EXHIBIT 99.2
TRUST AGREEMENT
BETWEEN
WHOLESALE AUTO RECEIVABLES CORPORATION
SELLER
AND
CHASE MANHATTAN BANK USA, NATIONAL ASSOCIATION
OWNER TRUSTEE
DATED AS OF MARCH 15, 2001
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]. ................................5
3.2 Form of the Certificates.................................5
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....................9
3.9 Appointment of Paying Agent..............................9
3.10 Certificates Issued to Seller............................9
3.11 Book-Entry Certificates.................................10
3.12 Notices to Clearing Agency..............................11
3.13 Termination of Book Entry Registration..................11
3.14 Seller as Certificateholder.............................11
ARTICLE IV
ACTIONS BY OWNER TRUSTEE
4.1 Prior Notice to Certificateholders with
Respect to Certain Matters............................12
exh99-2.wpd
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4.2 Action by Certificateholders with
Respect to Certain Matters............................12
4.3 Action by Certificateholders with
Respect to Bankruptcy.................................13
4.4 Restrictions on Certificateholders' Power...............13
4.5 Majority Control........................................13
ARTICLE V
APPLICATION OF TRUST FUNDS; CERTAIN DUTIES
5.1 Establishment of Certificate Distribution Account.......13
5.2 Application of Trust Funds..............................14
5.3 Method of Payment.......................................15
5.4 Accounting and Reports to the Certificateholders,
the Internal Revenue Service and Others...............15
5.5 Signature on Returns; Tax Matters Partner...............16
ARTICLE VI
THE OWNER TRUSTEE
6.1 Duties of Owner Trustee.................................16
6.2 Rights of Owner Trustee.................................17
6.3 Acceptance of Trusts and Duties.........................17
6.4 Action upon Instruction by Certificateholders...........19
6.5 Furnishing of Documents.................................19
6.6 Representations and Warranties of Owner Trustee.........20
6.7 Reliance; Advice of Counsel.............................21
6.8 Owner Trustee May Own Certificates and Notes............21
6.9 Compensation and Indemnity..............................21
6.10 Replacement of Owner Trustee............................22
6.11 Merger or Consolidation of Owner Trustee................23
6.12 Appointment of Co-Trustee or Separate Trustee...........23
6.13 Eligibility Requirements for Owner Trustee..............24
ARTICLE VII
TERMINATION OF TRUST AGREEMENT
7.1 Termination of Trust Agreement..........................25
7.2 [Reserved]..............................................26
ARTICLE VIII
AMENDMENTS
8.1 Amendments Without Consent of Securityholders...........26
8.2 Amendments With Consent of Certificateholders
and Noteholders.......................................27
8.3 Form of Amendments......................................28
ARTICLE IX
MISCELLANEOUS
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9.1 No Legal Title to Owner Trust Estate. .................29
9.2 Limitations on Rights of Others.........................29
9.3 Derivative Actions......................................29
9.4 Notices.................................................29
9.5 Severability of Provisions..............................29
9.6 Counterparts............................................30
9.7 Successors and Assigns..................................30
9.8 No Petition Covenants...................................30
9.9 No Recourse.............................................30
9.10 Headings................................................31
9.11 Governing Law...........................................31
9.12 Certificate Transfer Restrictions.......................31
9.13 Indemnification by and Reimbursement of the Servicer....32
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
Exhibit E Form of Certificate Depository Agreement
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THIS TRUST AGREEMENT, dated as of March 15, 2001, between WHOLESALE AUTO
RECEIVABLES CORPORATION, a Delaware corporation, as Seller, and CHASE MANHATTAN
BANK USA, NATIONAL ASSOCIATION 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 VII" 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;
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(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 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
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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 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 in Certificates 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, 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
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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.
(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. 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, Section 5.5 of this Agreement will become applicable.
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ARTICLE III
THE CERTIFICATES
SECTION 3.1 [Intentionally Omitted].
SECTION 3.2 Form of the Certificates.
(a) The Certificates shall be issued in denominations of at least
$2,500,000 (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). The Certificates shall
represent the entire beneficial interest in the Trust. The Certificates shall be
executed on behalf of the Trust by 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, if and when issued in accordance with the
terms applicable to the relevant class of 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 Class
2001-A Certificates will be substantially in the form set forth in Exhibit A to
this Agreement. The Certificates of any other class will be substantially in the
form attached to the Certificate Issuance Order pursuant to which Certificates
of such other class are issued for the first time. The terms of any Certificates
as set forth in the form attached to this Agreement or a Certificate Issuance
Order, as the case may be, 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 $125,000,000 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 2001-A, and the Certificate Rate for such
Certificates shall equal, with respect to any Monthly Distribution Date, the
product of (i) a fraction, the numerator of which is the number of days elapsed
from and including the prior Monthly
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Distribution Date (or, in the case of the initial Monthly Distribution Date,
from and including the Initial Closing Date) to but excluding such Monthly
Distribution Date and the denominator of which is 360 and (ii) USD One-Month
LIBOR plus 0.40% per annum.
(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 terms, provisions and rights specified in the
related Certificate Issuance Order for such 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 of any class 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 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 $2,500,000 (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.
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(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 aggregate
amount dated the date of authentication by the Owner Trustee or any
authenticating agent.
(c) 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.
(d) 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 9.12. 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.
(e) 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
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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 bona fide 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 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 bona fide 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
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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.
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 Certificates Issued to Seller. On and after the Initial
Closing Date, the Seller shall retain beneficial and record ownership of
Certificates representing at least 0.5% of the Certificate Balance of each class
of Certificates. Certificates issued to the Seller shall be in definitive form
only.
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SECTION 3.11 Book-Entry Certificates. The Certificates to be issued on the
Initial Closing Date (other than those described in Section 3.10) shall be
issued as Book-Entry Certificates and shall be subject to a Certificate
Depository Agreement substantially in the form attached as Exhibit E hereto.
Such Certificates shall be delivered to DTC, the initial Clearing Agency by or
on behalf of the Trust and shall initially be registered on the Certificate
Register in the name of Cede & Co., the nominee of the initial Clearing Agency,
and no such Certificate Owner shall receive a Definitive Certificate. 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;
(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.
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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. If for any
Certificates issued as Book-Entry Certificates (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 then
outstanding 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 conclusively rely on, and shall be protected in relying on,
such instructions. No Certificate Owner shall have the right to request that
Definitive Certificates be issued to such Certificate Owner (or its nominee) or
request that its interest be exchanged for a Definitive Certificate or
Definitive Certificates other than in accordance with the foregoing provisions
of this Section 3.13, unless, in respect of a class of Certificates other than
the Class 2001-A Certificates, the relevant Certificate Issuance Order provides
otherwise. Upon the issuance of 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.
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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 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
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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 any 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.
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 VII
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.
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(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 Monthly 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 Monthly 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.
(b) On each Monthly Distribution Date, the Owner Trustee shall include with
each distribution 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 in respect of such Monthly Distribution Date setting forth, among
other things, the amount of the distribution allocable to Certificate Balance
and to interest, the Certificate 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
Monthly Distribution Date or the related Collection Period, as applicable, each
since the last statement so provided to such 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
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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 subsection
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 of any class on any Monthly Distribution Date shall be made
to each Certificateholder of record of such class 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 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 Monthly 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
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Collection Period among the Certificateholders in proportion to the Certificate
Balance owned by them as of the Record Date for the related Monthly 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.
(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
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(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
USA, National Association 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 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,
17
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 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
18
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
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furnished to the Owner Trustee under the Basic Documents and (b) to the
Noteholders and the 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 national banking association duly organized, validly existing
and in good standing under the laws of the United States of America.
(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.
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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 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.
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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 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
22
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
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
23
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
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 ▇▇▇▇▇'▇. 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.
24
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 Monthly 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 related 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 (x) if the Trust Termination Date is determined pursuant
to clause (i) above, on the Trust Termination Date and (y) if the Trust
Termination Date is determined pursuant to clause (ii) above on the date
following the Monthly Distribution Date on which the final payments to be made
to the 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 Monthly
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 Monthly 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 Monthly 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 Monthly Distribution Date pursuant to Section 5.2.
25
(d) Notice of any termination of the Trust specifying the Monthly
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 Monthly 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 Monthly 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 Monthly 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 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:
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(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 credit, liquidity or other enhancement
arrangement for the benefit of any Securityholders (provided that if any such
addition shall affect any series or class of Securityholders differently than
any other series or class 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 or class 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,
(vii) to add provisions to or delete or modify the existing provisions of
this Agreement as appropriate to allow the Trust to issue foreign
currency-denominated Notes, or
(viii) 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 Monthly 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 Monthly Distribution Date (which
consent, whether given pursuant to this Section 8.2 or pursuant to any other
provision of this Agreement, shall be conclusive 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
27
(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 or class 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 class of
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.
28
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,
29
then such covenants, agreements, provisions or terms shall be deemed enforceable
to the fullest extent permitted, and if not so permitted, shall be deemed
severable from the remaining covenants, agreements, provisions or terms of this
Agreement and shall in no way affect the validity or enforceability of the other
provisions of this Agreement or of 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
30
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.
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 (or interests therein) may not be acquired by or for
the account of a Benefit Plan unless the Benefit Plan acquiring a Certificate
(or interest therein) 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 Certificate (or
interest therein). Unless the Seller determines that such an exemption is
available, by accepting and holding a Certificate (or interest therein), the
Holder thereof and any related 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 or blue sky 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) 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 transferor
reasonably believes after due inquiry is a "qualified institutional buyer"
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 (iii) 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
31
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
$2,500,000 (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 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.
* * * * *
32
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 USA, NATIONAL
ASSOCIATION, as Owner Trustee
By:_______________________________________
Name:
Title:
WHOLESALE AUTO RECEIVABLES
CORPORATION, Seller
By: ▇. ▇. ▇▇▇▇▇▇
__________________________________________
Name: ▇. ▇. ▇▇▇▇▇▇
Title: Manager-Securitization
33
EXHIBIT A
FORM OF CLASS 2001-A CERTIFICATE
NUMBER $____________
R_____ CUSIP NO. ____
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.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED
STATES SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR UNDER THE
SECURITIES OR BLUE SKY LAWS OF ANY STATE IN THE UNITED STATES OF AMERICA OR ANY
FOREIGN SECURITIES LAWS. BY ITS ACCEPTANCE OF THIS CERTIFICATE (OR INTEREST
HEREIN) THE HOLDER (OR OWNER) OF THIS CERTIFICATE (OR SUCH INTEREST) IS DEEMED
TO REPRESENT TO WHOLESALE AUTO RECEIVABLES CORPORATION OR ITS ASSIGNEE OR
SUCCESSOR (THE "SELLER") AND THE OWNER TRUSTEE THAT IT IS A "QUALIFIED
INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT AND IS
ACQUIRING THIS CERTIFICATE (OR INTEREST HEREIN) 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 (OR INTEREST HEREIN)
MAY BE MADE BY ANY PERSON UNLESS EITHER
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(i) SUCH SALE, PLEDGE OR OTHER TRANSFER IS MADE TO THE SELLER, (ii) 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
TRANSFEROR 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 (iii) 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 SHALL 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 $2,500,000 (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 UNITED STATES 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 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 CLASS 2001-A
CERTIFICATES FOR ALL PURPOSES.
THIS CERTIFICATE (OR AN INTEREST HEREIN) MAY NOT BE ACQUIRED BY OR FOR THE
ACCOUNT OF (i) AN "EMPLOYEE BENEFIT PLAN" (AS DEFINED IN SECTION 3(3) OF THE
UNITED STATES EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED
("ERISA")),
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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 (EACH A
"BENEFIT PLAN"), UNLESS THE SELLER DETERMINES THAT THE BENEFIT PLAN ACQUIRING
THIS CERTIFICATE, (OR AN INTEREST HEREIN) 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 (OR AN INTEREST HEREIN). UNLESS THE SELLER DETERMINES THAT SUCH AN
EXEMPTION IS AVAILABLE, BY ACCEPTING AND HOLDING THIS CERTIFICATE (OR AN
INTEREST HEREIN), THE HOLDER HEREOF AND ANY RELATED 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, SUCH PERSON SHALL EXECUTE AND DELIVER TO
THE OWNER TRUSTEE AN UNDERTAKING LETTER TO SUCH EFFECT IN THE FORM SPECIFIED IN
THE TRUST AGREEMENT.
EACH CERTIFICATEHOLDER OR CERTIFICATE OWNER, BY ACCEPTING THIS CERTIFICATE
(OR INTEREST HEREIN), (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
CLASS 2001-A 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 HEREIN), 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,
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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 VII
FLOATING RATE ASSET BACKED CERTIFICATE, CLASS 2001-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 VII (the "Trust") formed by Wholesale Auto Receivables
Corporation, a Delaware corporation.
The Trust was created pursuant to a Trust Agreement, dated as of March 15,
2001 (as amended and supplemented from time to time, the "Trust Agreement"),
between the Seller and Chase Manhattan Bank USA, National Association, 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 2001-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 month or, if such 15th day is not a Business Day, the next succeeding
Business Day, commencing on April 16, 2001 (each, a "Monthly 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 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 Monthly
4
Distribution Date. Interest shall accrue on this Certificate at the applicable
Certificate Rate (as set forth on the reverse hereof) on the Certificate Balance
represented by this Certificate (without reduction for any unreimbursed Trust
Charge-Offs), and interest accrued hereon as of any Monthly Distribution Date
but not distributed on such Monthly Distribution Date shall be due on the next
Monthly 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 Monthly Distribution Date in June 2006 (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 Monthly
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
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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.
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: March 15, 2001
Superior Wholesale Inventory Financing Trust VII
By: CHASE MANHATTAN BANK USA,
National Association, 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 USA,
NATIONAL ASSOCIATION, not in its
individual capacity but solely as Owner
Trustee
By:
Name:
Title:
OR
CHASE MANHATTAN BANK USA, NATIONAL ASSOCIATION, not in its individual capacity
but solely as Owner Trustee by The Chase Manhattan Bank, as Authenticating Agent
By:
Name:
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 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 Monthly 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
Monthly 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 Monthly Distribution Date, the product of (i) a fraction, the numerator
of which is the number of days elapsed from and including the prior Monthly
Distribution Date (or, in the case of the first Monthly Distribution Date, from
and including the Initial Closing Date) to but excluding such Monthly
Distribution Date and the denominator of which is 360 and (ii) USD One-Month
LIBOR plus 0.40%.
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
1
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.
The Certificates are issuable only as registered Certificates without
coupons in denominations of $2,500,000 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
$2,500,000 (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.
2
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 to a person whom the undersigned
reasonably believes after due inquiry is a "qualified institutional buyer" (as
defined in Rule 144A under the United States 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.
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 VII
THIS Certificate of Trust of Superior Wholesale Inventory Financing Trust
VII (the "Trust"), dated as of March 15, 2001, is being duly executed and filed
by Chase Manhattan Bank USA, National Association, 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 VII.
2. Delaware Trustee. The name and business address of the trustee of the Trust
in the State of Delaware is Chase Manhattan Bank USA, National Association,
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇.
3. This Certificate of Trust shall be effective on
March 15, 2001.
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 USA,
National Association, not
in its individual capacity
but solely as Owner Trustee
under a Trust Agreement
dated as of March 15, 2001.
By:
Name:
Title:
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EXHIBIT C
UNDERTAKING LETTER
Wholesale Auto Receivables Corporation
Corporation Trust Center
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Chase Manhattan Bank USA, National Association
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
In connection with our purchase or record or beneficial ownership of one or
more Floating Rate Asset Backed Certificates, Class 2001-A (the "Certificates")
of Superior Wholesale Inventory Financing Trust VI, 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 Certificates by or for the benefit of,
(i) an employee benefit plan (as defined in Section 3(3) of the United States
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 United States 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
1
(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 Certificateholder/Certificate Owner
By:
Name:
Title:
Date:
2
EXHIBIT D
INVESTOR LETTER
Wholesale Auto Receivables Corporation
Corporation Trust Center
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Chase Manhattan Bank USA, National Association
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
In connection with our proposed purchase of a one or more Floating Rate
Asset- Backed Certificates, Class 2001-A (the "Certificates"), representing a
fractional undivided interest in the Superior Wholesale Inventory Financing
Trust VII, issued under a trust agreement, dated as of March 15, 2001 (the
"Trust Agreement"), between Wholesale Auto Receivables Corporation, a Delaware
corporation (the "Seller") and Chase Manhattan Bank USA, National Association,
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 United
States 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 Certificates (or an interest therein) may be
resold, pledged or transferred only (i) to the Seller, (ii) so long as such
Certificates are eligible for resale pursuant to Rule 144A under the
Securities Act ("Rule 144A"), to a person whom the transferor reasonably
believes 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 (iii) 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 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
1
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
Certificates (or an interest therein) from us of the above resale
restrictions, if then applicable. We further understand that in connection
with any transfer of the Certificates (or interest therein) by us that the
Seller and the Owner Trustee may request, and if so requested we will
furnish, such certification 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 (or an interest therein) with a
face amount of less than $2,500,000 (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 United States Internal
Revenue Code of 1986, as amended, 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 Certificates for all purposes.
2. We are a "qualified institutional buyer" as defined under Rule 144A under
the Securities Act and are acquiring the Certificates (or an interest
therein) 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 transferor of the Certificates (or an interest
therein) and other parties intend 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:
2
3
EXHIBIT E
[FORM OF CERTIFICATE DEPOSITORY AGREEMENT]
4