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EXHIBIT 99.3
POOLING AND SERVICING AGREEMENT
BETWEEN
GENERAL MOTORS ACCEPTANCE CORPORATION
SELLER AND SERVICER
AND
WHOLESALE AUTO RECEIVABLES CORPORATION
PURCHASER
DATED AS OF MAY 18, 1999
SUPERIOR WHOLESALE INVENTORY FINANCING TRUST V
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TABLE OF CONTENTS
PAGE
ARTICLE I
DEFINITIONS.................................................................1
SECTION 1.01. Definitions...............................................1
ARTICLE II
PURCHASE AND SALE OF ELIGIBLE RECEIVABLES...................................2
SECTION 2.01. Purchase and Sale of Eligible Receivables.................2
SECTION 2.02. Purchase Price............................................2
SECTION 2.03. Addition of Accounts......................................3
SECTION 2.04. Optional Removal of Accounts..............................4
SECTION 2.05. Removal of Ineligible Accounts............................4
SECTION 2.06. Custody of Documentation..................................5
ARTICLE III
ADMINISTRATION AND SERVICING OF RECEIVABLES.................................5
SECTION 3.01. Appointment of Servicer and Acceptance of
Appointment..............................................5
SECTION 3.02. Rights and Duties of the Servicer.........................5
SECTION 3.03. Servicing Compensation; Payment of Certain
Expenses by the Servicer.................................7
SECTION 3.04. Representations, Warranties and Covenants
of the Servicer..........................................8
SECTION 3.05. Servicer's Accounting and Reports........................12
SECTION 3.06. Pre-Closing Collections..................................12
SECTION 3.07. Collections Received by GMAC.............................12
ARTICLE IV
REPRESENTATIONS, WARRANTIES AND COVENANTS..................................12
SECTION 4.01. Representations and Warranties of GMAC
Relating to the Accounts and the
Receivables.............................................13
SECTION 4.02. Representations and Warranties of GMAC
Relating to GMAC and the Agreement......................15
SECTION 4.03. Representations and Warranties of the
Purchaser...............................................17
SECTION 4.04. Covenants of GMAC........................................18
ARTICLE V
CERTAIN MATTERS RELATING TO GMAC...........................................19
SECTION 5.01. Merger or Consolidation of, or Assumption
of the Obligations of, GMAC.............................19
SECTION 5.02. GMAC Indemnification of the Purchaser....................19
SECTION 5.03. GMAC Acknowledgment of Transfers to the Issuer...........19
ARTICLE VI
ADDITIONAL AGREEMENTS......................................................20
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SECTION 6.01. Additional Obligations of GMAC and the Purchaser.........20
SECTION 6.02. Effect of Involuntary Case Involving GMAC................20
SECTION 6.03. Intercreditor Agreements.................................21
ARTICLE VII
MISCELLANEOUS PROVISIONS...................................................23
SECTION 7.01. Amendment................................................23
SECTION 7.02. Protection of Right, Title and Interest in
and to Receivables......................................23
SECTION 7.03. Costs and Expenses.......................................24
SECTION 7.04. GOVERNING LAW............................................24
SECTION 7.05. Notices..................................................25
SECTION 7.06. Severability of Provisions...............................25
SECTION 7.07. Assignment...............................................25
SECTION 7.08. Further Assurances.......................................25
SECTION 7.09. No Waiver; Cumulative Remedies...........................25
SECTION 7.10. Counterparts.............................................25
SECTION 7.11. Third-Party Beneficiaries................................25
SECTION 7.12. Merger and Integration...................................25
SECTION 7.13. Confidential Information.................................26
SECTION 7.14. Headings.................................................26
SECTION 7.15. Termination..............................................26
EXHIBIT A List of Locations of the Schedule of Accounts
EXHIBIT B Form of Assignment for the Initial Closing Date
EXHIBIT C Form of Assignment for Each Addition Date
EXHIBIT D Form of Opinion of Counsel With Respect to Addition of Accounts
APPENDIX A Definitions and Rules of Construction
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THIS POOLING AND SERVICING AGREEMENT is made as of May 18,
1999, between GENERAL MOTORS ACCEPTANCE CORPORATION, a Delaware corporation
(referred to herein as "GMAC" in its capacity as seller of the Receivables
specified herein and as the "Servicer" in its capacity as servicer of the
Receivables), and WHOLESALE AUTO RECEIVABLES CORPORATION, a Delaware corporation
(the "Purchaser").
WHEREAS, GMAC, in the ordinary course of its business,
generates certain payment obligations by financing the floor plan inventory of
motor vehicle dealers;
WHEREAS, GMAC desires to sell and assign to the Purchaser, and
the Purchaser desires to purchase from GMAC, certain of such existing and future
payment obligations arising or acquired from time to time;
WHEREAS, the Purchaser desires to transfer and assign its
interest in such payment obligations to Superior Wholesale Inventory Financing
Trust V (the "Issuer") pursuant to the Trust Sale and Servicing Agreement;
WHEREAS, the Issuer desires to issue the Initial Securities to
fund its acquisition of such payment obligations;
WHEREAS, the Purchaser, the Issuer and GMAC (as the holder of
such payment obligations not sold to the Purchaser hereunder) desire that the
Servicer shall service such payment obligations; and
WHEREAS, the Servicer is willing to service such payment
obligations and related payment obligations in accordance with the terms hereof
and of the Trust Sale and Servicing Agreement for the benefit of the Purchaser,
GMAC, the Issuer and each other party identified or described herein or in the
Trust Sale and Servicing Agreement as having an interest therein as owner,
trustee, secured party or holder of the Securities (all such parties being
collectively referred to herein as "Interested Parties").
NOW, THEREFORE, in consideration of the premises and the
mutual covenants herein contained, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01. Definitions. Certain capitalized terms used in
the above recitals and in this Agreement are defined in and shall have the
respective meanings assigned them in Part I of Appendix A to this Agreement. All
references herein to "the Agreement" or "this Agreement" are to this Pooling and
Servicing Agreement as it may be amended, supplemented or modified from time to
time, and all references herein to Articles, Sections and subsections are to
Articles, Sections or subsections of this Agreement unless otherwise specified.
The rules of construction set forth in Part II of such Appendix A shall be
applicable to this Agreement.
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ARTICLE II
PURCHASE AND SALE OF ELIGIBLE RECEIVABLES
SECTION 2.01. Purchase and Sale of Eligible Receivables.
(a) By execution of this Agreement, on the Initial Closing
Date, GMAC does hereby sell, transfer, assign and otherwise convey to the
Purchaser, without recourse, all of its right, title and interest in, to and
under all of the Eligible Receivables existing in the Accounts listed on the
Schedule of Accounts (which is kept at locations listed in Exhibit A) as of the
close of business on the Initial Cut-Off Date and all monies due or to become
due thereon after the Initial Cut-Off Date, all Collateral Security with respect
thereto and all amounts received with respect thereto (including all Interest
Collections received in the calendar month in which the Initial Cut-Off Date
occurs, whether or not received prior to the Initial Cut-Off Date) and all
proceeds thereof (including "proceeds" as defined in Section 9-306 of the UCC
and Recoveries).
(b) Subject to Section 6.02, as of each Receivables Purchase
Date, GMAC does hereby sell, transfer, assign and otherwise convey to the
Purchaser, without recourse, all of its right, title and interest in, to and
under all Eligible Receivables created or deemed created in the Accounts in the
Pool of Accounts on such date and all monies due or to become due thereon after
such date, all Collateral Security with respect thereto and all amounts received
with respect thereto and all proceeds thereof (including "proceeds" as defined
in Section 9-306 of the UCC and Recoveries).
(c) It is the intention of GMAC and the Purchaser that the
transfers and assignments contemplated by this Agreement shall constitute sales
of the property described in Sections 2.01(a) and (b) from GMAC to the Purchaser
and that the beneficial interest in and title to such property shall not be part
of GMAC's estate in the event of the filing of a bankruptcy petition by or
against GMAC under any Insolvency Law. The foregoing sales, transfers,
assignments and conveyances and any subsequent sales, transfers, assignments and
conveyances contemplated hereby do not constitute, and are not intended to
result in, the creation or an assumption by the Purchaser of any obligation of
the Servicer, GMAC (if GMAC is not the Servicer), General Motors or any other
Person in connection with the Receivables described above or under any agreement
or instrument relating thereto, including any obligation to any Dealers.
(d) Subject to Section 2.06 and Article III hereof, GMAC shall
retain all right, title and interest in, to and under the Receivables in the
Accounts in the Pool of Accounts that GMAC has not transferred to the Purchaser
hereunder. Such Receivables, together with any Receivables repurchased by GMAC
or (so long as GMAC is the Servicer) the Servicer from the Purchaser or the
Trust pursuant to this Agreement or the Trust Sale and Servicing Agreement, all
monies due or to become due on such Receivables, all amounts received with
respect thereto and all proceeds thereof (including "proceeds" as defined in
Section 9-306 of the UCC and Recoveries) are collectively referred to herein as
the "Retained Property".
SECTION 2.02. Purchase Price. On the Initial Closing Date, in
consideration for the sale of the property described in Section 2.01(a) to the
Purchaser, the Purchaser shall pay to GMAC $2,185,800,000 (representing the
aggregate principal balance of the Receivables as of the close of business on
the Initial Cut-Off Date so sold on the Initial Closing Date) in immediately
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available funds, and GMAC shall deliver to the Purchaser an executed assignment
substantially in the form of Exhibit B hereto. The Purchaser shall pay, subject
to Section 6.02, for property described in Section 2.03 sold by GMAC to the
Purchaser on each Addition Date and property described in Section 2.01(b) sold
by GMAC to the Purchaser on each Receivables Purchase Date, a price equal to the
principal balance of the Eligible Receivables to be purchased on each such date.
Such purchase price shall be payable by the Purchaser on each such date in
immediately available funds.
SECTION 2.03. Addition of Accounts.
(a) Offers to Designate Additional Accounts. From time to
time, GMAC may, at its option, offer to designate and the Purchaser may, at its
option, request the designation of, one or more Accounts (each, an "Additional
Account") to be included as Accounts in the Pool of Accounts, subject to the
conditions specified in Section 2.03(b) below. If the Purchaser, at its option,
elects to accept any such offer by GMAC or if GMAC, at its option, agrees to any
such request of the Purchaser, GMAC shall sell and assign to the Purchaser, and
the Purchaser shall purchase from GMAC, all of GMAC's right, title and interest
in, to and under all of the Eligible Receivables in each such Additional Account
as of the related Additional Cut-Off Date and all monies due or to become due
thereon after such date, all Collateral Security with respect thereto, all
amounts received with respect thereto and all proceeds thereof (including
"proceeds" as defined in Section 9-306 of the UCC and Recoveries), effective as
of the Addition Date specified in a written notice provided by the Servicer, on
behalf of GMAC, to the Purchaser (the "GMAC Addition Notice"). Effective as of
each such Addition Date, such Additional Account shall be included in the Pool
of Accounts and Eligible Receivables arising therein from and after the
Additional Cut-Off Date shall be subject to purchase under Section 2.01(b)
above. Each GMAC Addition Notice shall specify the related Additional CutOff
Date and shall be given (with a copy to the Rating Agencies) on or before the
fifth Business Day but not more than 30 days prior to the related Addition Date.
(b) Conditions. GMAC shall be permitted to designate, and the
Purchaser shall be permitted to accept the designation of, Additional Accounts,
in accordance with Section 2.03(a) only upon satisfaction of each of the
following conditions on or prior to the related Addition Date:
(i) GMAC shall represent that as of the related
Additional Cut-Off Date each such Additional Account is an Eligible
Account and that each Receivable arising thereunder identified as an
Eligible Receivable and conveyed to the Purchaser on such Addition Date
is an Eligible Receivable;
(ii) GMAC shall have delivered to the Purchaser a
duly executed written assignment in substantially the form of Exhibit C
and the list required to be delivered pursuant to Section 7.02(d);
(iii) GMAC shall have agreed to deliver to the
Purchaser, for deposit in the Collection Account, to the extent
required by the Trust Sale and Servicing Agreement, all Collections
with respect to the Eligible Receivables arising in such Additional
Accounts since the Additional Cut-Off Date within two Business Days
after such Addition Date;
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(iv) as of the Addition Date, neither GMAC nor the
Purchaser is insolvent nor shall any of them have been made insolvent
by such transfer nor is either of them aware of any pending insolvency;
(v) the Schedule of Accounts shall have been
amended to reflect such Additional Accounts and the Schedule of
Accounts as so amended shall be true and correct as of the Addition
Date;
(vi) GMAC shall have delivered to the Purchaser a
certificate of an Authorized Officer of GMAC confirming the items set
forth in clauses (i) through (v) above;
(vii) the conditions set forth in Section 2.7(b) of
the Trust Sale and Servicing Agreement shall have been satisfied; and
(viii) GMAC shall have delivered to the Purchaser an
Opinion of Counsel of GMAC substantially in the form of Exhibit D.
SECTION 2.04. Optional Removal of Accounts. From time to time,
GMAC may, at its option, request from the Purchaser, and the Purchaser may, at
its option, offer to GMAC, the right to designate an Account for removal from
the Pool of Accounts. Subject to the satisfaction by the Purchaser of the
conditions set forth in Section 2.8 of the Trust Sale and Servicing Agreement,
GMAC, at its option, may accept offers to designate an Account for removal or
request from the Purchaser the right to designate an Account for removal by
furnishing a written notice (the "GMAC Removal Notice") to the Purchaser not
less than five Business Days but not more than 30 days prior to the Removal
Commencement Date. On and after the Removal Commencement Date with respect to a
Selected Account, GMAC shall not transfer Receivables with respect to such
Selected Account to the Purchaser. The Schedule of Accounts shall be amended to
reflect such designation as of the Removal Commencement Date and to reflect such
Account becoming a Removed Account as of the Removal Date. At any time after the
Removal Date, at the written request of GMAC, the Purchaser shall assign to
GMAC, without recourse, representation or warranty, effective as of the Removal
Date, all of the Purchaser's right, title and interest in, to and under the
Receivables arising in such Account and related Collateral Security.
SECTION 2.05. Removal of Ineligible Accounts. If at any time
an Account shall be deemed a Selected Account as described in Section 2.9 of the
Trust Sale and Servicing Agreement, the Purchaser shall give notice thereof to
GMAC at the time it gives notice to the parties identified in such Section 2.9.
From and after the Removal Commencement Date with respect to a Selected Account
pursuant to such Section 2.9, GMAC shall not transfer Receivables with respect
to such Selected Account to the Purchaser. The Schedule of Accounts shall be
amended to reflect such designation as of the Removal Commencement Date and to
reflect such Account becoming a Removed Account as of the Removal Date. At any
time after such removal, at the written request of GMAC, the Purchaser shall
assign to GMAC, without recourse, representation or warranty, effective as of
the Removal Date, all of the Purchaser's right, title and interest in, to and
under the Receivables in such Account and related Collateral Security.
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SECTION 2.06. Custody of Documentation. In connection with the
sale, transfer, assignment and conveyance of the Receivables and related
Collateral Security in the Accounts in the Pool of Accounts to the Purchaser
hereunder, the Purchaser is executing simultaneously herewith the Custodian
Agreement with the Custodian, pursuant to which the Purchaser shall revocably
appoint the Custodian to act as agent of the Purchaser to maintain custody of
the documents and instruments (as more fully described in the Custodian
Agreement) associated with such Receivables, which shall be constructively
delivered to the Purchaser. GMAC, as the holder of the Retained Property, hereby
consents to the appointment of the Custodian to act as agent of GMAC to maintain
custody of the documents and contracts (as more fully described in the Custodian
Agreement) associated with the Receivables included therein and is
simultaneously herewith executing the Custodian Agreement. The Custodian has
accepted such appointment by the Purchaser and GMAC under the Custodian
Agreement.
ARTICLE III
ADMINISTRATION AND SERVICING OF RECEIVABLES
SECTION 3.01. Appointment of Servicer and Acceptance of
Appointment. The Purchaser and GMAC hereby appoint the Servicer to act as
Servicer with respect to the Eligible Receivables and the Receivables included
in the Retained Property, existing in or arising under the Accounts included in
the Pool of Accounts from time to time and authorize the Servicer to perform the
duties of Servicer under this Agreement and under the Trust Sale and Servicing
Agreement. The Servicer by execution of this Agreement and by execution of the
Trust Sale and Servicing Agreement hereby accepts such appointment and the terms
hereof and thereof.
SECTION 3.02. Rights and Duties of the Servicer.
(a) The Servicer shall manage, service and administer the
Receivables described in Section 3.01, including, without limitation, collecting
payments due under the Receivables and providing for charge-offs of
uncollectible Receivables, with reasonable care and all in accordance with the
Servicer's customary and usual servicing procedures for servicing wholesale
receivables comparable to the Receivables which the Servicer services for its
own account, including the Floor Plan Financing Guidelines, except insofar as
any failure to do so would not have a material adverse effect on the interests
of Securityholders. The Servicer shall have full power and authority, acting
alone or through any party properly designated by it hereunder or under the
Trust Sale and Servicing Agreement, to do any and all things in connection with
such servicing and administration which it may deem necessary or desirable,
including monitoring the insurance maintained by Dealers. The Servicer is hereby
authorized to commence, in its own name or in the name of any Interested Party,
a Proceeding to enforce any Receivable subject hereto, to enforce all
obligations of GMAC and the Purchaser under this Agreement and under the Trust
Sale and Servicing Agreement or to commence or participate in a Proceeding
(including without limitation a bankruptcy proceeding) relating to or involving
any such Receivable. If in any Proceeding it is held that the Servicer may not
enforce a Receivable arising under an Account in the Pool of Accounts on the
ground that it is not a real party in interest or a holder entitled to enforce
such Receivable, the Purchaser, GMAC and each other Interested Party shall, at
the Servicer's expense, take such steps as the Servicer reasonably deems
necessary or appropriate to enforce the Receivable, including bringing suit in
the name of such
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Person. If the Servicer commences or participates in such a Proceeding in its
own name, each Interested Party shall thereupon be deemed to have automatically
assigned such Receivable to the Servicer for purposes of commencing or
participating in any such Proceeding as a party or claimant, and the Servicer is
hereby authorized and empowered to execute and deliver in the Servicer's name
any notices, demands, claims, complaints, responses, affidavits or other
documents or instruments in connection with any such Proceeding. Each Interested
Party shall furnish the Servicer with any powers of attorney and other documents
and take any other steps which the Servicer may reasonably deem necessary or
appropriate to enable the Servicer to carry out its servicing and administrative
duties under this Agreement and the Trust Sale and Servicing Agreement. Except
to the extent required by the preceding two sentences, the authority and rights
granted to the Servicer in this Section 3.02 shall be nonexclusive and shall not
be construed to be in derogation of the retention by any Interested Party (to
the extent of its rights in a Receivable) of equivalent authority and rights.
Without limiting the generality of the foregoing and subject to any Servicing
Default, the Servicer is hereby authorized and empowered, unless such power and
authority is revoked by any Interested Party on account of the occurrence of
such a Servicing Default, to:
(i) instruct the Issuer to make allocations,
withdrawals and payments to or from the Collection Account, the
Distribution Accounts, the Reserve Fund, the Cash Accumulation Reserve
Fund and any other related bank accounts or funds as set forth in the
Trust Sale and Servicing Agreement;
(ii) instruct the Issuer or any Interested Party to
take any action required or permitted under any Specified Support
Arrangement;
(iii) execute and deliver, on behalf of the Issuer
for the benefit of any related Securityholders, any and all instruments
of satisfaction or cancellation, or of partial or full release or
discharge, and all other comparable instruments, with respect to the
Receivables and, after the delinquency of any Receivable and to the
extent permitted under and in compliance with applicable requirements
of law, to commence enforcement proceedings with respect to any such
Receivable; and
(iv) make any filings, reports, notices,
applications, registrations with, and seek any consents or
authorizations from, the Securities and Exchange Commission and any
State securities authority on behalf of the Issuer as may be necessary
or advisable to comply with any federal or State securities law or
reporting requirement.
(b) The Servicer shall not be obligated to use separate
servicing procedures, offices, employees or accounts for servicing the
Receivables in the Accounts in the Pool of Accounts from the procedures,
offices, employees and accounts used by the Servicer in connection with
servicing other receivables. The Servicer shall, at its own expense, on or prior
to the Initial Closing Date, in the case of the Initial Accounts, and on or
prior to the applicable Addition Date, in the case of Additional Accounts,
indicate in its computer files that the Eligible Receivables in the Accounts in
the Pool of Accounts have been sold and transferred by GMAC to the Purchaser
hereunder and by the Purchaser to the Trust under the Trust Sale and Servicing
Agreement.
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(c) Except as otherwise required to comply with all
Requirements of Law, the Servicer may change the terms and provisions of the
Floor Plan Financing Agreements or the Floor Plan Financing Guidelines in any
respect (including the calculation of the amount or the timing of charge-offs
and the rate of the finance charge assessed thereon), only if:
(i) in the reasonable belief of the Servicer, no
Early Amortization Event shall occur as a result of such change;
(ii) such change is made applicable to the
comparable segment of any similar portfolio of accounts serviced by the
Servicer and not only to the Accounts in the Pool of Accounts; and
(iii) in the case of a reduction in the rate of such
finance charges, the Servicer (and, if GMAC is not then the Servicer,
GMAC) does not reasonably expect any such reduction, after considering
amounts due and amounts payable under any Specified Support Agreements
and Investment Proceeds for the related period, to result in the Net
Receivables Rate for any Collection Period being less than the sum of
(A) the weighted average of the rates of interest payable to all
holders of Securities and (B) the Monthly Servicing Fee for the related
period;
provided, however, that nothing herein shall prevent the Servicer from modifying
the terms of the Floor Plan Financing Agreement with any dealer on a
case-by-case basis in a manner consistent with the Floor Plan Financing
Guidelines.
SECTION 3.03. Servicing Compensation; Payment of Certain
Expenses by the Servicer. The Servicer is entitled to receive the Monthly
Servicing Fee as described in the Trust Sale and Servicing Agreement. The
Monthly Servicing Fee shall be payable to the Servicer solely to the extent
amounts are available for payment in accordance with the terms of the Trust Sale
and Servicing Agreement. Subject to any limitations on the Servicer's liability
under the Trust Sale and Servicing Agreement, the Servicer shall be required to
pay all expenses incurred by it in connection with its activities under this
Agreement and the Trust Sale and Servicing Agreement (including disbursements of
the Issuer, fees and disbursements of any trustees, accountants and outside
auditors, taxes imposed on the Servicer, expenses incurred in connection with
distributions and reports to Securityholders and all other fees and expenses not
expressly stated under this Agreement or the Trust Sale and Servicing Agreement
to be for the account of the Securityholders, but in no event including federal,
state and local income and franchise taxes, if any, of the Issuer or any holder
of the Securities).
SECTION 3.04. Representations, Warranties and Covenants of the
Servicer.
(a) The Servicer hereby makes, and any successor Servicer by
its appointment under this Agreement and under the Trust Sale and Servicing
Agreement shall make, on each Closing Date (and on the date of any such
appointment) the following representations, warranties and covenants on which
the Purchaser relies in accepting and holding the Receivables and the related
Collateral Security hereunder and the Issuer shall rely in acquiring and holding
such Receivables and
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the related Collateral Security under the Trust Sale and Servicing Agreement and
in issuing the Securities:
(i) Organization and Good Standing. The Servicer
has been duly organized and is validly existing as a corporation in
good standing under the laws of the State of Delaware (or, in the case
of a Servicer other than GMAC, other applicable law of its jurisdiction
of incorporation), with power and authority to own its properties and
to conduct its businesses as such properties are presently owned and
such businesses are presently conducted.
(ii) Due Qualification. The Servicer is duly
qualified to do business and, where necessary, is in good standing as a
foreign corporation (or is exempt from such requirement) and has
obtained all necessary licenses and approvals in each jurisdiction in
which the conduct of its businesses requires such qualification, except
where the failure to so qualify or obtain licenses or approvals would
not have material adverse effect on its ability to perform its
obligations under this Agreement.
(iii) Power and Authority. The Servicer has the power
and authority to execute and deliver this Agreement and the Trust Sale
and Servicing Agreement, to carry out the terms of each such agreement
and to service the Accounts in the Pool of Accounts and the Receivables
arising therein as provided herein and in the Trust Sale and Servicing
Agreement, and the execution, delivery and performance of this
Agreement and the Trust Sale and Servicing Agreement have been duly
authorized by the Servicer by all necessary corporate action on the
part of the Servicer.
(iv) Binding Obligation. This Agreement constitutes,
and the Trust Sale and Servicing Agreement, when duly executed and
delivered by the Servicer, shall constitute, the legal, valid and
binding obligation of the Servicer enforceable in accordance with their
respective terms, except as enforceability may be limited by
bankruptcy, insolvency, reorganization, moratorium or other similar
laws now or hereinafter in effect, affecting the enforcement of
creditors' rights in general and by general principles of equity,
regardless of whether such enforceability is considered in a proceeding
in equity or at law.
(v) No Violation. The execution of this Agreement
and the consummation of the transactions contemplated by this Agreement
and the Trust Sale and Servicing Agreement by the Servicer and the
fulfillment of the terms of this Agreement and the Trust Sale and
Servicing Agreement by the Servicer, shall not conflict with, result in
any breach of any of the terms and provisions of or constitute (with or
without notice or lapse of time) a default under, the articles of
incorporation or by-laws of the Servicer, or any indenture, agreement,
mortgage, deed of trust or other instrument to which the Servicer is a
party or by which it is bound, or result in the creation or imposition
of any Lien upon any of its properties pursuant to the terms of any
such indenture, agreement, mortgage, deed of trust or other instrument
(other than pursuant to the Basic Documents), or violate any law or, to
the best of the Servicer's knowledge, any order, rule or regulation
applicable to the Servicer of any Governmental Authority having
jurisdiction over the Servicer or any of its properties, except
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where any such conflict or violation would not have a material adverse
effect on its ability to perform its obligations under this Agreement
or the Trust Sale and Servicing Agreement.
(vi) No Proceedings. To the Servicer's knowledge,
there are no Proceedings or investigations pending, or threatened,
against the Servicer before any Governmental Authority having
jurisdiction over the Servicer or its properties (A) asserting the
invalidity of this Agreement or the Trust Sale and Servicing Agreement
or any Securities issued thereunder, (B) seeking to prevent the
issuance of the such Securities, the execution of this Agreement or the
consummation of any of the transactions contemplated by this Agreement
or the Trust Sale and Servicing Agreement or (C) seeking any
determination or ruling that might materially and adversely affect the
performance by the Servicer of its obligations under, or the validity
and enforceability of, this Agreement or the Trust Sale and Servicing
Agreement.
(vii) Compliance with Requirements of Law. The
Servicer shall duly satisfy all obligations on its part to be fulfilled
under or in connection with the Receivables and the Accounts to be
serviced under this Agreement and the Trust Sale and Servicing
Agreement, shall maintain in effect all qualifications required under
Requirements of Law in order to service properly such Receivables and
such Accounts and shall comply in all material respects with all
Requirements of Law in connection with servicing such Receivables and
such Accounts, except, in each case, where a failure to do so would not
have a material adverse effect on the interests of the Securityholders.
(viii) No Rescission or Cancellation. Except pursuant
to the Floor Plan Financing Guidelines, the Servicer shall not permit
any rescission or cancellation of any Receivable sold and assigned to
the Purchaser hereunder that the Servicer services under this Agreement
and the Trust Sale and Servicing Agreement, except as ordered by a
court of competent jurisdiction or other Governmental Authority.
(ix) Protection of Interested Party Rights. The
Servicer shall take no action, nor omit to take any action, which would
impair the rights or interests of Interested Parties in the Receivables
sold and assigned to the Purchaser hereunder that the Servicer services
under this Agreement and the Trust Sale and Servicing Agreement or in
the related Vehicle Collateral Security nor shall it reschedule, revise
or defer payments due on any such Receivable except, in each case, in a
manner consistent with the Floor Plan Financing Guidelines or as
otherwise contemplated herein or in the Trust Sale and Servicing
Agreement. The Servicer shall not permit any such Receivable to become
subject to any right of set-off or any offsetting balance.
(x) Negative Pledge. Except for the conveyances
hereunder to the Issuer pursuant to the Trust Sale and Servicing
Agreement and the pledge of the Trust Estate to the Indenture Trustee
pursuant to the Indenture, and as provided in Section 6.03, the
Servicer shall not sell, pledge, assign or transfer to any other
Person, or grant, create, incur, assume or suffer to exist, any Lien on
any Receivable sold and assigned to the Purchaser hereunder (and any
related Collateral Security), whether now existing or hereafter
created, or any interest therein, and the Servicer shall defend the
right, title and interest of the Purchaser, the
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Issuer and any Interested Party in, to and under such property, whether
now existing or hereafter created, against all claims of third parties
claiming through or under the Purchaser or the Servicer. The Servicer
shall notify the Purchaser promptly after becoming aware of any Lien on
such property other than the conveyances hereunder or under the Trust
Sale and Servicing Agreement or the Indenture.
(b) Notice of Breach. Upon discovery by the Purchaser or the
Servicer of a breach of any of the representations, warranties and covenants set
forth in this Section 3.04, the party discovering such breach shall give prompt
written notice to the other party.
(c) Purchase of Receivables. If any covenants of the Servicer
under Section 3.04(a)(viii), (ix) or (x) has not been complied with in all
material respects with respect to any Eligible Receivable or Account in the Pool
of Accounts and such noncompliance has a material adverse effect on the
interests of Securityholders or any other Interested Parties in such Receivable
or such Account, the Servicer shall purchase such Receivable (or, in the case of
a breach affecting less than the entire principal amount of a Receivable, to the
extent of the breach) or all Eligible Receivables under such Account (each, an
"Administrative Receivable") from the Issuer, on the terms and conditions set
forth in this Section 3.04.
(d) Payment of Purchase Price. The Servicer shall purchase
each Administrative Receivable no later than two Business Days (or such other
period as may be agreed by the Applicable Trustee) following discovery by the
Servicer (including through the receipt of notice thereof) of the event giving
rise to such Administrative Receivable by depositing in the Collection Account,
on the date on which such purchase is deemed to occur, an amount (in immediately
available funds) equal to the principal amount of such Receivable plus accrued
and unpaid interest thereon through the date of purchase. The amount so
deposited with respect to a Receivable (an "Administrative Purchase Payment")
shall be included in Trust Principal Collections (to the extent of the principal
amount of such Receivable) and Interest Collections (as to the remainder of such
amount) on such date and shall be applied in accordance with the terms of this
Agreement and the Trust Sale and Servicing Agreement.
(e) Sole Remedy. The obligation of the Servicer to purchase
Receivables as described in this Section 3.04, and to make the deposits required
to be made to the Collection Account as provided in the preceding paragraph,
shall constitute the sole remedy respecting the event giving rise to such
obligation available to any Securityholders, the Purchaser, the Owner Trustee,
the Indenture Trustee or the Issuer.
SECTION 3.05. Servicer's Accounting and Reports.
(a) On or before each Determination Date, the Servicer shall
deliver to the Purchaser, the Owner Trustee, the Indenture Trustee and the
Rating Agencies a Servicer's Accounting with respect to the immediately
preceding Collection Period executed by an Authorized Officer of the Servicer
containing all information necessary for making the allocations, deposits and
distributions required by the Trust Sale and Servicing Agreement, the Trust
Agreement and the Indenture on the related Distribution Date, and all
information necessary to each such party for
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sending any statements required to be sent to Securityholders with respect to
such Distribution Date under the Trust Sale and Servicing Agreement.
(b) On each Business Day, the Servicer shall deliver to the
Indenture Trustee a Servicer's Accounting executed by an Authorized Officer of
the Servicer containing the Daily Trust Balance, the Daily Trust Invested Amount
and all related amounts to the extent necessary to determine the Cash Collateral
Amount for such date as described in Section 4.5(d) of the Trust Sale and
Servicing Agreement.
(c) At any time that GMAC does not have a long-term rating of
at least BBB- from Standard & Poor's and at least Baa3 from Moody's, the
Servicer shall identify on a daily basis all Eligible Receivables and, on or
before each Determination Date, the Servicer shall deliver to the Owner Trustee
a list identifying all Eligible Receivables as of the last day of the related
Collection Period.
SECTION 3.06. Pre-Closing Collections. Within two Business
Days after the Initial Closing Date, GMAC shall deliver to the Purchaser all
collections on the Receivables in the Accounts in the Pool of Accounts held by
GMAC on the Initial Closing Date to the extent such collections would be
required to be on deposit on such date if this Agreement and the Trust Sale and
Servicing Agreement had been in effect from and after the Initial Cut-Off Date
and the Revolving Period had commenced on such date. The Purchaser hereby
directs GMAC to deposit such amount on its behalf into the Collection Account.
SECTION 3.07. Collections Received by GMAC. GMAC hereby agrees
to deliver all Collections on the Receivables in the Accounts in the Pool of
Accounts received by GMAC from or on behalf of Dealers to the Servicer and
consents to the application, allocation and distribution thereof in accordance
with the terms and provisions of this Agreement and the Trust Sale and Servicing
Agreement.
ARTICLE IV
REPRESENTATIONS, WARRANTIES AND COVENANTS
SECTION 4.01. Representations and Warranties of GMAC Relating
to the Accounts and the Receivables.
(a) Representations and Warranties. As of the dates set forth
below, GMAC makes the following representations and warranties to the Purchaser
as to the Accounts in the Pool of Accounts and the Receivables sold to the
Purchaser hereunder, on which the Purchaser relies in accepting such
Receivables:
(i) as of the Initial Cut-Off Date, each Account
included in the Pool of Accounts is an Eligible Account;
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(ii) as of the Initial Cut-Off Date, each Receivable
that is identified as an Eligible Receivable and conveyed to the
Purchaser on the Initial Closing Date is an Eligible Receivable;
(iii) as of each Additional Cut-Off Date, each
related Additional Account is an Eligible Account and each Receivable
arising thereunder that is identified as an Eligible Receivable and
conveyed to the Purchaser on the related Addition Date is an Eligible
Receivable; and
(iv) as of each date that Receivables are sold and
transferred hereunder pursuant to Section 2.01(b), each Receivable that
is identified as an Eligible Receivable and so conveyed to the
Purchaser on such date is an Eligible Receivable.
(b) Survival; Notice of Breach. The representations and
warranties set forth in this Section 4.01 shall survive the transfer and
assignment of the Eligible Receivables in the Accounts in the Pool of Accounts
and related items to the Purchaser from time to time and the subsequent
assignment and transfer of its interests therein to the Issuer pursuant to the
Trust Sale and Servicing Agreement. Upon discovery by GMAC or the Purchaser of a
breach of any of the representations and warranties set forth in this Section
4.01, the party discovering such breach shall give prompt written notice to the
other party.
(c) Repurchase. GMAC acknowledges that the Purchaser shall
assign its rights and remedies hereunder with respect to the Eligible
Receivables arising in the Accounts in the Pool of Accounts to the Issuer under
the Trust Sale and Servicing Agreement. GMAC hereby covenants and agrees with
the Purchaser that (i) in the event of a breach of any of GMAC's representations
and warranties contained in Section 4.01(a) with respect to any Receivable or
with respect to any Account that materially and adversely affects the interests
of the Purchaser or the Trust in any Receivable or (ii) in the event that the
payment of all or a portion of the principal amount of any Receivable held by
the Purchaser or the Trust is deferred pursuant to DPP or any other instalment
sales program or similar arrangement, unless and to the extent such breach or
deferral shall have been cured in all material respects, GMAC shall repurchase
the interest of the Issuer in such Receivable (to the extent of such breach or
deferral) on the date and for the amount specified in Section 2.5 of the Trust
Sale and Servicing Agreement, without further notice from the Purchaser
hereunder and without any representation, warranty or recourse from the
Purchaser or the Issuer. Without limiting the generality of the foregoing, a
Receivable shall not be an Eligible Receivable, and thus shall be subject to
repurchase, if and to the extent that, (A) the Servicer adjusts downward the
principal amount of such Receivable because of a rebate, refund, credit
adjustment or billing error to the related Dealer or (B) such Receivable was
created in respect of a Vehicle which was refused or returned by the related
Dealer.
(d) Sole Remedy. The obligation of GMAC to repurchase any
Receivable shall constitute the sole remedy respecting the event giving rise to
such obligation available to the Purchaser and to any Interested Party.
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SECTION 4.02. Representations and Warranties of GMAC Relating
to GMAC and the Agreement.
(a) Representations and Warranties. GMAC, in its capacity as
seller, hereby makes as of each Closing Date the following representations and
warranties on which the Purchaser relies. The following representations and
warranties shall survive the sale, transfer and assignment of the Receivables
hereunder:
(i) Organization and Good Standing. GMAC has been duly
organized and is validly existing as a corporation in good standing
under the laws of the State of Delaware, with power and authority to
own its properties and to conduct its businesses as such properties are
presently owned and such businesses are presently conducted;
(ii) Due Qualification. GMAC is duly qualified to do
business and, where necessary, is in good standing as a foreign
corporation (or is exempt from such requirement) and has obtained all
necessary licenses and approvals in each jurisdiction in which the
conduct of its businesses requires such qualification, except where the
failure to so qualify or obtain licenses or approvals would not have a
material adverse effect on its ability to perform its obligations under
this Agreement;
(iii) Power and Authority. GMAC has the power and
authority to execute and deliver this Agreement, to carry out its
terms, and to consummate the transactions contemplated herein, and the
execution, delivery and performance of this Agreement and the
consummation of the transactions contemplated herein have been duly
authorized by GMAC by all necessary corporate action on the part of
GMAC;
(iv) No Violation. The execution of this Agreement and
the consummation of the transactions contemplated by this Agreement and
the fulfillment of the terms of this Agreement by GMAC shall not
conflict with, result in any breach of any of the terms and provisions
of, or constitute (with or without notice or lapse of time) a default
under, the articles of incorporation or by-laws of GMAC, or any
indenture, agreement, mortgage, deed of trust or other instrument to
which GMAC is a party or by which it is bound, or result in the
creation or imposition of any Lien upon any of its properties pursuant
to the terms of any such indenture, agreement, mortgage, deed of trust
or other instrument (other than pursuant to the Basic Documents) or
violate any law or, to the best of GMAC's knowledge, any order, rule or
regulation applicable to GMAC of any Governmental Authority having
jurisdiction over GMAC or any of its properties, except where any such
conflict or violation would not have a material adverse effect on its
ability to perform its obligations with respect to the Purchaser or any
Interested Party under this Agreement or the Trust Sale and Servicing
Agreement;
(v) No Proceedings. To GMAC's knowledge, there are no
Proceedings or investigations pending, or threatened, against GMAC
before any Governmental Authority having jurisdiction over GMAC or its
properties (A) asserting the invalidity of this Agreement, the Trust
Sale and Servicing Agreement, the Custodian Agreement or the
Administration Agreement, (B) seeking to prevent the execution of this
Agreement or the
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consummation of any of the transactions contemplated by this Agreement,
the Trust Sale and Servicing Agreement, the Custodian Agreement or the
Administration Agreement or (C) seeking any determination or ruling
that might materially and adversely affect the performance by GMAC of
its obligations under, or the validity or enforceability of, this
Agreement, the Trust Sale and Servicing Agreement, the Custodian
Agreement or the Administration Agreement;
(vi) Binding Obligation. This Agreement constitutes a
legal, valid and binding obligation of GMAC, enforceable against GMAC
in accordance with its terms, except as such enforceability may be
limited by applicable bankruptcy, insolvency, reorganization,
moratorium or other similar laws now or hereafter in effect affecting
the enforcement of creditors' rights in general and by general
principles of equity, regardless of whether such enforceability is
considered in a proceeding in equity or at law;
(vii) Record of Accounts. The Schedule of Accounts is an
accurate and complete listing in all material respects of all of the
Accounts in the Pool of Accounts as of the Initial Cut-Off Date or the
applicable Additional Cut-Off Date, as the case may be, and the
information contained therein with respect to the identity of such
Accounts is true and correct in all material respects; and
(viii) Valid Sale. With respect to the Initial Accounts,
this Agreement and the related assignment to be delivered on the
Initial Closing Date or, in the case of Additional Accounts, the
related assignment as described in Section 2.03(b), when duly executed
and delivered, shall constitute a valid sale, transfer and assignment
to the Purchaser of all right, title and interest of GMAC in, to and
under the Eligible Receivables thereunder and the related Vehicle
Collateral Security, whether then existing or thereafter created, and
the proceeds thereof, enforceable against creditors of and purchasers
from GMAC. To the extent such filings are required therefor, upon the
filing of the financing statements described in Section 7.02(a) (and,
in the case of Eligible Receivables hereafter created in the Accounts
in the Pool of Accounts and the proceeds thereof, upon the creation
thereof) the Purchaser shall have a first priority perfected ownership
interest in such property, except for Liens permitted under Section
4.04(a). Except as otherwise provided in the Trust Sale and Servicing
Agreement or this Agreement, neither General Motors, GMAC nor any
Person claiming through or under General Motors or GMAC has any claim
to or interest in the Trust Estate.
(b) Survival; Notice of Breach. The representations and
warranties set forth in this Section 4.02 shall survive the transfer and
assignment of the Receivables and related items to the Purchaser hereunder and
the subsequent assignment and transfer of its interests therein to the Issuer
pursuant to the Trust Sale and Servicing Agreement. Upon discovery by GMAC or
the Purchaser of a breach of any of the foregoing representations and
warranties, the party discovering such breach shall give prompt written notice
to the other party.
(c) Repurchase. If (i) the Purchaser is required to purchase
Receivables and related Collateral Security pursuant to Section 3.1(c) of the
Trust Sale and Servicing Agreement and (ii) the condition giving rise to such
purchase obligation shall also constitute a breach of a representation or
warranty pursuant to Section 4.02(a), GMAC shall repurchase such Receivables
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and such Collateral Security and shall pay to the Purchaser, prior to the time
the Purchaser is required to pay such amount pursuant to the Trust Sale and
Servicing Agreement, an amount equal to the Reassignment Amount.
(d) Sole Remedy. The obligation of GMAC to purchase such
Receivables and such Collateral Security pursuant to this Section 4.02 shall
constitute the sole remedy available to the Purchaser and to any Interested
Party against GMAC respecting the event giving rise to such obligation.
SECTION 4.03. Representations and Warranties of the Purchaser.
The Purchaser hereby represents and warrants to GMAC as of each Closing Date
that:
(a) Organization and Good Standing. The Purchaser has been
duly organized and is validly existing as a corporation in good standing under
the laws of the State of Delaware, with power and authority to own its
properties and to conduct its business as such properties are presently owned
and such business is presently conducted, and had at all relevant times, and now
has, power, authority and legal right to acquire and own the Eligible
Receivables arising in the Accounts in the Pool of Accounts and the Collateral
Security related thereto;
(b) Due Qualification. The Purchaser is duly qualified to do
business and, where necessary, is in good standing as a foreign corporation (or
is exempt from such requirement) and has obtained all necessary licenses and
approvals in all jurisdictions in which the ownership or lease of property or
the conduct of its business requires such qualification, except where the
failure to so qualify or obtain licenses or approvals would not have a material
adverse effect on its ability to perform its obligations under this Agreement;
(c) Power and Authority. The Purchaser has the power and
authority to execute and deliver this Agreement, to carry out its terms and to
consummate the transactions contemplated herein, and the execution, delivery and
performance of this Agreement and the consummation of the transactions
contemplated herein have been duly authorized by the Purchaser by all necessary
corporate action on the part of the Purchaser;
(d) No Violation. The execution of this Agreement and the
consummation of the transactions contemplated by this Agreement by the Purchaser
and the fulfillment of the terms of this Agreement by the Purchaser shall not
conflict with, result in any breach of any of the terms and provisions of or
constitute (with or without notice or lapse of time) a default under, the
certificate of incorporation or by-laws of the Purchaser, or any indenture,
agreement, mortgage, deed of trust or other instrument to which the Purchaser is
a party or by which it is bound, or result in the creation or imposition of any
Lien upon any of its properties pursuant to the terms of any such indenture,
agreement, mortgage, deed of trust or other instrument (other than pursuant to
the Basic Documents), or violate any law or, to the best of the Purchaser's
knowledge, any order, rule or regulation applicable to the Purchaser of any
Governmental Authority having jurisdiction over the Purchaser or any of its
properties, except where any such conflict or violation would not have a
material adverse effect on its ability to perform its obligations with respect
to GMAC or any Interested Party under this Agreement or the Trust Sale and
Servicing Agreement;
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(e) No Proceedings. To the Purchaser's knowledge, there are no
Proceedings or investigations pending, or threatened, against the Purchaser
before any Governmental Authority having jurisdiction over the Purchaser or its
properties (i) asserting the invalidity of this Agreement, (ii) seeking to
prevent the execution of this Agreement or the consummation of any of the
transactions contemplated by this Agreement or (iii) seeking any determination
or ruling that might materially and adversely affect the performance by the
Purchaser of its obligations under, or the validity or enforceability of, this
Agreement; and
(f) Binding Obligation. This Agreement constitutes a legal,
valid and binding obligation of the Purchaser, enforceable against the Purchaser
in accordance with its terms, except as such enforceability may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium or other similar
laws now or hereafter in effect affecting the enforcement of creditors' rights
in general and by general principles or equity, regardless of whether such
enforceability is considered in a proceeding in equity or at law.
SECTION 4.04. Covenants of GMAC. GMAC hereby covenants that:
(a) Negative Pledge. Except for the conveyances hereunder and
under the Trust Sale and Servicing Agreement and the pledge of the Trust Estate
to the Indenture Trustee under the Indenture and as provided in Section 6.03,
GMAC shall not sell, pledge, assign or transfer to any other Person, or grant,
create, incur, assume or suffer to exist, any Lien on any Eligible Receivable in
any Account in the Pool of Accounts (and any related Vehicle Collateral
Security), whether now existing or hereafter created, or any interest therein,
and GMAC shall defend the right, title and interest of the Purchaser and any
Interested Party in, to and under such property, whether now existing or
hereafter created, against all claims of third parties claiming through or under
GMAC. GMAC shall notify the Purchaser and the Issuer promptly after becoming
aware of any Lien on any such property other than the conveyances hereunder or
under the Trust Sale and Servicing Agreement or the Indenture. Nothing herein
shall prohibit GMAC from granting, creating, incurring or suffering to exist any
Lien on all or any portion of the Retained Property.
(b) Delivery of Collections. All payments received by GMAC
from or on behalf of a Dealer in respect of Receivables in any Accounts in the
Pool of Accounts or any Collateral Security (except as contemplated in Section
6.03 with respect to any property constituting Common Collateral that is not
Vehicle Collateral Security in connection with any Other Indebtedness) shall be
received by GMAC in its capacity as Servicer, unless GMAC is no longer the
Servicer, in which case GMAC shall deliver all such payments to the Servicer as
soon as practicable after receipt thereof, but in no event later than two
Business Days after receipt thereof.
(c) Compliance with Requirements of Law. GMAC shall comply in
all material respects with all Requirements of Law applicable to GMAC, except
where any such failure to comply would not have a material adverse effect on its
ability to perform its obligations under this Agreement.
(d) No Petition. Neither the Servicer nor GMAC shall at any
time institute against the Purchaser any bankruptcy, reorganization,
arrangement, insolvency or liquidation proceedings, or other proceedings under
any United States Federal or state bankruptcy or similar law.
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ARTICLE V
CERTAIN MATTERS RELATING TO GMAC
SECTION 5.01. Merger or Consolidation of, or Assumption of the
Obligations of, GMAC.
(a) Notwithstanding anything to the contrary in this
Agreement, any Person (i) into which GMAC may be merged or consolidated, (ii)
resulting from any merger, conversion or consolidation to which GMAC shall be a
party, (iii) succeeding to the business of GMAC or (iv) more than 50% of the
voting interests of which is owned, directly or indirectly, by General Motors
and which is otherwise originating receivables, which Person in any of the
foregoing cases (other than GMAC as the surviving entity of such merger or
consolidation) executes an agreement of assumption to perform every obligation
of GMAC, as seller, under this Agreement and the Trust Sale and Servicing
Agreement, shall be the successor to GMAC under this Agreement, as seller,
without the execution or filing of any document or any further act on the part
of any of the parties to this Agreement or the Trust Sale and Servicing
Agreement, anything in this Agreement to the contrary notwithstanding.
(b) GMAC shall provide notice of any merger, consolidation or
succession pursuant to this Section 5.01 to the Rating Agencies.
SECTION 5.02. GMAC Indemnification of the Purchaser. GMAC
shall indemnify the Purchaser for any liability as a result of the failure of an
Eligible Receivable sold hereunder to be originated in compliance with all
Requirements of Law. This indemnity obligation shall be in addition to any
obligation that GMAC may otherwise have.
SECTION 5.03. GMAC Acknowledgment of Transfers to the Issuer.
By its execution of the Trust Sale and Servicing Agreement, GMAC acknowledges
that the Purchaser shall, pursuant to the Trust Sale and Servicing Agreement,
transfer the Receivables purchased hereunder and related Collateral Security to
the Issuer and assign its rights associated therewith under this Agreement to
the Issuer, subject to the terms and conditions of the Trust Sale and Servicing
Agreement, and that the Issuer shall in turn further pledge, assign or transfer
its rights in such property and this Agreement to the Indenture Trustee under
the Indenture. GMAC further acknowledges that the Purchaser shall assign its
rights under the Custodian Agreement to the Issuer.
ARTICLE VI
ADDITIONAL AGREEMENTS
SECTION 6.01. Additional Obligations of GMAC and the
Purchaser.
(a) Supplemental Principal Allocations. On or before the
Business Day prior to each Distribution Date for the Wind Down Period or an
Early Amortization Period, GMAC shall deposit into the Collection Account, on
behalf of the Purchaser, an amount equal to the Supplemental Principal
Allocation for such Distribution Date. Such amount shall be recorded as an
advance under the Intercompany Advance Agreement and shall bear interest and be
payable as provided therein.
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(b) Removed Accounts. With respect to each Removed Account, if
and to the extent that any related Receivable held by the Trust on the related
Removal Commencement Date (determined without giving effect to the special
allocation of Principal Collections pursuant to Section 2.8(c) or Section
2.9(b), as applicable, of the Trust Sale and Servicing Agreement) is charged-off
as uncollectible at any time following the related Removal Date, the Purchaser
shall pay the amount so charged-off to GMAC.
SECTION 6.02. Effect of Involuntary Case Involving GMAC.
(a) Suspension of Purchases. The Purchaser shall suspend the
purchase (and GMAC shall suspend the sale) of Receivables hereunder if either
party shall receive notice at its principal corporate office that GMAC has
become an involuntary party to (or has been made the subject of) any proceeding
provided for by any insolvency, readjustment of debt, marshalling of assets and
liabilities or similar proceedings of or relating to GMAC or relating to all or
substantially all of its property (an "Involuntary Case").
(b) Resumption of Purchases. Notwithstanding any cessation or
suspension of purchases pursuant to Section 6.02(a), if GMAC or the Purchaser
has obtained an order from the court having jurisdiction over an Involuntary
Case approving the continuation of the sale of Receivables by GMAC to the
Purchaser and/or approving the sale of Receivables originating in the Accounts
in the Pool of Accounts since the date of the suspension of such sales on the
same terms (including Section 6.03 hereof) as, or on terms that do not have a
material adverse effect on Securityholders as compared to, the terms in effect
prior to the commencement of such Involuntary Case, and further providing that
the Purchaser and any of its transferees (including the Issuer) may rely on such
order for the validity and nonavoidance of such transfer (the "Order"), the
Purchaser may resume the purchase (and GMAC may resume the sale) of Receivables
pursuant to the terms hereof; provided, however, that so long as such
Involuntary Case shall continue, notwithstanding anything in this Agreement to
the contrary, the purchase price of such Receivables (which shall not be less
than reasonably equivalent value therefor or greater than the principal balance
thereof) shall be paid by the Purchaser to GMAC in cash not later than the same
Business Day of any such sale, and such Receivables shall be considered
transferred to the Purchaser only to the extent that the purchase price therefor
has been paid in cash on the same Business Day.
(c) Cessation of Purchases. If an Order is obtained but
subsequently is reversed or rescinded or expires, the Purchaser shall
immediately cease to purchase (and GMAC shall immediately cease to sell)
Receivables hereunder. Notwithstanding anything contained in Section 6.02(b), if
an Involuntary Case has not been dismissed by the first Business Day following
the 60 day period beginning on the day on which notice of an Involuntary Case
was received by either party, whether or not an Order was obtained, the
Purchaser shall not thereafter purchase Receivables from GMAC hereunder and GMAC
shall not thereafter designate Additional Accounts for transfer to the Purchaser
or sell Receivables hereunder.
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SECTION 6.03. Intercreditor Agreements.
(a) Common Collateral. In connection with loans or advances
made or to be made by GMAC to a Dealer from time to time other than pursuant to
an Account (collectively, "Other Indebtedness"), GMAC may have a security
interest in property constituting Collateral Security (the "Common Collateral").
(b) Agreements of GMAC with respect to Common Collateral. GMAC
agrees that with respect to the Receivables of each Dealer:
(i) GMAC's security interest in any Common
Collateral that is Vehicle Collateral Security (and the proceeds
thereof) in connection with any Other Indebtedness is subordinate to
the security interest therein in connection with such Receivables and
assigned to the Purchaser hereunder;
(ii) GMAC shall not apply the proceeds of any such
Common Collateral that is Vehicle Collateral Security in connection
with any Other Indebtedness in any manner that is materially adverse to
the Purchaser or the Issuer and the Securityholders until all required
payments in respect of such Receivable have been made; and
(iii) in realizing upon any such Common Collateral
that is Vehicle Collateral Security in connection with any such
Receivables, neither the Purchaser nor the Issuer (nor the Servicer on
behalf of either) shall be obligated to protect or preserve the rights
of GMAC in such Common Collateral.
(c) Agreements of the Purchaser with respect to Common
Collateral. The Purchaser agrees that with respect to the Receivables of each
Dealer:
(i) the Purchaser's security interest in any Common
Collateral that is not Vehicle Collateral Security (and the proceeds
thereof) in connection with such Receivables assigned to the Purchaser
hereunder is subordinate to the security interest therein in connection
with any Other Indebtedness;
(ii) the Purchaser (or the Servicer on its behalf)
shall not apply the proceeds of any such Common Collateral that is not
Vehicle Collateral Security in connection with any such Receivables in
any manner that is materially adverse to GMAC until all required
payments in respect of such Other Indebtedness have been made; and
(iii) in realizing upon any such Common Collateral
that is not Vehicle Collateral Security in connection with such Other
Indebtedness, GMAC shall not be obligated to protect or preserve the
rights of the Purchaser or the Issuer in such Collateral Security.
(d) Obligations of Issuer. The Trust Sale and Servicing
Agreement shall provide that the Issuer is subject to this Section 6.03.
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(e) Obligations of Assignees and Transferees. If, other than
pursuant hereto, GMAC in any manner assigns or transfers any right or obligation
with respect to any Other Indebtedness or any property constituting Common
Collateral, GMAC shall make such assignment or transfer subject to the
provisions of this Section 6.03 and shall require such assignee or transferee to
acknowledge that it takes such assignment or transfer subject to the provisions
of this Section 6.03 and to agree that it shall require the same acknowledgment
from any subsequent assignee or transferee.
ARTICLE VII
MISCELLANEOUS PROVISIONS
SECTION 7.01. Amendment. This Agreement may be amended from
time to time (subject to Section 10.1(g) of the Trust Sale and Servicing
Agreement) by a written amendment duly executed and delivered by GMAC and the
Purchaser.
SECTION 7.02. Protection of Right, Title and Interest in and
to Receivables.
(a) GMAC or the Purchaser or both shall execute and file such
financing statements and cause to be executed and filed such continuation
statements or other statements, all in such manner and in such places as may be
required by law fully to evidence, preserve, maintain and protect the interest
of the Purchaser hereunder in the Eligible Receivables arising in the Accounts
in the Pool of Accounts and the related Collateral Security and in the proceeds
thereof (including, without limitation, UCC-1 financing statements on or prior
to the Initial Closing Date). GMAC shall deliver (or cause to be delivered) to
the Purchaser file-stamped copies of, or filing receipts for, any document filed
as provided above, as soon as available following such filing.
(b) Within 60 days after GMAC makes any change in its name,
identity or corporate structure that would make any financing statement or
continuation statement filed in accordance with Section 7.02(a) seriously
misleading within the meaning of Section 9-402(7) of the UCC, GMAC shall give
the Purchaser notice of any such change.
(c) GMAC shall give the Purchaser at least 60 days prior
written notice of any relocation of its principal executive office if, as a
result of such relocation, the applicable provisions of the UCC would require
the filing of any amendment of any previously filed financing or continuation
statement or of any new financing statement. GMAC shall at all times maintain
its principal executive office within the United States of America.
(d) In connection with the sale and transfer hereunder of the
Receivables in the Accounts in the Pool of Accounts and the related Collateral
Security from GMAC to the Purchaser, GMAC shall, at its own expense, on or prior
to the Initial Closing Date, in the case of the Initial Accounts, and on or
prior to the applicable Addition Date, in the case of Additional Accounts, (i)
indicate in its computer files that the Eligible Receivables in the Accounts in
the Pool of Accounts have been sold and transferred, and the Collateral Security
assigned, to the Purchaser pursuant to this Agreement and that such property has
been sold and transferred to the Issuer pursuant to the Trust Sale and Servicing
Agreement and (ii) deliver to the Purchaser a true and complete list of all such
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Accounts specifying for each such Account, as of the Initial Cut-Off Date, in
the case of the Initial Accounts, and as of the applicable Additional Cut-Off
Date, in the case of Additional Accounts, its account number and the outstanding
principal balance of Eligible Receivables in such Account. Such list, as
supplemented from time to time to reflect Additional Accounts, Selected Accounts
and Removed Accounts (including Accounts removed as described in Section 2.05),
shall be the Schedule of Accounts and is hereby incorporated into and made a
part of this Agreement.
(e) The Servicer shall furnish to the Purchaser at any time
upon request a list of all Accounts then included in the Pool of Accounts,
together with a reconciliation of such list to the Schedule of Accounts as
initially furnished pursuant to the Trust Sale and Servicing Agreement and to
each notice furnished before such request indicating removal from or addition to
the Accounts in the Pool of Accounts.
SECTION 7.03. Costs and Expenses. GMAC agrees to pay all
reasonable out-of-pocket costs and expenses of the Purchaser, including fees and
expenses of counsel, in connection with the perfection as against third parties
of the Purchaser's right, title and interest in, to and under the Receivables
sold hereunder and the enforcement of any obligation of GMAC hereunder.
SECTION 7.04. GOVERNING LAW. THIS AGREEMENT SHALL BE CONSTRUED
IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK, WITHOUT REFERENCE
TO THE PRINCIPLES OF CONFLICTS OF LAW THEREOF OR OF ANY OTHER JURISDICTION, AND
THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE
DETERMINED IN ACCORDANCE WITH SUCH LAWS.
SECTION 7.05. Notices. All demands, notices and communications
upon or to GMAC, the Purchaser, or any other Person identified in Section 10.3
of the Trust Sale and Servicing Agreement under this Agreement shall be
delivered as specified in Appendix B to the Trust Sale and Servicing Agreement.
SECTION 7.06. Severability of Provisions. If any one or more
of the covenants, agreements, provisions or terms of this Agreement shall for
any reason whatsoever be held invalid, then such covenants, agreements,
provisions or terms shall be deemed enforceable to the fullest extent permitted,
and if not so permitted, shall be deemed severable from the remaining covenants,
agreements, provisions or terms of this Agreement and shall in no way affect the
validity or enforceability of the other provisions of this Agreement or of any
Securities or rights of any Interested Parties.
SECTION 7.07. Assignment. Notwithstanding anything to the
contrary contained herein, this Agreement may not be assigned by GMAC without
the prior written consent of the Purchaser and the Issuer. The Purchaser may
assign all or a portion of its rights, remedies, powers and privileges under
this Agreement to the Issuer pursuant to the Trust Sale and Servicing Agreement.
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SECTION 7.08. Further Assurances. GMAC and the Purchaser agree
to do and perform, from time to time, any and all acts and to execute any and
all further instruments required or reasonably requested by the other party to
more fully effect the purposes of this Agreement, including the execution of any
financing statements or continuation statements relating to the Receivables for
filing under the provisions of the Uniform Commercial Code of any applicable
jurisdiction and to evidence the repurchase of any interest in any Receivable by
GMAC or the Servicer.
SECTION 7.09. No Waiver; Cumulative Remedies. No failure or
delay on the part of the Purchaser in exercising any right, remedy, power or
privilege under this Agreement shall operate as a waiver thereof; nor shall any
single or partial exercise of any right, remedy, power or privilege under this
Agreement preclude any other or further exercise thereof or the exercise of any
other right, remedy, power or privilege. The rights, remedies, powers and
privileges herein provided are cumulative and not exhaustive of any rights,
remedies, powers and privileges provided by law.
SECTION 7.10. Counterparts. This Agreement may be executed in
two or more counterparts (and by different parties on separate counterparts),
each of which shall be an original, but all of which together shall constitute
one and the same instrument.
SECTION 7.11. Third-Party Beneficiaries. This Agreement shall
inure to the benefit of and be binding upon the parties hereto, the Interested
Parties and their respective successors and permitted assigns. Except as
otherwise expressly provided in this Agreement, no other Person shall have any
right or obligation hereunder.
SECTION 7.12. Merger and Integration. Except as specifically
stated otherwise herein, this Agreement sets forth the entire understanding of
the parties relating to the subject matter hereof, and all prior understandings,
written or oral, are superseded by this Agreement. This Agreement may not be
modified, amended, waived, or supplemented except as provided herein.
SECTION 7.13. Confidential Information. The Purchaser agrees
that it shall neither use nor disclose to any Person the names and addresses of
Dealers, except in connection with the enforcement of the Purchaser's rights
hereunder, under the Trust Sale and Servicing Agreement, under the Receivables
or as required by law.
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SECTION 7.14. Headings. The headings herein are for purposes
of reference only and shall not otherwise affect the meaning or interpretation
of any provision hereof.
SECTION 7.15. Termination. This Agreement (except for Section
5.02) shall terminate immediately after the termination of the Trust Sale and
Servicing Agreement; provided, that if at the time of the termination of the
Trust Sale and Servicing Agreement, the Purchaser has not made all payments to
GMAC required to be made under Section 6.01, this Agreement (except for Section
5.02) shall not terminate until immediately after all such payments have been
made.
SECTION 7.16. No Petition Covenants. Notwithstanding any prior
termination of this Agreement, GMAC shall not, prior to the date which is one
year and one day after the final distribution with respect to the Securities to
the Note Distribution Account, the Revolver Distribution Account or the
Certificate Distribution Account, as applicable, acquiesce, petition or
otherwise invoke or cause the Purchaser to invoke the process of any court or
governmental authority for the purpose of commencing or sustaining a case
against the Purchaser under any federal or state bankruptcy, insolvency or
similar law or appointing a receiver, liquidator, assignee, trustee, custodian,
sequestrator or other similar official of the Purchaser or any substantial part
of its property, or ordering the winding up or liquidation of the affairs of the
Purchaser.
* * * *
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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.
GENERAL MOTORS ACCEPTANCE CORPORATION,
Seller and Servicer
By:
-------------------------------------
Name: X.X. Xxxxxx
Title: Director - U.S. Funding &
Securitization
WHOLESALE AUTO RECEIVABLES CORPORATION,
Purchaser
By:
-------------------------------------
Name: X.X. Xxxx
Title: Manager - Securitization
28
EXHIBIT A
LIST OF LOCATIONS OF THE
SCHEDULE OF ACCOUNTS
The Schedule of Accounts is
on file at the offices of:
1. The Indenture Trustee
2. The Owner Trustee
3. General Motors Acceptance Corporation
4. Wholesale Auto Receivables Corporation
29
EXHIBIT B
FORM OF ASSIGNMENT FOR INITIAL CLOSING DATE
For value received, in accordance with the Pooling and
Servicing Agreement, dated as of May 18, 1999 (the "Pooling and Servicing
Agreement"), between General Motors Acceptance Corporation, a Delaware
corporation ("GMAC"), and Wholesale Auto Receivables Corporation, a Delaware
corporation (the "Purchaser"), GMAC does hereby sell, assign, transfer and
otherwise convey unto the Purchaser, without recourse, all of its right, title
and interest in, to and under all of the Eligible Receivables existing in the
Accounts listed in the Schedule of Accounts as of the close of business on the
Initial Cut-Off Date and, so long as each such Account is included in the Pool
of Accounts, all Eligible Receivables created or deemed created thereunder on
each Receivables Purchase Date and all monies due or to become due thereon after
the Initial Cut-Off Date or such Receivables Purchase Date, as appropriate, all
Collateral Security with respect thereto and all amounts received with respect
thereto and all proceeds thereof (including "proceeds" as defined in Section
9-306 of the UCC and Recoveries).
The foregoing sale, transfer, assignment and conveyance and
any sales, transfers, assignments and conveyances subsequent to the date hereof
do not constitute, and are not intended to result in, the creation or an
assumption by the Purchaser of any obligation of the Servicer, GMAC (if GMAC is
not the Servicer), General Motors or any other Person in connection with the
Accounts, the Receivables or under any agreement or instrument relating thereto,
including any obligation to any Dealers.
It is the intention of GMAC and the Purchaser that the
transfers and assignments contemplated by this Assignment, including transfers
and assignments subsequent to the date hereof, shall constitute a sale of the
property described herein and in the Pooling and Servicing Agreement from GMAC
to the Purchaser and the beneficial interest in and title to such property shall
not be part of GMAC's estate in the event of the filing of a bankruptcy petition
by or against GMAC under any bankruptcy law.
This Assignment is made pursuant to and upon the
representations, warranties and agreements on the part of the undersigned
contained in the Pooling and Servicing Agreement and is to be governed by the
Pooling and Servicing Agreement.
Capitalized terms used herein and not otherwise defined shall
have the meaning assigned to them in the Pooling and Servicing Agreement.
* * * * *
30
IN WITNESS WHEREOF, the undersigned has caused this Assignment
to be duly executed as of May 18, 1999.
GENERAL MOTORS ACCEPTANCE CORPORATION
By:
----------------------------------------
Name: X.X. Xxxxxx
Director - U.S. Funding & Securitization
Title: Vice President
31
EXHIBIT C
FORM OF ASSIGNMENT FOR EACH ADDITION DATE
For value received, in accordance with the Pooling and
Servicing Agreement, dated as of May 18, 1999 (the "Pooling and Servicing
Agreement"), between General Motors Acceptance Corporation, a Delaware
corporation ("GMAC"), and Wholesale Auto Receivables Corporation, a Delaware
corporation (the "Purchaser"), GMAC does hereby sell, assign, transfer and
otherwise convey unto the Purchaser, without recourse, with respect to the
Additional Accounts to which this Assignment relates, all of its right, title
and interest in, to and under all of the Eligible Receivables as of the close of
business on the related Additional Cut-Off Date in such Additional Accounts and,
so long as each such Account is included in the Pool of Accounts, all Eligible
Receivables created or deemed created thereunder on each Receivables Purchase
Date and all monies due or to become due thereon after such Additional Cut-Off
Date or such Receivables Purchase Date, as appropriate, all Collateral Security
with respect thereto and all amounts received with respect thereto and all
proceeds thereof (including "proceeds" as defined in Section 9-306 of the UCC
and Recoveries).
The foregoing sale, transfer, assignment and conveyance and
any sales, transfers, assignments and conveyances subsequent to the date hereof
do not constitute, and are not intended to result in, the creation or an
assumption by the Purchaser of any obligation of the Servicer, GMAC (if GMAC is
not the Servicer), General Motors or any other Person in connection with the
Accounts, the Receivables or under any agreement or instrument relating thereto,
including any obligation to any Dealers.
It is the intention of GMAC and the Purchaser that the
transfers and assignments contemplated by this Assignment, including transfers
and assignments subsequent to the date hereof, shall constitute a sale of the
property described herein and in the Pooling and Servicing Agreement from GMAC
to the Purchaser and the beneficial interest in and title to such property shall
not be part of GMAC's estate in the event of the filing of a bankruptcy petition
by or against GMAC under any bankruptcy law.
This Assignment is made pursuant to and upon the
representations, warranties and agreements on the part of the undersigned
contained in the Pooling and Servicing Agreement and is to be governed by the
Pooling and Servicing Agreement.
Capitalized terms used herein and not otherwise defined shall
have the meaning assigned to them in the Pooling and Servicing Agreement.
* * * * *
32
IN WITNESS WHEREOF, the undersigned has caused this Assignment
to be duly executed as of , .
-------- ----
GENERAL MOTORS ACCEPTANCE CORPORATION
By:
------------------------------------
Name:
Title:
33
EXHIBIT D
FORM OF OPINION OF COUNSEL
WITH RESPECT TO ADDITION OF ACCOUNTS
Provision to be Included in Opinion of Counsel
Delivered Pursuant to Section 2.03(b)(viii)
of the Pooling and Servicing Agreement
The opinion set forth below may be subject to standard
qualifications, assumptions, limitations and exceptions.
The Assignment delivered on the Addition Date has
been duly authorized, executed and delivered by GMAC, and constitutes
the valid and legally binding obligation of GMAC, enforceable against
GMAC in accordance with its terms.
34
APPENDIX A
PART I
For ease of reference, capitalized terms defined herein have
been consolidated with and are contained in Appendix A to the Trust Sale and
Servicing Agreement of even date herewith among GMAC, Wholesale Auto Receivables
Corporation and Superior Wholesale Inventory Financing Trust V.
PART II
For ease of reference, the rules of construction have been
consolidated with and are contained in Part II of Appendix A to the Trust Sale
and Servicing Agreement of even date herewith among GMAC, Wholesale Auto
Receivables Corporation and Superior Wholesale Inventory Financing Trust V.
PART III
For ease of reference, the notice address and procedures have
been consolidated with and are contained in Part II of Appendix B to the Trust
Sale and Servicing Agreement of even date herewith among GMAC, Wholesale Auto
Receivables Corporation and Superior Wholesale Inventory Financing Trust V.
