EXHIBIT 4.3
POOLING AND SERVICING AGREEMENT
BETWEEN
GMAC LLC
SELLER AND SERVICER
AND
WHOLESALE AUTO RECEIVABLES LLC
PURCHASER
DATED AS OF JUNE 20, 2007
SWIFT MASTER AUTO RECEIVABLES TRUST
TABLE OF CONTENTS
PAGE
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ARTICLE I DEFINITIONS ................................................... 1
Section 1.01 Definitions ............................................. 1
ARTICLE II PURCHASE AND SALE OF ELIGIBLE RECEIVABLES .................... 2
Section 2.01 Purchase and Sale of Eligible Receivables ............... 2
Section 2.02 Purchase Price .......................................... 3
Section 2.03 Addition of Accounts .................................... 3
Section 2.04 Optional Removal of Accounts ............................ 4
Section 2.05 Removal of Ineligible Accounts .......................... 5
Section 2.06 Custody of Documentation ................................ 5
ARTICLE III ADMINISTRATION AND SERVICING OF RECEIVABLES SECTION ......... 5
Section 3.01 Appointment of the Servicer and Acceptance of
Appointment ............................................. 5
Section 3.02 Rights and Duties of the Servicer ....................... 6
Section 3.03 Servicing Compensation; Payment of Certain Expenses by
the Servicer ............................................ 8
Section 3.04 Representations, Warranties and Covenants of the
Servicer ................................................ 8
Section 3.05 The Servicer's Accounting and Reports ................... 11
Section 3.06 Pre-Closing Collections ................................. 11
Section 3.07 Collections Received by the Seller ...................... 11
ARTICLE IV REPRESENTATIONS, WARRANTIES AND COVENANTS .................... 12
Section 4.01 Representations and Warranties of the Seller Relating to
the Accounts and the Receivables ........................ 12
Section 4.02 Representations and Warranties of the Seller Relating to
the Seller and the Agreement ............................ 13
Section 4.03 Representations and Warranties of the Purchaser ......... 15
Section 4.04 Covenants of the Seller ................................. 16
ARTICLE V CERTAIN MATTERS RELATING TO THE SELLER ........................ 17
Section 5.01 Merger or Consolidation of, or Assumption of the
Obligations of, the Seller or the Servicer .............. 17
Section 5.02 Seller Indemnification of the Purchaser ................. 17
Section 5.03 Seller Acknowledgment of Transfers to the Issuing
Entity .................................................. 18
ARTICLE VI ADDITIONAL AGREEMENTS ........................................ 18
Section 6.01 Additional Obligations of the Seller and the Purchaser .. 18
Section 6.02 Effect of Involuntary Case Involving the Seller ......... 18
Section 6.03 Intercreditor Agreements ................................ 19
ARTICLE VII MISCELLANEOUS PROVISIONS .................................... 20
Section 7.01 Amendment ............................................... 20
Section 7.02 Protection of Right, Title and Interest in and to
Receivables ............................................. 20
i
Section 7.03 Costs and Expenses ...................................... 21
Section 7.04 GOVERNING LAW ........................................... 21
Section 7.05 Notices ................................................. 21
Section 7.06 Severability of Provisions .............................. 22
Section 7.07 Assignment .............................................. 22
Section 7.08 Further Assurances ...................................... 22
Section 7.09 No Waiver; Cumulative Remedies .......................... 22
Section 7.10 Counterparts ............................................ 22
Section 7.11 Third-Party Beneficiaries ............................... 22
Section 7.12 Merger and Integration .................................. 22
Section 7.13 Confidential Information ................................ 22
Section 7.14 Headings ................................................ 23
Section 7.15 Termination ............................................. 23
Section 7.16 No Petition Covenants ................................... 23
Section 7.17 Jurisdiction ............................................ 00
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Xxxxxxxx A - Definitions and Rules of Construction
Appendix B - Demands, Communications and Notices
Appendix C - Additional Representations and Warranties
EXHIBITS
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
ii
THIS POOLING AND SERVICING AGREEMENT is made as of June 20, 2007,
between GMAC LLC, a Delaware limited liability company ("GMAC," referred to
herein as the "Seller" 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 LLC, a Delaware limited liability company (the
"Purchaser").
WHEREAS, the Seller, in the ordinary course of its business, generates
certain payment obligations by financing the floor plan inventory of motor
vehicle dealers;
WHEREAS, the Seller desires to sell and assign to the Purchaser, and
the Purchaser desires to purchase from the Seller, 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 SWIFT Master Auto Receivables Trust (the "Issuing
Entity" or the "Trust") pursuant to the Trust Sale and Servicing Agreement;
WHEREAS, pursuant to the Indenture and the Indenture Supplements, the
Issuing Entity will issue the Notes to fund its acquisition of such payment
obligations;
WHEREAS, the Purchaser, the Issuing Entity and the Seller (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, the Seller,
the Issuing Entity 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.
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, the
Seller 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 Scheduled Accounts (the schedule of
which is kept at locations listed in Exhibit A) as of the close of business on
the Initial Cut-Off Date, as well as all monies due or to become due thereon
after the Initial Cut-Off Date, subject to Section 6.03, 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 the UCC and
Recoveries).
(b) Subject to Section 6.02, (i) as of each Receivables Transfer Date,
the Seller 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 created or deemed created in the Scheduled
Accounts on such date and all monies due or to become due thereon after such
date, subject to Section 6.03, all Collateral Security with respect thereto and
all amounts received with respect thereto and (ii) as of each Addition Date, the
Seller 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 Additional Accounts as of the close of
business on the applicable Additional Cut-Off Date and all monies due or to
become due thereon after such date, subject to Section 6.03, 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
applicable Additional Cut-Off Date occurs, whether or not received prior to the
applicable Additional Cut-Off Date), and, in each case of (i) and (ii) above,
all proceeds thereof (including "proceeds" as defined in the UCC and
Recoveries).
(c) It is the intention of the Seller and the Purchaser that the
transfers and assignments contemplated by this Agreement shall constitute sales
of the property described in Section 2.01(a) and 2.01(b) from the Seller to the
Purchaser 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. 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, the Seller (if the Seller 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, the Seller shall
retain all right, title and interest in, to and under the Receivables in the
Scheduled Accounts that the Seller has not transferred to the Purchaser
hereunder, the Vehicle Collateral Security for such Receivables and, subject to
Section 6.03, shall retain rights in the other Collateral Security
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related to such Receivables. Such Receivables, together with any Receivables
repurchased by the Seller or (so long as GMAC is the Servicer) the Servicer from
the Purchaser or the Issuing Entity 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, the Vehicle Collateral Security
related to those Receivables and all proceeds thereof (including "proceeds" as
defined in the UCC and Recoveries) and, if such purchase is made in connection
with the purchase of all other Receivables in the related Account, the other
related Collateral Security, 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 the Seller $5,320,966,462 (representing the aggregate
Eligible Principal Receivables as of the close of business on the Initial
Cut-Off Date so sold on the Initial Closing Date), and the Seller 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 2.01(b)(ii) sold by the Seller to the Purchaser on each Addition Date
and property described in Section 2.01(b)(i) sold by the Seller to the Purchaser
on each Receivables Transfer Date, a price equal to the aggregate amount of
Eligible Principal 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, or, at the election of the Seller, in the form of an advance
from the Seller to the Purchaser pursuant to the Intercompany Advance Agreement
or a capital contribution from the Seller to the Purchaser. The amount advanced
under the Intercompany Advance Agreement and the amount paid as a capital
contribution shall be duly recorded by the Seller and the Purchaser.
Section 2.03 Addition of Accounts.
(a) Offers to Designate Additional Accounts. From time to time, the
Seller may, at its option, offer to designate and the Purchaser may, at its
option, request the designation of, one or more Eligible Accounts (each, an
"Additional Account") to be included in the Schedule 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 the Seller or if the Seller, at its option,
agrees to any such request of the Purchaser, the Seller shall sell and assign to
the Purchaser, and the Purchaser shall purchase from the Seller, all of the
Seller's right, title and interest in, to and under all of the Eligible
Receivables in each such Additional Account, pursuant to Section 2.01(b)(ii),
effective as of the Addition Date specified in a written notice provided by the
Servicer, on behalf of the Seller, to the Purchaser (the "Seller Addition
Notice"). Effective as of each such Addition Date, such Additional Account shall
be deemed to be a Scheduled Account and Eligible Receivables arising therein
from and after the Additional Cut-Off Date shall be subject to purchase under
Section 2.01(b)(ii) above. Each Seller Addition Notice shall specify the related
Additional Cut-Off Date and shall be given (with a copy to the Rating Agencies)
on or before the fifth Business Day but not more than 30 days prior to the
related Addition Date.
(b) Conditions. The Seller 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:
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(i) the Seller shall represent that as of the related Additional
Cut-Off Date each such Additional Account is an Eligible Account and that
each Receivable arising under such Additional Account identified as an
Eligible Receivable and conveyed to the Purchaser on such Addition Date is
an Eligible Receivable;
(ii) the Seller 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) the Seller shall have agreed to deliver to the Purchaser,
for deposit in the Collection Account, to the extent required by the
Indenture, all Collections with respect to the Eligible Receivables arising
in such Additional Accounts since the Additional Cut-Off Date within two
Business Days after such Addition Date;
(iv) as of the Addition Date, neither the Seller 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) the Seller shall have delivered to the Purchaser a
certificate of an Authorized Officer of the Seller 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) the Seller shall have delivered to the Purchaser an
Opinion of Counsel of the Seller substantially in the form of Exhibit D.
Section 2.04 Optional Removal of Accounts. From time to time, the Seller
may, at its option, request from the Purchaser, and the Purchaser may, at its
option, offer to the Seller, the right to designate a Scheduled 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, the Seller, 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 "Seller 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, the Seller 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 the Seller, the
Purchaser shall assign to the Seller, 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. Notwithstanding anything in this Agreement to the
contrary, in the
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event the Purchaser shall exercise its right to remove Receivables from the
Issuing Entity pursuant to Section 2.8(c) of the Trust Sale and Servicing
Agreement, the Purchaser may, at its option, offer to the Seller the right to
purchase such removed Receivables with regard to some or all of the Selected
Accounts without recourse, representation or warranty. In the event the Seller
shall accept such offer, the Seller shall pay for such Receivables by
transferring to the Purchaser, in exchange for the Receivables to be purchased,
cash or Eligible Receivables (including as an offset to the Purchase Price)
equal to the Removal Balance related to such Selected Accounts as of the Removal
Date. On the date of such transfer, all of the Purchaser's right, title and
interest in, to and under the Receivables to be removed and the related
Collateral Security shall be deemed to be transferred and released by the
Purchaser to the Seller.
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 the Seller
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 deemed Selected
Account pursuant to such Section 2.9, the Seller shall not transfer Receivables
with respect to such deemed 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 the
Seller, the Purchaser shall assign to the Seller, without recourse,
representation or warranty, effective as of the Removal Date, all of the
Purchaser's right, title and interest in, to and under the Receivables in such
Account and related Collateral Security.
Section 2.06 Custody of Documentation. In connection with the sale,
transfer, assignment and conveyance of the Receivables and related Collateral
Security in the Scheduled 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. The
Seller, as the holder of the Retained Property, hereby consents to the
appointment of the Custodian to act as agent of the Seller 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 the Seller under the Custodian
Agreement.
ARTICLE III
ADMINISTRATION AND SERVICING OF RECEIVABLES SECTION
Section 3.01 Appointment of the Servicer and Acceptance of Appointment. The
Purchaser and the Seller hereby appoint the Servicer to act as the Servicer with
respect to the Eligible Receivables and the Receivables included in the Retained
Property, existing in or arising under the Scheduled Accounts from time to time
and authorize the Servicer to perform the duties of the Servicer under this
Agreement, under the Trust Sale and Servicing Agreement and under the Indenture.
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.
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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 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 exercise its
discretion, consistent with its customary servicing procedures and the terms of
the Basic Documents, in servicing Defaulted Receivables so as to maximize the
net collection of those Defaulted Receivables; further, the Servicer shall have
broad discretion to choose to sell, or not to sell, any Defaulted Receivable.
The Servicer shall not be liable for any such exercise of its discretion made in
good faith and in accordance with such servicing procedures. The Servicer is
hereby authorized to commence, in its own name or in the name of any Interested
Party, a proceeding, whether through judicial process or (with respect to
repossession of a Financial Vehicle) non-judicial process, to enforce any
Receivable subject hereto, to enforce all obligations of the Seller and the
Purchaser under this Agreement and under the Trust Sale and Servicing Agreement
or to commence or participate in a Proceeding (including a bankruptcy case)
relating to or involving any such Receivable. If in any Proceeding it is held
that the Servicer may not enforce a Receivable arising under a Scheduled Account
on the ground that it is not a real party in interest or a holder entitled to
enforce such Receivable, the Purchaser, the Seller and each other Interested
Party shall, at the Servicer's expense, take such steps as the Servicer
reasonably deems necessary or appropriate to enforce the Receivable, including
bringing suit in the name of such Person. If the Servicer commences or
participates in such a Proceeding in its own name, each Interested Party shall
thereupon be deemed to have automatically assigned such Receivable to the
Servicer for purposes of commencing or participating in any such Proceeding as a
party or claimant, and the Servicer is hereby authorized and empowered to
execute and deliver in the Servicer's name any notices, demands, claims,
complaints, responses, affidavits or other documents or instruments in
connection with any such Proceeding. Each Interested Party shall furnish the
Servicer with any powers of attorney and other documents and take any other
steps which the Servicer may reasonably deem necessary or appropriate to enable
the Servicer to carry out its servicing and administrative duties under this
Agreement and the Trust Sale and Servicing Agreement. Except to the extent
required by the preceding two sentences, the authority and rights granted to the
Servicer in this Section 3.02 shall be nonexclusive and shall not be construed
to be in derogation of the retention by any Interested Party (to the extent of
its rights in a Receivable) of equivalent authority and rights. Without limiting
the generality of the foregoing and subject to any Servicing Default, the
Servicer is hereby authorized and empowered, unless such power and authority is
revoked by any Interested Party on account of the occurrence of such a Servicing
Default, to:
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(i) instruct the Issuing Entity to make allocations, withdrawals
and payments to or from the Designated Accounts and any other related bank
accounts or funds as set forth in the Basic Documents;
(ii) instruct the Issuing Entity or any Interested Party to take
any action required or permitted under any Series Enhancement Agreement;
(iii) execute and deliver, on behalf of the Issuing Entity 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 U.S.
Securities and Exchange Commission and any State securities authority on
behalf of the Issuing Entity as may be necessary or advisable to comply
with any U.S. 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
Scheduled 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 Scheduled Accounts have been sold and transferred by the
Seller to the Purchaser hereunder and by the Purchaser to the Issuing Entity
under the Trust Sale and Servicing Agreement.
(c) Except as otherwise required to comply with all Requirements of
Law, the Servicer may change the terms and provisions of the Floor Plan
Financing Agreements or the Floor Plan Financing Guidelines in any respect
(including the calculation of the amount or the timing of charge-offs and the
rate of the finance charge assessed thereon), only if:
(i) in the reasonable belief of the Servicer, no Early
Amortization Event shall occur as a result of such change;
(ii) such change is made applicable to the comparable segment of
any similar portfolio of accounts serviced by the Servicer and not only to
the Scheduled Accounts; and
(iii) in the case of a reduction in the rate of such finance
charges, the Servicer (and, if the Seller is not then the Servicer, the
Seller) does not reasonably expect any such reduction, after considering
amounts due and amounts payable under any Series Enhancement 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;
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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.
(a) As full compensation for its servicing activities hereunder and
reimbursement for its expenses as set forth in the immediately following
paragraph, the Servicer is entitled to receive the Servicing Fee on each
Distribution Date on or before the Trust Termination Date, payable in arrears.
The "Servicing Fee" is the aggregate of the Monthly Servicing Fees specified in
the Indenture Supplements and the Trust Agreement. The Servicing Fee is payable
to the Servicer solely to the extent amounts are available for payment in
accordance with the terms of the Indenture Supplements and the Trust Agreement.
(b) 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,
the Trust Sale and Servicing Agreement, and the Indenture Supplements (including
disbursements of the Issuing Entity, 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, the Trust
Sale and Servicing Agreement or the Indenture Supplements 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 Issuing Entity or any holder of the
Securities).
Section 3.04 Representations, Warranties and Covenants of the Servicer.
(a) The Servicer hereby makes, and any successor to the 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 Issuing Entity shall rely in acquiring and
holding such Receivables and the related Collateral Security under the Trust
Sale and Servicing Agreement and in issuing the Securities:
(i) Organization and Good Standing. The Servicer has been duly
organized and is validly existing as a limited liability company 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 or formation, as applicable), 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 limited
liability company (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
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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 Scheduled 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, by-laws, certificate
of formation, or limited liability company agreement, as applicable, of the
Servicer, or any indenture, agreement, mortgage, deed of trust or other
instrument to which the Servicer is a party or by which it is bound, or
result in the creation or imposition of any Lien upon any of its properties
pursuant to the terms of any such indenture, agreement, mortgage, deed of
trust or other instrument (other than pursuant to the Basic Documents), or
violate any law or, to the best of the Servicer's knowledge, any order,
rule or regulation applicable to the Servicer of any Governmental Authority
having jurisdiction over the Servicer or any of its properties, except
where any such conflict or violation would not have a material adverse
effect on its ability to perform its obligations under this Agreement or
the Trust Sale and Servicing Agreement.
(vi) No Proceedings. To the Servicer's knowledge, there are no
Proceedings or investigations pending, or threatened, against the Servicer
before any Governmental Authority having jurisdiction over the Servicer or
its properties (A) asserting the invalidity of this Agreement or the Trust
Sale and Servicing Agreement or any Securities issued thereunder, (B)
seeking to prevent the issuance of the such Securities, the execution of
this Agreement or the consummation of any of the transactions contemplated
by this Agreement or the Trust Sale and Servicing Agreement or (C) seeking
any determination or ruling that might materially and adversely affect the
performance by the Servicer of its obligations under, or the validity and
enforceability of, this Agreement or the Trust Sale and Servicing
Agreement.
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(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. 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
Issuing Entity 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 Vehicle 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
Issuing Entity 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
Sections 3.04(a)(vii), (viii), (ix) or (x) has not been complied with in all
material respects with respect to any Eligible Receivable or Scheduled Account
and such noncompliance has a material adverse effect on the interests of
Securityholders or any other Interested Parties in such Receivable or
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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 Issuing Entity, 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 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, the Trust Sale and Servicing Agreement, the Indenture and the
applicable Indenture Supplement.
(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 Issuing Entity.
Section 3.05 The Servicer's Accounting and Reports. On or before each
Determination Date, the Servicer shall deliver to the Purchaser, the Owner
Trustee, the Indenture Trustee and the Rating Agencies the 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 Indenture
Supplement, the Trust Agreement and the Indenture on the related Distribution
Date, and all information necessary to each such party for sending any
statements required to be sent to Securityholders with respect to such
Distribution Date under the Indenture or the Trust Agreement.
Section 3.06 Pre-Closing Collections. Within two Business Days after the
Initial Closing Date, the Servicer shall deliver to the Purchaser all
collections on the Receivables in the Scheduled Accounts held by the Seller 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 Indenture 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 the Seller to deposit such amount on
its behalf into the Collection Account.
Section 3.07 Collections Received by the Seller. The Seller hereby agrees
to deliver all Collections on the Receivables in the Scheduled Accounts received
by the Seller from or on behalf of Dealers to the Servicer and consents to the
application, allocation and distribution thereof in accordance with the terms
and provisions of this Agreement and the Trust Sale and Servicing Agreement.
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ARTICLE IV
REPRESENTATIONS, WARRANTIES AND COVENANTS
Section 4.01 Representations and Warranties of the Seller Relating to the
Accounts and the Receivables.
(a) Representations and Warranties. As of the dates set forth below,
the Seller makes the following representations and warranties to the Purchaser
as to the Scheduled 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 Scheduled Account is an
Eligible Account;
(ii) as of the Initial Cut-Off Date, each Receivable that is
identified as an Eligible Receivable and conveyed to the Purchaser on the
Initial Closing Date is an Eligible Receivable;
(iii) as of each Additional Cut-Off Date, each related Additional
Account is an Eligible Account and each Receivable arising thereunder that
is identified as an Eligible Receivable and conveyed to the Purchaser on
the related Addition Date is an Eligible Receivable;
(iv) as of each Receivables Transfer Date, each Receivable that
is identified as an Eligible Receivable and conveyed to the Purchaser on
such date is an Eligible Receivable; and
(v) the representations and warranties regarding creation,
perfection and priority of security interests in the Receivables, which are
attached to this Agreement as Appendix C, are true and correct to the
extent that they are applicable.
(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 Scheduled Accounts and related items to the
Purchaser from time to time and the subsequent assignment and transfer of its
interests therein to the Issuing Entity pursuant to the Trust Sale and Servicing
Agreement. Upon discovery by the Seller 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. The Seller acknowledges that the Purchaser shall
assign its rights and remedies hereunder with respect to the Eligible
Receivables arising in the Scheduled Accounts to the Issuing Entity under the
Trust Sale and Servicing Agreement. The Seller hereby covenants and agrees with
the Purchaser that (i) in the event of a breach of any of the Seller'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 Issuing Entity 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 Issuing Entity is deferred pursuant to
DPP or any other installment sales program or similar arrangement, unless and to
the
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extent such breach or deferral shall have been cured in all material respects,
the Seller shall repurchase the interest of the Issuing Entity 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 Issuing Entity.
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 the Seller to repurchase any
Receivable shall constitute the sole remedy respecting the event giving rise to
such obligation available to the Purchaser and to any Interested Party.
Section 4.02 Representations and Warranties of the Seller Relating to the
Seller and the Agreement.
(a) Representations and Warranties. The Seller, 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. The Seller has been duly
organized and is validly existing as a limited liability company 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. The Seller is duly qualified to do
business and, where necessary, is in good standing as a foreign limited
liability company (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. 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 organizational action on the part of the Seller;
(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 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)
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a default under, the certificate of formation or limited liability company
agreement 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 Purchaser or any Interested Party under this Agreement or
the Trust Sale and Servicing Agreement;
(v) 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 Trust
Sale and Servicing Agreement, the Custodian Agreement or the Administration
Agreement, (B) seeking to prevent the execution of this Agreement or the
consummation of any of the transactions contemplated by this Agreement, the
Trust Sale and Servicing Agreement, the Custodian Agreement or the
Administration Agreement or (C) seeking any determination or ruling that
might materially and adversely affect the performance by the Seller 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 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 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 Scheduled
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 the Seller 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 the Seller. 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 Scheduled Accounts and the proceeds thereof, upon
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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 the Seller nor any Person
claiming through or under the Seller 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 Issuing Entity pursuant
to the Trust Sale and Servicing Agreement. Upon discovery by the Seller 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), the Seller shall repurchase such
Receivables and such Collateral Security and shall pay to the Purchaser, prior
to the time the Purchaser is required to pay such amount pursuant to the Trust
Sale and Servicing Agreement, an amount equal to the Reassignment Amount.
(d) Sole Remedy. The obligation of the Seller 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 the Seller respecting the event giving rise to such obligation.
Section 4.03 Representations and Warranties of the Purchaser. The Purchaser
hereby represents and warrants to the Seller as of each Closing Date that:
(a) Organization and Good Standing. The Purchaser has been duly
organized and is validly existing as a limited liability company 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 Scheduled 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 limited liability company
(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
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consummation of the transactions contemplated herein have been duly authorized
by the Purchaser by all necessary organizational 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
formation or limited liability company agreement 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 the Seller or any Interested Party under this Agreement or the Trust Sale and
Servicing Agreement;
(e) No Proceedings. To the Purchaser's knowledge, there are no
Proceedings or investigations pending, or threatened, against the Purchaser
before any Governmental Authority having jurisdiction over the Purchaser or its
properties (i) asserting the invalidity of this Agreement, (ii) seeking to
prevent the execution of this Agreement or the consummation of any of the
transactions contemplated by this Agreement or (iii) seeking any determination
or ruling that might materially and adversely affect the performance by the
Purchaser of its obligations under, or the validity or enforceability of, this
Agreement; and
(f) Binding Obligation. This Agreement constitutes a legal, valid and
binding obligation of the Purchaser, enforceable against the Purchaser in
accordance with its terms, except as such enforceability may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium or other similar
laws now or hereafter in effect affecting the enforcement of creditors' rights
in general and by general principles or equity, regardless of whether such
enforceability is considered in a proceeding in equity or at law.
Section 4.04 Covenants of the Seller. The Seller 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, 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 Scheduled Account (and any related Vehicle Collateral Security), whether now
existing or hereafter created, or any interest therein, and the Seller 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 the Seller. The
Seller shall notify the Purchaser and the Issuing Entity 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 the
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Seller from selling, transferring, assigning, or 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 the Seller from
or on behalf of a Dealer in respect of Receivables in any Scheduled Accounts or
any Collateral Security (except as contemplated in Section 6.03 with respect to
any property constituting Common Collateral (other than Vehicle Collateral
Security related to the Receivables purchased by the Purchaser) in connection
with any Other Indebtedness) shall be received by the Seller in its capacity as
the Servicer, unless the Seller is no longer the Servicer, in which case the
Seller 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. The Seller shall comply in
all material respects with all Requirements of Law applicable to the Seller,
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 the Seller shall at any time
institute against the Purchaser any bankruptcy, reorganization, arrangement,
insolvency or liquidation proceedings, or other proceedings under any United
States Federal or state bankruptcy or similar law.
ARTICLE V
CERTAIN MATTERS RELATING TO THE SELLER
Section 5.01 Merger or Consolidation of, or Assumption of the Obligations
of, the Seller or the Servicer.
(a) Notwithstanding anything to the contrary in this Agreement, any
Person (i) into which the Seller or the Servicer may be merged or consolidated,
(ii) resulting from any merger, conversion or consolidation to which the Seller
or the Servicer shall be a party, (iii) succeeding to the business of the Seller
or the Servicer or (iv) more than 50% of the voting interests of which is owned,
directly or indirectly, by General Motors, the Seller or the Servicer and which
is otherwise originating receivables, which Person in any of the foregoing cases
(other than the Seller or the Servicer as the surviving entity of such merger or
consolidation) executes an agreement of assumption to perform every obligation
of the Seller or the Servicer, as applicable, under this Agreement and the Trust
Sale and Servicing Agreement, shall be the successor to the Seller or the
Servicer, as applicable, 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 or the Trust Sale and Servicing Agreement, anything in this Agreement
to the contrary notwithstanding.
(b) The Seller or the Servicer, as applicable, shall provide notice of
any merger, consolidation or succession pursuant to this Section 5.01 to the
Rating Agencies.
Section 5.02 Seller Indemnification of the Purchaser. The Seller shall
indemnify the Purchaser for any liability as a result of the failure of an
Eligible Receivable sold hereunder to be
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originated in compliance with all Requirements of Law. This indemnity obligation
shall be in addition to any obligation that the Seller may otherwise have.
Section 5.03 Seller Acknowledgment of Transfers to the Issuing Entity. By
its execution of the Trust Sale and Servicing Agreement, the Seller acknowledges
that the Purchaser shall, pursuant to the Trust Sale and Servicing Agreement,
transfer the Receivables purchased hereunder and related Collateral Security to
the Issuing Entity and assign its rights associated therewith under this
Agreement to the Issuing Entity, subject to the terms and conditions of the
Trust Sale and Servicing Agreement, and that the Issuing Entity shall in turn
further pledge, assign or transfer its rights in such property and this
Agreement to the Indenture Trustee under the Indenture. The Seller further
acknowledges that the Purchaser shall assign its rights under the Custodian
Agreement to the Issuing Entity.
ARTICLE VI
ADDITIONAL AGREEMENTS
Section 6.01 Additional Obligations of the Seller and the Purchaser. With
respect to each Removed Account, if and to the extent that any related
Receivable held by the Issuing Entity 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 the Seller.
Section 6.02 Effect of Involuntary Case Involving the Seller.
(a) Suspension of Purchases. The Purchaser shall suspend the purchase
(and the Seller shall suspend the sale) of Receivables hereunder if either party
shall receive notice at its principal corporate office that the Seller has
become an involuntary party to (or has been made the subject of) any proceeding
provided for by any insolvency, readjustment of debt, marshaling of assets and
liabilities or similar proceedings of or relating to the Seller 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 the Seller 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 the
Seller to the Purchaser and/or approving the sale of Receivables originating in
the Scheduled 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 Issuing Entity) may rely
on such order for the validity and nonavoidance of such transfer (the "Order"),
the Purchaser may resume the purchase (and the Seller 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 the Seller in cash not
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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 the Seller 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 the Seller hereunder and the Seller shall
not thereafter designate Additional Accounts for transfer to the Purchaser or
sell Receivables hereunder.
Section 6.03 Intercreditor Agreements.
(a) Common Collateral. In connection with loans or advances made or
held or to be made or held by the Seller to a Dealer from time to time, other
than pursuant to a Receivable transferred to the Purchaser hereunder and not
reacquired by the Seller (collectively, "Other Indebtedness"), the Seller may
have a security interest in property constituting Collateral Security (the
"Common Collateral").
(b) Agreements of the Seller with respect to Common Collateral. The
Seller agrees that with respect to the Common Collateral:
(i) the Seller's security interest in any Common Collateral that
is Vehicle Collateral Security (and the proceeds thereof) with respect to
any Receivable transferred to the Purchaser hereunder and not reacquired by
the Seller is subordinate to the security interest therein in connection
with such Receivables and assigned to the Purchaser hereunder;
(ii) the Seller shall not apply the proceeds of any such Common
Collateral that is Vehicle Collateral Security with respect to any such
Receivable in any manner that is materially adverse to the Purchaser or the
Issuing Entity 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 with respect to any such Receivable, neither
the Purchaser nor the Issuing Entity (nor the Servicer on behalf of either)
shall be obligated to protect or preserve the rights of the Seller in such
Common Collateral.
(c) Agreements of the Purchaser with respect to Common Collateral. The
Purchaser agrees that with respect to the Common Collateral:
(i) the Purchaser's security interest in any Common Collateral
that is not Vehicle Collateral Security (and the proceeds thereof) with
respect to any Receivable transferred to the Purchaser hereunder and not
reacquired by the Seller is subordinate to the security interest therein in
connection with any Other Indebtedness;
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(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 with respect to any such Receivables in any manner that
is materially adverse to the Seller 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 with respect to any such Receivables, the
Seller shall not be obligated to protect or preserve the rights of the
Purchaser or the Issuing Entity in such Collateral Security.
(d) Obligations of Issuing Entity. The Trust Sale and Servicing
Agreement shall provide that the Issuing Entity is subject to this Section 6.03.
(e) Obligations of Assignees and Transferees. If, other than pursuant
hereto, the Seller in any manner assigns or transfers any right or obligation
with respect to any Other Indebtedness or any property constituting Common
Collateral, the Seller 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(h) of the Trust Sale and Servicing Agreement) by a
written amendment duly executed and delivered by the Seller, the Servicer and
the Purchaser. Notwithstanding the foregoing, this Agreement may be amended from
time to time and additional provisions may be added with respect to Other Assets
by the Seller and the Purchaser upon satisfaction of the Rating Agency Condition
with respect thereto, but without the consent of the Holders of any Notes or any
other Person.
Section 7.02 Protection of Right, Title and Interest in and to Receivables.
(a) The Seller 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 Scheduled
Accounts, the related Collateral Security and in the proceeds thereof
(including, without limitation, UCC-1 financing statements on or prior to the
Closing Date). The Seller 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 the Seller 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 the UCC, the Seller shall give the Purchaser
notice of any such change.
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(c) The Seller shall give the Purchaser at least 60 days prior written
notice of any relocation of its principal executive office or change in its
jurisdiction of organization if, as a result of such relocation or change, 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 Seller shall at all times maintain its principal executive office
and its jurisdiction of organization within the United States of America.
(d) In connection with the sale and transfer hereunder of the
Receivables in the Scheduled Accounts and the related Collateral Security from
the Seller to the Purchaser, 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 that the Eligible Receivables in the Scheduled
Accounts have been sold and transferred, and the Collateral Security assigned,
to the Purchaser pursuant to this Agreement and that such property has been
transferred to the Issuing Entity pursuant to the Trust Sale and Servicing
Agreement and (ii) deliver to the Purchaser a true and complete list of all such
Accounts specifying for each such Account, as of the Initial Cut-Off Date, in
the case of the Initial Accounts, and as of the applicable Additional Cut-Off
Date, in the case of Additional Accounts, its account number and the outstanding
principal balance of Eligible Receivables in such Account. Such list, as
supplemented from time to time to reflect Additional Accounts, Selected Accounts
and Removed Accounts (including Accounts removed as described in Section 2.05),
shall be the Schedule of Accounts and is hereby incorporated into and made a
part of this Agreement.
(e) The Servicer shall furnish to the Purchaser at any time upon
request a list of all Scheduled 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 Schedule of Accounts.
Section 7.03 Costs and Expenses. The Seller 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 the Seller hereunder.
Section 7.04 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 CONFLICT OF LAW PROVISIONS THEREOF OR OF ANY OTHER
JURISDICTION, OTHER THAN SECTION 5-1401 AND SECTION 5-1402 OF THE NEW YORK
GENERAL OBLIGATIONS LAW, 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
the Seller, the Servicer, 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.
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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, except as provided in Section 5.01, this Agreement may not be assigned
by the Seller without the prior written consent of the Purchaser and the Issuing
Entity. The Purchaser may assign all or a portion of its rights, remedies,
powers and privileges under this Agreement to the Issuing Entity pursuant to the
Trust Sale and Servicing Agreement.
Section 7.08 Further Assurances. The Seller 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
the Seller or the Servicer, and each of the parties hereto is authorized to file
such statements on behalf of the other parties hereto.
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
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enforcement of the Purchaser's rights hereunder, under the Trust Sale and
Servicing Agreement, under the Receivables or as required by law.
Section 7.14 Headings. The headings herein are for purposes of reference
only and shall not otherwise affect the meaning or interpretation of any
provision hereof.
Section 7.15 Termination. This Agreement (except for Section 5.02) shall
terminate immediately after the termination of the Trust Sale and Servicing
Agreement; provided, that if at the time of the termination of the Trust Sale
and Servicing Agreement, the Purchaser has not made all payments to the Seller
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, the Seller shall not, prior to the date which is one year and
one day after the final distribution with respect to the Securities, 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.
Section 7.17 Jurisdiction. Any action or proceeding arising out of or
relating to this Agreement shall be submitted to the exclusive jurisdiction of
any United States Federal or New York State Court sitting in the Borough of
Manhattan, New York, New York.
****
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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.
GMAC LLC,
Seller and Servicer
By: /s/ Xxxx X. Xxxxxxxxx
------------------------------------
Name: Xxxx X. Xxxxxxxxx
Title: Director- Global Securitization
WHOLESALE AUTO RECEIVABLES LLC,
Purchaser
By: /s/ Xxxxxx X. Xxxxxxx
------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Vice President
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. GMAC LLC
4. Wholesale Auto Receivables LLC
EXHIBIT B
FORM OF ASSIGNMENT FOR INITIAL CLOSING DATE
As of June 20, 2007, for value received, in accordance with the
Pooling and Servicing Agreement, dated as of June 20, 2007 (the "Pooling and
Servicing Agreement"), between GMAC LLC, a Delaware limited liability company
(the "Seller"), and Wholesale Auto Receivables LLC, a Delaware limited liability
company (the "Purchaser"), the Seller 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 a Scheduled Account,
all Eligible Receivables created or deemed created thereunder on each
Receivables Transfer Date and all monies due or to become due thereon after the
Initial Cut-Off Date or such Receivables Transfer Date, as appropriate, subject
to Section 6.03 of the Pooling and Servicing Agreement, all Collateral Security
with respect thereto and all amounts received with respect thereto and all
proceeds thereof (including "proceeds" as defined in 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, the Seller (if the Seller 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 the Seller 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 the
Seller to the Purchaser 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
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.
*****
IN WITNESS WHEREOF, the undersigned has caused this Assignment to be
duly executed as of the day and year first above written.
GMAC LLC
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
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EXHIBIT C
FORM OF ASSIGNMENT FOR EACH ADDITION DATE
As of ___________, 20__, for value received, in accordance with the
Pooling and Servicing Agreement, dated as of June 20, 2007 (the "Pooling and
Servicing Agreement"), between GMAC LLC, a Delaware limited liability company
(the "Seller"), and Wholesale Auto Receivables LLC, a Delaware limited liability
company (the "Purchaser"), the Seller 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 a Scheduled Account, all Eligible Receivables
created or deemed created thereunder on each Receivables Transfer Date and all
monies due or to become due thereon after such Additional Cut-Off Date or such
Receivables Transfer Date, as appropriate, subject to Section 6.03 of the
Pooling and Servicing Agreement, all Collateral Security with respect thereto
and all amounts received with respect thereto and all proceeds thereof
(including "proceeds" as defined in 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, the Seller (if the Seller 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 the Seller 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 the
Seller to the Purchaser 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
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.
*****
IN WITNESS WHEREOF, the undersigned has caused this Assignment to be
duly executed as of the day and year first written above.
GMAC LLC
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
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EXHIBIT D
FORM OF OPINION OF COUNSEL
WITH RESPECT TO ADDITION OF ACCOUNTS
Provision to be Included in Opinion of Counsel
Delivered Pursuant to Section 2.03(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 the Seller, and constitutes the valid and
legally binding obligation of the Seller, enforceable against the Seller in
accordance with its terms.
APPENDIX A
DEFINITIONS AND RULES OF CONSTRUCTION
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 LLC, Wholesale Auto
Receivables LLC and SWIFT Master Auto Receivables Trust.
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 LLC, Wholesale Auto
Receivables LLC and SWIFT Master Auto Receivables Trust.
APPENDIX B
DEMANDS, COMMUNICATIONS AND NOTICES
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 LLC, Wholesale Auto
Receivables LLC and SWIFT Master Auto Receivables Trust.
APPENDIX C
ADDITIONAL REPRESENTATIONS AND WARRANTIES
1. While it is the intention of GMAC LLC (the "Seller") and Wholesale Auto
Receivables LLC (the "Purchaser") that the transfers and assignments
contemplated by this Agreement and the First Step Assignment shall constitute
sales of the Trust Assets (as defined herein) from the Seller to the Purchaser,
this Agreement creates a valid and continuing security interest (as defined in
the applicable UCC) in the Receivables and the related Vehicle Collateral
Security described in clauses (a) and (b) of Section 2.01 of this Agreement (the
"Trust Assets") in favor of the Purchaser, which security interest is prior to
all other Liens, and is enforceable as such against creditors and purchasers
from the Seller.
2. All steps necessary to perfect the Seller's security interest against
each Obligor in the property securing the Trust Assets have been taken.
3. The Trust Assets constitute "accounts," "chattel paper" or "payment
intangibles" within the meaning of the applicable UCC.
4. The Seller owns and has good and marketable title to the Trust Assets,
subject to Section 6.03 of this Agreement, free and clear of any Liens, claim or
encumbrance of any Person. The Seller has received all consents and approvals
required by the terms of the Trust Assets as to the sale of the Trust Assets
hereunder to the Purchaser.
5. The Seller has caused or will have caused, within ten days, the filing
of all appropriate financing statements in the proper filing office in the
appropriate jurisdictions under applicable law in order to perfect the security
interest in the Trust Assets granted to the Purchaser hereunder.
6. The Custodian has in its possession the Eligible Receivables Files and
holds them in accordance with its customary procedures and any and all other
documents that the Servicer or the Seller shall keep on file, in accordance with
its customary procedures, relating to the Eligible Receivables. All financing
statements filed or to be filed against the Seller in favor of the Purchaser in
connection herewith describing the Trust Assets contain a statement to the
following effect: "A purchase of or security interest in any collateral
described in this financing statement will violate the rights of the Secured
Party."
7. Other than the security interest granted to the Purchaser pursuant to
the Basic Documents or as contemplated by Section 6.03 of this Agreement, the
Seller has not pledged, assigned, sold, granted a security interest in, or
otherwise conveyed any of the Trust Assets, and has not authorized the filing of
and is not aware of any financing statements that include a description of
collateral covering the Trust Assets other than any financing statement (i)
relating to the security interest granted to the Purchaser, the Issuing Entity
and Indenture Trustee under the Basic Documents, (ii) that has been terminated,
or (iii) that names the Issuing Entity as secured party. The Seller is not aware
of any judgment or tax lien filings against it.
8. The representations, warranties and certifications contained in
paragraphs 1-7 above shall survive the sales, transfers and assignments to the
Purchaser. No failure or delay on
the part of the Purchaser in exercising any right, remedy, power or privilege
with respect to this Agreement shall operate as a waiver thereof nor shall any
single or partial exercise of any right, remedy, power or privilege with respect
to this Agreement preclude any other or further exercise thereof or the exercise
of any other right, remedy, power or privilege.
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