EXHIBIT 99.3
POOLING AND SERVICING AGREEMENT
BETWEEN
GENERAL MOTORS ACCEPTANCE CORPORATION
SELLER AND SERVICER
AND
WHOLESALE AUTO RECEIVABLES CORPORATION
PURCHASER
DATED AS OF MARCH 15, 2001
Superior Wholesale Inventory Financing Trust VII
TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS..............................................................................................1
SECTION 1.01. Definitions...........................................................1
ARTICLE II
PURCHASE AND SALE OF ELIGIBLE RECEIVABLES................................................................2
SECTION 2.01. Purchase and Sale of Eligible Receivables.............................2
SECTION 2.02. Purchase Price........................................................2
SECTION 2.03. Addition of Accounts..................................................3
SECTION 2.04. Optional Removal of Accounts..........................................4
SECTION 2.05. Removal of Ineligible Accounts........................................4
SECTION 2.06. Custody of Documentation..............................................5
ARTICLE III
ADMINISTRATION AND SERVICING OF RECEIVABLES..............................................................5
SECTION 3.01. Appointment of Servicer and Acceptance of Appointment.................5
SECTION 3.02. Rights and Duties of the Servicer.....................................5
SECTION 3.03. Servicing Compensation; Payment of Certain Expenses by the
Servicer......................................................................7
SECTION 3.04. Representations, Warranties and Covenants of the Servicer.............7
SECTION 3.05. Servicer's Accounting and Reports....................................10
SECTION 3.06. Pre-Closing Collections..............................................11
SECTION 3.07. Collections Received by GMAC.........................................11
ARTICLE IV
REPRESENTATIONS, WARRANTIES AND COVENANTS...............................................................11
SECTION 4.01. Representations and Warranties of GMAC Relating to the
Accounts and the Receivables.................................................11
SECTION 4.02. Representations and Warranties of GMAC Relating to GMAC
and the Agreement............................................................13
SECTION 4.03. Representations and Warranties of the Purchaser......................15
SECTION 4.04. Covenants of GMAC....................................................16
ARTICLE V
CERTAIN MATTERS RELATING TO GMAC........................................................................17
SECTION 5.01. Merger or Consolidation of, or Assumption of the Obligations
of, GMAC.....................................................................17
SECTION 5.02. GMAC Indemnification of the Purchaser................................17
SECTION 5.03. GMAC Acknowledgment of Transfers to the Issuer.......................17
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ARTICLE VI
ADDITIONAL AGREEMENTS...................................................................................17
SECTION 6.01. Additional Obligations of GMAC and the Purchaser.....................17
SECTION 6.02. Effect of Involuntary Case Involving GMAC............................18
SECTION 6.03. Intercreditor Agreements.............................................19
ARTICLE VII
MISCELLANEOUS PROVISIONS................................................................................20
SECTION 7.01. Amendment............................................................20
SECTION 7.02. Protection of Right, Title and Interest in and to Receivables........20
SECTION 7.03. Costs and Expenses...................................................21
SECTION 7.04. GOVERNING LAW........................................................21
SECTION 7.05. Notices..............................................................21
SECTION 7.06. Severability of Provisions...........................................21
SECTION 7.07. Assignment...........................................................21
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.............................................................22
SECTION 7.15. Termination..........................................................22
SECTION 7.16. No Petition Covenants................................................22
SECTION 7.17. Jurisdiction.........................................................23
EXHIBIT A List of Locations of the Schedule of Accounts
EXHIBIT B Form of Assignment for the Initial Closing Date
EXHIBIT C Form of Assignment for Each Addition Date
EXHIBIT D Form of Opinion of Counsel With Respect to Addition of Accounts
APPENDIX A Definitions and Rules of Construction
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THIS POOLING AND SERVICING AGREEMENT is made as of March 15, 2001, 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 VII (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.
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 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 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 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 $2,875,000,000 (representing the aggregate principal
balance of the Eligible Receivables as
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of the close of business on the Initial Cut-Off Date so sold on the Initial
Closing Date) in immediately available funds, and GMAC shall deliver to the
Purchaser an executed assignment substantially in the form of Exhibit B hereto.
The Purchaser shall pay, subject to Section 6.02, for property described in
Section 2.03 sold by GMAC to the Purchaser on each Addition Date and property
described in Section 2.01(b) sold by GMAC to the Purchaser on each Receivables
Purchase Date, a price equal to the principal balance of the Eligible
Receivables to be purchased on each such date. Such purchase price shall be
payable by the Purchaser on each such date in immediately available funds.
SECTION 2.03. Addition of Accounts.
(a) Offers to Designate Additional Accounts. From time to time, GMAC may,
at its option, offer to designate and the Purchaser may, at its option, request
the designation of, one or more Accounts (each, an "Additional Account") to be
included as Accounts in the Pool of Accounts, subject to the conditions
specified in Section 2.03(b) below. If the Purchaser, at its option, elects to
accept any such offer by GMAC or if GMAC, at its option, agrees to any such
request of the Purchaser, GMAC shall sell and assign to the Purchaser, and the
Purchaser shall purchase from GMAC, all of GMAC's right, title and interest in,
to and under all of the Eligible Receivables in each such Additional Account as
of the related Additional Cut-Off Date and all monies due or to become due
thereon after such date, all Collateral Security with respect thereto, all
amounts received with respect thereto and all proceeds thereof (including
"proceeds" as defined in the UCC and Recoveries), effective as of the Addition
Date specified in a written notice provided by the Servicer, on behalf of GMAC,
to the Purchaser (the "GMAC Addition Notice"). Effective as of each such
Addition Date, such Additional Account shall be included in the Pool of Accounts
and Eligible Receivables arising therein from and after the Additional Cut-Off
Date shall be subject to purchase under Section 2.01(b) above. Each GMAC
Addition Notice shall specify the related Additional Cut-Off Date and shall be
given (with a copy to the Rating Agencies) on or before the fifth Business Day
but not more than 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
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Collections with respect to the Eligible Receivables arising in such
Additional Accounts since the Additional Cut-Off Date within two Business
Days after such Addition Date;
(iv) as of the Addition Date, neither GMAC nor the Purchaser is
insolvent nor shall any of them have been made insolvent by such transfer
nor is either of them aware of any pending insolvency;
(v) the Schedule of Accounts shall have been amended to reflect such
Additional Accounts and the Schedule of Accounts as so amended shall be
true and correct as of the Addition Date;
(vi) GMAC shall have delivered to the Purchaser a certificate of an
Authorized Officer of GMAC confirming the items set forth in clauses (i)
through (v) above;
(vii) the conditions set forth in Section 2.7(b) of the Trust Sale and
Servicing Agreement shall have been satisfied; and
(viii) GMAC shall have delivered to the Purchaser an Opinion of
Counsel of GMAC substantially in the form of Exhibit D.
SECTION 2.04. Optional Removal of Accounts. From time to time, GMAC may, at
its option, request from the Purchaser, and the Purchaser may, at its option,
offer to GMAC, the right to designate an Account for removal from the Pool of
Accounts. Subject to the satisfaction by the Purchaser of the conditions set
forth in Section 2.8 of the Trust Sale and Servicing Agreement, GMAC, at its
option, may accept offers to designate an Account for removal or request from
the Purchaser the right to designate an Account for removal by furnishing a
written notice (the "GMAC Removal Notice") to the Purchaser not less than five
Business Days but not more than 30 days prior to the Removal Commencement Date.
On and after the Removal Commencement Date with respect to a Randomly Selected
Account, GMAC shall not transfer Receivables with respect to such Randomly
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 Randomly 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 Randomly Selected
Account pursuant to such Section 2.9, GMAC shall not transfer Receivables with
respect to such Randomly 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
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recourse, representation or warranty, effective as of the Removal Date, all of
the Purchaser's right, title and interest in, to and under the Receivables in
such Account and related Collateral Security.
SECTION 2.06. Custody of Documentation. In connection with the sale,
transfer, assignment and conveyance of the Receivables and related Collateral
Security in the Accounts in the Pool of Accounts to the Purchaser hereunder, the
Purchaser is executing simultaneously herewith the Custodian Agreement with the
Custodian, pursuant to which the Purchaser shall revocably appoint the Custodian
to act as agent of the Purchaser to maintain custody of the documents and
instruments (as more fully described in the Custodian Agreement) associated with
such Receivables, which shall be constructively delivered to the Purchaser.
GMAC, as the holder of the Retained Property, hereby consents to the appointment
of the Custodian to act as agent of GMAC to maintain custody of the documents
and contracts (as more fully described in the Custodian Agreement) associated
with the Receivables included therein and is simultaneously herewith executing
the Custodian Agreement. The Custodian has accepted such appointment by the
Purchaser and GMAC under the Custodian Agreement.
ARTICLE III
ADMINISTRATION AND SERVICING OF RECEIVABLES
SECTION 3.01. Appointment of Servicer and Acceptance of Appointment. The
Purchaser and GMAC hereby appoint the Servicer to act as Servicer with respect
to the Eligible Receivables and the Receivables included in the Retained
Property, existing in or arising under the Accounts included in the Pool of
Accounts from time to time and authorize the Servicer to perform the duties of
Servicer under this Agreement and under the Trust Sale and Servicing Agreement.
The Servicer by execution of this Agreement and by execution of the Trust Sale
and Servicing Agreement hereby accepts such appointment and the terms hereof and
thereof.
SECTION 3.02. Rights and Duties of the Servicer.
(a) The Servicer shall manage, service and administer the Receivables
described in Section 3.01, including, without limitation, collecting payments
due under the Receivables and providing for charge-offs of uncollectible
Receivables, with reasonable care and all in accordance with the Servicer's
customary and usual servicing procedures for servicing wholesale receivables
comparable to the Receivables which the Servicer services for its own account,
including the Floor Plan Financing Guidelines, except insofar as any failure to
do so would not have a material adverse effect on the interests of
Securityholders. The Servicer shall have full power and authority, acting alone
or through any party properly designated by it hereunder or under the Trust Sale
and Servicing Agreement, to do any and all things in connection with such
servicing and administration which it may deem necessary or desirable, including
monitoring the insurance maintained by Dealers. The Servicer is hereby
authorized to commence, in its own name or in the name of any Interested Party,
a Proceeding to enforce any Receivable subject hereto, to enforce all
obligations of GMAC and the Purchaser under this Agreement and under the Trust
Sale and Servicing Agreement or to commence or participate in a Proceeding
(including without limitation a bankruptcy proceeding) relating to or involving
any such Receivable. If in any Proceeding it is held that the Servicer may not
enforce a
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Receivable arising under an Account in the Pool of Accounts on the ground that
it is not a real party in interest or a holder entitled to enforce such
Receivable, the Purchaser, GMAC and each other Interested Party shall, at the
Servicer's expense, take such steps as the Servicer reasonably deems necessary
or appropriate to enforce the Receivable, including bringing suit in the name of
such Person. If the Servicer commences or participates in such a Proceeding in
its own name, each Interested Party shall thereupon be deemed to have
automatically assigned such Receivable to the Servicer for purposes of
commencing or participating in any such Proceeding as a party or claimant, and
the Servicer is hereby authorized and empowered to execute and deliver in the
Servicer's name any notices, demands, claims, complaints, responses, affidavits
or other documents or instruments in connection with any such Proceeding. Each
Interested Party shall furnish the Servicer with any powers of attorney and
other documents and take any other steps which the Servicer may reasonably deem
necessary or appropriate to enable the Servicer to carry out its servicing and
administrative duties under this Agreement and the Trust Sale and Servicing
Agreement. Except to the extent required by the preceding two sentences, the
authority and rights granted to the Servicer in this Section 3.02 shall be
nonexclusive and shall not be construed to be in derogation of the retention by
any Interested Party (to the extent of its rights in a Receivable) of equivalent
authority and rights. Without limiting the generality of the foregoing and
subject to any Servicing Default, the Servicer is hereby authorized and
empowered, unless such power and authority is revoked by any Interested Party on
account of the occurrence of such a Servicing Default, to:
(i) instruct the Issuer to make allocations, withdrawals and payments
to or from the Collection Account, the Distribution Accounts, the Reserve
Fund, the Cash Accumulation Reserve Funds 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 U.S. Securities and
Exchange Commission and any State securities authority on behalf of the
Issuer 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
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
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of Additional Accounts, indicate in its computer files that the Eligible
Receivables in the Accounts in the Pool of Accounts have been sold and
transferred by GMAC to the Purchaser hereunder and by the Purchaser to the Trust
under the Trust Sale and Servicing Agreement.
(c) Except as otherwise required to comply with all Requirements of Law,
the Servicer may change the terms and provisions of the Floor Plan Financing
Agreements or the Floor Plan Financing Guidelines in any respect (including the
calculation of the amount or the timing of charge-offs and the rate of the
finance charge assessed thereon), only if:
(i) in the reasonable belief of the Servicer, no Early Amortization
Event shall occur as a result of such change;
(ii) such change is made applicable to the comparable segment of any
similar portfolio of accounts serviced by the Servicer and not only to the
Accounts in the Pool of Accounts; and
(iii) in the case of a reduction in the rate of such finance charges,
the Servicer (and, if GMAC is not then the Servicer, GMAC) does not
reasonably expect any such reduction, after considering amounts due and
amounts payable under any Specified Support Agreements and Investment
Proceeds for the related period, to result in the Net Receivables Rate for
any Collection Period being less than the sum of (A) the weighted average
of the rates of interest payable to all holders of Securities and (B) the
Monthly Servicing Fee for the related period;
provided, however, that nothing herein shall prevent the Servicer from modifying
the terms of the Floor Plan Financing Agreement with any dealer on a
case-by-case basis in a manner consistent with the Floor Plan Financing
Guidelines.
SECTION 3.03. Servicing Compensation; Payment of Certain Expenses by the
Servicer. The Servicer is entitled to receive the Monthly Servicing Fee as
described in the Trust Sale and Servicing Agreement. The Monthly Servicing Fee
shall be payable to the Servicer solely to the extent amounts are available for
payment in accordance with the terms of the Trust Sale and Servicing Agreement.
Subject to any limitations on the Servicer's liability under the Trust Sale and
Servicing Agreement, the Servicer shall be required to pay all expenses incurred
by it in connection with its activities under this Agreement and the Trust Sale
and Servicing Agreement (including disbursements of the Issuer, fees and
disbursements of any trustees, accountants and outside auditors, taxes imposed
on the Servicer, expenses incurred in connection with distributions and reports
to 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.
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(a) The Servicer hereby makes, and any successor Servicer by its
appointment under this Agreement and under the Trust Sale and Servicing
Agreement shall make, on each Closing Date (and on the date of any such
appointment) the following representations, warranties and covenants on which
the Purchaser relies in accepting and holding the Receivables and the related
Collateral Security hereunder and the Issuer shall rely in acquiring and holding
such Receivables and the related Collateral Security under the Trust Sale and
Servicing Agreement and in issuing the Securities:
(i) Organization and Good Standing. The Servicer has been duly
organized and is validly existing as a corporation in good standing under
the 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
8
a party or by which it is bound, or result in the creation or imposition of
any Lien upon any of its properties pursuant to the terms of any such
indenture, agreement, mortgage, deed of trust or other instrument (other
than pursuant to the Basic Documents), or violate any law or, to the best
of the Servicer's knowledge, any order, rule or regulation applicable to
the Servicer of any Governmental Authority having jurisdiction over the
Servicer or any of its properties, except where any such conflict or
violation would not have a material adverse effect on its ability to
perform its obligations under this Agreement or the Trust Sale and
Servicing Agreement.
(vi) No Proceedings. To the Servicer's knowledge, there are no
Proceedings or investigations pending, or threatened, against the Servicer
before any Governmental Authority having jurisdiction over the Servicer or
its properties (A) asserting the invalidity of this Agreement or the Trust
Sale and Servicing Agreement or any Securities issued thereunder, (B)
seeking to prevent the issuance of the such Securities, the execution of
this Agreement or the consummation of any of the transactions contemplated
by this Agreement or the Trust Sale and Servicing Agreement or (C) seeking
any determination or ruling that might materially and adversely affect the
performance by the Servicer of its obligations under, or the validity and
enforceability of, this Agreement or the Trust Sale and Servicing
Agreement.
(vii) Compliance with Requirements of Law. The Servicer shall duly
satisfy all obligations on its part to be fulfilled under or in connection
with the Receivables and the Accounts to be serviced under this Agreement
and the Trust Sale and Servicing Agreement, shall maintain in effect all
qualifications required under Requirements of Law in order to service
properly such Receivables and such Accounts and shall comply in all
material respects with all Requirements of Law in connection with servicing
such Receivables and such Accounts, except, in each case, where a failure
to do so would not have a material adverse effect on the interests of the
Securityholders.
(viii) No Rescission or Cancellation. Except pursuant to the Floor
Plan Financing Guidelines, the Servicer shall not permit any rescission or
cancellation of any Receivable sold and assigned to the Purchaser hereunder
that the Servicer services under this Agreement and the Trust Sale and
Servicing Agreement, except as ordered by a court of competent jurisdiction
or other Governmental Authority.
(ix) Protection of Interested Party Rights. The Servicer shall take no
action, nor omit to take any action, which would impair the rights or
interests of Interested Parties in the Receivables sold and assigned to the
Purchaser hereunder that the Servicer services under this Agreement and the
Trust Sale and Servicing Agreement or in the related Vehicle Collateral
Security nor shall it reschedule, revise or defer payments due on any such
Receivable except, in each case, in a manner consistent with the Floor Plan
Financing Guidelines or as otherwise contemplated herein or in the Trust
Sale and Servicing Agreement. The Servicer shall not permit any such
Receivable to become subject to any right of set-off or any offsetting
balance.
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(x) Negative Pledge. Except for the conveyances hereunder to the
Issuer pursuant to the Trust Sale and Servicing Agreement and the pledge of
the Trust Estate to the Indenture Trustee pursuant to the Indenture, and as
provided in Section 6.03, the Servicer shall not sell, pledge, assign or
transfer to any other Person, or grant, create, incur, assume or suffer to
exist, any Lien on any Receivable sold and assigned to the Purchaser
hereunder (and any related Collateral Security), whether now existing or
hereafter created, or any interest therein, and the Servicer shall defend
the right, title and interest of the Purchaser, the Issuer and any
Interested Party in, to and under such property, whether now existing or
hereafter created, against all claims of third parties claiming through or
under the Purchaser or the Servicer. The Servicer shall notify the
Purchaser promptly after becoming aware of any Lien on such property other
than the conveyances hereunder or under the Trust Sale and Servicing
Agreement or the Indenture.
(b) Notice of Breach. Upon discovery by the Purchaser or the Servicer of a
breach of any of the representations, warranties and covenants set forth in this
Section 3.04, the party discovering such breach shall give prompt written notice
to the other 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.
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SECTION 3.05. Servicer's Accounting and Reports.
(a) On or before each Determination Date, the Servicer shall deliver to the
Purchaser, the Owner Trustee, the Indenture Trustee and the Rating Agencies a
Servicer's Accounting with respect to the immediately preceding Collection
Period executed by an Authorized Officer of the Servicer containing all
information necessary for making the allocations, deposits and distributions
required by the Trust Sale and Servicing Agreement, the Trust Agreement and the
Indenture on the related Distribution Date, and all information necessary to
each such party for sending any statements required to be sent to
Securityholders with respect to such Distribution Date under the Trust Sale and
Servicing Agreement.
(b) On each Business Day, the Servicer shall deliver to the Indenture
Trustee a Servicer's Accounting executed by an Authorized Officer of the
Servicer (i) 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 and (ii) if any series or class of Securities is then in a
Payment Period, Cash Accumulation Period or Rapid Amortization Period, or if the
Trust is then in an Early Amortization Period or a Wind-Down period, containing
such instructions and computations as are necessary to effect the allocation and
application of Principal Collections and other Available Trust Principal on such
day.
(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.
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ARTICLE IV
REPRESENTATIONS, WARRANTIES AND COVENANTS
SECTION 4.01. Representations and Warranties of GMAC Relating to the
Accounts and the Receivables.
(a) Representations and Warranties. As of the dates set forth below, GMAC
makes the following representations and warranties to the Purchaser as to the
Accounts in the Pool of Accounts and the Receivables sold to the Purchaser
hereunder, on which the Purchaser relies in accepting such Receivables:
(i) as of the Initial Cut-Off Date, each Account included in the Pool
of Accounts is an Eligible Account;
(ii) as of the Initial Cut-Off Date, each Receivable that is
identified as an Eligible Receivable and conveyed to the Purchaser on the
Initial Closing Date is an Eligible Receivable;
(iii) as of each Additional Cut-Off Date, each related Additional
Account is an Eligible Account and each Receivable arising thereunder that
is identified as an Eligible Receivable and conveyed to the Purchaser on
the related Addition Date is an Eligible Receivable; and
(iv) as of each date that Receivables are sold and transferred
hereunder pursuant to Section 2.01(b), each Receivable that is identified
as an Eligible Receivable and so conveyed to the Purchaser on such date is
an Eligible Receivable.
(b) Survival; Notice of Breach. The representations and warranties set
forth in this Section 4.01 shall survive the transfer and assignment of the
Eligible Receivables in the Accounts in the Pool of Accounts and related items
to the Purchaser from time to time and the subsequent assignment and transfer of
its interests therein to the Issuer pursuant to the Trust Sale and Servicing
Agreement. Upon discovery by GMAC or the Purchaser of a breach of any of the
representations and warranties set forth in this Section 4.01, the party
discovering such breach shall give prompt written notice to the other party.
(c) Repurchase. GMAC acknowledges that the Purchaser shall assign its
rights and remedies hereunder with respect to the Eligible Receivables arising
in the Accounts in the Pool of Accounts to the Issuer under the Trust Sale and
Servicing Agreement. GMAC hereby covenants and agrees with the Purchaser that
(i) in the event of a breach of any of GMAC's representations and warranties
contained in Section 4.01(a) with respect to any Receivable or with respect to
any Account that materially and adversely affects the interests of the Purchaser
or the Trust in any Receivable or (ii) in the event that the payment of all or a
portion of the principal amount of any Receivable held by the Purchaser or the
Trust is deferred pursuant to DPP 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
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Receivable (to the extent of such breach or deferral) on the date and for the
amount specified in Section 2.5 of the Trust Sale and Servicing Agreement,
without further notice from the Purchaser hereunder and without any
representation, warranty or recourse from the Purchaser or the Issuer. Without
limiting the generality of the foregoing, a Receivable shall not be an Eligible
Receivable, and thus shall be subject to repurchase, if and to the extent that,
(A) the Servicer adjusts downward the principal amount of such Receivable
because of a rebate, refund, credit adjustment or billing error to the related
Dealer or (B) such Receivable was created in respect of a Vehicle which was
refused or returned by the related Dealer.
(d) Sole Remedy. The obligation of GMAC to repurchase any Receivable shall
constitute the sole remedy respecting the event giving rise to such obligation
available to the Purchaser and to any Interested Party.
SECTION 4.02. Representations and Warranties of GMAC Relating to GMAC and
the Agreement.
(a) Representations and Warranties. GMAC, in its capacity as seller, hereby
makes as of each Closing Date the following representations and warranties on
which the Purchaser relies. The following representations and warranties shall
survive the sale, transfer and assignment of the Receivables hereunder:
(i) Organization and Good Standing. GMAC has been duly organized and
is validly existing as a corporation in good standing under the 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
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bound, or result in the creation or imposition of any Lien upon any of its
properties pursuant to the terms of any such indenture, agreement,
mortgage, deed of trust or other instrument (other than pursuant to the
Basic Documents) or violate any law or, to the best of GMAC's knowledge,
any order, rule or regulation applicable to GMAC of any Governmental
Authority having jurisdiction over GMAC or any of its properties, except
where any such conflict or violation would not have a material adverse
effect on its ability to perform its obligations with respect to the
Purchaser or any Interested Party under this Agreement or the Trust Sale
and Servicing Agreement;
(v) No Proceedings. To GMAC's knowledge, there are no Proceedings or
investigations pending, or threatened, against GMAC before any Governmental
Authority having jurisdiction over GMAC or its properties (A) asserting the
invalidity of this Agreement, the Trust Sale and Servicing Agreement, the
Custodian Agreement or the Administration Agreement, (B) seeking to prevent
the execution of this Agreement or the consummation of any of the
transactions contemplated by this Agreement, the Trust Sale and Servicing
Agreement, the Custodian Agreement or the Administration Agreement or (C)
seeking any determination or ruling that might materially and adversely
affect the performance by GMAC of its obligations under, or the validity or
enforceability of, this Agreement, the Trust Sale and Servicing Agreement,
the Custodian Agreement or the Administration Agreement;
(vi) Binding Obligation. This Agreement constitutes a legal, valid and
binding obligation of GMAC, enforceable against GMAC in accordance with its
terms, except as such enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or other similar laws
now or hereafter in effect affecting the enforcement of creditors' rights
in general and by general principles of equity, regardless of whether such
enforceability is considered in a proceeding in equity or at law;
(vii) Record of Accounts. The Schedule of Accounts is an accurate and
complete listing in all material respects of all of the Accounts in the
Pool of Accounts as of the Initial Cut-Off Date or the applicable
Additional Cut-Off Date, as the case may be, and the information contained
therein with respect to the identity of such Accounts is true and correct
in all material respects; and
(viii) Valid Sale. With respect to the Initial Accounts, this
Agreement and the related assignment to be delivered on the Initial Closing
Date or, in the case of Additional Accounts, the related assignment as
described in Section 2.03(b), when duly executed and delivered, shall
constitute a valid sale, transfer and assignment to the Purchaser of all
right, title and interest of GMAC in, to and under the Eligible Receivables
thereunder and the related Vehicle Collateral Security, whether then
existing or thereafter created, and the proceeds thereof, enforceable
against creditors of and purchasers from GMAC. To the extent such filings
are required therefor, upon the filing of the financing statements
described in Section 7.02(a) (and, in the case of Eligible Receivables
hereafter created in the Accounts in the Pool of Accounts and the proceeds
thereof, upon the creation thereof) the Purchaser shall have a first
priority perfected ownership interest in such property, except for Liens
14
permitted under Section 4.04(a). Except as otherwise provided in the Trust
Sale and Servicing Agreement or this Agreement, neither General Motors,
GMAC nor any Person claiming through or under General Motors or GMAC has
any claim to or interest in the Trust Estate.
(b) Survival; Notice of Breach. The representations and warranties set
forth in this Section 4.02 shall survive the transfer and assignment of the
Receivables and related items to the Purchaser hereunder and the subsequent
assignment and transfer of its interests therein to the Issuer pursuant to the
Trust Sale and Servicing Agreement. Upon discovery by GMAC or the Purchaser of a
breach of any of the foregoing representations and warranties, the party
discovering such breach shall give prompt written notice to the other party.
(c) Repurchase. If (i) the Purchaser is required to purchase Receivables
and related Collateral Security pursuant to Section 3.1(c) of the Trust Sale and
Servicing Agreement and (ii) the condition giving rise to such purchase
obligation shall also constitute a breach of a representation or warranty
pursuant to Section 4.02(a), GMAC shall repurchase such Receivables and such
Collateral Security and shall pay to the Purchaser, prior to the time the
Purchaser is required to pay such amount pursuant to the Trust Sale and
Servicing Agreement, an amount equal to the Reassignment Amount.
(d) Sole Remedy. The obligation of GMAC to purchase such Receivables and
such Collateral Security pursuant to this Section 4.02 shall constitute the sole
remedy available to the Purchaser and to any Interested Party against GMAC
respecting the event giving rise to such obligation.
SECTION 4.03. Representations and Warranties of the Purchaser. The
Purchaser hereby represents and warrants to GMAC as of each Closing Date that:
(a) Organization and Good Standing. The Purchaser has been duly organized
and is validly existing as a corporation in good standing under the laws of the
State of Delaware, with power and authority to own its properties and to conduct
its business as such properties are presently owned and such business is
presently conducted, and had at all relevant times, and now has, power,
authority and legal right to acquire and own the Eligible Receivables arising in
the Accounts in the Pool of Accounts and the Collateral Security related
thereto;
(b) Due Qualification. The Purchaser is duly qualified to do business and,
where necessary, is in good standing as a foreign corporation (or is exempt from
such requirement) and has obtained all necessary licenses and approvals in all
jurisdictions in which the ownership or lease of property or the conduct of its
business requires such qualification, except where the failure to so qualify or
obtain licenses or approvals would not have a material adverse effect on its
ability to perform its obligations under this Agreement;
(c) Power and Authority. The Purchaser has the power and authority to
execute and deliver this Agreement, to carry out its terms and to consummate the
transactions contemplated herein, and the execution, delivery and performance of
this Agreement and the consummation of the
15
transactions contemplated herein have been duly authorized by the Purchaser by
all necessary corporate action on the part of the Purchaser;
(d) No Violation. The execution of this Agreement and the consummation of
the transactions contemplated by this Agreement by the Purchaser and the
fulfillment of the terms of this Agreement by the Purchaser shall not conflict
with, result in any breach of any of the terms and provisions of or constitute
(with or without notice or lapse of time) a default under, the certificate of
incorporation or by-laws of the Purchaser, or any indenture, agreement,
mortgage, deed of trust or other instrument to which the Purchaser is a party or
by which it is bound, or result in the creation or imposition of any Lien upon
any of its properties pursuant to the terms of any such indenture, agreement,
mortgage, deed of trust or other instrument (other than pursuant to the Basic
Documents), or violate any law or, to the best of the Purchaser's knowledge, any
order, rule or regulation applicable to the Purchaser of any Governmental
Authority having jurisdiction over the Purchaser or any of its properties,
except where any such conflict or violation would not have a material adverse
effect on its ability to perform its obligations with respect to GMAC or any
Interested Party under this Agreement or the Trust Sale and Servicing Agreement;
(e) No Proceedings. To the Purchaser's knowledge, there are no Proceedings
or investigations pending, or threatened, against the Purchaser before any
Governmental Authority having jurisdiction over the Purchaser or its properties
(i) asserting the invalidity of this Agreement, (ii) seeking to prevent the
execution of this Agreement or the consummation of any of the transactions
contemplated by this Agreement or (iii) seeking any determination or ruling that
might materially and adversely affect the performance by the Purchaser of its
obligations under, or the validity or enforceability of, this Agreement; and
(f) Binding Obligation. This Agreement constitutes a legal, valid and
binding obligation of the Purchaser, enforceable against the Purchaser in
accordance with its terms, except as such enforceability may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium or other similar
laws now or hereafter in effect affecting the enforcement of creditors' rights
in general and by general principles or equity, regardless of whether such
enforceability is considered in a proceeding in equity or at law.
SECTION 4.04. Covenants of GMAC. GMAC hereby covenants that:
(a) Negative Pledge. Except for the conveyances hereunder and under the
Trust Sale and Servicing Agreement and the pledge of the Trust Estate to the
Indenture Trustee under the Indenture and as provided in Section 6.03, GMAC
shall not sell, pledge, assign or transfer to any other Person, or grant,
create, incur, assume or suffer to exist, any Lien on any Eligible Receivable in
any Account in the Pool of Accounts (and any related Vehicle Collateral
Security), whether now existing or hereafter created, or any interest therein,
and GMAC shall defend the right, title and interest of the Purchaser and any
Interested Party in, to and under such property, whether now existing or
hereafter created, against all claims of third parties claiming through or under
GMAC. GMAC shall notify the Purchaser and the Issuer promptly after becoming
aware of any Lien on any such property other than the conveyances hereunder or
under the Trust Sale and Servicing
16
Agreement or the Indenture. Nothing herein shall prohibit GMAC from granting,
creating, incurring or suffering to exist any Lien on all or any portion of the
Retained Property.
(b) Delivery of Collections. All payments received by GMAC from or on
behalf of a Dealer in respect of Receivables in any Accounts in the Pool of
Accounts or any Collateral Security (except as contemplated in Section 6.03 with
respect to any property constituting Common Collateral that is not Vehicle
Collateral Security in connection with any Other Indebtedness) shall be received
by GMAC in its capacity as Servicer, unless GMAC is no longer the Servicer, in
which case GMAC shall deliver all such payments to the Servicer as soon as
practicable after receipt thereof, but in no event later than two Business Days
after receipt thereof.
(c) Compliance with Requirements of Law. GMAC shall comply in all material
respects with all Requirements of Law applicable to GMAC, except where any such
failure to comply would not have a material adverse effect on its ability to
perform its obligations under this Agreement.
(d) No Petition. Neither the Servicer nor GMAC shall at any time institute
against the Purchaser any bankruptcy, reorganization, arrangement, insolvency or
liquidation proceedings, or other proceedings under any United States Federal or
state bankruptcy or similar law.
ARTICLE V
CERTAIN MATTERS RELATING TO GMAC
SECTION 5.01. Merger or Consolidation of, or Assumption of the Obligations
of, GMAC.
(a) Notwithstanding anything to the contrary in this Agreement, any Person
(i) into which GMAC may be merged or consolidated, (ii) resulting from any
merger, conversion or consolidation to which GMAC shall be a party, (iii)
succeeding to the business of GMAC or (iv) more than 50% of the voting interests
of which is owned, directly or indirectly, by General Motors and which is
otherwise originating receivables, which Person in any of the foregoing cases
(other than GMAC as the surviving entity of such merger or consolidation)
executes an agreement of assumption to perform every obligation of GMAC, as
seller, under this Agreement and the Trust Sale and Servicing Agreement, shall
be the successor to GMAC under this Agreement, as seller, without the execution
or filing of any document or any further act on the part of any of the parties
to this Agreement or the Trust Sale and Servicing Agreement, anything in this
Agreement to the contrary notwithstanding.
(b) GMAC shall provide notice of any merger, consolidation or succession
pursuant to this Section 5.01 to the Rating Agencies.
SECTION 5.02. GMAC Indemnification of the Purchaser. GMAC shall indemnify
the Purchaser for any liability as a result of the failure of an Eligible
Receivable sold
17
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 Monthly Distribution Date for the Wind Down Period or an Early
Amortization Period or the Payment Period for a series of Term Notes, GMAC shall
deposit into the Collection Account, on behalf of the Purchaser, an amount equal
to the Supplemental Principal Allocation for such Monthly Distribution Date.
Such amount shall be recorded as an advance under the Intercompany Advance
Agreement and shall bear interest and be payable as provided therein.
(b) Removed Accounts. With respect to each Removed Account, if and to the
extent that any related Receivable held by the Trust on the related Removal
Commencement Date (determined without giving effect to the special allocation of
Principal Collections pursuant to Section 2.8(c) or Section 2.9(b), as
applicable, of the Trust Sale and Servicing Agreement) is charged-off as
uncollectible at any time following the related Removal Date, the Purchaser
shall pay the amount so charged-off to GMAC.
SECTION 6.02. Effect of Involuntary Case Involving GMAC.
(a) Suspension of Purchases. The Purchaser shall suspend the purchase (and
GMAC shall suspend the sale) of Receivables hereunder if either party shall
receive notice at its principal corporate office that GMAC has become an
involuntary party to (or has been made the subject of) any proceeding provided
for by any insolvency, readjustment of debt, marshaling 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
18
the Pool of Accounts since the date of the suspension of such sales on the same
terms (including Section 6.03 hereof) as, or on terms that do not have a
material adverse effect on Securityholders as compared to, the terms in effect
prior to the commencement of such Involuntary Case, and further providing that
the Purchaser and any of its transferees (including the Issuer) may rely on such
order for the validity and nonavoidance of such transfer (the "Order"), the
Purchaser may resume the purchase (and GMAC may resume the sale) of Receivables
pursuant to the terms hereof; provided, however, that so long as such
Involuntary Case shall continue, notwithstanding anything in this Agreement to
the contrary, the purchase price of such Receivables (which shall not be less
than reasonably equivalent value therefor or greater than the principal balance
thereof) shall be paid by the Purchaser to GMAC in cash not later than the same
Business Day of any such sale, and such Receivables shall be considered
transferred to the Purchaser only to the extent that the purchase price therefor
has been paid in cash on the same Business Day.
(c) Cessation of Purchases. If an Order is obtained but subsequently is
reversed or rescinded or expires, the Purchaser shall immediately cease to
purchase (and GMAC shall immediately cease to sell) Receivables hereunder.
Notwithstanding anything contained in Section 6.02(b), if an Involuntary Case
has not been dismissed by the first Business Day following the 60 day period
beginning on the day on which notice of an Involuntary Case was received by
either party, whether or not an Order was obtained, the Purchaser shall not
thereafter purchase Receivables from GMAC hereunder and GMAC shall not
thereafter designate Additional Accounts for transfer to the Purchaser or sell
Receivables hereunder.
SECTION 6.03. Intercreditor Agreements.
(a) Common Collateral. In connection with loans or advances made or to be
made by GMAC to a Dealer from time to time other than pursuant to an Account
(collectively, "Other Indebtedness"), GMAC may have a security interest in
property constituting Collateral Security (the "Common Collateral").
(b) Agreements of GMAC with respect to Common Collateral. GMAC agrees that
with respect to the Receivables of each Dealer:
(i) GMAC's security interest in any Common Collateral that is Vehicle
Collateral Security (and the proceeds thereof) in connection with any Other
Indebtedness is subordinate to the security interest therein in connection
with such Receivables and assigned to the Purchaser hereunder;
(ii) GMAC shall not apply the proceeds of any such Common Collateral
that is Vehicle Collateral Security in connection with any Other
Indebtedness in any manner that is materially adverse to the Purchaser or
the Issuer and the Securityholders until all required payments in respect
of such Receivable have been made; and
(iii) in realizing upon any such Common Collateral that is Vehicle
Collateral Security in connection with any such Receivables, neither the
Purchaser nor the
19
Issuer (nor the Servicer on behalf of either) shall be obligated to protect
or preserve the rights of GMAC in such Common Collateral.
(c) Agreements of the Purchaser with respect to Common Collateral. The
Purchaser agrees that with respect to the Receivables of each Dealer:
(i) the Purchaser's security interest in any Common Collateral that is
not Vehicle Collateral Security (and the proceeds thereof) in connection
with such Receivables assigned to the Purchaser hereunder is subordinate to
the security interest therein in connection with any Other Indebtedness;
(ii) the Purchaser (or the Servicer on its behalf) shall not apply the
proceeds of any such Common Collateral that is not Vehicle Collateral
Security in connection with any such Receivables in any manner that is
materially adverse to GMAC until all required payments in respect of such
Other Indebtedness have been made; and
(iii) in realizing upon any such Common Collateral that is not Vehicle
Collateral Security in connection with such Other Indebtedness, GMAC shall
not be obligated to protect or preserve the rights of the Purchaser or the
Issuer in such Collateral Security.
(d) Obligations of Issuer. The Trust Sale and Servicing Agreement shall
provide that the Issuer is subject to this Section 6.03.
(e) Obligations of Assignees and Transferees. If, other than pursuant
hereto, GMAC in any manner assigns or transfers any right or obligation with
respect to any Other Indebtedness or any property constituting Common
Collateral, GMAC shall make such assignment or transfer subject to the
provisions of this Section 6.03 and shall require such assignee or transferee to
acknowledge that it takes such assignment or transfer subject to the provisions
of this Section 6.03 and to agree that it shall require the same acknowledgment
from any subsequent assignee or transferee.
ARTICLE VII
MISCELLANEOUS PROVISIONS
SECTION 7.01. Amendment. This Agreement may be amended from time to time
(subject to Section 10.1(g) of the Trust Sale and Servicing Agreement) by a
written amendment duly executed and delivered by GMAC and the Purchaser.
SECTION 7.02. Protection of Right, Title and Interest in and to
Receivables.
(a) GMAC or the Purchaser or both shall execute and file such financing
statements and cause to be executed and filed such continuation statements or
other statements, all in such manner and in such places as may be required by
law fully to evidence, preserve, maintain and protect the interest of the
Purchaser hereunder in the Eligible Receivables arising in the Accounts
20
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 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 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. GMAC shall at all times maintain its principal executive office and
its jurisdiction of incorporation within the United States of America.
(d) In connection with the sale and transfer hereunder of the Receivables
in the Accounts in the Pool of Accounts and the related Collateral Security from
GMAC to the Purchaser, GMAC shall, at its own expense, on or prior to the
Initial Closing Date, in the case of the Initial Accounts, and on or prior to
the applicable Addition Date, in the case of Additional Accounts, (i) indicate
in its computer files that the Eligible Receivables in the Accounts in the Pool
of Accounts have been sold and transferred, and the Collateral Security
assigned, to the Purchaser pursuant to this Agreement and that such property has
been sold and transferred to the Issuer pursuant to the Trust Sale and Servicing
Agreement and (ii) deliver to the Purchaser a true and complete list of all such
Accounts specifying for each such Account, as of the Initial Cut-Off Date, in
the case of the Initial Accounts, and as of the applicable Additional Cut-Off
Date, in the case of Additional Accounts, its account number and the outstanding
principal balance of Eligible Receivables in such Account. Such list, as
supplemented from time to time to reflect Additional Accounts, Randomly 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.
21
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.
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.
22
SECTION 7.11. Third-Party Beneficiaries. This Agreement shall inure to the
benefit of and be binding upon the parties hereto, the Interested Parties and
their respective successors and permitted assigns. Except as otherwise expressly
provided in this Agreement, no other Person shall have any right or obligation
hereunder.
SECTION 7.12. Merger and Integration. Except as specifically stated
otherwise herein, this Agreement sets forth the entire understanding of the
parties relating to the subject matter hereof, and all prior understandings,
written or oral, are superseded by this Agreement. This Agreement may not be
modified, amended, waived, or supplemented except as provided herein.
SECTION 7.13. Confidential Information. The Purchaser agrees that it shall
neither use nor disclose to any Person the names and addresses of Dealers,
except in connection with the enforcement of the Purchaser's rights hereunder,
under the Trust Sale and Servicing Agreement, under the Receivables or as
required by law.
SECTION 7.14. Headings. The headings herein are for purposes of reference
only and shall not otherwise affect the meaning or interpretation of any
provision hereof.
SECTION 7.15. Termination. This Agreement (except for Section 5.02) shall
terminate immediately after the termination of the Trust Sale and Servicing
Agreement; provided, that if at the time of the termination of the Trust Sale
and Servicing Agreement, the Purchaser has not made all payments to GMAC
required to be made under Section 6.01, this Agreement (except for Section 5.02)
shall not terminate until immediately after all such payments have been made.
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.
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.
* * * *
23
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: XXXXX X. XXXXXXXXXX
-------------------------------------------
Name: Xxxxx X. Xxxxxxxxxx
Title: Director - Securitization and
Cash Management
WHOLESALE AUTO RECEIVABLES CORPORATION,
Purchaser
By: X. X. XXXXXX
------------------------------------------
Name: X. X. Xxxxxx
Title: Manager - Securitization
24
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
25
EXHIBIT B
FORM OF ASSIGNMENT FOR INITIAL CLOSING DATE
For value received, in accordance with the Pooling and Servicing Agreement,
dated as of March 15, 2001 (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 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.
* * * * *
26
IN WITNESS WHEREOF, the undersigned has caused this Assignment to be duly
executed as of March 15, 2001.
GENERAL MOTORS ACCEPTANCE CORPORATION
By: XXXXX X. XXXXXXXXXX
-------------------------------------
Name: Xxxxx X. Xxxxxxxxxx
Title: Director - Securitization and
Cash Management
27
EXHIBIT C
FORM OF ASSIGNMENT FOR EACH ADDITION DATE
For value received, in accordance with the Pooling and Servicing Agreement,
dated as of March 15, 2001 (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 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.
* * * * *
IN WITNESS WHEREOF, the undersigned has caused this Assignment to be duly
executed as of _____________ ____,_______.
GENERAL MOTORS ACCEPTANCE CORPORATION
By: XXXXX X. XXXXXXXXXX
--------------------------------------
Name: Xxxxx X. Xxxxxxxxxx
Title: Director-Securitization and
Cash Management
2
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.
1
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 VII.
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 VII.
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 VII.
2