Section 4.02(a), GMAC shall repurchase such Receivables
-14-
<PAGE> 18
and such Collateral Security and shall pay to the Purchaser, prior to the time
the Purchaser is required to pay such amount pursuant to the Trust Sale and
Servicing Agreement, an amount equal to the Reassignment Amount.
(d) Sole Remedy. The obligation of GMAC to purchase such
Receivables and such Collateral Security pursuant to this Section 4.02 shall
constitute the sole remedy available to the Purchaser and to any Interested
Party against GMAC respecting the event giving rise to such obligation.
SECTION 4.03. Representations and Warranties of the Purchaser.
The Purchaser hereby represents and warrants to GMAC as of each Closing Date
that:
(a) Organization and Good Standing. The Purchaser has been
duly organized and is validly existing as a corporation in good standing under
the laws of the State of Delaware, with power and authority to own its
properties and to conduct its business as such properties are presently owned
and such business is presently conducted, and had at all relevant times, and now
has, power, authority and legal right to acquire and own the Eligible
Receivables arising in the Accounts in the Pool of Accounts and the Collateral
Security related thereto;
(b) Due Qualification. The Purchaser is duly qualified to do
business and, where necessary, is in good standing as a foreign corporation (or
is exempt from such requirement) and has obtained all necessary licenses and
approvals in all jurisdictions in which the ownership or lease of property or
the conduct of its business requires such qualification, except where the
failure to so qualify or obtain licenses or approvals would not have a material
adverse effect on its ability to perform its obligations under this Agreement;
(c) Power and Authority. The Purchaser has the power and
authority to execute and deliver this Agreement, to carry out its terms and to
consummate the transactions contemplated herein, and the execution, delivery and
performance of this Agreement and the consummation of the transactions
contemplated herein have been duly authorized by the Purchaser by all necessary
corporate action on the part of the Purchaser;
(d) No Violation. The execution of this Agreement and the
consummation of the transactions contemplated by this Agreement by the Purchaser
and the fulfillment of the terms of this Agreement by the Purchaser shall not
conflict with, result in any breach of any of the terms and provisions of or
constitute (with or without notice or lapse of time) a default under, the
certificate of incorporation or by-laws of the Purchaser, or any indenture,
agreement, mortgage, deed of trust or other instrument to which the Purchaser is
a party or by which it is bound, or result in the creation or imposition of any
Lien upon any of its properties pursuant to the terms of any such indenture,
agreement, mortgage, deed of trust or other instrument (other than pursuant to
the Basic Documents), or violate any law or, to the best of the Purchaser's
knowledge, any order, rule or regulation applicable to the Purchaser of any
Governmental Authority having jurisdiction over the Purchaser or any of its
properties, except where any such conflict or violation would not have a
material adverse effect on its ability to perform its obligations with respect
to GMAC or any Interested Party under this Agreement or the Trust Sale and
Servicing Agreement;
-15-
<PAGE> 19
(e) No Proceedings. To the Purchaser's knowledge, there are no
Proceedings or investigations pending, or threatened, against the Purchaser
before any Governmental Authority having jurisdiction over the Purchaser or its
properties (i) asserting the invalidity of this Agreement, (ii) seeking to
prevent the execution of this Agreement or the consummation of any of the
transactions contemplated by this Agreement or (iii) seeking any determination
or ruling that might materially and adversely affect the performance by the
Purchaser of its obligations under, or the validity or enforceability of, this
Agreement; and
(f) Binding Obligation. This Agreement constitutes a legal,
valid and binding obligation of the Purchaser, enforceable against the Purchaser
in accordance with its terms, except as such enforceability may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium or other similar
laws now or hereafter in effect affecting the enforcement of creditors' rights
in general and by general principles or equity, regardless of whether such
enforceability is considered in a proceeding in equity or at law.
SECTION 4.04. Covenants of GMAC. GMAC hereby covenants that:
(a) Negative Pledge. Except for the conveyances hereunder and
under the Trust Sale and Servicing Agreement and the pledge of the Trust Estate
to the Indenture Trustee under the Indenture and as provided in Section 6.03,
GMAC shall not sell, pledge, assign or transfer to any other Person, or grant,
create, incur, assume or suffer to exist, any Lien on any Eligible Receivable in
any Account in the Pool of Accounts (and any related Vehicle Collateral
Security), whether now existing or hereafter created, or any interest therein,
and GMAC shall defend the right, title and interest of the Purchaser and any
Interested Party in, to and under such property, whether now existing or
hereafter created, against all claims of third parties claiming through or under
GMAC. GMAC shall notify the Purchaser and the Issuer promptly after becoming
aware of any Lien on any such property other than the conveyances hereunder or
under the Trust Sale and Servicing Agreement or the Indenture. Nothing herein
shall prohibit GMAC from granting, creating, incurring or suffering to exist any
Lien on all or any portion of the Retained Property.
(b) Delivery of Collections. All payments received by GMAC
from or on behalf of a Dealer in respect of Receivables in any Accounts in the
Pool of Accounts or any Collateral Security (except as contemplated in Section
6.03 with respect to any property constituting Common Collateral that is not
Vehicle Collateral Security in connection with any Other Indebtedness) shall be
received by GMAC in its capacity as Servicer, unless GMAC is no longer the
Servicer, in which case GMAC shall deliver all such payments to the Servicer as
soon as practicable after receipt thereof, but in no event later than two
Business Days after receipt thereof.
(c) Compliance with Requirements of Law. GMAC shall comply in
all material respects with all Requirements of Law applicable to GMAC, except
where any such failure to comply would not have a material adverse effect on its
ability to perform its obligations under this Agreement.
(d) No Petition. Neither the Servicer nor GMAC shall at any
time institute against the Purchaser any bankruptcy, reorganization,
arrangement, insolvency or liquidation proceedings, or other proceedings under
any United States Federal or state bankruptcy or similar law.
-16-
<PAGE> 20
ARTICLE V
CERTAIN MATTERS RELATING TO GMAC
SECTION 5.01. Merger or Consolidation of, or Assumption of the
Obligations of, GMAC.
(a) Notwithstanding anything to the contrary in this
Agreement, any Person (i) into which GMAC may be merged or consolidated, (ii)
resulting from any merger, conversion or consolidation to which GMAC shall be a
party, (iii) succeeding to the business of GMAC or (iv) more than 50% of the
voting interests of which is owned, directly or indirectly, by General Motors
and which is otherwise originating receivables, which Person in any of the
foregoing cases (other than GMAC as the surviving entity of such merger or
consolidation) executes an agreement of assumption to perform every obligation
of GMAC, as seller, under this Agreement and the Trust Sale and Servicing
Agreement, shall be the successor to GMAC under this Agreement, as seller,
without the execution or filing of any document or any further act on the part
of any of the parties to this Agreement or the Trust Sale and Servicing
Agreement, anything in this Agreement to the contrary notwithstanding.
(b) GMAC shall provide notice of any merger, consolidation or
succession pursuant to this Section 5.01 to the Rating Agencies.
SECTION 5.02. GMAC Indemnification of the Purchaser. GMAC
shall indemnify the Purchaser for any liability as a result of the failure of an
Eligible Receivable sold hereunder to be originated in compliance with all
Requirements of Law. This indemnity obligation shall be in addition to any
obligation that GMAC may otherwise have.
SECTION 5.03. GMAC Acknowledgment of Transfers to the Issuer.
By its execution of the Trust Sale and Servicing Agreement, GMAC acknowledges
that the Purchaser shall, pursuant to the Trust Sale and Servicing Agreement,
transfer the Receivables purchased hereunder and related Collateral Security to
the Issuer and assign its rights associated therewith under this Agreement to
the Issuer, subject to the terms and conditions of the Trust Sale and Servicing
Agreement, and that the Issuer shall in turn further pledge, assign or transfer
its rights in such property and this Agreement to the Indenture Trustee under
the Indenture. GMAC further acknowledges that the Purchaser shall assign its
rights under the Custodian Agreement to the Issuer.
ARTICLE VI
ADDITIONAL AGREEMENTS
SECTION 6.01. Additional Obligations of GMAC and the
Purchaser.
(a) Supplemental Principal Allocations. On or before the
Business Day prior to each Distribution Date for the Wind Down Period or an
Early Amortization Period, GMAC shall deposit into the Collection Account, on
behalf of the Purchaser, an amount equal to the Supplemental Principal
Allocation for such Distribution Date. Such amount shall be recorded as an
advance under the Intercompany Advance Agreement and shall bear interest and be
payable as provided therein.
-17-
<PAGE> 21
(b) Removed Accounts. With respect to each Removed Account, if
and to the extent that any related Receivable held by the Trust on the related
Removal Commencement Date (determined without giving effect to the special
allocation of Principal Collections pursuant to Section 2.8(c) or Section
2.9(b), as applicable, of the Trust Sale and Servicing Agreement) is charged-off
as uncollectible at any time following the related Removal Date, the Purchaser
shall pay the amount so charged-off to GMAC.
SECTION 6.02. Effect of Involuntary Case Involving GMAC.
(a) Suspension of Purchases. The Purchaser shall suspend the
purchase (and GMAC shall suspend the sale) of Receivables hereunder if either
party shall receive notice at its principal corporate office that GMAC has
become an involuntary party to (or has been made the subject of) any proceeding
provided for by any insolvency, readjustment of debt, marshalling of assets and
liabilities or similar proceedings of or relating to GMAC or relating to all or
substantially all of its property (an "Involuntary Case").
(b) Resumption of Purchases. Notwithstanding any cessation or
suspension of purchases pursuant to Section 6.02(a), if GMAC or the Purchaser
has obtained an order from the court having jurisdiction over an Involuntary
Case approving the continuation of the sale of Receivables by GMAC to the
Purchaser and/or approving the sale of Receivables originating in the Accounts
in the Pool of Accounts since the date of the suspension of such sales on the
same terms (including Section 6.03 hereof) as, or on terms that do not have a
material adverse effect on Securityholders as compared to, the terms in effect
prior to the commencement of such Involuntary Case, and further providing that
the Purchaser and any of its transferees (including the Issuer) may rely on such
order for the validity and nonavoidance of such transfer (the "Order"), the
Purchaser may resume the purchase (and GMAC may resume the sale) of Receivables
pursuant to the terms hereof; provided, however, that so long as such
Involuntary Case shall continue, notwithstanding anything in this Agreement to
the contrary, the purchase price of such Receivables (which shall not be less
than reasonably equivalent value therefor or greater than the principal balance
thereof) shall be paid by the Purchaser to GMAC in cash not later than the same
Business Day of any such sale, and such Receivables shall be considered
transferred to the Purchaser only to the extent that the purchase price therefor
has been paid in cash on the same Business Day.
(c) Cessation of Purchases. If an Order is obtained but
subsequently is reversed or rescinded or expires, the Purchaser shall
immediately cease to purchase (and GMAC shall immediately cease to sell)
Receivables hereunder. Notwithstanding anything contained in Section 6.02(b), if
an Involuntary Case has not been dismissed by the first Business Day following
the 60 day period beginning on the day on which notice of an Involuntary Case
was received by either party, whether or not an Order was obtained, the
Purchaser shall not thereafter purchase Receivables from GMAC hereunder and GMAC
shall not thereafter designate Additional Accounts for transfer to the Purchaser
or sell Receivables hereunder.
-18-
<PAGE> 22
SECTION 6.03. Intercreditor Agreements.
(a) Common Collateral. In connection with loans or advances
made or to be made by GMAC to a Dealer from time to time other than pursuant to
an Account (collectively, "Other Indebtedness"), GMAC may have a security
interest in property constituting Collateral Security (the "Common Collateral").
(b) Agreements of GMAC with respect to Common Collateral. GMAC
agrees that with respect to the Receivables of each Dealer:
(i) GMAC's security interest in any Common
Collateral that is Vehicle Collateral Security (and the proceeds
thereof) in connection with any Other Indebtedness is subordinate to
the security interest therein in connection with such Receivables and
assigned to the Purchaser hereunder;
(ii) GMAC shall not apply the proceeds of any such
Common Collateral that is Vehicle Collateral Security in connection
with any Other Indebtedness in any manner that is materially adverse to
the Purchaser or the Issuer and the Securityholders until all required
payments in respect of such Receivable have been made; and
(iii) in realizing upon any such Common Collateral
that is Vehicle Collateral Security in connection with any such
Receivables, neither the Purchaser nor the Issuer (nor the Servicer on
behalf of either) shall be obligated to protect or preserve the rights
of GMAC in such Common Collateral.
(c) Agreements of the Purchaser with respect to Common
Collateral. The Purchaser agrees that with respect to the Receivables of each
Dealer:
(i) the Purchaser's security interest in any Common
Collateral that is not Vehicle Collateral Security (and the proceeds
thereof) in connection with such Receivables assigned to the Purchaser
hereunder is subordinate to the security interest therein in connection
with any Other Indebtedness;
(ii) the Purchaser (or the Servicer on its behalf)
shall not apply the proceeds of any such Common Collateral that is not
Vehicle Collateral Security in connection with any such Receivables in
any manner that is materially adverse to GMAC until all required
payments in respect of such Other Indebtedness have been made; and
(iii) in realizing upon any such Common Collateral
that is not Vehicle Collateral Security in connection with such Other
Indebtedness, GMAC shall not be obligated to protect or preserve the
rights of the Purchaser or the Issuer in such Collateral Security.
(d) Obligations of Issuer. The Trust Sale and Servicing
Agreement shall provide that the Issuer is subject to this Section 6.03.
-19-
<PAGE> 23
(e) Obligations of Assignees and Transferees. If, other than
pursuant hereto, GMAC in any manner assigns or transfers any right or obligation
with respect to any Other Indebtedness or any property constituting Common
Collateral, GMAC shall make such assignment or transfer subject to the
provisions of this Section 6.03 and shall require such assignee or transferee to
acknowledge that it takes such assignment or transfer subject to the provisions
of this Section 6.03 and to agree that it shall require the same acknowledgment
from any subsequent assignee or transferee.
ARTICLE VII
MISCELLANEOUS PROVISIONS
SECTION 7.01. Amendment. This Agreement may be amended from
time to time (subject to Section 10.1(g) of the Trust Sale and Servicing
Agreement) by a written amendment duly executed and delivered by GMAC and the
Purchaser.
SECTION 7.02. Protection of Right, Title and Interest in and
to Receivables.
(a) GMAC or the Purchaser or both shall execute and file such
financing statements and cause to be executed and filed such continuation
statements or other statements, all in such manner and in such places as may be
required by law fully to evidence, preserve, maintain and protect the interest
of the Purchaser hereunder in the Eligible Receivables arising in the Accounts
in the Pool of Accounts and the related Collateral Security and in the proceeds
thereof (including, without limitation, UCC-1 financing statements on or prior
to the Initial Closing Date). GMAC shall deliver (or cause to be delivered) to
the Purchaser file-stamped copies of, or filing receipts for, any document filed
as provided above, as soon as available following such filing.
(b) Within 60 days after GMAC makes any change in its name,
identity or corporate structure that would make any financing statement or
continuation statement filed in accordance with Section 7.02(a) seriously
misleading within the meaning of Section 9-402(7) of the UCC, GMAC shall give
the Purchaser notice of any such change.
(c) GMAC shall give the Purchaser at least 60 days prior
written notice of any relocation of its principal executive office if, as a
result of such relocation, the applicable provisions of the UCC would require
the filing of any amendment of any previously filed financing or continuation
statement or of any new financing statement. GMAC shall at all times maintain
its principal executive office within the United States of America.
(d) In connection with the sale and transfer hereunder of the
Receivables in the Accounts in the Pool of Accounts and the related Collateral
Security from GMAC to the Purchaser, GMAC shall, at its own expense, on or prior
to the Initial Closing Date, in the case of the Initial Accounts, and on or
prior to the applicable Addition Date, in the case of Additional Accounts, (i)
indicate in its computer files that the Eligible Receivables in the Accounts in
the Pool of Accounts have been sold and transferred, and the Collateral Security
assigned, to the Purchaser pursuant to this Agreement and that such property has
been sold and transferred to the Issuer pursuant to the Trust Sale and Servicing
Agreement and (ii) deliver to the Purchaser a true and complete list of all such
-20-
<PAGE> 24
Accounts specifying for each such Account, as of the Initial Cut-Off Date, in
the case of the Initial Accounts, and as of the applicable Additional Cut-Off
Date, in the case of Additional Accounts, its account number and the outstanding
principal balance of Eligible Receivables in such Account. Such list, as
supplemented from time to time to reflect Additional Accounts, Selected Accounts
and Removed Accounts (including Accounts removed as described in Section 2.05),
shall be the Schedule of Accounts and is hereby incorporated into and made a
part of this Agreement.
(e) The Servicer shall furnish to the Purchaser at any time
upon request a list of all Accounts then included in the Pool of Accounts,
together with a reconciliation of such list to the Schedule of Accounts as
initially furnished pursuant to the Trust Sale and Servicing Agreement and to
each notice furnished before such request indicating removal from or addition to
the Accounts in the Pool of Accounts.
SECTION 7.03. Costs and Expenses. GMAC agrees to pay all
reasonable out-of-pocket costs and expenses of the Purchaser, including fees and
expenses of counsel, in connection with the perfection as against third parties
of the Purchaser's right, title and interest in, to and under the Receivables
sold hereunder and the enforcement of any obligation of GMAC hereunder.
SECTION 7.04. GOVERNING LAW. THIS AGREEMENT SHALL BE CONSTRUED
IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK, WITHOUT REFERENCE
TO THE PRINCIPLES OF CONFLICTS OF LAW THEREOF OR OF ANY OTHER JURISDICTION, AND
THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE
DETERMINED IN ACCORDANCE WITH SUCH LAWS.
SECTION 7.05. Notices. All demands, notices and communications
upon or to GMAC, the Purchaser, or any other Person identified in Section 10.3
of the Trust Sale and Servicing Agreement under this Agreement shall be
delivered as specified in Appendix B to the Trust Sale and Servicing Agreement.
SECTION 7.06. Severability of Provisions. If any one or more
of the covenants, agreements, provisions or terms of this Agreement shall for
any reason whatsoever be held invalid, then such covenants, agreements,
provisions or terms shall be deemed enforceable to the fullest extent permitted,
and if not so permitted, shall be deemed severable from the remaining covenants,
agreements, provisions or terms of this Agreement and shall in no way affect the
validity or enforceability of the other provisions of this Agreement or of any
Securities or rights of any Interested Parties.
SECTION 7.07. Assignment. Notwithstanding anything to the
contrary contained herein, this Agreement may not be assigned by GMAC without
the prior written consent of the Purchaser and the Issuer. The Purchaser may
assign all or a portion of its rights, remedies, powers and privileges under
this Agreement to the Issuer pursuant to the Trust Sale and Servicing Agreement.
-21-
<PAGE> 25
SECTION 7.08. Further Assurances. GMAC and the Purchaser agree
to do and perform, from time to time, any and all acts and to execute any and
all further instruments required or reasonably requested by the other party to
more fully effect the purposes of this Agreement, including the execution of any
financing statements or continuation statements relating to the Receivables for
filing under the provisions of the Uniform Commercial Code of any applicable
jurisdiction and to evidence the repurchase of any interest in any Receivable by
GMAC or the Servicer.
SECTION 7.09. No Waiver; Cumulative Remedies. No failure or
delay on the part of the Purchaser in exercising any right, remedy, power or
privilege under this Agreement shall operate as a waiver thereof; nor shall any
single or partial exercise of any right, remedy, power or privilege under this
Agreement preclude any other or further exercise thereof or the exercise of any
other right, remedy, power or privilege. The rights, remedies, powers and
privileges herein provided are cumulative and not exhaustive of any rights,
remedies, powers and privileges provided by law.
SECTION 7.10. Counterparts. This Agreement may be executed in
two or more counterparts (and by different parties on separate counterparts),
each of which shall be an original, but all of which together shall constitute
one and the same instrument.
SECTION 7.11. Third-Party Beneficiaries. This Agreement shall
inure to the benefit of and be binding upon the parties hereto, the Interested
Parties and their respective successors and permitted assigns. Except as
otherwise expressly provided in this Agreement, no other Person shall have any
right or obligation hereunder.
SECTION 7.12. Merger and Integration. Except as specifically
stated otherwise herein, this Agreement sets forth the entire understanding of
the parties relating to the subject matter hereof, and all prior understandings,
written or oral, are superseded by this Agreement. This Agreement may not be
modified, amended, waived, or supplemented except as provided herein.
SECTION 7.13. Confidential Information. The Purchaser agrees
that it shall neither use nor disclose to any Person the names and addresses of
Dealers, except in connection with the enforcement of the Purchaser's rights
hereunder, under the Trust Sale and Servicing Agreement, under the Receivables
or as required by law.
-22-
<PAGE> 26
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.
SECTION 7.16. No Petition Covenants. Notwithstanding any prior
termination of this Agreement, GMAC 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 Purchaser to invoke the process of any court or
governmental authority for the purpose of commencing or sustaining a case
against the Purchaser 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 Purchaser or any substantial part
of its property, or ordering the winding up or liquidation of the affairs of the
Purchaser.
* * * *
-23-
<PAGE> 27
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: D.C. Walker
Title: Director - U.S. Funding &
Securitization
WHOLESALE AUTO RECEIVABLES CORPORATION,
Purchaser
By:
-------------------------------------
Name: N.L. Bugg
Title: Manager - Securitization
<PAGE> 28
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> 29
EXHIBIT B
FORM OF ASSIGNMENT FOR INITIAL CLOSING DATE
For value received, in accordance with the Pooling and
Servicing Agreement, dated as of May 18, 1999 (the "Pooling and Servicing
Agreement"), between General Motors Acceptance Corporation, a Delaware
corporation ("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> 30
IN WITNESS WHEREOF, the undersigned has caused this Assignment
to be duly executed as of May 18, 1999.
GENERAL MOTORS ACCEPTANCE CORPORATION
By:
----------------------------------------
Name: D.C. Walker
Director - U.S. Funding & Securitization
Title: Vice President
<PAGE> 31
EXHIBIT C
FORM OF ASSIGNMENT FOR EACH ADDITION DATE
For value received, in accordance with the Pooling and
Servicing Agreement, dated as of May 18, 1999 (the "Pooling and Servicing
Agreement"), between General Motors Acceptance Corporation, a Delaware
corporation ("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> 32
IN WITNESS WHEREOF, the undersigned has caused this Assignment
to be duly executed as of , .
-------- ----
GENERAL MOTORS ACCEPTANCE CORPORATION
By:
------------------------------------
Name:
Title:
<PAGE> 33
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> 34
APPENDIX A
PART I
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 V.
PART II
For ease of reference, the rules of construction have been
consolidated with and are contained in Part II of 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 V.
PART III
For ease of reference, the notice address and procedures have
been consolidated with and are contained in Part II of Appendix B to the Trust
Sale and Servicing Agreement of even date herewith among GMAC, Wholesale Auto
Receivables Corporation and Superior Wholesale Inventory Financing Trust V.
<PAGE> 1
EXHIBIT 99.4
================================================================================
ADMINISTRATION AGREEMENT
AMONG
SUPERIOR WHOLESALE INVENTORY FINANCING TRUST V
ISSUER
AND
GENERAL MOTORS ACCEPTANCE CORPORATION
ADMINISTRATOR
AND
THE BANK OF NEW YORK
INDENTURE TRUSTEE
DATED AS OF MAY 18, 1999
================================================================================
<PAGE> 2
THIS ADMINISTRATION AGREEMENT is made as of May 18, 1999, among SUPERIOR
WHOLESALE INVENTORY FINANCING TRUST V, a Delaware business trust (the "Issuer"),
GENERAL MOTORS ACCEPTANCE CORPORATION, a Delaware corporation, 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 the 1999-A Term Notes and the 1999-RN1
Revolving Note on the date hereof and may in the future issue additional Notes,
in each case pursuant to the Indenture between the Issuer and the Indenture
Trustee;
WHEREAS, the Issuer is issuing on the date hereof the 1999-A
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 Agreement and (iii)
the Indenture;
WHEREAS, pursuant to the Basic Documents, the Issuer and Chase Manhattan
Bank Delaware, 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 to them
in Part I of Appendix A to the Trust Sale and Servicing Agreement dated as of
May 18, 1999 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. The rules of construction set forth in
Part II of such Appendix A shall be applicable to this Agreement.
- 1 -
<PAGE> 3
2. Duties of the Administrator.
(a) Duties with Respect to the Depository Agreement 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
Agreement. In addition, the Administrator shall consult with the Owner
Trustee regarding the duties of the Issuer under the Indenture and the
Depository Agreement. 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 Agreement.
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 Agreement. 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);
(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);
-2-
<PAGE> 4
(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));
(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);
-3-
<PAGE> 5
(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 or
delisting of the Notes of any series on any stock exchange, if and when
such Notes are so listed or delisted (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);
(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);
-4-
<PAGE> 6
(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));
(BB) 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));
(CC) 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);
(DD) 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
(EE) 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 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
-5-
<PAGE> 7
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;
(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.
-6-
<PAGE> 8
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.
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:
-7-
<PAGE> 9
(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
(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 upon or to
the Issuer, the Owner Trustee, the Administrator or the Indenture Trustee shall
be delivered as specified in Appendix B of the Trust Sale and Servicing
Agreement.
-8-
<PAGE> 10
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, 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, 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 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.
-9-
<PAGE> 11
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 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 Chase Manhattan Bank Delaware, not
in its individual capacity but solely as Owner Trustee and in no event
shall Chase Manhattan Bank Delaware 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
-10-
<PAGE> 12
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.
* * * * *
-11-
<PAGE> 13
IN WITNESS WHEREOF, the parties have caused this
Administration Agreement to be duly executed by their respective officers as of
the day and year first above written.
SUPERIOR WHOLESALE INVENTORY FINANCING
TRUST V
By: Chase Manhattan Bank Delaware, 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: D.C. Walker
Title: Director - U.S. Funding & Securitization
<PAGE> 1
EXHIBIT 99.5
================================================================================
CUSTODIAN AGREEMENT
BETWEEN
GENERAL MOTORS ACCEPTANCE CORPORATION
CUSTODIAN
AND
WHOLESALE AUTO RECEIVABLES CORPORATION
SELLER
DATED AS OF MAY 18, 1999
================================================================================
<PAGE> 2
THIS CUSTODIAN AGREEMENT, dated as of May 18, 1999, is made
between General Motors Acceptance Corporation, a Delaware corporation (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 Floor Plan Financing
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 V, 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
<PAGE> 3
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 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.
-2-
<PAGE> 4
(c) Release of Documents. The Custodian shall release any
Receivable (and its related Receivables File) to 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 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, GMAC 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
-3-
<PAGE> 5
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, and may be amended at any time by mutual agreement of the
parties hereto. This Custodian Agreement may be terminated by either party by
written notice to the other party, such termination to take effect no sooner
than 60 days after the date of such notice. Notwithstanding the foregoing, if
GMAC resigns as 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 upon or
to the Custodian, the Seller and GMAC under this Agreement shall be delivered as
specified in Appendix B of the Trust Sale and Servicing Agreement.
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.
-4-
<PAGE> 6
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.
* * * * *
-5-
<PAGE> 7
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: N.L. Bugg
Title: Manager - Securitization
GENERAL MOTORS ACCEPTANCE CORPORATION,
as owner of the Retained Receivables
By:
----------------------------------
Name: D.C. Walker
Title: Director - U.S. Funding &
Securitization
GENERAL MOTORS ACCEPTANCE CORPORATION,
as Custodian
By:
----------------------------------
Name: D.C. Walker
Title: Director - U.S. Funding &
Securitization
