EXHIBIT 99.1
POOLING AND SERVICING AGREEMENT
BETWEEN
GENERAL MOTORS ACCEPTANCE CORPORATION
SELLER AND SERVICER
AND
WHOLESALE AUTO RECEIVABLES CORPORATION
PURCHASER
DATED AS OF ________, ____
SUPERIOR WHOLESALE INVENTORY FINANCING TRUST [ ]
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TABLE OF CONTENTS
PAGE
ARTICLE I
DEFINITIONS............................................................ 1
SECTION 1.01.DEFINITIONS............................................... 1
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ARTICLE II
PURCHASE AND SALE OF ELIGIBLE RECEIVABLES.............................. 2
SECTION 2.01.PURCHASE AND SALE OF ELIGIBLE RECEIVABLES................. 2
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SECTION 2.02.PURCHASE PRICE............................................ 2
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SECTION 2.03.ADDITION OF ACCOUNTS...................................... 3
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SECTION 2.04.OPTIONAL REMOVAL OF ACCOUNTS.............................. 4
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SECTION 2.05.REMOVAL OF INELIGIBLE ACCOUNTS............................ 4
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SECTION 2.06.CUSTODY OF DOCUMENTATION.................................. 5
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ARTICLE III
ADMINISTRATION AND SERVICING OF RECEIVABLES............................ 5
SECTION 3.01.APPOINTMENT OF SERVICER AND ACCEPTANCE OF APPOINTMENT5....
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SECTION 3.02.RIGHTS AND DUTIES OF THE SERVICER......................... 5
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SECTION 3.03.SERVICING COMPENSATION; PAYMENT OF CERTAIN EXPENSES BY THE SERVICER 7
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SECTION 3.04.REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE SERVICER 8
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SECTION 3.05.SERVICER'S ACCOUNTING AND REPORTS.................. 12
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SECTION 3.06.PRE-CLOSING COLLECTIONS............................ 12
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SECTION 3.07.COLLECTIONS RECEIVED BY GMAC....................... 12
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ARTICLE IV
REPRESENTATIONS, WARRANTIES AND COVENANTS............................. 12
SECTION 4.01.REPRESENTATIONS AND WARRANTIES OF GMAC RELATING TO THE
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ACCOUNTS AND THE RECEIVABLES............................. 13
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SECTION 4.02.REPRESENTATIONS AND WARRANTIES OF GMAC RELATING TO GMAC
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AND THE AGREEMENT........................................ 15
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SECTION 4.03.REPRESENTATIONS AND WARRANTIES OF THE PURCHASER.......... 17
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SECTION 4.04.COVENANTS OF GMAC........................................ 18
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ARTICLE V
CERTAIN MATTERS RELATING TO GMAC...................................... 19
SECTION 5.01.MERGER OR CONSOLIDATION OF, OR ASSUMPTION OF THE OBLIGATIONS
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OF, GMAC................................................. 19
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SECTION 5.02.GMAC INDEMNIFICATION OF THE PURCHASER.................... 19
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SECTION 5.03.GMAC ACKNOWLEDGMENT OF TRANSFERS TO THE ISSUER........... 19
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ARTICLE VI
ADDITIONAL AGREEMENTS................................................. 20
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SECTION 6.01.ADDITIONAL OBLIGATIONS OF GMAC AND THE PURCHASER......... 20
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SECTION 6.02.EFFECT OF INVOLUNTARY CASE INVOLVING GMAC................ 20
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SECTION 6.03.INTERCREDITOR AGREEMENTS................................. 21
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ARTICLE VII
MISCELLANEOUS PROVISIONS.............................................. 23
SECTION 7.01.AMENDMENT................................................ 23
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SECTION ▇.▇▇.▇▇▇▇▇▇▇▇▇▇ OF RIGHT, TITLE AND INTEREST IN AND TO RECEIVABLES 23
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SECTION 7.03.COSTS AND EXPENSES....................................... 24
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SECTION 7.04.GOVERNING LAW............................................ 24
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SECTION 7.05.NOTICES.................................................. 25
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SECTION 7.06.SEVERABILITY OF PROVISIONS............................... 25
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SECTION 7.07.ASSIGNMENT............................................... 25
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SECTION 7.08.FURTHER ASSURANCES....................................... 25
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SECTION ▇.▇▇.▇▇ WAIVER; CUMULATIVE REMEDIES........................... 25
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SECTION 7.10.COUNTERPARTS............................................. 25
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SECTION 7.11.THIRD-PARTY BENEFICIARIES................................ 25
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SECTION 7.12.MERGER AND INTEGRATION................................... 25
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SECTION 7.13.CONFIDENTIAL INFORMATION................................. 26
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SECTION 7.14.HEADINGS................................................. 26
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SECTION 7.15.TERMINATION.............................................. 26
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EXHIBIT A List of Locations of the Schedule of Accounts
EXHIBIT B Form of Assignment for the Initial Closing Date
EXHIBIT C Form of Assignment for Each Addition Date
EXHIBIT D Form of Opinion of Counsel With Respect to Addition of Accounts
APPENDIX A Definitions and Rules of Construction
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THIS POOLING AND SERVICING AGREEMENT is made as of ________, ____,
between GENERAL MOTORS ACCEPTANCE CORPORATION, a Delaware corporation (referred
to herein as "GMAC" in its capacity as seller of the Receivables specified
herein and as the "SERVICER" in its capacity as servicer of the Receivables),
and WHOLESALE AUTO RECEIVABLES CORPORATION, a Delaware corporation (the
"PURCHASER").
WHEREAS, GMAC, in the ordinary course of its business, generates
certain payment obligations by financing the floor plan inventory of motor
vehicle dealers;
WHEREAS, GMAC desires to sell and assign to the Purchaser, and the
Purchaser desires to purchase from GMAC, certain of such existing and future
payment obligations arising or acquired from time to time;
WHEREAS, the Purchaser desires to transfer and assign its interest
in such payment obligations to Superior Wholesale Inventory Financing Trust [ ]
(the "ISSUER") pursuant to the Trust Sale and Servicing Agreement;
WHEREAS, the Issuer desires to issue the Initial Securities to
fund its acquisition of such payment obligations;
WHEREAS, the Purchaser, the Issuer and GMAC (as the holder of such
payment obligations not sold to the Purchaser hereunder) desire that the
Servicer shall service such payment obligations; and
WHEREAS, the Servicer is willing to service such payment obligations
and related payment obligations in accordance with the terms hereof and of the
Trust Sale and Servicing Agreement for the benefit of the Purchaser, GMAC, the
Issuer and each other party identified or described herein or in the Trust Sale
and Servicing Agreement as having an interest therein as owner, trustee, secured
party or holder of the Securities (all such parties being collectively referred
to herein as "INTERESTED PARTIES").
NOW, THEREFORE, in consideration of the premises and the mutual
covenants herein contained, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01 DEFINITIONS. Certain capitalized terms used in the above
recitals and in this Agreement are defined in and shall have the respective
meanings assigned them in Part I of APPENDIX A to this Agreement. All references
herein to "the Agreement" or "this Agreement" are to this Pooling and Servicing
Agreement as it may be amended, supplemented or modified from time to time, and
all references herein to Articles, Sections and subsections are to Articles,
Sections or subsections of this Agreement unless otherwise specified. The rules
of construction set forth in Part II of such Appendix A shall be applicable to
this Agreement.
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ARTICLE II
PURCHASE AND SALE OF ELIGIBLE RECEIVABLES
SECTION 2.01PURCHASE AND SALE OF ELIGIBLE RECEIVABLES.
(a) By execution of this Agreement, on the Initial Closing Date,
GMAC does hereby sell, transfer, assign and otherwise convey to the Purchaser,
without recourse, all of its right, title and interest in, to and under all of
the Eligible Receivables existing in the Accounts listed on the Schedule of
Accounts (which is kept at locations listed in EXHIBIT A) as of the close of
business on the Initial Cut-Off Date and all monies due or to become due thereon
after the Initial Cut-Off Date, all Collateral Security with respect thereto and
all amounts received with respect thereto (including all Interest Collections
received in the calendar month in which the Initial Cut-Off Date occurs, whether
or not received prior to the Initial Cut-Off Date) and all proceeds thereof
(including "proceeds" as defined in SECTION 9-306 of the UCC and Recoveries).
(b) Subject to SECTION 6.02, as of each Receivables Purchase Date,
GMAC does hereby sell, transfer, assign and otherwise convey to the Purchaser,
without recourse, all of its right, title and interest in, to and under all
Eligible Receivables created or deemed created in the Accounts in the Pool of
Accounts on such date and all monies due or to become due thereon after such
date, all Collateral Security with respect thereto and all amounts received with
respect thereto and all proceeds thereof (including "proceeds" as defined in
SECTION 9-306 of the UCC and Recoveries).
(c) It is the intention of GMAC and the Purchaser that the transfers
and assignments contemplated by this Agreement shall constitute sales of the
property described in SECTIONS 2.01(A) AND (B) from GMAC to the Purchaser and
that the beneficial interest in and title to such property shall not be part of
GMAC's estate in the event of the filing of a bankruptcy petition by or against
GMAC under any Insolvency Law. The foregoing sales, transfers, assignments and
conveyances and any subsequent sales, transfers, assignments and conveyances
contemplated hereby do not constitute, and are not intended to result in, the
creation or an assumption by the Purchaser of any obligation of the Servicer,
GMAC (if GMAC is not the Servicer), General Motors or any other Person in
connection with the Receivables described above or under any agreement or
instrument relating thereto, including any obligation to any Dealers.
(d) Subject to SECTION 2.06 and Article III hereof, GMAC shall
retain all right, title and interest in, to and under the Receivables in the
Accounts in the Pool of Accounts that GMAC has not transferred to the Purchaser
hereunder. Such Receivables, together with any Receivables repurchased by GMAC
or (so long as GMAC is the Servicer) the Servicer from the Purchaser or the
Trust pursuant to this Agreement or the Trust Sale and Servicing Agreement, all
monies due or to become due on such Receivables, all amounts received with
respect thereto and all proceeds thereof (including "proceeds" as defined in
SECTION 9-306 of the UCC and Recoveries) are collectively referred to herein as
the "RETAINED PROPERTY".
SECTION 2.02 PURCHASE PRICE. On the Initial Closing Date, in consideration
for the sale of the property described in SECTION 2.01(A) to the Purchaser, the
Purchaser shall pay to GMAC [$ ] (representing the aggregate principal balance
of the Receivables as of the close of business on the Initial Cut-Off Date so
sold on the Initial Closing Date) in immediately available
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funds, and GMAC shall deliver to the Purchaser an executed assignment
substantially in the form of EXHIBIT B hereto. The Purchaser shall pay, subject
to SECTION 6.02, for property described in SECTION 2.03 sold by GMAC to the
Purchaser on each Addition Date and property described in SECTION 2.01(B) sold
by GMAC to the Purchaser on each Receivables Purchase Date, a price equal to the
principal balance of the Eligible Receivables to be purchased on each such date.
Such purchase price shall be payable by the Purchaser on each such date in
immediately available funds.
SECTION 2.03 ADDITION OF ACCOUNTS.
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(a) OFFERS TO DESIGNATE ADDITIONAL ACCOUNTS. From time to time, GMAC
may, at its option, offer to designate and the Purchaser may, at its option,
request the designation of, one or more Accounts (each, an "ADDITIONAL ACCOUNT")
to be included as Accounts in the Pool of Accounts, subject to the conditions
specified in SECTION 2.03(B) below. If the Purchaser, at its option, elects to
accept any such offer by GMAC or if GMAC, at its option, agrees to any such
request of the Purchaser, GMAC shall sell and assign to the Purchaser, and the
Purchaser shall purchase from GMAC, all of GMAC's right, title and interest in,
to and under all of the Eligible Receivables in each such Additional Account as
of the related Additional Cut-Off Date and all monies due or to become due
thereon after such date, all Collateral Security with respect thereto, all
amounts received with respect thereto and all proceeds thereof (including
"proceeds" as defined in SECTION 9-306 of the UCC and Recoveries), effective as
of the Addition Date specified in a written notice provided by the Servicer, on
behalf of GMAC, to the Purchaser (the "GMAC ADDITION NOTICE"). Effective as of
each such Addition Date, such Additional Account shall be included in the Pool
of Accounts and Eligible Receivables arising therein from and after the
Additional Cut-Off Date shall be subject to purchase under SECTION 2.01(B)
above. Each GMAC Addition Notice shall specify the related Additional Cut- Off
Date and shall be given (with a copy to the Rating Agencies) on or before the
fifth Business Day but not more than 30 days prior to the related Addition Date.
(b) CONDITIONS. GMAC shall be permitted to designate, and the
Purchaser shall be permitted to accept the designation of, Additional Accounts,
in accordance with SECTION 2.03(A) only upon satisfaction of each of the
following conditions on or prior to the related Addition Date:
(i) GMAC shall represent that as of the related Additional
Cut-Off Date each such Additional Account is an Eligible Account and that
each Receivable arising thereunder identified as an Eligible Receivable
and conveyed to the Purchaser on such Addition Date is an Eligible
Receivable;
(ii) GMAC shall have delivered to the Purchaser a duly
executed written assignment in substantially the form of EXHIBIT C and the
list required to be delivered pursuant to SECTION 7.02(D);
(iii) GMAC shall have agreed to deliver to the Purchaser, for
deposit in the Collection Account, to the extent required by the Trust
Sale and Servicing Agreement, all Collections with respect to the Eligible
Receivables arising in such Additional Accounts since the Additional
Cut-Off Date within two Business Days after such Addition Date;
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(iv) as of the Addition Date, neither GMAC nor the Purchaser
is insolvent nor shall any of them have been made insolvent by such
transfer nor is either of them aware of any pending insolvency;
(v) the Schedule of Accounts shall have been amended to
reflect such Additional Accounts and the Schedule of Accounts as so
amended shall be true and correct as of the Addition Date;
(vi) GMAC shall have delivered to the Purchaser a certificate
of an Authorized Officer of GMAC confirming the items set forth in clauses
(i) through (v) above;
(vii) the conditions set forth in SECTION 2.7(B) of the Trust Sale and
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Servicing Agreement shall have been satisfied; and
(viii)GMAC shall have delivered to the Purchaser an Opinion of
Counsel of GMAC substantially in the form of EXHIBIT D.
SECTION 2.04 OPTIONAL REMOVAL OF ACCOUNTS. From time to time, GMAC
may, at its option, request from the Purchaser, and the Purchaser may, at its
option, offer to GMAC, the right to designate an Account for removal from the
Pool of Accounts. Subject to the satisfaction by the Purchaser of the conditions
set forth in SECTION 2.8 of the Trust Sale and Servicing Agreement, GMAC, at its
option, may accept offers to designate an Account for removal or request from
the Purchaser the right to designate an Account for removal by furnishing a
written notice (the "GMAC REMOVAL NOTICE") to the Purchaser not less than five
Business Days but not more than 30 days prior to the Removal Commencement Date.
On and after the Removal Commencement Date with respect to a Selected Account,
GMAC shall not transfer Receivables with respect to such Selected Account to the
Purchaser. The Schedule of Accounts shall be amended to reflect such designation
as of the Removal Commencement Date and to reflect such Account becoming a
Removed Account as of the Removal Date. At any time after the Removal Date, at
the written request of GMAC, the Purchaser shall assign to GMAC, without
recourse, representation or warranty, effective as of the Removal Date, all of
the Purchaser's right, title and interest in, to and under the Receivables
arising in such Account and related Collateral Security.
SECTION 2.05 REMOVAL OF INELIGIBLE ACCOUNTS. If at any time an Account
shall be deemed a Selected Account as described in SECTION 2.9 of the Trust Sale
and Servicing Agreement, the Purchaser shall give notice thereof to GMAC at the
time it gives notice to the parties identified in such SECTION 2.9. From and
after the Removal Commencement Date with respect to a Selected Account pursuant
to such SECTION 2.9, GMAC shall not transfer Receivables with respect to such
Selected Account to the Purchaser. The Schedule of Accounts shall be amended to
reflect such designation as of the Removal Commencement Date and to reflect such
Account becoming a Removed Account as of the Removal Date. At any time after
such removal, at the written request of GMAC, the Purchaser shall assign to
GMAC, without recourse, representation or warranty, effective as of the Removal
Date, all of the Purchaser's right, title and interest in, to and under the
Receivables in such Account and related Collateral Security.
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SECTION 2.06 CUSTODY OF DOCUMENTATION. In connection with the sale,
transfer, assignment and conveyance of the Receivables and related Collateral
Security in the Accounts in the Pool of Accounts to the Purchaser hereunder, the
Purchaser is executing simultaneously herewith the Custodian Agreement with the
Custodian, pursuant to which the Purchaser shall revocably appoint the Custodian
to act as agent of the Purchaser to maintain custody of the documents and
instruments (as more fully described in the Custodian Agreement) associated with
such Receivables, which shall be constructively delivered to the Purchaser.
GMAC, as the holder of the Retained Property, hereby consents to the appointment
of the Custodian to act as agent of GMAC to maintain custody of the documents
and contracts (as more fully described in the Custodian Agreement) associated
with the Receivables included therein and is simultaneously herewith executing
the Custodian Agreement. The Custodian has accepted such appointment by the
Purchaser and GMAC under the Custodian Agreement.
ARTICLE III
ADMINISTRATION AND SERVICING OF RECEIVABLES
SECTION 3.01 APPOINTMENT OF SERVICER AND ACCEPTANCE OF APPOINTMENT. The
Purchaser and GMAC hereby appoint the Servicer to act as Servicer with respect
to the Eligible Receivables and the Receivables included in the Retained
Property, existing in or arising under the Accounts included in the Pool of
Accounts from time to time and authorize the Servicer to perform the duties of
Servicer under this Agreement and under the Trust Sale and Servicing Agreement.
The Servicer by execution of this Agreement and by execution of the Trust Sale
and Servicing Agreement hereby accepts such appointment and the terms hereof and
thereof.
SECTION 3.02RIGHTS AND DUTIES OF THE SERVICER.
(a) The Servicer shall manage, service and administer the
Receivables described in SECTION 3.01, including, without limitation, collecting
payments due under the Receivables and providing for charge-offs of
uncollectible Receivables, with reasonable care and all in accordance with the
Servicer's customary and usual servicing procedures for servicing wholesale
receivables comparable to the Receivables which the Servicer services for its
own account, including the Floor Plan Financing Guidelines, except insofar as
any failure to do so would not have a material adverse effect on the interests
of Securityholders. The Servicer shall have full power and authority, acting
alone or through any party properly designated by it hereunder or under the
Trust Sale and Servicing Agreement, to do any and all things in connection with
such servicing and administration which it may deem necessary or desirable,
including monitoring the insurance maintained by Dealers. The Servicer is hereby
authorized to commence, in its own name or in the name of any Interested Party,
a Proceeding to enforce any Receivable subject hereto, to enforce all
obligations of GMAC and the Purchaser under this Agreement and under the Trust
Sale and Servicing Agreement or to commence or participate in a Proceeding
(including without limitation a bankruptcy proceeding) relating to or involving
any such Receivable. If in any Proceeding it is held that the Servicer may not
enforce a Receivable arising under an Account in the Pool of Accounts on the
ground that it is not a real party in interest or a holder entitled to enforce
such Receivable, the Purchaser, GMAC and each other Interested Party shall, at
the Servicer's expense, take such steps as the Servicer reasonably deems
necessary or appropriate to enforce the Receivable, including bringing suit in
the name of such
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Person. If the Servicer commences or participates in such a Proceeding in its
own name, each Interested Party shall thereupon be deemed to have automatically
assigned such Receivable to the Servicer for purposes of commencing or
participating in any such Proceeding as a party or claimant, and the Servicer is
hereby authorized and empowered to execute and deliver in the Servicer's name
any notices, demands, claims, complaints, responses, affidavits or other
documents or instruments in connection with any such Proceeding. Each Interested
Party shall furnish the Servicer with any powers of attorney and other documents
and take any other steps which the Servicer may reasonably deem necessary or
appropriate to enable the Servicer to carry out its servicing and administrative
duties under this Agreement and the Trust Sale and Servicing Agreement. Except
to the extent required by the preceding two sentences, the authority and rights
granted to the Servicer in this SECTION 3.02 shall be nonexclusive and shall not
be construed to be in derogation of the retention by any Interested Party (to
the extent of its rights in a Receivable) of equivalent authority and rights.
Without limiting the generality of the foregoing and subject to any Servicing
Default, the Servicer is hereby authorized and empowered, unless such power and
authority is revoked by any Interested Party on account of the occurrence of
such a Servicing Default, to:
(i) instruct the Issuer to make allocations, withdrawals and
payments to or from the Collection Account, the Distribution Accounts, the
Reserve Fund, the Cash Accumulation Reserve Fund and any other related
bank accounts or funds as set forth in the Trust Sale and Servicing
Agreement;
(ii) instruct the Issuer or any Interested Party to take
any action required or permitted under any Specified Support Arrangement;
(iii) execute and deliver, on behalf of the Issuer for the
benefit of any related Securityholders, any and all instruments of
satisfaction or cancellation, or of partial or full release or discharge,
and all other comparable instruments, with respect to the Receivables and,
after the delinquency of any Receivable and to the extent permitted under
and in compliance with applicable requirements of law, to commence
enforcement proceedings with respect to any such Receivable; and
(iv) make any filings, reports, notices, applications,
registrations with, and seek any consents or authorizations from, the
Securities and Exchange Commission and any State securities authority on
behalf of the Issuer as may be necessary or advisable to comply with any
federal or State securities law or reporting requirement.
(b) The Servicer shall not be obligated to use separate servicing
procedures, offices, employees or accounts for servicing the Receivables in the
Accounts in the Pool of Accounts from the procedures, offices, employees and
accounts used by the Servicer in connection with servicing other receivables.
The Servicer shall, at its own expense, on or prior to the Initial Closing Date,
in the case of the Initial Accounts, and on or prior to the applicable Addition
Date, in the case of Additional Accounts, indicate in its computer files that
the Eligible Receivables in the Accounts in the Pool of Accounts have been sold
and transferred by GMAC to the Purchaser hereunder and by the Purchaser to the
Trust under the Trust Sale and Servicing Agreement.
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(c) Except as otherwise required to comply with all Requirements of
Law, the Servicer may change the terms and provisions of the Floor Plan
Financing Agreements or the Floor Plan Financing Guidelines in any respect
(including the calculation of the amount or the timing of charge-offs and the
rate of the finance charge assessed thereon), only if:
(i) in the reasonable belief of the Servicer, no Early
Amortization Event shall occur as a result of such change;
(ii) such change is made applicable to the comparable segment
of any similar portfolio of accounts serviced by the Servicer and not only
to the Accounts in the Pool of Accounts; and
(iii) in the case of a reduction in the rate of such finance
charges, the Servicer (and, if GMAC is not then the Servicer, GMAC) does
not reasonably expect any such reduction, after considering amounts due
and amounts payable under any Specified Support Agreements and Investment
Proceeds for the related period, to result in the Net Receivables Rate for
any Collection Period being less than the sum of (A) the weighted average
of the rates of interest payable to all holders of Securities and (B) the
Monthly Servicing Fee for the related period;
PROVIDED, HOWEVER, that nothing herein shall prevent the Servicer from modifying
the terms of the Floor Plan Financing Agreement with any dealer on a
case-by-case basis in a manner consistent with the Floor Plan Financing
Guidelines.
SECTION 3.03 SERVICING COMPENSATION; PAYMENT OF CERTAIN EXPENSES BY THE
SERVICER. The Servicer is entitled to receive the Monthly Servicing Fee as
described in the Trust Sale and Servicing Agreement. The Monthly Servicing Fee
shall be payable to the Servicer solely to the extent amounts are available for
payment in accordance with the terms of the Trust Sale and Servicing Agreement.
Subject to any limitations on the Servicer's liability under the Trust Sale and
Servicing Agreement, the Servicer shall be required to pay all expenses incurred
by it in connection with its activities under this Agreement and the Trust Sale
and Servicing Agreement (including disbursements of the Issuer, fees and
disbursements of any trustees, accountants and outside auditors, taxes imposed
on the Servicer, expenses incurred in connection with distributions and reports
to Securityholders and all other fees and expenses not expressly stated under
this Agreement or the Trust Sale and Servicing Agreement to be for the account
of the Securityholders, but in no event including federal, state and local
income and franchise taxes, if any, of the Issuer or any holder of the
Securities).
SECTION 3.04REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE
SERVICER.
(a) The Servicer hereby makes, and any successor Servicer by its
appointment under this Agreement and under the Trust Sale and Servicing
Agreement shall make, on each Closing Date (and on the date of any such
appointment) the following representations, warranties
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and covenants on which the Purchaser relies in accepting and holding the
Receivables and the related Collateral Security hereunder and the Issuer shall
rely in acquiring and holding such Receivables and the related Collateral
Security under the Trust Sale and Servicing Agreement and in issuing the
Securities:
(i) ORGANIZATION AND GOOD STANDING. The Servicer has been duly
organized and is validly existing as a corporation in good standing under
the laws of the State of Delaware (or, in the case of a Servicer other
than GMAC, other applicable law of its jurisdiction of incorporation),
with power and authority to own its properties and to conduct its
businesses as such properties are presently owned and such businesses are
presently conducted.
(ii) DUE QUALIFICATION. The Servicer is duly qualified to do
business and, where necessary, is in good standing as a foreign
corporation (or is exempt from such requirement) and has obtained all
necessary licenses and approvals in each jurisdiction in which the conduct
of its businesses requires such qualification, except where the failure to
so qualify or obtain licenses or approvals would not have material adverse
effect on its ability to perform its obligations under this Agreement.
(iii) POWER AND AUTHORITY. The Servicer has the power and
authority to execute and deliver this Agreement and the Trust Sale and
Servicing Agreement, to carry out the terms of each such agreement and to
service the Accounts in the Pool of Accounts and the Receivables arising
therein as provided herein and in the Trust Sale and Servicing Agreement,
and the execution, delivery and performance of this Agreement and the
Trust Sale and Servicing Agreement have been duly authorized by the
Servicer by all necessary corporate action on the part of the Servicer.
(iv) BINDING OBLIGATION. This Agreement constitutes, and the
Trust Sale and Servicing Agreement, when duly executed and delivered by
the Servicer, shall constitute, the legal, valid and binding obligation of
the Servicer enforceable in accordance with their respective terms, except
as enforceability may be limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws now or hereinafter in
effect, affecting the enforcement of creditors' rights in general and by
general principles of equity, regardless of whether such enforceability is
considered in a proceeding in equity or at law.
(v) NO VIOLATION. The execution of this Agreement and the
consummation of the transactions contemplated by this Agreement and the
Trust Sale and Servicing Agreement by the Servicer and the fulfillment of
the terms of this Agreement and the Trust Sale and Servicing Agreement by
the Servicer, shall not conflict with, result in any breach of any of the
terms and provisions of or constitute (with or without notice or lapse of
time) a default under, the articles of incorporation or by-laws of the
Servicer, or any indenture, agreement, mortgage, deed of trust or other
instrument to which the Servicer is a party or by which it is bound, or
result in the creation or imposition of any Lien upon any of its
properties pursuant to the terms of any such indenture, agreement,
mortgage, deed of trust or other instrument (other than pursuant to the
Basic Documents), or violate any law or, to the best of the Servicer's
knowledge, any order, rule or regulation applicable to the Servicer
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of any Governmental Authority having jurisdiction over the Servicer or any
of its properties, except where any such conflict or violation would not
have a material adverse effect on its ability to perform its obligations
under this Agreement or the Trust Sale and Servicing Agreement.
(vi) NO PROCEEDINGS. To the Servicer's knowledge, there are no
Proceedings or investigations pending, or threatened, against the Servicer
before any Governmental Authority having jurisdiction over the Servicer or
its properties (A) asserting the invalidity of this Agreement or the Trust
Sale and Servicing Agreement or any Securities issued thereunder, (B)
seeking to prevent the issuance of the such Securities, the execution of
this Agreement or the consummation of any of the transactions contemplated
by this Agreement or the Trust Sale and Servicing Agreement or (C) seeking
any determination or ruling that might materially and adversely affect the
performance by the Servicer of its obligations under, or the validity and
enforceability of, this Agreement or the Trust Sale and Servicing
Agreement.
(vii) COMPLIANCE WITH REQUIREMENTS OF LAW. The Servicer shall
duly satisfy all obligations on its part to be fulfilled under or in
connection with the Receivables and the Accounts to be serviced under this
Agreement and the Trust Sale and Servicing Agreement, shall maintain in
effect all qualifications required under Requirements of Law in order to
service properly such Receivables and such Accounts and shall comply in
all material respects with all Requirements of Law in connection with
servicing such Receivables and such Accounts, except, in each case, where
a failure to do so would not have a material adverse effect on the
interests of the Securityholders.
(viii)NO RESCISSION OR CANCELLATION. Except pursuant to the
Floor Plan Financing Guidelines, the Servicer shall not permit any
rescission or cancellation of any Receivable sold and assigned to the
Purchaser hereunder that the Servicer services under this Agreement and
the Trust Sale and Servicing Agreement, except as ordered by a court of
competent jurisdiction or other Governmental Authority.
(ix) PROTECTION OF INTERESTED PARTY RIGHTS. The Servicer shall
take no action, nor omit to take any action, which would impair the rights
or interests of Interested Parties in the Receivables sold and assigned to
the Purchaser hereunder that the Servicer services under this Agreement
and the Trust Sale and Servicing Agreement or in the related Vehicle
Collateral Security nor shall it reschedule, revise or defer payments due
on any such Receivable except, in each case, in a manner consistent with
the Floor Plan Financing Guidelines or as otherwise contemplated herein or
in the Trust Sale and Servicing Agreement. The Servicer shall not permit
any such Receivable to become subject to any right of set-off or any
offsetting balance.
(x) NEGATIVE PLEDGE. Except for the conveyances hereunder to
the Issuer pursuant to the Trust Sale and Servicing Agreement and the
pledge of the Trust Estate to the Indenture Trustee pursuant to the
Indenture, and as provided in SECTION 6.03, the Servicer shall not sell,
pledge, assign or transfer to any other Person, or grant, create, incur,
assume or suffer to exist, any Lien on any Receivable sold and assigned to
the Purchaser hereunder
p&s.form.01.wpd - 9 -
(and any related Collateral Security), whether now existing or hereafter
created, or any interest therein, and the Servicer shall defend the right,
title and interest of the Purchaser, the Issuer and any Interested Party
in, to and under such property, whether now existing or hereafter created,
against all claims of third parties claiming through or under the
Purchaser or the Servicer. The Servicer shall notify the Purchaser
promptly after becoming aware of any Lien on such property other than the
conveyances hereunder or under the Trust Sale and Servicing Agreement or
the Indenture.
(b) NOTICE OF BREACH. Upon discovery by the Purchaser or the
Servicer of a breach of any of the representations, warranties and covenants set
forth in this SECTION 3.04, the party discovering such breach shall give prompt
written notice to the other party.
(c) PURCHASE OF RECEIVABLES. If any covenants of the Servicer under
SECTION 3.04(A)(VIII), (IX) OR (X) has not been complied with in all material
respects with respect to any Eligible Receivable or Account in the Pool of
Accounts and such noncompliance has a material adverse effect on the interests
of Securityholders or any other Interested Parties in such Receivable or such
Account, the Servicer shall purchase such Receivable (or, in the case of a
breach affecting less than the entire principal amount of a Receivable, to the
extent of the breach) or all Eligible Receivables under such Account (each, an
"ADMINISTRATIVE RECEIVABLE") from the Issuer, on the terms and conditions set
forth in this SECTION 3.04.
(d) PAYMENT OF PURCHASE PRICE. The Servicer shall purchase each
Administrative Receivable no later than two Business Days (or such other period
as may be agreed by the Applicable Trustee) following discovery by the Servicer
(including through the receipt of notice thereof) of the event giving rise to
such Administrative Receivable by depositing in the Collection Account, on the
date on which such purchase is deemed to occur, an amount (in immediately
available funds) equal to the principal amount of such Receivable plus accrued
and unpaid interest thereon through the date of purchase. The amount so
deposited with respect to a Receivable (an "ADMINISTRATIVE PURCHASE PAYMENT")
shall be included in Trust Principal Collections (to the extent of the principal
amount of such Receivable) and Interest Collections (as to the remainder of such
amount) on such date and shall be applied in accordance with the terms of this
Agreement and the Trust Sale and Servicing Agreement.
(e) SOLE REMEDY. The obligation of the Servicer to purchase
Receivables as described in this SECTION 3.04, and to make the deposits required
to be made to the Collection Account as provided in the preceding paragraph,
shall constitute the sole remedy respecting the event giving rise to such
obligation available to any Securityholders, the Purchaser, the Owner Trustee,
the Indenture Trustee or the Issuer.
SECTION 3.05 SERVICER'S ACCOUNTING AND REPORTS.
(a) On or before each Determination Date, the Servicer shall deliver
to the Purchaser, the Owner Trustee, the Indenture Trustee and the Rating
Agencies a Servicer's Accounting with respect to the immediately preceding
Collection Period executed by an Authorized Officer of the Servicer containing
all information necessary for making the allocations, deposits and distributions
required by the Trust Sale and Servicing Agreement, the Trust Agreement and the
p&s.form.01.wpd - 10 -
Indenture on the related Distribution Date, and all information necessary to
each such party for sending any statements required to be sent to
Securityholders with respect to such Distribution Date under the Trust Sale and
Servicing Agreement.
(b) On each Business Day, the Servicer shall deliver to the
Indenture Trustee a Servicer's Accounting executed by an Authorized Officer of
the Servicer containing the Daily Trust Balance, the Daily Trust Invested Amount
and all related amounts to the extent necessary to determine the Cash Collateral
Amount for such date as described in SECTION 4.5(D) of the Trust Sale and
Servicing Agreement.
(c) At any time that GMAC does not have a long-term rating of at
least BBB- from Standard & Poor's and at least Baa3 from Moody's, the Servicer
shall identify on a daily basis all Eligible Receivables and, on or before each
Determination Date, the Servicer shall deliver to the Owner Trustee a list
identifying all Eligible Receivables as of the last day of the related
Collection Period.
SECTION 3.06 PRE-CLOSING COLLECTIONS. Within two Business Days after the
Initial Closing Date, GMAC shall deliver to the Purchaser all collections on the
Receivables in the Accounts in the Pool of Accounts held by GMAC on the Initial
Closing Date to the extent such collections would be required to be on deposit
on such date if this Agreement and the Trust Sale and Servicing Agreement had
been in effect from and after the Initial Cut-Off Date and the Revolving Period
had commenced on such date. The Purchaser hereby directs GMAC to deposit such
amount on its behalf into the Collection Account.
SECTION 3.07COLLECTIONS RECEIVED BY GMAC. GMAC hereby agrees to
deliver all Collections on the Receivables in the Accounts in the Pool of
Accounts received by GMAC from or on behalf of Dealers to the Servicer and
consents to the application, allocation and distribution thereof in accordance
with the terms and provisions of this Agreement and the Trust Sale and Servicing
Agreement.
ARTICLE IV
REPRESENTATIONS, WARRANTIES AND COVENANTS
SECTION 4.01 REPRESENTATIONS AND WARRANTIES OF GMAC RELATING TO THE
ACCOUNTS AND THE RECEIVABLES.
(a) REPRESENTATIONS AND WARRANTIES. As of the dates set forth below,
GMAC makes the following representations and warranties to the Purchaser as to
the Accounts in the Pool of Accounts and the Receivables sold to the Purchaser
hereunder, on which the Purchaser relies in accepting such Receivables:
(i) as of the Initial Cut-Off Date, each Account included in the
Pool of Accounts is an Eligible Account;
p&s.form.01.wpd - 11 -
(ii) as of the Initial Cut-Off Date, each Receivable that is
identified as an Eligible Receivable and conveyed to the Purchaser on the
Initial Closing Date is an Eligible Receivable;
(iii) as of each Additional Cut-Off Date, each related
Additional Account is an Eligible Account and each Receivable arising
thereunder that is identified as an Eligible Receivable and conveyed to
the Purchaser on the related Addition Date is an Eligible Receivable; and
(iv) as of each date that Receivables are sold and transferred
hereunder pursuant to SECTION 2.01(B), each Receivable that is identified
as an Eligible Receivable and so conveyed to the Purchaser on such date is
an Eligible Receivable.
(b) SURVIVAL; NOTICE OF BREACH. The representations and warranties
set forth in this SECTION 4.01 shall survive the transfer and assignment of the
Eligible Receivables in the Accounts in the Pool of Accounts and related items
to the Purchaser from time to time and the subsequent assignment and transfer of
its interests therein to the Issuer pursuant to the Trust Sale and Servicing
Agreement. Upon discovery by GMAC or the Purchaser of a breach of any of the
representations and warranties set forth in this SECTION 4.01, the party
discovering such breach shall give prompt written notice to the other party.
(c) REPURCHASE. GMAC acknowledges that the Purchaser shall assign
its rights and remedies hereunder with respect to the Eligible Receivables
arising in the Accounts in the Pool of Accounts to the Issuer under the Trust
Sale and Servicing Agreement. GMAC hereby covenants and agrees with the
Purchaser that (i) in the event of a breach of any of GMAC's representations and
warranties contained in SECTION 4.01(A) with respect to any Receivable or with
respect to any Account that materially and adversely affects the interests of
the Purchaser or the Trust in any Receivable or (ii) in the event that the
payment of all or a portion of the principal amount of any Receivable held by
the Purchaser or the Trust is deferred pursuant to DPP or any other instalment
sales program or similar arrangement, unless and to the extent such breach or
deferral shall have been cured in all material respects, GMAC shall repurchase
the interest of the Issuer in such Receivable (to the extent of such breach or
deferral) on the date and for the amount specified in SECTION 2.5 of the Trust
Sale and Servicing Agreement, without further notice from the Purchaser
hereunder and without any representation, warranty or recourse from the
Purchaser or the Issuer. Without limiting the generality of the foregoing, a
Receivable shall not be an Eligible Receivable, and thus shall be subject to
repurchase, if and to the extent that, (A) the Servicer adjusts downward the
principal amount of such Receivable because of a rebate, refund, credit
adjustment or billing error to the related Dealer or (B) such Receivable was
created in respect of a Vehicle which was refused or returned by the related
Dealer.
(d) SOLE REMEDY. The obligation of GMAC to repurchase any Receivable
shall constitute the sole remedy respecting the event giving rise to such
obligation available to the Purchaser and to any Interested Party.
p&s.form.01.wpd - 12 -
SECTION 4.02 REPRESENTATIONS AND WARRANTIES OF GMAC RELATING TO GMAC AND
THE AGREEMENT.
(a) REPRESENTATIONS AND WARRANTIES. GMAC, in its capacity as seller,
hereby makes as of each Closing Date the following representations and
warranties on which the Purchaser relies. The following representations and
warranties shall survive the sale, transfer and assignment of the Receivables
hereunder:
(i) ORGANIZATION AND GOOD STANDING. GMAC has been duly
organized and is validly existing as a corporation in good standing under
the laws of the State of Delaware, with power and authority to own its
properties and to conduct its businesses as such properties are presently
owned and such businesses are presently conducted;
(ii) DUE QUALIFICATION. GMAC is duly qualified to do business
and, where necessary, is in good standing as a foreign corporation (or is
exempt from such requirement) and has obtained all necessary licenses and
approvals in each jurisdiction in which the conduct of its businesses
requires such qualification, except where the failure to so qualify or
obtain licenses or approvals would not have a material adverse effect on
its ability to perform its obligations under this Agreement;
(iii) POWER AND AUTHORITY. GMAC has the power and authority to
execute and deliver this Agreement, to carry out its terms, and to
consummate the transactions contemplated herein, and the execution,
delivery and performance of this Agreement and the consummation of the
transactions contemplated herein have been duly authorized by GMAC by all
necessary corporate action on the part of GMAC;
(iv) NO VIOLATION. The execution of this Agreement and the
consummation of the transactions contemplated by this Agreement and the
fulfillment of the terms of this Agreement by GMAC shall not conflict
with, result in any breach of any of the terms and provisions of, or
constitute (with or without notice or lapse of time) a default under, the
articles of incorporation or by-laws of GMAC, or any indenture, agreement,
mortgage, deed of trust or other instrument to which GMAC is a party or by
which it is bound, or result in the creation or imposition of any Lien
upon any of its properties pursuant to the terms of any such indenture,
agreement, mortgage, deed of trust or other instrument (other than
pursuant to the Basic Documents) or violate any law or, to the best of
GMAC's knowledge, any order, rule or regulation applicable to GMAC of any
Governmental Authority having jurisdiction over GMAC or any of its
properties, except where any such conflict or violation would not have a
material adverse effect on its ability to perform its obligations with
respect to the Purchaser or any Interested Party under this Agreement or
the Trust Sale and Servicing Agreement;
(v) NO PROCEEDINGS. To GMAC's knowledge, there are no
Proceedings or investigations pending, or threatened, against GMAC before
any Governmental Authority having jurisdiction over GMAC or its properties
(A) asserting the invalidity of this Agreement, the Trust Sale and
Servicing Agreement, the Custodian Agreement or the Administration
Agreement, (B) seeking to prevent the execution of this Agreement or the
p&s.form.01.wpd - 13 -
consummation of any of the transactions contemplated by this Agreement,
the Trust Sale and Servicing Agreement, the Custodian Agreement or the
Administration Agreement or (C) seeking any determination or ruling that
might materially and adversely affect the performance by GMAC of its
obligations under, or the validity or enforceability of, this Agreement,
the Trust Sale and Servicing Agreement, the Custodian Agreement or the
Administration Agreement;
(vi) BINDING OBLIGATION. This Agreement constitutes a legal,
valid and binding obligation of GMAC, enforceable against GMAC in
accordance with its terms, except as such enforceability may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium or other
similar laws now or hereafter in effect affecting the enforcement of
creditors' rights in general and by general principles of equity,
regardless of whether such enforceability is considered in a proceeding in
equity or at law;
(vii) RECORD OF ACCOUNTS. The Schedule of Accounts is an
accurate and complete listing in all material respects of all of the
Accounts in the Pool of Accounts as of the Initial Cut-Off Date or the
applicable Additional Cut-Off Date, as the case may be, and the
information contained therein with respect to the identity of such
Accounts is true and correct in all material respects; and
(viii)VALID SALE. With respect to the Initial Accounts, this
Agreement and the related assignment to be delivered on the Initial
Closing Date or, in the case of Additional Accounts, the related
assignment as described in SECTION 2.03(B), when duly executed and
delivered, shall constitute a valid sale, transfer and assignment to the
Purchaser of all right, title and interest of GMAC in, to and under the
Eligible Receivables thereunder and the related Vehicle Collateral
Security, whether then existing or thereafter created, and the proceeds
thereof, enforceable against creditors of and purchasers from GMAC. To the
extent such filings are required therefor, upon the filing of the
financing statements described in SECTION 7.02(A) (and, in the case of
Eligible Receivables hereafter created in the Accounts in the Pool of
Accounts and the proceeds thereof, upon the creation thereof) the
Purchaser shall have a first priority perfected ownership interest in such
property, except for Liens permitted under SECTION 4.04(A). Except as
otherwise provided in the Trust Sale and Servicing Agreement or this
Agreement, neither General Motors, GMAC nor any Person claiming through or
under General Motors or GMAC has any claim to or interest in the Trust
Estate.
(b) SURVIVAL; NOTICE OF BREACH. The representations and warranties
set forth in this SECTION 4.02 shall survive the transfer and assignment of the
Receivables and related items to the Purchaser hereunder and the subsequent
assignment and transfer of its interests therein to the Issuer pursuant to the
Trust Sale and Servicing Agreement. Upon discovery by GMAC or the Purchaser of a
breach of any of the foregoing representations and warranties, the party
discovering such breach shall give prompt written notice to the other party.
(c) REPURCHASE. If (i) the Purchaser is required to purchase
Receivables and related Collateral Security pursuant to SECTION 3.1(C) of the
Trust Sale and Servicing Agreement and (ii) the condition giving rise to such
purchase obligation shall also constitute a breach of a
p&s.form.01.wpd - 14 -
representation or warranty pursuant to SECTION 4.02(A), GMAC shall repurchase
such Receivables and such Collateral Security and shall pay to the Purchaser,
prior to the time the Purchaser is required to pay such amount pursuant to the
Trust Sale and Servicing Agreement, an amount equal to the Reassignment Amount.
(d) SOLE REMEDY. The obligation of GMAC to purchase such Receivables
and such Collateral Security pursuant to this SECTION 4.02 shall constitute the
sole remedy available to the Purchaser and to any Interested Party against GMAC
respecting the event giving rise to such obligation.
SECTION 4.03 REPRESENTATIONS AND WARRANTIES OF THE PURCHASER. The Purchaser
hereby represents and warrants to GMAC as of each Closing Date that:
(a) ORGANIZATION AND GOOD STANDING. The Purchaser has been duly
organized and is validly existing as a corporation in good standing under the
laws of the State of Delaware, with power and authority to own its properties
and to conduct its business as such properties are presently owned and such
business is presently conducted, and had at all relevant times, and now has,
power, authority and legal right to acquire and own the Eligible Receivables
arising in the Accounts in the Pool of Accounts and the Collateral Security
related thereto;
(b) DUE QUALIFICATION. The Purchaser is duly qualified to do
business and, where necessary, is in good standing as a foreign corporation (or
is exempt from such requirement) and has obtained all necessary licenses and
approvals in all jurisdictions in which the ownership or lease of property or
the conduct of its business requires such qualification, except where the
failure to so qualify or obtain licenses or approvals would not have a material
adverse effect on its ability to perform its obligations under this Agreement;
(c) POWER AND AUTHORITY. The Purchaser has the power and authority
to execute and deliver this Agreement, to carry out its terms and to consummate
the transactions contemplated herein, and the execution, delivery and
performance of this Agreement and the consummation of the transactions
contemplated herein have been duly authorized by the Purchaser by all necessary
corporate action on the part of the Purchaser;
(d) NO VIOLATION. The execution of this Agreement and the
consummation of the transactions contemplated by this Agreement by the Purchaser
and the fulfillment of the terms of this Agreement by the Purchaser shall not
conflict with, result in any breach of any of the terms and provisions of or
constitute (with or without notice or lapse of time) a default under, the
certificate of incorporation or by-laws of the Purchaser, or any indenture,
agreement, mortgage, deed of trust or other instrument to which the Purchaser is
a party or by which it is bound, or result in the creation or imposition of any
Lien upon any of its properties pursuant to the terms of any such indenture,
agreement, mortgage, deed of trust or other instrument (other than pursuant to
the Basic Documents), or violate any law or, to the best of the Purchaser's
knowledge, any order, rule or regulation applicable to the Purchaser of any
Governmental Authority having jurisdiction over the Purchaser or any of its
properties, except where any such conflict or violation would not have a
material adverse effect on its ability to perform its obligations with respect
to GMAC or any Interested Party under this Agreement or the Trust Sale and
Servicing Agreement;
p&s.form.01.wpd - 15 -
(e) NO PROCEEDINGS. To the Purchaser's knowledge, there are no
Proceedings or investigations pending, or threatened, against the Purchaser
before any Governmental Authority having jurisdiction over the Purchaser or its
properties (i) asserting the invalidity of this Agreement, (ii) seeking to
prevent the execution of this Agreement or the consummation of any of the
transactions contemplated by this Agreement or (iii) seeking any determination
or ruling that might materially and adversely affect the performance by the
Purchaser of its obligations under, or the validity or enforceability of, this
Agreement; and
(f) BINDING OBLIGATION. This Agreement constitutes a legal, valid
and binding obligation of the Purchaser, enforceable against the Purchaser in
accordance with its terms, except as such enforceability may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium or other similar
laws now or hereafter in effect affecting the enforcement of creditors' rights
in general and by general principles or equity, regardless of whether such
enforceability is considered in a proceeding in equity or at law.
SECTION 4.04 COVENANTS OF GMAC. GMAC hereby covenants that:
-----------------
(a) NEGATIVE PLEDGE. Except for the conveyances hereunder and under
the Trust Sale and Servicing Agreement and the pledge of the Trust Estate to the
Indenture Trustee under the Indenture and as provided in SECTION 6.03, GMAC
shall not sell, pledge, assign or transfer to any other Person, or grant,
create, incur, assume or suffer to exist, any Lien on any Eligible Receivable in
any Account in the Pool of Accounts (and any related Vehicle Collateral
Security), whether now existing or hereafter created, or any interest therein,
and GMAC shall defend the right, title and interest of the Purchaser and any
Interested Party in, to and under such property, whether now existing or
hereafter created, against all claims of third parties claiming through or under
GMAC. GMAC shall notify the Purchaser and the Issuer promptly after becoming
aware of any Lien on any such property other than the conveyances hereunder or
under the Trust Sale and Servicing Agreement or the Indenture. Nothing herein
shall prohibit GMAC from granting, creating, incurring or suffering to exist any
Lien on all or any portion of the Retained Property.
(b) DELIVERY OF COLLECTIONS. All payments received by GMAC from or
on behalf of a Dealer in respect of Receivables in any Accounts in the Pool of
Accounts or any Collateral Security (except as contemplated in SECTION 6.03 with
respect to any property constituting Common Collateral that is not Vehicle
Collateral Security in connection with any Other Indebtedness) shall be received
by GMAC in its capacity as Servicer, unless GMAC is no longer the Servicer, in
which case GMAC shall deliver all such payments to the Servicer as soon as
practicable after receipt thereof, but in no event later than two Business Days
after receipt thereof.
(c) COMPLIANCE WITH REQUIREMENTS OF LAW. GMAC shall comply in all
material respects with all Requirements of Law applicable to GMAC, except where
any such failure to comply would not have a material adverse effect on its
ability to perform its obligations under this Agreement.
p&s.form.01.wpd - 16 -
(d) NO PETITION. Neither the Servicer nor GMAC shall at any time
institute against the Purchaser any bankruptcy, reorganization, arrangement,
insolvency or liquidation proceedings, or other proceedings under any United
States Federal or state bankruptcy or similar law.
ARTICLE V
CERTAIN MATTERS RELATING TO GMAC
SECTION 5.01 MERGER OR CONSOLIDATION OF, OR ASSUMPTION OF THE
OBLIGATIONS OF, GMAC.
(a) Notwithstanding anything to the contrary in this Agreement, any
Person (i) into which GMAC may be merged or consolidated, (ii) resulting from
any merger, conversion or consolidation to which GMAC shall be a party, (iii)
succeeding to the business of GMAC or (iv) more than 50% of the voting interests
of which is owned, directly or indirectly, by General Motors and which is
otherwise originating receivables, which Person in any of the foregoing cases
(other than GMAC as the surviving entity of such merger or consolidation)
executes an agreement of assumption to perform every obligation of GMAC, as
seller, under this Agreement and the Trust Sale and Servicing Agreement, shall
be the successor to GMAC under this Agreement, as seller, without the execution
or filing of any document or any further act on the part of any of the parties
to this Agreement or the Trust Sale and Servicing Agreement, anything in this
Agreement to the contrary notwithstanding.
(b) GMAC shall provide notice of any merger, consolidation or
succession pursuant to this SECTION 5.01 to the Rating Agencies.
SECTION 5.02 GMAC INDEMNIFICATION OF THE PURCHASER. GMAC shall
indemnify the Purchaser for any liability as a result of the failure of an
Eligible Receivable sold hereunder to be originated in compliance with all
Requirements of Law. This indemnity obligation shall be in addition to any
obligation that GMAC may otherwise have.
SECTION 5.03 GMAC ACKNOWLEDGMENT OF TRANSFERS TO THE ISSUER. By its
execution of the Trust Sale and Servicing Agreement, GMAC acknowledges that the
Purchaser shall, pursuant to the Trust Sale and Servicing Agreement, transfer
the Receivables purchased hereunder and related Collateral Security to the
Issuer and assign its rights associated therewith under this Agreement to the
Issuer, subject to the terms and conditions of the Trust Sale and Servicing
Agreement, and that the Issuer shall in turn further pledge, assign or transfer
its rights in such property and this Agreement to the Indenture Trustee under
the Indenture. GMAC further acknowledges that the Purchaser shall assign its
rights under the Custodian Agreement to the Issuer.
p&s.form.01.wpd - 17 -
ARTICLE VI
ADDITIONAL AGREEMENTS
SECTION 6.01 ADDITIONAL OBLIGATIONS OF GMAC AND THE PURCHASER.
(a) SUPPLEMENTAL PRINCIPAL ALLOCATIONS. On or before the Business
Day prior to each Distribution Date for the Wind Down Period or an Early
Amortization Period, GMAC shall deposit into the Collection Account, on behalf
of the Purchaser, an amount equal to the Supplemental Principal Allocation for
such Distribution Date. Such amount shall be recorded as an advance under the
Intercompany Advance Agreement and shall bear interest and be payable as
provided therein.
(b) REMOVED ACCOUNTS. With respect to each Removed Account, if and
to the extent that any related Receivable held by the Trust on the related
Removal Commencement Date (determined without giving effect to the special
allocation of Principal Collections pursuant to SECTION 2.8(C) OR SECTION
2.9(B), as applicable, of the Trust Sale and Servicing Agreement) is charged-off
as uncollectible at any time following the related Removal Date, the Purchaser
shall pay the amount so charged-off to GMAC.
SECTION 6.02 EFFECT OF INVOLUNTARY CASE INVOLVING GMAC.
(a) SUSPENSION OF PURCHASES. The Purchaser shall suspend the
purchase (and GMAC shall suspend the sale) of Receivables hereunder if either
party shall receive notice at its principal corporate office that GMAC has
become an involuntary party to (or has been made the subject of) any proceeding
provided for by any insolvency, readjustment of debt, marshalling of assets and
liabilities or similar proceedings of or relating to GMAC or relating to all or
substantially all of its property (an "INVOLUNTARY CASE").
(b) RESUMPTION OF PURCHASES. Notwithstanding any cessation or
suspension of purchases pursuant to SECTION 6.02(A), if GMAC or the Purchaser
has obtained an order from the court having jurisdiction over an Involuntary
Case approving the continuation of the sale of Receivables by GMAC to the
Purchaser and/or approving the sale of Receivables originating in the Accounts
in the Pool of Accounts since the date of the suspension of such sales on the
same terms (including SECTION 6.03 hereof) as, or on terms that do not have a
material adverse effect on Securityholders as compared to, the terms in effect
prior to the commencement of such Involuntary Case, and further providing that
the Purchaser and any of its transferees (including the Issuer) may rely on such
order for the validity and nonavoidance of such transfer (the "ORDER"), the
Purchaser may resume the purchase (and GMAC may resume the sale) of Receivables
pursuant to the terms hereof; PROVIDED, HOWEVER, that so long as such
Involuntary Case shall continue, notwithstanding anything in this Agreement to
the contrary, the purchase price of such Receivables (which shall not be less
than reasonably equivalent value therefor or greater than the principal balance
thereof) shall be paid by the Purchaser to GMAC in cash not later than the same
Business Day of any such sale, and such Receivables shall be considered
transferred to the Purchaser only to the extent that the purchase price therefor
has been paid in cash on the same Business Day.
p&s.form.01.wpd - 18 -
(c) CESSATION OF PURCHASES. If an Order is obtained but subsequently
is reversed or rescinded or expires, the Purchaser shall immediately cease to
purchase (and GMAC shall immediately cease to sell) Receivables hereunder.
Notwithstanding anything contained in SECTION 6.02(B), if an Involuntary Case
has not been dismissed by the first Business Day following the 60 day period
beginning on the day on which notice of an Involuntary Case was received by
either party, whether or not an Order was obtained, the Purchaser shall not
thereafter purchase Receivables from GMAC hereunder and GMAC shall not
thereafter designate Additional Accounts for transfer to the Purchaser or sell
Receivables hereunder.
SECTION 6.03 INTERCREDITOR AGREEMENTS.
------------------------
(a) COMMON COLLATERAL. In connection with loans or advances made or
to be made by GMAC to a Dealer from time to time other than pursuant to an
Account (collectively, "OTHER INDEBTEDNESS"), GMAC may have a security interest
in property constituting Collateral Security (the "COMMON COLLATERAL").
(b) AGREEMENTS OF GMAC WITH RESPECT TO COMMON COLLATERAL. GMAC
agrees that with respect to the Receivables of each Dealer:
(i) GMAC's security interest in any Common Collateral that is
Vehicle Collateral Security (and the proceeds thereof) in connection with
any Other Indebtedness is subordinate to the security interest therein in
connection with such Receivables and assigned to the Purchaser hereunder;
(ii) GMAC shall not apply the proceeds of any such Common
Collateral that is Vehicle Collateral Security in connection with any
Other Indebtedness in any manner that is materially adverse to the
Purchaser or the Issuer and the Securityholders until all required
payments in respect of such Receivable have been made; and
(iii) in realizing upon any such Common Collateral that is
Vehicle Collateral Security in connection with any such Receivables,
neither the Purchaser nor the Issuer (nor the Servicer on behalf of
either) shall be obligated to protect or preserve the rights of GMAC in
such Common Collateral.
(c) AGREEMENTS OF THE PURCHASER WITH RESPECT TO COMMON COLLATERAL.
The Purchaser agrees that with respect to the Receivables of each Dealer:
(i) the Purchaser's security interest in any Common Collateral
that is not Vehicle Collateral Security (and the proceeds thereof) in
connection with such Receivables assigned to the Purchaser hereunder is
subordinate to the security interest therein in connection with any Other
Indebtedness;
(ii) the Purchaser (or the Servicer on its behalf) shall not
apply the proceeds of any such Common Collateral that is not Vehicle
Collateral Security in connection with any such Receivables in any manner
that is materially adverse to GMAC until all required payments in respect
of such Other Indebtedness have been made; and
p&s.form.01.wpd - 19 -
(iii) in realizing upon any such Common Collateral that is not
Vehicle Collateral Security in connection with such Other Indebtedness,
GMAC shall not be obligated to protect or preserve the rights of the
Purchaser or the Issuer in such Collateral Security.
(d) OBLIGATIONS OF ISSUER. The Trust Sale and Servicing Agreement
shall provide that the Issuer is subject to this SECTION 6.03.
(e) OBLIGATIONS OF ASSIGNEES AND TRANSFEREES. If, other than
pursuant hereto, GMAC in any manner assigns or transfers any right or obligation
with respect to any Other Indebtedness or any property constituting Common
Collateral, GMAC shall make such assignment or transfer subject to the
provisions of this SECTION 6.03 and shall require such assignee or transferee to
acknowledge that it takes such assignment or transfer subject to the provisions
of this SECTION 6.03 and to agree that it shall require the same acknowledgment
from any subsequent assignee or transferee.
ARTICLE VII
MISCELLANEOUS PROVISIONS
SECTION 7.01 AMENDMENT. This Agreement may be amended from time to
time (subject to SECTION 10.1(G) of the Trust Sale and Servicing Agreement) by a
written amendment duly executed and delivered by GMAC and the Purchaser.
SECTION 7.02 PROTECTION OF RIGHT, TITLE AND INTEREST IN AND TO
RECEIVABLES.
(a) GMAC or the Purchaser or both shall execute and file such
financing statements and cause to be executed and filed such continuation
statements or other statements, all in such manner and in such places as may be
required by law fully to evidence, preserve, maintain and protect the interest
of the Purchaser hereunder in the Eligible Receivables arising in the Accounts
in the Pool of Accounts and the related Collateral Security and in the proceeds
thereof (including, without limitation, UCC-1 financing statements on or prior
to the Initial Closing Date). GMAC shall deliver (or cause to be delivered) to
the Purchaser file-stamped copies of, or filing receipts for, any document filed
as provided above, as soon as available following such filing.
(b) Within 60 days after GMAC makes any change in its name, identity
or corporate structure that would make any financing statement or continuation
statement filed in accordance with SECTION 7.02(A) seriously misleading within
the meaning of SECTION 9-402(7) of the UCC, GMAC shall give the Purchaser notice
of any such change.
(c) GMAC shall give the Purchaser at least 60 days prior written
notice of any relocation of its principal executive office if, as a result of
such relocation, the applicable provisions of the UCC would require the filing
of any amendment of any previously filed financing or continuation statement or
of any new financing statement. GMAC shall at all times maintain its principal
executive office within the United States of America.
p&s.form.01.wpd - 20 -
(d) In connection with the sale and transfer hereunder of the
Receivables in the Accounts in the Pool of Accounts and the related Collateral
Security from GMAC to the Purchaser, GMAC shall, at its own expense, on or prior
to the Initial Closing Date, in the case of the Initial Accounts, and on or
prior to the applicable Addition Date, in the case of Additional Accounts, (i)
indicate in its computer files that the Eligible Receivables in the Accounts in
the Pool of Accounts have been sold and transferred, and the Collateral Security
assigned, to the Purchaser pursuant to this Agreement and that such property has
been sold and transferred to the Issuer pursuant to the Trust Sale and Servicing
Agreement and (ii) deliver to the Purchaser a true and complete list of all such
Accounts specifying for each such Account, as of the Initial Cut-Off Date, in
the case of the Initial Accounts, and as of the applicable Additional Cut-Off
Date, in the case of Additional Accounts, its account number and the outstanding
principal balance of Eligible Receivables in such Account. Such list, as
supplemented from time to time to reflect Additional Accounts, Selected Accounts
and Removed Accounts (including Accounts removed as described in SECTION 2.05),
shall be the Schedule of Accounts and is hereby incorporated into and made a
part of this Agreement.
(e) The Servicer shall furnish to the Purchaser at any time upon
request a list of all Accounts then included in the Pool of Accounts, together
with a reconciliation of such list to the Schedule of Accounts as initially
furnished pursuant to the Trust Sale and Servicing Agreement and to each notice
furnished before such request indicating removal from or addition to the
Accounts in the Pool of Accounts.
SECTION 7.03 COSTS AND EXPENSES. GMAC agrees to pay all reasonable
out-of-pocket costs and expenses of the Purchaser, including fees and expenses
of counsel, in connection with the perfection as against third parties of the
Purchaser's right, title and interest in, to and under the Receivables sold
hereunder and the enforcement of any obligation of GMAC hereunder.
SECTION 7.04 GOVERNING LAW. THIS AGREEMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK, WITHOUT REFERENCE TO
THE PRINCIPLES OF CONFLICTS OF LAW THEREOF OR OF ANY OTHER JURISDICTION, AND THE
OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN
ACCORDANCE WITH SUCH LAWS.
SECTION 7.05 NOTICES. All demands, notices and communications upon
or to GMAC, the Purchaser, or any other Person identified in SECTION 10.3 of the
Trust Sale and Servicing Agreement under this Agreement shall be delivered as
specified in APPENDIX B to the Trust Sale and Servicing Agreement.
SECTION 7.06 SEVERABILITY OF PROVISIONS. If any one or more of the
covenants, agreements, provisions or terms of this Agreement shall for any
reason whatsoever be held invalid, then such covenants, agreements, provisions
or terms shall be deemed enforceable to the fullest extent permitted, and if not
so permitted, shall be deemed severable from the remaining covenants,
agreements, provisions or terms of this Agreement and shall in no way affect the
validity or
p&s.form.01.wpd - 21 -
enforceability of the other provisions of this Agreement or of any Securities or
rights of any Interested Parties.
SECTION 7.07 ASSIGNMENT. Notwithstanding anything to the contrary
contained herein, this Agreement may not be assigned by GMAC without the prior
written consent of the Purchaser and the Issuer. The Purchaser may assign all or
a portion of its rights, remedies, powers and privileges under this Agreement to
the Issuer pursuant to the Trust Sale and Servicing Agreement.
SECTION 7.08 FURTHER ASSURANCES. GMAC and the Purchaser agree to do
and perform, from time to time, any and all acts and to execute any and all
further instruments required or reasonably requested by the other party to more
fully effect the purposes of this Agreement, including the execution of any
financing statements or continuation statements relating to the Receivables for
filing under the provisions of the Uniform Commercial Code of any applicable
jurisdiction and to evidence the repurchase of any interest in any Receivable by
GMAC or the Servicer.
SECTION 7.09 NO WAIVER; CUMULATIVE REMEDIES. No failure or delay on
the part of the Purchaser in exercising any right, remedy, power or privilege
under this Agreement shall operate as a waiver thereof; nor shall any single or
partial exercise of any right, remedy, power or privilege under this Agreement
preclude any other or further exercise thereof or the exercise of any other
right, remedy, power or privilege. The rights, remedies, powers and privileges
herein provided are cumulative and not exhaustive of any rights, remedies,
powers and privileges provided by law.
SECTION 7.10 COUNTERPARTS. This Agreement may be executed in two or
more counterparts (and by different parties on separate counterparts), each of
which shall be an original, but all of which together shall constitute one and
the same instrument.
SECTION 7.11 THIRD-PARTY BENEFICIARIES.This Agreement shall inure to
the benefit of and be binding upon the parties hereto, the Interested Parties
and their respective successors and permitted assigns. Except as otherwise
expressly provided in this Agreement, no other Person shall have any right or
obligation hereunder.
SECTION 7.12 MERGER AND INTEGRATION. Except as specifically stated
otherwise herein, this Agreement sets forth the entire understanding of the
parties relating to the subject matter hereof, and all prior understandings,
written or oral, are superseded by this Agreement. This Agreement may not be
modified, amended, waived, or supplemented except as provided herein.
SECTION 7.13 CONFIDENTIAL INFORMATION. The Purchaser agrees that it
shall neither use nor disclose to any Person the names and addresses of Dealers,
except in connection with the enforcement of the Purchaser's rights hereunder,
under the Trust Sale and Servicing Agreement, under the Receivables or as
required by law.
p&s.form.01.wpd - 22 -
SECTION 7.14 HEADINGS. The headings herein are for purposes of
reference only and shall not otherwise affect the meaning or interpretation of
any provision hereof.
SECTION 7.15 TERMINATION. This Agreement (except for SECTION 5.02)
shall terminate immediately after the termination of the Trust Sale and
Servicing Agreement; PROVIDED, that if at the time of the termination of the
Trust Sale and Servicing Agreement, the Purchaser has not made all payments to
GMAC required to be made under SECTION 6.01, this Agreement (except for SECTION
5.02) shall not terminate until immediately after all such payments have been
made.
SECTION 7.16. NO PETITION COVENANTS. Notwithstanding any prior
termination of this Agreement, GMAC shall not, prior to the date which is one
year and one day after the final distribution with respect to the Securities to
the Note Distribution Account, the Revolver Distribution Account or the
Certificate Distribution Account, as applicable, acquiesce, petition or
otherwise invoke or cause the Purchaser to invoke the process of any court or
governmental authority for the purpose of commencing or sustaining a case
against the Purchaser under any federal or state bankruptcy, insolvency or
similar law or appointing a receiver, liquidator, assignee, trustee, custodian,
sequestrator or other similar official of the Purchaser or any substantial part
of its property, or ordering the winding up or liquidation of the affairs of the
Purchaser.
* * * *
p&s.form.01.wpd - 23 -
IN WITNESS WHEREOF, the parties hereby have caused this Pooling and
Servicing Agreement to be executed by their respective officers thereunto duly
authorized as of the date and year first above written.
GENERAL MOTORS ACCEPTANCE CORPORATION,
Seller and Servicer
By:
Name:
Title:
WHOLESALE AUTO RECEIVABLES CORPORATION,
Purchaser
By:
Name:
Title:
EXHIBIT A
LIST OF LOCATIONS OF THE
SCHEDULE OF ACCOUNTS
The Schedule of Accounts is
on file at the offices of:
1. The Indenture Trustee
2. The Owner Trustee
3. General Motors Acceptance Corporation
4. Wholesale Auto Receivables Corporation
EXHIBIT B
FORM OF ASSIGNMENT FOR INITIAL CLOSING DATE
For value received, in accordance with the Pooling and Servicing
Agreement, dated as of ________, ____ (the "POOLING AND SERVICING AGREEMENT"),
between General Motors Acceptance Corporation, a Delaware corporation ("GMAC"),
and Wholesale Auto Receivables Corporation, a Delaware corporation (the
"PURCHASER"), GMAC does hereby sell, assign, transfer and otherwise convey unto
the Purchaser, without recourse, all of its right, title and interest in, to and
under all of the Eligible Receivables existing in the Accounts listed in the
Schedule of Accounts as of the close of business on the Initial Cut-Off Date
and, so long as each such Account is included in the Pool of Accounts, all
Eligible Receivables created or deemed created thereunder on each Receivables
Purchase Date and all monies due or to become due thereon after the Initial
Cut-Off Date or such Receivables Purchase Date, as appropriate, all Collateral
Security with respect thereto and all amounts received with respect thereto and
all proceeds thereof (including "proceeds" as defined in SECTION 9-306 of the
UCC and Recoveries).
The foregoing sale, transfer, assignment and conveyance and any
sales, transfers, assignments and conveyances subsequent to the date hereof do
not constitute, and are not intended to result in, the creation or an assumption
by the Purchaser of any obligation of the Servicer, GMAC (if GMAC is not the
Servicer), General Motors or any other Person in connection with the Accounts,
the Receivables or under any agreement or instrument relating thereto, including
any obligation to any Dealers.
It is the intention of GMAC and the Purchaser that the transfers and
assignments contemplated by this Assignment, including transfers and assignments
subsequent to the date hereof, shall constitute a sale of the property described
herein and in the Pooling and Servicing Agreement from GMAC to the Purchaser and
the beneficial interest in and title to such property shall not be part of
GMAC's estate in the event of the filing of a bankruptcy petition by or against
GMAC under any bankruptcy law.
This Assignment is made pursuant to and upon the representations,
warranties and agreements on the part of the undersigned contained in the
Pooling and Servicing Agreement and is to be governed by the Pooling and
Servicing Agreement.
Capitalized terms used herein and not otherwise defined shall have
the meaning assigned to them in the Pooling and Servicing Agreement.
* * * * *
IN WITNESS WHEREOF, the undersigned has caused this Assignment to be duly
executed as of ________, ____.
GENERAL MOTORS ACCEPTANCE CORPORATION
By:
Name:
Title:
EXHIBIT C
FORM OF ASSIGNMENT FOR EACH ADDITION DATE
For value received, in accordance with the Pooling and Servicing
Agreement, dated as of ________, ____ (the "POOLING AND SERVICING AGREEMENT"),
between General Motors Acceptance Corporation, a Delaware corporation ("GMAC"),
and Wholesale Auto Receivables Corporation, a Delaware corporation (the
"PURCHASER"), GMAC does hereby sell, assign, transfer and otherwise convey unto
the Purchaser, without recourse, with respect to the Additional Accounts to
which this Assignment relates, all of its right, title and interest in, to and
under all of the Eligible Receivables as of the close of business on the related
Additional Cut-Off Date in such Additional Accounts and, so long as each such
Account is included in the Pool of Accounts, all Eligible Receivables created or
deemed created thereunder on each Receivables Purchase Date and all monies due
or to become due thereon after such Additional Cut-Off Date or such Receivables
Purchase Date, as appropriate, all Collateral Security with respect thereto and
all amounts received with respect thereto and all proceeds thereof (including
"proceeds" as defined in SECTION 9-306 of the UCC and Recoveries).
The foregoing sale, transfer, assignment and conveyance and any
sales, transfers, assignments and conveyances subsequent to the date hereof do
not constitute, and are not intended to result in, the creation or an assumption
by the Purchaser of any obligation of the Servicer, GMAC (if GMAC is not the
Servicer), General Motors or any other Person in connection with the Accounts,
the Receivables or under any agreement or instrument relating thereto, including
any obligation to any Dealers.
It is the intention of GMAC and the Purchaser that the transfers and
assignments contemplated by this Assignment, including transfers and assignments
subsequent to the date hereof, shall constitute a sale of the property described
herein and in the Pooling and Servicing Agreement from GMAC to the Purchaser and
the beneficial interest in and title to such property shall not be part of
GMAC's estate in the event of the filing of a bankruptcy petition by or against
GMAC under any bankruptcy law.
This Assignment is made pursuant to and upon the representations,
warranties and agreements on the part of the undersigned contained in the
Pooling and Servicing Agreement and is to be governed by the Pooling and
Servicing Agreement.
Capitalized terms used herein and not otherwise defined shall have
the meaning assigned to them in the Pooling and Servicing Agreement.
* * * * *
IN WITNESS WHEREOF, the undersigned has caused this Assignment to be duly
executed as of ________, ___.
GENERAL MOTORS ACCEPTANCE CORPORATION
By:
Name:
Title:
EXHIBIT D
FORM OF OPINION OF COUNSEL
WITH RESPECT TO ADDITION OF ACCOUNTS
PROVISION TO BE INCLUDED IN OPINION OF COUNSEL
DELIVERED PURSUANT TO SECTION 2.03(B)(VIII)
OF THE POOLING AND SERVICING AGREEMENT
The opinion set forth below may be subject to standard
qualifications, assumptions, limitations and exceptions.
The Assignment delivered on the Addition Date has been duly
authorized, executed and delivered by GMAC, and constitutes the valid and
legally binding obligation of GMAC, enforceable against GMAC in accordance
with its terms.
APPENDIX A
PART I
For ease of reference, capitalized terms defined herein have been
consolidated with and are contained in Appendix A to the Trust Sale and
Servicing Agreement of even date herewith among GMAC, Wholesale Auto Receivables
Corporation and Superior Wholesale Inventory Financing Trust [ ].
PART II
For ease of reference, the rules of construction have been
consolidated with and are contained in Part II of Appendix A to the Trust Sale
and Servicing Agreement of even date herewith among GMAC, Wholesale Auto
Receivables Corporation and Superior Wholesale Inventory Financing Trust [ ].
PART III
For ease of reference, the notice address and procedures have been
consolidated with and are contained in Part II of Appendix B to the Trust Sale
and Servicing Agreement of even date herewith among GMAC, Wholesale Auto
Receivables Corporation and Superior Wholesale Inventory Financing Trust [ ].