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Exhibit 99.2
TRUST AGREEMENT
BETWEEN
WHOLESALE AUTO RECEIVABLES CORPORATION
SELLER
AND
CHASE MANHATTAN BANK DELAWARE
OWNER TRUSTEE
DATED AS OF MAY 18, 1999
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TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS AND INCORPORATION BY REFERENCE
1.1 Definitions.................................................................................1
ARTICLE II
ORGANIZATION
2.1 Name .......................................................................................1
2.2 Office......................................................................................1
2.3 Purposes and Powers.........................................................................1
2.4 Appointment of Owner Trustee................................................................2
2.5 Initial Capital Contribution of Owner Trust Estate..........................................2
2.6 Declaration of Trust........................................................................2
2.7 Liability of the Certificate Owners.........................................................3
2.8 Title to Trust Property.....................................................................3
2.9 Situs of Trust..............................................................................3
2.10 Representations and Warranties of the Seller................................................3
2.11 Tax Treatment...............................................................................4
ARTICLE III
THE CERTIFICATES
3.1 [Intentionally Omitted].....................................................................4
3.2 Form of the Certificates....................................................................4
3.3 Execution, Authentication and Delivery......................................................5
3.4 Registration; Registration of Transfer and Exchange of Certificates.........................6
3.5 Mutilated, Destroyed, Lost or Stolen Certificates...........................................7
3.6 Persons Deemed Certificateholders...........................................................8
3.7 Access to List of Certificateholders' Names and Addresses...................................8
3.8 Maintenance of Corporate Trust Office.......................................................8
3.9 Appointment of Paying Agent.................................................................9
3.10 [Reserved]..................................................................................9
3.11 Book-Entry Certificates.....................................................................9
3.12 Notices to Clearing Agency.................................................................10
3.13 Termination of Book-Entry Registration.....................................................10
3.14 Seller as Certificateholder................................................................11
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ARTICLE IV
ACTIONS BY OWNER TRUSTEE
4.1 Prior Notice to Certificateholders with Respect to Certain Matters.........................11
4.2 Action by Certificateholders with Respect to Certain Matters...............................12
4.3 Action by Certificateholders with Respect to Bankruptcy....................................12
4.4 Restrictions on Certificateholders' Power..................................................12
4.5 Majority Control...........................................................................12
ARTICLE V
APPLICATION OF TRUST FUNDS; CERTAIN DUTIES
5.1 Establishment of Certificate Distribution Account..........................................13
5.2 Application of Trust Funds.................................................................13
5.3 Method of Payment..........................................................................14
5.4 Accounting and Reports to the Certificateholders, the Internal Revenue
Service and Others....................................................................14
5.5 Signature on Returns; Tax Matters Partner..................................................15
ARTICLE VI
THE OWNER TRUSTEE
6.1 Duties of Owner Trustee....................................................................15
6.2 Rights of Owner Trustee....................................................................16
6.3 Acceptance of Trusts and Duties............................................................16
6.4 Action upon Instruction by Certificateholders..............................................18
6.5 Furnishing of Documents....................................................................18
6.6 Representations and Warranties of Owner Trustee............................................19
6.7 Reliance; Advice of Counsel................................................................19
6.8 Owner Trustee May Own Certificates and Notes...............................................20
6.9 Compensation and Indemnity.................................................................20
6.10 Replacement of Owner Trustee...............................................................20
6.11 Merger or Consolidation of Owner Trustee...................................................21
6.12 Appointment of Co-Trustee or Separate Trustee..............................................22
6.13 Eligibility Requirements for Owner Trustee.................................................23
ARTICLE VII
TERMINATION OF TRUST AGREEMENT
7.1 Termination of Trust Agreement.............................................................23
7.2 [Reserved].................................................................................25
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ARTICLE VIII
AMENDMENTS
8.1 Amendments Without Consent of Securityholders..............................................25
8.2 Amendments With Consent of Certificateholders and Noteholders..............................25
8.3 Form of Amendments.........................................................................26
ARTICLE IX
MISCELLANEOUS
9.1 No Legal Title to Owner Trust Estate.......................................................27
9.2 Limitations on Rights of Others............................................................27
9.3 Derivative Actions.........................................................................27
9.4 Notices....................................................................................27
9.5 Severability of Provisions.................................................................27
9.6 Counterparts...............................................................................28
9.7 Successors and Assigns.....................................................................28
9.8 No Petition Covenants......................................................................28
9.9 No Recourse................................................................................28
9.10 Headings...................................................................................28
9.11 Governing Law..............................................................................29
9.12 Certificate Transfer Restrictions..........................................................29
9.13 Indemnification by and Reimbursement of the Servicer.......................................30
EXHIBITS
Exhibit A Form of Certificate
Exhibit B Form of Certificate of Trust
Exhibit C Form of Undertaking Letter
Exhibit D Form of Investor Letter
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THIS TRUST AGREEMENT, dated as of May 18, 1999, between
WHOLESALE AUTO RECEIVABLES CORPORATION, a Delaware corporation, as Seller, and
CHASE MANHATTAN BANK DELAWARE, a Delaware banking corporation, as Owner Trustee.
In consideration of the premises and the mutual covenants
herein contained, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.1 Definitions. Certain capitalized terms used in
this Agreement shall have the respective meanings assigned to them in Part I of
Appendix A to the Trust Sale and Servicing Agreement of even date herewith,
among the Seller, the Servicer and the Trust (the "Trust Sale and Servicing
Agreement"). All references herein to "the Agreement" or "this Agreement" are to
the Trust Agreement as it may be amended and supplemented from time to time, and
all references herein to Articles, Sections and subsections are to Articles,
Sections and subsections of this Agreement unless otherwise specified. The rules
of construction set forth in Part II of such Appendix shall be applicable to
this Agreement.
ARTICLE II
ORGANIZATION
SECTION 2.1 Name. The Trust created hereby shall be known as
"Superior Wholesale Inventory Financing Trust V" in which name the Owner Trustee
may conduct the business of the Trust, make and execute contracts and other
instruments on behalf of the Trust and ▇▇▇ and be sued on behalf of the Trust.
SECTION 2.2 Office. The office of the Trust shall be in care
of the Owner Trustee at the Corporate Trust Office or at such other address in
Delaware as the Owner Trustee may designate by written notice to the Certificate
Owners and the Seller.
SECTION 2.3 Purposes and Powers. (a) The purpose of the Trust
is, and the Trust shall have the power and authority, to engage in the following
activities:
(i) to acquire, manage and hold the Receivables to be
transferred to the Trust from time to time pursuant to the Trust Sale
and Servicing Agreement;
(ii) to issue and sell the Notes pursuant to the Indenture or
to another indenture, note purchase agreement or similar agreement and
the Certificates pursuant to this Agreement, and to sell, transfer or
exchange the Notes and the Certificates;
(iii) to acquire property and assets from the Seller pursuant
to the Trust Sale and Servicing Agreement, to make payments or
distributions on the Securities, to make
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withdrawals from the Reserve Fund and other accounts established
pursuant to the Basic Documents and to pay the organizational, start-up
and transactional expenses of the Trust;
(iv) to establish, acquire, hold and terminate liquidity,
credit and other enhancement arrangements, including each Basis Swap
and other Specified Support Arrangement from time to time, and perform
its obligations thereunder;
(v) to assign, grant, transfer, pledge, mortgage and convey
the Trust Estate pursuant to the terms of the Indenture and to hold,
manage and distribute to the Certificate Owners pursuant to the terms
of this Agreement and the Trust Sale and Servicing Agreement any
portion of the Trust Estate released from the lien of, and remitted to
the Trust pursuant to, the Indenture;
(vi) to enter into and perform its obligations and exercise
its rights under the Basic Documents to which it is to be a party;
(vii) to engage in those activities, including entering into
agreements, that are necessary, suitable or convenient to accomplish
the foregoing or are incidental thereto or connected therewith; and
(viii) subject to compliance with the Basic Documents, to
engage in such other activities as may be required in connection with
conservation of the Owner Trust Estate and the making of distributions
to the Securityholders.
The Trust shall not engage in any activity other than in connection with the
foregoing or other than as required or authorized by the terms of this Agreement
or the Basic Documents.
SECTION 2.4 Appointment of Owner Trustee. The Seller hereby
appoints the Owner Trustee as trustee of the Trust effective as of the date
hereof, to have all the rights, powers and duties set forth herein.
SECTION 2.5 Initial Capital Contribution of Owner Trust
Estate. The Seller hereby sells, assigns, transfers, conveys and sets over to
the Owner Trustee, as of the date hereof, the sum of $1. The Owner Trustee
hereby acknowledges receipt in trust from the Seller, as of the date hereof, of
the foregoing contribution, which shall constitute the initial Owner Trust
Estate and shall be deposited in the Certificate Distribution Account. The
Seller shall pay organizational expenses of the Trust as they may arise or
shall, upon the request of the Owner Trustee, promptly reimburse the Owner
Trustee for any such expenses paid by the Owner Trustee.
SECTION 2.6 Declaration of Trust. The Owner Trustee hereby
declares that it shall hold the Owner Trust Estate in trust upon and subject to
the conditions and obligations set forth herein and in the Trust Sale and
Servicing Agreement for the use and benefit of the Certificate Owners, subject
to the obligations of the Trust under the Basic Documents. It is the intention
of the parties hereto that the Trust constitute a business trust under the
Business Trust Statute, that this Agreement constitute the governing instrument
of such business trust and that the Certificates represent the equity interests
therein. The rights of the Certificateholders shall be determined as set
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forth herein and in the Business Trust Statute and the relationship between the
parties created by this Agreement shall not constitute indebtedness. The parties
hereto agree that, unless otherwise required by appropriate taxing authorities,
the Trust shall file or cause to be filed annual or other necessary returns,
reports and other forms consistent with the characterization of the Trust as a
partnership for such tax purposes. Effective as of the date hereof, the Owner
Trustee shall have all rights, powers and duties set forth in this Agreement,
the Trust Sale and Servicing Agreement and the Business Trust Statute with
respect to accomplishing the purposes of the Trust. The Owner Trustee agrees to
file the certificate required under ss. 3810 et seq. of the Business Trust
Statute in connection with the formation of the Trust as a business trust under
the Business Trust Statute.
SECTION 2.7 Liability of the Certificate Owners.
Certificateholders and holders of beneficial interests therein shall be entitled
to the same limitation of personal liability extended to stockholders of private
corporations for profit organized under the Delaware General Corporation Law.
SECTION 2.8 Title to Trust Property. Legal title to all the
Owner Trust Estate shall be vested at all times in the Trust as a separate legal
entity except where applicable law in any jurisdiction requires title to any
part of the Owner Trust Estate to be vested in a trustee or trustees, in which
case title shall be deemed to be vested in the Owner Trustee, a co-trustee
and/or a separate trustee, as the case may be.
SECTION 2.9 Situs of Trust. The Trust shall be located and
administered in the State of Delaware. All bank accounts maintained by the Owner
Trustee on behalf of the Trust shall be located in the State of Delaware or the
State of New York. The Trust shall not have any employees in any state other
than Delaware; provided, however, that nothing herein shall restrict or prohibit
the Owner Trustee from having employees within or without the State of Delaware.
Payments shall be received by the Trust only in Delaware or New York, and
payments and distributions shall be made by the Trust only from Delaware or New
York. The only office of the Trust shall be the Corporate Trust Office in
Delaware.
SECTION 2.10 Representations and Warranties of the Seller. The
Seller hereby represents and warrants to the Owner Trustee that:
(a) The Seller has been duly organized and is validly existing
as a corporation in good standing under the laws of the State of
Delaware, with power and authority to own its properties and to conduct
its business as such properties are presently owned and such business
is presently conducted, and had at all relevant times, and now has,
power, authority and legal right to acquire and own the Receivables
contemplated to be transferred to the Trust pursuant to the Trust Sale
and Servicing Agreement.
(b) The Seller is duly qualified to do business and, where
necessary is in good standing (or is exempt from such requirement), and
has obtained all necessary licenses and approvals in all jurisdictions
in which the ownership or lease of property or the conduct of its
business requires such qualifications, except where the failure to so
qualify or obtain licenses or approvals would not have a material
adverse effect on its ability to perform its obligations under the
Basic Documents to which it is a party.
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(c) The Seller has the power and authority to execute and
deliver this Agreement, to carry out its terms and to consummate the
transactions contemplated herein; and the execution, delivery and
performance of this Agreement and the consummation of the transactions
contemplated herein have been duly authorized by the Seller by all
necessary corporate action.
(d) The execution of this Agreement and the consummation of
the transactions contemplated herein by the Seller and the fulfillment
of the terms of this Agreement by the Seller shall not conflict with,
result in any breach of any of the terms and provisions of or
constitute (with or without notice or lapse of time) a default under,
the certificate of incorporation or by-laws of the Seller, or any
indenture, agreement, mortgage, deed of trust or other instrument to
which the Seller is a party or by which it is bound, or result in the
creation or imposition of any Lien upon any of its properties pursuant
to the terms of any such indenture, agreement, mortgage, deed of trust
or other instrument (other than pursuant to the Basic Documents), or
violate any law or, to the best of the Seller's knowledge, any order,
rule or regulation applicable to the Seller of any Governmental
Authority having jurisdiction over the Seller or any of its properties.
SECTION 2.11 Tax Treatment. As long as the Seller is the sole
owner of the Certificates, the Seller and Owner Trustee, by entering into this
Agreement, (i) express their intention that the Trust will be disregarded for
federal income tax purposes and will be treated as a division of the Seller and
(ii) agree that paragraph 5.5 of this Agreement will not be applicable. If the
Seller is not the sole owner of the Certificates, through sale of Certificates,
issuance by the Trust of additional Certificates to a person other than the
Seller, or otherwise, the Seller and Owner Trustee, by entering into this
Agreement, and the Certificateholders and the Certificate Owners, by acquiring
any Certificate or interest in the Trust, (i) express their intention that the
Certificates shall qualify under applicable tax law as partnership interests in
a partnership, with the assets of the partnership held by the Trust, (ii) unless
otherwise required by appropriate taxing authorities, agree to treat the
Certificates as partnership interests for purposes of federal, state and local
income and franchise taxes, Michigan single business tax and any other taxes
imposed upon, measured by or based upon gross or net income, and (iii) agree
that immediately upon there being more than one owner of Certificates, paragraph
5.5 of this Agreement will become applicable.
ARTICLE III
THE CERTIFICATES
SECTION 3.1 [Intentionally Omitted].
SECTION 3.2 Form of the Certificates.
(a) The Certificates shall be substantially in the form set
forth in Exhibit A and shall be issued in denominations of $4,000,000 or greater
(or such other amount as the Seller may determine in order to prevent the Trust
from being treated as a "publicly traded partnership" under Section 7704 of the
Code, but in no event less than $250,000). The Certificates shall represent the
entire beneficial interest in the Trust. The Certificates shall be executed on
behalf of the Trust by
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manual or facsimile signature of a Responsible Officer of the Owner Trustee.
Certificates bearing the manual or facsimile signatures of individuals who were,
at the time when such signatures shall have been affixed, authorized to sign on
behalf of the Trust, shall be duly issued, fully paid and non-assessable
beneficial interests in the Trust, notwithstanding that such individuals or any
of them shall have ceased to be so authorized prior to the authentication and
delivery of such Certificates or did not hold such offices at the date of
authentication and delivery of such Certificates.
(b) The Definitive Certificates shall be typewritten, printed,
lithographed or engraved or produced by any combination of these methods (with
or without steel engraved borders) all as determined by the officers executing
such Certificates, as evidenced by their execution of such Certificates.
(c) The Certificates shall be issued in fully-registered form.
The terms of the Certificates as set forth in Exhibit A shall form part of this
Agreement.
SECTION 3.3 Execution, Authentication and Delivery.
(a) On the Initial Closing Date, concurrently with the initial
sale, transfer and assignment of Receivables to the Trust pursuant to the Trust
Sale and Servicing Agreement, the Owner Trustee shall cause Certificates with an
aggregate initial Certificate Balance equal to $185,800,000 to be executed on
behalf of the Trust, authenticated and delivered to or upon the written order of
the Seller, signed by its chairman of the board, its president or any vice
president, without further corporate action by the Seller, in authorized
denominations. Such Certificates shall be designated as Floating Rate
Asset-Backed Certificates, Class 1999-A, and the Certificate Rate for such
Certificates shall equal, with respect to any Distribution Date, the product of
(i) a fraction, the numerator of which is the number of days elapsed from and
including the prior Distribution Date (or, in the case of the Initial
Distribution Date, from and including the Initial Closing Date) to but excluding
such Distribution Date and the denominator of which is 360 and (ii) LIBOR plus
2.25%.
(b) From time to time after the Initial Closing Date, at the
direction of the Seller (a "Certificate Issuance Order"), and upon satisfaction
of the conditions set forth in Section 4.9 of the Trust Sale and Servicing
Agreement, the Owner Trustee shall cause additional Certificates of any class
theretofore issued, or Certificates of a new class, with an aggregate initial
Certificate Balance specified by the Seller, to be executed on behalf of the
Trust, authenticated and delivered to or upon the written order of the Seller,
signed by its chairman of the board, its president or any vice president,
without further corporate action by the Seller, in authorized denominations. All
such Certificates shall have the same terms, provisions and rights as those
Certificates issued on the Initial Closing Date; provided, however, that any
class of Certificates may have a different Certificate Rate than the
Certificates of any other class and may be issued in book-entry form pursuant to
Section 3.11 hereof. The Certificate Rate for any such Certificates issued after
the Initial Closing Date shall be set forth in the related Certificate Issuance
Order. The terms of any Certificates as provided in a Certificate Issuance Order
shall be considered terms of this Agreement. Any Certificate Issuance Order
issued pursuant to this Section shall be considered a part of this Agreement.
(c) No Certificate shall entitle its holder to any benefit
under this Agreement, or shall be valid for any purpose, unless there shall
appear on such Certificate a certificate of
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authentication substantially in the form set forth in Exhibit A, executed by the
Owner Trustee or the Owner Trustee's authenticating agent, by manual signature.
Such authentication shall constitute conclusive evidence that such Certificate
shall have been duly authenticated and delivered hereunder. All Certificates
shall be dated the date of their authentication. The Chase Manhattan Bank is
hereby appointed as the Owner Trustee's authenticating agent.
SECTION 3.4 Registration; Registration of Transfer and
Exchange of Certificates.
(a) The Certificate Registrar shall keep or cause to be kept,
at the office or agency maintained pursuant to Section 3.8, a Certificate
Register in which, subject to such reasonable regulations as it may prescribe,
the Owner Trustee shall provide for the registration of Certificates and of
transfers and exchanges of Certificates as provided herein; provided, however,
that no Certificate may be subdivided upon transfer or exchange in a manner such
that the resulting Certificate if it had been sold in the original offering
would have had an initial offering price of less than $4,000,000 (or such other
amount as the Seller may determine in order to prevent the Trust from being
treated as a "publicly traded partnership" under Section 7704 of the Code, but
in no event less than $250,000) and any attempted transfer of a Certificate in
contravention of this restriction shall be void ab initio and the purported
transferor shall continue to be treated as the owner of such Certificate for all
purposes. The Chase Manhattan Bank shall be the initial Certificate Registrar.
Upon any resignation of a Certificate Registrar, the Owner Trustee shall
promptly appoint a successor or, if it elects not to make such an appointment,
assume the duties of Certificate Registrar.
(b) Certificateholders may at any time, without consent of the
Noteholders, sell, transfer, convey or assign in any manner whatsoever their
rights to and interests in the Certificates, provided that the following
conditions are satisfied: (i) the transferee provides written verification from
the applicable Rating Agencies that such sale, transfer, conveyance or
assignment will not result in a reduction or withdrawal of the rating of any
class of Notes then outstanding, (ii) the transferee provides to the Owner
Trustee and the Indenture Trustee an opinion of independent counsel that such
action will not cause the Trust to be treated as an association (or publicly
traded partnership) taxable as a corporation for Federal income tax purposes,
(iii) such transferee or assignee agrees in writing to take positions for tax
purposes consistent with the tax positions agreed to be taken by the initial
Certificateholders herein, (iv) the transferee provides the Owner Trustee (and
the Certificate Registrar if not the Owner Trustee) with an opinion of counsel
satisfactory to the Owner Trustee stating that such transfer (x) is exempt from
registration under applicable state and federal securities laws, (y) will not
cause the Trust to be an "investment company" or under the "control" of an
"investment company" within the meaning of the Investment Company Act and (z)
otherwise complies with the restrictions on transfer contained in this
Agreement, and (v) the transferee certifies to the Owner Trustee that it is not
a Benefit Plan. The Owner Trustee shall have no obligation to determine whether
a transferee of a Trust Certificate is or is not a Benefit Plan.
(c) Subject to Section 3.4(b), upon surrender for registration
of transfer of any Certificate at the office or agency maintained pursuant to
Section 3.8, the Owner Trustee shall execute on behalf of the Trust,
authenticate and deliver (or shall cause The Chase Manhattan Bank, as its
authenticating agent to authenticate and deliver), in the name of the designated
transferee or transferees, one or more new Certificates of the same class in
authorized denominations of a like
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aggregate amount dated the date of authentication by the Owner Trustee or any
authenticating agent.
(d) At the option of a Holder, Certificates may be exchanged
for other Certificates of the same class in authorized denominations of a like
amount upon surrender of the Certificates to be exchanged at the Corporate Trust
Office maintained pursuant to Section 3.8. Whenever any Certificates are so
surrendered for exchange, the Owner Trustee shall execute on behalf of the
Trust, authenticate and deliver (or shall cause The Chase Manhattan Bank, as its
authenticating agent, to authenticate and deliver) one or more Certificates
dated the date of authentication by the Owner Trustee or any authenticating
agent. Such Certificates shall be delivered to the Holder making the exchange.
(e) Every Certificate presented or surrendered for
registration of transfer or exchange shall be accompanied by a written
instrument of transfer in form satisfactory to the Owner Trustee and the
Certificate Registrar duly executed by the Holder or his attorney duly
authorized in writing and such other documents and instruments as may be
required by Section 3.4(b). Each Certificate surrendered for registration of
transfer or exchange shall be canceled and subsequently destroyed by the Owner
Trustee or Certificate Registrar in accordance with its customary practice. The
Owner Trustee shall certify to the Seller that surrendered Certificates have
been duly canceled and retained or destroyed, as the case may be.
(f) No service charge shall be made for any registration of
transfer or exchange of Certificates, but the Owner Trustee or the Certificate
Registrar may require payment of a sum sufficient to cover any tax or
governmental charge that may be imposed in connection with any transfer or
exchange of Certificates.
SECTION 3.5 Mutilated, Destroyed, Lost or Stolen
Certificates.
(a) If (i) any mutilated Certificate is surrendered to the
Certificate Registrar, or the Certificate Registrar receives evidence to its
satisfaction of the destruction, loss or theft of any Certificate and (ii) there
is delivered to the Certificate Registrar, the Owner Trustee and the Trust such
security or indemnity as may be required by them to hold each of them harmless,
then, in the absence of notice to the Certificate Registrar or the Owner Trustee
that such Certificate has been acquired by a protected purchaser, the Owner
Trustee shall execute on behalf of the Trust and the Owner Trustee shall
authenticate and deliver (or shall cause The Chase Manhattan Bank, as its
authenticating agent, to authenticate and deliver), in exchange for or in lieu
of any such mutilated, destroyed, lost or stolen Certificate, a replacement
Certificate of the same class in authorized denominations of a like amount;
provided, however, that if any such destroyed, lost or stolen Certificate, but
not a mutilated Certificate, shall have become or within seven days shall be due
and payable, then instead of issuing a replacement Certificate the Owner Trustee
may pay distributions to such destroyed, lost or stolen Certificate when so due
or payable.
(b) If, after the delivery of a replacement Certificate or
distribution in respect of a destroyed, lost or stolen Certificate pursuant to
subsection 3.5(a), a protected purchaser of the original Certificate in lieu of
which such replacement Certificate was issued presents for payment such original
Certificate, the Owner Trustee shall be entitled to recover such replacement
Certificate (and any distributions or payments made with respect thereto) from
the Person to whom it was delivered
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or any Person taking such replacement Certificate from such Person to whom such
replacement Certificate was delivered or any assignee of such Person, except a
protected purchaser, and shall be entitled to recover upon the security or
indemnity provided therefor to the extent of any loss, damage, cost or expense
incurred by the Owner Trustee in connection therewith.
(c) In connection with the issuance of any replacement
Certificate under this Section 3.5, the Owner Trustee may require the payment by
the Holder of such Certificate of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
reasonable expenses (including the fees and expenses of the Owner Trustee and
the Certificate Registrar) connected therewith.
(d) Any duplicate Certificate issued pursuant to this Section
3.5 in replacement of any mutilated, destroyed, lost or stolen Certificate shall
constitute an original additional beneficial interest in the Trust, whether or
not the mutilated, destroyed, lost or stolen Certificate shall be found at any
time or be enforced by anyone, and shall be entitled to all the benefits of this
Agreement equally and proportionately with any and all other Certificates duly
issued hereunder.
(e) The provisions of this Section 3.5 are exclusive and shall
preclude (to the extent lawful) all other rights and remedies with respect to
the replacement or payment of mutilated, destroyed, lost or stolen Certificates.
SECTION 3.6 Persons Deemed Certificateholders. Prior to due
presentation of a Certificate for registration of transfer, the Owner Trustee or
the Certificate Registrar may treat the Person in whose name any Certificate
shall be registered in the Certificate Register as the Certificateholder of such
Certificate for the purpose of receiving distributions pursuant to Article V and
for all other purposes whatsoever, and neither the Owner Trustee nor the
Certificate Registrar shall be affected by any notice to the contrary.
SECTION 3.7 Access to List of Certificateholders' Names and
Addresses. The Owner Trustee shall furnish or cause to be furnished to the
Servicer and the Seller, within 15 days after receipt by the Owner Trustee of a
request therefor from the Servicer or the Seller in writing, a list, in such
form as the Servicer or the Seller may reasonably require, of the names and
addresses of the Certificateholders as of the most recent Record Date. Each
Holder, by receiving and holding a Certificate, shall be deemed to have agreed
not to hold any of the Servicer, the Seller or the Owner Trustee accountable by
reason of the disclosure of its name and address, regardless of the source from
which such information was derived.
SECTION 3.8 Maintenance of Corporate Trust Office. The Owner
Trustee shall maintain in the City of New York an office or offices or agency or
agencies where Certificates may be surrendered for registration of transfer or
exchange and where notices and demands to or upon the Owner Trustee in respect
of the Certificates and the Basic Documents may be served. The Owner Trustee
initially designates the offices of The Chase Manhattan Bank, as its principal
office for such purposes. The Owner Trustee shall give prompt written notice to
the Seller and to the Certificateholders of any change in the location of the
Certificate Register or any such office or agency.
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SECTION 3.9 Appointment of Paying Agent. The Paying Agent
shall make distributions to Certificateholders from the Certificate Distribution
Account pursuant to Section 5.2 and shall report the amounts of such
distributions to the Owner Trustee and the Servicer; provided that no such
reports shall be required so long as the Seller is the sole Certificateholder.
Any Paying Agent shall have the revocable power to withdraw funds from the
Certificate Distribution Account for the purpose of making the distributions
referred to above. The Owner Trustee may revoke such power and remove the Paying
Agent if the Owner Trustee determines in its sole discretion that the Paying
Agent shall have failed to perform its obligations under this Agreement in any
material respect. The Paying Agent shall initially be The Chase Manhattan Bank.
The Chase Manhattan Bank shall be permitted to resign as Paying Agent upon 30
days' written notice to the Owner Trustee. If The Chase Manhattan Bank shall no
longer be the Paying Agent, the Owner Trustee shall appoint a successor to act
as Paying Agent (which shall be a bank or trust company). The Owner Trustee
shall cause such successor Paying Agent or any additional Paying Agent appointed
by the Owner Trustee to execute and deliver to the Owner Trustee an instrument
in which such successor Paying Agent or additional Paying Agent shall agree with
the Owner Trustee that as Paying Agent, such successor Paying Agent or
additional Paying Agent shall hold all sums, if any, held by it for distribution
to the Certificateholders in trust for the benefit of the Certificateholders
entitled thereto until such sums shall be paid to such Certificateholders. The
Paying Agent shall return all unclaimed funds to the Owner Trustee and upon
removal of a Paying Agent such Paying Agent shall also return all funds in its
possession to the Owner Trustee. The provisions of Sections 6.3, 6.6, 6.7 and
6.9 shall apply to the Owner Trustee also in its role as Paying Agent, for so
long as the Owner Trustee shall act as Paying Agent and, to the extent
applicable, to any other paying agent appointed hereunder. Any reference in this
Agreement to the Paying Agent shall include any co-paying agent unless the
context requires otherwise.
SECTION 3.10 [Reserved]
SECTION 3.11 Book-Entry Certificates. The Certificates to be
issued on the Initial Closing Date shall be issued in definitive form. If, and
to the extent, so provided in the related Certificate Issuance Order,
Certificates to be issued after the Initial Closing Date (other than those
described in Section 3.10) may be issued in the form of a typewritten
certificate or certificates representing Book-Entry Certificates. Any such
Book-Entry Certificate shall be delivered to the Clearing Agency by or on behalf
of the Trust and shall be registered on the Certificate Register in the name of
the Clearing Agency (or its nominee) and no Certificate Owner shall receive a
Definitive Certificate. If and to the extent Book-Entry Certificates have been
issued pursuant to this Section 3.11 with respect to any Certificates:
(a) the provisions of this Section 3.11 shall be in full force
and effect;
(b) the Certificate Registrar and the Owner Trustee shall be
entitled to deal with the Clearing Agency for all purposes of this
Agreement (including the distribution of Certificate Balance and
interest on such Certificates and the giving of instructions or
directions hereunder) as the sole Holder of such Certificates, and
shall have no obligation to the Certificate Owners;
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(c) to the extent that the provisions of this Section 3.11
conflict with any other provisions of this Agreement, the provisions of
this Section 3.11 shall control;
(d) the rights of the Certificate Owners shall be exercised
only through the Clearing Agency and shall be limited to those
established by law and agreements between such Certificate Owners and
the Clearing Agency and/or the Clearing Agency Participants and, unless
and until Definitive Certificates are issued pursuant to Section 3.13,
the initial Clearing Agency shall make book-entry transfers among the
Clearing Agency Participants and receive and transmit distributions of
Certificate Balance and interest on such Certificates to such Clearing
Agency Participants; and
(e) whenever this Agreement requires or permits actions to be
taken based upon instructions or directions of Holders of Certificates
evidencing a specified percentage of the Voting Interests, the Clearing
Agency shall be deemed to represent such percentage only to the extent
that it has received written instructions to such effect from
Certificate Owners and/or Clearing Agency Participants owning or
representing, respectively, such required percentage of Voting
Interests and has delivered such instructions to the Owner Trustee.
The Seller or the Owner Trustee may set a record date for the purpose of
determining the identity of Holders of Certificates entitled to vote or to
consent to any action by vote as provided in this Agreement.
SECTION 3.12 Notices to Clearing Agency. With respect to any
Certificates issued as Book-Entry Certificates, whenever a notice or other
communication to the Certificateholders is required under this Agreement, unless
and until Definitive Certificates representing such Certificates shall have been
issued to the related Certificate Owners pursuant to Section 3.13, the Owner
Trustee shall give all such notices and communications specified herein to be
given to the related Certificateholders to the Clearing Agency and shall have no
further obligation to such Certificate Owners.
SECTION 3.13 Termination of Book-Entry Registration. With
respect to any Certificates issued as Book-Entry Certificates, if (i) the
Administrator advises the Owner Trustee in writing that the Clearing Agency is
no longer willing or able to properly discharge its responsibilities with
respect to the Certificates, and the Administrator is unable to locate a
qualified successor, (ii) the Administrator at its option advises the Owner
Trustee in writing that it elects to terminate the book-entry system through the
Clearing Agency or (iii) after the occurrence of an Event of Default or a
Servicing Default, Certificate Owners representing beneficial interests
aggregating at least a majority of the Voting Interests advise the Clearing
Agency in writing that the continuation of a book-entry system through the
Clearing Agency is no longer in the best interest of the Certificate Owners,
then the Clearing Agency shall notify all Certificate Owners and the Owner
Trustee of the occurrence of any such event and of the availability of
Definitive Certificates to Certificate Owners requesting the same. Upon
surrender to the Owner Trustee of the typewritten Certificate or Certificates
representing Book-Entry Certificates by the Clearing Agency, accompanied by
registration instructions, the Owner Trustee shall execute and authenticate the
related Definitive Certificates in accordance with the instructions of the
Clearing Agency. Neither the Certificate Registrar nor the Owner Trustee shall
be liable for any delay in delivery of such instructions and may
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conclusively rely on, and shall be protected in relying on, such instructions.
Additionally, Definitive Certificates shall be issued to a Certificate Owner (or
its nominee) at any time (subject to the rules and procedures of the Clearing
Agency) upon the request of such Certificate Owner that its interest be
exchanged for a Definitive Certificate or Certificates. Upon the issuance of
such Definitive Certificates, the Owner Trustee shall recognize the Holders of
such Definitive Certificates as Certificateholders.
SECTION 3.14 Seller as Certificateholder. The Seller in its
individual or any other capacity may become the owner or pledgee of Certificates
and may otherwise deal with the Owner Trustee or its Affiliates as if it were
not the Seller.
ARTICLE IV
ACTIONS BY OWNER TRUSTEE
SECTION 4.1 Prior Notice to Certificateholders with Respect
to Certain Matters. The Owner Trustee shall not take action with respect to the
following matters, unless (i) the Owner Trustee shall have notified the
Certificateholders in writing of the proposed action at least 30 days before the
taking of such action, and (ii) the Certificateholders shall not have notified
the Owner Trustee in writing prior to the 30th day after such notice is given
that such Certificateholders have withheld consent or provided alternative
direction:
(a) the initiation of any claim or lawsuit by the Trust (other
than an action to collect on a Receivable or an action by the Indenture
Trustee pursuant to the Indenture) and the compromise of any action,
claim or lawsuit brought by or against the Trust (other than an action
to collect on a Receivable or an action by the Indenture Trustee
pursuant to the Indenture);
(b) the election by the Trust to file an amendment to the
Certificate of Trust, a conformed copy of which is attached hereto as
Exhibit B;
(c) the amendment of the Indenture by a supplemental indenture
in circumstances where the consent of any Noteholder is required;
(d) the amendment of the Indenture by a supplemental indenture
in circumstances where the consent of any Noteholder is not required
and such amendment materially adversely affects the interest of the
Certificateholders (it being understood that the issuance of additional
Certificates as contemplated by Section 3.3 shall not be deemed to
materially adversely affect the interests of the Certificateholders);
(e) the amendment, change or modification of the
Administration Agreement, except to cure any ambiguity or to amend or
supplement any provision in a manner that would not materially
adversely affect the interests of the Certificateholders; or
(f) the appointment pursuant to the Indenture of a successor
Note Registrar, Paying Agent or Indenture Trustee or pursuant to this
Agreement of a successor Certificate
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Registrar, or the consent to the assignment by the Note Registrar,
Paying Agent or Indenture Trustee or Certificate Registrar of its
obligations under the Indenture or this Agreement, as applicable.
SECTION 4.2 Action by Certificateholders with Respect to
Certain Matters. The Owner Trustee shall not have the power, except upon the
written direction of the Certificateholders, to (a) remove the Administrator
under the Administration Agreement pursuant to Section 10 thereof, (b) appoint a
successor Administrator pursuant to Section 10 of the Administration Agreement,
(c) remove the Servicer under the Trust Sale and Servicing Agreement pursuant to
Section 8.2 thereof or (d) except as expressly provided in the Basic Documents,
sell the Receivables transferred to the Trust pursuant to the Trust Sale and
Servicing Agreement or any interest therein after the termination of the
Indenture. The Owner Trustee shall take the actions referred to in the preceding
sentence only upon the affirmative vote of, or a written consent signed by, the
holders of a majority of the Voting Interests upon at least 30 days prior notice
thereof.
SECTION 4.3 Action by Certificateholders with Respect to
Bankruptcy. The Owner Trustee shall not have the power to commence a voluntary
proceeding in bankruptcy relating to the Trust without the unanimous prior
approval of all Holders of Certificates (including the Seller) and the delivery
to the Owner Trustee by each such Certificateholder of a certificate certifying
that such Certificateholder reasonably believes that the Trust is insolvent. By
its acceptance of any Certificate issued to it on the Closing Date, the Seller
agrees that it, at any time that it is the holder thereof, shall not approve or
be deemed to have approved the commencement of a voluntary proceeding in
bankruptcy relating to the Trust for purposes of this Section 4.3 unless such
commencement is approved by the affirmative vote of all of the members of the
Seller's board of directors.
SECTION 4.4 Restrictions on Certificateholders' Power. The
Certificateholders shall not direct the Owner Trustee to take or refrain from
taking any action if such action or inaction would be contrary to any obligation
of the Trust or the Owner Trustee under this Agreement or any of the Basic
Documents or would be contrary to Section 2.3, nor shall the Owner Trustee be
obligated to follow any such direction, if given.
SECTION 4.5 Majority Control. Except as expressly provided
herein, any action that may be taken or consent that may be given or withheld by
the Certificateholders under this Agreement shall be effective if such action is
taken or such consent is given or withheld by the Holders of Certificates
evidencing not less than a majority of the Voting Interests thereof. Except as
expressly provided herein, any written notice of the Certificateholders
delivered pursuant to this Agreement shall be effective if signed by Holders of
Certificates evidencing not less than a majority of the Voting Interests at the
time of the delivery of such notice.
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ARTICLE V
APPLICATION OF TRUST FUNDS; CERTAIN DUTIES
SECTION 5.1 Establishment of Certificate Distribution
Account.
(a) The Servicer, for the benefit of the Certificateholders,
shall establish and maintain in the name of the Owner Trustee an Eligible
Deposit Account known as the Superior Wholesale Inventory Financing Trust V
Certificate Distribution Account (the "Certificate Distribution Account"),
bearing an additional designation clearly indicating that the funds deposited
therein are held for the benefit of the Certificateholders. The Certificate
Distribution Account shall initially be established with The Chase Manhattan
Bank.
(b) The Owner Trustee shall possess all right, title and
interest in and to all funds on deposit from time to time in the Certificate
Distribution Account and in all proceeds thereof (except Investment Proceeds
therefrom as set forth in the Trust Sale and Servicing Agreement) for the
benefit of the Certificateholders. Except as otherwise provided herein or in the
Trust Sale and Servicing Agreement, the Certificate Distribution Account shall
be under the sole dominion and control of the Owner Trustee for the benefit of
the Certificateholders. If, at any time, the Certificate Distribution Account
ceases to be an Eligible Deposit Account, the Owner Trustee (or the Servicer on
behalf of the Owner Trustee, if the Certificate Distribution Account is not then
held by the Owner Trustee or an Affiliate thereof) shall within 10 Business Days
(or such longer period, not to exceed 30 calendar days, as to which each Rating
Agency may consent) establish a new Certificate Distribution Account as an
Eligible Deposit Account and shall transfer any cash and/or any investments to
such new Certificate Distribution Account.
SECTION 5.2 Application of Trust Funds.
(a) On each Distribution Date, the Owner Trustee shall
distribute to the Certificateholders the amounts deposited in the Certificate
Distribution Account pursuant to Section 4.5 of the Trust Sale and Servicing
Agreement with respect to such Distribution Date (i) to the extent of the amount
deposited with respect to Aggregate Certificateholders' Interest, pro rata based
upon the amount of interest due with respect to each Certificate and (ii) to the
extent of any amount deposited with respect to Aggregate Certificateholder's
Principal, on a pro rata basis. Notwithstanding the foregoing or anything else
to the contrary in this Agreement or the other Basic Documents, so long as
Certificates representing in the aggregate a 100% beneficial interest in the
Trust are held by the Seller, (i) no Certificate Distribution Account shall be
required to be established or maintained and (ii) all distributions and payments
on the Certificates (including the final distribution as contemplated by Section
7.1(c) hereof) required hereunder or under the Trust Sale and Servicing
Agreement shall be made directly to the Seller by the Indenture Trustee (whether
or not the Trust Sale and Servicing Agreement otherwise contemplates deposit
into the Certificate Distribution Account) and the Owner Trustee shall have no
duty or liability to see to such distribution.
(b) On each Distribution Date, the Owner Trustee shall send to
each Certificateholder the statement provided to the Owner Trustee by the
Servicer pursuant to Section 4.8 of the Trust Sale and Servicing Agreement on
such Distribution Date setting forth, among other things, the amount of the
distribution allocable to Certificate Balance and to interest, the Certificate
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Balance after giving effect to such distribution, the balance of the Reserve
Fund (and amounts, if any, distributed from the Reserve Fund), and the Monthly
Servicing Fee with respect to the Distribution Date or the related Collection
Period, as applicable, each since the last statement so provided to
Certificateholders; provided that no such statement shall be required to be sent
by the Owner Trustee so long as the Seller is the sole Certificateholder.
(c) If any withholding tax is imposed on the Trust's
distribution (or allocations of income) to a Certificateholder, such tax shall
reduce the amount otherwise distributable to the Certificateholder in accordance
with this Section 5.2; provided that the Owner Trustee shall not have an
obligation to withhold any such amount so long as the Seller is the sole
Certificateholder. The Owner Trustee is hereby authorized and directed to retain
from amounts otherwise distributable to the Certificateholders sufficient funds
for the payment of any tax that is legally owed by the Trust (but such
authorization shall not prevent the Owner Trustee from contesting any such tax
in appropriate proceedings and withholding payment of such tax, if permitted by
law, pending the outcome of such proceedings). The amount of any withholding tax
imposed with respect to a Certificateholder shall be treated as cash distributed
to such Certificateholder at the time it is withheld by the Trust and remitted
to the appropriate taxing authority. If there is a possibility that withholding
tax is payable with respect to a distribution (such as a distribution to a
non-U.S. Certificateholder), the Owner Trustee may in its sole discretion
withhold such amounts in accordance with this Section 5.2(c). If a
Certificateholder wishes to apply for a refund of any such withholding tax, the
Owner Trustee shall reasonably cooperate with such Certificateholder in making
such claim so long as such Certificateholder agrees to reimburse the Owner
Trustee for any out-of-pocket expenses incurred.
(d) If the Indenture Trustee holds escheated funds for payment
to the Trust pursuant to Section 3.3(e) of the Indenture, the Owner Trustee
shall, upon notice from the Indenture Trustee that such funds exist, submit on
behalf of the Trust an Issuer Order to the Indenture Trustee pursuant to Section
3.3(e) of the Indenture instructing the Indenture Trustee to pay such funds to
or at the order of the Seller.
SECTION 5.3 Method of Payment. Subject to Section 7.1(c) and
subject to the right of the Owner Trustee and the Clearing Agency to agree
otherwise in the case of Book-Entry Certificates, distributions required to be
made to Certificateholders on any Distribution Date shall be made to each
Certificateholder of record on the related Record Date either by wire transfer,
in immediately available funds, to the account of such Holder at a bank or other
entity having appropriate facilities therefor, if such Certificateholder shall
have provided to the Certificate Registrar appropriate written instructions at
least five Business Days prior to such Record Date, or, if not, by check mailed
to such Certificateholder at the address of such Holder appearing in the
Certificate Register.
SECTION 5.4 Accounting and Reports to the Certificateholders,
the Internal Revenue Service and Others. The Owner Trustee shall (a) maintain
(or cause to be maintained) the books of the Trust on a calendar year basis on
the accrual method of accounting, (b) deliver to each Certificateholder, as may
be required by the Code and applicable Treasury Regulations or otherwise, such
information as may be required to enable each Certificateholder to prepare its
federal income tax return, (c) file such tax returns relating to the Trust and
make such elections as may from time to time be required or appropriate under
any applicable state or federal statute or rule or regulation
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thereunder so as to maintain the Trust's characterization as a partnership for
federal income tax purposes, (d) cause such tax returns to be signed in the
manner required by law and (e) collect or cause to be collected any withholding
tax as described in and in accordance with subsection 5.2(c) with respect to
income or distributions to Certificateholders. In preparing and filing tax
returns for the Trust, the Owner Trustee shall allocate taxable income of the
Trust for each Collection Period in the following manner: (A) to the
Certificateholders, an amount equal to the sum of (1) interest distributable on
the Certificates on the Distribution Date related to such Collection Period and
(2) any Trust income attributable to discount on the Receivables that
corresponds to any excess of the Certificate Balance of the Certificates over
their initial issue price; and (B) to the Seller, if and to the extent that the
taxable income of the Trust for such Collection Period exceeds the amount
computed under (A) above. Unless otherwise permitted or required by any
applicable law or regulation, the Owner Trustee shall allocate amounts of
taxable income of the Trust for a particular Collection Period among the
Certificateholders in proportion to the Certificate Balance owned by them as of
the Record Date for the related Distribution Date.
SECTION 5.5 Signature on Returns; Tax Matters Partner.
Subject to Section 2.11, the Owner Trustee shall sign on behalf of the Trust any
and all tax returns of the Trust, unless applicable law requires a
Certificateholder to sign such documents, in which case such documents shall be
signed by the Seller. The Seller shall be the "tax matters partner" of the Trust
pursuant to the Code.
ARTICLE VI
THE OWNER TRUSTEE
SECTION 6.1 Duties of Owner Trustee.
(a) The Owner Trustee undertakes to perform such duties, and
only such duties, as are specifically set forth in this Agreement and the other
Basic Documents, including the administration of the Trust in the interest of
the Certificateholders, subject to the Basic Documents and in accordance with
the provisions of this Agreement. No implied covenants or obligations shall be
read into this Agreement.
(b) Notwithstanding the foregoing, the Owner Trustee shall be
deemed to have discharged its duties and responsibilities hereunder and under
the Basic Documents to the extent the Administrator has agreed in the
Administration Agreement to perform any act or to discharge any duty of the
Owner Trustee hereunder or under any Basic Document, and the Owner Trustee shall
not be liable for the default or failure of the Administrator to carry out its
obligations under the Administration Agreement.
(c) In the absence of bad faith on its part, the Owner Trustee
may conclusively rely upon certificates or opinions furnished to the Owner
Trustee and conforming to the requirements of this Agreement in determining the
truth of the statements and the correctness of the opinions contained therein;
provided, however, that the Owner Trustee shall have examined such certificates
or opinions so as to determine compliance of the same with the requirements of
this Agreement.
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(d) The Owner Trustee may not be relieved from liability
for its own negligent action, its own negligent failure to act or its own
willful misconduct, except that:
(i) this subsection 6.1(d) shall not limit the effect of
subsection 6.1(a) or (b);
(ii) the Owner Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer unless it is
proved that the Owner Trustee was negligent in ascertaining the
pertinent facts; and
(iii) the Owner Trustee shall not be liable with respect to
any action it takes or omits to take in good faith in accordance with a
direction received by it pursuant to Section 4.1, 4.2 or 6.4.
(e) Subject to Sections 5.1 and 5.2, monies received by
the Owner Trustee hereunder need not be segregated in any manner except to the
extent required by law or the Trust Sale and Servicing Agreement and may be
deposited under such general conditions as may be prescribed by law, and the
Owner Trustee shall not be liable for any interest thereon.
(f) The Owner Trustee shall not take any action that (i)
is inconsistent with the purposes of the Trust set forth in Section 2.3 or (ii)
would, to the actual knowledge of a Responsible Officer of the Owner Trustee,
result in the Trust's becoming taxable as a corporation for federal income tax
purposes.
(g) The Certificateholders shall not direct the Owner
Trustee to take action that would violate the provisions of this Section 6.1.
SECTION 6.2 Rights of Owner Trustee. The Owner Trustee is
authorized and directed to execute and deliver the Basic Documents and each
certificate or other document attached as an exhibit to or contemplated by the
Basic Documents to which the Trust is to be a party, in such form as the Seller
shall approve as evidenced conclusively by the Owner Trustee's execution
thereof. In addition to the foregoing, the Owner Trustee is authorized, but
shall not be obligated, to take all actions required of the Trust pursuant to
the Basic Documents. The Owner Trustee is further authorized from time to time
to take such action as the Administrator recommends with respect to the Basic
Documents.
SECTION 6.3 Acceptance of Trusts and Duties. Except as
otherwise provided in this Article VI, in accepting the trusts hereby created,
Chase Manhattan Bank Delaware acts solely as Owner Trustee hereunder and not in
its individual capacity and all Persons having any claim against the Owner
Trustee by reason of the transactions contemplated by this Agreement or any
Basic Document shall look only to the Owner Trust Estate for payment or
satisfaction thereof. The Owner Trustee accepts the trusts hereby created and
agrees to perform its duties hereunder with respect to such trusts but only upon
the terms of this Agreement. The Owner Trustee also agrees to disburse all
monies actually received by it constituting part of the Owner Trust Estate upon
the terms of the Basic Documents and this Agreement. The Owner Trustee shall not
be liable or accountable hereunder or under any Basic Document under any
circumstances, except (i) for its own negligent action, its own negligent
failure to act or its own wilful misconduct or (ii) in the case of the
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inaccuracy of any representation or warranty contained in Section 6.6 and
expressly made by the Owner Trustee. In particular, but not by way of limitation
(and subject to the exceptions set forth in the preceding sentence):
(a) the Owner Trustee shall at no time have any responsibility
or liability for or with respect to the legality, validity and
enforceability of any Receivable held by the Trust, or the perfection
and priority of any security interest created by any such Receivable in
any Vehicle or the maintenance of any such perfection and priority, or
for or with respect to the sufficiency of the Owner Trust Estate or its
ability to generate the distributions and payments to be made to
Certificateholders under this Agreement or to Noteholders under the
Indenture, including, without limitation: the existence and contents of
any such Receivable on any computer or other record thereof; the
validity of the assignment of any such Receivable to the Trust or of
any intervening assignment; the completeness of any such Receivable;
the performance or enforcement of any such Receivable; the compliance
by the Seller or the Servicer with any warranty or representation made
under any Basic Document or in any related document or the accuracy of
any such warranty or representation or any action of the Administrator,
the Trustee or the Servicer or any subservicer taken in the name of the
Owner Trustee;
(b) the Owner Trustee shall not be liable with respect to any
action taken or omitted to be taken by it in accordance with the
instructions of the Administrator or any Certificateholder;
(c) no provision of this Agreement or any Basic Document shall
require the Owner Trustee to expend or risk funds or otherwise incur
any financial liability in the performance of any of its rights or
powers hereunder or under any Basic Document, if the Owner Trustee
shall have reasonable grounds for believing that repayment of such
funds or adequate indemnity against such risk or liability is not
reasonably assured or provided to it;
(d) under no circumstances shall the Owner Trustee be liable
for indebtedness evidenced by or arising under any of the Basic
Documents, including the principal of and interest on the Notes or the
Certificate Balance of and interest on the Certificates;
(e) the Owner Trustee shall not be responsible for or in
respect of and makes no representation as to the validity or
sufficiency of any provision of this Agreement or for the due execution
hereof by the Seller or for the form, character, genuineness,
sufficiency, value or validity of any of the Owner Trust Estate or for
or in respect of the validity or sufficiency of the Basic Documents,
the Notes, the Certificates (other than the certificate of
authentication on the Certificates) or of any Receivables held by the
Trust or any related documents, and the Owner Trustee shall in no event
assume or incur any liability, duty or obligation to any Noteholder or
to any Certificateholder, other than as expressly provided for herein
and in the Basic Documents;
(f) the Owner Trustee shall not be liable for the default or
misconduct of the Administrator, the Indenture Trustee, the Seller or
the Servicer under any of the Basic Documents or otherwise and the
Owner Trustee shall have no obligation or liability to
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perform the obligations of the Trust under this Agreement or the Basic
Documents that are required to be performed by the Administrator under
the Administration Agreement, the Indenture Trustee under the Indenture
or the Servicer under the Pooling and Servicing Agreement or the Trust
Sale and Servicing Agreement; and
(g) the Owner Trustee shall be under no obligation to exercise
any of the rights or powers vested in it by this Agreement, or to
institute, conduct or defend any litigation under this Agreement or
otherwise or in relation to this Agreement or any Basic Document, at
the request, order or direction of any of the Certificateholders,
unless such Certificateholders have offered to the Owner Trustee
security or indemnity satisfactory to it against the costs, expenses
and liabilities that may be incurred by the Owner Trustee therein or
thereby. The right of the Owner Trustee to perform any discretionary
act enumerated in this Agreement or in any Basic Document shall not be
construed as a duty, and the Owner Trustee shall not be answerable for
other than its negligence or wilful misconduct in the performance of
any such act.
SECTION 6.4 Action upon Instruction by Certificateholders.
(a) Subject to Section 4.4, the Certificateholders may by
written instruction direct the Owner Trustee in the management of the Trust.
Such direction may be exercised at any time by written instruction of the
Certificateholders pursuant to Section 4.5.
(b) Notwithstanding the foregoing, the Owner Trustee shall not
be required to take any action hereunder or under any Basic Document if the
Owner Trustee shall have reasonably determined, or shall have been advised by
counsel, that such action is likely to result in liability on the part of the
Owner Trustee or is contrary to the terms hereof or of any Basic Document or is
otherwise contrary to law.
(c) Whenever the Owner Trustee is unable to decide between
alternative courses of action permitted or required by the terms of this
Agreement or any Basic Document, or is unsure as to the application, intent,
interpretation or meaning of any provision of this Agreement or the Basic
Documents, the Owner Trustee shall promptly give notice (in such form as shall
be appropriate under the circumstances) to the Certificateholders requesting
instruction as to the course of action to be adopted, and, to the extent the
Owner Trustee acts in good faith in accordance with any such instruction
received, the Owner Trustee shall not be liable on account of such action to any
Person. If the Owner Trustee shall not have received appropriate instructions
within ten days of such notice (or within such shorter period of time as
reasonably may be specified in such notice or may be necessary under the
circumstances) it may, but shall be under no duty to, take or refrain from
taking such action which is consistent, in its view, with this Agreement or the
Basic Documents, and as it shall deem to be in the best interests of the
Certificateholders, and the Owner Trustee shall have no liability to any Person
for any such action or inaction.
SECTION 6.5 Furnishing of Documents. The Owner Trustee shall
furnish (a) to the Certificateholders, promptly upon receipt of a written
request therefor, duplicates or copies of all reports, notices, requests,
demands, certificates, financial statements and any other instruments furnished
to the Owner Trustee under the Basic Documents and (b) to the Noteholders and
the
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Certificateholders, promptly upon receipt of a written request therefor, copies
of the Pooling and Servicing Agreement, the Trust Sale and Servicing Agreement,
the Administration Agreement, the Custodian Agreement and this Agreement.
SECTION 6.6 Representations and Warranties of Owner Trustee.
The Owner Trustee hereby represents and warrants to the Seller, for the benefit
of the Certificateholders, that:
(a) It is a banking corporation duly organized, validly
existing and in good standing under the laws of the state of its incorporation.
(b) It has full power, authority and legal right to execute,
deliver and perform this Agreement, and has taken all necessary action to
authorize the execution, delivery and performance by it of this Agreement. The
eligibility requirements set forth in Section 6.13 are satisfied with respect to
it.
(c) The execution, delivery and performance by it of this
Agreement (i) shall not violate any provision of any law or regulation governing
the banking and trust powers of the Owner Trustee or any order, writ, judgment
or decree of any court, arbitrator or governmental authority applicable to the
Owner Trustee or any of its assets, (ii) shall not violate any provision of the
corporate charter or by-laws of the Owner Trustee or (iii) shall not violate any
provision of, or constitute, with or without notice or lapse of time, a default
under, or result in the creation or imposition of any lien on any properties
included in the Trust pursuant to the provisions of any mortgage, indenture,
contract, agreement or other undertaking to which it is a party, which
violation, default or lien could reasonably be expected to have a materially
adverse effect on the Owner Trustee's performance or ability to perform its
duties as Owner Trustee under this Agreement or on the transactions contemplated
in this Agreement.
(d) The execution, delivery and performance by the Owner
Trustee of this Agreement shall not require the authorization, consent or
approval of, the giving of notice to, the filing or registration with, or the
taking of any other action in respect of, any Governmental Authority regulating
the banking and corporate trust activities of banks or trust companies in the
jurisdiction in which the Trust was formed.
(e) This Agreement has been duly executed and delivered by the
Owner Trustee and constitutes the legal, valid and binding agreement of the
Owner Trustee, enforceable in accordance with its terms, except as
enforceability may be limited by bankruptcy, insolvency, reorganization, or
other similar laws affecting the enforcement of creditors' rights in general and
by general principles of equity, regardless of whether such enforceability is
considered in a proceeding in equity or at law.
SECTION 6.7 Reliance; Advice of Counsel.
(a) The Owner Trustee shall incur no liability to anyone in
acting upon any signature, instrument, notice, resolution, request, consent,
order, certificate, report, opinion, bond or other document or paper believed by
it to be genuine and believed by it to be signed by the proper party or parties
and need not investigate any fact or matter in any such document. The Owner
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Trustee may accept a certified copy of a resolution of the board of directors or
other governing body of any corporate party as conclusive evidence that such
resolution has been duly adopted by such body and that the same is in full force
and effect. As to any fact or matter the method of the determination of which is
not specifically prescribed herein, the Owner Trustee may for all purposes
hereof rely on a certificate, signed by the president or any vice president or
by the treasurer or other authorized officers of the relevant party, as to such
fact or matter, and such certificate shall constitute full protection to the
Owner Trustee for any action taken or omitted to be taken by it in good faith in
reliance thereon.
(b) In the exercise or administration of the trusts hereunder
and in the performance of its duties and obligations under this Agreement or the
Basic Documents, the Owner Trustee: (i) may act directly or through its agents,
attorneys, custodians or nominees pursuant to agreements entered into with any
of them, and the Owner Trustee shall not be liable for the conduct or misconduct
of such agents, attorneys, custodians or nominees if such agents, attorneys,
custodians or nominees shall have been selected by the Owner Trustee with
reasonable care; and (ii) may consult with counsel, accountants and other
skilled professionals to be selected with reasonable care and employed by it.
The Owner Trustee shall not be liable for anything done, suffered or omitted in
good faith by it in accordance with the opinion or advice of any such counsel,
accountants or other such Persons and not contrary to this Agreement or any
Basic Document.
SECTION 6.8 Owner Trustee May Own Certificates and Notes. The
Owner Trustee in its individual or any other capacity may become the owner or
pledgee of Certificates or Notes and may deal with the Seller, the
Administrator, the Indenture Trustee and the Servicer in transactions in the
same manner as it would have if it were not the Owner Trustee.
SECTION 6.9 Compensation and Indemnity. The Owner Trustee
shall receive as compensation for its services hereunder such fees as have been
separately agreed upon before the date hereof between the Seller and the Owner
Trustee, and the Owner Trustee shall be entitled to be reimbursed by the
Servicer for its other reasonable expenses hereunder, including the reasonable
compensation, expenses and disbursements of such agents, custodians, nominees,
representatives, experts and counsel as the Owner Trustee may employ in
connection with the exercise and performance of its rights and its duties
hereunder. The Servicer shall indemnify the Owner Trustee and its successors,
assigns, agents and servants in accordance with the provisions of Section 7.1 of
the Trust Sale and Servicing Agreement. The indemnities contained in this
Section 6.9 shall survive the resignation or termination of the Owner Trustee or
the termination of this Agreement. Any amounts paid to the Owner Trustee
pursuant to this Article VI shall be deemed not to be a part of the Owner Trust
Estate immediately after such payment.
SECTION 6.10 Replacement of Owner Trustee.
(a) The Owner Trustee may at any time give notice of its
intent to resign and be discharged from the trusts hereby created by giving
written notice thereof to the Administrator; provided that no such resignation
shall become effective, and the Owner Trustee shall not resign, prior to the
time set forth in Section 6.10(c). The Administrator may appoint a successor
Owner Trustee by delivering written instrument, in duplicate, to the resigning
Owner Trustee and the successor Owner Trustee. If no successor Owner Trustee
shall have been appointed and have
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accepted appointment within 30 days after the giving of such notice, the
resigning Owner Trustee giving such notice may petition any court of competent
jurisdiction for the appointment of a successor Owner Trustee. The Administrator
shall remove the Owner Trustee if:
(i) the Owner Trustee shall cease to be eligible in
accordance with the provisions of Section 6.13 and shall fail to resign
after written request therefor by the Administrator;
(ii) the Owner Trustee shall be adjudged bankrupt or
insolvent;
(iii) a receiver or other public officer shall be appointed or
take charge or control of the Owner Trustee or of its property or
affairs for the purpose of rehabilitation, conservation or liquidation;
or
(iv) the Owner Trustee shall otherwise be incapable of
acting.
(b) If the Owner Trustee resigns or is removed or if a
vacancy exists in the office of Owner Trustee for any reason the Administrator
shall promptly appoint a successor Owner Trustee by written instrument, in
duplicate (one copy of which instrument shall be delivered to the outgoing Owner
Trustee so removed and one copy to the successor Owner Trustee) and shall pay
all fees owed to the outgoing Owner Trustee.
(c) Any resignation or removal of the Owner Trustee and
appointment of a successor Owner Trustee pursuant to any of the provisions of
this Section 6.10 shall not become effective, and no such resignation shall be
deemed to have occurred, until a written acceptance of appointment is delivered
by the successor Owner Trustee to the outgoing Owner Trustee and the
Administrator, and all fees and expenses due to the outgoing Owner Trustee are
paid. Any successor Owner Trustee appointed pursuant to this Section 6.10 shall
be eligible to act in such capacity in accordance with Section 6.13 and,
following compliance with the preceding sentence, shall become fully vested with
all the rights, powers, duties and obligations of its predecessor under this
Agreement, with like effect as if originally named as Owner Trustee. The
Administrator shall provide notice of such resignation or removal of the Owner
Trustee to each of the Rating Agencies.
(d) The predecessor Owner Trustee shall upon payment of its
fees and expenses deliver to the successor Owner Trustee all documents and
statements and monies held by it under this Agreement. The Administrator and the
predecessor Owner Trustee shall execute and deliver such instruments and do such
other things as may reasonably be required for fully and certainly vesting and
confirming in the successor Owner Trustee all such rights, powers, duties and
obligations.
(e) Upon acceptance of appointment by a successor Owner
Trustee pursuant to this Section 6.10, the Administrator shall mail notice of
the successor of such Owner Trustee to all Certificateholders, the Indenture
Trustee, the Noteholders and the Rating Agencies.
SECTION 6.11 Merger or Consolidation of Owner Trustee. Any
Person into which the Owner Trustee may be merged or converted or with which it
may be consolidated, or any corporation resulting from any merger, conversion or
consolidation to which the Owner Trustee shall be a party, or any Person
succeeding to all or substantially all of the corporate trust business of the
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Owner Trustee, shall be the successor of the Owner Trustee hereunder, provided
such Person shall be eligible pursuant to Section 6.13, and without the
execution or filing of any instrument or any further act on the part of any of
the parties hereto; provided, however, that the Owner Trustee shall mail notice
of such merger or consolidation to the Rating Agencies.
SECTION 6.12 Appointment of Co-Trustee or Separate Trustee.
(a) Notwithstanding any other provisions of this Agreement,
at any time, for the purpose of meeting any legal requirement of any
jurisdiction in which any part of the Owner Trust Estate or any of the Dealers
may at the time be located, the Administrator and the Owner Trustee acting
jointly shall have the power and shall execute and deliver all instruments to
appoint one or more Persons approved by the Owner Trustee to act as co-trustee,
jointly with the Owner Trustee, or as separate trustee or trustees, of all or
any part of the Owner Trust Estate, and to vest in such Person, in such
capacity, such title to the Trust, or any part thereof, and, subject to the
other provisions of this Section 6.12, such powers, duties, obligations, rights
and trusts as the Administrator and the Owner Trustee may consider necessary or
desirable. If the Administrator shall not have joined in such appointment within
15 days after the receipt by it of a request so to do, the Owner Trustee alone
shall have the power to make such appointment. No co-trustee or separate trustee
under this Agreement shall be required to meet the terms of eligibility as a
successor trustee pursuant to Section 6.13 and no notice of the appointment of
any co-trustee or separate trustee shall be required pursuant to Section 6.10.
(b) Each separate trustee and co-trustee shall, to the
extent permitted by law, be appointed and act subject to the following
provisions and conditions:
(i) all rights, powers, duties and obligations conferred or
imposed upon the Owner Trustee shall be conferred upon and exercised or
performed by the Owner Trustee and such separate trustee or co-trustee
jointly (it being understood that such separate trustee or co-trustee
is not authorized to act separately without the Owner Trustee joining
in such act), except to the extent that under any law of any
jurisdiction in which any particular act or acts are to be performed,
the Owner Trustee shall be incompetent or unqualified to perform such
act or acts, in which event such rights, powers, duties and obligations
(including the holding of title to the Trust or any portion thereof in
any such jurisdiction) shall be exercised and performed singly by such
separate trustee or co-trustee, but solely at the direction of the
Owner Trustee;
(ii) no trustee under this Agreement shall be personally
liable by reason of any act or omission of any other trustee under this
Agreement; and
(iii) the Administrator and the Owner Trustee acting jointly
may at any time accept the resignation of or remove any separate
trustee or co-trustee.
(c) Any notice, request or other writing given to the Owner
Trustee shall be deemed to have been given to each of the then separate trustees
and co-trustees, as effectively as if given to each of them. Every instrument
appointing any separate trustee or co-trustee shall refer to this Agreement and
the conditions of this Article. Each separate trustee and co-trustee, upon its
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acceptance of the trusts conferred, shall be vested with the estates or property
specified in its instrument of appointment, either jointly with the Owner
Trustee or separately, as may be provided therein, subject to all the provisions
of this Agreement, specifically including every provision of this Agreement
relating to the conduct of, affecting the liability of, or affording protection
to, the Owner Trustee. Each such instrument shall be filed with the Owner
Trustee and a copy thereof given to the Administrator.
(d) Any separate trustee or co-trustee may at any time
appoint the Owner Trustee as its agent or attorney-in-fact with full power and
authority, to the extent not prohibited by law, to do any lawful act under or in
respect of this Agreement on its behalf and in its name. If any separate trustee
or co-trustee shall die, become incapable of acting, resign or be removed, all
of its estates, properties, rights, remedies and trusts shall vest in and be
exercised by the Owner Trustee, to the extent permitted by law, without the
appointment of a new or successor trustee.
SECTION 6.13 Eligibility Requirements for Owner Trustee. The
Owner Trustee shall at all times satisfy the requirements of Section 26(a)(1) of
the Investment Company Act. The Owner Trustee shall at all times: (a) be a
corporation satisfying the provisions of Section 3807(a) of the Business Trust
Statute; (b) be authorized to exercise corporate trust powers; (c) have an
aggregate capital, surplus and undivided profits of at least $50,000,000 and be
subject to supervision or examination by federal or state authorities; and (d)
have (or have a parent which has) a long-term unsecured debt rating of at least
BBB- by Standard & Poor's and at least Baa3 by Moody's. If such corporation
shall publish reports of condition at least annually, pursuant to law or to the
requirements of the aforesaid supervising or examining authority, then for the
purpose of this Section 6.13, the aggregate capital, surplus and undivided
profits of such corporation shall be deemed to be its aggregate capital, surplus
and undivided profits as set forth in its most recent report of condition so
published. If at any time the Owner Trustee shall cease to be eligible in
accordance with the provisions of this Section 6.13, the Owner Trustee shall
resign immediately in the manner and with the effect specified in Section 6.10.
ARTICLE VII
TERMINATION OF TRUST AGREEMENT
SECTION 7.1 Termination of Trust Agreement.
(a) The Trust shall terminate in accordance with Section 3808
of the Business Trust Statute on the date (the "Trust Termination Date") on
which the first of the following occurs: (i) if the Seller so elects, the day
following the Distribution Date on which all amounts required to be paid to the
Securityholders pursuant to the Basic Documents have been paid (or deposited in
the Note Distribution Account, the Certificate Distribution Account or the
Revolver Distribution Account) and the aggregate Outstanding Amount of the
Revolving Notes is zero and (ii) the Specified Trust Termination Date. This
Agreement and the obligations of the parties hereunder (other than Section 6.9
hereof and as otherwise expressly provided herein) shall terminate and be of no
further force or effect (i) if the Trust Termination Date is determined pursuant
to clause (i) above, on the Trust Termination Date and (ii) if the Trust
Termination Date is determined pursuant to clause (ii) above, on the date
following the Distribution Date on which the final payments to be made to the
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Securityholders pursuant to the Basic Documents have been paid (or deposited in
the appropriate Distribution Accounts).
(b) The bankruptcy, liquidation, dissolution, death or
incapacity of any Certificateholder shall not (x) operate to terminate this
Agreement or the Trust, nor (y) entitle such Certificateholder's legal
representatives or heirs to claim an accounting or to take any action or
proceeding in any court for a partition or winding-up of all or any part of the
Trust or the Owner Trust Estate nor (z) otherwise affect the rights, obligations
and liabilities of the parties hereto. Except as provided in Section 7.1(a),
neither the Seller nor any Certificateholder shall be entitled to revoke or
terminate the Trust or this Agreement.
(c) Notice of any termination of the Trust specifying the
Distribution Date upon which the Certificateholders shall surrender their
Certificates to the Paying Agent for distribution of the final distribution and
cancellation, shall be given by the Owner Trustee by letter to
Certificateholders mailed within five Business Days of receipt of notice of such
termination from the Servicer given pursuant to Section 9.4 of the Trust Sale
and Servicing Agreement, stating: (i) the Distribution Date upon or with respect
to which the final distribution of the Certificate Balance of the Certificates
shall be made upon presentation and surrender of the Certificates at the office
of the Paying Agent therein designated; (ii) the amount of any such final
distribution of the Certificate Balance; and (iii) that the Record Date
otherwise applicable to such Distribution Date is not applicable, distributions
being made only upon presentation and surrender of the Certificates at the
office of the Paying Agent therein specified. The Owner Trustee shall give such
notice to the Certificate Registrar (if other than the Owner Trustee) and the
Paying Agent at the time such notice is given to Certificateholders. Upon
presentation and surrender of the Certificates, the Paying Agent shall cause to
be distributed to Certificateholders amounts distributable on such Distribution
Date pursuant to Section 5.2.
(d) Notice of any termination of the Trust specifying the
Distribution Date upon which the Certificateholders shall surrender their
Certificates to the Paying Agent for distribution of the final distribution and
cancellation, shall be given by the Owner Trustee by letter to
Certificateholders mailed within five Business Days of receipt of notice of such
termination from the Servicer given pursuant to Section 9.4 of the Trust Sale
and Servicing Agreement, stating: (i) the Distribution Date upon or with respect
to which the final distribution of the Certificate Balance of the Certificates
shall be made upon presentation and surrender of the Certificates at the office
of the Paying Agent therein designated; (ii) the amount of any such final
distribution of the Certificate Balance; and (iii) that the Record Date
otherwise applicable to such Distribution Date is not applicable, distributions
being made only upon presentation and surrender of the Certificates at the
office of the Paying Agent therein specified. The Owner Trustee shall give such
notice to the Certificate Registrar (if other than the Owner Trustee) and the
Paying Agent at the time such notice is given to Certificateholders. Upon
presentation and surrender of the Certificates, the Paying Agent shall cause to
be distributed to Certificateholders amounts distributable on such Distribution
Date pursuant to Section 5.2. The Seller shall have the beneficial interest in
any assets remaining in the Trust following final payment of the Certificates.
(e) If all of the Certificateholders shall not surrender their
Certificates for cancellation within six months after the date specified in the
written notice specified in subsection
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7.1(c), the Owner Trustee shall give a second written notice to the remaining
Certificateholders to surrender their Certificates for cancellation and receive
the final distribution with respect thereto. If within one year after the second
notice all the Certificates shall not have been surrendered for cancellation,
the Owner Trustee may take appropriate steps, or may appoint an agent to take
appropriate steps, to contact the remaining Certificateholders concerning
surrender of their Certificates, and the cost thereof shall be paid out of the
funds and other assets that shall remain subject to this Agreement. Subject to
applicable laws with respect to escheat of funds, any funds remaining in the
Trust after exhaustion of such remedies in the preceding sentence shall be
deemed property of the Seller and distributed by the Owner Trustee to the Seller
and the Owner Trustee shall have no further liability to the Certificateholders
with respect thereto.
(f) Upon the winding up of the Trust and its termination, the
Owner Trustee shall cause the Certificate of Trust to be canceled by filing a
certificate of cancellation with the Secretary of State in accordance with the
provisions of Section 3810 of the Business Trust Statute.
SECTION 7.2 [Reserved].
ARTICLE VIII
AMENDMENTS
SECTION 8.1 Amendments Without Consent of Securityholders.
This Agreement may be amended by the Seller and the Owner Trustee without the
consent of any of the Securityholders (but with prior notice to the Rating
Agencies) to (i) cure any ambiguity, (ii) correct or supplement any provision in
this Agreement that may be defective or inconsistent with any other provision in
this Agreement, (iii) add or supplement any liquidity, credit or other
enhancement arrangement for the benefit of any Securityholders (provided that if
any such addition shall affect any series of Securityholders differently than
any other series of Securityholders, then such addition shall not, as evidenced
by an Opinion of Counsel, adversely affect in any material respect the interests
of any series of Securityholders), (iv) add to the covenants, restrictions or
obligations of the Seller or the Owner Trustee for the benefit of the
Securityholders, (v) evidence and provide for the acceptance of the appointment
of a successor trustee with respect to the Owner Trust Estate and add to or
change any provisions as shall be necessary to facilitate the administration of
the trusts hereunder by more than one trustee pursuant to Article VI, (vi)
restrict transfers of Certificates (or interests therein) or as otherwise
required to prevent the Trust from being treated as a "publicly traded
partnership" under Section 7704 of the Code or (vii) add, change or eliminate
any other provision of this Agreement in any manner that shall not, as evidenced
by an Opinion of Counsel, materially and adversely affect the interests of the
Securityholders.
SECTION 8.2 Amendments With Consent of Certificateholders and
Noteholders. This Agreement may be amended from time to time by the Seller and
the Owner Trustee with the consent of Noteholders whose Notes evidence not less
than a majority of the Outstanding Amount of the Notes as of the close of
business on the preceding Distribution Date and the consent of
Certificateholders whose Certificates evidence not less than a majority of the
Voting Interests as of the close of business on the preceding Distribution Date
(which consent, whether given pursuant to this Section 8.2 or pursuant to any
other provision of this Agreement, shall be conclusive
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and binding on such Person and on all future Holders of such Notes or
Certificates and of any Notes or Certificates issued upon the transfer thereof
or in exchange thereof or in lieu thereof whether or not notation of such
consent is made upon the Notes or Certificates) for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
this Agreement, or of modifying in any manner the rights of the Noteholders or
the Certificateholders; provided, however, that no such amendment shall (a)
increase or reduce in any manner the amount of, or accelerate or delay the
timing of, distributions that shall be required to be made on any Security
without the consent of the Holder thereof (it being understood that the issuance
of any Securities after the Initial Closing Date as contemplated by this
Agreement, the Trust Sale and Servicing Agreement and the Indenture and the
specification of the terms and provisions thereof pursuant to a Certificate
Issuance Order (with respect to any Certificates) or an Officer's Issuance
Certificate (with respect to any Notes) shall not be deemed to have such effect
for purposes hereof), (b) adversely effect the rating of any series of
Securities without the consent of the Holders of two-thirds of the Outstanding
Amount of such series of Notes or the Voting Interests with respect to such
Certificates, as appropriate or (c) reduce the aforesaid percentage required to
consent to any such amendment, without the consent of the Holders of all of the
Notes and all of the Voting Interests with respect to Certificates then
outstanding. Prior to the execution of any such amendment, supplement or
consent, the Owner Trustee shall furnish written notification of the substance
of such amendment, supplement or consent to the Rating Agencies.
SECTION 8.3 Form of Amendments.
(a) Promptly after the execution of any amendment, supplement
or consent pursuant to Section 8.1 or 8.2, the Owner Trustee shall furnish
written notification of the substance of such amendment or consent to each
Certificateholder and the Indenture Trustee.
(b) It shall not be necessary for the consent of
Securityholders or the Indenture Trustee pursuant to Section 8.2 to approve the
particular form of any proposed amendment or consent, but it shall be sufficient
if such consent shall approve the substance thereof. The manner of obtaining
such consents (and any other consents of Securityholders provided for in this
Agreement or in any other Basic Document) and of evidencing the authorization of
the execution thereof by Securityholders shall be subject to such reasonable
requirements as the Owner Trustee may prescribe.
(c) Promptly after the execution of any amendment to the
Certificate of Trust, the Owner Trustee shall cause the filing of such amendment
with the Secretary of State.
(d) Prior to the execution of any amendment to this Agreement
or the Certificate of Trust, the Owner Trustee shall be entitled to receive and
rely upon an Opinion of Counsel stating that the execution of such amendment is
authorized or permitted by this Agreement. The Owner Trustee may, but shall not
be obligated to, enter into any such amendment which affects the Owner Trustee's
own rights, duties or immunities under this Agreement or otherwise.
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ARTICLE IX
MISCELLANEOUS
SECTION 9.1 No Legal Title to Owner Trust Estate. The
Certificateholders shall not have legal title to any part of the Owner Trust
Estate. The Certificateholders shall be entitled to receive distributions with
respect to their undivided ownership interest therein only in accordance with
Articles V and VII. No transfer, by operation of law or otherwise, of any right,
title, and interest of the Certificateholders to and in their ownership interest
in the Owner Trust Estate shall operate to terminate this Agreement or the
trusts hereunder or entitle any transferee to an accounting or to the transfer
to it of legal title to any part of the Owner Trust Estate.
SECTION 9.2 Limitations on Rights of Others. Except for
Section 2.7, Section 7.1(c) and Section 9.13, the provisions of this Agreement
are solely for the benefit of the Owner Trustee, the Seller, the
Certificateholders, the Administrator and, to the extent expressly provided
herein, the Indenture Trustee and the Noteholders, and nothing in this
Agreement, whether express or implied, shall be construed to give to any other
Person any legal or equitable right, remedy or claim in the Owner Trust Estate
or under or in respect of this Agreement or any covenants, conditions or
provisions contained herein.
SECTION 9.3 Derivative Actions. Any provision contained
herein to the contrary notwithstanding, the right of any Certificate Owner to
bring a derivative action in the right of the Trust is hereby made expressly
subject to the following limitations and requirements:
(a) such Certificate Owner must meet all requirements set
forth in the Business Trust Statute; and
(b) no Certificate Owner may bring a derivative action in the
right of the Trust without the prior written consent of Certificate Owners
owning, in the aggregate, a beneficial interest in Certificates representing 50%
of the then outstanding Certificate Balance.
SECTION 9.4 Notices.
(a) All demands, notices and communications upon or to the
Seller, the Servicer, the Administrator, the Indenture Trustee, the Owner
Trustee or the Rating Agencies under this Agreement shall be delivered as
specified in Appendix B to the Trust Sale and Servicing Agreement.
(b) Any notice required or permitted to be given to a
Certificateholder shall be given by first-class mail, postage prepaid, at the
address of such Holder as shown in the Certificate Register. Any notice so
mailed within the time prescribed in this Agreement shall be conclusively
presumed to have been duly given, whether or not the Certificateholder receives
such notice.
SECTION 9.5 Severability of Provisions. If any one or more of
the covenants, agreements, provisions or terms of this Agreement shall be for
any reason whatsoever held invalid, then such covenants, agreements, provisions
or terms shall be deemed enforceable to the fullest extent permitted, and if not
so permitted, shall be deemed severable from the remaining covenants,
agreements, provisions or terms of this Agreement and shall in no way affect the
validity or
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enforceability of the other provisions of this Agreement or of the Certificates
or the rights of the Holders thereof.
SECTION 9.6 Counterparts. This Agreement may be executed in
two or more counterparts (and by different parties on separate counterparts),
each of which shall be an original, but all of which together shall constitute
one and the same instrument.
SECTION 9.7 Successors and Assigns. All covenants and
agreements contained herein shall be binding upon, and inure to the benefit of,
the Seller, the Owner Trustee and each Certificateholder and their respective
successors and permitted assigns, all as herein provided. Any request, notice,
direction, consent, waiver or other instrument or action by a Certificateholder
shall bind the successors and assigns of such Certificateholder.
SECTION 9.8 No Petition Covenants. The Owner Trustee by
entering this Trust Agreement and each Certificateholder, by accepting a
Certificate (or interest therein) issued hereunder, hereby covenants and agrees
that they shall not, prior to the day that is one year and one day after the
termination of the Trust, acquiesce, petition or otherwise invoke or cause the
Seller or the Trust to invoke in any court or government authority for the
purpose of commencing or sustaining a case against the Seller or the Trust under
any federal or state bankruptcy, insolvency or similar law or appointing a
receiver, liquidator, assignee, trustee, custodian, sequestrator or other
similar official of the Seller or the Trust or any substantial part of its
property, or ordering the winding up or liquidation of the affairs of the Seller
or the Trust.
SECTION 9.9 No Recourse. Each Certificateholder and
Certificate Owner, by accepting a Certificate (or interest therein), shall agree
that such Person's Certificates (or interest therein) represent beneficial
interests in the Trust only and do not represent interests in or obligations of
the Seller, the Servicer, the Administrator, the Owner Trustee, the Indenture
Trustee or any Affiliate thereof and no recourse, either directly or indirectly,
may be had against such parties or their assets, except as may be expressly set
forth or contemplated in this Agreement, the Certificates or the Basic
Documents. Except as expressly provided in the Basic Documents, neither the
Seller, the Servicer nor the Owner Trustee in their respective individual
capacities, nor any of their respective partners, beneficiaries, agents,
officers, directors, employees or successors or assigns, shall be personally
liable for, nor shall recourse be had to any of them for, the distribution of
Certificate Balance with respect to or interest on, or performance of, or
omission to perform, any of the covenants, obligations or indemnifications
contained in the Certificates or this Agreement, it being expressly understood
that said covenants, obligations and indemnifications have been made by the
Owner Trustee solely as the Owner Trustee in the assets of the Issuer. Each
Certificateholder or Certificate Owner by the acceptance of a Certificate (or
beneficial interest therein) shall agree that, except as expressly provided in
the Basic Documents, in the case of nonpayment of any amounts with respect to
the Certificates, it shall have no claim against any of the foregoing for any
deficiency, loss or claim therefrom.
SECTION 9.10 Headings. The headings herein are for purposes of
reference only and shall not affect the meaning or interpretation of any
provision hereof.
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SECTION 9.11 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED
BY AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF DELAWARE,
WITHOUT REFERENCE TO THE PRINCIPLES OF CONFLICTS OF LAW THEREOF OR OF ANY OTHER
JURISDICTION, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER
SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
SECTION 9.12 Certificate Transfer Restrictions.
(a) The Certificates may not be acquired by or for the account
of a Benefit Plan unless the Benefit Plan acquiring a Certificate has available
to it an exemption from the prohibited transaction rules under Section 406(a) of
ERISA and Section 4975 of the Code and such exemption is applicable to the
purchase and holding of the Certificates. Unless the Seller determines that such
an exemption is available, by accepting and holding a Certificate, the Holder
thereof and the Certificate Owner shall each be deemed to have represented and
warranted that it is not a Benefit Plan and, if requested to do so by the Seller
pursuant to Section 3.4(b), the Certificateholder and the Certificate Owner
shall execute and deliver to the Owner Trustee an Undertaking Letter in the form
set forth in Exhibit C. The Certificates are also subject to the minimum
denomination specified in Section 3.4(a).
(b) The Certificates will not be registered under the
Securities Act or the securities laws of any other jurisdiction. Consequently,
the Certificates are not transferable other than pursuant to an exemption from
the registration requirements of the Securities Act and satisfaction of certain
other provisions specified herein. No sale, pledge or other transfer of the
Certificates (or interest therein) may be made by any Person unless either (i)
such sale, pledge or other transfer is made to the Seller, (ii) such sale,
pledge or other transfer is made to an Institutional Accredited Investor that
executes a certificate, substantially in the form attached hereto as Exhibit D,
to the effect that it is an Institutional Accredited Investor acting for its own
account (and not for the account of others) or as a fiduciary or agent for
others (which others also are Institutional Accredited Investors unless the
holder is a bank acting in its fiduciary capacity), (iii) so long as the
Certificates are eligible for resale pursuant to Rule 144A under the Securities
Act, such sale, pledge or other transfer is made to a person whom the seller
reasonably believes after due inquiry is a "qualified institutional buyers"
within the meaning of Rule 144A under the Securities Act (a "Qualified
Institutional Buyer") acting for its own account (and not for the account of
others) or as a fiduciary or agent for others (which others also are Qualified
Institutional Buyers) to whom notice is given that the sale, pledge or transfer
is being made in reliance on Rule 144A under the Securities Act, or (iv) such
sale, pledge or other transfer is otherwise made in a transaction exempt from
the registration requirements of the Securities Act, in which case (A) the Owner
Trustee shall require that both the prospective transferor and the prospective
transferee certify to the Owner Trustee and the Seller in writing the facts
surrounding such transfer, which certification shall be in form and substance
satisfactory to the Owner Trustee and the Seller, and (B) the Owner Trustee
shall require a written opinion of counsel (which will not be at the expense of
the Seller or the Owner Trustee) satisfactory to the Seller and the Owner
Trustee to the effect that such transfer will not violate the Securities Act. No
sale, pledge or other transfer may be made to any one person for Certificates
with a face amount of less than $4,000,000 (or such other amount as the Seller
may determine in order to prevent the Trust from being treated as a "publicly
traded partnership" under Section 7704 of the Code, but in no event less than
$250,000)
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and, in the case of any Person acting on behalf of one or more third parties
(other than a bank (as defined in Section 3(a)(2) of the Securities Act) acting
in its fiduciary capacity), for Certificates with a face amount of less than
such amount for each such third party. Any attempted transfer in contravention
of the immediately preceding restriction will be void ab initio and the
purported transferor will continue to be treated as the owner of the
Certificates for all purposes. Neither the Seller nor the Owner Trustee shall be
obligated to register the Certificates under the Securities Act, qualify the
Certificates under the securities laws of any state or provide registration
rights to any purchaser or holder thereof.
(c) Each Certificate shall bear a legend to the effect set
forth in subsections (a) and (b) above.
(d) The Seller shall be responsible for determining compliance
with the restrictions set forth in this Section 9.12.
SECTION 9.13 Indemnification by and Reimbursement of the
Servicer. The Owner Trustee acknowledges and agrees to reimburse (i) the
Servicer and its directors, officers, employees and agents in accordance with
Section 7.3(b) of the Trust Sale and Servicing Agreement and (ii) the Seller and
its directors, officers, employees and agents in accordance with Section 3.4 of
the Trust Sale and Servicing Agreement. The Owner Trustee further acknowledges
and accepts the conditions and limitations with respect to the Servicer's
obligation to indemnify, defend and hold the Owner Trustee harmless as set forth
in Section 7.1(a) of the Trust Sale and Servicing Agreement.
* * * * *
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35
IN WITNESS WHEREOF, the parties hereto have caused this Trust
Agreement to be duly executed by their respective officers hereunto duly
authorized, as of the day and year first above written.
CHASE MANHATTAN BANK DELAWARE, as
Owner Trustee
By:
--------------------------------------------
Name:
Title:
WHOLESALE AUTO RECEIVABLES
CORPORATION, Seller
By:
--------------------------------------------
Name: ▇.▇. ▇▇▇▇
Title: Manager - Securitization
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EXHIBIT A
[FORM OF CERTIFICATE]
NUMBER $185,800,000
SEE REVERSE FOR CERTAIN DEFINITIONS
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION
("DTC"), TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER,
EXCHANGE OR DISTRIBUTION, AND ANY CERTIFICATE ISSUED IS REGISTERED IN
THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC (AND ANY DISTRIBUTION IS MADE TO CEDE
& CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE
REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.(1)
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR UNDER
THE SECURITIES OR BLUE SKY LAWS OF ANY STATE IN THE UNITED STATES OR
ANY FOREIGN SECURITIES LAWS. BY ITS ACCEPTANCE OF THIS CERTIFICATE THE
HOLDER OF THIS CERTIFICATE (A) IS DEEMED TO REPRESENT TO THE SELLER AND
THE OWNER TRUSTEE (i) THAT IT IS AN INSTITUTIONAL INVESTOR THAT IS AN
"ACCREDITED INVESTOR" AS DEFINED IN RULE 501(a)(1), (2), (3) OR (7) OF
REGULATION D PROMULGATED UNDER THE SECURITIES ACT (AN "INSTITUTIONAL
ACCREDITED INVESTOR") AND THAT IT IS ACQUIRING THIS CERTIFICATE FOR ITS
OWN ACCOUNT (AND NOT FOR THE ACCOUNT OF OTHERS) OR AS A FIDUCIARY OR
AGENT FOR OTHERS (WHICH OTHERS ALSO ARE INSTITUTIONAL ACCREDITED
INVESTORS UNLESS THE HOLDER IS A BANK ACTING IN ITS FIDUCIARY CAPACITY)
FOR INVESTMENT AND NOT WITH A VIEW TO, OR FOR OFFER OR SALE IN
CONNECTION WITH, THE PUBLIC DISTRIBUTION HEREOF OR (ii) THAT IT IS A
"QUALIFIED
--------
(1) Applicable only to Book-Entry Certificates.
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37
INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT
AND IS ACQUIRING SUCH CERTIFICATE FOR ITS OWN ACCOUNT (AND NOT FOR THE
ACCOUNT OF OTHERS) OR AS A FIDUCIARY OR AGENT FOR OTHERS (WHICH OTHERS
ALSO ARE QUALIFIED INSTITUTIONAL BUYERS).
NO SALE, PLEDGE OR OTHER TRANSFER OF THIS CERTIFICATE MAY BE
MADE BY ANY PERSON UNLESS EITHER (i) SUCH SALE, PLEDGE OR OTHER
TRANSFER IS MADE TO THE SELLER, (ii) SUCH SALE, PLEDGE OR OTHER
TRANSFER IS MADE TO AN INSTITUTIONAL ACCREDITED INVESTOR THAT EXECUTES
A CERTIFICATE, SUBSTANTIALLY IN THE FORM SPECIFIED IN THE TRUST
AGREEMENT, TO THE EFFECT THAT IT IS AN INSTITUTIONAL ACCREDITED
INVESTOR ACTING FOR ITS OWN ACCOUNT (AND NOT FOR THE ACCOUNT OF OTHERS)
OR AS A FIDUCIARY OR AGENT FOR OTHERS (WHICH OTHERS ALSO ARE
INSTITUTIONAL ACCREDITED INVESTORS UNLESS THE HOLDER IS A BANK ACTING
IN ITS FIDUCIARY CAPACITY), (iii) SO LONG AS THIS CERTIFICATE IS
ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE SECURITIES ACT,
SUCH SALE, PLEDGE OR OTHER TRANSFER IS MADE TO A PERSON WHOM THE SELLER
REASONABLY BELIEVES AFTER DUE INQUIRY IS A "QUALIFIED INSTITUTIONAL
BUYER" (AS DEFINED IN RULE 144A), ACTING FOR ITS OWN ACCOUNT (AND NOT
FOR THE ACCOUNT OF OTHERS) OR AS A FIDUCIARY OR AGENT FOR OTHERS (WHICH
OTHERS ALSO ARE QUALIFIED INSTITUTIONAL BUYERS) TO WHOM NOTICE IS GIVEN
THAT THE SALE, PLEDGE OR TRANSFER IS BEING MADE IN RELIANCE ON RULE
144A, OR (iv) SUCH SALE, PLEDGE OR OTHER TRANSFER IS OTHERWISE MADE IN
A TRANSACTION EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT, IN WHICH CASE (A) THE OWNER TRUSTEE SHALL REQUIRE THAT
BOTH THE PROSPECTIVE TRANSFEROR AND THE PROSPECTIVE TRANSFEREE CERTIFY
TO THE OWNER TRUSTEE AND THE SELLER IN WRITING THE FACTS SURROUNDING
SUCH TRANSFER, WHICH CERTIFICATION SHALL BE IN FORM AND SUBSTANCE
SATISFACTORY TO THE OWNER TRUSTEE AND THE SELLER, AND (B) THE OWNER
TRUSTEE SHALL REQUIRE A WRITTEN OPINION OF COUNSEL (WHICH WILL NOT BE
AT THE EXPENSE OF THE SELLER OR THE OWNER TRUSTEE) SATISFACTORY TO THE
SELLER AND THE OWNER TRUSTEE TO THE EFFECT THAT SUCH TRANSFER WILL NOT
VIOLATE THE SECURITIES ACT. NO SALE, PLEDGE OR OTHER TRANSFER MAY BE
MADE TO ANY ONE PERSON FOR CERTIFICATES WITH A FACE AMOUNT OF LESS THAN
$4,000,000 (OR SUCH OTHER AMOUNT AS THE SELLER MAY DETERMINE IN ORDER
TO PREVENT THE TRUST FROM BEING TREATED AS A "PUBLICLY TRADED
PARTNERSHIP" UNDER SECTION 7704 OF THE INTERNAL REVENUE CODE OF 1986,
AS AMENDED (THE "CODE"), BUT IN NO EVENT LESS THAN $250,000) AND, IN
THE CASE OF ANY PERSON ACTING ON BEHALF OF ONE OR MORE
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THIRD PARTIES (OTHER THAN A BANK (AS DEFINED IN SECTION 3(a)(2) OF THE
SECURITIES ACT) ACTING IN ITS FIDUCIARY CAPACITY), FOR OFFERED
CERTIFICATES WITH A FACE AMOUNT OF LESS THAN SUCH AMOUNT FOR EACH SUCH
THIRD PARTY. ANY ATTEMPTED TRANSFER IN CONTRAVENTION OF THE IMMEDIATELY
PRECEDING RESTRICTION WILL BE VOID AB INITIO AND THE PURPORTED
TRANSFEROR WILL CONTINUE TO BE TREATED AS THE OWNER OF THE OFFERED
CERTIFICATES FOR ALL PURPOSES.
THIS CERTIFICATE MAY NOT BE ACQUIRED BY OR FOR THE ACCOUNT OF
(i) AN "EMPLOYEE BENEFIT PLAN" (AS DEFINED IN SECTION 3(3) OF THE
EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA")),
THAT IS SUBJECT TO THE PROVISIONS OF TITLE I OF ERISA, (ii) A PLAN
DESCRIBED IN SECTION 4975(e)(1) OF THE CODE, OR (iii) ANY ENTITY WHOSE
UNDERLYING ASSETS INCLUDE PLAN ASSETS BY REASON OF A PLAN'S INVESTMENT
IN THE ENTITY, UNLESS THE SELLER DETERMINES THAT THE BENEFIT PLAN
ACQUIRING THIS CERTIFICATE HAS AVAILABLE TO IT AN EXEMPTION FROM THE
PROHIBITED TRANSACTION RULES UNDER SECTION 406(a) OF ERISA AND SECTION
4975 OF THE CODE AND SUCH EXEMPTION IS APPLICABLE TO THE PURCHASE AND
HOLDING OF THIS CERTIFICATE. UNLESS SUCH AN EXEMPTION IS AVAILABLE, BY
ACCEPTING AND HOLDING THIS CERTIFICATE, THE HOLDER HEREOF AND THE
CERTIFICATE OWNER SHALL EACH BE DEEMED TO HAVE REPRESENTED AND
WARRANTED THAT IT IS NOT AN EMPLOYEE BENEFIT PLAN.
IN THE EVENT WHOLESALE AUTO RECEIVABLES CORPORATION OR ITS
ASSIGNEE OR SUCCESSOR ("SELLER") IS NOT THE SOLE OWNER OF THE
CERTIFICATES, THEN THE SELLER AND EACH CERTIFICATEHOLDER OR CERTIFICATE
OWNER, BY ACCEPTING THIS CERTIFICATE (OR INTEREST THEREIN), (i)
EXPRESSES ITS INTENTION THAT THE CERTIFICATES WILL QUALIFY UNDER
APPLICABLE TAX LAW AS PARTNERSHIP INTERESTS IN A PARTNERSHIP, WITH THE
ASSETS OF THE PARTNERSHIP BEING THE ASSETS HELD BY THE TRUST, AND (ii)
UNLESS OTHERWISE REQUIRED BY APPROPRIATE TAXING AUTHORITIES, AGREES TO
TREAT THE CERTIFICATES AS INTERESTS IN SUCH A PARTNERSHIP FOR PURPOSES
OF FEDERAL INCOME, STATE AND LOCAL INCOME AND FRANCHISE TAXES, MICHIGAN
SINGLE BUSINESS TAX AND ANY OTHER TAXES IMPOSED UPON, MEASURED BY OR
BASED UPON GROSS OR NET INCOME.
EACH CERTIFICATEHOLDER OR CERTIFICATE OWNER, BY ITS ACCEPTANCE
OF THIS CERTIFICATE (OR INTEREST THEREIN), COVENANTS AND AGREES THAT
SUCH CERTIFICATEHOLDER OR CERTIFICATE OWNER, AS THE CASE MAY BE, SHALL
NOT, PRIOR TO
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39
THE DATE WHICH IS ONE YEAR AND ONE DAY AFTER THE TERMINATION OF THE
TRUST AGREEMENT, ACQUIESCE, PETITION OR OTHERWISE INVOKE OR CAUSE THE
SELLER TO INVOKE THE PROCESS OF ANY COURT OR GOVERNMENTAL AUTHORITY FOR
THE PURPOSE OF COMMENCING OR SUSTAINING A CASE AGAINST THE SELLER UNDER
ANY FEDERAL OR STATE BANKRUPTCY, INSOLVENCY, REORGANIZATION OR SIMILAR
LAW OR APPOINTING A RECEIVER, LIQUIDATOR, ASSIGNEE, TRUSTEE, CUSTODIAN,
SEQUESTRATOR OR OTHER SIMILAR OFFICIAL OF THE SELLER OR ANY SUBSTANTIAL
PART OF ITS PROPERTY, OR ORDERING THE WINDING-UP OR LIQUIDATION OF THE
AFFAIRS OF THE SELLER.
SUPERIOR WHOLESALE INVENTORY FINANCING TRUST V
FLOATING RATE ASSET-BACKED CERTIFICATE, CLASS 1999-A
evidencing a fractional undivided interest in the Trust, as defined
below, the property of which includes a pool of wholesale receivables
generated from time to time in a portfolio of revolving financing
arrangements with dealers to finance automobile and other vehicle
inventories and collections thereon and certain other property.
(This Certificate does not represent an interest in or obligation of
Wholesale Auto Receivables Corporation, General Motors Acceptance
Corporation, General Motors Corporation, the Owner Trustee or any of
their respective affiliates, except to the extent described in the
Basic Documents.)
THIS CERTIFIES THAT __________ is the registered owner of a
nonassessable, fully-paid, fractional undivided interest in Superior Wholesale
Inventory Financing Trust V (the "Trust") formed by Wholesale Auto Receivables
Corporation, a Delaware corporation.
The Trust was created pursuant to a Trust Agreement, dated as
of May 18, 1999 (as amended and supplemented from time to time, the "Trust
Agreement"), between the Seller and Chase Manhattan Bank Delaware, as owner
trustee (the "Owner Trustee"), a summary of certain of the pertinent provisions
of which is set forth below. To the extent not otherwise defined herein, the
capitalized terms used herein have the meanings assigned to them in the Trust
Agreement.
This Certificate is one of the duly authorized Certificates
designated as "Floating Rate Asset-Backed Certificates, Class 1999-A" (the
"Certificates"). This Certificate is issued under and is subject to the terms,
provisions and conditions of the Trust Agreement, the terms of which are
incorporated herein by reference and made a part hereof, to which Trust
Agreement the Holder of this Certificate by virtue of the acceptance hereof
assents and by which such holder is bound.
Under the Trust Agreement, there shall be distributed on the
15th day of each calendar month or, if such 15th day is not a Business Day, the
next succeeding Business Day, commencing on June 15, 1999 (each, a "Distribution
Date"), to the person in whose name this Certificate is registered on the
related Record Date (as defined below), interest accrued hereon to the extent of
funds
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40
available therefor and such Certificateholder's fractional undivided interest in
the amount of distributions in respect of Certificate Balance to be distributed
to Certificateholders on such Distribution Date. Interest shall accrue on this
Certificate at the applicable Certificate Rate (as set forth on the reverse
hereof) and interest accrued hereon as of any Distribution Date but not
distributed on such Distribution Date shall be due on the next Distribution
Date. No distributions of Certificate Balance shall be made on any Certificate
until all Notes have been paid (or provided for) in full. The entire unpaid
Certificate Balance on this Certificate shall be due and payable on the
Distribution Date in March, 2007 (the "Stated Final Payment Date"). However, the
actual distribution in full of the Certificate could occur sooner or later than
such date. The "Record Date," with respect to any Distribution Date, means the
last day of the preceding Collection Period.
The distributions in respect of Certificate Balance and
interest on this Certificate are payable in such coin or currency of the United
States of America as at the time of distribution is legal tender for payment of
public and private debts. All distributions made by the Trust with respect to
this Certificate shall be applied first to interest due and payable on this
Certificate as provided above and then to the unpaid distributions in respect of
Certificate Balance of this Certificate.
The Holder of this Certificate acknowledges and agrees that
its rights to receive distributions in respect of this Certificate are
subordinated to the rights of the Noteholders as and to the extent described in
the Trust Sale and Servicing Agreement and the Indenture.
Each Certificateholder or Certificate Owner, by its acceptance
of a Certificate (or interest therein), covenants and agrees that such
Certificateholder or Certificate Owner, as the case may be, shall not, prior to
the date which is one year and one day after the termination of the Trust
Agreement, acquiesce, petition or otherwise invoke or cause the Seller to invoke
the process of any court or governmental authority for the purpose of commencing
or sustaining a case against the Seller under any federal or state bankruptcy,
insolvency, reorganization or similar law or appointing a receiver, liquidator,
assignee, trustee, custodian, sequestrator or other similar official of the
Seller or any substantial part of its property, or ordering the winding-up or
liquidation of the affairs of the Seller. By its acceptance of this Certificate,
the Seller agrees that it shall not be deemed to have approved the commencement
of a voluntary proceeding in bankruptcy relating to the Trust for purposes of
Section 4.3 of the Trust Agreement unless such commencement was approved by the
affirmative vote of all of the members of the Seller's board of directors.
Distributions on this Certificate shall be made as provided in
the Trust Agreement without the presentation or surrender of this Certificate or
the making of any notation hereon, to each Certificateholder of record on the
immediately preceding Record Date either by wire transfer, in immediately
available funds, to the account of such Holder at a bank or other entity having
appropriate facilities therefor, if such Certificateholder shall have provided
to the Certificate Registrar appropriate written instructions at least five
Business Days prior to such Record Date, or, if not, by check mailed to such
Certificateholder at the address of such Holder appearing in the Certificate
Register. Except as otherwise provided in the Trust Agreement and
notwithstanding the above, the final distribution on this Certificate shall be
made after due notice by the Owner Trustee of the pendency of such distribution
and only upon presentation and surrender of this Certificate at the office
maintained for such purpose by the Owner Trustee in the City of New York.
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Reference is hereby made to the further provisions of this
Certificate set forth on the reverse hereof, which further provisions shall for
all purposes have the same effect as if set forth at this place.
Unless the certificate of authentication hereon shall have
been executed by an authorized officer of the Owner Trustee by manual signature,
this Certificate shall not entitle the holder hereof to any benefit under the
Trust Agreement or the Trust Sale and Servicing Agreement or be valid for any
purpose.
THIS CERTIFICATE SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF DELAWARE, WITHOUT REFERENCE TO
THE PRINCIPLES OF CONFLICTS OF LAW THEREOF OR OF ANY OTHER JURISDICTION, AND THE
OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN
ACCORDANCE WITH SUCH LAWS.
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IN WITNESS WHEREOF, the Owner Trustee, on behalf of the Trust
and not in its individual capacity, has caused this Certificate to be duly
executed.
Dated: May 18, 1999
SUPERIOR WHOLESALE INVENTORY
FINANCING TRUST V
By: CHASE MANHATTAN BANK
DELAWARE, not in its individual
capacity but solely as Owner Trustee
By:
-----------------------------------------
Name:
Title:
OWNER TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Certificates referred to in the within-mentioned
Trust Agreement.
CHASE MANHATTAN BANK OR CHASE MANHATTAN BANK
DELAWARE, not in its individual capacity but DELAWARE, not in its individual capacity
solely as Owner Trustee but solely as Owner Trustee by The Chase
Manhattan Bank, as Authenticating Agent
By: By:
----------------------------------------- ---------------------------------------
Name: Name:
Title: Title:
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REVERSE OF CERTIFICATE
The Certificates do not represent an obligation of, or an
interest in, the Seller, the Servicer, General Motors Corporation, the Indenture
Trustee, the Owner Trustee or any affiliates of any of them and no recourse may
be had against such parties or their assets, except as may be expressly set
forth or contemplated herein or in the Trust Agreement or the Basic Documents.
In addition, this Certificate is not guaranteed by any governmental agency or
instrumentality and is limited in right of payment to certain collections and
recoveries with respect to the Receivables held by the Trust (and certain other
amounts), all as more specifically set forth herein, in the Trust Agreement and
the Trust Sale and Servicing Agreement. A copy of each of the Trust Sale and
Servicing Agreement and the Trust Agreement may be examined during normal
business hours at the principal office of the Seller, and at such other places,
if any, designated by the Seller, by any Certificateholder upon written request.
The Trust Agreement permits, with certain exceptions therein
provided, the amendment thereof and the modification of the rights and
obligations of the Seller and the rights of the Certificateholders under the
Trust Agreement at any time by the Seller and the Owner Trustee with the consent
of the Holders of the Notes evidencing not less than a majority of the
Outstanding Amount of the Notes as of the close of the preceding Distribution
Date and the consent of Certificateholders whose Certificates evidence not less
than a majority of the Voting Interests as of the close of the preceding
Distribution Date. Any such consent by the Holder of this Certificate shall be
conclusive and binding on such Holder and on all future Holders of this
Certificate and of any Certificate issued upon the transfer hereof or in
exchange herefor or in lieu hereof whether or not notation of such consent is
made upon this Certificate. The Trust Agreement also permits the amendment
thereof, in certain circumstances, without the consent of the Holders of any of
the Certificates or the Notes.
The term "Certificate Rate" as used in this Certificate means,
with respect to any Distribution Date, the product of (i) a fraction, the
numerator of which is the number of days elapsed from and including the prior
Distribution Date (or, in the case of the Initial Distribution Date, from and
including the Initial Closing Date) to but excluding such Distribution Date and
the denominator of which is 360 and (ii) LIBOR plus 2.25%.
As provided in the Trust Agreement and subject to certain
limitations therein set forth, the transfer of this Certificate is registerable
in the Certificate Register upon surrender of this Certificate for registration
of transfer at the offices or agencies of the Certificate Registrar maintained
by the Owner Trustee in the City of New York, accompanied by (i) a written
instrument of transfer in form satisfactory to the Owner Trustee and the
Certificate Registrar duly executed by the Holder hereof or such Holder's
attorney duly authorized in writing, (ii) any certificate and/or Opinion of
Counsel required by Section 9.12(b) of the Trust Agreement, and (iii) if
requested by the Seller, the Undertaking Letter required by Section 9.12(a) of
the Trust Agreement, and thereupon one or more new Certificates of the same
class of authorized denominations evidencing the same aggregate interest in the
Trust shall be issued to the designated transferee.
The initial Certificate Registrar appointed under the Trust
Agreement is The Chase Manhattan Bank.
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The Certificates are issuable only as registered Certificates
without coupons in denominations of $4,000,000 or greater (or such other amount
as the Seller may determine in order to prevent the Trust from being treated as
a "publicly traded partnership" under Section 7704 of the Code, but in no event
less than $250,000). As provided in the Trust Agreement and subject to certain
limitations therein set forth, Certificates are exchangeable for new
Certificates of the same class of authorized denominations evidencing the same
aggregate denomination, as requested by the Holder surrendering the same;
provided, however, that no Certificate may be subdivided upon transfer or
exchange in a manner such that the resulting Certificate if it had been sold in
the original offering would have had an initial offering price of less than
$4,000,000 (or such other amount as the Seller may determine in order to prevent
the Trust from being treated as a "publicly traded partnership" under Section
7704 of the Code, but in no event less than $250,000). No service charge shall
be made for any such registration of transfer or exchange, but the Owner Trustee
or the Certificate Registrar may require payment of a sum sufficient to cover
any tax or governmental charge payable in connection therewith.
The Owner Trustee, the Certificate Registrar and any agent of
the Owner Trustee or the Certificate Registrar may treat the person in whose
name this Certificate is registered as the owner hereof for all purposes, and
none of the Owner Trustee, the Certificate Registrar or any such agent shall be
affected by any notice to the contrary.
The obligations and responsibilities created by the Trust
Agreement and the Trust created thereby shall terminate upon the distribution to
Certificateholders of all amounts required to be paid to them pursuant to the
Trust Agreement and the Trust Sale and Servicing Agreement and the disposition
of all property held as part of the Trust.
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CERTIFICATE OF TRANSFER
FOR VALUE RECEIVED the undersigned hereby sells, assigns and transfers
unto
PLEASE INSERT SOCIAL SECURITY
OR OTHER IDENTIFYING NUMBER
OF ASSIGNEE
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
(Please print or type name and address, including postal zip code, of assignee)
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
the within Certificate, and all rights thereunder, hereby irrevocably
constituting and appointing
_________________________________________________________ Attorney to transfer
said Certificate on the books of the Certificate Registrar, with full power of
substitution in the premises.
In connection with any sale, pledge or transfer of this Certificate the
undersigned hereby represents to the Owner Trustee and the Seller that such
sale, pledge or transfer is being made:
[CHECK ONE]
- (a) to an institutional investor that is an "accredited investor" (as
defined in Rule 501(a)(1), (2), (3) or (7) of Regulation D under the
Securities Act of 1933, as amended) acting for its own account (and not
for the account of others) or as a fiduciary or agent for others (which
others also are such institutional investors unless it is a bank acting
in its fiduciary capacity);
or
- (b) to a person whom the undersigned reasonably believes after due
inquiry is a "qualified institutional buyer" (as defined in Rule 144A
under the Securities Act of 1933, as amended) acting for its own
account (and not for the account of others) or as a fiduciary or agent
for others (which others also are qualified institutional buyers) to
whom notice is given that the resale, pledge or transfer is being made
in reliance on Rule 144A.
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46
If such sale, pledge or other transfer is being made pursuant to (a) above, the
undersigned acknowledges that such institutional investor must execute a
certificate substantially in the form specified in the Trust Agreement.
Dated: -----------------------------*
Signature Guaranteed:
-----------------------------*
* NOTICE: The signature to this assignment must correspond with the name as it
appears upon the face of the within Certificate in every particular, without
alteration, enlargement or any change whatever. Such signature must be
guaranteed by a member firm of the New York Stock Exchange or a commercial bank
or trust company.
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EXHIBIT B
CERTIFICATE OF TRUST OF
SUPERIOR WHOLESALE INVENTORY FINANCING TRUST V
THIS Certificate of Trust of Superior Wholesale Inventory
Financing Trust V (the "Trust"), dated as of May 18, 1999, is being duly
executed and filed by Chase Manhattan Bank Delaware, a Delaware banking
corporation, as trustee, to form a business trust under the Delaware Business
Trust Act (12 Del. C. ss.3801 et seq.).
1. Name. The name of the business trust formed hereby is
Superior Wholesale Inventory Financing Trust V.
2. Delaware Trustee. The name and business address of the
trustee of the Trust in the State of Delaware is Chase Manhattan Bank Delaware,
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇.
3. This Certificate of Trust shall be effective on May 18,
1999. IN WITNESS WHEREOF, the undersigned, being the sole trustee of the Trust,
has executed this Certificate of Trust as of the date first-above written.
Chase Manhattan Bank Delaware, not in its
individual capacity but solely as Owner
Trustee under a Trust Agreement dated as
of May 18, 1999.
By:
---------------------------------------
Name:
Title:
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EXHIBIT C
UNDERTAKING LETTER
Wholesale Auto Receivables Corporation
Corporation Trust Center
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Chase Manhattan Bank Delaware
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
In connection with our purchase or record or beneficial
ownership of the Floating Rate Asset-Backed Certificate, Class 1999-A (the
"Certificate") of Superior Wholesale Inventory Financing Trust V, the
undersigned purchaser, record owner or beneficial owner hereby acknowledges,
represents and warrants that such purchaser, record owner or beneficial owner:
(1) is not, and has not acquired the Certificate by or for the
benefit of, (i) an employee benefit plan (as defined in Section 3(3) of the
Employee Retirement Income Security Act of 1974, as amended ("ERISA")) that is
subject to the provisions of Title I of ERISA, (ii) a plan described in Section
4975(e)(1) of the Internal Revenue Code of 1986, as amended, or (iii) any entity
whose underlying assets include plan assets by reason of a plan's investment in
such entity; and
(2) acknowledges that you and others will rely on our
acknowledgments, representations and warranties, and agrees to notify you
promptly in writing if any of our representations or warranties herein cease to
be accurate and complete.
----------------------------------------
Name of Certificate Owner
By:
-------------------------------------
Name:
Title:
Date:
-----------------------------------
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EXHIBIT D
INVESTOR LETTER
Wholesale Auto Receivables Corporation
Corporation Trust Center
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Chase Manhattan Bank Delaware
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
In connection with our proposed purchase of a Floating Rate
Asset-Backed Certificate, Class 1999-A (the "Certificate"), representing a
fractional undivided interest in the Superior Wholesale Inventory Financing
Trust V, issued under a trust agreement, dated as of May 18, 1999 (the "Trust
Agreement"), between Wholesale Auto Receivables Corporation, a Delaware
corporation (the "Seller") and Chase Manhattan Bank Delaware, as owner trustee,
acting thereunder not in its individual capacity but solely as owner trustee of
the Trust (the "Owner Trustee"), we confirm that:
1. We understand that the Certificate has not been registered
under the Securities Act of 1933, as amended (the "Securities
Act"), and may not be sold except as permitted in the
following sentence. We agree, on our own behalf and on behalf
of any accounts for which we are acting as hereinafter stated,
that such Certificate may be resold, pledged or transferred
only (i) to the Seller, (ii) to an institutional investor that
is an "accredited investor" as defined in Rule 501(a)(1), (2),
(3) or (7) (an "Institutional Accredited Investor") under the
Securities Act (as indicated by the box checked by the
transferor on the Certificate of Transfer on the reverse of
the certificate for the Certificate) acting for its own
account (and not for the account of others) or as a fiduciary
or agent for others (which others also are Institutional
Accredited Investors unless the holder is a bank acting in its
fiduciary capacity) that executes a certificate substantially
in the form hereof, (iii) so long as such Certificate is
eligible for resale pursuant to Rule 144A under the Securities
Act ("Rule 144A"), to a person whom we reasonably believe
after due inquiry to be a "qualified institutional buyer" as
defined in Rule 144A acting for its own account (and not for
the account of others) or as a fiduciary or agent for others
(which others also are "qualified institutional buyers") to
whom notice is given that the resale, pledge or transfer is
being made in reliance on Rule 144A, or (iv) in a sale, pledge
or other transfer made in a transaction otherwise exempt from
the registration requirements of the Securities Act, in which
case (A) the Owner Trustee shall require that both the
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prospective transferor and the prospective transferee certify
to the Owner Trustee and the Seller in writing the facts
surrounding such transfer, which certification shall be in
form and substance satisfactory to the Owner Trustee and the
Seller, and (B) the Owner Trustee shall require a written
opinion of counsel (which will not be at the expense of the
Seller or the Owner Trustee) satisfactory to the Seller and
the Owner Trustee to the effect that such transfer will not
violate the Securities Act, in each case in accordance with
any applicable securities laws of any state of the United
States. We will notify any purchaser of the Certificate from
us of the above resale restrictions, if then applicable. We
further understand that in connection with any transfer of the
Certificate by us that the Seller and the Owner Trustee may
request, and if so requested we will furnish, such
certificates and other information as they may reasonably
require to confirm that any such transfer complies with the
foregoing restrictions. We understand that no sale, pledge or
other transfer may be made to any one person for Certificates
with a face amount of less than $4,000,000 (or such other
amount as the Seller may determine in order to prevent the
Trust from being treated as a "publicly traded partnership"
under Section 7704 of the Code, but in no event less than
$250,000) and, in the case of any person acting on behalf of
one or more third parties (other than a bank (as defined in
Section 3(a)(2) of the Securities Act) acting in its fiduciary
capacity), for Certificates with a face amount of less than
such amount for each such third party. Any attempted transfer
will be void ab initio and the purported transferor will
continue to be treated as the owner of the offered
Certificates for all purposes.
2.
[CHECK ONE]
- (a) We are an institutional investor and an
"accredited investor" (as defined in Rule 501(a)(1),
(2), (3) or (7) of Regulation D under the Securities
Act) acting for our own account (and not for the
account of others) or as a fiduciary or agent for
others (which others also are Institutional
Accredited Investors unless we are bank acting in its
fiduciary capacity). We have such knowledge and
experience in financial and business matters as to be
capable of evaluating the merits and risks of our
investment in the Certificate, and we and any
accounts for which we are acting are each able to
bear the economic risk of our or its investment for
an indefinite period of time. We are acquiring the
Certificate for investment and not with a view to, or
for offer and sale in connection with, a public
distribution.
- (b) We are a "qualified institutional buyer" as
defined under Rule 144A under the Securities Act and
are acquiring the Certificate for our own account
(and not for the account of others) or as a fiduciary
or agent for others (which others also are "qualified
institutional buyers"). We are familiar with Rule
144A under the Securities Act and are aware that the
seller of the Certificate and other parties intend
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to rely on the statements made herein and the
exemption from the registration requirements of the
Securities Act provided by Rule 144A.
3. You are entitled to rely upon this letter and you are
irrevocably authorized to produce this letter or a copy hereof
to any interested party in any administrative or legal
proceeding or official inquiry with respect to the matters
covered hereby.
Very truly yours,
------------------------------------
(Name of Purchaser)
By:
---------------------------------
Date:
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