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UNITED STATES SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934
Date of Report: September 24, 1999
CAPITAL AUTO RECEIVABLES, INC.
------------------------------------------------------
(Exact name of registrant as specified in its charter)
Delaware 333-06039 38-3082892
- ------------------------------- ----------- -------------------
(State or other jurisdiction of Commission (I.R.S. Employer
incorporation or organization) File Number Identification No.)
Corporate Trust Center
1209 Orange Street, Wilmington, DE 19801
- ---------------------------------------- ----------
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code 302-658-7581
------------
Items 1-6. Not Applicable.
Item 7. Financial Statements and Exhibits.
(a) Not Applicable
(b) Not Applicable
(c) Exhibits
4.1 Indenture between Capital Auto Receivables Asset Trust 1999-2 (the
"Trust") and the First National Bank of Chicago, as Indenture
Trustee, dated as of September 9, 1999
4.2 Trust Agreement between Capital Auto Receivables, Inc. (the
"Seller") and Bankers Trust (Delaware), as Owner Trustee, dated as
of September 9, 1999
99.1 Trust Sale and Servicing Agreement among General Motors Acceptance
Corporation, as Servicer, Capital Auto Receivables, Inc. as the
Seller and Capital Auto Receivables Asset Trust 1999-2 as the
Issuer, dated as of September 9, 1999
99.2 Supplemental Statement of Eligibility on Form T-1 of the First
National Bank of Chicago as Indenture Trustee under the Indenture
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99.3 Pooling and Servicing Agreement between Capital Auto Receivables,
Inc. and General Motors Acceptance Corporation, dated as of
September 9, 1999
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
CAPITAL AUTO RECEIVABLES, INC.
------------------------------
(Registrant)
/s/ William F. Muir
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Dated: September 24, 1999 William F. Muir, Chairman of the Board
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/s/ John D. Finnegan
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Dated: September 24, 1999 John D. Finnegan, President and Director
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EXHIBIT INDEX
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Exhibit No. Description
- ----------- -----------
4.1 Indenture between Capital Auto Receivables Asset Trust 1999-2 (the
"Trust") and the First National Bank of Chicago, as Indenture
Trustee, dated as of September 9, 1999
4.2 Trust Agreement between Capital Auto Receivables, Inc. (the
"Seller") and Bankers Trust (Delaware), as Owner Trustee, dated as
of September 9, 1999
99.1 Trust Sale and Servicing Agreement among General Motors Acceptance
Corporation, as Servicer, Capital Auto Receivables, Inc. as the
Seller and Capital Auto Receivables Asset Trust 1999-2 as the
Issuer, dated as of September 9, 1999
99.2 Supplemental Statement of Eligibility on Form T-1 of the First
National Bank of Chicago as Indenture Trustee under the Indenture
99.3 Pooling and Servicing Agreement between Capital Auto Receivables,
Inc. and General Motors Acceptance Corporation, dated as of
September 9, 1999
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EXHIBIT 4.1
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CAPITAL AUTO RECEIVABLES ASSET TRUST 1999-2
CLASS A-1 5.992% ASSET BACKED NOTES
CLASS A-2 6.060% ASSET BACKED NOTES
CLASS A-3 6.250% ASSET BACKED NOTES
CLASS A-4 6.300% ASSET BACKED NOTES
CLASS A-5 6.450% ASSET BACKED NOTES
FLOATING RATE VARIABLE PAY ASSET BACKED TERM NOTES
------------------------------------------------------------
INDENTURE
DATED AS OF SEPTEMBER 9 , 1999
------------------------------------------------------------
THE FIRST NATIONAL BANK OF CHICAGO,
A NATIONAL BANKING ASSOCIATION,
INDENTURE TRUSTEE
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CROSS-REFERENCE TABLE
<TABLE>
<CAPTION>
TIA INDENTURE
SECTION SECTION
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<S> <C>
310(a)(1) .............................................................. 6.11
(a)(2) .............................................................. 6.11
(a)(3) .............................................................. 6.10
(a)(4) .............................................................. 6.14
(b) .............................................................. 6.11
(c) .............................................................. N.A.
311(a) .............................................................. 6.12
(b) .............................................................. 6.12
(c) .............................................................. N.A.
312(a) .............................................................. 7.1, 7.2
(b) .............................................................. 7.2
(c) .............................................................. 7.2
313(a) .............................................................. 7.4(a), 7.4(b)
(b)(1) .............................................................. 7.4(a)
(b)(2) .............................................................. 7.4(a)
(c) .............................................................. 7.4(a)
(d) .............................................................. 7.4(a)
314(a) .............................................................. 7.3(a), 3.9
(b) .............................................................. 3.6
(c)(1) .............................................................. 2.2, 2.9, 4.1, 11.1(a)
(c)(2) .............................................................. 11.1(a)
(c)(3) .............................................................. 11.1(a)
(d) .............................................................. 2.9, 11.1(b)
(e) .............................................................. 11.1(a)
(f) .............................................................. 11.1(a)
315(a) .............................................................. 6.1(b)
(b) .............................................................. 6.5
(c) .............................................................. 6.1(a)
(d) .............................................................. 6.2, 6.1(c)
(e) .............................................................. 5.13
316(a)last
sentence .............................................................. 1.1
(a)(1)(A) .............................................................. 5.11
(a)(1)(B) .............................................................. 5.12
(a)(2) .............................................................. Omitted
316(b), (c) .............................................................. 5.7
317(a)(1) .............................................................. 5.3(b)
(a)(2) .............................................................. 5.3(d)
(b) .............................................................. 3.3
318(a) .............................................................. 11.7
N.A. means Not Applicable.
</TABLE>
Note: This cross reference table shall not, for any purpose, be deemed to
be part of this Indenture.
(i)
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TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
ARTICLE I
DEFINITIONS AND INCORPORATION BY REFERENCE
<S> <C> <C>
1.1 Definitions.....................................................................2
1.2 Incorporation by Reference of Trust Indenture Act...............................2
ARTICLE II
THE NOTES
2.1 Form............................................................................3
2.2 Execution, Authentication and Delivery..........................................3
2.3 Temporary Notes.................................................................5
2.4 Registration; Registration of Transfer and Exchange of Notes....................5
2.5 Mutilated, Destroyed, Lost or Stolen Notes......................................6
2.6 Persons Deemed Noteholders......................................................7
2.7 Payment of Principal and Interest...............................................7
2.8 Cancellation of Notes...........................................................9
2.9 Release of Collateral...........................................................9
2.10 Book-Entry Notes................................................................9
2.11 Notices to Clearing Agency.....................................................10
2.12 Definitive Notes...............................................................10
2.13 Seller as Noteholder...........................................................11
2.14 Tax Treatment..................................................................11
2.15 Special Terms Applicable to the Private Notes..................................11
ARTICLE III
COVENANTS
3.1 Payment of Principal and Interest..............................................12
3.2 Maintenance of Agency Office...................................................12
3.3 Money for Payments To Be Held in Trust.........................................12
3.4 Existence......................................................................14
3.5 Protection of Trust Estate; Acknowledgment of Pledge...........................14
3.6 Opinions as to Trust Estate....................................................15
3.7 Performance of Obligations; Servicing of Receivables...........................15
3.8 Negative Covenants.............................................................16
3.9 Annual Statement as to Compliance..............................................17
3.10 Consolidation, Merger, etc., of Issuer; Disposition of Trust Assets............18
3.11 Successor or Transferee........................................................20
3.12 No Other Business..............................................................20
3.13 No Borrowing...................................................................20
</TABLE>
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<TABLE>
<S> <C> <C>
3.14 Guarantees, Loans, Advances and Other Liabilities..................................20
3.15 Servicer's Obligations.............................................................20
3.16 Capital Expenditures...............................................................20
3.17 Removal of Administrator...........................................................21
3.18 Restricted Payments................................................................21
3.19 Notice of Events of Default........................................................21
3.20 Further Instruments and Acts.......................................................21
3.21 Indenture Trustee's Assignment of Administrative Receivables and Warranty
Receivables........................................................................21
3.22 Representations and Warranties by the Issuer to the Indenture Trustee..............22
ARTICLE IV
SATISFACTION AND DISCHARGE
4.1 Satisfaction and Discharge of Indenture............................................22
4.2 Application of Trust Money.........................................................23
4.3 Repayment of Monies Held by Paying Agent...........................................24
4.4 Duration of Position of Indenture Trustee..........................................24
ARTICLE V
DEFAULT AND REMEDIES
5.1 Events of Default..................................................................24
5.2 Acceleration of Maturity; Rescission and Annulment.................................25
5.3 Collection of Indebtedness and Suits for Enforcement by Indenture Trustee..........26
5.4 Remedies; Priorities...............................................................28
5.5 Optional Preservation of the Receivables...........................................29
5.6 Limitation of Suits................................................................30
5.7 Unconditional Rights of Noteholders To Receive Principal and Interest..............30
5.8 Restoration of Rights and Remedies.................................................31
5.9 Rights and Remedies Cumulative.....................................................31
5.10 Delay or Omission Not a Waiver.....................................................31
5.11 Control by Noteholders.............................................................31
5.12 Waiver of Past Defaults............................................................32
5.13 Undertaking for Costs..............................................................32
5.14 Waiver of Stay or Extension Laws...................................................33
5.15 Action on Notes....................................................................33
5.16 Performance and Enforcement of Certain Obligations.................................33
ARTICLE VI
THE INDENTURE TRUSTEE
6.1 Duties of Indenture Trustee........................................................34
6.2 Rights of Indenture Trustee........................................................36
6.3 Indenture Trustee May Own Notes....................................................36
6.4 Indenture Trustee's Disclaimer.....................................................36
</TABLE>
(iii)
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<TABLE>
<S> <C> <C>
6.5 Notice of Defaults..............................................................36
6.6 Reports by Indenture Trustee to Holders.........................................37
6.7 Compensation; Indemnity.........................................................37
6.8 Replacement of Indenture Trustee................................................37
6.9 Merger or Consolidation of Indenture Trustee....................................38
6.10 Appointment of Co-Indenture Trustee or Separate Indenture Trustee...............39
6.11 Eligibility; Disqualification...................................................40
6.12 Preferential Collection of Claims Against Issuer................................40
6.13 Representations and Warranties of Indenture Trustee.............................40
6.14 Indenture Trustee May Enforce Claims Without Possession of Notes................41
6.15 Suit for Enforcement............................................................41
6.16 Rights of Noteholders to Direct Indenture Trustee...............................42
ARTICLE VII
NOTEHOLDERS' LISTS AND REPORTS
7.1 Issuer To Furnish Indenture Trustee Names and Addresses of
Noteholders....................................................................42
7.2 Preservation of Information, Communications to Noteholders......................42
7.3 Reports by Issuer...............................................................43
7.4 Reports by Trustee..............................................................43
ARTICLE VIII
ACCOUNTS, DISBURSEMENTS AND RELEASES
8.1 Collection of Money.............................................................44
8.2 Designated Accounts; Payments...................................................44
8.3 General Provisions Regarding Accounts...........................................46
8.4 Release of Trust Estate.........................................................47
8.5 Opinion of Counsel..............................................................48
ARTICLE IX
SUPPLEMENTAL INDENTURES
9.1 Supplemental Indentures Without Consent of Noteholders..........................48
9.2 Supplemental Indentures With Consent of Noteholders.............................49
9.3 Execution of Supplemental Indentures............................................51
9.4 Effect of Supplemental Indenture................................................51
9.5 Conformity with Trust Indenture Act.............................................51
9.6 Reference in Notes to Supplemental Indentures...................................52
ARTICLE X
REDEMPTION OF NOTES
10.1 Redemption......................................................................52
10.2 Form of Redemption Notice.......................................................52
10.3 Notes Payable on Redemption Date................................................53
</TABLE>
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<TABLE>
<CAPTION>
ARTICLE XI
MISCELLANEOUS
<S> <C>
11.1 Compliance Certificates and Opinions, etc..................................53
11.2 Form of Documents Delivered to Indenture Trustee...........................55
11.3 Acts of Noteholders........................................................56
11.4 Notices, etc., to Indenture Trustee, Issuer, Swap Counterparty and
Rating Agencies............................................................56
11.5 Notices to Noteholders; Waiver.............................................57
11.6 Alternate Payment and Notice Provisions....................................58
11.7 Conflict with Trust Indenture Act..........................................58
11.8 Effect of Headings and Table of Contents...................................58
11.9 Successors and Assigns.....................................................58
11.10 Separability...............................................................58
11.11 Benefits of Indenture......................................................58
11.12 Legal Holidays.............................................................59
11.13 GOVERNING LAW..............................................................59
11.14 Counterparts...............................................................59
11.15 Recording of Indenture.....................................................59
11.16 No Recourse................................................................59
11.17 No Petition................................................................60
11.18 Inspection.................................................................60
11.19 Indemnification by and Reimbursement of the Servicer.......................61
</TABLE>
Exhibit A - Location of Schedule of Receivables
Exhibit B - Form of Note Depository Agreement
Exhibit C-1 - Form of Offered Class A Asset Backed Note
Exhibit C-2 - Form of Variable Pay Term Asset Backed Note
Exhibit C-3 - Form of Class A-1 Asset Backed Note
Exhibit D - Rule 144A Certificate
(v)
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INDENTURE, dated as of September 9, 1999, between CAPITAL AUTO
RECEIVABLES ASSET TRUST 1999-2, a Delaware business trust (the "Issuer"), and
THE FIRST NATIONAL BANK OF CHICAGO, a national banking association, as trustee
and not in its individual capacity (the "Indenture Trustee").
Each party agrees as follows for the benefit of the other party and for
the equal and ratable benefit of the Holders of the Notes, the Holders of the
Certificates (only to the extent expressly provided herein) and the Swap
Counterparty (to the full extent of its interest hereunder):
GRANTING CLAUSE
The Issuer hereby Grants to the Indenture Trustee at the Closing Date,
as trustee for the benefit of the Noteholders, the Certificateholders (only to
the extent expressly provided herein), and the Swap Counterparty, including any
Person that was formerly a Swap Counterparty (to the full extent of its interest
hereunder, including under Article VIII hereof), (a) all of the Issuer's right,
title and interest in, to and under the Receivables listed on the Schedule of
Receivables which is on file at the locations listed on Exhibit A hereto and (i)
in the case of Scheduled Interest Receivables, all monies due thereon on and
after the Cutoff Date and (ii) in the case of Simple Interest Receivables, all
monies received thereon on and after the Cutoff Date, in each case exclusive of
any amounts allocable to the premium for physical damage insurance force-placed
by the Servicer and covering any related Financed Vehicle; (b) the interest of
the Issuer in the security interests in the Financed Vehicles granted by
Obligors pursuant to the Receivables and, where permitted by law, any accessions
thereto; (c) the interest of the Issuer in any proceeds with respect to the
Receivables from claims on any physical damage, credit life, credit disability
or other insurance policies covering Financed Vehicles or Obligors (except for
those Receivables originated in Wisconsin); (d) the interest of the Issuer in
any proceeds with respect to the Receivables from recourse against dealers
thereon; (e) all right, title and interest in all funds on deposit from time to
time in the Collection Account, the Note Distribution Account, the Certificate
Distribution Account and the Accumulation Account; (f) all right, title and
interest of the Issuer in, to and under the Trust Sale and Servicing Agreement
(including all rights of Capital Auto Receivables, Inc. ("CARI") under the
Pooling and Servicing Agreement assigned to the Issuer pursuant to the Trust
Sale and Servicing Agreement); (g) all right, title and interest of the Issuer
in, to and under the Interest Rate Swap; and (h) all present and future claims,
demands, causes and choses in action in respect of any or all of the foregoing
and all payments on or under and all proceeds of every kind and nature
whatsoever in respect of any or all of the foregoing, including all proceeds of
the conversion, voluntary or involuntary, into cash or other liquid property,
all cash proceeds, accounts, accounts receivable, notes, drafts, acceptances,
chattel paper, checks, deposit accounts, insurance proceeds, investment
property, general intangibles, condemnation awards, rights to payment of any and
every kind and other forms of obligations and receivables, instruments and other
property which at any time constitute all or part of or are included in the
proceeds of any of the foregoing (collectively, the "Collateral").
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The foregoing Grant is made in trust to secure (a) the payment of
principal of and interest on, and any other amounts owing in respect of, the
Notes, equally and ratably without prejudice, priority or distinction, (b) the
payment of the Certificate Balance and interest on, and any other amounts owing
in respect of, the Certificates, equally and ratably without prejudice, priority
or distinction, and (c) payment of amounts payable to the Swap Counterparty
under the Interest Rate Swap, and to secure compliance with the provisions of
this Indenture, all as provided in this Indenture. This Indenture constitutes a
security agreement under the UCC.
The foregoing Grant includes all rights, powers and options (but none
of the obligations, if any) of the Issuer under any agreement or instrument
included in the Collateral, including the immediate and continuing right to
claim for, collect, receive and give receipt for principal and interest payments
in respect of the Receivables included in the Collateral and all other monies
payable under the Collateral, to give and receive notices and other
communications, to make waivers or other agreements, to exercise all rights and
options, to bring Proceedings in the name of the Issuer or otherwise and
generally to do and receive anything that the Issuer is or may be entitled to do
or receive under or with respect to the Collateral.
The Indenture Trustee, as trustee on behalf of the Noteholders, the
Swap Counterparty and (only to the extent expressly provided herein) the
Certificateholders, acknowledges such Grant and accepts the trusts under this
Indenture in accordance with the provisions of this Indenture.
ARTICLE I
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.1 Definitions. Certain capitalized terms used in this
Indenture shall have the respective meanings assigned them in Part I of Appendix
A to the Trust Sale and Servicing Agreement (as amended from time to time, the
"Trust Sale and Servicing Agreement") dated as of the date hereof, among the
Issuer, CARI and General Motors Acceptance Corporation ("GMAC"). All references
in this Indenture to Articles, Sections, subsections and exhibits are to the
same contained in or attached to this Indenture unless otherwise specified. All
terms defined in this Indenture shall have the defined meanings when used in any
certificate, notice, Note or other document made or delivered pursuant hereto
unless otherwise defined therein. The rules of construction set forth in Part II
of such Appendix A shall be applicable to this Agreement.
SECTION 1.2 Incorporation by Reference of Trust Indenture Act. Whenever
this Indenture refers to a provision of the TIA, such provision is incorporated
by reference in and made a part of this Indenture. The following TIA terms used
in this Indenture have the following meanings:
"Commission" means the Securities and Exchange Commission.
"indenture securities" means the Notes.
2
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"indenture security holder" means a Noteholder.
"indenture to be qualified" means this Indenture.
"indenture trustee" means the Indenture Trustee.
"obligor" on the indenture securities means the Issuer and any other
obligor on the indenture securities.
All other TIA terms used in this Indenture that are defined by the TIA,
defined by reference to another statute or defined by a Commission rule have the
respective meanings assigned to them by such definitions.
ARTICLE II
THE NOTES
SECTION 2.1 Form.
(a) Each of the Class A-2 Notes, the Class A-3 Notes, the Class A-4
Notes and the Class A-5 Notes, together, in each case, with the Indenture
Trustee's certificate of authentication, shall be substantially in the form set
forth in Exhibit C-1 and each of the Variable Pay Term Notes, together with the
Indenture Trustee's certificate of authentication, shall be substantially in the
form set forth in Exhibit C-2 and each of the Class A-1 Notes, together with the
Indenture Trustee's certificate of authentication, shall be substantially in the
form set forth in Exhibit C-3, in each case with such appropriate insertions,
omissions, substitutions and other variations as are required or permitted by
this Indenture, and each such Note may have such letters, numbers or other marks
of identification and such legends or endorsements placed thereon as may,
consistently herewith, be determined by the officers executing such Notes, as
evidenced by their execution of the Notes. Any portion of the text of any Note
may be set forth on the reverse thereof, with an appropriate reference thereto
on the face of the Note.
(b) The Definitive Notes 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 Notes, as
evidenced by their execution of such Notes.
(c) The terms of each class of Notes as provided for in Exhibits C-1,
C-2 and C-3 hereto are part of the terms of this Indenture.
SECTION 2.2 Execution, Authentication and Delivery.
(a) Each Note shall be dated the date of its authentication and shall
be issuable as a registered Note in the minimum denomination of $1,000 and in
integral multiples thereof (except,
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if applicable, for one Note representing a residual portion of each class which
may be issued in a different denomination).
(b) The Notes shall be executed on behalf of the Issuer by any of its
Authorized Officers. The signature of any such Authorized Officer on the Notes
may be manual or facsimile. (c) Notes bearing the manual or facsimile signature
of individuals who were at any time Authorized Officers of the Issuer shall bind
the Issuer, notwithstanding that such individuals or any of them have ceased to
hold such office prior to the authentication and delivery of such Notes or did
not hold such office at the date of such Notes.
(d) The Indenture Trustee, in exchange for the Grant of the Receivables
and the other components of the Trust, simultaneously with the Grant to the
Indenture Trustee of the Receivables, and the constructive delivery to the
Indenture Trustee of the Receivables Files and the other components and assets
of the Trust, shall cause to be authenticated and delivered to or upon the order
of the Issuer, Notes for original issue in aggregate principal amount of
$2,061,279,000, comprised of (i) Class A-1 Notes in the aggregate principal
amount of $427,000,000, (ii) Class A-2 Notes in the aggregate principal amount
of $370,000,000, (iii) Class A-3 Notes in the aggregate principal amount of
$306,500,000, (iv) Class A-4 Notes in the aggregate principal amount of
$400,000,000, (v) Class A-5 Notes in the aggregate principal amount of
76,779,000, and (vi) the initial Variable Pay Term Note in the aggregate
principal amount of 481,000,000. The aggregate principal amount of all Notes
outstanding at any time may not exceed $2,061,279,000, except as provided in
Section 2.5.
(e) On the Targeted Final Distribution Date for each class of Class A
Notes, an additional class of Variable Pay Term Notes may be issued as set forth
in Section 2.06 of the Trust Sale and Servicing Agreement. Upon order of the
Seller, the Issuer shall execute and the Indenture Trustee shall cause to be
authenticated and delivered Variable Pay Term Notes of any such additional
class. Each such order shall set forth:
(i) the designation of the particular class (which shall
distinguish such class from all other classes);
(ii) the aggregate principal amount of the class which may be
authenticated and delivered under this Indenture (except for Notes
authenticated and delivered upon registration and transfer of, or in
exchange for, or in lieu of, other Notes of such class pursuant to this
Indenture);
(iii) the Interest Rate for such class; and
(iv) any other terms or provisions of such class which shall not
be inconsistent with the provisions of this Indenture.
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(f) No Notes shall be entitled to any benefit under this Indenture or
be valid or obligatory for any purpose, unless there appears on such Note a
certificate of authentication substantially in the form set forth in Exhibit
C-1, Exhibit C-2, or Exhibit C-3, as applicable, executed by the Indenture
Trustee by the manual signature of one of its Authorized Officers, and such
certificate upon any Note shall be conclusive evidence, and the only evidence,
that such Note has been duly authenticated and delivered hereunder.
SECTION 2.3 Temporary Notes.
(a) Pending the preparation of Definitive Notes, if any, the Issuer may
execute, and upon receipt of an Issuer Order the Indenture Trustee shall
authenticate and deliver, such Temporary Notes which are printed, lithographed,
typewritten, mimeographed or otherwise produced, of the tenor of the Definitive
Notes in lieu of which they are issued and with such variations as are
consistent with the terms of this Indenture as the officers executing such Notes
may determine, as evidenced by their execution of such Notes.
(b) If Temporary Notes are issued, the Issuer shall cause Definitive
Notes to be prepared without unreasonable delay. After the preparation of
Definitive Notes, the Temporary Notes shall be exchangeable for Definitive Notes
upon surrender of the Temporary Notes at the Agency Office of the Issuer to be
maintained as provided in Section 3.2, without charge to the Noteholder. Upon
surrender for cancellation of any one or more Temporary Notes, the Issuer shall
execute and the Indenture Trustee shall authenticate and deliver in exchange
therefor a like principal amount of Definitive Notes of authorized
denominations. Until so delivered in exchange, the Temporary Notes shall in all
respects be entitled to the same benefits under this Indenture as Definitive
Notes.
SECTION 2.4 Registration; Registration of Transfer and Exchange of
Notes.
(a) The Issuer shall cause to be kept the Note Register, comprising
separate registers for each class of Notes, in which, subject to such reasonable
regulations as the Issuer may prescribe, the Issuer shall provide for the
registration of the Notes and the registration of transfers and exchanges of the
Notes. The Indenture Trustee shall initially be the Note Registrar for the
purpose of registering the Notes and transfers of the Notes as herein provided.
Upon any resignation of any Note Registrar, the Issuer shall promptly appoint a
successor Note Registrar or, if it elects not to make such an appointment,
assume the duties of the Note Registrar.
(b) If a Person other than the Indenture Trustee is appointed by the
Issuer as Note Registrar, the Issuer will give the Indenture Trustee prompt
written notice of the appointment of such Note Registrar and of the location,
and any change in the location, of the Note Register. The Indenture Trustee
shall have the right to inspect the Note Register at all reasonable times and to
obtain copies thereof. The Indenture Trustee shall have the right to rely upon a
certificate executed on behalf of the Note Registrar by an Executive Officer
thereof as to the names and addresses of the Noteholders and the principal
amounts and number of such Notes.
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(c) Upon surrender for registration of transfer of any Note at the
Corporate Trust Office of the Indenture Trustee or the Agency Office of the
Issuer (and following the delivery, in the former case, of such Notes to the
Issuer by the Indenture Trustee), the Issuer shall execute, the Indenture
Trustee shall authenticate and the Noteholder shall obtain from the Indenture
Trustee, in the name of the designated transferee or transferees, one or more
new Notes in any authorized denominations, of a like aggregate principal amount.
(d) At the option of the Noteholder, Notes may be exchanged for other
Notes of the same class in any authorized denominations, of a like aggregate
principal amount, upon surrender of such Notes to be exchanged at the Corporate
Trust Office of the Indenture Trustee or the Agency Office of the Issuer (and
following the delivery, in the former case, of such Notes to the Issuer by the
Indenture Trustee), the Issuer shall execute, and the Indenture Trustee shall
authenticate and the Noteholder shall obtain from the Indenture Trustee, such
Notes which the Noteholder making the exchange is entitled to receive.
(e) All Notes issued upon any registration of transfer or exchange of
other Notes shall be the valid obligations of the Issuer, evidencing the same
debt, and entitled to the same benefits under this Indenture, as the Notes
surrendered upon such registration of transfer or exchange.
(f) Every Note presented or surrendered for registration of transfer or
exchange shall be duly endorsed by, or be accompanied by a written instrument of
transfer in form satisfactory to the Indenture Trustee and the Note Registrar,
duly executed by the Holder thereof or such Holder's attorney duly authorized in
writing, with such signature guaranteed by a commercial bank or trust company
located, or having a correspondent located, in the City of New York or the city
in which the Corporate Trust Office of the Indenture Trustee is located, or by a
member firm of a national securities exchange, and such other documents as the
Indenture Trustee may require.
(g) No service charge shall be made to a Holder for any registration of
transfer or exchange of Notes, but the Issuer or Indenture Trustee may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection with any registration of transfer or exchange of
Notes, other than exchanges pursuant to Sections 2.3 or 9.6 not involving any
transfer.
(h) The preceding provisions of this Section 2.4 notwithstanding, the
Issuer shall not be required to transfer or make exchanges, and the Note
Registrar need not register transfers or exchanges, of Notes that: (i) have been
selected for redemption pursuant to Article X, if applicable; or (ii) are due
for repayment within 15 days of submission to the Corporate Trust Office or the
Agency Office.
SECTION 2.5 Mutilated, Destroyed, Lost or Stolen Notes.
(a) If (i) any mutilated Note is surrendered to the Indenture Trustee,
or the Indenture Trustee receives evidence to its satisfaction of the
destruction, loss or theft of any Note,
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and (ii) there is delivered to the Indenture Trustee such security or indemnity
as may be required by it to hold the Issuer and the Indenture Trustee harmless,
then, in the absence of notice to the Issuer, the Note Registrar or the
Indenture Trustee that such Note has been acquired by a bona fide purchaser, the
Issuer shall execute and upon the Issuer's request the Indenture Trustee shall
authenticate and deliver, in exchange for or in lieu of any such mutilated,
destroyed, lost or stolen Note, a replacement Note of a like class and aggregate
principal amount; provided, however, that if any such destroyed, lost or stolen
Note, but not a mutilated Note, shall have become or within seven days shall be
due and payable, or shall have been called for redemption, instead of issuing a
replacement Note, the Issuer may make payment to the Holder of such destroyed,
lost or stolen Note when so due or payable or upon the Redemption Date, if
applicable, without surrender thereof.
(b) If, after the delivery of a replacement Note or payment in respect
of a destroyed, lost or stolen Note pursuant to subsection (a), a bona fide
purchaser of the original Note in lieu of which such replacement Note was issued
presents for payment such original Note, the Issuer and the Indenture Trustee
shall be entitled to recover such replacement Note (or such payment) from (i)
any Person to whom it was delivered, (ii) the Person taking such replacement
Note from the Person to whom such replacement Note was delivered; or (iii) any
assignee of such Person, except a bona fide purchaser, and the Issuer and the
Indenture Trustee 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 Issuer or the Indenture Trustee in connection therewith.
(c) In connection with the issuance of any replacement Note under this
Section 2.5, the Issuer may require the payment by the Holder of such Note 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 all fees and
expenses of the Indenture Trustee) connected therewith.
(d) Any duplicate Note issued pursuant to this Section 2.5 in
replacement for any mutilated, destroyed, lost or stolen Note shall constitute
an original additional contractual obligation of the Issuer, whether or not the
mutilated, destroyed, lost or stolen Note shall be found at any time or be
enforced by any Person, and shall be entitled to all the benefits of this
Indenture equally and proportionately with any and all other Notes duly issued
hereunder.
(e) The provisions of this Section 2.5 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 Notes.
SECTION 2.6 Persons Deemed Noteholders. Prior to due presentment for
registration of transfer of any Note, the Issuer, the Indenture Trustee and any
agent of the Issuer or the Indenture Trustee may treat the Person in whose name
any Note is registered (as of the day of determination) as the Noteholder for
the purpose of receiving payments of principal of and interest on such Note and
for all other purposes whatsoever, whether or not such Note be overdue, and
neither the Issuer, the Indenture Trustee nor any agent of the Issuer or the
Indenture Trustee shall be affected by notice to the contrary.
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SECTION 2.7 Payment of Principal and Interest.
(a) Interest on each class of Notes shall accrue in the manner set
forth in Exhibit C-1, Exhibit C-2, or Exhibit C-3, as applicable, at the
applicable Interest Rate for such class and will be due and payable on each
Distribution Date in accordance with the priorities set forth in Section 8.2(c).
Any instalment of interest payable on any Note shall be punctually paid or duly
provided for by a deposit by or at the direction of the Issuer into the Note
Distribution Account on the applicable Distribution Date and shall be paid to
the Person in whose name such Note (or one or more Predecessor Notes) is
registered on the applicable Record Date, by check mailed first-class, postage
prepaid to such Person's address as it appears on the Note Register on such
Record Date; provided, however, that, unless and until Definitive Notes have
been issued pursuant to Section 2.12, with respect to Notes registered on the
applicable Record Date in the name of the Note Depository (initially, Cede &
Co.), payment shall be made by wire transfer in immediately available funds to
the account designated by the Note Depository; provided, further, that with
respect to any Private Notes, upon written request of the Holder thereof,
payment shall be made by wire transfer of immediately available funds to the
account designated by such Holder until further written notice from such Holder.
(b) Prior to the occurrence of an Event of Default and a declaration in
accordance with Section 5.2(a) that the Notes have become immediately due and
payable, the principal of each class of Notes shall be payable in full on the
Final Scheduled Distribution Date for such class and, to the extent of funds
available therefor, in instalments on the Distribution Dates (if any) preceding
the Final Scheduled Distribution Date for such class, in the amounts and in
accordance with the priorities set forth in Section 8.2(c)(ii) or (iii), as
applicable. All principal payments on each class of Notes on any Distribution
Date shall be made pro rata to the Noteholders of such class entitled thereto.
Any instalment of principal payable on any Note shall be punctually paid or duly
provided for by a deposit by or at the direction of the Issuer into the Note
Distribution Account on the applicable Distribution Date and shall be paid to
the Person in whose name such Note (or one or more Predecessor Notes) is
registered on the applicable Record Date, by check mailed first-class, postage
prepaid to such Person's address as it appears on the Note Register on such
Record Date; provided, however, that, (A) unless and until Definitive Notes have
been issued pursuant to Section 2.12, with respect to Notes registered on the
Record Date in the name of the Note Depository, payment shall be made by wire
transfer in immediately available funds to the account designated by the Note
Depository and (B) with respect to any Private Notes, upon written request of
the Holder thereof, payment shall be made by wire transfer of immediately
available funds to the account designated by such Holder until further written
notice from such Holder, except for, in each case: (i) the final instalment of
principal on any Note; and (ii) the Redemption Price for the Notes redeemed
pursuant to Section 10.1, which, in each case, shall be payable as provided
herein. The funds represented by any such checks in respect of interest or
principal returned undelivered shall be held in accordance with Section 3.3.
(c) From and after the occurrence of an Event of Default and a
declaration in accordance with Section 5.2(a) that the Notes have become
immediately due and payable, until such time as all Events of Default have been
cured or waived as provided in Section 5.2(b), all principal
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payments shall be allocated pro rata among the Holders of all of the Notes on
the basis of the respective aggregate unpaid principal balances of Notes held by
such Holders.
(d) With respect to any Distribution Date on which the final instalment
of principal and interest on a class of Notes is to be paid, the Indenture
Trustee shall notify each Noteholder of such class of record as of the Record
Date for such Distribution Date of the fact that the final instalment of
principal of and interest on such Note is to be paid on such Distribution Date.
With respect to any such class of Notes, such notice shall be sent (i) on such
Record Date by facsimile, if Book-Entry Notes are outstanding; or (ii) not later
than three Business Days after such Record Date in accordance with Section
11.5(a) if Definitive Notes are outstanding, and shall specify that such final
instalment shall be payable only upon presentation and surrender of such Note
and shall specify the place where such Note may be presented and surrendered for
payment of such instalment and the manner in which such payment shall be made.
Notices in connection with redemptions of Notes shall be mailed to Noteholders
as provided in Section 10.2. Within sixty days of the surrender pursuant to this
Section 2.7(d) or cancellation pursuant to Section 2.8 of all of the Notes of a
particular class, the Indenture Trustee if requested shall provide each of the
Rating Agencies with written notice stating that all Notes of such class have
been surrendered or canceled.
SECTION 2.8 Cancellation of Notes. All Notes surrendered for payment,
redemption, exchange or registration of transfer shall, if surrendered to any
Person other than the Indenture Trustee, be delivered to the Indenture Trustee
and shall be promptly canceled by the Indenture Trustee. The Issuer may at any
time deliver to the Indenture Trustee for cancellation any Notes previously
authenticated and delivered hereunder which the Issuer may have acquired in any
manner whatsoever, and all Notes so delivered shall be promptly canceled by the
Indenture Trustee. No Notes shall be authenticated in lieu of or in exchange for
any Notes canceled as provided in this Section 2.8, except as expressly
permitted by this Indenture. All canceled Notes may be held or disposed of by
the Indenture Trustee in accordance with its standard retention or disposal
policy as in effect at the time unless the Issuer shall direct by an Issuer
Order that they be destroyed or returned to it; provided, however, that such
Issuer Order is timely and the Notes have not been previously disposed of by the
Indenture Trustee. The Indenture Trustee shall certify to the Issuer upon
request that surrendered Notes have been duly canceled and retained or
destroyed, as the case may be.
SECTION 2.9 Release of Collateral. The Indenture Trustee shall release
property from the lien of this Indenture other than as permitted by Sections
3.21, 8.2, 8.4 and 11.1, only upon receipt of an Issuer Request accompanied by
an Officer's Certificate, an Opinion of Counsel (to the extent required by the
TIA) and Independent Certificates in accordance with TIA ss.ss.314(c) and
314(d)(1). The Indenture Trustee shall furnish a copy of such Issuer Request and
all accompanying documents to the Swap Counterparty promptly upon receipt.
SECTION 2.10 Book-Entry Notes. Subject to Section 2.15, the Notes, upon
original issuance, shall be issued in the form of a typewritten Note or Notes
representing the Book- Entry Notes, to be delivered to The Depository Trust
Company, as the initial Clearing Agency, or its custodian, by or on behalf of
the Issuer. Such Note or Notes shall be registered on the Note
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Register in the name of the Note Depository, and no Note Owner shall receive a
Definitive Note representing such Note Owner's interest in such Note, except as
provided in Section 2.12. Unless and until the Definitive Notes have been issued
to Note Owners pursuant to Section 2.12:
(a) the provisions of this Section 2.10 shall be in full force and
effect;
(b) the Note Registrar and the Indenture Trustee shall be entitled to
deal with the Clearing Agency for all purposes of this Indenture (including the
payment of principal of and interest on such Notes and the giving of
instructions or directions hereunder) as the sole Holder of such Notes and shall
have no obligation to the Note Owners;
(c) to the extent that the provisions of this Section 2.10 conflict
with any other provisions of this Indenture, the provisions of this Section 2.10
shall control;
(d) the rights of the Note Owners shall be exercised only through the
Clearing Agency and shall be limited to those established by law and agreements
between such Note Owners and the Clearing Agency and/or the Clearing Agency
Participants. Unless and until Definitive Notes are issued pursuant to Section
2.12, the initial Clearing Agency shall make book-entry transfers between the
Clearing Agency Participants and receive and transmit payments of principal of
and interest on such Notes to such Clearing Agency Participants, pursuant to the
Note Depository Agreement; and
(e) whenever this Indenture requires or permits actions to be taken
based upon instructions or directions of Holders of Notes evidencing a specified
percentage of the Outstanding Amount of the Notes, the Clearing Agency shall be
deemed to represent such percentage only to the extent that it has (i) received
instructions to such effect from Note Owners and/or Clearing Agency Participants
owning or representing, respectively, such required percentage of the beneficial
interest in the Notes; and (ii) has delivered such instructions to the Indenture
Trustee.
SECTION 2.11 Notices to Clearing Agency. Whenever a notice or other
communication to the Noteholders is required under this Indenture, unless and
until Definitive Notes shall have been issued to Note Owners pursuant to Section
2.12, the Indenture Trustee shall give all such notices and communications
specified herein to be given to Noteholders to the Clearing Agency and shall
have no other obligation to the Note Owners.
SECTION 2.12 Definitive Notes.
If (i) the Administrator advises the Indenture Trustee in writing that
the Clearing Agency is no longer willing or able to properly discharge its
responsibilities with respect to the Notes (other than the Private Notes) and
the Issuer is unable to locate a qualified successor; (ii) the Administrator, at
its option, advises the Indenture 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 Servicer Default, Note Owners representing
beneficial interests aggregating at least a majority
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of the Outstanding Amount of such Notes advise the Clearing Agency in writing
that the continuation of a book-entry system through the Clearing Agency is no
longer in the best interests of the Note Owners, then the Clearing Agency shall
notify all Note Owners and the Indenture Trustee of the occurrence of any such
event and of the availability of Definitive Notes to Note Owners requesting the
same. Upon surrender to the Indenture Trustee of the typewritten Note or Notes
representing the Book-Entry Notes by the Clearing Agency, accompanied by
registration instructions, the Issuer shall execute and the Indenture Trustee
shall authenticate the Definitive Notes in accordance with the instructions of
the Clearing Agency. None of the Issuer, the Note Registrar or the Indenture
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.
Upon the issuance of Definitive Notes, the Indenture Trustee shall recognize the
Holders of the Definitive Notes as Noteholders.
SECTION 2.13 Seller as Noteholder. The Seller in its individual or any
other capacity may become the owner or pledgee of Notes of any class and may
otherwise deal with the Issuer or its affiliates with the same rights it would
have if it were not the Seller.
SECTION 2.14 Tax Treatment. The Seller and the Indenture Trustee, by
entering into this Indenture, and the Noteholders, by acquiring any Note or
interest therein, (i) express their intention that the Notes qualify under
applicable tax law as indebtedness secured by the Collateral, and (ii) unless
otherwise required by appropriate taxing authorities, agree to treat the Notes
as indebtedness secured by the Collateral for the purpose of federal income
taxes, 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.
SECTION 2.15 Special Terms Applicable to the Private Notes.
(a) None of the Private Notes have been or will be registered under the
Securities Act of 1933, as amended (the "Securities Act"), or the securities
laws of any other jurisdiction. Consequently, the Private Notes 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. The Class A-1 Notes and an interest in the Initial Variable
Pay Term Note are being sold in private placements pursuant to Section 4(2) of
the Securities Act on the date hereof. Each additional Variable Pay Term Note,
or an interest therein, will be sold in a private placement pursuant to Section
4(2) of the Securities Act on or about the date of issuance thereof. Thereafter,
no further sale, pledge or other transfer of any Private Note (or interest
therein) may be made by any person unless either (i) such sale, pledge or other
transfer is made to a "qualified institutional buyer" that executes a
certificate, in the form attached hereto as Exhibit D or otherwise in form and
substance satisfactory to the Indenture Trustee and the Seller, to the effect
that (A) it is a "qualified institutional buyer" as defined under Rule 144A
under the Securities Act, acting for its own account or the accounts of other
"qualified institutional buyers" as defined under Rule 144A under the Securities
Act, and (B) it is aware that the transferor of such Note intends to rely on the
exemption from the registration requirements of the Securities Act provided by
Rule 144A under the Securities Act, or (ii) such sale, pledge or other transfer
is otherwise made in a transaction exempt from the registration requirements
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of the Securities Act, in which case (A) the Indenture Trustee shall require
that both the prospective transferor and the prospective transferee certify to
the Indenture Trustee and the Seller in writing the facts surrounding such
transfer, which certification shall be in form and substance satisfactory to the
Indenture Trustee and the Seller, and (B) the Indenture Trustee shall require a
written opinion of counsel (which will not be at the expense of the Seller, the
Servicer or the Indenture Trustee) satisfactory to the Seller and the Indenture
Trustee to the effect that such transfer will not violate the Securities Act.
Neither the Seller nor the Indenture Trustee will register any of the Private
Notes under the Securities Act, qualify any of the Private Notes under the
securities laws of any state or provide registration rights to any purchaser or
holder thereof.
(b) The Private Notes shall be issued in the form of Definitive Notes
and shall be in fully registered form. Sections 2.10, 2.11 and 2.12 of this
Indenture shall not apply to the Private Notes.
(c) Each Private Note shall bear a legend to the effect set forth in
subsection (a) above.
ARTICLE III
COVENANTS
SECTION 3.1 Payment of Principal and Interest. The Issuer shall duly
and punctually pay the principal of and interest on the Notes in accordance with
the terms of the Notes and this Indenture. On each Distribution Date and on the
Redemption Date (if applicable), the Issuer shall cause amounts on deposit in
the Note Distribution Account to be distributed to the Noteholders in accordance
with Sections 2.7 and 8.2, less amounts properly withheld under the Code by any
Person from a payment to any Noteholder of interest and/or principal. Any
amounts so withheld shall be considered as having been paid by the Issuer to
such Noteholder for all purposes of this Indenture.
SECTION 3.2 Maintenance of Agency Office. As long as any of the Notes
remains outstanding, the Issuer shall maintain in the Borough of Manhattan, the
City of New York, an office (the "Agency Office"), being an office or agency
where Notes may be surrendered to the Issuer for registration of transfer or
exchange, and where notices and demands to or upon the Issuer in respect of the
Notes and this Indenture may be served. The Issuer hereby initially appoints the
Indenture Trustee to serve as its agent for the foregoing purposes. The Issuer
shall give prompt written notice to the Indenture Trustee of the location, and
of any change in the location, of the Agency Office. If at any time the Issuer
shall fail to maintain any such office or agency or shall fail to furnish the
Indenture Trustee with the address thereof, such surrenders, notices and demands
may be made or served at the Corporate Trust Office of the Indenture Trustee,
and the Issuer hereby appoints the Indenture Trustee as its agent to receive all
such surrenders, notices and demands.
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SECTION 3.3 Money for Payments To Be Held in Trust.
(a) As provided in Section 8.2(a) and (b), all payments of amounts due
and payable with respect to any Notes that are to be made from amounts withdrawn
from the Note Distribution Account pursuant to Section 8.2(c) shall be made on
behalf of the Issuer by the Indenture Trustee or by another Paying Agent, and no
amounts so withdrawn from the Note Distribution Account for payments of Notes
shall be paid over to the Issuer except as provided in this Section 3.3.
(b) On or before each Distribution Date or the Redemption Date (if
applicable), the Issuer shall deposit or cause to be deposited in the Note
Distribution Account pursuant to Section 4.06 of the Trust Sale and Servicing
Agreement an aggregate sum sufficient to pay the amounts then becoming due with
respect to the Notes, such sum to be held in trust for the benefit of the
Persons entitled thereto.
(c) The Issuer shall cause each Paying Agent other than the Indenture
Trustee to execute and deliver to the Indenture Trustee an instrument in which
such Paying Agent shall agree with the Indenture Trustee (and if the Indenture
Trustee acts as Paying Agent, it hereby so agrees), subject to the provisions of
this Section 3.3, that such Paying Agent shall:
(i) hold all sums held by it for the payment of amounts due with
respect to the Notes in trust for the benefit of the Persons entitled
thereto until such sums shall be paid to such Persons or otherwise disposed
of as herein provided and pay such sums to such Persons as herein provided;
(ii) give the Indenture Trustee and the Swap Counterparty notice
of any default by the Issuer (or any other obligor upon the Notes) of which
it has actual knowledge in the making of any payment required to be made
with respect to the Notes;
(iii) at any time during the continuance of any such default, upon
the written request of the Indenture Trustee, forthwith pay to the
Indenture Trustee all sums so held in trust by such Paying Agent;
(iv) immediately resign as a Paying Agent and forthwith pay to the
Indenture Trustee all sums held by it in trust for the payment of Notes if
at any time it ceases to meet the standards required to be met by a Paying
Agent in effect at the time of determination; and
(v) comply with all requirements of the Code with respect to the
withholding from any payments made by it on any Notes of any applicable
withholding taxes imposed thereon and with respect to any applicable
reporting requirements in connection therewith.
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(d) The Issuer may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, by Issuer
Order direct any Paying Agent to pay to the Indenture Trustee all sums held in
trust by such Paying Agent, such sums to be held by the Indenture Trustee upon
the same trusts as those upon which the sums were held by such Paying Agent; and
upon such payment by any Paying Agent to the Indenture Trustee, such Paying
Agent shall be released from all further liability with respect to such money.
(e) Subject to applicable laws with respect to escheat of funds, any
money held by the Indenture Trustee or any Paying Agent in trust for the payment
of any amount due with respect to any Note and remaining unclaimed for one year
after such amount has become due and payable shall be discharged from such trust
and be paid to the Issuer on Issuer Request; and the Holder of such Note shall
thereafter, as an unsecured general creditor, look only to the Issuer for
payment thereof (but only to the extent of the amounts so paid to the Issuer),
and all liability of the Indenture Trustee or such Paying Agent with respect to
such trust money shall thereupon cease; provided, however, that the Indenture
Trustee or such Paying Agent, before being required to make any such payment,
may at the expense of the Issuer cause to be published once, in a newspaper
published in the English language, customarily published on each Business Day
and of general circulation in the City of New York, notice that such money
remains unclaimed and that, after a date specified therein, which shall not be
less than 30 days from the date of such publication, any unclaimed balance of
such money then remaining shall be paid to the Issuer. The Indenture Trustee may
also adopt and employ, at the expense of the Issuer, any other reasonable means
of notification of such payment (including, but not limited to, mailing notice
of such payment to Holders whose Notes have been called but have not been
surrendered for redemption or whose right to or interest in monies due and
payable but not claimed is determinable from the records of the Indenture
Trustee or of any Paying Agent, at the last address of record for each such
Holder).
SECTION 3.4 Existence. The Issuer shall keep in full effect its
existence, rights and franchises as a business trust under the laws of the State
of Delaware (unless it becomes, or any successor Issuer hereunder is or becomes,
organized under the laws of any other State or of the United States of America,
in which case the Issuer shall keep in full effect its existence, rights and
franchises under the laws of such other jurisdiction) and shall obtain and
preserve its qualification to do business in each jurisdiction in which such
qualification is or shall be necessary to protect the validity and
enforceability of this Indenture, the Notes, the Collateral and each other
instrument or agreement included in the Trust Estate.
SECTION 3.5 Protection of Trust Estate; Acknowledgment of Pledge.
(a) The Issuer shall from time to time execute and deliver all such
supplements and amendments hereto and all such financing statements,
continuation statements, instruments of further assurance and other instruments,
and shall take such other action necessary or advisable to:
(i) maintain or preserve the lien and security interest (and the
priority thereof) of this Indenture or carry out more effectively the
purposes hereof, including by
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making the necessary filings of financing statements or amendments thereto
within sixty days after the occurrence of any of the following: (A) any
change in the Issuer's name, (B) any change in the location of the Issuer's
principal place of business, (C) any merger or consolidation or other
change in the Issuer's identity or organizational structure and by promptly
notifying the Indenture Trustee of any such filings and (D) any other
change or occurrence that would make any financing statement or amendment
seriously misleading within the meaning of Section 9-402(7) of the UCC.
(ii) perfect, publish notice of or protect the validity of any
Grant made or to be made by this Indenture;
(iii) enforce the rights of the Indenture Trustee and the
Noteholders in any of the Collateral; or
(iv) preserve and defend title to the Trust Estate and the rights
of the Indenture Trustee, the Swap Counterparty and the Noteholders in such
Trust Estate against the claims of all persons and parties,
and the Issuer hereby designates the Indenture Trustee its agent and
attorney-in-fact to execute any financing statement, continuation statement or
other instrument required by the Indenture Trustee pursuant to this Section 3.5.
(b) The Indenture Trustee acknowledges the pledge by the Seller to the
Indenture Trustee pursuant to Section 4.07(c) of the Trust Sale and Servicing
Agreement of (i) all of the Seller's right, title and interest in and to the
Reserve Account Property in order to provide for the payment to the Noteholders,
the Swap Counterparty, the Certificateholders and the Servicer in accordance
with Sections 4.06(c) and (d) of the Trust Sale and Servicing Agreement, to
assure availability of the amounts maintained in the Reserve Account for the
benefit of the Noteholders, the Swap Counterparty, the Certificateholders and
the Servicer, and as security for the performance by the Seller of its
obligations under the Trust Sale and Servicing Agreement.
SECTION 3.6 Opinions as to Trust Estate.
(a) On the Closing Date, the Issuer shall furnish to the Indenture
Trustee an Opinion of Counsel either stating that, in the opinion of such
counsel, such action has been taken with respect to the recording and filing of
this Indenture, any indentures supplemental hereto and any other requisite
documents, and with respect to the execution and filing of any financing
statements and continuation statements as are necessary to perfect and make
effective the lien and security interest of this Indenture and reciting the
details of such action, or stating that, in the opinion of such counsel, no such
action is necessary to make such lien and security interest effective.
(b) On or before August 15 in each calendar year, beginning August 15,
2001, the Issuer shall furnish to the Indenture Trustee (and shall deliver a
copy to the Swap Counterparty of)
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an Opinion of Counsel either stating that, in the opinion of such counsel, such
action has been taken with respect to the recording, filing, re-recording and
refiling of this Indenture, any indentures supplemental hereto and any other
requisite documents and with respect to the execution and filing of any
financing statements and continuation statements as is necessary to maintain the
lien and security interest created by this Indenture and reciting the details of
such action or stating that in the opinion of such counsel no such action is
necessary to maintain the lien and security interest created by this Indenture.
Such Opinion of Counsel shall also describe the recording, filing, re-recording
and refiling of this Indenture, any indentures supplemental hereto and any other
requisite documents and the execution and filing of any financing statements and
continuation statements that will, in the opinion of such counsel, be required
to maintain the lien and security interest of this Indenture until August 15 in
the following calendar year.
SECTION 3.7 Performance of Obligations; Servicing of Receivables.
(a) The Issuer shall not take any action and shall use its reasonable
efforts not to permit any action to be taken by others that would release any
Person from any of such Person's material covenants or obligations under any
instrument or agreement included in the Trust Estate or that would result in the
amendment, hypothecation, subordination, termination or discharge of, or impair
the validity or effectiveness of, any such instrument or agreement, except as
otherwise expressly provided in this Indenture, the Trust Sale and Servicing
Agreement, the Pooling and Servicing Agreement, the Administration Agreement or
such other instrument or agreement.
(b) The Issuer may contract with other Persons to assist it in
performing its duties under this Indenture, and any performance of such duties
by a Person identified to the Indenture Trustee in the Basic Documents or an
Officer's Certificate of the Issuer shall be deemed to be action taken by the
Issuer. Initially, the Issuer has contracted with the Servicer and the
Administrator to assist the Issuer in performing its duties under this
Indenture.
(c) The Issuer shall punctually perform and observe all of its
obligations and agreements contained in this Indenture, the Basic Documents and
in the instruments and agreements included in the Trust Estate, including but
not limited to filing or causing to be filed all UCC financing statements and
continuation statements required to be filed by the terms of this Indenture, the
Trust Sale and Servicing Agreement and the Pooling and Servicing Agreement in
accordance with and within the time periods provided for herein and therein.
(d) If the Issuer shall have knowledge of the occurrence of a Servicer
Default under the Trust Sale and Servicing Agreement, the Issuer shall promptly
notify the Indenture Trustee, the Swap Counterparty and the Rating Agencies
thereof, and shall specify in such notice the response or action, if any, the
Issuer has taken or is taking with respect of such default. If a Servicer
Default shall arise from the failure of the Servicer to perform any of its
duties or obligations under the Trust Sale and Servicing Agreement or the
Pooling and Servicing Agreement with respect to the Receivables, the Issuer and
the Indenture Trustee shall take all reasonable steps available to them
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pursuant to the Trust Sale and Servicing Agreement and the Pooling and Servicing
Agreement to remedy such failure.
(e) Without derogating from the absolute nature of the assignment
granted to the Indenture Trustee under this Indenture or the rights of the
Indenture Trustee hereunder, the Issuer agrees that it shall not, without the
prior written consent of the (i) Indenture Trustee or the Holders of at least a
majority in Outstanding Amount of the Notes, as applicable in accordance with
the terms of this Indenture, and (ii) if required under the terms of this
Indenture, the Swap Counterparty, amend, modify, waive, supplement, terminate or
surrender, or agree to any amendment, modification, supplement, termination,
waiver or surrender of, the terms of any Collateral or any of the Basic
Documents, or waive timely performance or observance by the Servicer or the
Seller under the Trust Sale and Servicing Agreement or the Pooling and Servicing
Agreement, the Administrator under the Administration Agreement or GMAC under
the Pooling and Servicing Agreement.
SECTION 3.8 Negative Covenants. So long as any Notes are Outstanding,
the Issuer shall not:
(a) sell, transfer, exchange or otherwise dispose of any of the
properties or assets of the Issuer, except the Issuer may (i) collect,
liquidate, sell or otherwise dispose of Receivables (including Warranty
Receivables, Administrative Receivables and Liquidating Receivables), (ii) make
cash payments out of the Designated Accounts, Payment Ahead Servicing Account
and the Certificate Distribution Account and (iii) take other actions, in each
case as contemplated by the Basic Documents;
(b) claim any credit on, or make any deduction from the principal or
interest payable in respect of the Notes (other than amounts properly withheld
from such payments under the Code or applicable state law) or assert any claim
against any present or former Noteholder by reason of the payment of the taxes
levied or assessed upon any part of the Trust Estate;
(c) voluntarily commence any insolvency, readjustment of debt,
marshaling of assets and liabilities or other proceeding, or apply for an order
by a court or agency or supervisory authority for the winding-up or liquidation
of its affairs or any other event specified in Section 5.1(f); or
(d) either (i) permit the validity or effectiveness of this Indenture
to be impaired, or permit the lien of this Indenture to be amended,
hypothecated, subordinated, terminated or discharged, or permit any Person to be
released from any covenants or obligations with respect to the Notes under this
Indenture except as may be expressly permitted hereby, (ii) permit any lien,
charge, excise, claim, security interest, mortgage or other encumbrance (other
than the lien of this Indenture) to be created on or extend to or otherwise
arise upon or burden the Trust Estate or any part thereof or any interest
therein or the proceeds thereof (other than tax liens, mechanics' liens and
other liens that arise by operation of law, in each case on a Financed Vehicle
and arising solely as a result of an action or omission of the related Obligor),
or (iii) permit the lien of this Indenture not to constitute
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a valid first priority security interest in the Trust Estate (other than with
respect to any such tax, mechanics' or other lien).
SECTION 3.9 Annual Statement as to Compliance. The Issuer shall deliver
to the Indenture Trustee and the Swap Counterparty, on or before August 15 of
each year, beginning August 15, 2001, an Officer's Certificate signed by an
Authorized Officer, dated as of June 30 of such year, stating that:
(a) a review of the activities of the Issuer during the preceding
12-month period (or, with respect to the first such Officer's Certificate, such
period as shall have elapsed since the Closing Date) and of performance under
this Indenture has been made under such Authorized Officer's supervision; and
(b) to the best of such Authorized Officer's knowledge, based on such
review, the Issuer has fulfilled all of its obligations under this Indenture
throughout such period, or, if there has been a default in the fulfillment of
any such obligation, specifying each such default known to such Authorized
Officer and the nature and status thereof. A copy of such certificate may be
obtained by any Noteholder by a request in writing to the Issuer addressed to
the Corporate Trust Office of the Indenture Trustee.
SECTION 3.10 Consolidation, Merger, etc., of Issuer; Disposition of
Trust Assets.
(a) The Issuer shall not consolidate or merge with or into any other
Person, unless:
(i) the Person (if other than the Issuer) formed by or surviving
such consolidation or merger shall be a Person organized and existing under
the laws of the United States of America, or any State and shall expressly
assume, by an indenture supplemental hereto, executed and delivered to the
Indenture Trustee, in form satisfactory to the Indenture Trustee, the due
and timely payment of the principal of and interest on all Notes and the
performance or observance of every agreement and covenant of this Indenture
on the part of the Issuer to be performed or observed, all as provided
herein;
(ii) immediately after giving effect to such merger or
consolidation, no Default or Event of Default shall have occurred and be
continuing;
(iii) the Rating Agency Condition shall have been satisfied with
respect to such transaction and such Person;
(iv) any action as is necessary to maintain the lien and security
interest created by this Indenture shall have been taken; and
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(v) the Issuer shall have delivered to the Indenture Trustee an
Officer's Certificate and an Opinion of Counsel addressed to the Issuer,
each stating:
(A) that such consolidation or merger and such supplemental
indenture comply with this Section 3.10;
(B) that such consolidation or merger and such supplemental
indenture shall have no material adverse tax consequence to the Issuer,
any Noteholder or Certificateholder or the Swap Counterparty; and
(C) that all conditions precedent herein provided for in this
Section 3.10 have been complied with, which shall include any filing
required by the Exchange Act.
(b) Except as otherwise expressly permitted by this Indenture or the
other Basic Documents, the Issuer shall not sell, convey, exchange, transfer or
otherwise dispose of any of its properties or assets, including those included
in the Trust Estate, to any Person, unless:
(i) the Person that acquires such properties or assets of the
Issuer (1) shall be a United States citizen or a Person organized and
existing under the laws of the United States of America or any State and
(2) by an indenture supplemental hereto, executed and delivered to the
Indenture Trustee, in form satisfactory to the Indenture Trustee:
(A) expressly assumes the due and punctual payment of the
principal of and interest on all Notes and the performance or
observance of every agreement and covenant of this Indenture on the
part of the Issuer to be performed or observed, all as provided herein;
(B) expressly agrees that all right, title and interest so
sold, conveyed, exchanged, transferred or otherwise disposed of shall
be subject and subordinate to the rights of Noteholders and the Swap
Counterparty;
(C) unless otherwise provided in such supplemental indenture,
expressly agrees to indemnify, defend and hold harmless the Issuer
against and from any loss, liability or expense arising under or
related to this Indenture and the Notes; and
(D) expressly agrees that such Person (or if a group of
Persons, then one specified Person) shall make all filings with the
Commission (and any other appropriate Person) required by the Exchange
Act in connection with the Notes;
(ii) immediately after giving effect to such transaction, no
Default or Event of Default shall have occurred and be continuing;
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(iii) the Rating Agency Condition shall have been satisfied with
respect to such transaction and such Person;
(iv) any action as is necessary to maintain the lien and security
interest created by this Indenture shall have been taken; and
(v) the Issuer shall have delivered to the Indenture Trustee an
Officer's Certificate and an Opinion of Counsel addressed to the Issuer,
each stating that:
(A) such sale, conveyance, exchange, transfer or disposition
and such supplemental indenture comply with this Section 3.10;
(B) such sale, conveyance, exchange, transfer or disposition
and such supplemental indenture have no material adverse tax
consequence to the Trust or to any Noteholders or Certificateholders or
to the Swap Counterparty; and
(C) that all conditions precedent herein provided for in this
Section 3.10 have been complied with, which shall include any filing
required by the Exchange Act.
SECTION 3.11 Successor or Transferee.
(a) Upon any consolidation or merger of the Issuer in accordance with
Section 3.10(a), the Person formed by or surviving such consolidation or merger
(if other than the Issuer) shall succeed to, and be substituted for, and may
exercise every right and power of, the Issuer under this Indenture with the same
effect as if such Person had been named as the Issuer herein.
(b) Upon a conveyance or transfer of substantially all the assets and
properties of the Issuer pursuant to Section 3.10(b), the Issuer shall be
released from every covenant and agreement of this Indenture to be observed or
performed on the part of the Issuer with respect to the Notes immediately upon
the delivery of written notice to the Indenture Trustee from the Person
acquiring such assets and properties stating that the Issuer is to be so
released.
SECTION 3.12 No Other Business. The Issuer shall not engage in any
business or activity other than acquiring, holding and managing the Collateral
and the proceeds therefrom in the manner contemplated by the Basic Documents,
issuing the Notes and the Certificates, making payments on the Notes and the
Certificates and such other activities that are necessary, suitable or
convenient to accomplish the foregoing or are incidental thereto, as set forth
in Section 2.3 of the Trust Agreement.
SECTION 3.13 No Borrowing. The Issuer shall not issue, incur, assume,
guarantee or otherwise become liable, directly or indirectly, for any
indebtedness for money borrowed
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other than indebtedness for money borrowed in respect of the Notes or otherwise
in accordance with the Basic Documents.
SECTION 3.14 Guarantees, Loans, Advances and Other Liabilities. Except
as contemplated by this Indenture or the other Basic Documents, the Issuer shall
not make any loan or advance or credit to, or guarantee (directly or indirectly
or by an instrument having the effect of assuring another's payment or
performance on any obligation or capability of so doing or otherwise), endorse
or otherwise become contingently liable, directly or indirectly, in connection
with the obligations, stocks or dividends of, or own, purchase, repurchase or
acquire (or agree contingently to do so) any stock, obligations, assets or
securities of, or any other interest in, or make any capital contribution to,
any other Person.
SECTION 3.15 Servicer's Obligations. The Issuer shall use its best
efforts to cause the Servicer to comply with its obligations under Section 3.10
of the Pooling and Servicing Agreement and Sections 4.01 and 4.02 of the Trust
Sale and Servicing Agreement.
SECTION 3.16 Capital Expenditures. The Issuer shall not make any
expenditure (whether by long-term or operating lease or otherwise) for capital
assets (either real, personal or intangible property) other than the purchase of
the Receivables and other property and rights from the Seller pursuant to the
Trust Sale and Servicing Agreement.
SECTION 3.17 Removal of Administrator. So long as any Notes are
Outstanding, the Issuer shall not remove the Administrator without cause unless
the Rating Agency Condition shall have been satisfied in connection with such
removal.
SECTION 3.18 Restricted Payments. Except for payments of principal or
interest on or redemption of the Notes, so long as any Notes are Outstanding,
the Issuer shall not, directly or indirectly:
(a) pay any dividend or make any distribution (by reduction of capital
or other wise), whether in cash, property, securities or a combination thereof,
to the Owner Trustee or any owner of a beneficial interest in the Issuer or
otherwise, in each case with respect to any ownership or equity interest or
similar security in or of the Issuer or to the Servicer;
(b) redeem, purchase, retire or otherwise acquire for value any such
ownership or equity interest or similar security; or
(c) set aside or otherwise segregate any amounts for any such purpose;
provided, however, that the Issuer may make, or cause to be made, distributions
to the Servicer, the Seller, the Indenture Trustee, the Owner Trustee, the Swap
Counterparty and the Certificateholders as permitted by, and to the extent funds
are available for such purpose under, the Trust Sale and Servicing Agreement,
the Trust Agreement or the other Basic Documents. The Issuer shall not,
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directly or indirectly, make payments to or distributions from the Collection
Account except in accordance with the Basic Documents.
SECTION 3.19 Notice of Events of Default. The Issuer agrees to give the
Indenture Trustee, the Swap Counterparty and the Rating Agencies prompt written
notice of each Event of Default hereunder, each Servicer Default, each default
on the part of the Seller of its obligations under the Trust Sale and Servicing
Agreement and each default on the part of GMAC of its obligations under the
Pooling and Servicing Agreement.
SECTION 3.20 Further Instruments and Acts. Upon request of the
Indenture Trustee, the Issuer shall execute and deliver such further instruments
and do such further acts as may be reasonably necessary or proper to carry out
more effectively the purpose of this Indenture.
SECTION 3.21 Indenture Trustee's Assignment of Administrative
Receivables and Warranty Receivables. Upon receipt of the Administrative
Purchase Payment or the Warranty Payment with respect to an Administrative
Receivable or a Warranty Receivable, as the case may be, the Indenture Trustee
shall assign, without recourse, representation or warranty, to the Servicer or
the Warranty Purchaser, as the case may be, all the Indenture Trustee's right,
title and interest in and to such repurchased Receivable, all monies due
thereon, the security interest in the related Financed Vehicle, proceeds from
any Insurance Policies, proceeds from recourse against the Dealer on such
Receivable and the interests of the Indenture Trustee in certain rebates of
premiums and other amounts relating to the Insurance Policies and any documents
relating thereto, such assignment being an assignment outright and not for
security; and the Servicer or the Warranty Purchaser, as applicable, shall
thereupon own such Receivable, and all such security and documents, free of any
further obligation to the Indenture Trustee, the Noteholders or the
Certificateholders with respect thereto. If in any enforcement suit or legal
proceeding it is held that the Servicer may not enforce a Receivable on the
ground that it is not a real party in interest or a holder entitled to enforce
the Receivable, the Indenture Trustee shall, at the Servicer's expense, take
such steps as the Servicer deems necessary to enforce the Receivable, including
bringing suit in the Indenture Trustee's name or the names of the Noteholders or
the Certificateholders.
SECTION 3.22 Representations and Warranties by the Issuer to the
Indenture Trustee. The Issuer hereby represents and warrants to the Indenture
Trustee as follows:
(a) Good Title. No Receivable has been sold, transferred, assigned or
pledged by the Issuer to any Person other than the Indenture Trustee;
immediately prior to the conveyance of the Receivables pursuant to this
Indenture, the Issuer had good and marketable title thereto, free of any Lien;
and, upon execution and delivery of this Indenture by the Issuer, the Indenture
Trustee shall have all of the right, title and interest of the Issuer in, to and
under the Receivables, the unpaid indebtedness evidenced thereby and the
collateral security therefor, free of any Lien; and
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(b) All Filings Made. All filings (including, without limitation, UCC
filings) necessary in any jurisdiction to give the Indenture Trustee a first
perfected security interest in the Receivables shall have been made.
ARTICLE IV
SATISFACTION AND DISCHARGE
SECTION 4.1 Satisfaction and Discharge of Indenture. This Indenture
shall cease to be of further effect with respect to the Notes except as to: (i)
rights of registration of transfer and exchange; (ii) substitution of mutilated,
destroyed, lost or stolen Notes; (iii) rights of Noteholders to receive payments
of principal thereof and interest thereon; (iv) Sections 3.3, 3.4, 3.5, 3.8,
3.10, 3.12, 3.13, 3.19 and 3.21; (v) the rights, obligations and immunities of
the Indenture Trustee hereunder (including the rights of the Indenture Trustee
under Section 6.7 and the obligations of the Indenture Trustee under Sections
4.2 and 4.4); and (vi) the rights of Noteholders as beneficiaries hereof with
respect to the property so deposited with the Indenture Trustee payable to all
or any of them, and the Indenture Trustee, on demand of and at the expense of
the Issuer, shall execute proper instruments acknowledging satisfaction and
discharge of this Indenture with respect to the Notes, if:
(a) either:
(i) all Notes theretofore authenticated and delivered (other than
(A) Notes that have been destroyed, lost or stolen and that have been
replaced or paid as provided in Section 2.5 and (B) Notes for whose payment
money has theretofore been deposited in trust or segregated and held in
trust by the Issuer and thereafter repaid to the Issuer or discharged from
such trust, as provided in Section 3.3) have been delivered to the
Indenture Trustee for cancellation; or
(ii) all Notes not theretofore delivered to the Indenture Trustee
for cancellation:
(A) have become due and payable,
(B) will be due and payable on their respective Final
Scheduled Distribution Dates within one year, or
(C) are to be called for redemption within one year under
arrangements satisfactory to the Indenture Trustee for the giving of
notice of redemption by the Indenture Trustee in the name, and at the
expense, of the Issuer,
and the Issuer, in the case of (A), (B) or (C) of subsection 4.1(a)(ii)
above, has irrevocably deposited or caused to be irrevocably deposited with
the Indenture Trustee cash or direct
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obligations of or obligations guaranteed by the United States of America
(which will mature prior to the date such amounts are payable), in trust
for such purpose, in an amount sufficient to pay and discharge the entire
unpaid principal and accrued interest on such Notes not theretofore
delivered to the Indenture Trustee for cancellation when due on the Final
Scheduled Distribution Date for such Notes or the Redemption Date for such
Notes (if such Notes have been called for redemption pursuant to Section
10.1), as the case may be;
(b) the Issuer has paid or caused to be paid all other sums payable
hereunder or under the Interest Rate Swap by the Issuer; and
(c) the Issuer has delivered to the Indenture Trustee an Officer's
Certificate of the Issuer, an Opinion of Counsel and (if required by the TIA or
the Indenture Trustee) an Independent Certificate from a firm of certified
public accountants, each meeting the applicable requirements of Section 11.1(a)
and each stating that all conditions precedent herein provided for relating to
the satisfaction and discharge of this Indenture have been complied with.
SECTION 4.2 Application of Trust Money. All monies deposited with the
Indenture Trustee pursuant to Section 4.1 shall be held in trust and applied by
it, in accordance with the provisions of the Notes and this Indenture, to the
payment, either directly or through any Paying Agent, as the Indenture Trustee
may determine, to the Holders of the particular Notes for the payment or
redemption of which such monies have been deposited with the Indenture Trustee,
of all sums due and to become due thereon for principal and interest and to
payment of the Swap Counterparty of all sums, if any, due or to become due to
the Swap Counterparty under and in accordance with this Indenture; but such
monies need not be segregated from other funds except to the extent required
herein or in the Trust Sale and Servicing Agreement or required by law.
SECTION 4.3 Repayment of Monies Held by Paying Agent. In connection
with the satisfaction and discharge of this Indenture with respect to the Notes,
all monies then held by any Paying Agent other than the Indenture Trustee under
the provisions of this Indenture with respect to such Notes shall, upon demand
of the Issuer, be paid to the Indenture Trustee to be held and applied according
to Section 3.3 and thereupon such Paying Agent shall be released from all
further liability with respect to such monies.
SECTION 4.4 Duration of Position of Indenture Trustee. Notwithstanding
the earlier payment in full of all principal and interest due to the Noteholders
under the terms of the Notes and the cancellation of the Notes pursuant to
Section 3.1, the Indenture Trustee shall continue to act in the capacity as
Indenture Trustee hereunder and, for the benefit of the Certificateholders,
shall comply with its obligations under Sections 5.01(a), 7.02 and 7.03 of the
Trust Sale and Servicing Agreement, as appropriate, until such time as all
payments in respect of Certificate Balance and interest due to the
Certificateholders have been paid in full.
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ARTICLE V
DEFAULT AND REMEDIES
SECTION 5.1 Events of Default. For the purposes of this Indenture,
"Event of Default" wherever used herein, means any one of the following events:
(a) failure to pay the full Noteholders' Interest Distributable Amount
on any class of Notes on any Distribution Date, and such default shall continue
for a period of five (5) days; or
(b) except as set forth in Section 5.1(c), failure to pay any
instalment of the principal of any Note as and when the same becomes due and
payable, and such default continues unremedied for a period of thirty (30) days
after there shall have been given, by registered or certified mail, to the
Servicer by the Indenture Trustee or to the Servicer and the Indenture Trustee
by the Holders of not less than 25% of the Outstanding Amount of the Notes, a
written notice specifying such default and demanding that it be remedied and
stating that such notice is a "Notice of Default" hereunder; or
(c) failure to pay in full the outstanding principal balance of any
class of Notes by the Final Scheduled Distribution Date for such class; or
(d) default in the observance or performance in any material respect of
any covenant or agreement of the Issuer made in this Indenture (other than a
covenant or agreement, a default in the observance or performance of which is
elsewhere in this specifically dealt with in this Section 5.1) which failure
materially and adversely affects the rights of the Noteholders, and such default
shall continue or not be cured, for a period of 30 days after there shall have
been given, by registered or certified mail, to the Issuer and the Seller (or
the Servicer, as applicable) by the Indenture Trustee or to the Issuer and the
Seller (or the Servicer, as applicable) and the Indenture Trustee by the Holders
of at least 25% of the Outstanding Amount of the Notes, a written notice
specifying such default, demanding that it be remedied and stating that such
notice is a "Notice of Default" hereunder; or
(e) the filing of a decree or order for relief by a court having
jurisdiction in the premises in respect of the Issuer or any substantial part of
the Trust Estate in an involuntary case under any applicable federal or state
bankruptcy, insolvency or other similar law now or hereafter in effect, or
appointing a receiver, liquidator, assignee, custodian, trustee, sequestrator or
similar official of the Issuer or for any substantial part of the Trust Estate,
or ordering the winding-up or liquidation of the Issuer's affairs, and such
decree or order shall remain unstayed and in effect for a period of 90
consecutive days; or
(f) the commencement by the Issuer of a voluntary case under any
applicable federal or state bankruptcy, insolvency or other similar law now or
hereafter in effect, or the consent by the Issuer to the entry of an order for
relief in an involuntary case under any such law, or the consent by the Issuer
to the appointment or taking possession by a receiver, liquidator, assignee,
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custodian, trustee, sequestrator or similar official of the Issuer or for any
substantial part of the Trust Estate, or the making by the Issuer of any general
assignment for the benefit of creditors, or the failure by the Issuer generally
to pay its debts as such debts become due, or the taking of action by the Issuer
in furtherance of any of the foregoing.
The Issuer shall deliver to the Indenture Trustee, with a copy to the Swap
Counterparty, within five Business Days after learning of the occurrence
thereof, written notice in the form of an Officer's Certificate of any event
which with the giving of notice and the lapse of time would become an Event of
Default under Section 5.1(d), its status and what action the Issuer is taking or
proposes to take with respect thereto.
SECTION 5.2 Acceleration of Maturity; Rescission and Annulment.
(a) If an Event of Default should occur and be continuing, then and in
every such case, unless the principal amount of the Notes shall have already
become due and payable, either the Indenture Trustee or the Holders of Notes
representing not less than a majority of the Outstanding Amount of the Notes may
declare all the Notes to be immediately due and payable, by a notice in writing
to the Issuer (and to the Indenture Trustee if given by the Noteholders) setting
forth the Event or Events of Default, and upon any such declaration the unpaid
principal amount of such Notes, together with accrued and unpaid interest
thereon through the date of acceleration, shall become immediately due and
payable. In the event of such declaration, the Indenture Trustee shall give
prompt written notice thereof to the Swap Counterparty.
(b) At any time after such declaration of acceleration of maturity of
the Notes has been made and before a judgment or decree for payment of the money
due thereunder has been obtained by the Indenture Trustee as hereinafter
provided in this Article V, the Holders of Notes representing a majority of the
Outstanding Amount of the Notes, by written notice to the Issuer and the
Indenture Trustee, may waive all Defaults set forth in the notice delivered
pursuant to Section 5.2(a), and rescind and annul such declaration and its
consequences; provided, that no such rescission and annulment shall extend to or
affect any other Default or impair any right consequent thereto; and provided
further, that if the Indenture Trustee shall have proceeded to enforce any right
under this Indenture and such Proceedings shall have been discontinued or
abandoned because of such rescission and annulment or for any other reason, or
such Proceedings shall have been determined adversely to the Indenture Trustee,
then and in every such case, the Indenture Trustee, the Issuer and the
Noteholders, as the case may be, shall be restored respectively to their former
positions and rights hereunder, and all rights, remedies and powers of the
Indenture Trustee, the Issuer and the Noteholders, as the case may be, shall
continue as though no such Proceedings had been commenced.
SECTION 5.3 Collection of Indebtedness and Suits for Enforcement by
Indenture Trustee.
(a) The Issuer covenants that if an Event of Default occurs and such
Event of Default has not been waived pursuant to Section 5.12, the Issuer shall,
upon demand of the Indenture
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Trustee, pay to the Indenture Trustee, for the ratable benefit of the
Noteholders in accordance with their respective outstanding principal amounts,
the whole amount then due and payable on such Notes for principal and interest,
with interest upon the overdue principal, at the rate borne by the Notes and in
addition thereto such further amount as shall be sufficient to cover the costs
and expenses of collection, including the reasonable compensation, expenses,
disbursements and advances of the Indenture Trustee and its agents and counsel.
(b) If the Issuer shall fail forthwith to pay such amounts upon such
demand, the Indenture Trustee, in its own name and as trustee of an express
trust, may institute a Proceeding for the collection of the sums so due and
unpaid, and may prosecute such Proceeding to judgment or final decree, and may
enforce the same against the Issuer or other obligor upon such Notes and collect
in the manner provided by law out of the property of the Issuer or other obligor
upon such Notes, wherever situated, the monies adjudged or decreed to be
payable.
(c) If an Event of Default occurs and is continuing, the Indenture
Trustee may, as more particularly provided in Section 5.4, in its discretion,
proceed to protect and enforce its rights and the rights of the Noteholders, by
such appropriate Proceedings as the Indenture Trustee shall deem most effective
to protect and enforce any such rights, whether for the specific enforcement of
any covenant or agreement in this Indenture or in aid of the exercise of any
power granted herein, or to enforce any other proper remedy or legal or
equitable right vested in the Indenture Trustee by this Indenture or by
applicable law.
(d) If there shall be pending, relative to the Issuer or any other
obligor upon the Notes or any Person having or claiming an ownership interest in
the Trust Estate, Proceedings under Title 11 of the United States Code or any
other applicable federal or state bankruptcy, insolvency or other similar law,
or if a receiver, assignee or trustee in bankruptcy or reorganization,
liquidator, sequestrator or similar official shall have been appointed for or
taken possession of the Issuer or its property or such other obligor or Person,
or in case of any other comparable judicial Proceedings relative to the Issuer
or other obligor upon the Notes, or to the creditors or property of the Issuer
or such other obligor, the Indenture Trustee, irrespective of whether the
principal of any Notes shall then be due and payable as therein expressed or by
declaration or otherwise and irrespective of whether the Indenture Trustee shall
have made any demand pursuant to the provisions of this Section 5.3, shall be
entitled and empowered, by intervention in such Proceedings or otherwise:
(i) to file and prove a claim or claims for the whole amount of
principal and interest owing and unpaid in respect of the Notes and all
amounts owing under the Interest Rate Swap and to file such other papers or
documents as may be necessary or advisable in order to have the claims of
the Indenture Trustee (including any claim for reasonable compensation to
the Indenture Trustee and each predecessor trustee, and their respective
agents, attorneys and counsel, and for reimbursement of all expenses and
liabilities incurred, and all advances made, by the Indenture Trustee and
each predecessor trustee, except as a result of negligence or bad faith),
the Swap Counterparty and of the Noteholders allowed in such Proceedings;
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(ii) unless prohibited by applicable law and regulations, to vote
on behalf of the Holders of Notes and the Swap Counterparty in any election
of a trustee, a standby trustee or Person performing similar functions in
any such Proceedings;
(iii) to collect and receive any monies or other property payable
or deliverable on any such claims and to distribute all amounts received
with respect to the claims of the Noteholders, the Swap Counterparty and of
the Indenture Trustee on their behalf; and
(iv) to file such proofs of claim and other papers or documents as
may be necessary or advisable in order to have the claims of the Indenture
Trustee, the Swap Counterparty or the Holders of Notes allowed in any
judicial proceedings relative to the Issuer, its creditors and its
property;
and any trustee, receiver, liquidator, custodian or other similar official in
any such Proceeding is hereby authorized by each of such Noteholders and the
Swap Counterparty to make payments to the Indenture Trustee for application in
accordance with the priorities set forth in the Basic Documents, and, if the
Indenture Trustee shall consent to the making of payments directly to such
Noteholders and the Swap Counterparty, to pay to the Indenture Trustee such
amounts as shall be sufficient to cover reasonable compensation to the Indenture
Trustee, each predecessor trustee and their respective agents, attorneys and
counsel, and all other expenses and liabilities incurred, and all advances made,
by the Indenture Trustee and each predecessor trustee except as a result of
negligence or bad faith.
(e) Nothing herein contained shall be deemed to authorize the Indenture
Trustee to authorize or consent to or vote for or accept or adopt on behalf of
any Noteholder or the Swap Counterparty any plan of reorganization, arrangement,
adjustment or composition affecting the Notes or the rights of any Holder
thereof or to authorize the Indenture Trustee to vote in respect of the claim of
any Noteholder or the Swap Counterparty in any such proceeding except, as
aforesaid, to vote for the election of a trustee in bankruptcy or similar
Person.
(f) All rights of action and of asserting claims under this Indenture,
or under any of the Notes, may be enforced by the Indenture Trustee without the
possession of any of the Notes or the production thereof in any trial or other
Proceedings relative thereto, and any such Proceedings instituted by the
Indenture Trustee shall be brought in its own name as trustee of an express
trust, and any recovery of judgment, subject to the payment of the expenses,
disbursements and compensation of the Indenture Trustee, each predecessor
Trustee and their respective agents and attorneys, shall be for the benefit of
the Noteholders and the Swap Counterparty in accordance with the priorities set
forth in the Basic Documents.
(g) In any Proceedings brought by the Indenture Trustee (and also any
Proceedings involving the interpretation of any provision of this Indenture to
which the Indenture
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Trustee shall be a party), the Indenture Trustee shall be held to represent all
the Noteholders, and it shall not be necessary to make any Noteholder a party to
any such Proceedings.
SECTION 5.4 Remedies; Priorities.
(a) If an Event of Default shall have occurred and be continuing and
the Notes have been accelerated under Section 5.2(a), the Indenture Trustee may
do one or more of the following (subject to Section 5.5):
(i) institute Proceedings in its own name and as trustee of an
express trust for the collection of all amounts then due and payable on the
Notes or the Interest Rate Swap or under this Indenture with respect
thereto, whether by declaration of acceleration or otherwise, enforce any
judgment obtained, and collect from the Issuer and any other obligor upon
such Notes monies adjudged due;
(ii) institute Proceedings from time to time for the complete or
partial foreclosure of this Indenture with respect to the Trust Estate;
(iii) exercise any remedies of a secured party under the UCC and
take any other appropriate action to protect and enforce the rights and
remedies of the Indenture Trustee, the Swap Counterparty and the
Noteholders; and
(iv) sell the Trust Estate or any portion thereof or rights or
interest therein, at one or more public or private sales called and
conducted in any manner permitted by law or elect to have the Issuer
maintain possession of the Receivables and continue to apply collections on
such Receivables as if there had been no declaration of acceleration;
provided, however, that the Indenture Trustee may not sell or otherwise
liquidate the Trust Estate following an Event of Default and acceleration
of the Notes, unless (i) (A) the Holders of all of the aggregate
Outstanding Amount of the Notes consent thereto (and if such Event of
Default results under Section 5.1(d) of this Indenture, the Holders of
Certificates representing all of the Voting Interests also consent thereto)
or (B) the proceeds of such sale or liquidation distributable to the
Noteholders are sufficient to discharge in full the principal of and the
accrued interest on the Notes at the date of such sale or liquidation or
(C) (x) there has been an Event of Default under Section 5.1(a), (b) or (c)
or otherwise arising from a failure to make a required payment of principal
on any Notes, (y) the Indenture Trustee determines that the Trust Estate
will not continue to provide sufficient funds for the payment of principal
of and interest on the Notes as and when they would have become due if the
Notes had not been declared due and payable, and (z) the Indenture Trustee
obtains the consent of Holders of a majority of the aggregate Outstanding
Amount of the Notes and (ii) 10 days' prior written notice of sale or
liquidation has been given to the Rating Agencies. In determining such
sufficiency or insufficiency with respect to clauses (B) and (C), the
Indenture Trustee may, but need not, obtain and rely upon an opinion of an
Independent investment banking or
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accounting firm of national reputation as to the feasibility of such
proposed action and as to the sufficiency of the Trust Estate for such
purpose.
(b) If the Indenture Trustee collects any money or property pursuant to
this Article V, it shall pay out the money or property in the following order:
FIRST: to the Indenture Trustee for amounts due under Section 6.7 and
then to the Owner Trustee for amounts due to the Owner Trustee (not
including amounts due for payments to the Certificateholders) under the
Trust Agreement or the Trust Sale and Servicing Agreement; and
SECOND: to the Collection Account, for distribution pursuant to
Sections 8.01(b) and (e) of the Trust Sale and Servicing Agreement.
The Indenture Trustee may fix a record date and payment date for any
payment to Noteholders pursuant to this Section 5.4. At least 15 days before
such record date, the Indenture Trustee shall mail to each Noteholder, the Swap
Counterparty and the Owner Trustee a notice that states the record date, the
payment date and the amount to be paid.
SECTION 5.5 Optional Preservation of the Receivables. If the Notes have
been declared to be due and payable under Section 5.2 following an Event of
Default and such declaration and its consequences have not been rescinded and
annulled in accordance with Section 5.2(b), the Indenture Trustee may, but need
not, elect to take and maintain possession of the Trust Estate. It is the desire
of the parties hereto, the Swap Counterparty and the Noteholders that there be
at all times sufficient funds for the payment of principal of and interest on
the Notes, and any and all amounts owing to the Swap Counterparty and the
Indenture Trustee shall take such desire into account when determining whether
or not to take and maintain possession of the Trust Estate. In determining
whether to take and maintain possession of the Trust Estate, the Indenture
Trustee may, but need not, obtain and rely upon an opinion of an Independent
investment banking or accounting firm of national reputation as to the
feasibility of such proposed action and as to the sufficiency of the Trust
Estate for such purpose.
SECTION 5.6 Limitation of Suits. No Holder of any Note shall have any
right to institute any Proceeding, judicial or otherwise, with respect to this
Indenture, or for the appointment of a receiver or trustee, or for any other
remedy hereunder, unless:
(a) such Holder has previously given written notice to the Indenture
Trustee of a continuing Event of Default;
(b) the Holders of not less than 25% of the Outstanding Amount of the
Notes have made written request to the Indenture Trustee to institute such
Proceeding in respect of such Event of Default in its own name as Indenture
Trustee hereunder;
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(c) such Holder or Holders have offered to the Indenture Trustee
reasonable indemnity against the costs, expenses and liabilities to be incurred
in complying with such request;
(d) the Indenture Trustee for 60 days after its receipt of such notice,
request and offer of indemnity has failed to institute such Proceedings; and
(e) no direction inconsistent with such written request has been given
to the Indenture Trustee during such 60-day period by the Holders of a majority
of the Outstanding Amount of the Notes;
it being understood and intended that no one or more Holders of Notes shall have
any right in any manner whatever by virtue of, or by availing of, any provision
of this Indenture to affect, disturb or prejudice the rights of any other
Holders of Notes or to obtain or to seek to obtain priority or preference over
any other Holders of Notes or to enforce any right under this Indenture, except
in the manner herein provided and for the equal, ratable (on the basis of the
respective aggregate amount of principal and interest, respectively, due and
unpaid on the Notes held by each Noteholder) and common benefit of all holders
of Notes. For the protection and enforcement of the provisions of this Section
5.6, each and every Noteholder shall be entitled to such relief as can be given
either at law or in equity.
If the Indenture Trustee shall receive conflicting or inconsistent
requests and indemnity from two or more groups of Holders of Notes, each
representing less than a majority of the Outstanding Amount of the Notes, the
Indenture Trustee in its sole discretion may determine what action, if any,
shall be taken, notwithstanding any other provisions of this Indenture.
SECTION 5.7 Unconditional Rights of Noteholders To Receive Principal
and Interest. Notwithstanding any other provisions in this Indenture, the Holder
of any Note shall have the right, which is absolute and unconditional, to
receive payment of the principal of and interest, on such Note on or after the
respective due dates thereof expressed in such Note or in this Indenture (or, in
the case of redemption, if applicable, on or after the Redemption Date) and to
institute suit for the enforcement of any such payment, and such right shall not
be impaired without the consent of such Holder.
SECTION 5.8 Restoration of Rights and Remedies. If the Indenture
Trustee or any Noteholder has instituted any Proceeding to enforce any right or
remedy under this Indenture and such Proceeding has been discontinued or
abandoned for any reason or has been determined adversely to the Indenture
Trustee or to such Noteholder, then and in every such case the Issuer, the
Indenture Trustee and the Noteholders shall, subject to any determination in
such Proceeding, be restored severally to their respective former positions
hereunder, and thereafter all rights and remedies of the Indenture Trustee and
the Noteholders shall continue as though no such Proceeding had been instituted.
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SECTION 5.9 Rights and Remedies Cumulative. No right or remedy herein
conferred upon or reserved to the Indenture Trustee or to the Noteholders is
intended to be exclusive of any other right or remedy, and every right and
remedy shall, to the extent permitted by law, be cumulative and in addition to
every other right and remedy given hereunder or now or hereafter existing at law
or in equity or otherwise. The assertion or employment of any right or remedy
hereun der, or otherwise, shall not prevent the concurrent assertion or
employment of any other appropriate right or remedy.
SECTION 5.10 Delay or Omission Not a Waiver. No delay or omission of
the Indenture Trustee or any Holder of any Note to exercise any right or remedy
accruing upon any Default or Event of Default shall impair any such right or
remedy or constitute a waiver of any such Default or Event of Default or an
acquiescence therein. Every right and remedy given by this Article V or by law
to the Indenture Trustee or to the Noteholders may be exercised from time to
time, and as often as may be deemed expedient, by the Indenture Trustee or by
the Noteholders, as the case may be.
SECTION 5.11 Control by Noteholders. The Holders of a majority of the
Outstanding Amount of the Notes shall, subject to provision being made for
indemnification against costs, expenses and liabilities in a form satisfactory
to the Indenture Trustee, have the right to direct the time, method and place of
conducting any Proceeding for any remedy available to the Indenture Trustee with
respect to the Notes or exercising any trust or power conferred on the Indenture
Trustee; provided, however, that:
(a) such direction shall not be in conflict with any rule of law or
with this Indenture;
(b) subject to the express terms of Section 5.4, any direction to the
Indenture Trustee to sell or liquidate the Trust Estate shall be by the Holders
of Notes representing not less than 100% of the Outstanding Amount of the Notes;
(c) if the conditions set forth in Section 5.5 have been satisfied and
the Indenture Trustee elects to retain the Trust Estate pursuant to Section 5.5,
then any direction to the Indenture Trustee by Holders of Notes representing
less than 100% of the Outstanding Amount of the Notes to sell or liquidate the
Trust Estate shall be of no force and effect; and
(d) the Indenture Trustee may take any other action deemed proper by
the Indenture Trustee that is not inconsistent with such direction;
provided, however, that, subject to Section 6.1, the Indenture Trustee need not
take any action that it determines might cause it to incur any liability or
might materially adversely affect the rights of any Noteholders not consenting
to such action.
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SECTION 5.12 Waiver of Past Defaults.
(a) Prior to the declaration of the acceleration of the maturity of the
Notes as provided in Section 5.2, the Holders of not less than a majority of the
Outstanding Amount of the Notes may waive any past Default or Event of Default
and its consequences except a Default (i) in the payment of principal of or
interest on any of the Notes or (ii) in respect of a covenant or provision
hereof which cannot be modified or amended without the consent of the Holder of
each Note. In the case of any such waiver, the Issuer, the Indenture Trustee and
the Noteholders shall be restored to their respective former positions and
rights hereunder; but no such waiver shall extend to any subsequent or other
Default or impair any right consequent thereto. The Trustee shall promptly give
written notice of any such waiver to the Swap Counterparty.
(b) Upon any such waiver, such Default shall cease to exist and be
deemed to have been cured and not to have occurred, and any Event of Default
arising therefrom shall be deemed to have been cured and not to have occurred,
for every purpose of this Indenture; but no such waiver shall extend to any
subsequent or other Default or Event of Default or impair any right consequent
thereto.
SECTION 5.13 Undertaking for Costs. All parties to this Indenture
agree, and each Holder of any Note by such Holder's acceptance thereof shall be
deemed to have agreed, that any court may in its discretion require, in any
Proceeding for the enforcement of any right or remedy under this Indenture, or
in any Proceeding against the Indenture Trustee for any action taken, suffered
or omitted by it as Trustee, the filing by any party litigant in such Proceeding
of an undertaking to pay the costs of such Proceeding, and that such court may
in its discretion assess reasonable costs, including reasonable attorneys' fees,
against any party litigant in such Proceeding, having due regard to the merits
and good faith of the claims or defenses made by such party litigant; but the
provisions of this Section 5.13 shall not apply to:
(a) any Proceeding instituted by the Indenture Trustee;
(b) any Proceeding instituted by any Noteholder, or group of
Noteholders, in each case holding in the aggregate more than 10% of the
Outstanding Amount of the Notes; or
(c) any Proceeding instituted by any Noteholder for the enforcement of
the payment of principal of or interest on any Note on or after the respective
due dates expressed in such Note and in this Indenture (or, in the case of
redemption, on or after the Redemption Date).
SECTION 5.14 Waiver of Stay or Extension Laws. The Issuer covenants (to
the extent that it may lawfully do so) that it shall not at any time insist
upon, or plead or in any manner whatsoever, claim or take the benefit or
advantage of, any stay or extension law wherever enacted, now or at any time
hereafter in force, that may affect the covenants or the performance of this
Indenture. The Issuer (to the extent that it may lawfully do so) hereby
expressly waives all benefit or advantage of any such law, and covenants that it
shall not hinder, delay or impede the
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execution of any power herein granted to the Indenture Trustee, but shall suffer
and permit the execution of every such power as though no such law had been
enacted.
SECTION 5.15 Action on Notes. The Indenture Trustee's right to seek and
recover judgment on the Notes or under this Indenture shall not be affected by
the seeking, obtaining or application of any other relief under or with respect
to this Indenture. Neither the lien of this Indenture nor any rights or remedies
of the Indenture Trustee or the Noteholders shall be impaired by the recovery of
any judgment by the Indenture Trustee against the Issuer or by the levy of any
execution under such judgment upon any portion of the Trust Estate or upon any
of the assets of the Issuer. Any money or property collected by the Indenture
Trustee shall be applied in accordance with Section 5.4(b).
SECTION 5.16 Performance and Enforcement of Certain Obligations.
(a) Promptly following a request from the Indenture Trustee to do so
and at the Administrator's expense, the Issuer agrees to take all such lawful
action as the Indenture Trustee may request to compel or secure the performance
and observance by the Seller and the Servicer of their respective obligations to
the Issuer under or in connection with the Trust Sale and Servicing Agreement
and the Pooling and Servicing Agreement or by GMAC of its obligations under or
in connection with the Pooling and Servicing Agreement in accordance with the
terms thereof or by the Swap Counterparty of its obligations under or in
accordance with the Interest Rate Swap in accordance with the terms thereof, and
to exercise any and all rights, remedies, powers and privileges lawfully
available to the Issuer under or in connection with the Trust Sale and Servicing
Agreement, the Pooling and Servicing Agreement and the Interest Rate Swap to the
extent and in the manner directed by the Indenture Trustee, including the
transmission of notices of default on the part of the Seller, the Servicer or
the Swap Counterparty thereunder and the institution of legal or the Swap
Counterparty administrative actions or proceedings to compel or secure
performance by the Seller, the Servicer of their respective obligations under
the Trust Sale and Servicing Agreement, the Pooling and Servicing Agreement and
the Interest Rate Swap.
(b) If an Event of Default has occurred and is continuing, the
Indenture Trustee may, and, at the direction (which direction shall be in
writing or by telephone (confirmed in writing promptly thereafter)) of the
Holders of 66-2/3% of the Outstanding Amount of the Notes shall, exercise all
rights, remedies, powers, privileges and claims of the Issuer against the
Seller, the Servicer or the Swap Counterparty under or in connection with the
Trust Sale and Servicing Agreement, the Pooling and Servicing Agreement or the
Interest Rate Swap, including the right or power to take any action to compel or
secure performance or observance by the Seller or the Servicer of each of their
obligations to the Issuer thereunder and to give any consent, request, notice,
direction, approval, extension or waiver under the Trust Sale and Servicing
Agreement, and any right of the Issuer to take such action shall be suspended.
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(c) The Indenture Trustee shall promptly provide to the Swap
Counterparty written notice of each request for action that is made and
direction received pursuant to this Section 5.16.
(d) If an Event of Default has occurred and is continuing, the
Indenture Trustee may, and, at the direction (which direction shall be in
writing or by telephone (confirmed in writing promptly thereafter)) of the
Holders of 66-2/3% of the Outstanding Amount of the Notes shall, exercise all
rights, remedies, powers, privileges and claims of the Seller against GMAC under
or in connection with the Pooling and Servicing Agreement, including the right
or power to take any action to compel or secure performance or observance by
GMAC of each of its obligations to the Seller thereunder and to give any
consent, request, notice, direction, approval, extension or waiver under the
Pooling and Servicing Agreement, and any right of the Seller to take such action
shall be suspended.
ARTICLE VI
THE INDENTURE TRUSTEE
SECTION 6.1 Duties of Indenture Trustee.
(a) If an Event of Default has occurred and is continuing, the
Indenture Trustee shall exercise the rights and powers vested in it by this
Indenture and use the same degree of care and skill in their exercise as a
prudent person would exercise or use under the circumstances in the conduct of
such person's own affairs.
(b) Except during the continuance of an Event of Default:
(i) the Indenture Trustee undertakes to perform such duties and
only such duties as are specifically set forth in this Indenture and the
Trust Sale and Servicing Agreement and no implied covenants or obligations
shall be read into this Indenture, the Trust Sale and Servicing Agreement
or any other Basic Document against the Indenture Trustee; and
(ii) in the absence of bad faith on its part, the Indenture
Trustee may conclusively rely, as to the truth of the statements and the
correctness of the opinions ex pressed therein, upon certificates or
opinions furnished to the Indenture Trustee and conforming to the
requirements of this Indenture; provided, however, that the Indenture
Trustee shall examine the certificates and opinions to determine whether or
not they conform to the requirements of this Indenture.
(c) The Indenture Trustee may not be relieved from liability for its
own negligent action, its own negligent failure to act or its own wilful
misconduct, except that:
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(i) this Section 6.1(c) does not limit the effect of Section
6.1(b);
(ii) the Indenture Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer unless it is proved
that the Indenture Trustee was negligent in ascertaining the pertinent
facts; and
(iii) the Indenture 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 5.11.
(d) The Indenture Trustee shall not be liable for interest on any money
received by it except as the Indenture Trustee may agree in writing with the
Issuer.
(e) Money held in trust by the Indenture Trustee need not be segregated
from other funds except to the extent required by law or the terms of this
Indenture or the Trust Sale and Servicing Agreement or the Trust Agreement.
(f) No provision of this Indenture shall require the Indenture Trustee
to expend or risk its own funds or otherwise incur financial liability in the
performance of any of its duties hereunder or in the exercise of any of its
rights or powers, if it shall have reasonable grounds to believe that repayments
of such funds or adequate indemnity against such risk or liability is not
reasonably assured to it.
(g) Every provision of this Indenture relating to the Indenture Trustee
shall be subject to the provisions of this Section 6.1 and to the provisions of
the TIA.
SECTION 6.2 Rights of Indenture Trustee.
(a) The Indenture Trustee may rely on any document believed by it to be
genuine and to have been signed or presented by the proper Person. The Indenture
Trustee need not investigate any fact or matter stated in the document.
(b) Before the Indenture Trustee acts or refrains from acting, it may
require an Officer's Certificate or an Opinion of Counsel. The Indenture Trustee
shall not be liable for any action it takes or omits to take in good faith in
reliance on the Officer's Certificate or Opinion of Counsel.
(c) The Indenture Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or through
agents or attorneys or a custodian or nominee, and the Indenture Trustee shall
not be responsible for any misconduct or negligence on the part of, or for the
supervision of, any such agent, attorney, custodian or nominee appointed with
due care by it hereunder.
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(d) The Indenture Trustee shall not be liable for any action it takes
or omits to take in good faith which it believes to be authorized or within its
rights or powers; provided, however, that the Indenture Trustee's conduct does
not constitute wilful misconduct, negligence or bad faith.
(e) The Indenture Trustee may consult with counsel, and the advice or
opinion of counsel with respect to legal matters relating to this Indenture and
the Notes shall be full and complete authorization and protection from liability
in respect to any action taken, omitted or suffered by it hereunder in good
faith and in accordance with the advice or opinion of such counsel.
SECTION 6.3 Indenture Trustee May Own Notes. The Indenture Trustee in
its individual or any other capacity may become the owner or pledgee of Notes
and may otherwise deal with the Issuer, the Servicer or any of their respective
Affiliates with the same rights it would have if it were not Indenture Trustee;
provided, however, that the Indenture Trustee shall comply with Sections 6.10
and 6.11. Any Paying Agent, Note Registrar, co-registrar or co-paying agent may
do the same with like rights.
SECTION 6.4 Indenture Trustee's Disclaimer. The Indenture Trustee shall
not be responsible for and makes no representation as to the validity or
adequacy of this Indenture or the Notes, it shall not be accountable for the
Issuer's use of the proceeds from the Notes, and it shall not be responsible for
any statement of the Issuer in the Indenture or in any document issued in
connection with the sale of the Notes or in the Notes other than the Indenture
Trustee's certificate of authentication.
SECTION 6.5 Notice of Defaults. If a Default occurs and is continuing
and if it is known to a Responsible Officer of the Indenture Trustee, the
Indenture Trustee shall mail to the Swap Counterparty and to each Noteholder
notice of the Default within 90 days after it occurs. Except in the case of a
Default in payment of principal of or interest on any Note, the Indenture
Trustee may withhold the notice if and so long as a committee of its Responsible
Officers in good faith determines that withholding the notice is in the
interests of Noteholders.
SECTION 6.6 Reports by Indenture Trustee to Holders. The Indenture
Trustee shall deliver to each Noteholder the information and documents set forth
in Article VII, and, in addition, all such information with respect to the Notes
as may be required to enable such Holder to prepare its federal and state income
tax returns.
SECTION 6.7 Compensation; Indemnity.
(a) The Issuer shall cause the Servicer pursuant to Section 3.09 of the
Pooling and Servicing Agreement to pay to the Indenture Trustee from time to
time reasonable compensation for its services. The Indenture Trustee's
compensation shall not be limited by any law on compensation of a trustee of an
express trust. The Issuer shall cause the Servicer pursuant to Section 3.09 of
the Pooling and Servicing Agreement to reimburse the Indenture Trustee for all
reasonable out-of-pocket expenses incurred or made by it, including costs of
collection, in addition to the compensation for its
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services. Such expenses shall include the reasonable compensation and expenses,
disbursements and advances of the Indenture Trustee's agents, counsel,
accountants and experts. The Issuer shall cause the Servicer to indemnify the
Indenture Trustee in accordance with Section 6.01 of the Trust Sale and
Servicing Agreement.
(b) The Issuer's obligations to the Indenture Trustee pursuant to this
Section 6.7 shall survive the discharge of this Indenture. When the Indenture
Trustee incurs expenses after the occurrence of a Default specified in Section
5.1(d) or (e) with respect to the Issuer, the expenses are intended to
constitute expenses of administration under Title 11 of the United States Code
or any other applicable federal or state bankruptcy, insolvency or similar law.
SECTION 6.8 Replacement of Indenture Trustee.
(a) The Indenture Trustee may at any time give notice of its intent to
resign by so notifying the Issuer (with a copy to the Swap Counterparty);
provided, however, that no such resignation shall become effective and the
Indenture Trustee shall not resign prior to the time set forth in Section
6.8(c). The Holders of a majority in Outstanding Amount of the Notes may remove
the Indenture Trustee by so notifying the Indenture Trustee and may appoint a
successor Indenture Trustee. Such resignation or removal shall become effective
in accordance with Section 6.8(c). The Issuer shall remove the Indenture Trustee
if:
(i) the Indenture Trustee fails to comply with Section 6.11;
(ii) the Indenture Trustee is adjudged a bankrupt or insolvent;
(iii) a receiver or other public officer takes charge of the
Indenture Trustee or its property; or
(iv) the Indenture Trustee otherwise becomes incapable of acting.
(b) If the Indenture Trustee gives notice of its intent to resign or is
removed or if a vacancy exists in the office of the Indenture Trustee for any
reason (the Indenture Trustee in such event being referred to herein as the
retiring Indenture Trustee), the Issuer shall promptly appoint and designate a
successor Indenture Trustee.
(c) A successor Indenture Trustee shall deliver a written acceptance of
its appointment and designation to the retiring Indenture Trustee and to the
Issuer and shall concurrently deliver a copy of such acceptance to the Swap
Counterparty. Thereupon the resignation or removal of the retiring Indenture
Trustee shall become effective, and the successor Indenture Trustee shall have
all the rights, powers and duties of the Indenture Trustee under this Indenture.
The successor Indenture Trustee shall mail a notice of its succession to
Noteholders. The retiring Indenture Trustee shall promptly transfer all property
held by it as Indenture Trustee to the successor Indenture Trustee.
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(d) If a successor Indenture Trustee does not take office within 60
days after the Indenture Trustee gives notice of its intent to resign or is
removed, the retiring Trustee, the Issuer or the Holders of a majority of the
Outstanding Amount of the Notes may petition any court of competent jurisdiction
for the appointment and designation of a successor Indenture Trustee.
(e) If the Indenture Trustee fails to comply with Section 6.11, any
Noteholder may petition any court of competent jurisdiction for the removal of
the Indenture Trustee and the appointment of a successor Indenture Trustee.
(f) Notwithstanding the replacement of the Indenture Trustee pursuant
to this Section 6.8, the Issuer's obligations under Section 6.7 and the
Servicer's corresponding obligations under the Trust Sale and Servicing
Agreement shall continue for the benefit of the retiring Indenture Trustee.
SECTION 6.9 Merger or Consolidation of Indenture Trustee.
(a) Any corporation into which the Indenture Trustee may be merged or
with which it may be consolidated, or any corporation resulting from any merger
or consolidation to which the Indenture Trustee shall be a party, or any
corporation succeeding to the corporate trust business of the Indenture Trustee,
shall be the successor of the Indenture Trustee under this Indenture; provided,
however, that such corporation shall be eligible under the provisions of Section
6.11, without the execution or filing of any instrument or any further act on
the part of any of the parties to this Indenture, anything in this Indenture to
the contrary notwithstanding.
(b) If at the time such successor or successors by merger or
consolidation to the Indenture Trustee shall succeed to the trusts created by
this Indenture, any of the Notes shall have been authenticated but not
delivered, any such successor to the Indenture Trustee may adopt the certificate
of authentication of any predecessor trustee, and deliver such Notes so
authenticated; and in case at that time any of the Notes shall not have been
authenticated, any successor to the Indenture Trustee may authenticate such
Notes either in the name of any predecessor hereunder or in the name of the
successor to the Indenture Trustee. In all such cases such certificate of
authentication shall have the same full force as is provided anywhere in the
Notes or herein with respect to the certificate of authentication of the
Indenture Trustee.
SECTION 6.10 Appointment of Co-Indenture Trustee or Separate Indenture
Trustee.
(a) Notwithstanding any other provisions of this Indenture, at any
time, for the purpose of meeting any legal requirement of any jurisdiction in
which any part of the Trust Estate or any Financed Vehicle may at the time be
located, the Indenture Trustee shall have the power and may execute and deliver
all instruments to appoint one or more Persons to act as a co-trustee or
co-trustees, or separate trustee or separate trustees, of all or any part of the
Trust Estate, and to vest in such Person or Persons, in such capacity and for
the benefit of the Noteholders, the Swap
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Counterparty and (only to the extent expressly provided herein) the
Certificateholders, such title to the Trust Estate, or any part hereof, and,
subject to the other provisions of this Section 6.10, such powers, duties,
obligations, rights and trusts as the Indenture Trustee may consider necessary
or desirable. No co-trustee or separate trustee hereunder shall be required to
meet the terms of eligibility as a successor trustee under Section 6.11 and no
notice to Noteholders of the appointment of any co-trustee or separate trustee
shall be required under Section 6.8.
(b) Every 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 Indenture Trustee shall be conferred or imposed upon and
exercised or performed by the Indenture 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 Indenture
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 Indenture Trustee shall be incompetent or unqualified to perform such
act or acts, in which event such rights, powers, duties and obligations
(including the holding of title to the Trust Estate 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
Indenture Trustee;
(ii) no trustee hereunder shall be personally liable by reason of
any act or omission of any other trustee hereunder; and
(iii) the Indenture Trustee 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 Indenture 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 Indenture and
the conditions of this Article VI. 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
Indenture Trustee or separately, as may be provided therein, subject to all the
provisions of this Indenture, specifically including every provision of this
Indenture relating to the conduct of, affecting the liability of, or affording
protection to, the Indenture Trustee. Every such instrument shall be filed with
the Indenture Trustee.
(d) Any separate trustee or co-trustee may at any time constitute the
Indenture Trustee, 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 Indenture 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 Indenture Trustee, to the extent permitted by law, without the
appointment of a new or successor trustee.
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SECTION 6.11 Eligibility; Disqualification. The Indenture Trustee shall
at all times satisfy the requirements of TIA ss. 310(a). The Indenture Trustee
shall have a combined capital and surplus of at least $50,000,000 as set forth
in its most recent published annual report of condition and (unless waived by
Moody's Investors Service, Inc.) it shall have a long term unsecured debt rating
of Baa3 or better by Moody's Investors Service, Inc. The Indenture Trustee shall
comply with TIA ss. 310(b); provided, however, that there shall be excluded from
the operation of TIA ss. 310(b)(1) any indenture or indentures under which other
securities of the Issuer are outstanding if the requirements for such exclusion
set forth in TIA ss. 310(b)(1) are met.
SECTION 6.12 Preferential Collection of Claims Against Issuer. The
Indenture Trustee shall comply with TIA ss. 311(a), excluding any creditor
relationship listed in TIA ss. 311(b). A trustee who has resigned or been
removed shall be subject to TIA ss. 311(a) to the extent indicated.
SECTION 6.13 Representations and Warranties of Indenture Trustee. The
Indenture Trustee represents and warrants as of the Closing Date that:
(a) the Indenture Trustee (i) is a national banking association duly
organized, validly existing and in good standing under the laws of the United
States of America and (ii) satisfies the eligibility criteria set forth in
Section 6.11;
(b) the Indenture Trustee has full power, authority and legal right to
execute, deliver and perform this Indenture, and has taken all necessary action
to authorize the execution, delivery and performance by it of this Indenture;
(c) the execution, delivery and performance by the Indenture Trustee of
this Indenture (i) shall not violate any provision of any law or regulation
governing the banking and trust powers of the Indenture Trustee or any order,
writ, judgment or decree of any court, arbitrator, or governmental authority
applicable to the Indenture Trustee or any of its assets, (ii) shall not violate
any provision of the corporate charter or by-laws of the Indenture 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 Estate 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 Indenture Trustee's
performance or ability to perform its duties under this Indenture or on the
transactions contemplated in this Indenture;
(d) the execution, delivery and performance by the Indenture Trustee of
this Indenture 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 or agency regulating the
banking and corporate trust activities of the Indenture Trustee; and
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(e) this Indenture has been duly executed and delivered by the
Indenture Trustee and constitutes the legal, valid and binding agreement of the
Indenture Trustee, enforceable in accordance with its terms.
SECTION 6.14 Indenture Trustee May Enforce Claims Without Possession of
Notes. All rights of action and claims under this Indenture or the Notes may be
prosecuted and enforced by the Indenture Trustee without the possession of any
of the Notes or the production thereof in any proceeding relating thereto, and
any such proceeding instituted by the Indenture Trustee shall be brought in its
own name as Indenture Trustee. Any recovery of judgment shall, after provision
for the payment of the reasonable compensation, expenses, disbursements and
advances of the Indenture Trustee, its agents and counsel, be for the ratable
benefit of the Noteholders and (only to the extent expressly provided herein)
the Certificateholders in respect of which such judgment has been obtained.
SECTION 6.15 Suit for Enforcement. If an Event of Default shall occur
and be continuing, the Indenture Trustee, in its discretion may, subject to the
provisions of Section 6.1, proceed to protect and enforce its rights and the
rights of the Noteholders under this Indenture by Proceeding whether for the
specific performance of any covenant or agreement contained in this Indenture or
in aid of the execution of any power granted in this Indenture or for the
enforcement of any other legal, equitable or other remedy as the Indenture
Trustee, being advised by counsel, shall deem most effectual to protect and
enforce any of the rights of the Indenture Trustee or the Noteholders.
SECTION 6.16 Rights of Noteholders to Direct Indenture Trustee. Holders
of Notes evidencing not less than a majority of the Outstanding Amount of the
Notes shall have the right to direct the time, method and place of conducting
any Proceeding for any remedy available to the Indenture Trustee or exercising
any trust or power conferred on the Indenture Trustee; provided, however, that
subject to Section 6.1, the Indenture Trustee shall have the right to decline to
follow any such direction if the Indenture Trustee being advised by counsel
determines that the action so directed may not lawfully be taken, or if the
Indenture Trustee in good faith shall, by a Responsible Officer, determine that
the proceedings so directed would be illegal or subject it to personal liability
or be unduly prejudicial to the rights of Noteholders not parties to such
direction; and provided, further, that nothing in this Indenture shall impair
the right of the Indenture Trustee to take any action deemed proper by the
Indenture Trustee and which is not inconsistent with such direction by the
Noteholders.
ARTICLE VII
NOTEHOLDERS' LISTS AND REPORTS
SECTION 7.1 Issuer To Furnish Indenture Trustee Names and Addresses of
Noteholders. The Issuer shall furnish or cause to be furnished by the Servicer
to the Indenture Trustee (a) not more than five days before each Distribution
Date a list, in such form as the Indenture
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Trustee may reasonably require, of the names and addresses of the Holders of
Notes as of the close of business on the related Record Date, and (b) at such
other times as the Indenture Trustee may request in writing, within 14 days
after receipt by the Issuer of any such request, a list of similar form and
content as of a date not more than 10 days prior to the time such list is
furnished; provided, however, that so long as the Indenture Trustee is the Note
Registrar, no such list shall be required to be furnished.
SECTION 7.2 Preservation of Information, Communications to Noteholders.
(a) The Indenture Trustee shall preserve, in as current a form as is
reasonably practicable, the names and addresses of the Holders of Notes
contained in the most recent list furnished to the Indenture Trustee as provided
in Section 7.1 and the names and addresses of Holders of Notes received by the
Indenture Trustee in its capacity as Note Registrar. The Indenture Trustee may
destroy any list furnished to it as provided in such Section 7.1 upon receipt of
a new list so furnished.
(b) Noteholders may communicate pursuant to TIA ss. 312(b) with other
Noteholders with respect to their rights under this Indenture or under the
Notes.
(c) The Issuer, the Indenture Trustee and the Note Registrar shall have
the protection of TIA ss. 312(c).
SECTION 7.3 Reports by Issuer.
(a) The Issuer shall:
(i) file with the Indenture Trustee and send to the Swap
Counterparty, within 15 days after the Issuer is required to file the same
with the Commission, copies of the annual reports and of the information,
documents and other reports (or copies of such portions of any of the
foregoing as the Commission may from time to time by rules and regulations
prescribe) which the Issuer may be required to file with the Commission
pursuant to Section 13 or 15(d) of the Exchange Act;
(ii) file with the Indenture Trustee and the Commission in
accordance with rules and regulations prescribed from time to time by the
Commission such additional information, documents and reports with respect
to compliance by the Issuer with the conditions and covenants of this
Indenture as may be required from time to time by such rules and
regulations and shall provide a copy of all such information, documents and
reports to the Swap Counterparty; and
(iii) supply to the Indenture Trustee (and the Indenture Trustee
shall transmit by mail to all Noteholders described in TIA ss. 313(c)) such
summaries of any information, documents and reports required to be filed by
the Issuer pursuant to clauses (i)
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and (ii) of this Section 7.3(a) as may be required by rules and regulations
prescribed from time to time by the Commission.
(b) Unless the Issuer otherwise determines, the fiscal year of the
Issuer shall end on December 31 of such year.
SECTION 7.4 Reports by Trustee.
(a) If required by TIA ss. 313(a), within 60 days after each February
1, beginning with February 1, 2000, the Indenture Trustee shall mail to each
Noteholder as required by TIA ss. 313(c) a brief report dated as of such date
that complies with TIA ss. 313(a). The Indenture Trustee also shall comply with
TIA ss. 313(b). A copy of any report delivered pursuant to this Section 7.4(a)
shall, at the time of its mailing to Noteholders, be filed by the Indenture
Trustee with the Commission and each stock exchange, if any, on which the Notes
are listed and be sent to the Swap Counterparty. The Issuer shall notify the
Indenture Trustee if and when the Notes are listed on any stock exchange.
(b) On each Distribution Date the Indenture Trustee shall include with
each payment to each Noteholder a copy of the statement for the related Monthly
Period or Periods applicable to such Distribution Date as required pursuant to
Section 4.09 of the Trust Sale and Servicing Agreement.
ARTICLE VIII
ACCOUNTS, DISBURSEMENTS AND RELEASES
SECTION 8.1 Collection of Money. Except as otherwise expressly
provided herein, the Indenture Trustee may demand payment or delivery of, and
shall receive and collect, directly and without intervention or assistance of
any fiscal agent or other intermediary, all money and other property payable to
or receivable by the Indenture Trustee pursuant to this Indenture and the Trust
Sale and Servicing Agreement. The Indenture Trustee shall apply all such money
received by it as provided in this Indenture. Except as otherwise expressly
provided in this Indenture, if any default occurs in the making of any payment
or performance under any agreement or instrument that is part of the Trust
Estate, the Indenture Trustee may take such action as may be appropriate to
enforce such payment or performance, including the institution and prosecution
of appropriate Proceedings. Any such action shall be without prejudice to any
right to claim a Default or Event of Default under this Indenture and any right
to proceed thereafter as provided in Article V.
SECTION 8.2 Designated Accounts; Payments.
(a) On or prior to the Closing Date, the Issuer shall cause the
Servicer to establish and maintain, in the name of the Indenture Trustee for the
benefit of the Securityholders and the Swap Counterparty (and with respect to
the Reserve Account, for the benefit of the Servicer) the Designated Accounts as
provided in Articles IV and V of the Trust Sale and Servicing Agreement.
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(b) On or before each Distribution Date, (i) amounts shall be deposited
in the Collection Account as provided in Section 4.06 of the Trust Sale and
Servicing Agreement and (ii) the Aggregate Noteholders' Interest Distributable
Amount and the Aggregate Noteholders' Principal Distributable Amount shall be
transferred from the Collection Account to the Note Distribution Account as and
to the extent provided in Section 4.06 of the Trust Sale and Servicing
Agreement.
(c) On each Distribution Date, the Indenture Trustee shall apply and,
as required, distribute to the Noteholders all amounts on deposit in the Note
Distribution Account (subject to the Servicer's rights under Section 5.03 of the
Trust Sale and Servicing Agreement to Investment Earnings) in the following
order of priority and in the amounts determined as described below:
(i) The Aggregate Noteholders' Interest Distributable Amount shall be
applied to each class of Notes in an amount equal to the sum of
(A) the Noteholders' Interest Distributable Amount for such class
of Notes for such Distribution Date plus
(B) if there was any Noteholders' Interest Carryover Shortfall as
of the close of the immediately preceding Distribution Date, a pro rata
portion thereof determined on the basis of the amount of interest that
was to be applied to such class on such preceding Distribution Date;
provided, however, that if there are not sufficient funds in the Note
Distribution Account to so apply the entire Aggregate Noteholders' Interest
Distributable Amount, the amount available in the Note Distribution Account
for such purpose shall be applied to each class of Notes pro rata on the
basis of the respective amount otherwise to be applied to such class
pursuant to this clause (i). The amount so applied to each class of Notes
shall be paid to the Holders thereof on such Distribution Date.
(ii) Unless otherwise provided in clause (iii) below, an amount equal
to the Aggregate Noteholders' Principal Distributable Amount (or such
lesser amount as has been deposited in the Note Distribution Account
pursuant to Section 4.06(c)(v) of the Trust Sale and Servicing Agreement)
shall be applied to each class of Notes in the following amounts and in the
following order of priority and any amount so applied shall be paid on such
Distribution Date to the Holders of such class of Notes:
(A) Except during a Sequential Amortization Period:
(1) On each Distribution Date that is not a Targeted Final
Distribution Date for any class of Class A Notes,
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(x) to the Variable Pay Term Notes as set forth in clause
(iv) below, until the Outstanding Amount attributable to
all Variable Pay Term Notes is reduced to zero, and
(y) the remainder, if any, to the Accumulation Account.
(2) On each Distribution Date that is the Targeted Final
Distribution Date for a class of Class A Notes,
(x) first, to such class of Class A Notes, until the
Outstanding Amount attributable to such class is reduced
to zero;
(y) second, to the Variable Pay Term Notes as set forth in
clause (iv) below, until the Outstanding Amount
attributable to all Variable Pay Term Notes is reduced to
zero; and
(z) the remainder, if any, to the Accumulation Account so
long as any Note is outstanding.
(B) During a Curable Sequential Amortization Period, to the class
of Class A Notes, the Outstanding Amount of which was not reduced to
zero on its Final Targeted Distribution Date and the Variable Pay Term
Notes, pro rata, based upon the Noteholders' Principal Distributable
Amount for such class of Class A Notes and the Noteholders' Principal
Distributable Amount for all Variable Pay Term Notes, as follows:
(1) Payments allocable to such class of Class A Notes shall
be paid to such class until the Outstanding Amount attributable to such class is
reduced to zero; and
(2) Payments allocable to the Variable Pay Term Notes shall
be applied as set forth in clause (iv) below.
(C) During an Extended Sequential Amortization Period, to the Class
A Notes and the Variable Pay Term Notes, pro rata, based upon the
aggregate outstanding amount of all Class A Notes and the aggregate
outstanding amount of all Variable Pay Term Notes as follows:
(1) Payments allocable to the Class A Notes shall be applied
to each class of Class A Notes in the following amounts and in the following
order of priority:
(v) first, to the Class A-1 Notes, until the Outstanding
Amount of the Class A-1 Notes is reduced to zero;
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(w) second, to the Class A-2 Notes, until the Outstanding
Amount of the Class A-2 Notes is reduced to zero;
(x) third, to the Class A-3 Notes, until the Outstanding
Amount of the Class A-3 Notes is reduced to zero;
(y) fourth, to the Class A-4 Notes, until the Outstanding
Amount of the Class A-4 Notes is reduced to zero; and
(z) fifth, to the Class A-5 Notes, until the Outstanding
Amount of the Class A-5 Notes is reduced to zero.
(2) Payments allocable to the Variable Pay Term Notes shall
be applied as set forth in clause (iv) below.
(iii) If the Notes have been declared immediately due and payable
following an Event of Default as provided in Section 5.2, until such time as all
Events of Default have been cured or waived as provided in Section 5.2(b), any
amounts remaining in the Note Distribution Account or the Accumulation Account
after the applications described in Section 8.2(c)(i) and any amounts then on
deposit or deposited into the Note Distribution Account or the Accumulation
Account thereafter shall be applied to the repayment of principal on each class
of the Notes pro rata on the basis of the respective unpaid principal amount of
each such Note and paid to the Holders thereof on such Distribution Date.
(iv) Payments allocable to the Variable Pay Term Notes pursuant to
clause (ii) above shall be applied to each class of Variable Pay Term Notes
sequentially according to date of issuance, such that no payments will be made
to any class of Variable Pay Term Notes until the Outstanding Amounts on all
classes of Variable Pay Term Notes which were issued earlier in time have been
reduced to zero.
SECTION 8.3 General Provisions Regarding Accounts.
(a) So long as no Default or Event of Default shall have occurred and
be continuing, all or a portion of the funds in the Designated Accounts shall be
invested in Eligible Investments and reinvested by the Indenture Trustee upon
Issuer Order, subject to the provisions of Section 5.01(b) of the Trust Sale and
Servicing Agreement. The Issuer shall not direct the Indenture Trustee to make
any investment of any funds or to sell any investment held in any of the
Designated Accounts unless the security interest granted and perfected in such
account shall continue to be perfected in such investment or the proceeds of
such sale, in either case without any further action by any Person, and, in
connection with any direction to the Indenture Trustee to make any such
investment or sale, if requested by the Indenture Trustee, the Issuer shall
deliver to the Indenture Trustee an Opinion of Counsel (a copy of which shall be
delivered to the Swap Counterparty), acceptable to the Indenture Trustee, to
such effect.
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(b) Subject to Section 6.1(c), the Indenture Trustee shall not in any
way be held liable by reason of any insufficiency in any of the Designated
Accounts resulting from any loss on any Eligible Investment included therein
except for losses attributable to the Indenture Trustee's failure to make
payments on such Eligible Investments issued by the Indenture Trustee, in its
commercial capacity as principal obligor and not as trustee, in accordance with
their terms.
(c) If (i) the Issuer shall have failed to give investment directions
for any funds on deposit in the Designated Accounts to the Indenture Trustee by
11:00 a.m., New York City Time (or such other time as may be agreed by the
Issuer and the Indenture Trustee) on any Business Day; or (ii) a Default or
Event of Default shall have occurred and be continuing with respect to the Notes
but the Notes shall not have been declared due and payable pursuant to Section
5.2, or, if such Notes shall have been declared due and payable following an
Event of Default, but amounts collected or receivable from the Trust Estate are
being applied in accordance with Section 5.5 as if there had not been such a
declaration; then the Indenture Trustee shall, to the fullest extent
practicable, invest and reinvest funds in the Designated Accounts in one or more
Eligible Investments selected by the Indenture Trustee.
SECTION 8.4 Release of Trust Estate.
(a) Subject to the payment of its fees and expenses pursuant to Section
6.7, the Indenture Trustee may, and when required by the provisions of this
Indenture shall, execute instruments to release property from the lien of this
Indenture, or convey the Indenture Trustee's interest in the same, in a manner
and under circumstances that are consistent with the provisions of this
Indenture. No party relying upon an instrument executed by the Indenture Trustee
as provided in this Article VIII shall be bound to ascertain the Indenture
Trustee's authority, inquire into the satisfaction of any conditions precedent
or see to the application of any monies.
(b) The Indenture Trustee shall, at such time as there are no Notes
Outstanding and all sums due to the Indenture Trustee pursuant to Section 6.7
have been paid and all amounts owing under the Interest Rate Swap have been
paid, release any remaining portion of the Trust Estate that secured the Notes
and the Interest Rate Swap from the lien of this Indenture and release to the
Issuer or any other Person entitled thereto any funds then on deposit in the
Designated Accounts. The Indenture Trustee shall release property from the lien
of this Indenture pursuant to this Section 8.4(b) only upon receipt by it (with
copies to the Swap Counterparty) of an Issuer Request accompanied by
confirmation that all amounts owing under the Interest Rate Swap have been paid
and an Officer's Certificate, an Opinion of Counsel and (if required by the TIA)
Independent Certificates in accordance with TIA ss.ss. 314(c) and 314(d)(1)
meeting the applicable requirements of Section 11.1.
SECTION 8.5 Opinion of Counsel. The Indenture Trustee shall receive at
least seven days' notice when requested by the Issuer to take any action
pursuant to Section 8.4(a), accompanied by copies of any instruments involved,
and the Indenture Trustee shall also require as a condition to such action, an
Opinion of Counsel and a Materiality Opinion, in form and substance
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satisfactory to the Indenture Trustee, stating the legal effect of any such
action, outlining the steps required to complete the same, and concluding that
all conditions precedent to the taking of such action have been complied with
and such action shall not materially and adversely impair the security for the
Notes or the rights of the Noteholders or the Swap Counterparty in contravention
of the provisions of this Indenture; provided, however, that such Opinion of
Counsel and Materiality Opinion shall not be required to express an opinion as
to the fair value of the Trust Estate. Counsel rendering any such opinion may
rely, without independent investigation, on the accuracy and validity of any
certificate or other instrument delivered to the Indenture Trustee in connection
with any such action.
ARTICLE IX
SUPPLEMENTAL INDENTURES
SECTION 9.1 Supplemental Indentures Without Consent of Noteholders.
(a) Without the consent of the Holders of any Notes or the Swap
Counterparty but with prior notice to the Swap Counterparty and to the Rating
Agencies, the Issuer and the Indenture Trustee, when authorized by an Issuer
Order, at any time and from time to time, may enter into one or more indentures
supplemental hereto (which shall conform to the provisions of the Trust
Indenture Act as in force at the date of the execution thereof), in form
satisfactory to the Indenture Trustee, for any of the following purposes:
(i) to correct or amplify the description of any property at any
time subject to the lien of this Indenture, or better to assure, convey and
confirm unto the Indenture Trustee any property subject or required to be
subjected to the lien of this Indenture, or to subject to additional
property to the lien of this Indenture;
(ii) to evidence the succession, in compliance with Section 3.10
and the applicable provisions hereof, of another Person to the Issuer, and
the assumption by any such successor of the covenants of the Issuer
contained herein and in the Notes contained;
(iii) to add to the covenants of the Issuer, for the benefit of the
Securityholders or to surrender any right or power herein conferred upon
the Issuer;
(iv) to convey, transfer, assign, mortgage or pledge any property
to or with the Indenture Trustee;
(v) to cure any ambiguity, to correct or supplement any provision
herein or in any supplemental indenture which may be inconsistent with any
other provision herein or in any supplemental indenture or in any other
Basic Document;
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(vi) to evidence and provide for the acceptance of the appointment
hereunder by a successor or additional trustee with respect to the Notes
and to add to or change any of the provisions of this Indenture as shall be
necessary to facilitate the administration of the trusts hereunder by more
than one trustee, pursuant to the requirements of Article VI; or
(vii) to modify, eliminate or add to the provisions of this
Indenture to such extent as shall be necessary to effect the qualification
of this Indenture under the TIA or under any similar federal statute
hereafter enacted and to add to this Indenture such other provisions as may
be expressly required by the TIA, and the Indenture Trustee is hereby
authorized to join in the execution of any such supplemental indenture and
to make any further appropriate agreements and stipulations that may be
therein contained.
(b) The Issuer and the Indenture Trustee, when authorized by an Issuer
Order, may, also without the consent of any of the Noteholders but with prior
notice to the Rating Agencies and the Swap Counterparty, at any time and from
time to time enter into one or more indentures supplemental hereto for the
purpose of adding any provisions to, changing in any manner, or eliminating any
of the provisions of, this Indenture or modifying in any manner the rights of
the Note holders under this Indenture; provided, however, that such action shall
not, as evidenced by an Opinion of Counsel, adversely affect in any material
respect the interests of any Noteholder.
(c) No supplemental indenture shall be entered into under this Section
9.1 unless either (i) such supplemental indenture will, as evidenced by a
Materiality Opinion, have no material and adverse effect on the interest of the
Swap Counterparty or (ii) the written consent of the Swap Counterparty is
obtained.
SECTION 9.2 Supplemental Indentures With Consent of Noteholders.
(a) The Issuer and the Indenture Trustee, when authorized by an Issuer
Order, also may, with prior notice to the Swap Counterparty and to the Rating
Agencies and with the consent of the Holders of not less than a majority of the
Outstanding Amount of the Notes, by Act of such Holders delivered to the Issuer
and the Indenture Trustee, and (unless the Interest Rate Swap is no longer in
effect and all amounts due to the Swap Counterparty have been fully paid) the
Swap Counterparty (unless such amendment does not, as evidenced by a Materiality
Opinion, materially and adversely affect the interests of the Swap Counterparty)
enter into an indenture or indentures supple mental hereto for the purpose of
adding any provisions to, changing in any manner, or eliminating any of the
provisions of, this Indenture or of modifying in any manner the rights of the
Noteholders under this Indenture; provided, however, that no such supplemental
indenture shall, without the consent of the Holder of each Outstanding Note
affected thereby:
(i) change the due date of any instalment of principal of or
interest on any Note, or reduce the principal amount thereof, the interest
rate applicable thereto, or the Redemption Price with respect thereto,
change any place of payment where, or the coin or
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currency in which, any Note or any interest thereon is payable, or impair
the right to institute suit for the enforcement of the provisions of this
Indenture requiring the application of funds available therefor, as
provided in Article V, to the payment of any such amount due on the Notes
on or after the respective due dates thereof (or, in the case of
redemption, on or after the Redemption Date);
(ii) reduce the percentage of the Outstanding Amount of the Notes,
the consent of the Holders of which is required for any such supplemental
indenture, or the consent of the Holders of which is required for any
waiver of compliance with certain provisions of this Indenture or certain
defaults hereunder and their consequences as provided for in this
Indenture;
(iii) modify or alter the provisions of the proviso to the
definition of the term "Outstanding";
(iv) reduce the percentage of the Outstanding Amount of the Notes
required to direct the Indenture Trustee to sell or liquidate the Trust
Estate pursuant to Section 5.4 if the proceeds of such sale would be
insufficient to pay the principal amount of and accrued but unpaid interest
on the Outstanding Notes;
(v) modify any provision of this Section 9.2 to decrease the
required minimum percentage necessary to approve any amendments to any
provisions of this Indenture or any of the Basic Documents;
(vi) modify any of the provisions of this Indenture in such manner
as to affect the calculation of the amount of any payment of interest or
principal due on any Note on any Distribution Date (including the
calculation of any of the individual components of such calculation), or
modify or alter the provisions of the Indenture regarding the voting of
Notes held by the Issuer, the Seller or any Affiliate of either of them; or
(vii) permit the creation of any Lien ranking prior to or on a
parity with the lien of this Indenture with respect to any part of the
Trust Estate or, except as otherwise permitted or contemplated herein,
terminate the lien of this Indenture on any property at any time subject
thereto or deprive the Holder of any Note of the security afforded by the
lien of this Indenture.
(b) The Indenture Trustee may in its discretion determine whether or
not any Notes would be affected (such that the consent of each Noteholder would
be required) by any supplemental indenture proposed pursuant to this Section 9.2
and any such determination shall be binding upon the Holders of all Notes,
whether authenticated and delivered thereunder before or after the date upon
which such supplemental indenture becomes effective. The Indenture Trustee shall
not be liable for any such determination made in good faith.
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(c) It shall be sufficient if an Act of Noteholders approves the
substance, but not the form, of any proposed supplemental indenture.
(d) Promptly after the execution by the Issuer and the Indenture
Trustee of any supplemental indenture pursuant to this Section 9.2, the
Indenture Trustee shall mail to the Swap Counterparty and Noteholders to which
such amendment or supplemental indenture relates a notice setting forth in
general terms the substance of such supplemental indenture. Any failure of the
Indenture Trustee to mail such notice, or any defect therein, shall not,
however, in any way impair or affect the validity of any such supplemental
indenture.
SECTION 9.3 Execution of Supplemental Indentures. In executing, or
permitting the additional trusts created by, any supplemental indenture
permitted by this Article IX or the modifications thereby of the trusts created
by this Indenture, the Indenture Trustee shall be entitled to receive, and
subject to Sections 6.1 and 6.2, shall be fully protected in relying upon, an
Opinion of Counsel stating that the execution of such supplemental indenture is
authorized or permitted by this Indenture. The Indenture Trustee may, but shall
not be obligated to, enter into any such supple mental indenture that affects
the Indenture Trustee's own rights, duties, liabilities or immunities under this
Indenture or otherwise. The Indenture Trustee shall provide a fully executed
copy of any supplemental indentures to the Swap Counterparty.
SECTION 9.4 Effect of Supplemental Indenture. Upon the execution of any
supplemental indenture pursuant to the provisions hereof, this Indenture shall
be and be deemed to be modified and amended in accordance therewith with respect
to the Notes affected thereby, and the respective rights, limitations of rights,
obligations, duties, liabilities and immunities under this Indenture of the
Indenture Trustee, the Issuer and the Noteholders shall thereafter be
determined, exercised and enforced hereunder subject in all respects to such
modifications and amendments, and all the terms and conditions of any such
supplemental indenture shall be and be deemed to be part of the terms and
conditions of this Indenture for any and all purposes.
SECTION 9.5 Conformity with Trust Indenture Act. Every amendment of
this Indenture and every supplemental indenture executed pursuant to this
Article IX shall conform to the requirements of the TIA as then in effect so
long as this Indenture shall then be qualified under the TIA.
SECTION 9.6 Reference in Notes to Supplemental Indentures. Notes
authenticated and delivered after the execution of any supplemental indenture
pursuant to this Article IX may, and if required by the Indenture Trustee shall,
bear a notation in form approved by the Indenture Trustee as to any matter
provided for in such supplemental indenture. If the Issuer or the Indenture
Trustee shall so determine, new Notes so modified as to conform, in the opinion
of the Indenture Trustee and the Issuer, to any such supplemental indenture may
be prepared and executed by the Issuer and authenticated and delivered by the
Indenture Trustee in exchange for Outstanding Notes of the same class.
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ARTICLE X
REDEMPTION OF NOTES
SECTION 10.1 Redemption. The Redeemable Notes are subject to redemption
in whole, but not in part, upon the exercise by the Servicer of its option to
purchase the Receivables pursuant to Section 8.01 of the Trust Sale and
Servicing Agreement. The date on which such redemption shall occur is the
Distribution Date following the Optional Purchase Date identified by Servicer in
its notice of exercise of such purchase option (the "Redemption Date"). The
purchase price for the Redeemable Notes shall be equal to the applicable
Redemption Price, provided the Issuer has available funds sufficient to pay such
amount. The Servicer or the Issuer shall furnish the Rating Agencies notice of
such redemption. If the Redeemable Notes are to be redeemed pursuant to this
Section 10.1, the Servicer or the Issuer shall furnish notice thereof to the
Indenture Trustee not later than 25 days prior to the Redemption Date and the
Indenture Trustee (based on such notice) shall withdraw from the Collection
Account and deposit into the Note Distribution Account, on the Redemption Date,
the aggregate Redemption Price of the Redeemable Notes, whereupon all such Notes
shall be due and payable on the Redemption Date.
SECTION 10.2 Form of Redemption Notice.
(a) Notice of redemption of the Redeemable Notes under Section 10.1
shall be given by the Indenture Trustee by first-class mail, postage prepaid,
mailed not less than five days prior to the applicable Redemption Date to each
Noteholder of Redeemable Notes of record at such Noteholder's address appearing
in the Note Register.
(b) All notices of redemption shall state:
(i) the Redemption Date;
(ii) the applicable Redemption Price; and
(iii) the place where Redeemable Notes are to be surrendered for
payment of the Redemption Price (which shall be the Agency Office of the
Indenture Trustee to be maintained as provided in Section 3.2).
(c) Notice of redemption of the Redeemable Notes shall be given by the
Indenture Trustee in the name and at the expense of the Issuer. Failure to give
notice of redemption, or any defect therein, to any Holder of any Redeemable
Note shall not impair or affect the validity of the redemption of any other
Redeemable Note.
SECTION 10.3 Notes Payable on Redemption Date.
The Redeemable Notes shall, following notice of redemption as required
by Section 10.2, on the Redemption Date cease to be Outstanding for purposes of
this Indenture and shall
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thereafter represent only the right to receive the applicable Redemption Price
and (unless the Issuer shall default in the payment of such Redemption Price) no
interest shall accrue on such Redemption Price for any period after the date to
which accrued interest is calculated for purposes of calculating such Redemption
Price.
ARTICLE XI
MISCELLANEOUS
SECTION 11.1 Compliance Certificates and Opinions, etc.
(a) Upon any application or request by the Issuer to the Indenture
Trustee to take any action under any provision of this Indenture, the Issuer
shall furnish to the Indenture Trustee: (i) an Officer's Certificate stating
that all conditions precedent, if any, provided for in this Indenture relating
to the proposed action have been complied with, (ii) an Opinion of Counsel
stating that in the opinion of such counsel all such conditions precedent, if
any, have been complied with, and (iii) (if required by the TIA) an Independent
Certificate from a firm of certified public accountants meeting the applicable
requirements of this Section 11.1, except that, in the case of any such
application or request as to which the furnishing of such documents is
specifically required by any provision of this Indenture, no additional
certificate or opinion need be furnished. Every certificate or opinion with
respect to compliance with a condition or covenant provided for in this
Indenture shall include:
(i) a statement that each signatory of such certificate or
opinion has read or has caused to be read such covenant or condition and
the definitions herein relating thereto;
(ii) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(iii) a statement that, in the judgment of each such signatory,
such signatory has made such examination or investigation as is necessary
to enable such signatory to express an informed opinion as to whether or
not such covenant or condition has been complied with; and
(iv) a statement as to whether, in the opinion of each such
signatory, such condition or covenant has been complied with.
(b) (i) Prior to the deposit with the Indenture Trustee of any
Collateral or other property or securities that is to be made the basis for the
release of any property or securities subject to the lien of this Indenture, the
Issuer shall, in addition to any obligation imposed in Section 11.1(a) or
elsewhere in this Indenture, furnish to the Indenture Trustee an Officer's
Certificate
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certifying or stating the opinion of each Person signing such certificate as to
the fair value (within 90 days of such deposit) to the Issuer of the Collateral
or other property or securities to be so deposited.
(ii) Whenever the Issuer is required to furnish to the Indenture
Trustee an Officer's Certificate certifying or stating the opinion of any
signer thereof as to the matters de scribed in clause (b)(i) above, the
Issuer shall also deliver to the Indenture Trustee an Independent
Certificate as to the same matters, if the fair value to the Issuer of the
securities to be so deposited and of all other such securities made on the
basis of any such withdrawal or release since the commencement of the then
current fiscal year of the Issuer, as set forth in the certificates
delivered pursuant to clause (i) above and this clause (b)(ii), is 10% or
more of the Outstanding Amount of the Notes, but such a certificate need
not be furnished with respect to any securities so deposited, if the fair
value thereof to the Issuer as set forth in the related Officer's
Certificate is less than $25,000 or less than one percent of the
Outstanding Amount of the Notes.
(iii) Other than with respect to the release of any Warranty
Receivables, Administrative Receivables or Liquidating Receivables,
whenever any property or securities are to be released from the lien of
this Indenture, the Issuer shall also furnish to the Indenture Trustee an
Officer's Certificate certifying or stating the opinion of each Person
signing such certificate as to the fair value (within 90 days of such
release) of the property or securities proposed to be released and stating
that in the opinion of such Person the proposed release will not impair the
security under this Indenture in contravention of the provisions hereof.
(iv) Whenever the Issuer is required to furnish to the Indenture
Trustee an Officer's Certificate certifying or stating the opinion of any
signatory thereof as to the matters described in clause (b)(iii) above, the
Issuer shall also furnish to the Indenture Trustee an Independent
Certificate as to the same matters if the fair value of the property or
securities and of all other property, other than Warranty Receivables,
Administrative Receivables and Liquidating Receivables, or securities
released from the lien of this Indenture since the commencement of the then
current calendar year, as set forth in the certificates required by clause
(b)(iii) above and this clause (b)(iv), equals 10% or more of the
Outstanding Amount of the Notes, but such certificate need not be furnished
in the case of any release of property or securities if the fair value
thereof as set forth in the related Officer's Certificate is less than
$25,000 or less than one percent of the then Outstanding Amount of the
Notes.
(v) Notwithstanding Section 2.9 or any other provision of this
Section 11.1, the Issuer may (A) collect, liquidate, sell or otherwise
dispose of Receivables as and to the extent permitted or required by the
Basic Documents, (B) make cash payments out of the Designated Accounts and
the Certificate Distribution Account as and to the extent permitted or
required by the Basic Documents and (C) take any other action not
inconsistent with the TIA.
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SECTION 11.2 Form of Documents Delivered to Indenture Trustee.
(a) In any case where several matters are required to be certified by,
or covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
(b) Any certificate or opinion of an Authorized Officer of the Issuer
may be based, insofar as it relates to legal matters, upon a certificate or
opinion of, or representations by, counsel, unless such officer knows, or in the
exercise of reasonable care should know, that any certificate, opinion or
representation with respect to the matters upon which his certificate or opinion
is based is erroneous. Any such certificate of an Authorized Officer or Opinion
of Counsel may be based, insofar as it relates to factual matters, upon a
certificate or opinion of, or representations by, an officer or officers of the
Servicer, the Seller, the Issuer or the Administrator, stating that the
information with respect to such factual matters is in the possession of the
Servicer, the Seller, the Issuer or the Administrator, unless such counsel
knows, or in the exercise of reasonable care should know, that the certificate
or opinion or representations with respect to such matters are erroneous.
(c) Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
(d) Whenever in this Indenture, in connection with any application or
certificate or report to the Indenture Trustee, it is provided that the Issuer
shall deliver any document as a condition of the granting of such application,
or as evidence of the Issuer's compliance with any term hereof, it is intended
that the truth and accuracy, at the time of the granting of such application or
at the effective date of such certificate or report (as the case may be), of the
facts and opinions stated in such document shall in such case be conditions
precedent to the right of the Issuer to have such application granted or to the
sufficiency of such certificate or report. The foregoing shall not, however, be
construed to affect the Indenture Trustee's right to rely upon the truth and
accuracy of any statement or opinion contained in any such document as provided
in Article VI.
SECTION 11.3 Acts of Noteholders.
(a) Any request, demand, authorization, direction, notice, consent,
waiver or other action provided by this Indenture to be given or taken by
Noteholders or a class of Noteholders may be embodied in and evidenced by one or
more instruments of substantially similar tenor signed by such Noteholders in
person or by agents duly appointed in writing; and except as herein otherwise
expressly provided such action shall become effective when such instrument or
instruments are delivered to the Indenture Trustee, and, where it is hereby
expressly required, to the Issuer. Such instrument or instruments (and the
action embodied therein and evidenced thereby) are herein
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sometimes referred to as the "Act" of the Noteholders signing such instrument or
instruments. Proof of execution of any such instrument or of a writing
appointing any such agent shall be sufficient for any purpose of this Indenture
and (subject to Section 6.1) conclusive in favor of the Indenture Trustee and
the Issuer, if made in the manner provided in this Section 11.3.
(b) The fact and date of the execution by any person of any such
instrument or writing may be proved in any manner that the Indenture Trustee
deems sufficient.
(c) The ownership of Notes shall be proved by the Note Register.
(d) Any request, demand, authorization, direction, notice, consent,
waiver or other action by the Holder of any Notes (or any one or more
Predecessor Notes) shall bind the Holder of every Note issued upon the
registration thereof or in exchange therefor or in lieu thereof, in respect of
anything done, omitted or suffered to be done by the Indenture Trustee or the
Issuer in reliance thereon, whether or not notation of such action is made upon
such Note.
SECTION 11.4 Notices, etc., to Indenture Trustee, Issuer Swap
Counterparty and Rating Agencies. Any request, demand, authorization, direction,
notice, consent, waiver or Act of Noteholders or other documents provided or
permitted by this Indenture to be made upon, given or furnished to or filed
with:
(a) the Indenture Trustee by any Noteholder or by the Issuer shall be
sufficient for every purpose hereunder if made, given, furnished or filed in
writing to or with the Indenture Trustee at its Corporate Trust Office, or
(b) the Issuer by the Indenture Trustee or by any Noteholder shall be
sufficient for every purpose hereunder if in writing and either sent by
electronic facsimile transmission (with hard copy to follow via first class
mail) or mailed, by certified mail, return receipt requested to the Issuer and
the Owner Trustee each at the address specified in Appendix B to the Trust Sale
and Servicing Agreement.
The Issuer shall promptly transmit any notice received by it from the
Noteholders to the Indenture Trustee and the Swap Counterparty. The Indenture
Trustee shall likewise promptly transmit any notice received by it from the
Noteholders to the Issuer and the Swap Counterparty and from the Swap
Counterparty to the Issuer.
(c) Notices required to be given to the Rating Agencies by the Issuer,
the Swap Counterparty, the Indenture Trustee or the Owner Trustee shall be
delivered as specified in Appendix B to the Trust Sale and Servicing Agreement.
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SECTION 11.5 Notices to Noteholders; Waiver.
(a) Where this Indenture provides for notice to Noteholders of any
event, such notice shall be sufficiently given (unless otherwise herein
expressly provided) if it is in writing and mailed, first-class, postage prepaid
to each Noteholder affected by such event, at such Person's address as it
appears on the Note Register, not later than the latest date, and not earlier
than the earliest date, prescribed for the giving of such notice. If notice to
Noteholders is given by mail, neither the failure to mail such notice nor any
defect in any notice so mailed to any particular Note holder shall affect the
sufficiency of such notice with respect to other Noteholders, and any notice
that is mailed in the manner herein provided shall conclusively be presumed to
have been duly given regardless of whether such notice is in fact actually
received.
(b) Where this Indenture provides for notice in any manner, such notice
may be waived in writing by any Person entitled to receive such notice, either
before or after the event, and such waiver shall be the equivalent of such
notice. Waivers of notice by Noteholders shall be filed with the Indenture
Trustee but such filing shall not be a condition precedent to the validity of
any action taken in reliance upon such a waiver.
(c) In case, by reason of the suspension of regular mail service as a
result of a strike, work stoppage or similar activity, it shall be impractical
to mail notice of any event of Noteholders when such notice is required to be
given pursuant to any provision of this Indenture, then any manner of giving
such notice as shall be satisfactory to the Indenture Trustee shall be deemed to
be a sufficient giving of such notice.
(d) Where this Indenture provides for notice to the Rating Agencies,
failure to give such notice shall not affect any other rights or obligations
created hereunder, and shall not under any circumstance constitute an Event of
Default.
SECTION 11.6 Alternate Payment and Notice Provisions. Notwithstanding
any provision of this Indenture or any of the Notes to the contrary, the Issuer
may enter into any agreement with any Holder of a Note providing for a method of
payment, or notice by the Indenture Trustee or any Paying Agent to such Holder,
that is different from the methods provided for in this Indenture for such
payments or notices. The Issuer shall furnish to the Indenture Trustee a copy of
each such agreement and the Indenture Trustee shall cause payments to be made
and notices to be given in accordance with such agreements.
SECTION 11.7 Conflict with Trust Indenture Act.
(a) If any provision hereof limits, qualifies or conflicts with another
provision hereof that is required to be included in this Indenture by any of the
provisions of the TIA, such required provision shall control.
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(b) The provisions of TIA ss.ss. 310 through 317 that impose duties on
any Person (including the provisions automatically deemed included herein unless
expressly excluded by this Indenture) are a part of and govern this Indenture,
whether or not physically contained herein.
SECTION 11.8 Effect of Headings and Table of Contents. The Article and
Section headings herein and the Table of Contents are for convenience only and
shall not affect the construction hereof.
SECTION 11.9 Successors and Assigns.
(a) All covenants and agreements in this Indenture and the Notes by the
Issuer shall bind its successors and assigns, whether so expressed or not.
(b) All covenants and agreements of the Indenture Trustee in this
Indenture shall bind its successors and assigns, whether so expressed or not.
SECTION 11.10 Separability.
In case any provision in this Indenture or in the Notes shall be
invalid, illegal or unenforceable, the validity, legality, and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.
SECTION 11.11 Benefits of Indenture.
Nothing in this Indenture or in the Notes, express or implied, shall
give to any Person, other than the parties hereto and their successors
hereunder, and to the extent expressly provided herein, the Noteholders, the
Certificateholders, the Swap Counterparty and any other party secured hereunder,
and any other Person with an ownership interest in any part of the Trust Estate,
any benefit or any legal or equitable right, remedy or claim under this
Indenture; provided, that the Swap Counterparty shall have no right to institute
any Proceeding, judicial or otherwise, with respect to enforcement of remedies
under Article V of this Indenture upon the occurrence of an Event of Default.
SECTION 11.12 Legal Holidays.
If the date on which any payment is due shall not be a Business Day,
then (notwithstanding any other provision of the Notes or this Indenture)
payment need not be made on such date, but may be made on the next succeeding
Business Day with the same force and effect as if made on the date on which
nominally due, and no interest shall accrue for the period from and after any
such nominal date.
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SECTION 11.13 GOVERNING LAW.
THIS INDENTURE SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF NEW YORK, WITHOUT REFERENCE TO ITS CONFLICT OF LAW PROVISIONS, AND THE
OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN
ACCORDANCE WITH SUCH LAWS.
SECTION 11.14 Counterparts.
This Indenture may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same instrument.
SECTION 11.15 Recording of Indenture.
If this Indenture is subject to recording in any appropriate public
recording offices, such recording is to be effected by the Issuer and at its
expense accompanied by an Opinion of Counsel (which may be counsel to the
Indenture Trustee or any other counsel reasonably acceptable to the Indenture
Trustee) to the effect that such recording is necessary either for the
protection of the Noteholders or any other Person secured hereunder or for the
enforcement of any right or remedy granted to the Indenture Trustee under this
Indenture.
SECTION 11.16 No Recourse.
No recourse may be taken, directly or indirectly, with respect to the
obligations of the Issuer, the Owner Trustee or the Indenture Trustee on the
Notes or under this Indenture or any certificate or other writing delivered in
connection herewith or therewith, against:
(a) the Indenture Trustee or the Owner Trustee in its individual
capacity;
(b) any owner of a beneficial interest in the Issuer; or
(c) any partner, owner, beneficiary, agent, officer, director, employee
or agent of the Indenture Trustee or the Owner Trustee in its individual
capacity, any holder of a beneficial interest in the Issuer, the Owner Trustee
or the Indenture Trustee or of any successor or assign of the Indenture Trustee
or the Owner Trustee in its individual capacity (or any of their successors or
assigns), except as any such Person may have expressly agreed (it being
understood that the Indenture Trustee and the Owner Trustee have no such
obligations in their individual capacity) and except that any such partner,
owner or beneficiary shall be fully liable, to the extent provided by applicable
law, for any unpaid consideration for stock, unpaid capital contribution or
failure to pay any instalment or call owing to such entity. For all purposes of
this Indenture, in the performance of any duties or
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obligations of the Issuer hereunder, the Owner Trustee shall be subject to, and
entitled to the benefits of, the terms and provisions of Articles VI, VII and
VIII of the Trust Agreement.
SECTION 11.17 No Petition.
The Indenture Trustee, by entering into this Indenture, and each
Noteholder and Note Owner, by accepting a Note (or interest therein) issued
hereunder, hereby covenant and agree that they shall not, prior to the date
which is one year and one day after the termination of this Indenture with
respect to the Issuer pursuant to Section 4.1, acquiesce, petition or otherwise
invoke or cause the Seller or the Issuer to invoke the process of any court or
government authority for the purpose of commencing or sustaining a case against
the Seller or the Issuer 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 Issuer or any
substantial part of its property, or ordering the winding up or liquidation of
the affairs of the Seller or the Issuer.
SECTION 11.18 Inspection.
The Issuer agrees that, on reasonable prior notice, it shall permit any
representative of the Indenture Trustee, during the Issuer's normal business
hours, to examine all the books of account, records, reports, and other papers
of the Issuer, to make copies and extracts therefrom, to cause such books to be
audited by Independent certified public accountants, and to discuss the Issuer's
affairs, finances and accounts with the Issuer's officers, employees and
Independent certified public accountants, all at such reasonable times and as
often as may be reasonably requested. The Indenture Trustee shall and shall
cause its representatives to hold in confidence all such information except to
the extent disclosure may be required by law (and all reasonable applications
for confidential treatment are unavailing) and except to the extent that the
Indenture Trustee may reasonably determine that such disclosure is consistent
with its obligations hereunder.
SECTION 11.19 Indemnification by and Reimbursement of the Servicer.
The Indenture Trustee acknowledges and agrees to reimburse (i) the
Servicer and its directors, officers, employees and agents in accordance with
Section 6.03(b) of the Trust Sale and Servicing Agreement and (ii) the Seller
and its directors, officers, employees and agents in accordance with Section
3.04 of the Trust Sale and Servicing Agreement. The Indenture Trustee further
acknowledges and accepts the conditions and limitations with respect to the
Servicer's obligation to indemnify, defend and hold the Indenture Trustee
harmless as set forth in Section 6.01(a)(iv) of the Trust Sale and Servicing
Agreement.
* * * * *
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IN WITNESS WHEREOF, the Issuer and the Indenture Trustee have caused
this Indenture to be duly executed by their respective officers, thereunto duly
authorized, all as of the day and year first above written.
CAPITAL AUTO RECEIVABLES
ASSET TRUST 1999-2
By: BANKERS TRUST (DELAWARE),
not in its individual
capacity but solely as
Owner Trustee,
By:
---------------------------
Name: Patricia Russo
Title: Vice President
THE FIRST NATIONAL BANK OF
CHICAGO, as Indenture Trustee,
By:
---------------------------
Name: Steven M. Wagner
Title: First Vice President
<PAGE> 69
STATE OF , )
---- -------
) ss.:
COUNTY OF , )
-----------
BEFORE ME, the undersigned authority, a Notary Public in and
for said county and state, on this day personally appeared
, known to me to be the person and officer whose
name is subscribed to the foregoing instrument and acknowledged to me that the
same was the act of the said Capital Auto Receivables Asset Trust 1999-2, a
Delaware business trust, and that he executed the same as the act of said
business trust for the purpose and consideration therein expressed, and in the
capacities therein stated.
GIVEN UNDER MY HAND AND SEAL OF OFFICE, this the day of
, 1999.
--------------------------------------------------
Notary Public in and for the State of .
------------
My commission expires:
- ----------------------------
<PAGE> 70
STATE OF , )
--- -------
) ss.:
COUNTY OF , )
-----------
BEFORE ME, the undersigned authority, a Notary Public in and
for said county and state, on this day personally appeared ,
known to me to be the person and officer whose name is subscribed to the
foregoing instrument and acknowledged to me that the same was the act of the
said The First National Bank of Chicago, a national banking association, and
that he executed the same as the act of said national banking association for
the purpose and consideration therein stated.
GIVEN UNDER MY HAND AND SEAL OF OFFICE, this the day of
, 1999.
-------------------------------------------------
Notary Public in and for the State of .
-----------
My commission expires:
- ----------------------------
<PAGE> 71
EXHIBIT A
LOCATION OF
SCHEDULE OF RECEIVABLES
The Schedule of Receivables is on file at the offices of:
1. The Indenture Trustee
2. The Owner Trustee
3. General Motors Acceptance Corporation
4. Capital Auto Receivables, Inc.
<PAGE> 72
EXHIBIT B
FORM OF NOTE DEPOSITORY AGREEMENT
<PAGE> 73
EXHIBIT C-1
FORM OF OFFERED NOTES
REGISTERED $
------------
No. R-
SEE REVERSE FOR CERTAIN DEFINITIONS
CUSIP NO.
----------
Unless this Note 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 payment, and any
Note 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 payment 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.
THE PRINCIPAL OF THIS NOTE IS PAYABLE AS SET FORTH HEREIN.
ACCORDINGLY, THE OUTSTANDING PRINCIPAL AMOUNT OF THIS NOTE AT ANY TIME MAY
BE LESS THAN THE AMOUNT SHOWN ON THE FACE HEREOF.
CAPITAL AUTO RECEIVABLES ASSET TRUST 1999-2
CLASS A-__% ASSET BACKED NOTES
CAPITAL AUTO RECEIVABLES ASSET TRUST 1999-2, a business trust organized
and existing under the laws of the State of Delaware (herein referred to as the
"Issuer"), for value received, hereby promises to pay to , or
registered assigns, the principal sum of DOLLARS ($ )
payable in accordance with the Indenture (as defined on the reverse side of this
Note), on each Distribution Date in an amount equal to the result obtained by
multiplying (i) a fraction, the numerator of which is the initial principal
amount hereof and the denominator of which is aggregate principal amount for
such Class A- Notes by (ii) the aggregate amount, if any, payable on such
Distribution Date from the Note Distribution Account in respect of principal on
the Class A- Notes pursuant to Sections 2.7, 3.1 and 8.2(c) of the Indenture;
provided, however, that the entire unpaid principal amount of this Note shall be
due and
1
<PAGE> 74
payable on [THE EARLIER OF] (the "Final Scheduled Distribution
Date") [AND THE REDEMPTION DATE, IF ANY, PURSUANT TO SECTION 10.1 OF THE
INDENTURE]. The Issuer shall pay interest on this Note at the rate per annum
shown above on each Distribution Date until the principal of this Note is paid
or made available for payment on the principal amount of this Note outstanding
on the preceding Distribution Date (after giving effect to all payments of
principal made on the preceding Distribution Date (or, for the initial
Distribution Date, the outstanding principal balance on the Closing Date)).
Interest on this Note will accrue from and including the Closing Date, and will
be payable on each Distribution Date in an amount equal to the Noteholders'
Interest Distributable Amount for such Distribution Date. Interest will be
computed on the basis of a 360-day year of twelve 30-day months (or, in the case
of the initial Distribution Date, 36/360). Such principal of and interest on
this Note shall be paid in the manner specified on the reverse hereof. All
interest payments on each class of Notes on any Distribution Date shall be made
pro rata to the Noteholders of such class entitled thereto.
The principal of and interest on this Note are payable in such coin or
currency of the United States of America which, at the time of payment, is legal
tender for payment of public and private debts. All payments made by the Issuer
with respect to this Note shall be applied first to interest due and payable on
this Note as provided above and then to the unpaid principal of this Note.
Reference is made to the further provisions of this Note set forth on
the reverse hereof, which shall have the same effect as though fully set forth
on the face of this Note.
Unless the certificate of authentication hereon has been executed by
the Indenture Trustee whose name appears below by manual signature, this Note
shall not be entitled to any benefit under the Indenture referred to on the
reverse hereof or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Issuer has caused this instrument to be signed, manually
or in facsimile, by its Authorized Officer.
2
<PAGE> 75
Date: CAPITAL AUTO RECEIVABLES ASSET
TRUST 1999-2,
By: BANKERS TRUST (DELAWARE),
not in its individual capacity but solely as
Owner Trustee under the Trust Agreement
By:
----------------------------
Name: Patricia Russo
Title: Vice President
INDENTURE TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Notes designated above and referred to in the
within-mentioned Indenture.
THE FIRST NATIONAL BANK OF CHICAGO, not
in its individual capacity but solely as Indenture
Trustee
By:
-----------------------------------
Name: Steven M. Wagner
Title: First Vice President
3
<PAGE> 76
REVERSE OF NOTE
This Note is one of a duly authorized issue of Notes of the Issuer,
designated as its Class A-__ Asset Backed Notes (herein called the "Class A-
Notes"), all issued under an Indenture, dated as of September 9, 1999 (such
Indenture, as supplemented or amended, is herein called the "Indenture"),
between the Issuer and The First National Bank of Chicago, a national banking
association, as trustee (the "Indenture Trustee", which term includes any
successor trustee under the Indenture), to which Indenture and all indentures
supplemental thereto reference is hereby made for a statement of the respective
rights and obligations thereunder of the Issuer, the Indenture Trustee and the
Noteholders. The Class A-___ Notes are one of several duly authorized classes of
Notes of the Issuer issued pursuant to the Indenture (collectively, as to all
Notes of all such classes, the "Notes"). The Notes are governed by and subject
to all terms of the Indenture (which terms are incorporated herein and made a
part hereof), to which Indenture the Holder of this Note by virtue of acceptance
hereof assents and by which such Holder is bound. All capitalized terms used and
not otherwise defined in this Note that are defined in the Indenture, as
supplemented or amended, shall have the meanings assigned to them in or pursuant
to the Indenture.
The Class A-__ Notes and all other Notes issued pursuant to the
Indenture are and will be equally and ratably secured by the Collateral pledged
as security therefor as provided in the Indenture.
Each Noteholder or Note Owner, by acceptance of a Note or, in the case
of a Note Owner, a beneficial interest in a Note, covenants and agrees that no
recourse may be taken, directly or indirectly, with respect to the obligations
of the Issuer, the Owner Trustee or the Indenture Trustee on the Notes or under
the Indenture or any certificate or other writing delivered in connection
therewith, against (i) the Indenture Trustee or the Owner Trustee in their
individual capacities, (ii) any owner of a beneficial interest in the Issuer or
(iii) any partner, owner, beneficiary, agent, officer, director or employee of
the Indenture Trustee or the Owner Trustee in their individual capacities, any
holder of a beneficial interest in the Issuer, the Owner Trustee or the
Indenture Trustee or of any successor or assign of the Indenture Trustee or the
Owner Trustee in their individual capacities, except as any such Person may have
expressly agreed and except that any such partner, owner or beneficiary shall be
fully liable, to the extent provided by applicable law, for any unpaid
consideration for stock, unpaid capital contribution or failure to pay any
instalment or call owing to such entity.
Each Noteholder or Note Owner, by acceptance of a Note or, in the case
of a Note Owner, a beneficial interest in a Note, covenants and agrees that by
accepting the benefits of the Indenture such Noteholder will not, prior to the
date which is one year and one day after the termination of this Indenture with
respect to the Issuer, acquiesce, petition or otherwise invoke or cause the
Seller or the Issuer to invoke the process of any court or government authority
for the purpose of commencing or sustaining a case against the Seller or the
Issuer under any federal or state bankruptcy, insolvency or similar law or
appointing a receiver, liquidator, assignee, trustee, custodian,
4
<PAGE> 77
sequestrator or other similar official of the Seller or the Issuer or any
substantial part of its property, or ordering the winding up or liquidation of
the affairs of the Seller or the Issuer.
Each Noteholder, by acceptance of a Note or, in the case of a Note
Owner, a beneficial interest in a Note, expresses its intention that this Note
qualifies under applicable tax law as indebtedness secured by the Collateral
and, unless otherwise required by appropriate taxing authorities, agrees to
treat the Notes as indebtedness secured by the Collateral for the purpose of
federal income taxes, 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.
Prior to the due presentment for registration of transfer of this Note,
the Issuer, the Indenture Trustee and any agent of the Issuer or the Indenture
Trustee may treat the Person in whose name this Note (as of the day of
determination or as of such other date as may be specified in the Indenture) is
registered as the owner hereof for all purposes, whether or not this Note shall
be overdue, and neither the Issuer, the Indenture Trustee nor any such agent
shall be affected by notice to the contrary.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Issuer and the rights of the Noteholders under the Indenture at any time by the
Issuer with the consent of the Holders of Notes representing a majority of the
Outstanding Amount of all the Notes. The Indenture also contains provisions
permitting the Holders of Notes representing specified percentages of the
Outstanding Amount of the Notes, on behalf of the Holders of all the Notes, to
waive compliance by the Issuer with certain provisions of the Indenture and
certain past defaults under the Indenture and their consequences. Any such
consent or waiver by the Holder of this Note (or any one of more Predecessor
Notes) shall be conclusive and binding upon such Holder and upon all future
Holders of this Note and of any Note issued upon the registration of transfer
hereof or in exchange hereof or in lieu hereof whether or not notation of such
consent or waiver is made upon this Note. The Indenture also permits the
Indenture Trustee to amend or waive certain terms and conditions set forth in
the Indenture without the consent of the Noteholders.
The term "Issuer" as used in this Note includes any successor to the
Issuer under the Indenture.
The Issuer is permitted by the Indenture, under certain circumstances,
to merge or consolidate, subject to the rights of the Indenture Trustee and the
Holders of Notes under the Indenture.
The Notes are issuable only in registered form in denominations as
provided in the Indenture, subject to certain limitations therein set forth.
5
<PAGE> 78
This Note and the Indenture shall be construed in accordance with the
laws of the State of New York, without reference to its conflict of law
provisions, and the obligations, rights and remedies of the parties hereunder
and thereunder shall be determined in accordance with such laws.
No reference herein to the Indenture and no provision of this Note or
of the Indenture shall alter or impair the obligation of the Issuer, which is
absolute and unconditional, to pay the principal of and interest on this Note at
the times, place and rate, and in the coin or currency herein prescribed.
Anything herein to the contrary notwithstanding, except as expressly
provided in the Basic Documents, neither the Seller, the Servicer, the Indenture
Trustee nor the Owner Trustee in their respective individual capacities, any
owner of a beneficial interest in the Issuer, 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 payment of principal of or interest on, or performance of, or
omission to perform, any of the covenants, obligations or indemnifications
contained in this Note or the Indenture, 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. The Holder of this Note
by the acceptance hereof agrees that, except as expressly provided in the Basic
Documents, in the case of an Event of Default under the Indenture, the Holder
shall have no claim against any of the foregoing for any deficiency, loss or
claim therefrom; provided, however, that nothing contained herein shall be taken
to prevent recourse to, and enforcement against, the assets of the Issuer for
any and all liabilities, obligations and undertakings contained in the Indenture
or in this Note.
6
<PAGE> 79
ASSIGNMENT
Social Security or taxpayer I.D. or other identifying number of assignee
- ---------------------------------
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto
- -----------------------------------------------
- ------------------------------------------------------------------
(name and address of assignee)
the within Note and all rights thereunder, and hereby irrevocably constitutes
and appoints , as attorney, to transfer said
Note on the books kept for registration thereof, with full power of substitution
in the premises.
Dated: (1)
------------------- ----------------------------------
Signature Guaranteed:
- ------------------------- ----------------------------------
- -----------
(1) NOTE: The signature to this assignment must correspond with the name of
the registered owner as it appears on the face of the within Note in every
particular, without alteration, enlargement or any change whatsoever.
<PAGE> 80
EXHIBIT C-2
FORM OF VARIABLE PAY TERM NOTES
REGISTERED $
------------
No. R-
SEE REVERSE FOR CERTAIN DEFINITIONS
CUSIP NO. N/A
THE SECURITIES REPRESENTED BY THIS NOTE WERE ORIGINALLY
ISSUED ON SEPTEMBER 9, 1999, HAVE NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED (THE "ACT"), OR APPLICABLE STATE SECURITIES LAWS
AND MAY NOT BE SOLD OR TRANSFERRED IN THE ABSENCE OF AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE ACT OR APPLICABLE STATE SECURITIES LAWS OR
AN EXEMPTION FROM REGISTRATION THEREUNDER.
THIS NOTE (AND INTERESTS THEREIN) ARE ALSO SUBJECT TO THE
RESTRICTIONS SET FORTH IN THE INDENTURE REFERENCED BELOW.
THE PRINCIPAL OF THIS NOTE IS PAYABLE AS SET FORTH HEREIN.
ACCORDINGLY, THE OUTSTANDING PRINCIPAL AMOUNT OF THIS NOTE AT ANY TIME MAY
BE LESS THAN THE AMOUNT SHOWN ON THE FACE HEREOF.
CAPITAL AUTO RECEIVABLES ASSET TRUST 1999-2
FLOATING RATE VARIABLE PAY ASSET BACKED TERM NOTES, CLASS
---
CAPITAL AUTO RECEIVABLES ASSET TRUST 1999-2, a business trust organized
and existing under the laws of the State of Delaware (herein referred to as the
"Issuer"), for value received, hereby promises to pay to , or
registered assigns, the principal sum of DOLLARS ($ )
payable in accordance with the Indenture (as defined on the reverse side of this
Note), on each Distribution Date in an amount equal to the result obtained by
multiplying (i) a fraction, the numerator of which is the initial principal
amount hereof and the denominator of which is aggregate principal amount for
such Variable Pay Term Notes, Class , by (ii) the aggregate amount, if any,
payable on such Distribution Date from the Note
1
<PAGE> 81
Distribution Account in respect of principal on the Variable Pay Term Notes,
Class , pursuant to Sections 2.7, 3.1 and 8.2(c) of the Indenture; provided,
however, that the entire unpaid principal amount of this Note shall be due and
payable on the earlier of (the "Final Scheduled Distribution Date")
and the Redemption Date, if any, pursuant to Section 10.1 of the Indenture. The
Issuer shall pay interest on this Note on each Distribution Date until the
principal of this Note is paid or made available for payment on the principal
amount of this Note outstanding on the preceding Distribution Date (after giving
effect to all payments of principal made on the preceding Distribution Date (or,
for the initial Distribution Date, the outstanding principal balance on the
Closing Date)). Interest on this Note will accrue from and including the Closing
Date, and will be payable on each Distribution Date in an amount equal to the
Noteholders' Interest Distributable Amount for such Distribution Date. Interest
will be computed on the basis of the actual number of days elapsed from and
including the prior Distribution Date (or, in the case of the first Distribution
Date, from and including the Closing Date) and a 360-day year. Such principal of
and interest on this Note shall be paid in the manner specified on the reverse
hereof. All interest payments on each class of Notes on any Distribution Date
shall be made pro rata to the Noteholders of such class entitled thereto.
The principal of and interest on this Note are payable in such coin or
currency of the United States of America which, at the time of payment, is legal
tender for payment of public and private debts. All payments made by the Issuer
with respect to this Note shall be applied first to interest due and payable on
this Note as provided above and then to the unpaid principal of this Note.
Reference is made to the further provisions of this Note set forth on
the reverse hereof, which shall have the same effect as though fully set forth
on the face of this Note.
Unless the certificate of authentication hereon has been executed by
the Indenture Trustee whose name appears below by manual signature, this Note
shall not be entitled to any benefit under the Indenture referred to on the
reverse hereof or be valid or obligatory for any purpose.
2
<PAGE> 82
IN WITNESS WHEREOF, the Issuer has caused this instrument to be signed,
manually or in facsimile, by its Authorized Officer.
Date: CAPITAL AUTO RECEIVABLES ASSET
TRUST 1999-2,
By: BANKERS TRUST (DELAWARE),
not in its individual capacity but solely as
Owner Trustee under the Trust Agreement
By:
---------------------------
Name: Patricia Russo
Title: Vice President
INDENTURE TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Notes designated above and referred to in the
within-mentioned Indenture.
THE FIRST NATIONAL BANK OF CHICAGO, not
in its individual capacity but solely as Indenture
Trustee
By:
-------------------------------
Name: Steven M. Wagner
Title: First Vice President
<PAGE> 83
REVERSE OF NOTE
This Note is one of a duly authorized issue of Notes of the Issuer,
designated as its Floating Rate Variable Pay Asset Backed Term Notes, Class
(herein called the "Class Variable Pay Term Notes"), all issued under an
Indenture, dated as of September 9, 1999 (such Indenture, as supplemented or
amended, is herein called the "Indenture"), between the Issuer and The First
National Bank of Chicago, a national banking association, as trustee (the
"Indenture Trustee", which term includes any successor trustee under the
Indenture), to which Indenture and all indentures supplemental thereto reference
is hereby made for a statement of the respective rights and obligations
thereunder of the Issuer, the Indenture Trustee and the Noteholders. The Class
___ Variable Pay Term Notes are one of multiple duly authorized classes of Notes
of the Issuer issued pursuant to the Indenture (collectively, as to all Notes of
all such classes, the "Notes"). The Notes are governed by and subject to all
terms of the Indenture (which terms are incorporated herein and made a part
hereof), to which Indenture the Holder of this Note by virtue of acceptance
hereof assents and by which such Holder is bound. All capitalized terms used and
not otherwise defined in this Note that are defined in the Indenture, as
supplemented or amended, shall have the meanings assigned to them in or pursuant
to the Indenture.
The Class Variable Pay Term Notes and all other Notes issued
pursuant to the Indenture are and will be equally and ratably secured by the
Collateral pledged as security therefor as provided in the Indenture.
Each Noteholder or Note Owner, by acceptance of a Note or, in the case
of a Note Owner, a beneficial interest in a Note, covenants and agrees that no
recourse may be taken, directly or indirectly, with respect to the obligations
of the Issuer, the Owner Trustee or the Indenture Trustee on the Notes or under
the Indenture or any certificate or other writing delivered in connection
therewith, against (i) the Indenture Trustee or the Owner Trustee in their
individual capacities, (ii) any owner of a beneficial interest in the Issuer or
(iii) any partner, owner, beneficiary, agent, officer, director or employee of
the Indenture Trustee or the Owner Trustee in their individual capacities, any
holder of a beneficial interest in the Issuer, the Owner Trustee or the
Indenture Trustee or of any successor or assign of the Indenture Trustee or the
Owner Trustee in their individual capacities, except as any such Person may have
expressly agreed and except that any such partner, owner or beneficiary shall be
fully liable, to the extent provided by applicable law, for any unpaid
consideration for stock, unpaid capital contribution or failure to pay any
instalment or call owing to such entity.
Each Noteholder or Note Owner, by acceptance of a Note or, in the case
of a Note Owner, a beneficial interest in a Note, covenants and agrees that by
accepting the benefits of the Indenture such Noteholder will not, prior to the
date which is one year and one day after the termination of this Indenture with
respect to the Issuer, acquiesce, petition or otherwise invoke or cause the
Seller or the Issuer to invoke the process of any court or government authority
for the purpose of commencing or sustaining a case against the Seller or the
Issuer under any federal or state bankruptcy, insolvency or similar law or
appointing a receiver, liquidator, assignee, trustee, custodian,
4
<PAGE> 84
sequestrator or other similar official of the Seller or the Issuer or any
substantial part of its property, or ordering the winding up or liquidation of
the affairs of the Seller or the Issuer.
Each Noteholder, by acceptance of a Note or, in the case of a Note
Owner, a beneficial interest in a Note, expresses its intention that this Note
qualifies under applicable tax law as indebtedness secured by the Collateral
and, unless otherwise required by appropriate taxing authorities, agrees to
treat the Notes as indebtedness secured by the Collateral for the purpose of
federal income taxes, 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.
Prior to the due presentment for registration of transfer of this Note,
the Issuer, the Indenture Trustee and any agent of the Issuer or the Indenture
Trustee may treat the Person in whose name this Note (as of the day of
determination or as of such other date as may be specified in the Indenture) is
registered as the owner hereof for all purposes, whether or not this Note shall
be overdue, and neither the Issuer, the Indenture Trustee nor any such agent
shall be affected by notice to the contrary.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Issuer and the rights of the Noteholders under the Indenture at any time by the
Issuer with the consent of the Holders of Notes representing a majority of the
Outstanding Amount of all the Notes. The Indenture also contains provisions
permitting the Holders of Notes representing specified percentages of the
Outstanding Amount of the Notes, on behalf of the Holders of all the Notes, to
waive compliance by the Issuer with certain provisions of the Indenture and
certain past defaults under the Indenture and their consequences. Any such
consent or waiver by the Holder of this Note (or any one of more Predecessor
Notes) shall be conclusive and binding upon such Holder and upon all future
Holders of this Note and of any Note issued upon the registration of transfer
hereof or in exchange hereof or in lieu hereof whether or not notation of such
consent or waiver is made upon this Note. The Indenture also permits the
Indenture Trustee to amend or waive certain terms and conditions set forth in
the Indenture without the consent of the Noteholders.
The term "Issuer" as used in this Note includes any successor to the
Issuer under the Indenture.
The Issuer is permitted by the Indenture, under certain circumstances,
to merge or consolidate, subject to the rights of the Indenture Trustee and the
Holders of Notes under the Indenture.
The Notes are issuable only in registered form in denominations as
provided in the Indenture, subject to certain limitations therein set forth.
5
<PAGE> 85
This Note and the Indenture shall be construed in accordance with the
laws of the State of New York, without reference to its conflict of law
provisions, and the obligations, rights and remedies of the parties hereunder
and thereunder shall be determined in accordance with such laws.
No reference herein to the Indenture and no provision of this Note or
of the Indenture shall alter or impair the obligation of the Issuer, which is
absolute and unconditional, to pay the principal of and interest on this Note at
the times, place and rate, and in the coin or currency herein prescribed.
Anything herein to the contrary notwithstanding, except as expressly
provided in the Basic Documents, neither the Seller, the Servicer, the Indenture
Trustee nor the Owner Trustee in their respective individual capacities, any
owner of a beneficial interest in the Issuer, 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 payment of principal of or interest on, or performance of, or
omission to perform, any of the covenants, obligations or indemnifications
contained in this Note or the Indenture, 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. The Holder of this Note
by the acceptance hereof agrees that, except as expressly provided in the Basic
Documents, in the case of an Event of Default under the Indenture, the Holder
shall have no claim against any of the foregoing for any deficiency, loss or
claim therefrom; provided, however, that nothing contained herein shall be taken
to prevent recourse to, and enforcement against, the assets of the Issuer for
any and all liabilities, obligations and undertakings contained in the Indenture
or in this Note.
6
<PAGE> 86
ASSIGNMENT
Social Security or taxpayer I.D. or other identifying number of assignee
- ---------------------------------
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers
unto
- -----------------------------------------------
- ------------------------------------------------------------------
(name and address of assignee)
the within Note and all rights thereunder, and hereby irrevocably constitutes
and appoints , as attorney, to transfer said
Note on the books kept for registration thereof, with full power of substitution
in the premises.
Dated: {2}
------------------ ------------------------------------
Signature Guaranteed:
- ------------------------- ------------------------------------
- -----------
(2) NOTE: The signature to this assignment must correspond with the name of the
registered owner as it appears on the face of the within Note in every
particular, without alteration, enlargement or any change whatsoever.
7
<PAGE> 87
EXHIBIT C-3
FORM OF CLASS A-1 NOTE
REGISTERED $
------------
No. R-
SEE REVERSE FOR CERTAIN DEFINITIONS
CUSIP NO. N/A
THE SECURITIES REPRESENTED BY THIS NOTE WERE ORIGINALLY
ISSUED ON SEPTEMBER 9, 1999, HAVE NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED (THE "ACT"), OR APPLICABLE STATE SECURITIES LAWS
AND MAY NOT BE SOLD OR TRANSFERRED IN THE ABSENCE OF AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE ACT OR APPLICABLE STATE SECURITIES LAWS
OR AN EXEMPTION FROM REGISTRATION THEREUNDER.
THIS NOTE (AND INTERESTS THEREIN) ARE ALSO SUBJECT TO THE
RESTRICTIONS SET FORTH IN THE INDENTURE REFERENCED BELOW.
THE PRINCIPAL OF THIS NOTE IS PAYABLE AS SET FORTH HEREIN.
ACCORDINGLY, THE OUTSTANDING PRINCIPAL AMOUNT OF THIS NOTE AT ANY TIME MAY
BE LESS THAN THE AMOUNT SHOWN ON THE FACE HEREOF.
CAPITAL AUTO RECEIVABLES ASSET TRUST 1999-2
CLASS A-1 %ASSET BACKED TERM NOTES
----
CAPITAL AUTO RECEIVABLES ASSET TRUST 1999-2, a business trust organized
and existing under the laws of the State of Delaware (herein referred to as the
"Issuer"), for value received, hereby promises to pay to , or
registered assigns, the principal sum of DOLLARS ($ )
payable in accordance with the Indenture (as defined on the reverse side of this
Note), on each Distribution Date in an amount equal to the result obtained by
multiplying (i) a fraction, the numerator of which is the initial principal
amount hereof and the denominator of which is aggregate principal amount for
such Class A-1 Note, by (ii) the aggregate amount, if any, payable on such
Distribution Date from the Note Distribution Account in respect of principal on
the Class A-1 Note pursuant to Sections 2.7, 3.1 and 8.2(c) of the Indenture;
provided, however, that the entire unpaid principal amount of this Note shall be
due and payable on
<PAGE> 88
the Distribution Date (the "Final Scheduled Distribution Date"). The
Issuer shall pay interest on this Note at the rate per annum shown above on each
Distribution Date until the principal of this Note is paid or made available for
payment on the principal amount of this Note outstanding on the preceding
Distribution Date (after giving effect to all payments of principal made on the
preceding Distribution Date (or, for the initial Distribution Date, the
outstanding principal balance on the Closing Date)). Interest on this Note will
accrue from and including the Closing Date, and will be payable on each
Distribution Date in an amount equal to the Noteholders' Interest Distributable
Amount for such Distribution Date. Interest will be computed on the basis of the
actual number of days elapsed from and including the prior Distribution Date
(or, in the case of the first Distribution Date, from and including the Closing
Date) and a 360-day year. Such principal of and interest on this Note shall be
paid in the manner specified on the reverse hereof. All interest payments on
each class of Notes on any Distribution Date shall be made pro rata to the
Noteholders of such class entitled thereto.
The principal of and interest on this Note are payable in such coin or
currency of the United States of America which, at the time of payment, is legal
tender for payment of public and private debts. All payments made by the Issuer
with respect to this Note shall be applied first to interest due and payable on
this Note as provided above and then to the unpaid principal of this Note.
Reference is made to the further provisions of this Note set forth on
the reverse hereof, which shall have the same effect as though fully set forth
on the face of this Note.
Unless the certificate of authentication hereon has been executed by
the Indenture Trustee whose name appears below by manual signature, this Note
shall not be entitled to any benefit under the Indenture referred to on the
reverse hereof or be valid or obligatory for any purpose.
2
<PAGE> 89
IN WITNESS WHEREOF, the Issuer has caused this instrument to be signed,
manually or in facsimile, by its Authorized Officer.
Date: CAPITAL AUTO RECEIVABLES ASSET
TRUST 1999-2,
By: BANKERS TRUST (DELAWARE),
not in its individual capacity but solely as
Owner Trustee under the Trust Agreement
By:
-------------------------
Name: Patricia Russo
Title: Vice President
INDENTURE TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Notes designated above and referred to in the
within-mentioned Indenture.
THE FIRST NATIONAL BANK OF CHICAGO, not
in its individual capacity but solely as Indenture
Trustee
By:
---------------------------
Name: Steven M. Wagner
Title: First Vice President
<PAGE> 90
REVERSE OF NOTE
This Note is one of a duly authorized issue of Notes of the Issuer,
designated as its Class A-1 Asset Backed Notes (herein called the "Class A-1
Notes"), all issued under an Indenture, dated as of September 9, 1999 (such
Indenture, as supplemented or amended, is herein called the "Indenture"),
between the Issuer and The First National Bank of Chicago, a national banking
association, as trustee (the "Indenture Trustee", which term includes any
successor trustee under the Indenture), to which Indenture and all indentures
supplemental thereto reference is hereby made for a statement of the respective
rights and obligations thereunder of the Issuer, the Indenture Trustee and the
Noteholders. The Class A-1 Notes are one of multiple duly authorized classes of
Notes of the Issuer issued pursuant to the Indenture (collectively, as to all
Notes of all such classes, the "Notes"). The Notes are governed by and subject
to all terms of the Indenture (which terms are incorporated herein and made a
part hereof), to which Indenture the Holder of this Note by virtue of acceptance
hereof assents and by which such Holder is bound. All capitalized terms used and
not otherwise defined in this Note that are defined in the Indenture, as
supplemented or amended, shall have the meanings assigned to them in or pursuant
to the Indenture.
The Class A-1 Notes and all other Notes issued pursuant to the
Indenture are and will be equally and ratably secured by the Collateral pledged
as security therefor as provided in the Indenture.
Each Noteholder or Note Owner, by acceptance of a Note or, in the case
of a Note Owner, a beneficial interest in a Note, covenants and agrees that no
recourse may be taken, directly or indirectly, with respect to the obligations
of the Issuer, the Owner Trustee or the Indenture Trustee on the Notes or under
the Indenture or any certificate or other writing delivered in connection
therewith, against (i) the Indenture Trustee or the Owner Trustee in their
individual capacities, (ii) any owner of a beneficial interest in the Issuer or
(iii) any partner, owner, beneficiary, agent, officer, director or employee of
the Indenture Trustee or the Owner Trustee in their individual capacities, any
holder of a beneficial interest in the Issuer, the Owner Trustee or the
Indenture Trustee or of any successor or assign of the Indenture Trustee or the
Owner Trustee in their individual capacities, except as any such Person may have
expressly agreed and except that any such partner, owner or beneficiary shall be
fully liable, to the extent provided by applicable law, for any unpaid
consideration for stock, unpaid capital contribution or failure to pay any
instalment or call owing to such entity.
Each Noteholder or Note Owner, by acceptance of a Note or, in the case
of a Note Owner, a beneficial interest in a Note, covenants and agrees that by
accepting the benefits of the Indenture such Noteholder will not, prior to the
date which is one year and one day after the termination of this Indenture with
respect to the Issuer, acquiesce, petition or otherwise invoke or cause the
Seller or the Issuer to invoke the process of any court or government authority
for the purpose of commencing or sustaining a case against the Seller or the
Issuer under any federal or state bankruptcy, insolvency or similar law or
appointing a receiver, liquidator, assignee, trustee, custodian,
4
<PAGE> 91
sequestrator or other similar official of the Seller or the Issuer or any
substantial part of its property, or ordering the winding up or liquidation of
the affairs of the Seller or the Issuer.
Each Noteholder, by acceptance of a Note or, in the case of a Note
Owner, a beneficial interest in a Note, expresses its intention that this Note
qualifies under applicable tax law as indebtedness secured by the Collateral
and, unless otherwise required by appropriate taxing authorities, agrees to
treat the Notes as indebtedness secured by the Collateral for the purpose of
federal income taxes, 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.
Prior to the due presentment for registration of transfer of this Note,
the Issuer, the Indenture Trustee and any agent of the Issuer or the Indenture
Trustee may treat the Person in whose name this Note (as of the day of
determination or as of such other date as may be specified in the Indenture) is
registered as the owner hereof for all purposes, whether or not this Note shall
be overdue, and neither the Issuer, the Indenture Trustee nor any such agent
shall be affected by notice to the contrary.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Issuer and the rights of the Noteholders under the Indenture at any time by the
Issuer with the consent of the Holders of Notes representing a majority of the
Outstanding Amount of all the Notes. The Indenture also contains provisions
permitting the Holders of Notes representing specified percentages of the
Outstanding Amount of the Notes, on behalf of the Holders of all the Notes, to
waive compliance by the Issuer with certain provisions of the Indenture and
certain past defaults under the Indenture and their consequences. Any such
consent or waiver by the Holder of this Note (or any one of more Predecessor
Notes) shall be conclusive and binding upon such Holder and upon all future
Holders of this Note and of any Note issued upon the registration of transfer
hereof or in exchange hereof or in lieu hereof whether or not notation of such
consent or waiver is made upon this Note. The Indenture also permits the
Indenture Trustee to amend or waive certain terms and conditions set forth in
the Indenture without the consent of the Noteholders.
The term "Issuer" as used in this Note includes any successor to the
Issuer under the Indenture.
The Issuer is permitted by the Indenture, under certain circumstances,
to merge or consolidate, subject to the rights of the Indenture Trustee and the
Holders of Notes under the Indenture.
The Notes are issuable only in registered form in denominations as
provided in the Indenture, subject to certain limitations therein set forth.
5
<PAGE> 92
This Note and the Indenture shall be construed in accordance with the
laws of the State of New York, without reference to its conflict of law
provisions, and the obligations, rights and remedies of the parties hereunder
and thereunder shall be determined in accordance with such laws.
No reference herein to the Indenture and no provision of this Note or
of the Indenture shall alter or impair the obligation of the Issuer, which is
absolute and unconditional, to pay the principal of and interest on this Note at
the times, place and rate, and in the coin or currency herein prescribed.
Anything herein to the contrary notwithstanding, except as expressly
provided in the Basic Documents, neither the Seller, the Servicer, the Indenture
Trustee nor the Owner Trustee in their respective individual capacities, any
owner of a beneficial interest in the Issuer, 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 payment of principal of or interest on, or performance of, or
omission to perform, any of the covenants, obligations or indemnifications
contained in this Note or the Indenture, 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. The Holder of this Note
by the acceptance hereof agrees that, except as expressly provided in the Basic
Documents, in the case of an Event of Default under the Indenture, the Holder
shall have no claim against any of the foregoing for any deficiency, loss or
claim therefrom; provided, however, that nothing contained herein shall be taken
to prevent recourse to, and enforcement against, the assets of the Issuer for
any and all liabilities, obligations and undertakings contained in the Indenture
or in this Note.
6
<PAGE> 93
ASSIGNMENT
Social Security or taxpayer I.D. or other identifying number of assignee
- ---------------------------------
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers
unto
- -----------------------------------------------
- ------------------------------------------------------------------
(name and address of assignee)
the within Note and all rights thereunder, and hereby irrevocably constitutes
and appoints , as attorney, to transfer said
Note on the books kept for registration thereof, with full power of substitution
in the premises.
Dated: (3)
------------------ -------------------------------------
Signature Guaranteed:
- ------------------------- -------------------------------------
EXHIBIT D
- --------
(3)NOTE: The signature to this assignment must correspond with the name of the
registered owner as it appears on the face of the within Note in every
particular, without alteration, enlargement or any change whatsoever.
7
<PAGE> 94
RULE 144A CERTIFICATE
Capital Auto Receivables, Inc.
Corporation Trust Center
1209 Orange Street
Wilmington, DE 19801
The First National Bank of Chicago,
as Trustee of Capital Auto Receivables Asset Trust 1999-2
One First National Plaza
Chicago, IL 60670
Ladies and Gentlemen:
In connection with the purchase of a Class A-1 Asset Backed Note ( the
"Class A-1 Note") or a Floating Rate Variable Pay Asset Backed Term Note, Class
(the "Variable Pay Term Note,"and together with the Class A-1 Notes, the
"Private Notes") of the Capital Auto Receivables Asset Trust 1999-2, the
undersigned buyer ("Buyer") hereby acknowledges, represents and agrees that:
(a) Buyer is a "qualified institutional buyer" as defined under Rule
144A under the Securities Act of 1933, as amended (the "Securities Act"), acting
for its own account or for the accounts of other "qualified institutional
buyers" as defined under Rule 144A under the Securities Act. Buyer is familiar
with Rule 144A under the Securities Act and Buyer is aware that the seller of
the applicable Private Note, as applicable, to the Buyer 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.
(b) Buyer is purchasing the applicable Private Note for its own account
(or the accounts of other "qualified institutional buyers"), not with a view to,
or for offer or sale in connection with, any distribution thereof, subject to
the disposition of Buyer's property (or property held in the accounts of other
"qualified institutional buyers") being at all times within Buyer's control and
subject to Buyer's ability to resell such Private Note pursuant to Rule 144A
under the Securities Act. Buyer agrees to offer, sell or otherwise transfer the
Private Note only in conformity with the restrictions on transfer set forth in
the Indenture dated as of September 9, 1999 pursuant to which the Private Note
were issued and the legend set forth on the definitive physical certificate
evidencing the Private Note.
(c) Buyer acknowledges that you and others will rely upon our
confirmations, acknowledgments and agreements set forth herein, and Buyer agrees
to notify you promptly in writing if any of the information herein ceases to be
accurate and complete.
8
<PAGE> 95
------------------------------------------
Print Name of Buyer
By:
---------------------------------------
Name:
Title:
Date:
------------------------------------
<PAGE> 1
EXHIBIT 4.2
================================================================================
TRUST AGREEMENT
BETWEEN
CAPITAL AUTO RECEIVABLES, INC.
SELLER
AND
BANKERS TRUST (DELAWARE)
OWNER TRUSTEE
DATED AS OF SEPTEMBER 9, 1999
================================================================================
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
<S> <C> <C>
ARTICLE I DEFINITIONS AND INCORPORATION BY REFERENCE....................................1
Section 1.1 Definitions...................................................................1
ARTICLE II ORGANIZATION..................................................................1
Section 2.1 Name..........................................................................1
Section 2.2 Office........................................................................1
Section 2.3 Purposes and Powers...........................................................1
Section 2.4 Appointment of Owner Trustee..................................................2
Section 2.5 Initial Capital Contribution of Owner Trust Estate............................2
Section 2.6 Declaration of Trust..........................................................2
Section 2.7 Liability of the Certificateholders...........................................3
Section 2.8 Title to Trust Property.......................................................3
Section 2.9 Situs of Trust................................................................3
Section 2.10 Representations and Warranties of the Seller..................................3
Section 2.11 Tax Treatment.................................................................4
ARTICLE III THE CERTIFICATES..............................................................4
Section 3.1 Initial Certificate Ownership.................................................4
Section 3.2 Form of the Certificates......................................................4
Section 3.3 Execution, Authentication and Delivery........................................5
Section 3.4 Registration; Registration of Transfer and Exchange of Certificates...........5
Section 3.5 Mutilated, Destroyed, Lost or Stolen Certificates.............................6
Section 3.6 Persons Deemed Certificateholders.............................................7
Section 3.7 Access to List of Certificateholders' Names and Addresses.....................7
Section 3.8 Maintenance of Corporate Trust Office.........................................7
Section 3.9 Appointment of Paying Agent...................................................7
Section 3.10 [Reserved]....................................................................8
Section 3.11 Book-Entry Certificates.......................................................8
Section 3.12 Notices to Clearing Agency....................................................9
Section 3.13 Definitive Certificates.......................................................9
Section 3.14 Seller as Certificateholder...................................................9
ARTICLE IV ACTIONS BY OWNER TRUSTEE.....................................................10
Section 4.1 Prior Notice to Certificateholders with
Respect to Certain Matters...................................................10
Section 4.2 Action by Certificateholders with
Respect to Certain Matters...................................................10
Section 4.3 Action by Certificateholders with Respect to Bankruptcy......................11
Section 4.4 Restrictions on Certificateholders' Power....................................11
Section 4.5 Majority Control.............................................................11
</TABLE>
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<PAGE> 3
<TABLE>
<S> <C> <C>
ARTICLE V APPLICATION OF TRUST FUNDS; CERTAIN DUTIES...................................11
Section 5.1 Establishment of Certificate Distribution Account............................11
Section 5.2 Application of Trust Funds...................................................12
Section 5.3 Method of Payment............................................................13
Section 5.4 Accounting and Reports to the Certificateholders,
the Internal Revenue Service and Others....................................13
Section 5.5 Signature on Returns; Other Tax Matters......................................13
ARTICLE VI THE OWNER TRUSTEE............................................................14
Section 6.1 Duties of Owner Trustee......................................................14
Section 6.2 Rights of Owner Trustee......................................................15
Section 6.3 Acceptance of Trusts and Duties..............................................15
Section 6.4 Action upon Instruction by Certificateholders................................17
Section 6.5 Furnishing of Documents......................................................17
Section 6.6 Representations and Warranties of Owner Trustee..............................17
Section 6.7 Reliance; Advice of Counsel..................................................18
Section 6.8 Owner Trustee May Own Certificates and Notes.................................19
Section 6.9 Compensation and Indemnity...................................................19
Section 6.10 Replacement of Owner Trustee.................................................19
Section 6.11 Merger or Consolidation of Owner Trustee.....................................20
Section 6.12 Appointment of Co-Trustee or Separate Trustee................................20
Section 6.13 Eligibility Requirements for Owner Trustee...................................21
ARTICLE VII TERMINATION OF TRUST AGREEMENT...............................................22
Section 7.1 Termination of Trust Agreement...............................................22
ARTICLE VIII AMENDMENTS...................................................................23
Section 8.1 Amendments Without Consent of Certificateholders
or Noteholders.............................................................23
Section 8.2 Amendments With Consent of Certificateholders
and Noteholders............................................................23
Section 8.3 Form of Amendments...........................................................24
ARTICLE IX MISCELLANEOUS................................................................25
Section 9.1 No Legal Title to Owner Trust Estate.........................................25
Section 9.2 Limitations on Rights of Others..............................................25
Section 9.3 Derivative Actions...........................................................25
Section 9.4 Notices......................................................................25
Section 9.5 Severability.................................................................25
Section 9.6 Counterparts.................................................................26
Section 9.7 Successors and Assigns.......................................................26
Section 9.8 No Petition..................................................................26
Section 9.9 No Recourse..................................................................26
Section 9.10 Headings.....................................................................26
Section 9.11 Governing Law................................................................26
Section 9.12 Certificate Transfer Restrictions............................................27
</TABLE>
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<PAGE> 4
<TABLE>
<S> <C> <C>
Section 9.13 Indemnification by and Reimbursement of the Servicer.........................27
</TABLE>
EXHIBITS
Exhibit A Form of Certificate
Exhibit B Form of Certificate of Trust
Exhibit C Form of Certificate Depositary Agreement
Exhibit D Undertaking Letter
iii
<PAGE> 5
TRUST AGREEMENT, dated as of September 9, 1999, between CAPITAL AUTO
RECEIVABLES, INC., a Delaware corporation, as Seller, and BANKERS TRUST
(DELAWARE), a Delaware banking corporation, as Owner Trustee.
The Seller and the Owner Trustee hereby 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
this Trust Agreement, 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 "Capital
Auto Receivables Asset Trust 1999-2" 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 sue 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 Certificateholders
and the Seller.
SECTION 2.3 PURPOSES AND POWERS. 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;
(ii) to issue the Notes pursuant to the Indenture and the
Certificates pursuant to this Agreement, and to sell, transfer or
exchange the Notes and the Certificates;
(iii) to acquire certain property and assets from the Seller
pursuant to the Trust Sale and Servicing Agreement, to make payments to
the Noteholders and the
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<PAGE> 6
Certificateholders, to make deposits into and withdrawals from the
Reserve Account and to pay the organizational, start-up and
transactional expenses of the Trust;
(iv) 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 Certificateholders 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;
(v) to enter into and perform its obligations and exercise its
rights under the Basic Documents to which it is to be a party;
(vi) 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,
including entering into interest rate swaps and caps and other
derivative instruments; and
(vii) 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 Certificateholders and the Noteholders.
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 set forth herein 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
beneficial 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 hereto created by this Agreement shall not
constitute indebtedness for any purpose. Effective as of the date hereof, the
Owner Trustee shall have all rights, powers and duties set forth herein and in
the Business Trust Statute with respect to accomplishing the purposes of the
Trust.
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<PAGE> 7
SECTION 2.7 LIABILITY OF THE CERTIFICATEHOLDERS. Certificateholders and
holders of beneficial interests therein shall be entitled to the same limitation
of personal liability extended to stockholders of private corporations for
profit organized under the Delaware General Corporation Law.
SECTION 2.8 TITLE TO TRUST PROPERTY. Legal title to all the Owner Trust
Estate shall be vested at all times in the Trust as a separate legal entity
except where applicable law in any jurisdiction requires title to any part of
the Owner Trust Estate to be vested in a trustee or trustees, in which case
title shall be deemed to be vested in the Owner Trustee, a co-trustee and/or a
separate trustee, as the case may be.
SECTION 2.9 SITUS OF TRUST. The Trust shall be located and administered
in the States of Delaware or New York. All bank accounts maintained by the Owner
Trustee on behalf of the Trust shall be located in the State of Delaware or the
State of New York. The Trust shall not have any employees in any state other
than Delaware; provided, however, that nothing herein shall restrict or prohibit
the Owner Trustee from having employees within or without the State of Delaware.
Payments shall be received by the Trust only in Delaware or New York, and
payments will be made by the Trust only from Delaware or New York. The only
office of the Trust shall be the Corporate Trust Office in Delaware.
SECTION 2.10 REPRESENTATIONS AND WARRANTIES OF THE SELLER. The Seller
hereby represents and warrants to the Owner Trustee that:
(a) The Seller has been duly organized and is validly existing
as a corporation in good standing under the laws of the State of
Delaware, with power and authority to own its properties and to conduct
its business as such properties are presently owned and such business
is presently conducted and had at all relevant times, and now has,
power, authority and legal right to acquire and own the Receivables.
(b) The Seller is duly qualified to do business as a foreign
corporation in good standing, 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.
(c) The Seller has the power and authority to execute and
deliver this Agreement and to carry out its terms, the Seller has full
power and authority to sell and assign the property to be sold and
assigned to and deposited with the Issuer as part of the Trust and the
Seller has duly authorized such sale and assignment to the Issuer by
all necessary corporate action; and the execution, delivery and
performance of this Agreement have been duly authorized by the Seller
by all necessary corporate action.
(d) The consummation of the transactions contemplated by this
Agreement and the fulfillment of the terms of this Agreement do 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 or other instrument to which the Seller is a
party or by which it is bound, or result in the
-3-
<PAGE> 8
creation or imposition of any Lien upon any of its properties pursuant
to the terms of any such indenture, agreement 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 court or of any federal or state
regulatory body, administrative agency or other governmental
instrumentality having jurisdiction over the Seller or any of its
properties.
SECTION 2.11 TAX TREATMENT. The Seller and the Owner Trustee, by
entering into this Agreement, and the Certificateholders, by acquiring any
Certificates or interest therein, (i) express their intention that the
Certificates will qualify as equity interests in a grantor trust for federal
income tax purposes or, if the Internal Revenue Service were to contend
successfully that the Trust is not a grantor trust, as a partnership for federal
income tax purposes and (ii) unless otherwise required by the appropriate taxing
authorities, agree to treat the Certificates as equity interests in an entity as
described in clause (i) of this Section 2.11 for the purposes of federal income
taxes, 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. The parties agree that, unless otherwise required by appropriate tax
authorities, the Trust shall file or cause to be filed annual or other necessary
returns, reports and other forms consistent with such characterization of the
Trust for such tax purposes.
ARTICLE III
THE CERTIFICATES
SECTION 3.1 INITIAL CERTIFICATE OWNERSHIP. Upon the formation of the
Trust by the contribution by the Seller pursuant to Section 2.5 and until the
issuance of the Certificates, the Seller shall be the sole Certificateholder.
SECTION 3.2 FORM OF THE CERTIFICATES.
(a) The Certificates shall be substantially in the form set forth in
Exhibit A and shall be issued in minimum denominations of $20,000 and integral
multiples of $1,000 in excess thereof; provided, however, that one Certificate
may be issued in a denomination that includes any residual amount. 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 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.
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<PAGE> 9
(c) The Certificates shall be issued in fully-registered form. The
terms of the Certificates set forth in Exhibit A shall form part of this
Agreement.
SECTION 3.3 EXECUTION, AUTHENTICATION AND DELIVERY. Concurrently with
the sale of the Receivables to the Trust pursuant to the Trust Sale and
Servicing Agreement, the Owner Trustee shall cause the Certificates in an
aggregate principal amount equal to the initial Certificate Balance 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. No Certificate shall entitle its holder to any benefit
under this Agreement, or shall be valid for any purpose, unless there shall
appear on such Certificate a certificate of authentication substantially in the
form set forth in Exhibit A, executed by the Owner Trustee or Bankers Trust
Company, as 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.
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 such that the
denomination of any resulting Certificate is less than $20,000. Bankers Trust
Company shall be the initial Certificate Registrar. Upon any resignation of a
Certificate Registrar, the Owner Trustee shall promptly appoint a successor or,
if it elects not to make such an appointment, assume the duties of Certificate
Registrar.
(b) 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 Bankers
Trust Company as its authenticating agent to authenticate and deliver), in the
name of the designated transferee or transferees, one or more new Certificates
in authorized denominations of a like aggregate amount dated the date of
authentication by the Owner Trustee or any authenticating agent. Notwithstanding
the foregoing, if the Seller shall have advised the Owner Trustee in writing
that an Undertaking Letter shall be required with respect to any transfer, such
transfer shall not be effective unless the requirements of Section 9.12, with
respect to the delivery of an Undertaking Letter, shall have been complied with.
(c) At the option of a Holder, Certificates may be exchanged for other
Certificates of authorized denominations of a like aggregate principal 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 Bankers Trust Company 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.
-5-
<PAGE> 10
(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 3.4(b). Each Certificate
surrendered for registration of transfer or exchange shall be canceled and
subsequently destroyed or otherwise disposed of by the Owner Trustee or
Certificate Registrar in accordance with its customary practice.
(e) 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
and any other expenses of the Owner Trustee 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 Bankers Trust Company 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 in authorized
denominations of a like aggregate principal amount; provided, however, that if
any such destroyed, lost or stolen Certificate, but not a mutilated Certificate,
shall have become or within seven days shall be due and payable, then instead of
issuing a replacement Certificate the Owner Trustee may pay such destroyed, lost
or stolen Certificate when so due or payable.
(b) If, after the delivery of a replacement Certificate or payment in
respect of a destroyed, lost or stolen Certificate pursuant to Section 3.5(a), a
protected purchaser of the original Certificate in lieu of which such
replacement Certificate was issued presents for payment such original
Certificate, the Owner Trustee shall be entitled to recover such replacement
Certificate (and any distributions or payments made with respect thereto) or
such payment 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 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.
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(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 of the names and addresses of
the Certificateholders as of the most recent Record Date. Each Holder, by
receiving and holding a Certificate, shall be deemed to have agreed not to hold
any of the Servicer, the Seller or the Owner Trustee accountable by reason of
the disclosure of its name and address, regardless of the source from which such
information was derived.
SECTION 3.8 MAINTENANCE OF CORPORATE TRUST OFFICE. The Owner Trustee
shall maintain in the Borough of Manhattan, 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 Bankers Trust
Company, Four Albany Street, New York, New York 10006, 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. Except as otherwise provided
in Section 5.2, 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 Bankers Trust Company, and any co-paying agent chosen by Bankers Trust
Company, and acceptable to the Owner Trustee. Bankers Trust Company shall be
permitted to resign as Paying Agent upon 30 days' written notice to the Owner
Trustee. If Bankers Trust Company shall no longer be the Paying Agent, the
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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 payment 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,
certificate registrar or authenticating agent appointed hereunder. Any reference
in this Agreement to the Paying Agent shall include any co-paying agent unless
the context requires otherwise.
SECTION 3.10 [RESERVED].
SECTION 3.11 BOOK-ENTRY CERTIFICATES. Except for the Certificates
issued to the Seller, the Certificates, upon original issuance, shall be issued
in the form of a printed Certificate or Certificates representing Book-Entry
Certificates, to be delivered to The Depository Trust Company, the initial
Clearing Agency by or on behalf of the Trust. Such Certificate or Certificates
shall initially be registered on the Certificate Register in the name of Cede &
Co., the nominee of the initial Clearing Agency and no Certificate Owner shall
receive a definitive Certificate representing such Certificate Owner's interest
in such Certificate, except as provided in Section 3.13. Unless and until
definitive fully registered Certificates (the "Definitive Certificates") shall
have been issued to Certificate Owners pursuant to Section 3.13:
(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 payment of principal of and interest on the
Certificates and the giving of instructions or directions hereunder) as
the sole Holder of the Certificate, 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
pursuant to the Certificate Depository Agreement in the form attached
as Exhibit C, unless and until Definitive Certificates are issued
pursuant to Section 3.13, the initial Clearing Agency will make
book-entry transfers among the Clearing Agency Participants and receive
and transmit payments of principal of and interest on the Certificates
to such Clearing Agency Participants;
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(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 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;
provided, however, that the provisions of this Section 3.11 shall not be
applicable in respect of Certificates issued to the Seller. 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. Whenever a notice or other
communication to the Certificateholders is required under this Agreement, unless
and until Definitive Certificates shall have been issued to Certificate Owners
pursuant to Section 3.13, the Owner Trustee shall give all such notices and
communications specified herein to be given to Certificateholders to the
Clearing Agency and shall have no further obligation to the Certificate Owners.
SECTION 3.13 DEFINITIVE CERTIFICATES. If (a) 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, (b) 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 (c) after the
occurrence of an Event of Default or a Servicer Default, Certificate Owners
representing beneficial interests aggregating at least a majority of the Voting
Interests advise the Clearing Agency in writing that the continuation of a
book-entry system through the Clearing Agency is no longer in the best interest
of the Certificate Owners, then the Clearing Agency shall notify all Certificate
Owners and the Owner Trustee of the occurrence of any such event and of the
availability of Definitive Certificates to Certificate Owners requesting the
same. Upon surrender to the Owner Trustee of the printed Certificate or
Certificates representing the Book-Entry Certificates by the Clearing Agency,
accompanied by registration instructions, the Owner Trustee shall execute and
authenticate the 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.
Upon the issuance of Definitive Certificates, the Owner Trustee shall recognize
the Holders of the 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 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 remove the Administrator under the
Administration Agreement pursuant to Section 10 thereof, appoint a successor
Administrator pursuant to Section 10 of the Administration Agreement, remove the
Servicer under the Trust Sale and Servicing Agreement pursuant to Section 7.02
thereof or except as expressly provided in the Basic Documents, sell the
Receivables 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 written instructions signed by the Certificateholders.
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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
Certificateholders (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; provided,
however, that under no circumstances shall the Owner Trustee commence or join in
commencing any such proceeding prior to the date that is one year and one day
after the termination of the Trust.
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. The Certificateholders shall
not and shall not direct the Owner Trustee to take action that would violate the
provisions of Section 6.1 and, if given, the Owner Trustee shall not be
obligated to follow any such direction.
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 as of the close of
the preceding Distribution Date. Except as expressly provided herein, any
written notice, instruction, direction or other document 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) Except as otherwise provided in Section 5.2, the Servicer, for the
benefit of the Certificateholders, shall establish and maintain in the name of
the Trust an Eligible Deposit Account known as the Capital Auto Receivables
Asset Trust 1999-2 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.
(b) The Trust 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 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
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Rating Agency may consent) establish a new Certificate Distribution Account as
an Eligible Deposit Account and shall transfer any cash and/or any investments
to such new Certificate Distribution Account.
SECTION 5.2 APPLICATION OF TRUST FUNDS.
(a) On each Distribution Date, the Owner Trustee shall distribute to
the Certificate holders, on a pro rata basis, amounts equal to the amounts
deposited in the Certificate Distribution Account pursuant to Sections 4.06 and
4.07 of the Trust Sale and Servicing Agreement on or prior to such Distribution
Date. Notwithstanding the foregoing or anything else to the contrary in this
Agreement or the other Basic Documents, if and for so long as Certificates
representing in the aggregate a 100% beneficial interest in the Trust are held
by the Seller, (i) no Certificate Distribution Account shall be required to be
established or maintained and (ii) all distributions and payments on the
Certificates (including the final distribution as contemplated by Section 7.1(c)
hereof) required hereunder or under the Trust Sale and Servicing Agreement shall
be made directly to the Seller by the Indenture Trustee (whether or not the
Trust Sale and Servicing Agreement otherwise contemplates deposit into the
Certificate Distribution Account) and the Owner Trustee shall have no duty or
liability to see to such distribution.
(b) On each Distribution Date, the Owner Trustee shall send to each
Certificateholder the statement provided to the Owner Trustee by the Servicer
pursuant to Section 4.09(a) of the Trust Sale and Servicing Agreement on such
Distribution Date setting forth, among other things, the amount of the
distribution allocable to Certificate Balance and to interest, the Certificate
Balance after giving effect to such distribution, the balance of the Reserve
Account (and amounts, if any, distributed from the Reserve Account) and the
Total Servicing Fee with respect to such Distribution Date or Monthly Period, as
applicable; provided that no such statement shall be required to be sent by the
Owner Trustee if and for so long as the Seller is the sole Certificateholder.
(c) If any withholding tax is imposed on the Trust's payment (or
allocations of income) to a Certificateholder, such tax shall reduce the amount
otherwise distributable to the Certificate holder in accordance with this
Section 5.2; provided that the Owner Trustee shall not have an obligation to
withhold any such amount if and for so long as the Seller is the sole
Certificateholder. The Owner Trustee is hereby authorized and directed to retain
from amounts otherwise distributable to the Certificateholders sufficient funds
for the payment of any tax that is legally owed by the Trust (but such
authorization shall not prevent the Owner Trustee from contesting any such tax
in appropriate proceedings and withholding payment of such tax, if permitted by
law, pending the outcome of such proceedings). The amount of any withholding tax
imposed with respect to a Certificateholder shall be treated as cash distributed
to such Certificateholder at the time it is withheld by the Trust and remitted
to the appropriate taxing authority. If there is a possibility that withholding
tax is payable with respect to a distribution (such as a distribution to a
non-U.S. Certificateholder), the Owner Trustee may in its sole discretion
withhold such amounts in accordance with this Section 5.2(c). If a
Certificateholder wishes to apply for a refund of any such withholding tax, the
Owner Trustee shall reasonably cooperate with such Certificateholder in making
such claim so long as such Certificateholder agrees to reimburse the Owner
Trustee for any out-of-pocket expenses incurred.
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(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), distributions
required to be made to Certificateholders on any Distribution Date shall be made
to each Certificateholder of record on the related Record Date (i) by wire
transfer, in immediately available funds, to the account of such Holder at a
bank or other entity having appropriate facilities therefor, if (x) the
Certificates are Definitive Certificates, and such Certificateholder shall have
provided to the Certificate Registrar appropriate written instructions at least
five Business Days prior to such Record Date and the distribution required to be
made to such Holder on such Distribution Date exceeds $100,000 or (y) the
Certificates are Book-Entry Certificates, or, (ii) if neither clause (i)(x) nor
clause (i)(y) is applicable, by check mailed to such Certificateholder at the
address of such Certificateholder appearing in the Certificate Register.
SECTION 5.4 ACCOUNTING AND REPORTS TO THE CERTIFICATEHOLDERS, THE
INTERNAL REVENUE SERVICE AND OTHERS. The Owner Trustee shall maintain (or cause
to be maintained) the books of the Trust on a calendar year basis on the accrual
method of accounting, 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, 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 an entity described in clause (i) of Section 2.11
for federal income tax purposes, cause such tax returns to be signed in the
manner required by law and collect or cause to be collected any withholding tax
as described in and in accordance with Section 5.2(c) with respect to income or
distributions to Certificateholders. In the event that the Internal Revenue
Service were to contend successfully that the Trust is not a grantor trust but
is rather a partnership for federal income tax purposes, the Trust shall
allocate items of income, gain, deduction and loss to the partners of the Trust
in accordance with their economic interests in the Trust. With respect to
interest expense of the Trust, the Trust shall allocate to the
Certificateholders their share of the entire amount of such interest expense.
SECTION 5.5 SIGNATURE ON RETURNS; OTHER TAX MATTERS. 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. To the extent one may be
required, the Seller shall be the "tax matters partner" of the Trust pursuant to
the Code.
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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 Section 6.1(d) shall not limit the effect of Section
6.1(a) or (b);
(ii) the Owner Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer unless it is
proved that the Owner Trustee was negligent in ascertaining the
pertinent facts; and
(iii) the Owner Trustee shall not be liable with respect to
any action it takes or omits to take in good faith in accordance with a
direction received by it pursuant to Section 4.1, 4.2 or 6.4.
(e) Subject to Sections 5.1 and 5.2, monies received by the Owner
Trustee hereunder need not be segregated in any manner except to the extent
required by law or the Trust Sale and Servicing Agreement and may be deposited
under such general conditions as may be prescribed by law, and the Owner Trustee
shall not be liable for any interest thereon.
(f) The Owner Trustee shall not take any action that (i) is
inconsistent with the purposes of the Trust set forth in Section 2.3 or (ii)
would, to the actual knowledge of a Responsible Officer of the Owner Trustee,
result in the Trust's becoming taxable as a corporation for federal income tax
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purposes. 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 and directs in writing 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, Bankers
Trust (Delaware) acts solely as Owner Trustee hereunder and not in its
individual capacity and all Persons having any claim against the Owner Trustee
by reason of the transactions contemplated by this Agreement or any Basic
Document shall look only to the Owner Trust Estate for payment or satisfaction
thereof. The Owner Trustee accepts the trusts hereby created and agrees to
perform its duties hereunder with respect to such trusts but only upon the terms
of this Agreement. The Owner Trustee also agrees to disburse all monies actually
received by it constituting part of the Owner Trust Estate upon the terms of the
Basic Documents and this Agreement. The Owner Trustee shall not be liable or
accountable hereunder or under any Basic Document under any circumstances,
except for its own negligent action, its own negligent failure to act or its own
willful misconduct or 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 sen tence):
(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, or the perfection and priority of any
security interest created by any Receivable in any Financed 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 payments to be distributed to Certificate holders under
this Agreement or to Noteholders under the Indenture, including,
without limitation: the existence, condition and ownership of any
Financed Vehicle; the existence and enforceability of any insurance
thereon; the existence and contents of any Receivable on any computer
or other record thereof; the validity of the assignment of any
Receivable to the Trust or of any intervening assignment; the
completeness of any Receivable; the performance or enforcement of any
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;
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(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 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 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 willful 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.
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(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 to
the Certificateholders, promptly upon receipt of a written request therefor,
duplicates or copies of all reports, notices, requests, demands, certificates,
financial statements and any other instruments furnished to the Owner Trustee
under the Basic Documents.
SECTION 6.6 REPRESENTATIONS AND WARRANTIES OF OWNER TRUSTEE. The Owner
Trustee hereby represents and warrants to the Seller, for the benefit of the
Certificateholders, that:
(a) It is a banking corporation duly organized, validly
existing and in good standing under the laws of the state of its
incorporation. It has satisfied the eligibility requirements set forth
in Section 6.13.
(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.
(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
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to perform its duties as Owner Trustee under this Agreement or on the
transactions contemplated in this Agreement.
(d) This Agreement has been duly executed and delivered by the
Owner Trustee and constitutes the legal, valid and binding agreement of
the Owner Trustee, enforceable in accordance with its terms, except as
enforceability may be limited by bankruptcy, insolvency,
reorganization, or other similar laws affecting the enforcement of
creditors' rights in general and by general principles of equity,
regardless of whether such enforceability is considered in a proceeding
in equity or at law.
SECTION 6.7 RELIANCE; ADVICE OF COUNSEL.
(a) The Owner Trustee shall incur no liability to anyone in acting
upon any signature, instrument, notice, resolution, request, consent, order,
certificate, report, opinion, bond or other document or paper believed by it to
be genuine and believed by it to be signed by the proper party or parties and
need not investigate any fact or matter in any such document. The Owner 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: may act directly or through its agents,
attorneys, custodians or nominees (including the granting of a power of attorney
to officers of Bankers Trust Company to execute and deliver any Basic Documents,
Certificate, Note or other documents related thereto on behalf of the Owner
Trustee) 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
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 Servicer and the Owner Trustee,
and the Owner Trustee, any paying agent,
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registrar, authenticating agent or co-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, any paying agent,
registrar, authenticating agent or co-trustee and its successors, assigns,
agents and servants in accordance with the provisions of Section 6.01 of the
Trust Sale and Servicing Agreement. The indemnities contained in this Section
6.9 shall survive the resignation or termination of the Owner Trustee or the
termination of this Agreement. Any amounts paid to the Owner Trustee pursuant to
this Article VI shall be deemed not to be a part of the Owner Trust Estate
immediately after such payment.
SECTION 6.10 REPLACEMENT OF OWNER TRUSTEE.
(a) The Owner Trustee may give notice of its intent to resign and be
discharged from the trusts hereby created by giving 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).
If no successor Owner Trustee shall have been appointed pursuant to Section
6.10(b) and have accepted such appointment within 30 days after the giving of
such notice, the 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 gives notice of its intent to resign 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
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as if originally named as Owner Trustee. The Administrator shall provide notice
of such resignation or removal of the Owner Trustee to each of the Rating
Agencies.
(d) The predecessor Owner Trustee shall upon payment of its fees and
expenses deliver to the successor Owner Trustee all documents and statements and
monies held by it under this Agreement. The Administrator and the predecessor
Owner Trustee shall execute and deliver such instruments and do such other
things as may reasonably be required for fully and certainly vesting and
confirming in the successor Owner Trustee all such rights, powers, duties and
obligations.
(e) Upon acceptance of appointment by a successor Owner Trustee
pursuant to this Section 6.10, the Administrator shall mail notice of the
successor of such Owner Trustee to all Certificateholders, the Indenture
Trustee, the Noteholders and the Rating Agencies.
SECTION 6.11 MERGER OR CONSOLIDATION OF OWNER TRUSTEE. Any Person into
which the Owner Trustee may be merged or converted or with which it may be
consolidated, or any Person 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 Financed Vehicle may at the time
be located, the Administrator and the Owner Trustee acting jointly shall, at the
expense of the Servicer, have the power and shall, at the expense of the
Servicer, 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),
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except to the extent that under any law of any jurisdiction in which
any particular act or acts are to be performed, the Owner Trustee shall
be incompetent or unqualified to perform such act or acts, in which
event such rights, powers, duties and obligations (including the
holding of title to the Trust or any portion thereof in any such
jurisdiction) shall be exercised and performed singly by such separate
trustee or co-trustee, but solely at the direction of the Owner
Trustee;
(ii) no trustee under this Agreement shall be personally
liable by reason of any act or omission of any other trustee under this
Agreement; and
(iii) the Administrator and the Owner Trustee acting jointly
may at any time accept the resignation of or remove any separate
trustee or co-trustee.
(c) Any notice, request or other writing given to the Owner Trustee
shall be deemed to have been given to each of the then separate trustees and
co-trustees, as effectively as if given to each of them. Every instrument
appointing any separate trustee or co-trustee shall refer to this Agreement and
the conditions of this Article. Each separate trustee and co-trustee, upon its
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 requirement 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 a
combined capital and surplus 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 Ratings Services and at least Baa3 by Moody's Investors
Service, Inc. 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 combined
capital and surplus of such corporation shall be deemed to be its combined
capital and surplus 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.
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ARTICLE VII
TERMINATION OF TRUST AGREEMENT
SECTION 7.1 TERMINATION OF TRUST AGREEMENT.
(a) This Agreement (other than Section 6.9) and the Trust shall
terminate in accordance with Section 3808 of the Business Trust Statute and be
of no further force or effect on the final distribution by the Owner Trustee of
all monies or other property or proceeds of the Owner Trust Estate in accordance
with the terms of the Indenture, the Trust Sale and Servicing Agreement
(including the exercise by the Servicer of its option to purchase the
Receivables pursuant to Section 8.01(a) of the Trust Sale and Servicing
Agreement) and Article V. The bankruptcy, liquidation, dissolution, death or
incapacity of any Certificateholder shall not (x) operate to terminate this
Agreement or the Trust, (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 or (z) otherwise affect the rights, obligations
and liabilities of the parties hereto.
(b) Neither the Seller nor any Certificateholder shall be entitled to
revoke or terminate the Trust or this Agreement.
(c) Subject to Section 5.2(a), notice of any termination of the Trust,
specifying the Distribution Date upon which the Certificateholders shall
surrender their Certificates to the Paying Agent for payment 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 8.01(c) of the Trust
Sale and Servicing Agreement, stating: (i) the Distribution Date upon or with
respect to which final payment 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 payment; and (iii) that
the Record Date otherwise applicable to such Distribution Date is not
applicable, payments being made only upon presentation and surrender of the
Certificates at the office of the Paying Agent therein specified. The Owner
Trustee shall give such notice to the Certificate Registrar (if other than the
Owner Trustee) and the Paying Agent at the time such notice is given to
Certificateholders. Upon presentation and surrender of the Certificates, the
Paying Agent shall cause to be distributed to Certificateholders amounts
distributable on such Distribution Date pursuant to Section 5.2.
(d) If all of the Certificateholders shall not surrender their
Certificates for cancellation within six months after the date specified in the
written notice referred to in Section 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
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the Owner Trustee to the Seller, and the Owner Trustee shall have no further
liability to the Certificateholders with respect thereto.
(e) 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.
ARTICLE VIII
AMENDMENTS
SECTION 8.1 AMENDMENTS WITHOUT CONSENT OF CERTIFICATEHOLDERS OR
NOTEHOLDERS. This Agreement may be amended by the Seller and the Owner Trustee
without the consent of the Swap Counterparty or any of the Noteholders or the
Certificateholders (but with prior notice to the Swap Counterparty and to each
of the Rating Agencies), to (i) cure any ambiguity, (ii) correct or supplement
any provision in this Agreement that may be defective or inconsistent with any
other provision in this Agreement or any other Basic Document, (iii) add or
supplement any credit enhancement for the benefit of the Noteholders or the
Certificateholders (provided that if any such addition shall affect any class of
Noteholders or Certificateholders differently than any other class of
Noteholders or Certificateholders, then such addition shall not, as evidenced by
an Opinion of Counsel, adversely affect in any material respect the interests of
any class of the Noteholders or the Certificateholders), (iv) add to the
covenants, restrictions or obligations of the Seller or the Owner Trustee, (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, and (vi) add, change
or eliminate any other provision of this Agreement in any manner that shall not,
as evidenced by an Opinion of Counsel, adversely affect in any material respect
the interests of the Noteholders or the Certificateholders.
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 the
preceding Distribution Date and the consent of Certificateholders whose
Certificates evidence not less than a majority of the Voting Interests as of the
close of the preceding Distribution Date (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 (a)
increase or reduce in any manner the amount of, or accelerate or delay the
timing of, collections of payments on Receivables or distributions that shall be
required to be made on any Note or Certificate, the Pass Through Rate or the
Specified Reserve Account Balance or (b) reduce the aforesaid percentage
required to consent to any such amendment, without the consent of the holders of
all Notes and all of the Voting Interests with respect to Certificates then
outstanding. The Owner Trustee shall furnish notice to the Swap
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Counterparty and to each of the Rating Agencies prior to obtaining consent to
any proposed amendment under this Section 8.2. In no case shall this Agreement
be amended pursuant to this Section 8.2 unless either (a) the Swap Counterparty
consents in writing to such amendment or (b) the amendment will, as evidenced by
a Materiality Opinion, have no material adverse effect on the interests of the
Swap Counterparty.
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 Certificateholders,
the Noteholders 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 Certificateholders provided for in this
Agreement or in any other Basic Document) and of evidencing the authorization of
the execution thereof by Certificateholders 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
conclusively 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.
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
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, the Swap Counterparty
and the Noteholders, and nothing in this Agreement, whether express or implied,
shall
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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. 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.
SECTION 9.5 SEVERABILITY. If any one or more of the covenants,
agreements, provisions or terms of this Agreement shall be for any reason
whatsoever held invalid, then such covenants, agreements, provisions or terms
shall be deemed 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 by the parties
hereto in separate counterparts, each of which when so executed and delivered
shall be an original, but all such counterparts shall together 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. The Owner Trustee by entering this Trust
Agreement and each Certificateholder or Certificate Owner, by accepting a
Certificate (or interest therein) issued hereunder, hereby covenant and agree
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.
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SECTION 9.9 NO RECOURSE. Each Certificateholder by accepting a
Certificate (or any interest therein) acknowledges that such Person's
Certificate (or interest therein) represents beneficial interests in the Trust
only and does 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, none of the Seller, the Servicer
or the Owner Trustee in their respective individual capacities, or any of their
respective partners, beneficiaries, agents, officers, directors, employees or
successors or assigns, shall be personally liable for, or shall recourse be had
to any of them for the distribution of any amount with respect to the
Certificates or the Trust's performance of, or omission to perform, any
obligations or indemnifications contained in the Certificates, this Agreement or
the Basic Documents, it being expressly understood that such Certificateholder
obligations have been made solely by the Trust. Each Certificateholder by the
acceptance of a Certificate (or beneficial interest therein) agrees except as
expressly provided in the Basic Documents, in the event of nonpayment of any
amounts with respect to the Certificates, it shall have no claim against any of
the foregoing Persons for any deficiency, loss or claim therefrom.
SECTION 9.10 HEADINGS. The headings of the various Articles and
Sections herein are for convenience of reference only and shall not define or
limit any of the terms or provisions hereof.
SECTION 9.11 GOVERNING LAW. THIS AGREEMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE, WITHOUT REFERENCE TO ITS
CONFLICT OF LAW PROVISIONS, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE
PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
SECTION 9.12 CERTIFICATE TRANSFER RESTRICTIONS. The Certificates may
not be acquired by or for the account of a Benefit Plan. By accepting and
holding a Certificate, the Holder thereof and the Certificate Owner shall each
be deemed to have represented and warranted that it is not a Benefit Plan and,
if requested to do so by the Seller, the Certificateholder and the Certificate
Owner shall execute and deliver to the Owner Trustee an Undertaking Letter in
the form set forth in Exhibit D. The Certificates are also subject to the
minimum denomination specified in Section 3.4(a).
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 6.03(b) of
the Trust Sale and Servicing Agreement and (ii) the Seller and its directors,
officers, employees and agents in accordance with Section 3.04 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
6.01(a)(iv) of the Trust Sale and Servicing Agreement.
* * * * *
-26-
<PAGE> 31
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.
BANKERS TRUST (DELAWARE),
as Owner Trustee
By:
------------------------------
Name: Patricia Russo
Title: Vice President
CAPITAL AUTO RECEIVABLES, INC.
By:
------------------------------
Name: C.A. Ondrick
Title: Manager - Securitization
<PAGE> 32
EXHIBIT A
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 PAYMENT, 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 PAYMENT 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 MAY NOT BE ACQUIRED BY OR FOR THE ACCOUNT OF
(i) AN "EMPLOYEE BENEFIT PLAN" (AS DEFINED IN SECTION 3(3) OF THE
EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED, ("ERISA"))
THAT IS SUBJECT TO THE PROVISIONS OF TITLE I OF ERISA, (ii) A PLAN
DESCRIBED IN SECTION 4975(e)(1) OF THE 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 THE ENTITY. BY ACCEPTING AND
HOLDING THIS CERTIFICATE, THE HOLDER HEREOF AND THE CERTIFICATE OWNER
SHALL EACH BE DEEMED TO HAVE REPRESENTED AND WARRANTED THAT IT IS NOT A
BENEFIT PLAN.
CAPITAL AUTO RECEIVABLES ASSET TRUST 1999-2
6.700% ASSET BACKED CERTIFICATE
evidencing a fractional undivided interest in the Trust, as defined
below, the property of which includes a pool of retail instalment sale
contracts secured by new and used automobiles and light trucks and sold
to the Trust by Capital Auto Receivables, Inc.
(This Certificate does not represent an interest in or obligation of
Capital Auto Receivables, Inc., General Motors Acceptance Corporation
or General Motors Corpo ration or any of their respective affiliates,
except to the extent described in the Basic Documents.)
-1-
<PAGE> 33
THIS CERTIFIES THAT Capital Auto Receivables, Inc. is the
registered owner of a nonassessable, fully-paid, fractional undivided interest
in Capital Auto Receivables Asset Trust 1999-2 (the "Trust") formed by Capital
Auto Receivables, Inc., a Delaware corporation.
The Trust was created pursuant to a Trust Agreement, dated as
of September 9, 1999 (as amended and supplemented from time to time, the "Trust
Agreement"), between the Seller and Bankers Trust (Delaware), as owner trustee
(the "Owner Trustee"), a summary of certain of the pertinent provisions of which
is set forth below. To the extent not otherwise defined herein, the capitalized
terms used herein have the meanings assigned to them in the Trust Agreement.
This Certificate is one of the duly authorized Certificates
designated as "6.700% Asset Backed Certificates" (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
Business Day, commencing on October 15, 1999 (each, a "Distribution Date"), to
the person in whose name this Certificate is registered on the related Record
Date (as defined below), such Certificateholder's fractional undivided interest
in the amount of interest on and distributions in respect of Certificate Balance
to be distributed to Certificateholders on such Distribution Date; provided,
however, Certificateholders shall not receive payments in respect of the
Certificate Balance until all the Notes have been paid (or provided for) in
full. The "Record Date," with respect to any Distribution Date, means the last
day of the preceding Monthly 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 payment is legal tender for payment of
public and private debts. All payments 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.
It is the intent of the Seller, the Owner Trustee and the
Certificateholders that, 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, the Trust shall be treated
as a grantor trust or, if the Internal Revenue Service were to contend
successfully that the Trust is not a grantor trust, a partnership. Except as
otherwise required by appropriate taxing authorities, the Seller and the other
Certificateholders by acceptance of a Certificate agree to treat, and to take no
action inconsistent with the treatment of, the Certificates for such tax
purposes as interests in such a grantor trust as described in the previous
sentence.
-2-
<PAGE> 34
Each Certificateholder or Certificate Owner by its acceptance
of a Certificate (or an interest therein) covenants and agrees that such
Certificateholder shall not, prior to the date which is one year and one day
after the termination of the Trust, acquiesce, petition or otherwise invoke or
cause the Seller or the Trustee to invoke the process of any court or
governmental authority for the purpose of commencing or sustaining a case
against the Seller or the Trustee 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 the Trustee or any substantial part of its property, or ordering the
winding up or liquidation of the affairs of the Seller or the Trustee.
Except as otherwise provided in the Trust Agreement,
distributions on this Certificate shall be made as provided in the Trust
Agreement by the Owner Trustee by wire transfer or check mailed to the
Certificateholder of record in the Certificate Register without the presentation
or surrender of this Certificate or the making of any notation hereon, except
that with respect to Certificates registered on the Record Date in the name of
the nominee of the Clearing Agency (initially, such nominee to be Cede & Co.),
payments shall be made by wire transfer in immediately available funds to the
account designated by such nominee. Except as otherwise provided in the Trust
Agreement and notwithstanding the above, the final distribution on this
Certificate shall be made after due notice by the Owner Trustee of the pendency
of such distribution and only upon presentation and surrender of this
Certificate at the office maintained for such purpose by the Owner Trustee in
the Borough of Manhattan, 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 CONSTRUED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF DELAWARE, WITHOUT REFERENCE TO ITS CONFLICT OF LAW
PROVISIONS, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER
SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
-3-
<PAGE> 35
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.
CAPITAL AUTO RECEIVABLES ASSET
TRUST 1999-2
BANKERS TRUST (DELAWARE),
not in its individual capacity
but solely as Owner Trustee
Dated: September 9, 1999 By:
---------------------------
Name:
Title:
OWNER TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Certificates referred to in the within-mentioned
Trust Agreement.
BANKERS TRUST (DELAWARE), BANKERS TRUST (DELAWARE),
not in its individual not in its individual
capacity but solely OR capacity but solely
as Owner Trustee as Owner Trustee
by
as Authenticating Agent
By:
----------------------
Name: By:
Title: ---------------------------
Name:
Title:
<PAGE> 36
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 (and certain other amounts), all as
more specifically set forth herein and in the Trust Agreement and the Trust Sale
and Servicing Agreement. A copy of each of the Trust Sale and Servicing
Agreement and the Trust Agreement may be examined during normal business hours
at the principal office of the Seller, and at such other places, if any,
designated by the Seller, by any Certificateholder upon written request.
The Trust Agreement permits, with certain exceptions therein provided,
the amendment thereof and the modification of the rights and obligations of the
Seller and the rights of the Certificateholders under the Trust Agreement at any
time by the Seller and the Owner Trustee with the consent of the Holders of the
Notes evidencing not less than a majority of the Outstanding Amount of the Notes
as of the close of the preceding Distribution Date and the consent of
Certificateholders whose Certificates evidence not less than a majority of the
Voting Interests as of the close of the preceding Distribution Date. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such holder and on all future Holders of this Certificate and of any Certificate
issued upon the transfer hereof or in exchange herefor or in lieu hereof whether
or not notation of such consent is made upon this Certificate. The Trust
Agreement also permits the amendment thereof, in certain circumstances, without
the consent of the Holders of any of the Certificates or the Notes.
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 and (ii) if requested by the Seller, the
Undertaking Letter required by Section 9.12 of the Trust Agreement, and
thereupon one or more new Certificates of authorized denominations evidencing
the same aggregate interest in the Trust will be issued to the designated
transferee. The initial Certificate Registrar appointed under the Trust
Agreement is Bankers Trust Company, New York, New York.
The Certificates are issuable only as registered Certificates without
coupons in denominations of $20,000 or integral multiples of $1,000 in excess
thereof; provided, however, that one Certificate may be issued in a denomination
that includes any residual amount. As provided in the Trust Agreement and
subject to certain limitations therein set forth, Certificates are exchangeable
for new Certificates of authorized denominations evidencing the same aggregate
denomination, as requested by the Holder surrendering the same; provided,
however, that no Certificate may be subdivided such that the denomination of any
resulting Certificate is less than $20,000. 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.
<PAGE> 37
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 in accordance with
Article VII of Trust Agreement.
-2-
<PAGE> 38
ASSIGNMENT
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.
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.
<PAGE> 39
EXHIBIT B
CERTIFICATE OF TRUST OF
CAPITAL AUTO RECEIVABLES ASSET TRUST 1999-2
THIS Certificate of Trust of Capital Auto Receivables Asset Trust
1999-2 (the "Trust") is being duly executed and filed by the undersigned,
as trustee, to form a business trust under the Delaware Business Trust Act (12
Del. C. ss.3801 et seq.) (the "Act").
1. Name. The name of the business trust formed hereby is Capital
Auto Receivables Asset Trust 1999-2.
2. Delaware Trustee. The name and business address of the trustee
of the Trust in the State of Delaware are Bankers Trust (Delaware), E.A. Delle
Donne Corporate Center, Montgomery Building, 1011 Centre Road, Wilmington,
Delaware 19805-1266.
3. This Certificate of Trust shall be effective on , 1999.
IN WITNESS WHEREOF, the undersigned has executed this Certificate of
Trust in accordance with Section 3811(a)(1) of the Act.
BANKERS TRUST (DELAWARE), not in its
individual capacity but solely as
Owner Trustee under a Trust
Agreement dated as of , 1999
By:
---------------------------------
Name:
Title:
<PAGE> 40
EXHIBIT C
FORM OF CERTIFICATE DEPOSITORY AGREEMENT
<PAGE> 41
EXHIBIT D
UNDERTAKING LETTER
Capital Auto Receivables, Inc.
Corporation Trust Center
1209 Orange Street
Wilmington, DE 19801
Bankers Trust (Delaware),
as Owner Trustee of Capital Auto Receivables Asset Trust 1999-2
E.A. Delle Donne Corporate Trust Center
Montgomery Building
1011 Centre Road, Suite 200
Wilmington, DE 19805-1266
Ladies and Gentlemen:
In connection with our purchase or record or beneficial ownership of
the 6.700% Asset Backed Certificate (the "Certificate") of the Capital Auto
Receivables Asset Trust 1999-2, the undersigned purchaser, record owner or
beneficial owner hereby acknowledges, represents and warrants that such
purchaser, record owner or beneficial owner:
(1) is not, and has not acquired the Certificate by or for the benefit
of, (i) an employee benefit plan (as defined in Section 3(3) of the Employee
Retirement Income Security Act of 1974, as amended ("ERISA")) that is subject to
the provisions of Title I of ERISA, (ii) a plan described in Section 4975(e)(1)
of the Internal Revenue Code of 1986, as amended, or (iii) any entity whose
underlying assets include plan assets by reason of a plan's investment in the
entity whose underlying assets include plan assets by reason of a plan's
investment in the entity; and
(2) acknowledges that you and others will rely on our acknowledgments,
representations and warranties, and agrees to notify you promptly in writing if
any of our representations or warranties herein cease to be accurate and
complete.
------------------------------
Name of Certificate Owner
By:
---------------------------
Name:
Title:
Date:
-------------------------
-1-
<PAGE> 1
EXHIBIT 99.1
TRUST SALE AND SERVICING AGREEMENT
AMONG
GENERAL MOTORS ACCEPTANCE CORPORATION
SERVICER
CAPITAL AUTO RECEIVABLES, INC.
SELLER
AND
CAPITAL AUTO RECEIVABLES ASSET TRUST 1999-2
ISSUER
DATED AS OF SEPTEMBER 9, 1999
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
<S> <C> <C>
ARTICLE I
CERTAIN DEFINITIONS
Section 1.01 Definitions.....................................................................................1
ARTICLE II
CONVEYANCE OF RECEIVABLES; ISSUANCE OF SECURITIES
Section 2.01 Conveyance of Receivables.......................................................................1
Section 2.02 Custody of Receivable Files.....................................................................2
Section 2.03 Acceptance by Issuer............................................................................3
Section 2.04 Representations and Warranties as to the Receivables............................................3
Section 2.05 Repurchase of Receivables Upon Breach of Warranty...............................................3
Section 2.06 Issuance of Additional Variable Pay Term Notes..................................................4
ARTICLE III THE SELLER
Section 3.01 Representations of Seller.......................................................................5
Section 3.02 Liability of Seller.............................................................................6
Section 3.03 Merger or Consolidation of, or Assumption of the Obligations
of Seller; Amendment of Certificate of Incorporation............................................6
Section 3.04 Limitation on Liability of Seller and Others....................................................7
Section 3.05 Seller May Own Notes or Certificates............................................................7
ARTICLE IV
SERVICER'S COVENANTS; DISTRIBUTIONS; RESERVE ACCOUNT;
STATEMENTS TO NOTEHOLDERS AND CERTIFICATEHOLDERS
Section 4.01 Annual Statement as to Compliance; Notice of Servicer Default...................................8
Section 4.02 Annual Independent Accountants' Report..........................................................8
Section 4.03 Access to Certain Documentation and Information Regarding Receivables...........................9
Section 4.04 Amendments to Schedule of Receivables...........................................................9
Section 4.05 Assignment of Administrative Receivables and Warranty Receivables...............................9
Section 4.06 Distributions..................................................................................10
Section 4.07 Reserve Account................................................................................12
Section 4.08 Net Deposits...................................................................................14
Section 4.09 Statements to Securityholders..................................................................14
ARTICLE V
CERTIFICATEHOLDER AND NOTEHOLDER STATEMENTS AND ACCOUNTS;
COLLECTIONS, DEPOSITS AND INVESTMENTS; ADVANCES
Section 5.01 Establishment of Accounts......................................................................15
Section 5.02 Collections....................................................................................20
Section 5.03 Investment Earnings and Supplemental Servicing Fees............................................20
</TABLE>
- ii -
<PAGE> 3
<TABLE>
<S> <C> <C>
Section 5.04 Monthly Advances...............................................................................21
Section 5.05 Servicer Liquidity Advance.....................................................................21
Section 5.06 Additional Deposits............................................................................22
SECTION VI
LIABILITIES OF SERVICER AND OTHERS
Section 6.01 Liability of Servicer; Indemnities.............................................................22
Section 6.02 Merger or Consolidation of, or Assumption of the Obligations of the Servicer...................23
Section 6.03 Limitation on Liability of Servicer and Others.................................................24
Section 6.04 Delegation of Duties...........................................................................25
Section 6.05 Servicer Not to Resign.........................................................................25
ARTICLE VII
DEFAULT
Section 7.01 Servicer Defaults..............................................................................25
Section 7.02 Consequences of a Servicer Default.............................................................26
Section 7.03 Indenture Trustee to Act; Appointment of Successor.............................................27
Section 7.04 Notification to Noteholders and Certificateholders.............................................27
Section 7.05 Waiver of Past Defaults.......................................................................28
Section 7.06 Repayment of Advances..........................................................................28
ARTICLE VIII
TERMINATION
Section 8.01 Optional Purchase of All Receivables; Insolvency of Seller;
Termination of Trust...........................................................................28
ARTICLE IX
MISCELLANEOUS PROVISIONS
Section 9.01 Amendment......................................................................................31
Section 9.02 Protection of Title to Trust...................................................................32
Section 9.03 Notices........................................................................................34
Section 9.04 GOVERNING LAW..................................................................................34
Section 9.05 Severability of Provisions.....................................................................34
Section 9.06 Assignment.....................................................................................34
Section 9.07 Third-Party Beneficiaries......................................................................34
Section 9.08 Separate Counterparts..........................................................................35
Section 9.09 Headings and Cross-References..................................................................35
Section 9.10 Assignment to Indenture Trustee................................................................35
Section 9.11 No Petition Covenants..........................................................................35
Section 9.12 Limitation of Liability of Indenture Trustee and Owner Trustee.................................35
Section 9.13 Tax Treatment..................................................................................36
Section 9.14 Furnishing Documents...........................................................................36
</TABLE>
- iii -
<PAGE> 4
EXHIBIT A Locations of Schedule of Receivables
APPENDIX A Definitions and Rules of Construction
APPENDIX B Notices Addresses and Procedures
- iv -
<PAGE> 5
THIS TRUST SALE AND SERVICING AGREEMENT is made as of September 9,
1999, by and among General Motors Acceptance Corporation, a Delaware corporation
and in its capacity as Servicer under the Pooling and Servicing Agreement
described below (the "Servicer"), Capital Auto Receivables, Inc., a Delaware
corporation (the "Seller"), and Capital Auto Receivables Asset Trust 1999-2, a
Delaware business trust (the "Issuer").
WHEREAS, General Motors Acceptance Corporation has sold the Receivables
to Seller and, as Servicer, has agreed to service the Receivables pursuant to
the Pooling and Servicing Agreement.
WHEREAS, Seller desires to sell the Receivables to Issuer in exchange
for the Notes and Certificates pursuant to the terms of this Agreement, and the
Servicer desires to perform the servicing obligations set forth herein for and
in consideration of the fees and other benefits set forth in this Agreement and
in the Pooling and Servicing Agreement.
WHEREAS, Seller and the Issuer wish to set forth the terms pursuant to
which the Receivables are to be sold by the Seller to the Issuer and serviced by
the Servicer.
NOW, THEREFORE, in consideration of the foregoing, the other good and
valuable consideration and the mutual terms and covenants contained herein, the
parties hereto agree as follows:
ARTICLE I
CERTAIN DEFINITIONS
Section 1.01. Definitions. Certain capitalized terms used in the above
recitals and in this Agreement are defined in and shall have the respective
meanings assigned them in Part I of Appendix A to this Agreement. All references
herein to "the Agreement" or "this Agreement" are to this Trust Sale and
Servicing Agreement as it may be amended, supplemented or modified from time to
time, the exhibits hereto and the capitalized terms used herein which are
defined in such Appendix A, and all references herein to Articles, Sections and
subsections are to Articles, Sections or subsections of this Agreement unless
otherwise specified. The rules of construction set forth in Part II of such
Appendix A shall be applicable to this Agreement.
ARTICLE II
CONVEYANCE OF RECEIVABLES; ISSUANCE OF SECURITIES
Section 2.01. Conveyance of Receivables. In consideration of the
Issuer's delivery of the Notes and the Certificates to, or upon the order of,
the Seller, the Seller does hereby enter into this Agreement and agree to
fulfill all of its obligations hereunder and to sell, transfer, assign and
otherwise convey to the Issuer, without recourse:
-1-
<PAGE> 6
(a) all right, title and interest of the Seller in, to and under the
Receivables listed on the Schedule of Receivables which is on file at the
locations listed on Exhibit A hereto and (i) in the case of Scheduled Interest
Receivables, all monies due thereunder on and after the Cutoff Date and (ii) in
the case of Simple Interest Receivables, all monies received thereon on and
after the Cutoff Date, in each case exclusive of any amounts allocable to the
premium for physical damage insurance force-placed by the Servicer covering any
related Financed Vehicle;
(b) the interest of the Seller in the security interests in the
Financed Vehicles granted by Obligors pursuant to the Receivables and, to the
extent permitted by law, any accessions thereto;
(c) except for those Receivables originated in Wisconsin, the interest
of the Seller in any proceeds from claims on any physical damage, credit life,
credit disability or other insurance policies covering Financed Vehicles or
Obligors;
(d) the interest of the Seller in any proceeds from recourse against
Dealers on Receivables;
(e) all right, title and interest of the Seller in, to and under the
Pooling and Servicing Agreement and the Custodian Agreement, including the right
of the Seller to cause GMAC to repurchase Receivables under certain
circumstances; and
(f) the interest of the Seller in any proceeds of the property
described in clauses (a), (b) and (e) above.
It is the intention of the Seller and the Issuer that the transfer and
assignment contemplated by this Agreement shall constitute a sale of the
Receivables from the Seller to the Issuer and the beneficial interest in and
title to the Receivables shall not be part of the Seller's estate in the event
of the filing of a bankruptcy petition by or against the Seller under any
bankruptcy law. The foregoing sale does not constitute and is not intended to
result in any assumption by the Issuer of any obligation of the Seller to the
Obligors, Dealers, insurers or any other Person in connection with the
Receivables, any Dealer Agreements, any insurance policies or any agreement or
instrument relating to any of them. Within two Business Days after the Closing
Date, GMAC shall cause to be deposited into the Collection Account the
collections on the Receivables described in Section 5.07 of the Pooling and
Servicing Agreement; provided, that so long as the Monthly Remittance Conditions
are satisfied, such collections need not be deposited until the first
Distribution Date.
Section 2.02. Custody of Receivable Files. In connection with the sale,
transfer and assignment of the Receivables to the Issuer pursuant to this
Agreement, GMAC, as Custodian under the Custodian Agreement, agrees to act as
Custodian thereunder for the benefit of the Issuer. The Issuer hereby accepts
and agrees to the terms and provisions of the Custodian Agreement and designates
GMAC as custodian with respect to the Receivables Files.
Section 2.03. Acceptance by Issuer. The Issuer does hereby accept all
consideration conveyed by the Seller pursuant to Section 2.01, and declares that
the Issuer shall hold such consideration upon the trust set forth in the Trust
Agreement for the benefit of Certificateholders,
-2-
<PAGE> 7
subject to the terms and conditions of the Indenture and this Agreement. The
Issuer hereby agrees and accepts the appointment and authorization of General
Motors Acceptance Corporation as Servicer under Section 3.01 of the Pooling and
Servicing Agreement. The parties agree that this Agreement, the Indenture and
the Trust Agreement constitute the Further Transfer and Servicing Agreements for
purposes of the Pooling and Servicing Agreement and that the rights, duties and
obligations of GMAC as Servicer under the Pooling and Servicing Agreement are
subject to the provisions of Sections 6.02, 6.04, 6.05, 9.01 and Article VII
hereof.
Section 2.04. Representations and Warranties as to the Receivables.
Pursuant to Section 2.01(e), the Seller assigns to the Issuer all of its right,
title and interest in, to and under the Pooling and Servicing Agreement. Such
assigned right, title and interest includes the representations and warranties
of GMAC made to the Seller pursuant to Section 4.01 of the Pooling and Servicing
Agreement. The Seller hereby represents and warrants to the Issuer that the
Seller has taken no action which would cause such representations and warranties
of GMAC to be false in any material respect as of the Closing Date. The Seller
further acknowledges that the Issuer relies on the representations and
warranties of the Seller under this Agreement and of GMAC under the Pooling and
Servicing Agreement in accepting the Receivables in trust and executing and
delivering the Notes and the Certificates. The foregoing representation and
warranty speaks as of the Closing Date, but shall survive the sale, transfer and
assignment of the Receivables to the Issuer and the pledge thereof to the
Indenture Trustee pursuant to the Indenture.
Section 2.05. Repurchase of Receivables Upon Breach of Warranty. Upon
discovery by the Seller, the Servicer, the Owner Trustee or the Indenture
Trustee of a breach of any of the representations and warranties in Section 4.01
of the Pooling and Servicing Agreement or in Section 2.04 or Section 3.01 of
this Agreement that materially and adversely affects the interests of the
Noteholders or the Certificateholders in any Receivable, the party discovering
such breach shall give prompt written notice thereof to the others. As of the
last day of the second Monthly Period following its discovery or its receipt of
notice of breach (or, at the Seller's election, the last day of the first
Monthly Period following such discovery), unless such breach shall have been
cured in all material respects, in the event of a breach of the representations
and warranties made by the Seller in Section 2.04 or Section 3.01, the Seller
shall repurchase, or in the event of a breach of a representation and warranty
under Section 4.01 of the Pooling and Servicing Agreement the Seller and the
Servicer shall use reasonable efforts to enforce the obligation of GMAC under
Section 5.04 of the Pooling and Servicing Agreement to repurchase, such
Receivable from the Issuer on the related Distribution Date. The repurchase
price to be paid by the breaching party (the "Warranty Purchaser") shall be an
amount equal to the Warranty Payment. Upon repurchase, the Warranty Purchaser
shall be entitled to receive the Released Warranty Amount, if any. It is
understood and agreed that the obligation of the Warranty Purchaser to
repurchase any Receivable as to which a breach has occurred and is continuing,
and the obligation of the Seller and the Servicer to enforce GMAC's obligation
to repurchase such Receivables pursuant to the Pooling and Servicing
Agreement shall, if such obligations are fulfilled, constitute the sole remedy
against the Seller, the Servicer or GMAC for such breach available to the
Issuer, Swap Counterparty, Noteholders, Certificateholders, the Owner Trustee or
the Indenture Trustee. The Servicer also acknowledges its obligations to
repurchase
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Administrative Receivables from the Issuer pursuant to Section 3.08 of the
Pooling and Servicing Agreement.
Section 2.06 Issuance of Additional Variable Pay Term Notes.
(a) Subject to the terms and conditions of this Section 2.06, on the
Targeted Final Distribution Date for each class of Class A Notes, the Seller may
cause the Issuer to issue additional Variable Pay Term Notes. At the time of
issuance, the Seller shall determine, in its sole discretion, the Interest Rate
for each class of Variable Pay Term Notes, which shall equal, for each
Distribution Date, LIBOR plus a fixed percentage spread which will be determined
at the time of issuance based on market conditions but which will not exceed
2.5%, subject to the last sentence of the definition of Interest Rate. The
Seller shall also determine, in its sole discretion, the terms of any sale of an
interest in any Variable Pay Term Notes, provided that the proceeds to the Trust
in connection with the issuance of any Variable Pay Term Notes shall be fair
value based on market conditions. At the time of issuance of any additional
Variable Pay Term Notes, Standard and Poor's Ratings Services may re-affirm or
change its original ratings on the Offered Notes and the Offered Certificates.
(b) Subject to Section 2.06(c), the Seller agrees to offer the right to
purchase a 100% participation interest in each Variable Pay Term Note that may
be issued on the Targeted Final Distribution Date for a class of Class A Notes
to a commercial paper facility administered by GMAC, if any, such that the Total
Note Principal Payment Amount will be sufficient to pay such class of Class A
Notes in full on such Targeted Final Distribution Date. Neither the Seller nor
the Servicer shall be obligated to identify any other prospective purchasers for
interests in any Variable Pay Term Notes.
(c) No Variable Pay Term Notes may be issued on a Targeted Final
Distribution Date unless the following conditions are satisfied:
(iii) after giving effect to the issuance of such Variable Pay Term
Notes and all payments of principal on the Notes and payments with
respect to the Certificate Balance on that Targeted Final Distribution
Date, the sum of the outstanding principal balance of the Notes plus
the Certificate Balance shall not exceed the Aggregate Principal
Balance of the Receivables on the last day of the month immediately
preceding that Targeted Final Distribution Date;
(iv) the Interest Rate Swap shall be in full force and effect; and
(v) no Event of Default shall have occurred and be continuing.
ARTICLE III
THE SELLER
Section 3.01 Representations of Seller. The Seller makes the following
representations on which the Issuer is relying in acquiring the Receivables and
issuing the Notes and the Certificates.
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The following representations speak as of the Closing Date but shall survive the
sale, transfer and assignment of the Receivables to the Issuer.
(a) Representations and Warranties as to the Seller.
(i) Organization and Good Standing. The Seller has been duly
organized and is validly existing as a corporation in good standing
under the laws of the State of Delaware, with power and authority to
own its properties and to conduct its business as such properties are
presently owned and such business is presently conducted, and had at
all relevant times, and now has, power, authority and legal right to
acquire and own the Receivables;
(ii) Due Qualification. The Seller is duly qualified to do
business as a foreign corporation in good standing, and has obtained
all necessary licenses and approvals in all jurisdictions in which the
ownership or lease of property or the conduct of its business requires
such qualification;
(iii) Power and Authority. The Seller has the power and
authority to execute and deliver this Agreement and to carry out its
terms, the Seller has full power and authority to sell and assign the
property to be sold and assigned to and deposited with the Issuer as
part of the Trust and has duly authorized such sale and assignment to
the Issuer by all necessary corporate action; and the execution,
delivery and performance of this Agreement have been duly authorized by
the Seller by all necessary corporate action;
(iv) Valid Sale; Binding Obligations. This Agreement, when
duly executed and delivered, shall constitute a valid sale, transfer
and assignment of the Receivables, enforceable against creditors of and
purchasers from the Seller; and this Agreement when duly executed and
delivered, shall constitute a legal, valid and binding obligation of
the Seller 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;
(v) No Violation. The consummation of the transactions
contemplated by this Agreement 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 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 or other instrument, other than this Agreement, or violate
any law or, to the best of the Seller's knowledge, any order, rule or
regulation applicable to the Seller of any court or of any federal or
state regulatory body, administrative agency or other governmental
instrumentality having jurisdiction over the Seller or any of its
properties; and
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(vi) No Proceedings. To the Seller's knowledge, there are no
proceedings or investigations pending, or threatened, before any court,
regulatory body, administrative agency or other tribunal or
governmental instrumentality having jurisdiction over the Seller or its
properties (i) asserting the invalidity of this Agreement, the Notes,
the Certificates, the Indenture, the Trust Agreement, the Custodian
Agreement or the Administration Agreement, (ii) seeking to prevent the
issuance of the Notes or the Certificates or the consummation of any of
the transactions contemplated by this Agreement, the Pooling and
Servicing Agreement, the Indenture, the Trust Agreement, the Custodian
Agreement or the Administration Agreement, (iii) seeking any
determination or ruling that might materially and adversely affect the
performance by the Seller of its obligations under, or the validity or
enforceability of, this Agreement, the Pooling and Servicing Agreement,
the Notes, the Certificates, the Indenture, the Trust Agreement, the
Custodian Agreement or the Administration Agreement, or (iv) seeking to
adversely affect the federal income tax attributes of the Notes or the
Certificates.
(b) Representations and Warranties as to the Receivables.
(i) Good Title. No Receivable has been sold, transferred,
assigned or pledged by the Seller to any Person other than the Issuer;
immediately prior to the conveyance of the Receivables pursuant to this
Agreement the Seller had good and marketable title thereto, free of any Lien;
and, upon execution and delivery of this Agreement by the Seller, the Issuer
shall have all of the right, title and interest of the Seller in, to and under
the Receivables, the unpaid indebtedness evidenced thereby and the collateral
security therefor, free of any Lien.
(ii) All Filings Made. All filings (including, without
limitation, UCC filings) necessary in any jurisdiction to give the Issuer a
first priority perfected ownership interest in the Receivables shall have been
made.
Section 3.02 Liability of Seller. The Seller shall be liable in
accordance with this Agreement only to the extent of the obligations in this
Agreement specifically undertaken by the Seller.
Section 3.03 Merger or Consolidation of, or Assumption of the
Obligations of Seller; Amendment of Certificate of Incorporation.
(a) Any corporation or other entity (i) into which the Seller may be
merged or consolidated, (ii) resulting from any merger or consolidation to which
the Seller shall be a party, (iii) succeeding to the business of the Seller, or
(iv) more than 50% of the voting stock (or, if not a corporation, other voting
interests) of which is owned directly or indirectly by General Motors, which
corporation in any of the foregoing cases executes an agreement of assumption to
perform every obligation of the Seller under this Agreement, shall be the
successor to the Seller under this Agreement without the execution or filing of
any document or any further act on the part of any of the parties to this
Agreement. The Seller shall provide 10 days prior notice of any merger,
consolidation or succession pursuant to this Section 3.03 to the Rating
Agencies.
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(b) The Seller hereby agrees that during the term of this Agreement it
shall not (i) take any action prohibited by Article Fourth of its certificate of
incorporation, (ii) without the prior written consent of the Indenture Trustee
and the Owner Trustee and without giving prior written notice to the Rating
Agencies and the Swap Counterparty, amend Article Third or Fourth of its
certificate of incorporation or (iii) incur any indebtedness, or assume or
guaranty indebtedness of any other entity, other than pursuant to the Revolving
Note and the Intercompany Advance Agreement (without giving effect to any
amendment to such Note or Agreement after the date hereof, unless the Rating
Agency Condition was satisfied in connection therewith), if such action would
result in a downgrading of the then current rating of any class of the Notes.
Section 3.04 Limitation on Liability of Seller and Others. The Seller
and any director or officer or employee or agent of the Seller may rely in good
faith on the advice of counsel or on any document of any kind prima facie
properly executed and submitted by any Person respecting any matters arising
under this Agreement. The Seller and any director or officer or employee or
agent of the Seller shall be reimbursed by the Indenture Trustee or Owner
Trustee, as applicable, for any contractual damages, liability or expense
incurred by reason of such trustee's willful misfeasance, bad faith or gross
negligence (except errors in judgment) in the performance of its duties under
this Agreement, the Indenture or the Trust Agreement, or by reason of reckless
disregard of its obligations and duties under this Agreement, the Indenture or
the Trust Agreement. The Seller shall not be under any obligation to appear in,
prosecute or defend any legal action that is not incidental to its obligations
as Seller of the Receivables under this Agreement and that in its opinion may
involve it in any expense or liability.
Section 3.05 Seller May Own Notes or Certificates. Each of the Seller
and any Person controlling, controlled by or under common control with the
Seller may in its individual or any other capacity become the owner or pledgee
of Notes or Certificates with the same rights as it would have if it were not
the Seller or an affiliate thereof except as otherwise specifically provided
herein. Except as otherwise provided herein, Notes or Certificates so owned by
or pledged to the Seller or such controlling or commonly controlled Person shall
have an equal and proportionate benefit under the provisions of this Agreement,
without preference, priority or distinction as among all of such Notes or
Certificates, respectively.
ARTICLE IV
SERVICER'S COVENANTS; DISTRIBUTIONS; RESERVE ACCOUNT;
STATEMENTS TO NOTEHOLDERS AND CERTIFICATEHOLDERS
Section 4.01. Annual Statement as to Compliance; Notice of Servicer
Default.
(a) The Servicer shall deliver to the Indenture Trustee, the Swap
Counterparty and the Owner Trustee, on or before August 15 of each year,
beginning August 15, 2001, an officer's certificate signed by the President or
any Vice President of the Servicer, dated as of June 30 of such year, stating
that (i) a review of the activities of the Servicer during the preceding
12-month period (or, with respect to the first such certificate, such period as
shall have elapsed from the Closing Date
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to the date of such certificate) and of its performance under this Agreement and
under the Pooling and Servicing Agreement has been made under such officer's
supervision, and (ii) to such officer's knowledge, based on such review, the
Servicer has fulfilled all its obligations under such agreements throughout such
period, or, if there has been a default in the fulfillment of any such
obligation, specifying each such default known to such officer and the nature
and status thereof. A copy of such certificate may be obtained by any Noteholder
or Certificateholder by a request in writing to the Issuer addressed to the
Corporate Trust Office of the Indenture Trustee or the Owner Trustee, as
applicable.
(b) The Servicer shall deliver to the Indenture Trustee, the Owner
Trustee, the Swap Counterparty and to the Rating Agencies, promptly after having
obtained knowledge thereof, but in no event later than five Business Days
thereafter, written notice in an officer's certificate of any event which with
the giving of notice or lapse of time, or both, would become a Servicer Default
under Section 7.01. The Seller shall deliver to the Indenture Trustee, the Owner
Trustee, the Servicer and the Rating Agencies, promptly after having obtained
knowledge thereof, but in no event later than five Business Days thereafter,
written notice in an officer's certificate of any event which with the giving of
notice or lapse of time, or both, would become a Servicer Default under clause
(b) of Section 7.01.
Section 4.02. Annual Independent Accountants' Report.
(a) The Servicer shall cause a firm of independent accountants, who may
also render other services to the Servicer or the Seller, to deliver to the
Issuer, the Swap Counterparty and the Rating Agencies, on or before August 15 of
each year, beginning August 15, 2001 with respect to the twelve months ended on
the immediately preceding June 30 (or, with respect to the first such report,
such period as shall have elapsed from the Closing Date to the date of such
certificate), a report (the "Accountants' Report") addressed and delivered to
the Board of Directors of the Servicer and to the Indenture Trustee and the
Owner Trustee, to the effect that such firm has audited the financial statements
of the Servicer and issued its report thereon and that such audit (i) was made
in accordance with generally accepted auditing standards, (ii) included tests
relating to automotive loans serviced for others in accordance with the
requirements of the Uniform Single Audit Program for Mortgage Bankers (the
"Program"), to the extent the procedures in the Program are applicable to the
servicing obligations set forth in this Agreement and the Pooling and Servicing
Agreement, and (iii) except as described in the report, disclosed no exceptions
or errors in the records relating to automobile and light truck loans serviced
for others that, in the firm's opinion, paragraph four of the Program requires
such firm to report. In the event that such firm requires the Owner Trustee to
agree to the procedures performed by such firm, the Servicer shall direct the
Owner Trustee in writing to so agree; it being understood and agreed that the
Owner Trustee will deliver such letter of agreement in conclusive reliance upon
the direction of the Servicer and the Owner Trustee makes no independent inquiry
or investigation as to, and shall have no obligation or liability in respect of,
the sufficiency, validity or correctness of such procedures.
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(b) The Accountants' Report shall also indicate that the firm is
independent of the Seller and the Servicer within the meaning of the Code of
Professional Ethics of the American Institute of Certified Public Accountants.
(c) A copy of the Accountants' Report may be obtained by any Noteholder
or Certificateholder by a request in writing to the Issuer addressed to the
Corporate Trust Office of the Indenture Trustee or the Owner Trustee.
Section 4.03 Access to Certain Documentation and Information Regarding
Receivables. The Servicer shall provide to the Indenture Trustee and the Owner
Trustee reasonable access to the documentation regarding the Receivables. The
Servicer shall provide such access to any Noteholder or Certificateholder only
in such cases where a Noteholder or a Certificateholder is required by
applicable statutes or regulations to review such documentation. In each case,
such access shall be afforded without charge but only upon reasonable request
and during normal business hours at offices of the Servicer designated by the
Servicer. Nothing in this Section 4.03 shall derogate from the obligation of the
Servicer to observe any applicable law prohibiting disclosure of information
regarding Obligors, and the failure of the Servicer to provide access as
provided in this Section 4.03 as a result of such obligation shall not
constitute a breach of this Section 4.03.
Section 4.04 Amendments to Schedule of Receivables. If the Servicer,
during a Monthly Period, assigns to a Receivable an account number that differs
from the account number previously identifying such Receivable on the Schedule
of Receivables, the Servicer shall deliver to the Seller, the Indenture Trustee
and the Owner Trustee on or before the Distribution Date related to such Monthly
Period an amendment to the Schedule of Receivables to report the newly assigned
account number. Each such amendment shall list all new account numbers assigned
to Receivables during such Monthly Period and shall show by cross reference the
prior account numbers identifying such Receivables on the Schedule of
Receivables.
Section 4.05 Assignment of Administrative Receivables and Warranty
Receivables. Upon receipt of the Administrative Purchase Payment or the Warranty
Payment with respect to an Administrative Receivable or a Warranty Receivable,
respectively, each of the Indenture Trustee and the Owner Trustee shall assign,
without recourse, representation or warranty, to the Servicer or the Warranty
Purchaser, as applicable, all of such Person's right, title and interest in, to
and under such Administrative Receivable or Warranty Receivable, all monies due
thereon, the security interests in the related Financed Vehicle, proceeds from
any Insurance Policies, proceeds from recourse against a Dealer on such
Receivable and the interests of such Person or the Trust, as applicable, in
certain rebates of premiums and other amounts relating to the Insurance Policies
and any document relating thereto, such assignment being an assignment outright
and not for security; and the Servicer or the Warranty Purchaser, as applicable,
shall thereupon own such Receivable, and all such security and documents, free
of any further obligations to the Indenture Trustee, the Owner Trustee, the
Noteholders or the Certificateholders with respect thereto. If in any Proceeding
it is held that the Servicer may not enforce a Receivable on the ground that it
is not a real party in interest or a holder entitled to enforce the Receivable,
the Indenture Trustee or the Owner Trustee, as applicable, shall, at the
Servicer's expense, take such steps as the Servicer deems necessary to enforce
the Receivable,
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including bringing suit in the name of such Person or the names of the
Noteholders or the Certificateholders.
Section 4.06 Distributions.
(a) On or before each Determination Date, the Servicer shall calculate
the Total Available Amount, the Available Interest, the Available Principal, the
expected Variable Pay Term Notes Issuance Proceeds, if any, the Accumulation
Amount, the Total Servicing Fee, the Total Note Principal Payment Amount, the
Aggregate Noteholders' Interest Distributable Amount, the Aggregate Noteholders'
Principal Distributable Amount, the Certificateholders' Interest Distributable
Amount, the Certificateholders' Principal Distributable Amount, the net amount,
if any, payable by the Trust under the Interest Rate Swap and all other amounts
required to determine the amounts, if any, to be deposited in or paid from each
of the Collection Account, the Note Distribution Account, the Certificate
Distribution Account, the Reserve Account, the Accumulation Account and, if
applicable, the Payment Ahead Servicing Account on the related Distribution
Date.
(a) (i) On or before each Distribution Date, the Indenture Trustee
shall cause collections made during the related Monthly Period which constitute
Payments Ahead to be transferred from the Collection Account to the Servicer,
or to the Payment Ahead Servicing Account, if required pursuant to Section
5.01(e).
(ii) On or before each Distribution Date, the Indenture
Trustee shall transfer from the Payment Ahead Servicing Account (or, if
the Servicer is not required to make deposits to the Payment Ahead
Servicing Account on a daily basis pursuant to Section 5.01(e), the
Servicer shall deposit) to the Collection Account the aggregate Applied
Payments Ahead.
(iii) On or before each Distribution Date, the Indenture
Trustee shall transfer from the Collection Account to the Servicer, in
immediately available funds, reimbursement of Outstanding Monthly
Advances pursuant to Section 5.04, payment of Excess Simple Interest
Collections, if any, pursuant to Section 3.11(b) of the Pooling and
Servicing Agreement, and payments of Liquidation Expenses (and any
unpaid Liquidation Expenses from prior periods) with respect to
Receivables which became Liquidating Receivables during the related
Monthly Period pursuant to Section 3.04 of the Pooling and Servicing
Agreement.
(iv) On or before each Distribution Date, the Indenture
Trustee shall withdraw from the Reserve Account and deposit in the
Collection Account the lesser of (A) the amount of cash or other
immediately available funds deposited therein and (B) the amount, if
any, by which (x) the sum of the Total Servicing Fee, the Aggregate
Noteholders' Interest Distributable Amount, the Certificateholders'
Interest Distributable Amount, the Aggregate Noteholders' Principal
Distributable Amount, the net amount, if any, payable by the Trust
under the Interest Rate Swap and the Certificateholders' Principal
Distributable Amount for such Distribution Date exceeds (y) the sum of
the Available Interest and Available Principal for such Distribution
Date.
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(v) On or before each Distribution Date that is a Targeted
Final Distribution Date for a class of Class A Notes, the Indenture
Trustee shall withdraw from the Accumulation Account and deposit in the
Collection Account the Accumulation Amount, if any, for such
Distribution Date.
(vi) On or before the first Distribution Date during a
Sequential Amortization Period caused by the termination of the
Interest Rate Swap, the Indenture Trustee shall withdraw from the
Accumulation Account and deposit in the Collection Account the
Accumulation Amount, if any, for such Distribution Date.
(vii) On or before the first Distribution Date after the Notes
have been declared due and payable following an Event of Default, the
Indenture Trustee shall withdraw from the Accumulation Account and
deposit in the Collection Account the Accumulation Amount, if any, for
such Distribution Date.
(b) Except as otherwise provided in Section 4.06(d), on each
Distribution Date the Indenture Trustee (based on the information contained in
the Servicer's Accounting delivered on the related Determination Date pursuant
to Section 3.10 of the Pooling and Servicing Agreement) shall make the following
distributions from the Collection Account (after the withdrawals, deposits and
transfers specified in Section 4.06(b) have been made) in the following order of
priority:
(i) first, to the Servicer, to the extent of the Total
Available Amount, the Total Servicing Fee;
(ii) second, to the Swap Counterparty, to the extent of the
Total Available Amount (as such amount has been reduced by the
distributions described in clause (i) above), the net amount, if any,
due under the Interest Rate Swap (exclusive of payments due in respect
of an Early Termination Date of the Interest Rate Swap);
(iii) third, to the extent of the Total Available Amount (as
such amount has been reduced by the distributions described in clauses
(i) and (ii) above) (a) to the Note Distribution Account in respect of
the Aggregate Noteholders' Interest Distributable Amount, and (b) to
the Swap Counterparty in respect of any payments due to the Swap
Counterparty in connection with any Early Termination Date of the
Interest Rate Swap, allocated between the Note Distribution Account and
the Swap Counterparty in proportion to the amounts owing to the Swap
Counterparty in connection with such Early Termination Date and in
respect of the Aggregate Noteholders' Interest Distributable Amount;
(iv) fourth, to the Certificate Distribution Account, to the
extent of the Total Available Amount (as such amount has been reduced
by the distributions described in clauses (i), (ii) and (iii) above),
the Certificateholders' Interest Distributable Amount;
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(v) fifth, to the Note Distribution Account, to the extent
of the Total Available Amount (as such amount has been reduced by the
distributions described in clauses (i) through (iv) above), the
Aggregate Noteholders' Principal Distributable Amount;
(vi) sixth, to the Accumulation Account, to the extent of
the Total Available Amount (as such amount has been reduced by the
distributions described in clauses (i) through (v) above), the
Undistributed Principal Amount, if any;
(vii) seventh, to the Certificate Distribution Account, to
the extent of the Total Available Amount (as such amount has been
reduced by the distributions described in clauses (i) through (vi)
above), the Certificateholders' Principal Distributable Amount; and
(viii) eighth, to the Reserve Account, any portion of the
Total Available Amount remaining after the distributions described in
clauses (i) through (vii) above.
(c) Notwithstanding the foregoing, at any time that the Notes have
not been paid in full and the principal balance of the Notes has been declared
immediately due and payable following the occurrence of an Event of Default,
then until such time as the Notes have been paid in full and the Indenture has
been discharged or all Events of Default have been cured or waived as provided
in Section 5.2(b) of the Indenture, no amounts shall be deposited in or
distributed to the Certificate Distribution Account. Any such amounts otherwise
distributable to the Certificate Distribution Account shall be deposited instead
into the Note Distribution Account for payment of principal on the Notes.
Section 4.07. Reserve Account.
(a) There shall be established in the name of and maintained with
the Indenture Trustee an Eligible Deposit Account known as the Capital Auto
Receivables Asset Trust 1999-2 Reserve Account (the "Reserve Account") to
include the money and other property deposited and held therein pursuant to this
Section 4.07(a), Section 4.07(e) and Section 4.06(c). On the Closing Date, the
Seller shall deposit the Reserve Account Initial Deposit into the Reserve
Account. The Reserve Account shall not under any circumstances be deemed to be
part of or otherwise included in the Trust.
(b) If the amount on deposit in the Reserve Account on any
Distribution Date (after giving effect to all deposits therein or withdrawals
therefrom on such Distribution Date) exceeds the Specified Reserve Account
Balance for such Distribution Date, the Servicer shall instruct the Indenture
Trustee to distribute an amount equal to any such excess to the Seller; it being
understood that no such distribution from the Reserve Account shall be made to
the Seller unless the amount so on deposit in the Reserve Account exceeds such
Specified Reserve Account Balance.
(c) In order to provide for the payment to the Noteholders, the
Certificateholders and the Servicer in accordance with Sections 4.06(c) and
4.06(d), to assure availability of the amounts maintained in the Reserve Account
for the benefit of the Noteholders, the Certificateholders and the Servicer, and
as security for the performance by the Seller of its obligations hereunder, the
Seller on
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behalf of itself and its successors and assigns, hereby pledges to the Indenture
Trustee and its successors and assigns, all its rights, title and interest in
and to the Reserve Account Property, to have and to hold all such property,
rights and privileges unto the Indenture Trustee its successors and assigns, in
trust for the uses and purposes, and subject to the terms and provisions, set
forth in this Section 4.07. The Indenture Trustee hereby acknowledges such
transfer and accepts the trust hereunder and shall hold and distribute the
Reserve Account Property in accordance with the terms and provisions of this
Agreement.
(d) Each of the Seller and Servicer agree to take or cause to be
taken such further actions, to execute, deliver and file or cause to be
executed, delivered and filed such further documents and instruments (including,
without limitation, any UCC financing statements or this Agreement) as may be
determined to be necessary, in an Opinion of Counsel to the Seller delivered to
the Indenture Trustee, in order to perfect the interests created by this Section
4.07 and otherwise fully to effectuate the purposes, terms and conditions of
this Section 4.07. The Seller shall:
(i) promptly execute, deliver and file any financing
statements, amendments, continuation statements, assignments,
certificates and other documents with respect to such interests and
perform all such other acts as may be necessary in order to perfect or
to maintain the perfection of the Indenture Trustee's security
interest; and
(ii) make the necessary filings of financing statements or
amendments thereto within thirty days after the occurrence of any of
the following: (A) any change in their respective corporate names or
any trade names, (B) any change in the location of their respective
chief executive offices or principal places of business and (C) any
merger or consolidation or other change in their respective identities
or corporate structures; and shall promptly notify the Indenture
Trustee of any such filings.
(e) If the Servicer pursuant to Section 5.04 determines on any
Determination Date that it is required to make a Monthly Advance and does not do
so from its own funds, the Servicer shall instruct the Indenture Trustee to
withdraw funds from the Reserve Account and deposit them in the Collection
Account to cover any shortfall. Such payment shall be deemed to have been made
by the Servicer pursuant to Section 5.04 for purposes of making distributions
pursuant to this Agreement, but shall not otherwise satisfy the Servicer's
obligation to deliver the amount of the Monthly Advances, and the Servicer shall
within two Business Days replace any funds in the Reserve Account so used. The
Servicer shall not be entitled to reimbursement for any such deemed Monthly
Advances unless and until the Servicer shall have replaced such funds in the
Reserve Account.
Section 4.08 Net Deposits. At any time that (i) GMAC shall be the
Servicer, (ii) the Servicer shall be permitted by Section 5.02 to remit
collections on a basis other than a daily basis, and (iii) the Servicer shall be
permitted by Section 5.01(e) to remit Payments Ahead on a basis other than on a
daily basis, the Servicer, the Seller, the Indenture Trustee and the Owner
Trustee may make any remittances pursuant to this Article IV net of amounts to
be distributed by the applicable recipient to such remitting party. Nonetheless,
each such party shall account for all of the above described remittances and
distributions as if the amounts were deposited and/or transferred separately.
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Section 4.09. Statements to Securityholders.
(a) On each Distribution Date, the Owner Trustee shall (except as
otherwise provided in the Trust Agreement) deliver to each Certificateholder,
and the Indenture Trustee shall include with each distribution to each
Noteholder, a statement (which statement shall also be provided to the Rating
Agencies) prepared by the Servicer based on information in the Servicer's
Accounting furnished pursuant to Section 3.10 of the Pooling and Servicing
Agreement. Each such statement to be delivered to Certificateholders and
Noteholders, respectively, shall set forth the following information concerning
the Certificates or the Notes, as appropriate, with respect to such Distribution
Date or the preceding Monthly Period:
(i) the amount of such distribution allocable to principal
of each class of the Notes and to the Certificate Balance;
(ii) the amount of the distribution, if any, allocable to
interest on or with respect to each class of securities;
(iii) the Aggregate Principal Balance as of the close of
business on the last day of such Monthly Period (or, for the first
Distribution Date, the Initial Aggregate Principal Balance) and the
Principal Distributable Amount for such Distribution Date;
(iv) the Note Principal Balance for each class of Notes, the
Aggregate Note Principal Balance, the Certificate Balance, the Note
Pool Factor for each class of Notes and the Certificate Pool Factor,
each as of such Distribution Date after giving effect to all payments
described under clause (i) above;
(v) the amount of the Noteholders' Interest Carryover
Shortfall, the Noteholders' Principal Carryover Shortfall, the
Certificateholders' Interest Carryover Shortfall, and the
Certificateholders' Principal Carryover Shortfall, if any, and the
change in each of such amounts from the preceding Distribution Date;
(vi) the aggregate amount in the Payment Ahead Servicing
Account or on deposit with the Servicer as Payments Ahead and the
change in such amount from the previous Distribution Date;
(vii) the amount of Outstanding Monthly Advances on such
Distribution Date;
(viii) the amount of the Total Servicing Fee paid to the
Servicer with respect to the related Monthly Period;
(ix) the amount, if any, distributed to Noteholders and
Certificateholders from amounts on deposit in the Reserve Account;
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(x) the balance of the Reserve Account and the Accumulation
Account on such Distribution Date (after giving effect to changes
therein on such Distribution Date); and
(xi) LIBOR for such Distribution Date.
Each amount set forth pursuant to clauses (i), (ii), (v), (viii) and (ix) above
shall be expressed as a dollar amount per $1,000 of initial principal amount of
the Notes or of the Certificate Balance, as applicable.
(b) Within the prescribed period of time for tax reporting
purposes after the end of each calendar year during the term of this Agreement,
the Indenture Trustee and the Owner Trustee shall mail, to each Person who at
any time during such calendar year shall have been a holder of Notes or
Certificates, respectively, and received any payments thereon, a statement
containing such information as may be required by the Code and applicable
Treasury Regulations to enable such securityholder to prepare its federal income
tax returns.
ARTICLE V
CERTIFICATEHOLDER AND NOTEHOLDER STATEMENTS AND ACCOUNTS;
COLLECTIONS, DEPOSITS AND INVESTMENTS; ADVANCES
Section 5.01. Establishment of Accounts.
(a) (i) The Servicer, for the benefit of the Noteholders and
the Certificateholders and the Swap Counterparty, shall establish and maintain
in the name of the Indenture Trustee an Eligible Deposit Account known as the
Capital Auto Receivables Asset Trust 1999-2 Collection Account (the "Collection
Account"), bearing an additional designation clearly indicating that the funds
deposited therein are held for the benefit of the Noteholders, the
Certificateholders and the Swap Counterparty.
(ii) The Servicer, for the benefit of the Noteholders, shall
establish and maintain in the name of the Indenture Trustee an Eligible
Deposit Account known as the Capital Auto Receivables Asset Trust
1999-2 Note Distribution Account (the "Note Distribution Account"),
bearing an additional designation clearly indicating that the funds
deposited therein are held for the benefit of the Noteholders.
(iii) If and as required pursuant to the Trust Agreement, the
Servicer, for the benefit of the Certificateholders, shall establish
and maintain at Bankers Trust Company in the name of the Issuer an
Eligible Deposit Account known as the Capital Auto Receivables Asset
Trust 1999-2 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.
(iv) The Servicer, for the benefit of the Obligors, shall
establish and maintain in the name of the Indenture Trustee an account
known as the Capital Auto Receivables Asset Trust
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1999-2 Payment Ahead Servicing Account (the "Payment Ahead Servicing
Account"). The Payment Ahead Servicing Account shall not be property
of the Issuer.
(v) The Servicer, for the benefit of the Noteholders and
the Certificateholders, shall establish and maintain in the name of
the Indenture Trustee an Eligible Deposit Account known as the Capital
Auto Receivables Asset Trust 1999-2 Accumulation Account (the
"Accumulation Account"), bearing an additional designation clearly
indicating that the funds deposited therein are held for the benefit
of the Noteholders and the Certificateholders.
(b) (i) Each of the Designated Accounts and the Payment Ahead
Servicing Account shall be initially established with the Indenture Trustee and
shall be maintained with the Indenture Trustee so long as (A) the short-term
unsecured debt obligations of the Indenture Trustee have the Required Deposit
Rating or (B) each of the Designated Accounts are maintained in the corporate
trust department of the Indenture Trustee. All amounts held in such accounts
(including amounts, if any, which the Servicer is required to remit daily to the
Collection Account pursuant to Section 5.02) shall, to the extent permitted by
applicable laws, rules and regulations, be invested, at the written direction of
the Servicer, by such bank or trust company in Eligible Investments. Such
written direction shall constitute certification by the Servicer that any such
investment is authorized by this Section 5.01. Funds deposited in the Reserve
Account shall be invested in Eligible Investments which mature prior to the next
Distribution Date, and then only to the extent, as shall be otherwise permitted
by the Rating Agencies. Investments in Eligible Investments shall be made in the
name of the Indenture Trustee or its nominee, and such investments shall not be
sold or disposed of prior to their maturity; provided, however, that Notes held
in the Reserve Account may be sold or disposed of prior to their maturity so
long as (x) the Servicer directs the Indenture Trustee to make such sale or
disposition, (y) the Indenture Trustee gives reasonable prior notice of such
disposition to the Administrator and (z) such Notes are sold at a price equal to
or greater than the unpaid principal balance thereof if, following such sale,
the amount on deposit in the Reserve Account would be less than the Specified
Reserve Account Balance. Should the short-term unsecured debt obligations of the
Indenture Trustee (or any other bank or trust company with which the Designated
Accounts or Payment Ahead Servicing Account are maintained) no longer have the
Required Deposit Rating, then the Servicer shall within 10 Business Days (or
such longer period, not to exceed 30 calendar days, as to which each Rating
Agency shall consent), with the Indenture Trustee's assistance as necessary,
cause the Designated Accounts and the Payment Ahead Servicing Account (A) to be
moved to a bank or trust company, the short-term unsecured debt obligations of
which shall have the Required Deposit Rating, or (B) with respect to the
Designated Accounts, to be moved to the corporate trust department of the
Indenture Trustee. Investment Earnings on funds deposited in the Designated
Accounts and the Payment Ahead Servicing Account shall be payable to the
Servicer. The Servicer shall give notice of such movement to the Swap
Counterparty. The Indenture Trustee or the other Person holding the Designated
Accounts as provided in this Section 5.01(b)(i) shall be the "Securities
Intermediary." If the Securities Intermediary shall be a Person other than the
Indenture Trustee, the Servicer shall obtain the express agreement of such
Person to the obligations of the Securities Intermediary set forth in this
Section 5.01 and an Opinion of Counsel that such Person can perform such
Obligations.
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(ii) With respect to the Designated Account Property, the
Indenture Trustee agrees, by its acceptance hereof, that:
(A) Any Designated Account Property that is held in
deposit accounts shall be held solely in Eligible Deposit
Accounts. The Designated Accounts are accounts to which
Financial Assets will be credited.
(B) All securities or other property underlying any
Financial Assets credited to the Designated Accounts shall be
registered in the name of the Securities Intermediary,
indorsed to the Securities Intermediary or in blank or
credited to another securities account maintained in the name
of the Securities Intermediary and in no case will any
Financial Asset credited to any of the Designated Accounts be
registered in the name of the Issuer, the Servicer or the
Seller, payable to the order of the Issuer, the Servicer or
the Seller or specially indorsed to the Issuer, the Servicer
or the Seller except to the extent the foregoing have been
specially indorsed to the Securities Intermediary or in blank.
(C) All property delivered to the Securities
Intermediary pursuant to this Agreement will be credited upon
receipt of such property to the appropriate Designated
Account.
(D) Each item of property (whether investments,
investment property, Financial Asset, security, instrument or
cash) credited to a Designated Account shall
be treated as a "financial asset" within the meaning of
Section 8-102(a)(9) of the New York UCC.
(E) If at any time the Securities Intermediary shall
receive any order from the Indenture Trustee directing
transfer or redemption of any Financial Asset relating to the
Designated Accounts, the Securities Intermediary shall comply
with such order without further consent by the Trust, the
Servicer, the Seller or any other Person.
(F) The Designated Accounts shall be governed by the
laws of the State of New York, regardless of any provision in
any other agreement. For purposes of the UCC, New York shall
be deemed to be the Securities Intermediary's jurisdiction and
the Designated Accounts (as well as the Security Entitlements
related thereto) shall be governed by the laws of the State of
New York.
(G) The Securities Intermediary has not entered into,
and until the termination of this Agreement will not enter
into, any agreement with any other Person relating to the
Designated Accounts and/or any Financial Assets or other
property credited thereto pursuant to which it has agreed to
comply with entitlement orders (as defined in Section
8-102(a)(8) of the New York UCC) of such other Person and the
Securities Intermediary has not entered into, and until the
termination of this Agreement will not enter into, any
agreement with the Issuer, the Seller, the
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Servicer or the Indenture Trustee purporting to limit or
condition the obligation of the Securities Intermediary to
comply with entitlement orders as set forth in Section
5.01(b)(ii)(E) hereof.
(H) Except for the claims and interest of the
Indenture Trustee in the Designated Accounts, the Securities
Intermediary has no knowledge of claims to, or interests in,
the Designated Accounts or in any Financial Asset credited
thereto. If any other Person asserts any Lien, encumbrance or
adverse claim (including any writ, garnishment, judgment,
warrant of attachment, execution or similar process) against
the Designated Accounts or in any Financial Asset carried
therein, the Securities Intermediary will promptly notify the
Indenture Trustee, the Servicer and the Issuer thereof.
(I) The Securities Intermediary will promptly send
copies of all statements, confirmations and other
correspondence concerning the Designated Accounts and/or any
Designated Account Property simultaneously to each of the
Servicer and the Indenture Trustee, at the addresses set forth
in Appendix B to this Agreement.
(J) The Indenture Trustee shall maintain each item of
Designated Account Property in the particular Designated
Account to which such item originated and shall not commingle
items from different Designated Accounts.
(iii) The Servicer shall have the power, revocable by the
Indenture Trustee (or by the Owner Trustee with the consent of the
Indenture Trustee) to instruct the Indenture Trustee to make
withdrawals and payments from the Designated Accounts for the purpose
of permitting the Servicer or the Owner Trustee to carry out its
respective duties hereunder or permitting the Indenture Trustee to
carry out its duties under the Indenture.
(iv) The Indenture Trustee shall possess all right, title
and interest in and to all funds on deposit from time to time in the
Designated Accounts and in all proceeds thereof (except Investment
Earnings). Except as otherwise provided herein or in the Indenture, the
Designated Accounts shall be under the exclusive dominion and control
of the Indenture Trustee for the benefit of the Securityholders and the
Indenture Trustee shall have sole signature power and authority with
respect thereto.
(v) The Servicer shall not direct the Indenture Trustee to
make any investment of any funds or to sell any investment held in any
of the Designated Accounts unless the security interest granted and
perfected in such account shall continue to be perfected in such
investment or the proceeds of such sale, in either case without any
further action by any Person, and, in connection with any direction to
the Indenture Trustee to make any such investment or sale, if requested
by the Indenture Trustee, the Servicer shall deliver to the Indenture
Trustee an Opinion of Counsel, acceptable to the Indenture Trustee, to
such effect.
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(c) Pursuant to the Trust Agreement, the Issuer 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 Earnings). Except as otherwise provided herein or in the Trust
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 Seller 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.
(d) The Indenture Trustee, the Owner Trustee, the Securities
Intermediary and each other Eligible Deposit Institution with whom a Designated
Account or the Certificate Distribution Account is maintained waives any right
of set-off, counterclaim, security interest or bankers' lien to which it might
otherwise be entitled.
(e) At any time that each Monthly Remittance Condition is
satisfied, then (x) Payments Ahead need not be remitted to and deposited in the
Payment Ahead Servicing Account but instead may be remitted to and held by the
Servicer and (y) the Servicer shall not be required to segregate or otherwise
hold separate any Payments Ahead, but the Servicer shall be required to remit
Applied Payments Ahead to the Collection Account in accordance with Section
4.06(b)(ii). The Servicer shall promptly notify the Indenture Trustee if any
Monthly Remittance Condition ceases to be satisfied such that the Payments Ahead
will not be remitted in accordance with the prior sentence. Commencing with the
first day of the first Monthly Period that begins at least two Business Days
after the day on which any Monthly Remittance Condition ceases to be satisfied,
the Servicer shall deposit in the Payment Ahead Servicing Account the amount of
any Payments Ahead then held by it, and thereafter, for so long as a Monthly
Remittance Condition continues to be unsatisfied, the Servicer shall deposit any
additional Payments Ahead in the Payments Ahead Servicing Account within two
Business Days after receipt thereof. Notwithstanding the foregoing, if a Monthly
Remittance Condition is unsatisfied the Servicer may utilize, with respect to
the Payments Ahead, an alternative remittance schedule (which may include a
remittance schedule utilized by the Servicer at a time when the Monthly
Remittance Conditions were satisfied), if the Servicer provides to the Indenture
Trustee written confirmation from the Rating Agencies that such alternative
remittance schedule will not result in the downgrading or withdrawal by the
Rating Agencies of the ratings then assigned to the Notes and the Certificates.
Neither the Indenture Trustee nor the Owner Trustee shall be deemed to have
knowledge of any Servicer Default unless such trustee has received notice of
such event or circumstance from the other trustee, the Seller or the Servicer in
an officer's certificate or from Certificateholders whose Certificates evidence
not less than 25% of the Voting Interests as of the close of the preceding
Distribution Date or from Noteholders whose Notes evidence not less than 25% of
the Outstanding Amount of the Notes as of the close of the preceding
Distribution Date or unless a Responsible Officer in the Corporate Trust Office
of the Indenture Trustee with knowledge hereof and familiarity herewith has
actual knowledge of such event or circumstance.
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Section 5.02. Collections. If a Monthly Remittance Condition is not
satisfied, commencing with the first day of the first Monthly Period that begins
at least two Business Days after the day on which any Monthly Remittance
Condition ceases to be satisfied, the Servicer shall remit to the Collection
Account all payments by or on behalf of the Obligors (including Payments Ahead
in accordance with Section 5.01(e)) on the Receivables and all Liquidation
Proceeds within two Business Days after receipt thereof. Notwithstanding the
foregoing, if a Monthly Remittance Condition is unsatisfied, the Servicer may
utilize an alternative remittance schedule (which may include a remittance
schedule utilized by the Servicer at a time when the Monthly Remittance
Conditions were satisfied), if the Servicer provides to the Indenture Trustee
and the Swap Counterparty written confirmation from the Rating Agencies that
such alternative remittance schedule will not result in the downgrading or
withdrawal by the Rating Agencies of the ratings then assigned to the Notes or
the Certificates. At all times when all Monthly Remittance Conditions are
satisfied, the Servicer (i) shall not be required to segregate or otherwise hold
separate any Payments Ahead remitted to the Servicer and (ii) shall remit
collections received during a Monthly Period to the Collection Account in
immediately available funds on the related Distribution Date.
Section 5.03. Investment Earnings and Supplemental Servicing Fees. The
Servicer shall be entitled to receive all Investment Earnings and Supplemental
Servicing Fees when and as paid without any obligation to the Owner Trustee, the
Indenture Trustee or the Seller in respect thereof. The Servicer will have no
obligation to deposit any such amount in any account established
hereunder. To the extent that any such amount shall be held in any account held
by the Indenture Trustee or the Owner Trustee, or otherwise established
hereunder, such amount will be withdrawn therefrom and paid to the Servicer upon
presentation of a certificate signed by a Responsible Officer of the Servicer
setting forth, in reasonable detail, the amount of such Investment Earnings or
Supplemental Servicing Fees.
Section 5.04 Monthly Advances.
(a) Subject to the following sentence, as of the last day of each
Monthly Period, with respect to each Scheduled Interest Receivable (other than
an Administrative Receivable or a Warranty Receivable), if there is a shortfall
in the Scheduled Payment remaining after application of the Deferred Prepayment
pursuant to the last sentence of Section 3.11(a) of the Pooling and Servicing
Agreement, the Servicer shall advance an amount equal to such shortfall (such
amount, a "Scheduled Interest Advance"). The Servicer shall be obligated to make
a Scheduled Interest Advance in respect of a Scheduled Interest Receivable only
to the extent that the Servicer, in its sole discretion, shall determine that
such advance shall be recoverable from subsequent collections or recoveries on
any Receivable. The Servicer shall be reimbursed for Outstanding Scheduled
Interest Advances with respect to a Receivable from the following sources with
respect to such Receivable, in each case as set forth in the Pooling and
Servicing Agreement: (i) subsequent payments by or on behalf of the Obligor,
(ii) collections of Liquidation Proceeds, and (iii) the Warranty Payment. At
such time as the Servicer shall determine that any Outstanding Scheduled
Interest Advances with respect to any Scheduled Interest Receivable shall not be
recoverable from payments with respect to such Receivable, the Servicer shall be
reimbursed from any collections made on other Receivables held by the Issuer.
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(b) As of the last day of each Monthly Period, the Servicer shall
advance an amount equal to the excess, if any, of (i) the amount of interest
that would be due during such Monthly Period on all Simple Interest Receivables
held by the Issuer (assuming that the payment on each such Receivable was
received on its respective due date) over (ii) all payments received during such
Monthly Period on all Simple Interest Receivables held by the Issuer to the
extent allocable to interest (such excess, a "Simple Interest Advance"). In
addition, Liquidation Proceeds with respect to a Simple Interest Receivable
allocable to accrued and unpaid interest thereon (but not including interest for
the then current Monthly Period) shall be paid to the Servicer but only to the
extent of any Outstanding Simple Interest Advances. The Servicer shall not make
any advance with respect to principal of any Simple Interest Receivable. Excess
Simple Interest Collections shall be paid to the Servicer as provided in Section
3.11(b) of the Pooling and Servicing Agreement.
Section 5.05. Servicer Liquidity Advance. If, on a Targeted Final
Distribution Date for any class of Class A Notes, there is a binding agreement
for the sale of an interest in the Variable Pay Term Notes to be issued on such
Targeted Final Distribution Date and the Servicer determines that the proceeds
from such sale will not be received by the Trust on that Targeted Final
Distribution Date in time to make payments on the Notes on or before such
Targeted Final Distribution Date, the Servicer may, in its sole discretion, make
a liquidity advance in an amount equal to the expected proceeds if it
determines, in its sole discretion, that it has received reasonable assurances
from the purchaser of an interest in the Variable Pay Term Notes to the effect
that the full amount of the expected proceeds will be delivered within two
Business Days after such Targeted Final Distribution Date (such advance, a
"Servicer Liquidity Advance"). If the Servicer makes a Servicer Liquidity
Advance, it will be immediately reimbursed for the advance upon receipt of the
purchase price for the related Variable Pay Term Notes or an interest therein.
If such purchase price for such Variable Pay Term Notes, or an interest therein,
is not paid within two Business Days after the applicable Targeted Final
Distribution Date, the Servicer will have the right to be reimbursed out of
collections on the Receivables as and when received by the Servicer and such
Variable Pay Term Notes, if issued, will be canceled.
Section 5.06 Additional Deposits. The Servicer shall deposit in the
Collection Account the aggregate Monthly Advances pursuant to Sections 5.04(a)
and (b) and the aggregate amounts to be paid to the Issuer pursuant to Section
3.03 of the Pooling and Servicing Agreement. The Servicer and the Seller shall
deposit in the Collection Account the aggregate Administrative Purchase Payments
and Warranty Payments with respect to Administrative Receivables and Warranty
Receivables, respectively. All such deposits with respect to a Monthly Period
shall be made in immediately available funds on the Distribution Date related to
such Monthly Period.
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SECTION VI
LIABILITIES OF SERVICER AND OTHERS
Section 6.01. Liability of Servicer; Indemnities.
(a) The Servicer shall be liable in accordance with this
Agreement only to the extent of the obligations in this Agreement and the
Pooling and Servicing Agreement specifically undertaken by the Servicer. Such
obligations shall include the following:
(i) The Servicer shall defend, indemnify and hold
harmless the Indenture Trustee, the Owner Trustee, the Issuer, the
Swap Counterparty, the Noteholders and the Certificateholders from and
against any and all costs, expenses, losses, damages, claims and
liabilities arising out of or resulting from the use, ownership or
operation by the Servicer or any affiliate thereof of any Financed
Vehicle;
(ii) The Servicer shall indemnify, defend and hold
harmless the Indenture Trustee, the Owner Trustee and the Issuer from
and against any taxes that may at any time be asserted against any
such Person with respect to the transactions contemplated in this
Agreement, including, without limitation, any sales, gross receipts,
general corporation, tangible personal property, privilege or license
taxes (but not including any taxes asserted with respect to, and as of
the date of, the sale of the Receivables to the Issuer or the issuance
and original sale of the Notes and the Certificates, or asserted with
respect to ownership of the Receivables, or federal or other income
taxes arising out of distributions on the Notes or the Certificates,
or any fees or other compensation payable to any such Person) and
costs and expenses in defending against the same;
(iii) The Servicer shall indemnify, defend and hold
harmless the Indenture Trustee, the Owner Trustee, the Issuer, the
Swap Counterparty, the Noteholders and the Certificateholders from and
against any and all costs, expenses, losses, claims, damages, and
liabilities to the extent that such cost, expense, loss, claim,
damage, or liability arose out of, or was imposed upon the Indenture
Trustee, the Owner Trustee, the Issuer, the Swap Counterparty, the
Noteholders or the Certificateholders through the negligence, willful
misfeasance or bad faith of the Servicer in the performance of its
duties under this Agreement, the Pooling and Servicing Agreement, the
Indenture or the Trust Agreement or any other Basic Document or by
reason of reckless disregard of its obligations and duties under this
Agreement, the Pooling and Servicing Agreement, the Indenture or the
Trust Agreement; and
(iv) The Servicer shall indemnify, defend and hold
harmless the Indenture Trustee and the Owner Trustee, and their
respective agents and servants, from and against all costs, expenses,
losses, claims, damages and liabilities arising out of or incurred in
connection with (x) in the case of the Owner Trustee, the Indenture
Trustee's performance of its duties under the Indenture or any other
Basic Document, (y) in the case of the Indenture Trustee, the Owner
Trustee's performance of its duties under the Trust Agreement or (z)
the acceptance, administration or performance by, or action or
inaction of, the Indenture Trustee or the
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Owner Trustee, as applicable, of the trusts and duties contained in
this Agreement, the Basic Documents, the Indenture (in the case of the
Indenture Trustee), including the administration of the Trust Estate,
and the Trust Agreement (in case of the Owner Trustee), including the
administration of the Owner Trust Estate, except in each case to the
extent that such cost, expense, loss, claim, damage or liability: (A)
is due to the willful misfeasance, bad faith or negligence (except for
errors in judgment) of the Person indemnified, (B) to the extent
otherwise payable to the Indenture Trustee, arises from the Indenture
Trustee's breach of any of its representations or warranties in
Section 6.13 of the Indenture, (C) to the extent otherwise payable to
the Owner Trustee, arises from the Owner Trustee's breach of any of
its representations or warranties set forth in Section 6.6 of the
Trust Agreement, or (D) shall arise out of or be incurred in
connection with the performance by the Indenture Trustee of the duties
of successor Servicer hereunder.
(b) Indemnification under this Section 6.01 shall include, without
limitation, reasonable fees and expenses of counsel and expenses of
litigation. If the Servicer has made any indemnity payments pursuant to
this Section 6.01 and the recipient thereafter collects any of such amounts
from others, the recipient shall promptly repay such amounts collected to
the Servicer, without interest.
Section 6.02 Merger or Consolidation of, or Assumption of the
Obligations of the Servicer. Any corporation or other entity (a) into which the
Servicer may be merged or consolidated, (b) resulting from any merger,
conversion or consolidation to which the Servicer shall be a party, (c)
succeeding to the business of the Servicer, or (d) more than 50% of the voting
stock (or, if not a corporation, other voting interests) of which is owned
directly or indirectly by General Motors and which is otherwise servicing the
Seller's receivables, which corporation in any of the foregoing cases executes
an agreement of assumption to perform every obligation of the Servicer under
this Agreement and the Pooling and Servicing Agreement, shall be the successor
to the Servicer under this Agreement and the Pooling and Servicing Agreement
without the execution or filing of any paper or any further act on the part of
any of the parties to this Agreement, anything in this Agreement or in the
Pooling and Servicing Agreement to the contrary notwithstanding. The Servicer
shall provide notice of any merger, consolidation or succession pursuant to this
Section 6.02 to the Rating Agencies and the Swap Counterparty.
Section 6.03. Limitation on Liability of Servicer and Others.
(a) Neither the Servicer nor any of the directors or officers or
employees or agents of the Servicer shall be under any liability to the Issuer,
the Noteholders or the Certificateholders, except as specifically provided in
this Agreement and in the Pooling and Servicing Agreement, for any action taken
or for refraining from the taking of any action pursuant to this Agreement, the
Pooling and Servicing Agreement, the Indenture or the Trust Agreement or for
errors in judgment; provided, however, that this provision shall not protect the
Servicer or any such Person against any liability that would otherwise be
imposed by reason of willful misfeasance, bad faith or negligence (except errors
in judgment) in the performance of duties or by reason of reckless disregard of
obligations and duties under this Agreement, the Pooling and Servicing
Agreement, the Indenture or the Trust Agreement. The Servicer and any director,
officer or employee or agent of the Servicer may rely in good faith on
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the advice of counsel or on any document of any kind prima facie properly
executed and submitted by any Person respecting any matters arising under this
Agreement or the Pooling and Servicing Agreement.
(b) The Servicer and any director or officer or employee or agent
of the Servicer shall be reimbursed by the Indenture Trustee or the Owner
Trustee, as applicable, for any contractual damages, liability or expense
(including, without limitation, any obligation of the Servicer to the Indenture
Trustee or the Owner Trustee, as applicable, pursuant to Section 6.01(a)(iv)(x)
or (y)) incurred by reason of such trustee's willful misfeasance, bad faith or
gross negligence (except errors in judgment) in the performance of such
trustee's duties under this Agreement, the Indenture or the Trust Agreement or
by reason of reckless disregard of its obligations and duties under this
Agreement.
(c) Except as provided in this Agreement or in the Pooling and
Servicing Agreement, the Servicer shall not be under any obligation to appear
in, prosecute or defend any legal action that is not incidental to its duties to
service the Receivables in accordance with this Agreement and the Pooling and
Servicing Agreement and that in its opinion may involve it in any expense or
liability; provided, however, that the Servicer may undertake any reasonable
action that it may deem necessary or desirable in respect of this Agreement or
the Pooling and Servicing Agreement and the rights and duties of the parties to
this Agreement or the Pooling and Servicing Agreement and the interests of the
Noteholders and the Certificateholders under this Agreement and the Pooling and
Servicing Agreement, the interests of the Noteholders under the Indenture and
the interests of the Certificateholders under the Trust Agreement. In such
event, the legal expenses and costs for such action and any liability
resulting therefrom shall be expenses, costs and liabilities of the Trust and
the Servicer shall be entitled to be reimbursed therefor.
(d) The Applicable Trustee shall distribute out of the Collection
Account on a Distribution Date any amounts permitted for reimbursement pursuant
to Section 6.03(c) not therefor reimbursed; provided, however, that the
Applicable Trustee shall not distribute such amounts if the amount on deposit in
the Reserve Account (after giving effect to all deposits and withdrawals
pursuant to Sections 4.06(b) and (c) and Section 4.07(e), on such Distribution
Date) is greater than zero but less than the Specified Reserve Account Balance
for such Distribution Date.
Section 6.04. Delegation of Duties. So long as GMAC acts as Servicer,
the Servicer may, at any time without notice or consent, delegate any duties
under this Agreement or under the Pooling and Servicing Agreement to any
corporation or other Person more than 50% of the voting stock (or, if not a
corporation, other voting interests) of which is owned, directly or indirectly,
by General Motors. The Servicer may at any time perform specific duties as
Servicer through sub-contractors who are in the business of servicing automotive
receivables; provided, however, that no such delegation shall relieve the
Servicer of its responsibility with respect to such duties.
Section 6.05. Servicer Not to Resign. Subject to the provisions of
Section 7.02, the Servicer shall not resign from the obligations and duties
imposed on it by this Agreement and the Pooling and Servicing Agreement as
Servicer except upon determination that the performance of its duties under
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this Agreement or under the Pooling and Servicing Agreement, as the case may be,
is no longer permissible under applicable law. Any such determination permitting
the resignation of the Servicer shall be evidenced by an Opinion of Counsel to
such effect delivered to the Indenture Trustee and the Owner Trustee (with a
copy to the Swap Counterparty). No such resignation shall become effective until
the Indenture Trustee or a successor Servicer shall have assumed the
responsibilities and obligations of the Servicer in accordance with Section
7.02.
ARTICLE VII
DEFAULT
Section 7.01. Servicer Defaults. Each of the following shall
constitute a "Servicer Default":
(a) any failure by the Servicer to deliver to the Indenture Trustee
for deposit in any of the Designated Accounts or to the Owner Trustee for
deposit in the Certificate Distribution Account any required payment or to
direct the Indenture Trustee to make any required distributions therefrom,
which failure continues unremedied for a period of five Business Days after
written notice is received by the Servicer from the Indenture Trustee or the
Owner Trustee or after discovery of such failure by an officer of the Servicer;
(b) failure on the part of the Seller or the Servicer to duly
observe or perform in any material respect any other covenants or agreements of
the Seller or the Servicer set forth in this Agreement, the Pooling and
Servicing Agreement, the Indenture or the Trust Agreement which failure (i)
materially and adversely affects the rights of Noteholders or
Certificateholders, and (ii) continues unremedied for a period of 90 days after
the date on which written notice of such failure, requiring the same to be
remedied, shall have been given to the Seller or the Servicer, as applicable, by
the Indenture Trustee or the Owner Trustee, or to the Seller or the Servicer, as
applicable, and to the Indenture Trustee or the Owner Trustee by Noteholders
whose Notes evidence not less than 25% of the Outstanding Amount of the Notes as
of the close of the preceding Distribution Date or by Certificateholders whose
Certificates evidence not less than 25% of the Voting Interests as of the close
of the preceding Distribution Date;
(c) the entry of a decree or order by a court or agency or
supervisory authority having jurisdiction in the premises for the appointment of
a conservator, receiver or liquidator for the Seller or the Servicer, in any
insolvency, readjustment of debt, marshalling of assets and liabilities or
similar proceedings, or for the winding up or liquidation of their respective
affairs, and the continuance of any such decree or order unstayed and in effect
for a period of 90 consecutive days; or
(d) the consent by the Seller or the Servicer to the appointment of
a conservator or receiver or liquidator in any insolvency, readjustment of debt,
marshalling of assets and liabilities, or similar proceedings of or relating to
the Seller or the Servicer or of or relating to substantially all of their
respective property; or the Seller or the Servicer shall admit in writing its
inability to pay its debts generally as they become due, file a petition to take
advantage of any applicable insolvency or
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reorganization statute, make an assignment for the benefit of its creditors or
voluntarily suspend payment of its obligations.
Section 7.02. Consequences of a Servicer Default. If a Servicer Default
shall occur and be continuing, either the Indenture Trustee or the Noteholders
whose Notes evidence not less than a majority of the Outstanding Amount of the
Notes as of the close of the preceding Distribution Date (or, if the Notes have
been paid in full and the Indenture has been discharged in accordance with its
terms, by the Owner Trustee or Certificateholders whose Certificates evidence
not less than a majority of the Voting Interests as of the close of the
preceding Distribution Date) by notice then given in writing to the Servicer and
the Owner Trustee (and to the Indenture Trustee if given by the Noteholders or
the Certificateholders) may terminate all of the rights and obligations of the
Servicer under this Agreement and the Pooling and Servicing Agreement. On or
after the receipt by the Servicer of such written notice, all authority and
power of the Servicer under this Agreement and the Pooling and Servicing
Agreement, whether with respect to the Notes, the Certificates or the
Receivables or otherwise, shall pass to and be vested in the Indenture Trustee
pursuant to and under this Section 7.02. The Indenture Trustee is hereby
authorized and empowered to execute and deliver, on behalf of the Servicer, as
attorney-in-fact or otherwise, any and all documents and other instruments, and
to do or accomplish all other acts or things necessary or appropriate to effect
the purposes of such notice of termination, whether to complete the transfer and
endorsement of the Receivables and related documents, or otherwise. The Servicer
agrees to cooperate with the Indenture Trustee and the Owner Trustee in
effecting the termination of the responsibilities and rights of the Servicer
under this Agreement and the Pooling and Servicing Agreement, including, without
limitation, the transfer to the Indenture Trustee or the Owner Trustee for
administration by it of all cash amounts that shall at the time be held by the
Servicer for deposit, or that shall have been deposited by the Servicer in the
Collection Account, the Note Distribution Account, the Certificate Distribution
Account or the Payment Ahead Servicing Account or thereafter received with
respect to the Receivables and all Payments Ahead that shall at that time be
held by the Servicer. In addition to any other amounts that are then payable to
the Servicer under this Agreement, the Servicer shall be entitled to receive
from the successor Servicer reimbursements for any Outstanding Monthly Advances
made during the period prior to the notice pursuant to this Section 7.02 which
terminates the obligation and rights of the Servicer under this Agreement.
Section 7.03. Indenture Trustee to Act; Appointment of Successor. On
and after the time the Servicer receives a notice of termination pursuant to
Section 7.02, the Indenture Trustee shall be the successor in all respects to
the Servicer in its capacity as servicer under this Agreement and the Pooling
and Servicing Agreement and the transactions set forth or provided for in this
Agreement and the Pooling and Servicing Agreement, and shall be subject to all
the responsibilities, restrictions, duties and liabilities relating thereto
placed on the Servicer by the terms and provisions of this Agreement and the
Pooling and Servicing Agreement. As compensation therefor, the Indenture Trustee
shall be entitled to such compensation (whether payable out of the Collection
Account or otherwise) as the Servicer would have been entitled to under this
Agreement if no such notice of termination had been given including, but not
limited to, the Total Servicing Fee, Investment Earnings and Supplemental
Servicing Fees. Notwithstanding the above, the Indenture Trustee may, if it
shall be unwilling so to act, or shall, if it is legally unable so to act,
appoint, or petition a court of
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competent jurisdiction to appoint, a successor (i) having a net worth of not
less than $100,000,000, (ii) a long-term unsecured debt rating from Moody's
Investors Service, Inc. of at least Baa3 (unless such requirement is expressly
waived by Moody's Investors Service, Inc.) and (iii) whose regular business
includes the servicing of automotive receivables, as the successor to the
Servicer under this Agreement and the Pooling and Servicing Agreement in the
assumption of all or any part of the responsibilities, duties or liabilities of
the Servicer under this Agreement and the Pooling and Servicing Agreement. In
connection with such appointment and assumption, the Indenture Trustee may make
such arrangements for the compensation of such successor out of payments on
Receivables as it and such successor shall agree; provided, however, that no
such compensation shall be in excess of that permitted the Servicer under this
Agreement and the Pooling and Servicing Agreement. The Indenture Trustee and
such successor shall take such action, consistent with this Agreement and the
Pooling and Servicing Agreement, as shall be necessary to effectuate any such
succession.
Section 7.04 Notification to Noteholders and Certificateholders. Upon
any termination of, or appointment of a successor to, the Servicer pursuant to
this Article VII, the Indenture Trustee shall give prompt written notice thereof
to the Noteholders and the Rating Agencies and the Owner Trustee shall give
prompt written notice thereof to the Certificateholders.
Section 7.05 Waiver of Past Defaults. Noteholders whose Notes evidence
not less than a majority of the Outstanding Amount of the Notes as of the close
of the preceding Distribution Date (or, if all of the Notes have been paid in
full and the Indenture has been discharged in accordance with its terms,
Certificateholders whose Certificates evidence not less than a majority of the
Voting Interests as of the close of the preceding Distribution Date) may, on
behalf of all Noteholders and Certificateholders, waive any default by the
Servicer in the performance of its obligations hereunder and its consequences,
except a default in making any required deposits to or payments from any of the
accounts in accordance with this Agreement. Upon any such waiver of a past
default, such default shall cease to exist, and any Servicer Default arising
therefrom shall be deemed to have been remedied for every purpose of this
Agreement and the Pooling and Servicing Agreement. No such waiver shall extend
to any subsequent or other default or impair any right consequent thereon.
Section 7.06 Repayment of Advances. If the identity of the Servicer
shall change, the predecessor Servicer shall be entitled to receive, to the
extent of available funds, reimbursement for Outstanding Monthly Advances
pursuant to Section 5.04 in the manner specified in Section 4.06 with respect to
all Monthly Advances made by such predecessor Servicer and reimbursement for
Servicer Liquidity Advances pursuant to Section 5.05 in the manner specified in
Section 5.05 with respect to all Servicer Liquidity Advances made by such
predecessor Servicer.
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ARTICLE VIII
TERMINATION
Section 8.01 Optional Purchase of All Receivables; Insolvency of
Seller; Termination of Trust.
(a) The Servicer shall have the option to purchase the assets of
the Trust (other than the Designated Accounts and the Certificate Account) as of
any date (the "Optional Purchase Date") which is the last day of any Monthly
Period as of which the Aggregate Principal Balance is 10% or less of the
Aggregate Amount Financed. To exercise such option, the Servicer shall (i)
furnish to the Issuer and the Indenture Trustee notice of its intention to
exercise such option and of the Optional Purchase Date (such notice to be
furnished not later than 25 days prior to the Distribution Date related to such
Optional Purchase Date) and (ii) deposit in the Collection Account an amount
equal to the aggregate Administrative Purchase Payments for the Receivables
(including Liquidating Receivables), plus the appraised value of any other
property held by the Trust (less the Liquidation Expenses to be incurred in
connection with the recovery thereof), provided, that such amount (when added to
any funds then on deposit in the Designated Accounts and the Certificate
Distribution Account) must be at least equal to the aggregate Redemption Price
of the outstanding Notes to be redeemed and the Certificate Balance plus accrued
and unpaid interest on all Certificates to be retired early with such proceeds
on the Distribution Date related to the Monthly Period in which such option
is exercised plus any amount payable to the Swap Counterparty on such
Distribution Date. Such appraised value shall be determined by an appraiser
mutually satisfactory to the Servicer, the Owner Trustee and the Indenture
Trustee. The Servicer shall make such deposit in immediately available funds on
the Distribution Date related to the Optional Purchase Date, except that if any
Monthly Remittance Condition is not satisfied on the Optional Purchase Date,
such deposit shall instead be made on the Optional Purchase Date. Upon the
making of such deposit, the Servicer shall succeed to all interests in and to
the Trust (other than the Designated Accounts and the Certificate Account).
(b) Upon any sale or other disposition of the assets of the Trust
pursuant to Article V of the Indenture (an "Event of Default Sale"), the
Servicer shall instruct the Applicable Trustee to deposit into the Collection
Account from the proceeds of such disposition the amount specified in clause
SECOND of Section 5.4(b) of the Indenture (the "Event of Default Proceeds"). On
the Distribution Date on which the Event of Default Proceeds are deposited in
the Collection Account (or, if such proceeds are not so deposited on a
Distribution Date, on the Distribution Date immediately following such deposit),
the Servicer shall instruct the Applicable Trustee to make the following
deposits (after the application on such Distribution Date of the Available
Principal and the Available Interest and funds on deposit in the Reserve Account
pursuant to Sections 4.06 and 4.07) from the Event of Default Proceeds and any
funds remaining on deposit in the Reserve Account (including the proceeds of any
sale of investments therein as described in the following sentence) in the
following priority:
(i) to the Swap Counterparty, the net amount, if any, then
due to the Swap Counterparty under the Interest Rate Swap (exclusive
of payments due to the Swap Counterparty in respect of an Early
Termination Date under the Interest Rate Swap);
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(ii) second, to (a) the Note Distribution Account in respect
of the Aggregate Noteholders' Interest Distributable Amount and (b) to
the Swap Counterparty in respect of any payments due to the Swap
Counterparty in connection with any Early Termination Date of the
Interest Rate Swap, allocated between the Note Distribution Account and
the Swap Counterparty in proportion to the amounts owing to the Swap
Counterparty in connection with such Early Termination Date and in
respect of the Aggregate Noteholders' Interest Distributable Amount;
(iii) to the Note Distribution Account, any portion of the
Aggregate Noteholders' Interest Distributable Amount not otherwise
deposited into the Note Distribution Account on such Distribution Date
for payment of interest on the Notes;
(iv) to the Note Distribution Account, an amount equal to
the Note Principal Balance of the Notes (after giving effect to the
reduction in the Aggregate Note Principal Balance to result from the
deposits made in the Note Distribution Account on such Distribution
Date and on each prior Distribution Date) for payment of principal of
the Notes;
(v) to the Certificate Distribution Account, any portion of
the Certificateholders' Interest Distributable Amount not otherwise
deposited into the Certificate Distribution Account on such
Distribution Date for payment of interest on the Certificates; and
(vi) to the Certificate Distribution Account, an amount
equal to the Certificate Balance of the Certificates (after giving
effect to the reduction therein to result from the deposits made in the
Certificate Distribution Account on such Distribution Date and on each
prior Distribution Date) for payment of the Certificate Balance on the
Certificates.
Subject to Section 5.01(b), any investments on deposit in the Reserve Account
which shall not mature on or before such Distribution Date shall be sold by the
Indenture Trustee at such time as shall result in the Indenture Trustee
receiving the proceeds from such sale not later than such Distribution Date. Any
Event of Default Proceeds remaining after the deposits described above shall be
paid to the Seller.
(c) Notice of any termination of the Trust shall be given by the
Servicer to the Owner Trustee, the Indenture Trustee and the Swap Counterparty
as soon as practicable after the Servicer has received notice thereof.
(d) Following the satisfaction and discharge of the Indenture with
respect to the Notes, and the payment in full of the principal and interest on
the Notes, the Certificateholders shall succeed to the rights of the Noteholders
hereunder and the Owner Trustee shall succeed to the rights of, and assume the
obligations (other than those under Section 7.03 which shall remain obligations
of the Indenture Trustee) of, the Indenture Trustee pursuant to this Agreement
(subject to the continuing obligations of the Indenture Trustee set forth in
Section 4.4 of the Indenture).
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(e) After indefeasible payment in full to the Indenture Trustee,
the Owner Trustee, the Swap Counterparty, the Noteholders, the
Certificateholders and the Servicer of all amounts required to be paid under
this Agreement, the Indenture, the Interest Rate Swap and the Trust Agreement
(including as contemplated by this Section 8.01), (i) any amounts on deposit in
the Reserve Account, the Payment Ahead Servicing Account and the Collection
Account (after all other distributions required to be made from such accounts
have been made and provision for the payment of all liabilities of the Trust as
required by Section 3808 of the Business Trust Statute) shall be paid to the
Seller and (ii) any other assets remaining in the Trust shall be distributed to
the Seller.
ARTICLE IX
MISCELLANEOUS PROVISIONS
Section 9.01. Amendment.
(a) This Agreement may be amended by the Seller, the Servicer and
the Owner Trustee with the consent of the Indenture Trustee, but without the
consent of any of the Noteholders or the Certificateholders, (i) to cure any
ambiguity, (ii) to correct or supplement any provision in this Agreement that
may be defective or inconsistent with any other provision in this Agreement or
any other Basic Documents, (iii) to add or supplement any credit enhancement for
the benefit of the Noteholders of any class or the Certificateholders ( provided
that if any such addition shall affect any class of Noteholders or
Certificateholders differently than any other class of Noteholders or
Certificateholders, then such addition shall not, as evidenced by an Opinion of
Counsel, adversely affect in any material respect the interests of any class of
Noteholders or the Certificateholders), (iv) add to the covenants, restrictions
or obligations of the Seller, the Servicer, the Owner Trustee or the Indenture
Trustee or (v) add, change or eliminate any other provision of this Agreement in
any manner that shall not, as evidenced by an Opinion of Counsel, adversely
affect in any material respect the interests of the Noteholders or the
Certificateholders.
(b) This Agreement may also be amended from time to time by the
Seller, the Servicer and the Owner Trustee with the consent of the Indenture
Trustee, the consent of Noteholders whose Notes evidence not less than a
majority of the Outstanding Amount of the Notes as of the close of the preceding
Distribution Date, the consent of Certificateholders whose Certificates evidence
not less than a majority of the Voting Interests as of the close of the
preceding Distribution Date, (which consent, whether given pursuant to this
Section 9.01 or pursuant to any other provision of this Agreement, shall be
conclusive and binding on such Person and on all future holders of such Note or
Certificate and of any Note or Certificate issued upon the transfer thereof or
in exchange thereof or in lieu thereof whether or not notation of such consent
is made upon the Note or Certificate) 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 (i) increase
or reduce in any manner the amount of, or accelerate or delay the timing of,
collections of payments on Receivables or distributions that shall be required
to be made on any Note or Certificate, the Interest Rate for any class of Notes,
the Pass Through Rate or the Specified Reserve Account Balance or (ii) reduce
the
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aforesaid percentage required to consent to any such amendment, without the
consent of the holders of all Notes and Certificates then outstanding. In no
case shall there occur any amendment under this Section 9.01(b) of this
Agreement unless either (A) the Swap Counterparty consents to such amendment or
(B) the amendment will, as evidenced by a Materiality Opinion, have no material
and adverse effect on the interests of the Swap Counterparty.
(c) Prior to the execution of any such amendment or consent, the
Indenture Trustee shall furnish written notification of the substance of such
amendment or consent to the Rating Agencies and the Swap Counterparty.
(d) Promptly after the execution of any such amendment or consent,
the Owner Trustee shall furnish written notification of the substance of such
amendment or consent to each Noteholder, Certificateholder and, for so long as
the Interest Rate Swap is in effect, to the Swap Counterparty.
(e) It shall not be necessary for the consent of Noteholders or
Certificateholders pursuant to Section 9.01(b) 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 Noteholders or Certificateholders provided for in this
Agreement) and of evidencing the authorization of the execution thereof by
Noteholders and Certificateholders shall be subject to such reasonable
requirements as the Indenture Trustee or the Owner Trustee may prescribe,
including the establishment of record dates pursuant to paragraph number 2 of
the Depository Agreements.
(f) Prior to the execution of any amendment to this Agreement, the
Indenture Trustee and the Owner Trustee shall be entitled to receive and
conclusively rely upon an Opinion of Counsel stating that the execution of such
amendment is authorized or permitted by this Agreement and the Opinion of
Counsel referred to in Section 9.02(i). The Indenture Trustee and the Owner
Trustee may, but shall not be obligated to, enter into any such amendment which
affects such trustee's own rights, duties or immunities under this Agreement or
otherwise.
(g) Each of GMAC and the Seller agrees that such Person shall not
amend or agree to any amendment of the Pooling and Servicing Agreement unless
such amendment would be permissible under the terms of this Section 9.01 as if
this Section 9.01 were contained in the Pooling and Servicing Agreement.
Section 9.02 Protection of Title to Trust.
(a) The Seller or the Servicer or both shall execute and file such
financing statements and cause to be executed and filed such continuation and
other statements, all in such manner and in such places as may be required by
law fully to preserve, maintain and protect the interest of the Noteholders, the
Certificateholders, the Swap Counterparty and the Indenture Trustee and the
Owner Trustee under this Agreement in the Receivables and in the proceeds
thereof. The Seller or the Servicer or both shall deliver (or cause to be
delivered) to the Indenture Trustee and the Owner
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Trustee file-stamped copies of, or filing receipts for, any document filed as
provided above, as soon as available following such filing.
(b) Neither the Seller nor the Servicer shall change its name,
identity or corporate structure in any manner that would, could or might make
any financing statement or continuation statement filed in accordance with
paragraph (a) above seriously misleading within the meaning of Section 9-402(7)
of the UCC, unless it shall have given the Indenture Trustee and the Owner
Trustee at least 60 days prior written notice thereof.
(c) Each of the Seller and the Servicer shall give the Indenture
Trustee and the Owner Trustee at least 60 days prior written notice of any
relocation of its principal executive office if, as a result of such relocation,
the applicable provisions of the UCC would require the filing of any amendment
of any previously filed financing or continuation statement or of any new
financing statement. The Servicer shall at all times maintain each office from
which it services Receivables and its principal executive office within the
United States of America.
(d) The Servicer shall maintain accounts and records as to each
Receivable accurately and in sufficient detail to permit (i) the reader thereof
to know at any time the status of such Receivable, including payments and
recoveries made and payments owing (and the nature of each), and (ii)
reconciliation between payments or recoveries on (or with respect to) each
Receivable and the amounts from time to time deposited in the Collection
Account, Note Distribution Account, Certificate Distribution Account,
Accumulation Account, and Payment Ahead Servicing Account and any Payments Ahead
held by the Servicer in respect of such Receivable.
(e) The Servicer shall maintain its computer systems so that, from
and after the time of sale under this Agreement of the Receivables, the
Servicer's master computer records (including any back-up archives) that refer
to any Receivable indicate clearly that the Receivable is owned by the Issuer.
Indication of the Issuer's ownership of a Receivable shall be deleted from or
modified on the Servicer's computer systems when, and only when, the Receivable
has been paid in full or repurchased by the Seller or purchased by the Servicer.
(f) If at any time the Seller or the Servicer proposes to sell,
grant a security interest in, or otherwise transfer any interest in automotive
receivables to any prospective purchaser, lender or other transferee, the
Servicer shall give to such prospective purchaser, lender or other transferee
computer tapes, records or print-outs (including any restored from back-up
archives) that, if they refer in any manner whatsoever to any Receivable,
indicate clearly that such Receivable has been sold and is owned by the Issuer
unless such Receivable has been paid in full or repurchased by the Seller or
purchased by the Servicer.
(g) The Servicer shall permit the Indenture Trustee and the Owner
Trustee and their respective agents at any time to inspect, audit and make
copies of and abstracts from the Servicer's records regarding any Receivables
then or previously included in the Owner Trust Estate.
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(h) The Servicer shall furnish to the Indenture Trustee and the
Owner Trustee at any time upon request a list of all Receivables then held as
part of the Trust, together with a reconciliation of such list to the Schedule
of Receivables and to each of the Servicer's Accountings furnished before such
request indicating removal of Receivables from the Trust. Upon request, the
Servicer shall furnish a copy of any such list to the Seller. The Indenture
Trustee, the Owner Trustee and the Seller shall hold any such list and the
Schedule of Receivables for examination by interested parties during normal
business hours at their respective offices located at the addresses specified in
Section 9.03.
(i) The Servicer shall deliver to the Indenture Trustee and the
Owner Trustee (with a copy to the Swap Counterparty) promptly after the
execution and delivery of this Agreement and of each amendment thereto, an
Opinion of Counsel either (a) stating that, in the opinion of such counsel, all
financing statements and continuation statements have been executed and filed
that are necessary fully to preserve and protect the interest of the Indenture
Trustee and the Owner Trustee in the Receivables, and reciting the details of
such filings or referring to prior Opinions of Counsel in which such details are
given, or (b) stating that, in the opinion of such counsel, no such action is
necessary to preserve and protect such interest.
(j) To the extent required by law, the Seller shall cause the Notes
and the Certificates to be registered with the Securities and Exchange
Commission pursuant to Section 12(b) or Section 12(g) of the Securities Exchange
Act of 1934 within the time periods specified in such sections.
Section 9.03. Notices. All demands, notices and communications upon or
to the Seller, the Servicer, the Indenture Trustee, the Owner Trustee or the
Rating Agencies under this Agreement shall be delivered as specified in Appendix
B hereto. All demands upon, notices to and communications with the Swap
Counterparty under this Agreement shall be delivered in the manner specified for
notices in the Interest Rate Swap.
Section 9.04. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK, WITHOUT
REFERENCE TO ITS CONFLICT OF LAWS PROVISIONS AND THE OBLIGATIONS, RIGHTS AND
REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH
LAWS.
Section 9.05. Severability of Provisions. If any one or more of the
covenants, agreements, provisions or terms of this Agreement shall be for any
reason whatsoever held invalid, then such covenants, agreements, provisions or
terms shall be deemed 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 9.06. Assignment. Notwithstanding anything to the contrary
contained in this Agreement, this Agreement may not be assigned by the Seller
without the prior written consent of Noteholders whose Notes evidence not less
than 66% of the Outstanding Amount of the Notes as of the close of the preceding
Distribution Date and of Certificateholders whose Certificates evidence
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not less than 66% of the Voting Interests as of the close of the preceding
Distribution Date. The Seller shall provide notice of any such assignment to the
Rating Agencies and the Swap Counterparty.
Section 9.07. Third-Party Beneficiaries. This Agreement shall inure to
the benefit of and be binding upon the parties hereto and, to the extent
expressly provided herein, the Noteholders, the Certificateholders, the Swap
Counterparty and their respective successors and permitted assigns. Except as
otherwise provided in Section 6.01 or in this Article IX, no other person shall
have any right or obligation hereunder.
Section 9.08. Separate Counterparts. This Agreement may be executed by
the parties hereto in separate counterparts, each of which when so executed and
delivered shall be an original, but all such counterparts shall together
constitute but one and the same instrument.
Section 9.09. Headings and Cross-References. The various headings in
this Agreement are included for convenience only and shall not affect the
meaning or interpretation of any provision of this Agreement.
Section 9.10. Assignment to Indenture Trustee. The Seller hereby
acknowledges and consents to any mortgage, pledge, assignment and grant of a
security interest by the Issuer to the Indenture Trustee pursuant to the
Indenture for the benefit of the Noteholders, the Swap Counterparty and (only to
the extent expressly provided in the Indenture) the Certificateholders of all
right, title and interest of the Issuer in, to and under the Receivables and/or
the assignment of any or all of the Issuer's rights and obligations hereunder to
the Indenture Trustee.
Section 9.11. No Petition Covenants. Notwithstanding any prior
termination of this Agreement, the Servicer and the Seller shall not, prior to
the date which is one year and one day after the final distribution with respect
to the Notes and the Certificates to the Note Distribution Account or the
Certificate Distribution Account, as applicable, acquiesce, petition or
otherwise invoke or cause the Issuer to invoke the process of any court or
government authority for the purpose of commencing or sustaining a case against
the Issuer 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 Issuer or any substantial part of its property, or
ordering the winding up or liquidation of the affairs of the Issuer.
Section 9.12. Limitation of Liability of Indenture Trustee and Owner
Trustee.
(a) Notwithstanding anything contained herein to the contrary, this
Agreement has been acknowledged and accepted by The First National Bank of
Chicago not in its individual capacity but solely as Indenture Trustee and in no
event shall The First National Bank of Chicago have any liability for the
representations, warranties, covenants, agreements or other obligations of the
Issuer hereunder or in any of the certificates, notices or agreements delivered
pursuant hereto, as to all of which recourse shall be had solely to the assets
of the Issuer.
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(b) Notwithstanding anything contained herein to the contrary, this
Agreement has been executed by Bankers Trust (Delaware) not in its individual
capacity but solely in its capacity as Owner Trustee of the Issuer and in no
event shall Bankers Trust (Delaware) in its individual capacity or, except as
expressly provided in the Trust Agreement, as Owner Trustee of the Issuer have
any liability for the representations, warranties, covenants, agreements or
other obligations of the Issuer hereunder or in any of the certificates, notices
or agreements delivered pursuant hereto, as to all of which recourse shall be
had solely to the assets of the Issuer. For all purposes of this Agreement, in
the performance of its duties or obligations hereunder or in the performance of
any duties or obligations of the Issuer hereunder, the Owner Trustee shall be
subject to, and entitled to the benefits of, the terms and provisions of Article
VI of the Trust Agreement.
Section 9.13. Tax Treatment. The Servicer covenants that for all tax
purposes the Servicer shall regard and treat the Notes and the Certificates in a
manner consistent with the agreements (i) among the Seller, the Owner Trustee
and the Certificateholders in Section 2.11 of the Trust Agreement and (ii) among
the Seller, the Indenture Trustee and the Noteholders in Section 2.14 of the
Indenture.
Section 9.14. Furnishing Documents. The Indenture Trustee shall
furnish to Noteholders, promptly upon receipt of a written request therefor,
copies of the Pooling and Servicing Agreement, the Administration Agreement,
the Custodian Agreement, the Trust Agreement, the Indenture and this Agreement.
* * * * *
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their respective officers as of the day and year first above
written.
CAPITAL AUTO RECEIVABLES
ASSET TRUST 1999-2
By: BANKERS TRUST (DELAWARE), not in its individual
capacity but solely as Owner Trustee on behalf of
the Trust,
By:
----------------------------
Name: Patricia Russo
Attorney-in-Fact
CAPITAL AUTO RECEIVABLES, INC.,
Seller
By:
-----------------------------------
Name: C.A. Ondrick
Title: Manager - Securitization
GENERAL MOTORS ACCEPTANCE CORPORATION
By:
------------------------------------
Name: D.C. Walker
Title: Director - U.S. Funding & Securitization
Acknowledged and Accepted:
THE FIRST NATIONAL BANK OF CHICAGO,
not in its individual capacity
but solely as Indenture Trustee,
By:
---------------------------
Name: Steven M. Wagner
Title: First Vice President
<PAGE> 41
EXHIBIT A
LOCATIONS OF SCHEDULE OF RECEIVABLES
The Schedule of Receivables is
on file at the offices of:
1. The Indenture Trustee
2. The Owner Trustee
3. General Motors Acceptance Corporation
4. Capital Auto Receivables, Inc.
<PAGE> 42
APPENDIX A
PART I - DEFINITIONS
All terms defined in this Appendix shall have the defined meanings when
used in the Basic Documents, unless otherwise defined therein.
Accountants' Report: The report described in Section 4.02 of the Trust
Sale and Servicing Agreement.
Accumulation Account: The account designated as such, established and
maintained pursuant to Section 5.01(a)(v) of the Trust Sale and Servicing
Agreement.
Accumulation Amount: With respect to any Distribution Date, the
aggregate amount of Undistributed Principal Amount deposited into the
Accumulation Account prior to such Distribution Date and not previously applied
to make payments on the Notes. On any Distribution Date which is a Targeted
Final Distribution Date for a class of Class A Notes, except during a Sequential
Amortization Period or after the Notes have been declared due and payable
following an Event of Default, until all Events of Default have been cured or
waived as provided in the Indenture, the Accumulation Amount, together with the
Noteholders' Percentage of the Principal Distributable Amount for such
Distribution Date and the expected Variable Pay Term Notes Issuance Proceeds,
may not exceed the outstanding principal balance of that class of Class A Notes
and the Variable Pay Term Notes as of the opening of business on that
Distribution Date.
Act: An Act as specified in Section 11.3(a) of the Indenture.
Actual Payment: With respect to a Distribution Date and to a Scheduled
Interest Receivable, all payments received by the Servicer from or for the
account of the Obligor during the related Monthly Period (and, in the case of
the first Monthly Period, all payments received by the Servicer from or for the
account of the Obligor on or after the Cutoff Date) except for any Overdue
Payments or Supplemental Servicing Fees. Actual Payments do not include Applied
Payments Ahead.
Additional Servicing: With respect to any Distribution Date, an amount
(not less than zero) equal to the lesser of:
(i) the amount, if any, by which:
(A) the amount equal to the aggregate amount of the Basic
Servicing Fee for such Distribution Date and all prior
Distribution Dates exceeds
(B) the aggregate amount of Additional Servicing paid to the
Servicer on all prior Distribution Dates; and
(ii) the amount, if any, by which the amount on deposit in the Reserve
Account on such Distribution Date (after giving effect to all deposits,
withdrawals and payments affecting the
<PAGE> 43
Reserve Account other than Additional Servicing and payments to the
Seller) exceeds the Specified Reserve Account Balance.
For purposes of this definition, it is understood that Additional Servicing
equals zero on any Distribution Date unless all payments described in Sections
4.06(c)(ii) through (viii) of the Trust Sale and Servicing Agreement have been
paid or provided for.
Administration Agreement: That certain Administration Agreement, dated
as of the Closing Date, among GMAC, as Administrator, the Trust and the
Indenture Trustee, as amended and supplemented from time to time.
Administrative Purchase Payment: With respect to a Distribution Date
and to an Administrative Receivable purchased as of the last day of a Monthly
Period:
(i) in the case of a Scheduled Interest Receivable, a release of all
claims for reimbursement of Scheduled Interest Advances made on such
Receivable plus a payment equal to the sum of:
(A) the Scheduled Payments on such Receivable due after the last
day of the related Monthly Period minus the Rebate,
(B) any reimbursement made pursuant to the last sentence of
Section 5.04(a) of the Trust Sale and Servicing Agreement with
respect to such Receivable; and
(C) all past due Scheduled Payments with respect to which a
Scheduled Interest Advance has not been made or
(ii) in the case of a Simple Interest Receivable, a payment equal to
the Amount Financed minus that portion of all payments made by or on
behalf of the related Obligor on or prior to the last day of the
related Monthly Period allocable to principal.
Administrative Receivable: A Receivable which the Servicer is required
to purchase pursuant to Section 3.08 of the Pooling and Servicing Agreement or
which the Servicer has elected to repurchase pursuant to Section 8.01(a) of the
Trust Sale and Servicing Agreement.
Administrator: GMAC or any successor Administrator under the
Administration Agreement.
Affiliate: With respect to any specified Person, any other Person
controlling, controlled by or under common control with such specified Person.
For the purposes of this definition, "control" when used with respect to any
specified Person means the power to direct the management and policies of such
Person, directly or indirectly, whether through the ownership of voting
securities, by contract or otherwise; and the terms "controlling" and
"controlled" have meanings correlative to the foregoing.
Agency Office: The office of the Issuer maintained pursuant Section 3.2
of the Indenture.
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Aggregate Amount Financed: $2,125,030,066.84, which represents the
aggregate of the Amount Financed under all of the Receivables.
Aggregate Noteholders' Interest Distributable Amount: With respect to
any Distribution Date, the sum of (i) the Noteholders' Interest Distributable
Amounts for all classes of Notes and (ii) the Noteholders' Interest Carryover
Shortfall as of the close of the preceding Distribution Date.
Aggregate Noteholders' Principal Distributable Amount: With respect to
any Distribution Date, the sum of (i) the Noteholders' Principal Distributable
Amounts for all classes of Notes and (ii) the Noteholders' Principal Carryover
Shortfall as of the close of the preceding Distribution Date.
Aggregate Note Principal Balance: With respect to the close of a
Distribution Date, the sum of the Note Principal Balances for all classes of
Notes.
Aggregate Principal Balance: As of any date, the sum of the Principal
Balances of all outstanding Receivables (other than Liquidating Receivables)
held by the Trust on such date.
Amount Financed: With respect to a Receivable, the aggregate amount
advanced under such Receivable toward the purchase price of the Financed
Vehicle, including accessories, insurance premiums, service and warranty
contracts and other items customarily financed as part of retail automobile
instalment sale contracts and related costs, less:
(i) (A) in the case of a Scheduled Interest Receivable, payments due
from the related Obligor prior to the Cutoff Date allocable to
principal and (B) in the case of a Simple Interest Receivable, payments
received from the related Obligor prior to the Cutoff Date allocable to
principal and
(ii) any amount allocable to the premium for physical damage insurance
covering the Financed Vehicle force-placed by the Servicer.
Annual Percentage Rate: With respect to a Receivable, the annual rate
of finance charges stated in such Receivable.
Applicable Trustee: So long as the Aggregate Note Principal Balance is
greater than zero and the Indenture has not been discharged in accordance with
its terms, the Indenture Trustee, and thereafter, the Owner Trustee.
Applied Payment Ahead: With respect to a Distribution Date and to a
Scheduled Interest Receivable on which the Actual Payment is less than the
Scheduled Payment, the Deferred Prepayment to the extent the Scheduled Payment
exceeds the Actual Payment.
Authorized Officer: With respect to the Issuer, any officer of the
Owner Trustee who is authorized to act for the Owner Trustee in matters relating
to the Issuer and who is identified on the list of Authorized Officers delivered
by the Owner Trustee to the Indenture Trustee on the Closing Date (as such list
may be modified or supplemented from time to time thereafter) and, so long as
the Administration Agreement is in effect, any Vice President or more senior
officer of the Administrator
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<PAGE> 45
who is authorized to act for the Administrator in matters relating to the Issuer
and to be acted upon by the Administrator pursuant to the Administration
Agreement and who is identified on the list of Authorized Officers delivered by
the Administrator to the Indenture Trustee on the Closing Date (as such list may
be modified or supplemented from time to time thereafter).
Available Interest: With respect to any Distribution Date, the sum of
the following amounts with respect to the related Monthly Period:
(i) that portion of all collections on Receivables held by the Trust
(other than Liquidating Receivables) allocable to interest or
Prepayment Surplus (including, in the case of Scheduled Interest
Receivables, the interest portion of Applied Payments Ahead but
excluding Excess Payments made during such Monthly Period that are
treated as Payments Ahead),
(ii) Liquidation Proceeds to the extent allocable to interest in
accordance with the Servicer's customary servicing procedures;
(iii) all Simple Interest Advances;
(iv) all Scheduled Interest Advances to the extent allocable to
interest
(v) the net amount, if any, paid by the Swap Counterparty to the
Trust pursuant to the Interest Rate Swap; and
(vi) the Warranty Payment or the Administrative Purchase Payment for
each Receivable that the Seller repurchased or the Servicer purchased
during such Monthly Period to the extent allocable to accrued interest
or Prepayment Surplus;
less an amount equal to the sum of the following amounts with respect
to the related Monthly Period:
(i) all amounts received on any Scheduled Interest Receivable (other
than a Liquidating Receivable) to the extent of the Outstanding
Scheduled Interest Advances allocable to interest with respect to such
Receivable;
(ii) all Liquidation Proceeds with respect to Scheduled Interest
Receivables to the extent of the Outstanding Scheduled Interest
Advances thereon allocable to interest;
(iii) any Excess Simple Interest Collections; and
(iv) Liquidation Proceeds with respect to Simple Interest Receivables
allocable to accrued and unpaid interest thereon (but not including
interest for the then current Monthly Period), but only to the extent
of any Outstanding Simple Interest Advances.
Available Principal: With respect to any Distribution Date, the sum of
the following amounts with respect to the related Monthly Period:
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(i) that portion of all collections on Receivables held by the Trust
(other than Liquidating Receivables) allocable to principal (including,
in the case of Scheduled Interest Receivables, the principal portion of
Applied Payments Ahead but excluding Excess Payments made during such
Monthly Period that are treated as Payments Ahead);
(ii) Liquidation Proceeds to the extent allocable to principal in
accordance with the Servicer's customary servicing procedures;
(iii) all Scheduled Interest Advances to the extent allocable to
principal;
(iv) to the extent allocable to principal, the Warranty Payment or the
Administrative Purchase Payment for each Receivable that the Seller
repurchased or the Servicer purchased during such Monthly Period; and
(v) all Prepayments to the extent allocable to principal;
less an amount equal to the sum of the following amounts with respect
to the related Monthly Period:
(i) all amounts received on any Scheduled Interest Receivable (other
than a Liquidating Receivable) to the extent of the Outstanding
Scheduled Interest Advances allocable to principal with respect to such
Receivable;
(ii) all Liquidation Proceeds with respect to Scheduled Interest
Receivables to the extent of the Outstanding Scheduled Interest
Advances allocable to principal; and
(iii) amounts representing reimbursement for Liquidation Expenses
pursuant to Section 3.04 of the Pooling and Servicing Agreement.
Basic Documents: The Certificate of Trust, the Trust Agreement, the
Pooling and Servicing Agreement, the Trust Sale and Servicing Agreement, the
Custodian Agreement, the Administration Agreement, the Indenture, the Interest
Rate Swap and the Note Depository Agreement and the other documents and
certificates delivered in connection therewith.
Basic Servicing Fee: With respect to a Distribution Date, the basic fee
payable to the Servicer for services rendered during the related Monthly Period,
which shall be equal to one-twelfth (1/12th) (or for the first Distribution
Date, 2/12ths) of the Basic Servicing Fee Rate multiplied by the Aggregate
Principal Balance of all Receivables held by the Trust as of the first day of
such Monthly Period (or, for the first Distribution Date, the Aggregate
Principal Balance as of the Closing Date).
Basic Servicing Fee Rate: 1.0% per annum.
Benefit Plan: Any of (i) an employee benefit plan (as defined in
Section 3(3) of ERISA) that is subject to the provisions of Title I of ERISA,
(ii) a plan described in Section 4975 (e)(1) of the Code or (iii) any entity
whose underlying assets include plan assets by reason of a plan's investment in
the Trust.
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<PAGE> 47
Book-Entry Certificates: A beneficial interest in the Certificates,
ownership and transfer of which shall be made through book entries by a Clearing
Agency as described in Section 3.11 of the Trust Agreement.
Book-Entry Notes: A beneficial interest in the Notes, ownership and
transfers of which shall be made through book entries by a Clearing Agency as
described in Section 2.10 of the Indenture.
Business Day: Any day other than a Saturday, a Sunday or any other day
on which banks in New York, New York; Detroit, Michigan; or Chicago, Illinois
may, or are required to, remain closed.
Business Trust Statute: Chapter 38 of Title 12 of the Delaware Code, 12
Del. Code ss. 3801 et seq., as the same may be amended from time to time.
CARI: Capital Auto Receivables, Inc., a Delaware corporation.
Certificate: Any one of the 6.700% Asset Backed Certificates executed
by the Owner Trustee and authenticated by the Owner Trustee in substantially the
form set forth in Exhibit A to the Trust Agreement.
Certificate Balance: Initially, as of the Closing Date, $63,751,066.84
and, on any Distribution Date thereafter, will equal the initial Certificate
Balance reduced by (i) all distributions in respect of Certificate Balance
actually made on or prior to such date to Certificateholders, (ii) the
Noteholders' Principal Carryover Shortfall as of the close of the preceding
Distribution Date and (iii) the Certificateholders' Principal Carryover
Shortfall as of the close of the preceding Distribution Date.
Certificate Depository Agreement: The Certificate Depository Agreement,
dated as of the Closing Date, among the Trust, the Administrator and The
Depository Trust Company (as the initial Clearing Agency), relating to the
Certificates and substantially in the form set forth in Exhibit C to the Trust
Agreement, as the same may be amended and supplemented from time to time.
Certificate Distribution Account: The account, if any, designated as
such, established and maintained pursuant to Section 5.1(a) of the Trust
Agreement and Section 5.01(a)(iii) of the Trust Sale and Servicing Agreement.
Certificateholder: A Person in whose name a Certificate is registered
pursuant to the terms of the Trust Agreement.
Certificateholders' Interest Carryover Shortfall: As of the close of
any Distribution Date, the excess of (i) the Certificateholders' Interest
Distributable Amount for such Distribution Date over (ii) the amount that was
actually deposited in the Certificate Distribution Account on such current
Distribution Date in respect of interest on the Certificates.
Certificateholders' Interest Distributable Amount: With respect to any
Distribution Date, the sum of (i) the Certificateholders' Monthly Interest
Distributable Amount for such Distribution Date and (ii) the Certificateholders'
Interest Carryover Shortfall as of the close of the preceding Distribution Date.
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Certificateholders' Monthly Interest Distributable Amount: With respect
to any Distribution Date, interest equal to one-twelfth of the Pass Through Rate
multiplied by the Certificate Balance as of the close of the preceding
Distribution Date (or, in the case of the first Distribution Date, interest at
the Pass Through Rate multiplied by a fraction, the numerator of which is 36 and
the denominator of which is 360 multiplied by the initial Certificate Balance).
Certificateholders' Monthly Principal Distributable Amount: With
respect to any Distribution Date, the lesser of (i) the Certificateholders'
Percentage of the Principal Distributable Amount for such Distribution Date and
(ii) the Certificate Balance as of the close of the preceding Distribution Date.
Certificateholders' Percentage: With respect to any Distribution Date,
100% minus the Noteholders' Percentage.
Certificateholders' Principal Carryover Shortfall: As of the close of
any Distribution Date, the excess of (i) the Certificateholders' Principal
Distributable Amount for such Distribution Date over (ii) the amount that was
actually deposited in the Certificate Distribution Account on such current
Distribution Date in respect of Certificate Balance.
Certificateholders' Principal Distributable Amount: With respect to any
Distribution Date, the sum of:
(i) the lesser of
(A) the Certificateholders' Percentage of the Principal
Distributable Amount and
(B) the Certificate Balance
plus
(ii) any outstanding Certificateholders' Principal Carryover Shortfall
as of the close of the preceding Distribution Date.
Certificate of Trust: The certificate of trust of the Issuer
substantially in the form of Exhibit B to the Trust Agreement to be filed for
the Trust pursuant to Section 3810(a) of the Business Trust Statute.
Certificate Owner: With respect to a Book-Entry Certificate, the Person
who is the beneficial owner of such Book-Entry Certificate, as reflected on the
books of the Clearing Agency, or on the books of a Person maintaining an account
with such Clearing Agency (directly as a Clearing Agency Participant or as an
indirect participant, in each case in accordance with the rules of such Clearing
Agency).
Certificate Pool Factor: With respect to any Distribution Date, a
seven-digit decimal figure computed by the Servicer equal to the remaining
Certificate Balance as of the close of such Distribution Date divided by the
initial Certificate Balance.
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Certificate Register: The register of Certificates specified in Section
3.4 of the Trust Agreement.
Certificate Registrar: The registrar at any time of the Certificate
Register, appointed pursuant to Section 3.4(a) of the Trust Agreement.
Class A Notes: Together, the Class A-1 Notes, the Class A-2 Notes, the
Class A-3 Notes, the Class A-4 Notes, and the Class A-5 Notes.
Class A Percentage: With respect to a Distribution Date, the percentage
equal to a fraction, the numerator of which is the outstanding principal balance
of the Class A Notes and the denominator of which is the sum of the outstanding
principal balance of the Class A Notes plus the outstanding principal balance of
the Variable Pay Term Notes, in each case at the close of the immediately
preceding Distribution Date (or, in the case of the first Distribution Date, the
Closing Date).
Class A-1 Notes: The Class A-1 5.992% Asset Backed Notes in the
aggregate principal amount of $427,000,000.00 issued pursuant to the Indenture.
Class A-2 Notes: The Class A-2 6.060% Asset Backed Notes in the
aggregate principal amount of $370,000,000.00 issued pursuant to the Indenture.
Class A-3 Notes: The Class A-3 6.250% Asset Backed Notes in the
aggregate principal amount of $306,500,000.00 issued pursuant to the Indenture.
Class A-4 Notes: The Class A-4 6.300% Asset Backed Notes in the
aggregate principal amount of $400,000,000.00 issued pursuant to the Indenture.
Class A-5 Notes: The Class A-5 6.450% Asset Backed Notes in the
aggregate principal amount of $76,779,000.00 issued pursuant to the Indenture.
Clearing Agency: An organization registered as a "clearing agency"
pursuant to Section 17A of the Exchange Act. The initial Clearing Agency shall
be The Depository Trust Company.
Clearing Agency Participant: A securities broker, dealer, bank, trust
company, clearing corporation or other financial institution or other Person for
whom from time to time a Clearing Agency effects book entry transfers and
pledges of securities deposited with the Clearing Agency.
Closing Date: September 9, 1999.
Code: The Internal Revenue Code of 1986, as amended from time to time,
and the Treasury Regulations promulgated thereunder.
Collateral: The collateral specified in the Granting Clause of the
Indenture.
Collection Account: The account designated as such, established and
maintained pursuant to Section 5.01(a)(i) of the Trust Sale and Servicing
Agreement.
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Corporate Trust Office: With respect to the Indenture Trustee or the
Owner Trustee, the principal office at which at any particular time the
corporate trust business of the Indenture Trustee or Owner Trustee,
respectively, shall be administered, which offices at the Closing Date are
located, in the case of the Indenture Trustee, at One First National Plaza,
Suite 0126, Chicago, Illinois 60670- 0126, Attn: Corporate Trust Division, and
in the case of the Owner Trustee, at 1011 Centre Road, Suite 200, Wilmington,
Delaware 19805, Attn: Corporate Trust and Agency Group.
Curable Sequential Amortization Period: A Sequential Amortization
Period which is not, or has not become, an Extended Sequential Amortization
Period.
Custodian: GMAC, as Servicer, or another custodian named from time to
time in the Custodian Agreement.
Custodian Agreement: The Custodian Agreement, dated as of the Closing
Date, between the Custodian and CARI, as amended or supplemented from time to
time.
Cutoff Date: August 1, 1999.
Dealer: The seller of automobiles or light trucks that originated one
or more of the Receivables and assigned the respective Receivable, directly or
indirectly, to GMAC under an existing agreement between such seller and GMAC or
between such seller and General Motors, as applicable.
Dealer Agreement: An existing agreement between GMAC and a Dealer with
respect to a Receivable.
Default: Any occurrence that is, or with notice or the lapse of time or
both would become, an Event of Default.
Deferred Prepayment: With respect to the opening of business on a
Distribution Date and to a Scheduled Interest Receivable, the amount, if any,
held by the Servicer pursuant to Section 5.01(e) of the Trust Sale and Servicing
Agreement or in the Payment Ahead Servicing Account with respect to such
Receivable.
Definitive Certificates: As defined in Section 3.11 of the Trust
Agreement.
Definitive Notes: The Notes issued in the form of definitive notes
pursuant to Section 2.12 or Section 2.15 of the Indenture.
Depository Agreements: Together, the Letter of Representations dated as
of the date hereof among the Trust, the Indenture Trustee and The Depository
Trust Company, and the Letter of Representations dated as of the date hereof
among the Trust, the Owner Trustee and The Depository Trust Company.
Designated Account Property: The Designated Accounts, all cash,
investments, Financial Assets, securities and investment property held from time
to time in any Designated Account (whether in the form of deposit accounts,
Physical Property, book-entry securities, Uncertificated
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Securities or otherwise), including the Reserve Account Initial Deposit, and all
proceeds of the foregoing but excluding all Investment Earnings thereon.
Designated Accounts: The Collection Account, the Note Distribution
Account, the Accumulation Account and the Reserve Account, collectively.
Determination Date: The tenth day of each calendar month, or if such
tenth day is not a Business Day, the next succeeding Business Day.
Distribution Date: With respect to a Monthly Period, the 15th day of
the next succeeding calendar month or, if such 15th day is not a Business Day,
the next succeeding Business Day, commencing October 15, 1999.
Early Termination Date: As defined in the Interest Rate Swap.
Eligible Deposit Account: Either (i) a segregated account with an
Eligible Institution or (ii) a segregated trust account with the corporate trust
department of a depository institution organized under the laws of the United
States of America or any one of the states thereof or the District of Columbia
(or any domestic branch of a foreign bank), having corporate trust powers and
acting as trustee for funds deposited in such account, so long as any of the
securities of such depository institution have a credit rating from each Rating
Agency in one of its generic rating categories which signifies investment grade.
Eligible Institution: Either (i) the corporate trust department of the
Indenture Trustee or the Owner Trustee or (ii) a depository institution
organized under the laws of the United States of America or any one of the
states thereof or the District of Columbia (or any domestic branch of a foreign
bank), (A) which has either (1) a long-term unsecured debt rating acceptable to
the Rating Agencies or (2) a short-term unsecured debt rating or certificate of
deposit rating acceptable to the Rating Agencies and (B) whose deposits are
insured by the FDIC.
Eligible Investments: Book-entry securities, negotiable instruments or
securities represented by instruments in bearer or registered form which
evidence:
(i) direct obligations of, and obligations fully guaranteed as to
timely payment of principal and interest by, the United States of
America;
(ii) demand deposits, time deposits or certificates of deposit of any
depository institution or trust company incorporated under the laws of
the United States of America or any state thereof (or any domestic
branch of a foreign bank) and subject to supervision and examination by
Federal or State banking or depository institution authorities;
provided, however, that at the time of the investment or contractual
commitment to invest therein, the commercial paper or other short-term
unsecured debt obligations (other than such obligations the rating of
which is based on the credit of a Person other than such depository
institution or trust company) thereof shall have a credit rating from
each of the Rating Agencies in the highest investment category for
short-term unsecured debt obligations or certificates of deposit
granted thereby;
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(iii) commercial paper having, at the time of the investment or
contractual commitment to invest therein, a rating from each of the
Rating Agencies in the highest investment category for short-term
unsecured debt obligations or certificates of deposit granted thereby;
(iv) investments in money market or common trust funds having a
rating from each of the Rating Agencies in the highest investment
category for short-term unsecured debt obligations or certificates of
deposit granted thereby (including funds for which the Indenture
Trustee or the Owner Trustee or any of their respective affiliates is
investment manager or advisor, so long as such fund shall have such
rating);
(v) bankers' acceptances issued by any depository institution or
trust company referred to in clause (ii) above;
(vi) repurchase obligations with respect to any security that is a
direct obligation of, or fully guaranteed by, the United States of
America or any agency or instrumentality thereof the obligations of
which are backed by the full faith and credit of the United States of
America, in either case entered into with (A) a depository institution
or trust company (acting as principal) described in clause (ii) or (B)
a depository institution or trust company (x) the deposits of which are
insured by FDIC or (y) the counterparty for which has a rating from
each of the Rating Agencies in the highest investment category for
short-term unsecured debt obligations, the collateral for which is held
by a custodial bank for the benefit of the Trust or the Indenture
Trustee, is marked to market daily and is maintained in an amount that
exceeds the amount of such repurchase obligation, and which requires
liquidation of the collateral immediately upon the amount of such
collateral being less than the amount of such repurchase obligation
(unless the counterparty immediately satisfies the repurchase
obligation upon being notified of such shortfall);
(vii) commercial paper master notes having, at the time of the
investment or contractual commitment to invest therein, a rating from
each of the Rating Agencies in the highest investment category for
short-term unsecured debt obligations;
(viii) (solely in the case of the Reserve Account) the Notes; and
(ix) any other investment permitted by each of the Rating Agencies,
in each case, other than as permitted by the Rating Agencies, maturing not later
than the Business Day immediately preceding the next Distribution Date or (B) on
such next Distribution Date if either (x) such investment is in the institution
with which the Note Distribution Account or the Certificate Distribution
Account, as the case may be, is then maintained or (y) the Indenture Trustee (so
long as the short-term unsecured debt obligations of the Indenture Trustee are
rated at least P-1 by Moody's Investors Service, Inc. and A-1 by Standard &
Poor's Ratings Services on the date such investment is made) shall advance funds
on such Distribution Date to the Note Distribution Account or the Certificate
Distribution Account, as the case may be, in the amount payable on such
investment on such Distribution Date pending receipt thereof to the extent
necessary to make distributions on the Notes or the Certificates, as the case
may be, on such Distribution Date. The provisions in clauses (ii), (iii), (iv),
(vi) and (vii) above requiring that certain investments be rated in the highest
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investment category granted by each Rating Agency require (a) such rating from
Fitch IBCA, Inc. only if Fitch IBCA, Inc. is then rating such investment and (b)
such rating from Duff & Phelps Credit Rating Co. only if Duff & Phelps Credit
Rating Co. is then rating such investment. For purposes of the foregoing, unless
the Indenture Trustee objects at the time an investment is made, the Indenture
Trustee shall be deemed to have agreed to make such advance with respect to such
investment.
ERISA: The Employee Retirement Income Security Act of 1974, as amended.
Event of Default: An event described in Section 5.1 of the Indenture.
Event of Default Proceeds: As defined in Section 8.01(b) of the Trust
Sale and Servicing Agreement.
Event of Default Sale: As defined in Section 8.01(b) of the Trust Sale
and Servicing Agreement.
Excess Payment: With respect to a Distribution Date and a Scheduled
Interest Receivable, the portion of an Actual Payment on such Receivable in
excess of the Scheduled Payment thereon.
Excess Simple Interest Collections: With respect to a Distribution
Date, the excess, if any, of (i) all payments received during the related
Monthly Period on all Simple Interest Receivables to the extent allocable to
interest over (ii) the amount of interest that would be due during the related
Monthly Period on all Simple Interest Receivables assuming that the payment on
each such Receivable was received on its respective due date.
Exchange Act: The Securities Exchange Act of 1934, as amended.
Executive Officer: With respect to any corporation, the Chief Executive
Officer, Chief Operating Officer, Chief Financial Officer, President, Executive
Vice President, any Vice President, the Secretary or the Treasurer of such
corporation; and with respect to any partnership, any general partner thereof.
Expenses: The expenses described in Section 6.9 of the Trust Agreement.
Extended Sequential Amortization Period: A Sequential Amortization
Period (i) which commenced as a result of the termination of the Interest Rate
Swap or (ii) which commenced as a result of a failure to pay the principal
amount of a class of Class A Notes in full on its Targeted Final Distribution
Date and which has continued beyond the Targeted Final Distribution Date for a
class of Class A Notes with the next highest numerical designation.
FDIC: Federal Deposit Insurance Corporation or any successor agency.
Final Scheduled Distribution Date:
(i) With respect to a class of Class A Notes, the Distribution Date in
the month and year set forth below opposite such Notes:
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Class A-1 Notes: July 2001;
Class A-2 Notes: June 2002;
Class A-3 Notes: March 2003;
Class A-4 Notes: May 2004; and
Class A-5 Notes: January 2005;
(ii) with respect to all classes of Variable Pay Term Notes, the
Distribution Date in January 2005; and
(iii) with respect to the Certificates, the Distribution Date in
January 2005.
Financed Vehicle: An automobile or light truck, together with all
accessories thereto, securing an Obligor's indebtedness under a Receivable.
Financial Asset: Has the meaning given such term in Article 8 of the
New York UCC. As used herein, the Financial Asset "related to" a Security
Entitlement is the Financial Asset in which the entitlement holder (as defined
in Article 8 of the New York UCC) holding such Security Entitlement has the
rights and property interest specified in Article 8 of the New York UCC.
Further Transfer and Servicing Agreement: As defined in the recitals to
the Pooling and Servicing Agreement.
General Motors: General Motors Corporation, a Delaware corporation.
GMAC: General Motors Acceptance Corporation, a Delaware corporation.
Grant: To mortgage, pledge, bargain, sell, warrant, alienate, remise,
release, convey, assign, transfer, create, and grant a lien upon, a security
interest in and right of set-off against, deposit, set over and confirm pursuant
to the Indenture. A Grant of the Collateral or of any other agreement or
instrument shall include all rights, powers and options (but none of the
obligations) of the Granting party thereunder, including the immediate and
continuing right to claim for, collect, receive and give receipt for principal
and interest payments in respect of, the Collateral and all other moneys payable
thereunder, to give and receive notices and other communications, to make
waivers or other agreements, to exercise all rights and options, to bring
Proceedings in the name of the Granting party or otherwise and generally to do
and receive anything that the Granting party is or may be entitled to do or
receive thereunder or with respect thereto.
Holder: The Person in whose name a Note or Certificate is registered on
the Note Register or the Certificate Register, as applicable.
Indemnified Parties: The Persons specified in Section 6.9 of the Trust
Agreement.
Indenture: The Indenture, dated as of the Closing Date, between the
Issuer and the Indenture Trustee, as amended and supplemented from time to time.
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Indenture Trustee: The First National Bank of Chicago, a national
banking association, not in its individual capacity but solely as trustee under
the Indenture, or any successor trustee under the Indenture.
Independent: When used with respect to any specified Person, that the
Person (i) is in fact independent of the Issuer, any other obligor upon the
Notes, the Seller and any Affiliate of any of the foregoing Persons, (ii) does
not have any direct financial interest or any material indirect financial
interest in the Issuer, any such other obligor, the Seller or any Affiliate of
any of the foregoing Persons and (iii) is not connected with the Issuer, any
such other obligor, the Seller or any Affiliate of any of the foregoing Persons
as an officer, employee, promoter, underwriter, trustee, partner, director or
person performing similar functions.
Independent Certificate: A certificate or opinion to be delivered to
the Indenture Trustee under the circumstances described in, and otherwise
complying with, the applicable requirements of Section 11.1 of the Indenture,
made by an Independent appraiser or other expert appointed by an Issuer Order
and approved by the Indenture Trustee in the exercise of reasonable care, and
such opinion or certificate shall state that the signer has read the definition
of "Independent" in the Indenture and that the signer is Independent within the
meaning thereof.
Indirect Participant: A securities broker, dealer, bank, trust company
or other Person that clears through or maintains a custodial relationship with a
Clearing Agency Participant, either directly or indirectly.
Initial Aggregate Principal Balance: $2,125,030,066.84.
Initial Variable Pay Term Note: The Variable Pay Term Note, Class 1, in
the initial aggregate principal amount of $481,000,000, issued on the Closing
Date.
Insurance Policy: With respect to a Receivable, an insurance policy
covering physical damage, credit life, credit disability, theft, mechanical
breakdown or similar event with respect to the related Financed Vehicle.
Intercompany Advance Agreement: The Amended and Restated Intercompany
Advance Agreement dated as of February 22, 1996 between CARI and GMAC, as
amended and supplemented from time to time.
Interest Rate:
(i) With respect to each class of Class A Notes, the rate set forth
below:
Class A-1 Notes: 5.992%
Class A-2 Notes: 6.060%
Class A-3 Notes: 6.250%
Class A-4 Notes: 6.300%
Class A-5 Notes: 6.450%
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(ii) With respect to the Initial Variable Pay Term Note, the rate
equal to LIBOR plus 0.120%.
(iii) With respect to each other class of Variable Pay Term Notes, on
any Distribution Date, the rate equal to LIBOR plus the fixed
percentage spread determined at the time of issuance based on market
conditions but such spread will not exceed 2.5% as contemplated in
Section 2.06(a) of the Trust Sale and Servicing Agreement.
Notwithstanding the above, on each Distribution Date after the termination of
the Interest Rate Swap, the Interest Rate for all classes of Variable Pay Term
Notes shall be 6.445%.
Interest Rate Swap: The interest rate swap agreement, including all
schedules and confirmations related thereto, between the Trust and the Swap
Counterparty in effect on the Closing Date, as the same may be amended,
supplemented, renewed, extended or replaced from time to time.
Investment Company Act: The Investment Company Act of 1940, as the same
may be amended from time to time.
Investment Earnings: Investment earnings on funds deposited in the
Designated Accounts, the Payment Ahead Servicing Account and Certificate
Distribution Account, net of losses and investment expenses.
Issuer: The party named as such in the Trust Sale and Servicing
Agreement and in the Indenture until a successor replaces it and, thereafter,
means the successor and, for purposes of any provision contained herein and
required by the TIA, each other obligor on the Notes.
Issuer Order and Issuer Request: A written order or request signed in
the name of the Issuer by any one of its Authorized Officers and delivered to
the Indenture Trustee.
LIBOR: With respect to each Distribution Date other than the initial
Distribution Date, the rate for deposits in U.S. Dollars for a period of one
month which appears on the Dow Jones Telerate Service Page 3750 as of 11:00
a.m., London time, on the day that is two LIBOR Business Days prior to the
preceding Distribution Date. If the rate does not appear on that date on the Dow
Jones Telerate Service Page 3750 (or any other page as may replace that page on
that service, or if that service is no longer offered, any other service for
displaying LIBOR or comparable rates as may be selected by the Indenture Trustee
after consultation with the Seller), then LIBOR will be the Reference Bank Rate.
LIBOR Business Day: Any day other than a Saturday, Sunday or any other
day on which banks in London are required or authorized to be closed.
Lien: Any security interest, lien, charge, pledge, equity, encumbrance
or adverse claim of any kind other than tax liens, mechanics' liens and any
liens that attach by operation of law.
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Liquidating Receivable: A Receivable as to which the Servicer (i) has
reasonably determined, in accordance with its customary servicing procedures,
that eventual payment of amounts owing on such Receivable is unlikely, or (ii)
has repossessed and disposed of the Financed Vehicle.
Liquidation Expenses: With respect to a Liquidating Receivable without
recourse to a Dealer, $300.00 (or such greater amount as the Servicer determines
necessary in accordance with its customary procedures to refurbish and dispense
of a repurchased Financed Vehicle) as an allowance for amounts charged to the
account of the Obligor, in keeping with the Servicer's customary procedures, for
refurbishing and disposition of the Financed Vehicle and other out-of-pocket
costs related to the liquidation; with respect to a Liquidating Receivable with
recourse to a Dealer, $0.
Liquidation Proceeds: With respect to a Liquidating Receivable, all
amounts realized with respect to such Receivable net of amounts that are
required to be refunded to the Obligor on such Receivable.
Materiality Opinion: A written opinion of Kirkland & Ellis, Mayer,
Brown & Platt or another nationally recognized law firm experienced in
securitization matters reasonably acceptable to the Swap Counterparty, addressed
to the Swap Counterparty and in form and substance reasonably satisfactory to
the Swap Counterparty.
Monthly Advance: As of a Distribution Date, either a Scheduled Interest
Advance or a Simple Interest Advance, or both, as applicable, in respect of the
related Monthly Period.
Monthly Period: With respect to a Distribution Date, other than the
initial Distribution Date, the calendar month preceding the month in which such
Distribution Date occurs, and for the initial Distribution Date, the two
calendar months preceding the month in which such Distribution Date occurs.
Monthly Remittance Condition: Each of the following conditions:
(i) GMAC is the Servicer,
(ii) the rating of GMAC's short-term unsecured debt is at least A-1 by
Standard & Poor's Ratings Services and P-1 by Moody's Investors
Service, Inc., and
(iii) a Servicer Default shall not have occurred and be continuing.
New York UCC: The UCC as in effect in the State of New York.
Note Depository: The depository from time to time selected by the
Indenture Trustee on behalf of the Trust in whose name the Notes are registered
prior to the issue of Definitive Notes. The first Note Depository shall be Cede
& Co., the nominee of the initial Clearing Agency.
Note Depository Agreement: The agreement, dated as of the Closing Date,
among the Issuer, the Indenture Trustee and The Depository Trust Company, as the
initial Clearing Agency relating to
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the Notes, substantially in the form of Exhibit B to the Indenture, as the same
may be amended and supplemented from time to time.
Note Distribution Account: The account designated as such, established
and maintained pursuant to Section 5.01(a)(ii) of the Trust Sale and Servicing
Agreement.
Noteholders: Holders of record of the Notes pursuant to the Indenture
and, with respect to any class of Notes, holders of record of such class of
Notes pursuant to the Indenture.
Noteholders' Interest Carryover Shortfall: As of the close of any
Distribution Date, the excess of (i) the Aggregate Noteholders' Interest
Distributable Amount for such Distribution Date over (ii) the amount that was
actually deposited in the Note Distribution Account on such current Distribution
Date in respect of interest.
Noteholders' Interest Distributable Amount: With respect to any class
of Notes and any Distribution Date, the product of (i) the outstanding principal
balance of such class of Notes as of the close of the preceding Distribution
Date (or, in the case of the first Distribution Date, the outstanding principal
balance on the Closing Date) and (ii) in the case of (a) the Class A-2 Notes,
the Class A-3 Notes, the Class A-4 Notes and the Class A-5 Notes, one-twelfth of
the Interest Rate for such class (or, in the case of the first Distribution
Date, the Interest Rate for such class multiplied by a fraction, the numerator
of which is 36 and the denominator of which is 360) and (b) the Class A-1 Notes
and each class of the Variable Pay Term Notes, the product of the Interest Rate
for such class for such Distribution Date and a fraction, the numerator of which
is the number of days elapsed from and including the prior Distribution Date
(or, in the case of the first Distribution Date, from and including the Closing
Date), to but excluding that Distribution Date and the denominator of which is
360.
Noteholders' Percentage: With respect to any Distribution Date, the
percentage equivalent of a fraction, the numerator of which is the outstanding
principal balance of the Notes and the denominator of which is the sum of the
outstanding principal balance of the Notes and the Certificate Balance, in each
case as of the close of the preceding Distribution Date.
Noteholders' Principal Carryover Shortfall: As of the close of any
Distribution Date, the excess of (i) Aggregate Noteholders' Principal
Distributable Amount for such Distribution Date over (ii) the amount that was
actually deposited in the Note Distribution Account on such current Distribution
Date in respect of principal.
Noteholders' Principal Distributable Amount: With respect to the
following:
For the Class A Notes,
(i) Except during a Sequential Amortization Period:
(A) For a class of Class A Notes on its Targeted Final
Distribution Date, the Noteholders' Principal Distributable
Amount for that class of Class A Notes is the lesser of
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(1) the outstanding principal balance of that class as of
the close of the immediately preceding Distribution Date and
(2) the Total Note Principal Payment Amount.
(B) If the Distribution Date is not a Targeted Final Distribution
Date for any class of Class A Notes, the Noteholders' Principal
Distributable Amount for a class of Class A Notes is zero.
(ii) During a Sequential Amortization Period, the Noteholders'
Principal Distributable Amount for a Distribution Date for a class of
Class A Notes is the lesser of
(A) the outstanding principal balance of that class as of the
close of the immediately preceding Distribution Date and
(B) the remainder of
(1) the Class A Percentage of the Noteholders' Percentage of
the Principal Distributable Amount minus
(2) the outstanding principal balance for each class of Class
A Notes with a lower numerical designation as of the close of
the immediately preceding Distribution Date.
For the Variable Pay Term Notes,
(i) Except during a Sequential Amortization Period:
(A) If the Distribution Date is a Targeted Final Distribution
Date for a class of Class A Notes, the Noteholders' Principal
Distributable Amount for the Variable Pay Term Notes is the
remainder of
(1) the Total Note Principal Payment Amount minus
(2) the Noteholder's Principal Distributable Amount for that
class of Class A Notes on that Distribution Date determined
as described above,
but in no event more than the outstanding principal balance of
the Variable Pay Term Notes as of the close of the immediately
preceding Distribution Date.
(B) If the Distribution Date is not a Targeted Final Distribution
Date for a class of Class A Notes, the Noteholders' Principal
Distributable Amount for the Variable Pay Term Notes is the
lesser of
(1) the outstanding principal balance of the Variable Pay
Term Notes as of the close of the immediately preceding
Distribution Date and
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(2) the Noteholders' Percentage of the Principal
Distributable Amount for that Distribution Date.
(ii) During a Sequential Amortization Period, the Noteholders'
Principal Distributable Amount for the Variable Pay Term Notes on a
Distribution Date is the lesser of
(A) the outstanding principal balance of the Variable Pay Term
Notes as of the close of the immediately preceding Distribution
Date and
(B) the Variable Pay Term Percentage of the Noteholders'
Percentage of the Principal Distributable Amount.
Notwithstanding the foregoing, on the Final Scheduled Distribution Date for any
class of Class A Notes or the Variable Pay Term Notes, the Noteholders'
Principal Distributable Amount for that class will equal the outstanding
principal balance of that class as of the close of the immediately preceding
Distribution Date.
Note Owner: With respect to a Book-Entry Note, the Person who is the
beneficial owner of such Book-Entry Note, as reflected on the books of the
Clearing Agency, or on the books of a Person maintaining an account with such
Clearing Agency (directly as a Clearing Agency Participant or as an Indirect
Participant, in each case in accordance with the rules of such Clearing Agency).
Note Pool Factor: With respect to any class of Notes and any
Distribution Date, a seven-digit decimal figure computed by the Servicer which
is equal to the Note Principal Balance for such class as of the close of such
Distribution Date divided by the initial Note Principal Balance for such class.
Note Principal Balance: With respect to any class of Notes and any
Distribution Date, the initial aggregate principal balance of such class of
Notes, reduced by all previous payments to the Noteholders of such class in
respect of principal of such Notes.
Note Register: With respect to any class of Notes, the register of such
Notes specified in Section 2.4 of the Indenture.
Note Registrar: The registrar at any time of the Note Register,
appointed pursuant to Section 2.4 of the Indenture.
Notes: The Class A-1 Notes, the Class A-2 Notes, the Class A-3 Notes,
the Class A-4 Notes, the Class A-5 Notes and all classes of the Variable Pay
Term Notes.
Obligor: The purchaser or the co-purchasers of the Financed Vehicle or
other person who owes payments under a Receivable.
Offered Certificates: Certificates issued pursuant to a Trust Agreement
with the exception of the Certificates retained by the Seller.
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Offered Notes: Together, the Class A-2 Notes, the Class A-3 Notes, the
Class A-4 Notes, and the Class A-5 Notes.
Officer's Certificate: A certificate signed by any Authorized Officer
of the Issuer, under the circumstances described in, and otherwise complying
with, the applicable requirements of Section 11.1 of the Indenture, and
delivered to the Indenture Trustee. Unless otherwise specified, any reference in
the Indenture to an officer's certificate shall be to an Officer's Certificate
of any Authorized Officer of the Issuer.
Opinion of Counsel: A written opinion of counsel, who may, except as
otherwise expressly provided, be an employee of the Seller or the Servicer. In
addition, for purposes of the Indenture: (i) such counsel shall be satisfactory
to the Indenture Trustee; (ii) the opinion shall be addressed to the Indenture
Trustee as Trustee and (iii) the opinion shall comply with any applicable
requirements of Section 11.1 of the Indenture and shall be in form and substance
satisfactory to the Indenture Trustee.
Optional Purchase Date: As defined in Section 8.01(a) of the Trust Sale
and Servicing Agreement.
Optional Purchase Percentage: 10%.
Outstanding: With respect to the Notes, as of the date of
determination, all Notes theretofore authenticated and delivered under the
Indenture except:
(i) Notes theretofore cancelled by the Indenture Trustee or delivered
to the Indenture Trustee for cancellation;
(ii) Notes or portions thereof the payment for which money in the
necessary amount has been theretofore deposited with the Indenture
Trustee or any Paying Agent in trust for the Holders of such Notes;
provided, however, that if such Notes are to be redeemed, notice of
such redemption has been duly given pursuant to the Indenture or
provision therefor, satisfactory to the Indenture Trustee, has been
made; and
(iii) Notes in exchange for or in lieu of other Notes which have been
authenticated and delivered pursuant to this Indenture unless proof
satisfactory to the Indenture Trustee is presented that any such Notes
are held by a bona fide purchaser;
provided, however, that in determining whether the Holders of the requisite
Outstanding Amount of the Notes have given any request, demand, authorization,
direction, notice, consent or waiver hereunder or under any Basic Document,
Notes both legally and beneficially owned by the Issuer, any other obligor upon
the Notes, the Seller or any Affiliate of any of the foregoing Persons shall be
disregarded and deemed not to be Outstanding, except that, in determining
whether the Indenture Trustee shall be protected in relying upon any such
request, demand, authorization, direction, notice, consent or waiver, only Notes
that the Indenture Trustee knows to be so owned shall be so disregarded. Notes
so owned that have been pledged in good faith may be regarded as Outstanding if
the pledgee establishes to the satisfaction of the Indenture Trustee the
pledgor's right so to act with
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respect to such Notes and that the pledgee is not the Issuer, any other obligor
upon the Notes, the Seller or any Affiliate of any of the foregoing Persons.
Outstanding Amount: As of any date, the aggregate principal amount of
all Notes, or a class of Notes, as applicable, Outstanding at such date.
Outstanding Monthly Advances: Outstanding Scheduled Interest Advances
and Outstanding Simple Interest Advances, collectively.
Outstanding Scheduled Interest Advances: As of the last day of a
Monthly Period and with respect to a Scheduled Interest Receivable, the sum of
all Scheduled Interest Advances made as of or prior to such date minus all
payments or collections as of or prior to such date which are specified in
Section 5.04(a) of the Trust Sale and Servicing Agreement as reducing
Outstanding Scheduled Interest Advances with respect to such Receivable.
Outstanding Simple Interest Advances: As of the last day of a Monthly
Period, the sum of all Simple Interest Advances made as of or prior to such date
minus the sum of (i) all payments to the Servicer as of or prior to such date
pursuant to Section 5.04(b) of the Trust Sale and Servicing Agreement and (ii)
all Excess Simple Interest Collections paid to the Servicer as of or prior to
such date; provided, however, that Outstanding Simple Interest Advances shall
never be deemed to be less than zero.
Overdue Payment: With respect to a Distribution Date and to a Scheduled
Interest Receivable, all payments received by the Servicer from or for the
account of the related Obligor during the related Monthly Period in excess of
any Supplemental Servicing Fees (excluding any Investment Earnings during the
related Monthly Period), to the extent of the Outstanding Scheduled Interest
Advances relating to such Receivable.
Owner Trust Estate: All right, title and interest of the Trust in and
to the property and rights assigned to the Trust pursuant to Article II of the
Trust Sale and Servicing Agreement, all funds on deposit from time to time in
the Collection Account and the Certificate Distribution Account and all other
property of the Trust from time to time, including any rights of the Owner
Trustee and the Trust pursuant to the Trust Sale and Servicing Agreement and the
Administration Agreement.
Owner Trustee: Bankers Trust (Delaware), a Delaware banking
corporation, or any successor trustee under the Trust Agreement, not in its
individual capacity but solely as trustee.
Pass Through Rate: 6.700%.
Paying Agent: With respect to the Indenture, the Indenture Trustee or
any other Person that meets the eligibility standards for the Indenture Trustee
specified in Section 6.11 of the Indenture and is authorized by the Issuer to
make the payments to and distributions from the Collection Account and the Note
Distribution Account, including payment of principal of or interest on the Notes
on behalf of the Issuer. With respect to the Trust Agreement, any paying agent
or co-paying agent appointed pursuant to Section 3.9 of the Trust Agreement that
meets the eligibility standards for the
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Owner Trustee specified in Section 6.13 of the Trust Agreement, and initially
Bankers Trust Company.
Payment Ahead: With respect to a Distribution Date and to a Scheduled
Interest Receivable, any Excess Payment (not representing prepayment in full of
such Receivable) that is of an amount such that the sum of such Excess Payment
and the Deferred Prepayment is equal to or less than three times the Scheduled
Payment.
Payment Ahead Servicing Account: The account designated as such,
established and maintained pursuant to Section 5.01(a)(iv) of the Trust Sale and
Servicing Agreement.
Person: Any legal person, including any individual, corporation,
partnership, joint venture, association, joint stock company, trust,
unincorporated organization or government or any agency or political subdivision
thereof.
Physical Property: (i) bankers' acceptances, commercial paper,
negotiable certificates of deposit and other obligations that constitute
"instruments" within the meaning of Section 9-105(1)(i) of the New York UCC and
are susceptible of physical delivery and (ii) Security Certificates.
Pooling and Servicing Agreement: The Pooling and Servicing Agreement,
dated as of the Closing Date, between GMAC and the Seller, as amended and
supplemented from time to time.
Predecessor Note: With respect to any particular Note, every previous
Note evidencing all or a portion of the same debt as that evidenced by such
particular Note; and, for the purpose of this definition, any Note authenticated
and delivered under Section 2.5 of the Indenture in lieu of a mutilated, lost,
destroyed or stolen Note shall be deemed to evidence the same debt as the
mutilated, lost, destroyed or stolen Note.
Prepayment: Any Excess Payment other than a Payment Ahead.
Prepayment Surplus: With respect to any Distribution Date on which a
Prepayment is to be applied with respect to a Scheduled Interest Receivable,
that portion of such Prepayment, net of any Rebate.
Principal Balance: With respect to any Scheduled Interest Receivable,
as of any date, the Amount Financed minus the sum of the following amounts:
(i) that portion of all Scheduled Payments due on or after the Cutoff
Date and on or prior to such date allocable to principal,
(ii) any Warranty Payment or Administrative Purchase Payment to the
extent allocable to principal, and
(iii) any Prepayments applied by the Servicer to reduce the Principal
Balance of such Receivable.
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With respect to any Simple Interest Receivable, as of any date, the Amount
Financed minus the sum of the following amounts:
(i) that portion of all payments received from the related Obligor on
or prior to such date allocable to principal and
(ii) any Warranty Payment or Administrative Purchase Payment to the
extent allocable to principal.
Principal Distributable Amount: With respect to any Distribution Date,
the sum of (1) the principal portion of all Scheduled Payments due with respect
to the related Monthly Period on Scheduled Interest Receivables held by the
Trust (other than Liquidating Receivables) and the principal portion of all
payments received by the Trust during the related Monthly Period on Simple
Interest Receivables held by the Trust (other than Liquidating Receivables), (2)
the principal portion of all Prepayments received during the related Monthly
Period (except to the extent included in (1) above) and (3) the Principal
Balance of each Receivable that the Servicer became obligated or elected to
purchase, the Seller became obligated to repurchase or that became a Liquidating
Receivable during the related Monthly Period (except to the extent included in
(1) or (2) above).
Private Notes: The Class A-1 Notes and any of the Variable Pay Term
Notes.
Proceeding: Any suit in equity, action at law or other judicial or
administrative proceeding.
Purchased Property: The property described in Section 2.01 of the
Pooling and Servicing Agreement.
Rating Agencies: As of any date, the nationally recognized statistical
rating organizations requested by the Seller to provide ratings on the Notes or
the Certificates which are rating the Notes or the Certificates on such date.
Rating Agency Condition: With respect to any action, the condition that
each Rating Agency shall have been given at least 10 days prior notice thereof
and that each of the Rating Agencies shall have notified the Seller, the
Servicer and the Issuer in writing that such action shall not result in a
downgrade or withdrawal of the then current rating of the Notes or the
Certificates.
Rebate: With respect to a given date and to a Scheduled Interest
Receivable, the rebate under such Receivable that is or would be payable to the
Obligor for unearned finance charges or any other charges rebatable to the
Obligor upon the payment on such date of all remaining Scheduled Payments.
Receivable: A retail instalment sale contract for a Financed Vehicle
that is included in the Schedule of Receivables and all rights and obligations
thereunder.
Receivable File: The documents listed in Section 2.04 of the Pooling
and Servicing Agreement pertaining to a particular Receivable.
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Receivables Purchase Price: The amount described in Section 2.02 of the
Pooling and Servicing Agreement.
Record Date: (i) with respect to the Notes and with respect to any
Distribution Date, the close of business on the day immediately preceding such
Distribution Date, or if Definitive Notes are issued for any class of Notes,
with respect to such class of Notes the last day of the preceding Monthly
Period; and (ii) with respect to the Certificates and with respect to any
Distribution Date, the close of business on the date immediately preceding such
Distribution Date, or if Definitive Certificates are issued, the last day of the
preceding Monthly Period.
Redeemable Notes: The Class A-5 Notes and the Variable Pay Term Notes.
Redemption Date: As defined in Section 10.1 of the Indenture.
Redemption Price: With respect to the Redeemable Notes, the unpaid
principal amount of such Notes, plus accrued and unpaid interest thereon.
Reference Bank Rate: For any Distribution Date, the per annum rate
determined on the basis of the rates at which deposits in U.S. Dollars are
offered by the reference banks (which will be four major banks that are engaged
in transactions in the London interbank market, selected by the Indenture
Trustee after consultation with the Seller) as of 11:00 a.m., London time, on
the day that is two LIBOR Business Days prior to the immediately preceding
Distribution Date to prime banks in the London interbank market for a period of
one month, in amounts approximately equal to the principal amount of the
Variable Pay Term Notes then outstanding. The Indenture Trustee will request the
principal London office of each of the reference banks to provide a quotation of
its rate. If at least two quotations are provided, the rate will be the
arithmetic mean of the quotations, rounded upwards to the nearest one-sixteenth
of one percent. If on that date fewer than two quotations are provided as
requested, the rate will be the arithmetic mean, rounded upwards to the nearest
one-sixteenth of one percent, of the rates quoted by one or more major banks in
New York City, selected by the Indenture Trustee after consultation with the
Seller, as of 11:00 a.m., New York City time, on that date to leading European
banks for United States dollar deposits for a period of one month in amounts
approximately equal to the principal amount of any class of Variable Pay Term
Notes then outstanding. If no quotation can be obtained, then LIBOR will be the
rate for the prior Distribution Date.
Registered Holder: The Person in whose name a Note is registered on the
Note Register on the applicable Record Date.
Released Administrative Amount: With respect to a Distribution Date and
to a purchased Administrative Receivable, the Deferred Prepayment on such
Receivable.
Released Warranty Amount: With respect to a Distribution Date and to a
repurchased Warranty Receivable, the Deferred Prepayment on such Receivable.
Required Deposit Rating: A rating on short-term unsecured debt
obligations of P-1 by Moody's Investors Service, Inc.; A-1+ by Standard & Poor's
Ratings Services; if rated by Fitch
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Investors Service, Inc., F-1+ by Fitch IBCA, Inc.; and, if rated by Duff &
Phelps Credit Rating Co., D-1+ by Duff & Phelps Credit Rating Co. Any
requirement that short-term unsecured debt obligations have the "Required
Deposit Rating" shall mean that such short-term unsecured debt obligations have
the foregoing required ratings from each of such rating agencies.
Reserve Account: The account designated as such, established and
maintained pursuant to Section 4.07(a) of the Trust Sale and Servicing
Agreement.
Reserve Account Initial Deposit: Cash or Eligible Investments having a
value of at least $53,125,751.67.
Reserve Account Property: (i) the Reserve Account and all proceeds
thereof (other than the Investment Earnings thereon) including all cash,
investments, investment property and other amounts held from time to time in the
Reserve Account (whether in the form of deposit accounts, Physical Property,
book-entry securities, uncertificated securities, Financial Assets or otherwise)
and (ii) the Reserve Account Initial Deposit and all proceeds thereof (other
than the Investment Earnings thereon).
Responsible Officer: With respect to the Indenture Trustee or the Owner
Trustee, any officer within the Corporate Trust Office of such trustee or agent
of the Owner Trustee acting under a power of attorney, and, with respect to the
Servicer, the President, any Vice President, Assistant Vice President,
Secretary, Assistant Secretary or any other officer or assistant officer of such
Person customarily performing functions similar to those performed by any of the
above designated officers and also, with respect to a particular matter, any
other officer to whom such matter is referred because of such officer's
knowledge of and familiarity with the particular subject.
Retained Certificates: The Certificates retained by the Seller pursuant
to Section 3.10 of the Trust Agreement, with an initial Certificate Balance of
$638,066.84.
Revolving Note: The Revolving Note issued by CARI to GMAC under the
Intercompany Advance Agreement.
Scheduled Interest Advance: With respect to a Scheduled Interest
Receivable, the amount, as of the last day of the related Monthly Period, which
the Servicer is required to advance pursuant to subsection 5.04(a) of the Trust
Sale and Servicing Agreement.
Scheduled Interest Receivable: Any Receivable that is not a Simple
Interest Receivable. For purposes hereof, all payments with respect to a
Scheduled Interest Receivable shall be allocated to principal and interest in
accordance with the actuarial method.
Scheduled Payment: With respect to a Distribution Date and to a
Scheduled Interest Receivable, the payment set forth in such Receivable due from
the Obligor in the related Monthly Period.
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Schedule of Receivables: The schedule of all Receivables originally
held as part of the Trust and on file at the locations listed on Exhibit A of
the Trust Sale and Servicing Agreement, as it may be amended from time to time.
Secretary of State: The Secretary of State of the State of Delaware.
Securities Act: As defined in Section 2.15(a) of the Indenture.
Security Certificate: Has the meaning given such term in Section
8-102(a)(16) of the New York UCC.
Security Entitlement: Has the meaning given such term in Section
8-102(a)(17) of the New York UCC.
Securityholder: A Holder of a Note or a Certificate.
Seller: The Person executing the Trust Sale and Servicing Agreement as
the Seller, or its successor in interest pursuant to Section 3.03 of the Trust
Sale and Servicing Agreement.
Sequential Amortization Commencement Date: (i) The Targeted Final
Distribution Date for a class of Class A Notes if the principal amount of that
class is not paid in full on that Targeted Final Distribution Date, unless that
Targeted Final Distribution Date occurs during a Sequential Amortization Period,
or (ii) the first Distribution Date following the date on which the Interest
Rate Swap is terminated.
Sequential Amortization Period: The period commencing on a Sequential
Amortization Commencement Date and, if such Sequential Amortization Commencement
Date occurred as a result of the failure to pay a class of Class A Notes in full
on its Targeted Final Distribution Date, ending on the Distribution Date on
which such class of Class A Notes is paid in full so long as such Distribution
Date occurs prior to the Targeted Final Distribution Date for the class of Class
A Notes with the next highest numerical designation; provided that a Sequential
Amortization Period shall not so terminate if the failure to so pay a class of
Class A Notes in full on its Targeted Final Distribution Date follows a failure
to pay the class of Class A Notes with the next lowest numerical designation on
its Targeted Final Distribution Date.
Servicer: The Person executing the Trust Sale and Servicing Agreement
as the Servicer, or its successor in interest pursuant to Section 6.02 of the
Trust Sale and Servicing Agreement.
Servicer Default: An event described in Section 7.01 of the Trust Sale
and Servicing Agreement. Servicer Liquidity Advance: An advance made by the
Servicer to the Trust pursuant to Section 5.05 of the Trust Sale and Servicing
Agreement.
Servicer's Accounting: A certificate, completed by and executed on
behalf of the Servicer, in accordance with Section 3.10 of the Pooling and
Servicing Agreement.
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Simple Interest Advance: The amount, as of the last day of the related
Monthly Period, which the Servicer is required to advance pursuant to Section
5.04(b) of the Trust Sale and Servicing Agreement.
Simple Interest Method: The method of allocating each monthly payment
on a Simple Interest Receivable to principal and interest pursuant to which the
portion of such payment that is allocated to interest is equal to the product of
the outstanding principal balance thereon multiplied by the fixed rate of
interest applicable to such Receivable multiplied by the period of time elapsed
(expressed as a fraction of a calendar year) since the preceding payment of
interest with respect to such principal balance was made.
Simple Interest Receivable: Any Receivable under which the portion of
each monthly payment allocable to earned interest and the portion allocable to
the Amount Financed is determined in accordance with the Simple Interest Method.
For purposes hereof, all payments with respect to a Simple Interest Receivable
shall be allocated to principal and interest in accordance with the Simple
Interest Method.
Specified Reserve Account Balance: With respect to any Distribution
Date, the sum of
(i) the greater of
(A) 3.5% of the outstanding principal balance of the Notes and
the Certificates as of the close of business on such
Distribution Date (after giving effect to all payments and
distributions to be made on such Distribution Date); and
(B) $15,937,725.50;
but in no event more than the outstanding principal balance of
the Notes and the Certificates as of the close of business on
such Distribution Date (after giving effect to all payments and
distributions to be made on such Distribution Date);
plus
(ii) in each case, if a deposit is to be made into the Accumulation
Account on such Distribution Date or was made on any prior Distribution
Date, an amount equal to the product of
(A) the Accumulation Amount on such Distribution Date (after
giving effect to all deposits and withdrawals from the
Accumulation Account on such Distribution Date)
multiplied by
(B) the number of Distribution Dates after such Distribution
Date through and including the next Distribution Date that is a
Targeted Final Distribution Date for any class of Class A Notes
divided by 12
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multiplied by
(C) LIBOR for such Distribution Date minus 2.5%.
State: Any one of the 50 States of the United States of America or the
District of Columbia.
Supplemental Servicing Fees: With respect to a Distribution Date, all
late fees, prepayment charges and other administrative fees and expenses or
similar charges allowed by applicable law with respect to Receivables, collected
(from whatever source) on the Receivables held by the Trust during the related
Monthly Period.
Swap Counterparty: General Re Financial Products Corporation, as swap
counterparty under the Interest Rate Swap, or any successor or replacement Swap
Counterparty from time to time under the Interest Rate Swap.
Swap Counterparty Guarantor: General Re Corporation, as swap
counterparty guarantor under the Interest Rate Swap, or any successor or
replacement Swap Counterparty Guarantor, from time to time under the Interest
Rate Swap.
Targeted Final Distribution Date: With respect to a class of Class A
Notes, the Distribution Date in the month and year set forth below opposite such
Notes:
Class A-1 Notes: March 2000;
Class A-2 Notes: September 2000;
Class A-3 Notes: March 2001;
Class A-4 Notes: September 2001; and
Class A-5 Notes: September 2002.
Temporary Notes: The Notes specified in Section 2.3 of the Indenture.
Total Available Amount: With respect to any Distribution Date, the sum
of the Available Interest and the Available Principal for such Distribution Date
and the amount of all cash or other immediately available funds on deposit in
the Reserve Account immediately prior to such Distribution Date plus
(i) on the Targeted Final Distribution Date for any class of Class A
Notes, any Variable Pay Term Notes Issuance Proceeds and the
Accumulation Amount, if any, for such Distribution Date and
(ii) on the first Distribution Date after the Notes have been declared
due and payable following the occurrence of an Event of Default and on
the first Distribution Date after the termination of the Interest Rate
Swap, the Accumulation Amount, if any, for such Distribution Date.
Total Note Principal Payment Amount: With respect to any Distribution
Date, the sum of
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(i) the Noteholders' Percentage of the Principal Distributable Amount
plus
(ii) the Variable Pay Term Notes Issuance Proceeds, if any, plus
(iii) the Accumulation Amount, if any.
Total Servicing Fee: With respect to a Distribution Date, the sum of
the Basic Servicing Fee for such Distribution Date, any unpaid Basic Servicing
Fee for all prior Distribution Dates and Additional Servicing for such
Distribution Date.
Treasury Regulations: The regulations, including proposed or temporary
regulations, promulgated under the Code. References herein to specific
provisions of proposed or temporary regulations shall include analogous
provisions of final Treasury Regulations or other successor Treasury
Regulations.
Trust: Capital Auto Receivables Asset Trust 1999-2, a Delaware business
trust created by the Trust Agreement.
Trust Agreement: The Trust Agreement, dated as of the Closing Date,
between the Seller and the Owner Trustee, as amended and supplemented from time
to time.
Trust Estate: All money, instruments, rights and other property that
are subject or intended to be subject to the lien and security interest of the
Indenture for the benefit of the Noteholders (including, without limitation, all
property and interests Granted to the Indenture Trustee), including all proceeds
thereof, and the Reserve Account and the Reserve Account Property pledged to the
Indenture Trustee pursuant to the Trust Sale and Servicing Agreement.
Trust Indenture Act or TIA: The Trust Indenture Act of 1939 as in force
on the date hereof, unless otherwise specifically provided.
Trust Sale and Servicing Agreement: The Trust Sale and Servicing
Agreement, dated as of the Closing Date, between the Seller, the Servicer and
the Trust, as amended and supplemented from time to time.
UCC: The Uniform Commercial Code as in effect in the relevant
jurisdiction.
Uncertificated Security: Has the meaning given to such term in Section
8-102(a)(18) of the New York UCC.
Undertaking Letter: The Letter referred to in Sections 3.4 and 9.12 of
the Trust Agreement.
Undistributed Principal Amount: For any Distribution Date that is not a
Targeted Final Distribution Date for a class of Class A Notes, except as
described in the following sentence, the excess, if any, of (x) the Noteholders'
Percentage of the Principal Distributable Amount over (y) the outstanding
principal balance of the Variable Pay Term Notes as of the close of business on
the immediately preceding Distribution Date. The Undistributed Principal Amount
for (a) each
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Distribution Date that is a Targeted Final Distribution Date for a class of
Class A Notes, (b) each Distribution Date during a Sequential Amortization
Period and (c) each Distribution Date following a declaration that the Notes are
immediately due and payable following the occurrence of an Event of Default,
until all Events of Default have been cured or waived as provided in Section
5.2(b) of the Indenture, shall be zero.
Variable Pay Term Note Percentage: With respect to a Distribution Date,
100% minus the Class A Percentage for that Distribution Date.
Variable Pay Term Notes: The Floating Rate Variable Pay Asset Backed
Term Notes issued from time to time pursuant to the Indenture including the
Initial Variable Pay Term Note.
Variable Pay Term Notes Issuance Proceeds: With respect to a
Distribution Date, the proceeds to the Trust from the issuance of Variable Pay
Term Notes on that Distribution Date.
Voting Interests: As of any date, the aggregate Certificate Balance of
all Certificates outstanding; provided, however, that Certificates owned by the
Issuer, the Seller or any Affiliate of any of the foregoing Persons (each, an
"insider") shall be disregarded and deemed not to be outstanding (unless all
Certificates are owned by insiders), except that, in determining whether the
Owner Trustee shall be protected in relying upon any such request, demand,
authorization, direction, notice, consent or waiver, only Certificates that the
Owner Trustee knows to be so owned shall be so disregarded. Certificates so
owned that have been pledged in good faith may be regarded as outstanding if the
pledgee establishes to the satisfaction of the Owner Trustee the pledgor's right
so to act with respect to such Certificates and that the pledgee is not the
Issuer, the Seller or any Affiliate of any of the foregoing Persons (unless all
Certificates are owned by insiders).
Warranty Payment: With respect to a Distribution Date and to a Warranty
Receivable repurchased as of the last day of a Monthly Period,
(i) in the case of a Scheduled Interest Receivable, a payment equal
to the sum of:
(A) the sum of all remaining Scheduled Payments on such
Receivable minus the Rebate,
(B) all past due Scheduled Payments with respect to which a
Scheduled Interest Advance has not been made,
(C) any reimbursement made pursuant to the last sentence of
subsection 5.04(a) of the Trust Sale and Servicing Agreement with
respect to such Receivable, and
(D) all Outstanding Scheduled Interest Advances with respect to
such Receivable, minus any Liquidation Proceeds (to the extent
applied to reduce the Principal Balance of such Receivable)
previously received with respect to such Receivable, or
(ii) in the case of a Simple Interest Receivable, a payment equal to
the Amount Financed minus that portion of all payments received from
the related Obligor on or prior to the last
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day of the related Monthly Period allocable to principal and minus any
Liquidation Proceeds (to the extent applied to reduce the Principal
Balance of such Receivable) previously received with respect to such
Receivable.
Warranty Purchaser: The Person described in Section 2.05 of the Trust
Sale and Servicing Agreement.
Warranty Receivable: A Receivable which the Warranty Purchaser has
become obligated to repurchase pursuant to Section 2.05 of the Trust Sale and
Servicing Agreement.
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PART II - RULES OF CONSTRUCTION
(a) Accounting Terms. As used in this Appendix or the Basic Documents,
accounting terms which are not defined, and accounting terms partly
defined, herein or therein shall have the respective meanings given to
them under generally accepted accounting principles. To the extent that
the definitions of accounting terms in this Appendix or the Basic
Documents are inconsistent with the meanings of such terms under
generally accepted accounting principles, the definitions contained in
this Appendix or the Basic Documents will control.
(b) "Hereof," etc. The words "hereof," "herein" and "hereunder" and words
of similar import when used in this Appendix or any Basic Document will
refer to this Appendix or such Basic Document as a whole and not to any
particular provision of this Appendix or such Basic Document; and
Section, Schedule and Exhibit references contained in this Appendix or
any Basic Document are references to Sections, Schedules and Exhibits
in or to this Appendix or such Basic Document unless otherwise
specified. The word "or" is not exclusive.
(c) Reference to Distribution Dates. With respect to any Distribution Date,
the "related Monthly Period," and the "related Record Date," will mean
the Monthly Period and Record Date, respectively, immediately preceding
such Distribution Date, and the relationships among Monthly Periods and
Record Dates will be correlative to the foregoing relationships.
(d) Number and Gender. Each defined term used in this Appendix or the Basic
Documents has a comparable meaning when used in its plural or singular
form. Each gender-specific term used in this Appendix or the Basic
Documents has a comparable meaning whether used in a masculine,
feminine or gender-neutral form.
(e) Including. Whenever the term "including" (whether or not that term is
followed by the phrase "but not limited to" or "without limitation" or
words of similar effect) is used in this Appendix or the Basic
Documents in connection with a listing of items within a particular
classification, that listing will be interpreted to be illustrative
only and will not be interpreted as a limitation on, or exclusive
listing of, the items within that classification.
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APPENDIX B
NOTICE ADDRESSES AND PROCEDURES
All requests, demands, directions, consents, waivers, notices,
authorizations and communications provided or permitted under any Basic Document
to be made upon, given or furnished to or filed with the Seller, the Servicer,
the Administrator, the Indenture Trustee, the Issuer, the Owner Trustee, the
Custodian or the Rating Agencies shall be in writing, personally delivered, sent
by facsimile with a copy to follow via first class mail or mailed by certified
mail-return receipt requested, and shall be deemed to have been duly given upon
receipt:
(a) in the case of the Seller, at the following address:
Capital Auto Receivables, Inc.,
Corporation Trust Center,
1209 Orange Street,
Wilmington, Delaware 19801
with a copy to:
C.A. Ondrick, Manager - Securitization,
3031 West Grand Boulevard,
Detroit, Michigan 48202,
(b) in the case of the Servicer, the Administrator or the Custodian,
at the following address:
D.C. Walker, Director - U.S. Funding & Securitization,
General Motors Acceptance Corporation,
3031 West Grand Boulevard,
Detroit, Michigan 48202,
(c) in the case of the Indenture Trustee, at its Corporate Trust
Office,
(d) in the case of the Issuer or the Owner Trustee, to the Owner
Trustee at its Corporate Trust Office, with a copy to
Bankers Trust Company,
Four Albany Street, 10th Floor
New York, New York 10006,
Attention: Corporate Trust and Agency Group,
and with a copy to:
Capital Auto Receivables, Inc.,
Attention: D. C. Walker, Vice President
3031 West Grand Boulevard,
Detroit, Michigan 48202,
<PAGE> 75
The Issuer shall promptly transmit any notice received by it from the
Noteholders to the Indenture Trustee and the Indenture Trustee shall likewise
promptly transmit any notice received by it from the Noteholders to the Issuer.
(e) in the case of Moody's Investors Service, Inc., to
Moody's Investors Service, Inc.,
ABS Monitoring Department,
99 Church Street,
New York, New York 10007,
(f) in the case of Standard & Poor's Ratings Services, to
Standard & Poor's Ratings Services,
55 Water Street
40th Floor
New York, New York 10041
Attention: Asset Backed Surveillance Department,
(g) in the case of Fitch IBCA, Inc., to
Fitch IBCA, Inc.,
One State Street Plaza,
New York, New York 10004,
Attention: Asset-Backed Surveillance, and
(h) in the case of Duff & Phelps Credit Rating Co., to
Duff & Phelps Credit Rating Co.,
55 E. Monroe Street,
Chicago, Illinois 60603,
Attention: Structured Finance Research & Monitoring,
(i) in the case of General Re Financial Products Corporation, to
General Re Financial Products Corporation,
Rockefeller Center
630 Fifth Avenue, Suite 450,
New York, New York 10111
Attention: Head of Operations
or at such other address as shall be designated by such Person in a written
notice to the other parties to this Agreement.
Where any Basic Document provides for notice to Noteholders or
Certificateholders of any condition or event, such notice shall be sufficiently
given (unless otherwise herein expressly
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provided) if it is in writing and mailed, first-class, postage prepaid to each
Noteholder or Certificateholder affected by such condition or event, at such
Person's address as it appears on the Note Register or Certificate Register, as
applicable, not later than the latest date, and not earlier than the earliest
date, prescribed in such Basic Document for the giving of such notice. If notice
to Noteholders or Certificateholders is given by mail, neither the failure to
mail such notice nor any defect in any notice so mailed to any particular
Noteholders or Certificateholders shall affect the sufficiency of such notice
with respect to other Noteholders or Certificateholders, and any notice that is
mailed in the manner herein provided shall conclusively be presumed to have been
duly given regardless of whether such notice is in fact actually received.
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<PAGE> 1
EXHIBIT 99.2
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939
OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY
OF A TRUSTEE PURSUANT TO SECTION 305(B)(2)
--------------------------
THE FIRST NATIONAL BANK OF CHICAGO
(EXACT NAME OF TRUSTEE AS SPECIFIED IN ITS CHARTER)
A NATIONAL BANKING ASSOCIATION 36-0899825
(I.R.S. EMPLOYER
IDENTIFICATION NUMBER)
ONE FIRST NATIONAL PLAZA, CHICAGO, ILLINOIS 60670-0126
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES) (ZIP CODE)
THE FIRST NATIONAL BANK OF CHICAGO
ONE FIRST NATIONAL PLAZA, SUITE 0286
CHICAGO, ILLINOIS 60670-0286
ATTN: LYNN A. GOLDSTEIN, LAW DEPARTMENT (312) 732-6919
(NAME, ADDRESS AND TELEPHONE NUMBER OF AGENT FOR SERVICE)
--------------------------
CAPITAL AUTO RECEIVABLES ASSET TRUST 1999-2
(EXACT NAME OF OBLIGOR AS SPECIFIED IN ITS CHARTER)
DELAWARE PENDING
(STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) IDENTIFICATION NUMBER)
C/O BANKERS TRUST (DELAWARE), AS OWNER TRUSTEE
1011 CENTRE ROAD
SUITE 200
WILMINGTON, DELAWARE 19805
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES) (ZIP CODE)
CAPITAL AUTO RECEIVABLES ASSET TRUST 1999-2 ASSET BACKED NOTES
(TITLE OF INDENTURE SECURITIES)
1
<PAGE> 2
ITEM 1. GENERAL INFORMATION. FURNISH THE FOLLOWING
INFORMATION AS TO THE TRUSTEE:
(A) NAME AND ADDRESS OF EACH EXAMINING OR
SUPERVISING AUTHORITY TO WHICH IT IS SUBJECT.
Comptroller of Currency, Washington, D.C.; Federal Deposit
Insurance Corporation, Washington, D.C.; The Board of
Governors of the Federal Reserve System, Washington D.C..
(B) WHETHER IT IS AUTHORIZED TO EXERCISE CORPORATE
TRUST POWERS.
The trustee is authorized to exercise corporate trust powers.
ITEM 2. AFFILIATIONS WITH THE OBLIGOR. IF THE OBLIGOR IS AN
AFFILIATE OF THE TRUSTEE, DESCRIBE EACH SUCH AFFILIATION.
No such affiliation exists with the trustee.
ITEM 16. LIST OF EXHIBITS. LIST BELOW ALL EXHIBITS FILED AS A PART
OF THIS STATEMENT OF ELIGIBILITY.
1. A copy of the articles of association of the
trustee now in effect.*
2. A copy of the certificates of authority of the trustee to
commence business.*
3. A copy of the authorization of the trustee to exercise
corporate trust powers.*
4. A copy of the existing by-laws of the trustee.*
5. Not Applicable.
6. The consent of the trustee required by Section 321(b) of
the Act.
2
<PAGE> 3
7. A copy of the latest report of condition of the trustee
published pursuant to law or the requirements of its
supervising or examining authority.
8. Not Applicable.
9. Not Applicable.
Pursuant to the requirements of the Trust Indenture Act of 1939, as
amended, the trustee, The First National Bank of Chicago, a national
banking association organized and existing under the laws of the United
States of America, has duly caused this Statement of Eligibility to be
signed on its behalf by the undersigned, thereunto duly authorized, all
in the City of Chicago and State of Illinois, on the 24th day of
August, 1999.
THE FIRST NATIONAL BANK OF CHICAGO,
TRUSTEE
BY
----------------------------------------
STEVEN M. WAGNER
FIRST VICE PRESIDENT
* EXHIBIT 1, 2, 3 AND 4 ARE HEREIN INCORPORATED BY REFERENCE TO EXHIBITS BEARING
IDENTICAL NUMBERS IN ITEM 16 OF THE FORM T-1 OF THE FIRST NATIONAL BANK OF
CHICAGO, FILED AS EXHIBIT 25 TO THE REGISTRATION STATEMENT ON FORM S-3 OF U S
WEST CAPITAL FUNDING, INC., FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON
MAY 6, 1998 (REGISTRATION NO. 333-51907-01).
3
<PAGE> 4
EXHIBIT 6
THE CONSENT OF THE TRUSTEE REQUIRED
BY SECTION 321(b) OF THE ACT
August 24, 1999
Securities and Exchange Commission
Washington, D.C. 20549
Gentlemen:
In connection with the qualification of an indenture between Capital Auto
Receivables Asset Trust 1999-2 and The First National Bank of Chicago, as
Trustee, the undersigned, in accordance with Section 321(b) of the Trust
Indenture Act of 1939, as amended, hereby consents that the reports of
examinations of the undersigned, made by Federal or State authorities authorized
to make such examinations, may be furnished by such authorities to the
Securities and Exchange Commission upon its request therefor.
Very truly yours,
THE FIRST NATIONAL BANK OF CHICAGO
BY:
------------------------------------------
STEVEN M. WAGNER
FIRST VICE PRESIDENT
4
<PAGE> 5
EXHIBIT 7
<TABLE>
<S> <C>
Legal Title of Bank: The First National Bank of Chicago Call Date: 03/31/99 ST-BK: 17-1630 FFIEC 031
Address: One First National Plaza, Ste 0460 Page RC-1
City, State Zip: Chicago, IL 60670
FDIC Certificate No.: 0/3/6/1/8
</TABLE>
CONSOLIDATED REPORT OF CONDITION FOR INSURED COMMERCIAL
AND STATE-CHARTERED SAVINGS BANKS FOR MARCH 31, 1999
All schedules are to be reported in thousands of dollars. Unless otherwise
indicated, report the amount outstanding of the last business day of the
quarter.
SCHEDULE RC--BALANCE SHEET
<TABLE>
<CAPTION>
DOLLAR AMOUNTS IN THOUSANDS C400
--------
RCFD BIL MIL THOU
---- ----------------
<S> <C> <C> <C>
ASSETS
1. Cash and balances due from depository institutions (from Schedule RCFD
RC-A): ----
a. Noninterest-bearing balances and currency and coin(1).................... 0081 3,809,517 1.a
b. Interest-bearing balances(2)............................................. 0071 4,072,166 1.b
2. Securities
a. Held-to-maturity securities(from Schedule RC-B, column A)................ 1754 0 2.a
b. Available-for-sale securities (from Schedule RC-B, column D)............. 1773 12,885,728 2.b
3. Federal funds sold and securities purchased under agreements to resell...... 1350 4,684,756 3.
4. Loans and lease financing receivables: RCFD
a. Loans and leases, net of unearned income (from Schedule ----
RC-C).................................................................... 2122 34,304,806 4.a
b. LESS: Allowance for loan and lease losses................................ 3123 411,476 4.b
c. LESS: Allocated transfer risk reserve.................................... 3128 3,884 4.c
RCFD
d. Loans and leases, net of unearned income, allowance, and ----
reserve (item 4.a minus 4.b and 4.c)..................................... 2125 33,889,446 4.d
5. Trading assets (from Schedule RD-D)......................................... 3545 5,100,499 5.
6. Premises and fixed assets (including capitalized leases).................... 2145 754,052 6.
7. Other real estate owned (from Schedule RC-M)................................ 2150 5,244 7.
8. Investments in unconsolidated subsidiaries and associated
companies (from Schedule RC-M).............................................. 2130 201,068 8.
9. Customers' liability to this bank on acceptances outstanding................ 2155 265,041 9.
10. Intangible assets (from Schedule RC-M)...................................... 2143 285,709 10.
11. Other assets (from Schedule RC-F)........................................... 2160 2,987,184 11.
12. Total assets (sum of items 1 through 11).................................... 2170 68,940,410 12.
</TABLE>
- ---------
(1) Includes cash items in process of collection and unposted debits.
(2) Includes time certificates of deposit not held for trading.
<PAGE> 6
<TABLE>
<S> <C>
Legal Title of Bank: The First National Bank of Chicago Call Date: 03/31/99 ST-BK: 17-1630 FFIEC 031
Address: One First National Plaza, Ste 0460 Page RC-2
City, State Zip: Chicago, IL 60670
FDIC Certificate No.: 0/3/6/1/8
</TABLE>
SCHEDULE RC-CONTINUED
<TABLE>
<CAPTION>
DOLLAR AMOUNTS IN
THOUSANDS
---------
<S> <C> <C> <C>
LIABILITIES
13. Deposits: RCON
a. In domestic offices (sum of totals of columns A and C ----
from Schedule RC-E, part 1)....................................... 2200 22,163,664 13.a
(1) Noninterest-bearing(1)........................................ 6631 9,740,100 13.a1
(2) Interest-bearing.............................................. 6636 12,423,564 13.a2
RCFN
b. In foreign offices, Edge and Agreement subsidiaries, and ----
IBFs (from Schedule RC-E, part II)................................ 2200 19,273,426 13.b
(1) Noninterest bearing........................................... 6631 334,741 13.b1
(2) Interest-bearing.............................................. 6636 18,938,685 13.b2
14. Federal funds purchased and securities sold under agreements
to repurchase: RCFD 2800 4,405,792 14
15. a. Demand notes issued to the U.S. Treasury RCON 2840 173,505 15.a
b. Trading Liabilities(from Schedule RC-D)........................... RCFD 3548 4,824,567 15.b
RCFD
16. Other borrowed money: ----
a. With original maturity of one year or less........................ 2332 7,453,761 16.a
b. With original maturity of more than one year...................... A547 330,300 16.b
c. With original maturity of more than three years................... A548 357,737 16.c
17. Not applicable
18. Bank's liability on acceptance executed and outstanding.............. 2920 265,041 18.
19. Subordinated notes and debentures.................................... 3200 2,600,000 19.
20. Other liabilities (from Schedule RC-G)............................... 2930 1,878,367 20.
21. Total liabilities (sum of items 13 through 20)....................... 2948 63,726,160 21.
22. Not applicable
EQUITY CAPITAL
23. Perpetual preferred stock and related surplus........................ 3838 0 23.
24. Common stock......................................................... 3230 200,858 24.
25. Surplus (exclude all surplus related to preferred stock)............. 3839 3,239,836 25.
26. a. Undivided profits and capital reserves............................ 3632 1,813,367 26.a
b. Net unrealized holding gains (losses) on available-for-sale
securities........................................................ 8434 (37,357) 26.b
c. ACCUMULATED NET GAINS (LOSSES) ON CASH FLOW HEDGES............... 4336 0 26.c
27. Cumulative foreign currency translation adjustments.................. 3284 (2,454) 27.
28. Total equity capital (sum of items 23 through 27).................... 3210 5,214,250 28.
29. Total liabilities, limited-life preferred stock, and equity
capital (sum of items 21, 22, and 28)................................ 3300 68,940,410 29.
Memorandum
To be reported only with the March Report of Condition.
1. Indicate in the box at the right the number of the statement below that best
describes the most comprehensive level of auditing work performed for the Number
bank by independent external auditors as of any date during 1996....................RCFD 6724...... N/A M.1.
</TABLE>
1 = Independent audit of the bank conducted in accordance performed by other
with generally accepted auditing standards by a certified required by state
chartering public accounting firm which submits a report on the bank
2 = Independent audit of the bank's parent holding company statements by
external conducted in accordance with generally accepted auditing standards
by a certified public accounting firm which statements by external submits
a report on the consolidated holding company (but not on the bank
separately) preparation work)
3 = Directors' examination of the bank conducted in accordance with generally
accepted auditing standards by a certified public accounting firm (may be
required by state chartering authority)
4. = Directors' examination of the bank external auditors (may be authority)
5 = Review of the bank's financial auditors
6 = Compilation of the bank's financial auditors
7 = Other audit procedures (excluding tax
8 = No external audit work
- ----------
(1) Includes total demand deposits and noninterest-bearing time and savings
deposits.
<PAGE> 1
EXHIBIT 99.3
================================================================================
POOLING AND SERVICING AGREEMENT
BETWEEN
CAPITAL AUTO RECEIVABLES, INC.
AND
GENERAL MOTORS ACCEPTANCE CORPORATION
DATED AS OF SEPTEMBER 9, 1999
================================================================================
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
<S> <C> <C>
ARTICLE I
DEFINITIONS
SECTION 1.01 Definitions..................................................................2
SECTION 1.02 Owner of a Receivable........................................................2
ARTICLE II
PURCHASE AND SALE OF RECEIVABLES
SECTION 2.01 Purchase and Sale of Receivables.............................................2
SECTION 2.02 Receivables Purchase Price...................................................3
SECTION 2.03 The Closing..................................................................3
SECTION 2.04 Custody of Receivable Files..................................................3
ARTICLE III
ADMINISTRATION AND SERVICING OF RECEIVABLES
SECTION 3.01 Duties of the Servicer.......................................................4
SECTION 3.02 Collection of Receivable Payments............................................5
SECTION 3.03 Rebates on Full Prepayments on Scheduled Interest Receivables................5
SECTION 3.04 Realization Upon Liquidating Receivables.....................................5
SECTION 3.05 Maintenance of Insurance Policies............................................6
SECTION 3.06 Maintenance of Security Interests in Vehicles................................6
SECTION 3.07 Covenants, Representations and Warranties of the Servicer....................6
SECTION 3.08 Purchase of Receivables Upon Breach of Covenant..............................8
SECTION 3.09 Total Servicing Fee; Payment of Certain Expenses by Servicer.................8
SECTION 3.10 Servicer's Accounting........................................................8
SECTION 3.11 Application of Collections...................................................9
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.01 Representations and Warranties as to the Receivables........................10
SECTION 4.02 Additional Representations and Warranties of GMAC...........................12
SECTION 4.03 Representations and Warranties of CARI......................................13
ARTICLE V
ADDITIONAL AGREEMENTS
SECTION 5.01 Conflicts With Further Transfer and Servicing Agreements....................14
SECTION 5.02 Protection of Title.........................................................14
SECTION 5.03 Other Liens or Interests....................................................15
SECTION 5.04 Repurchase Events...........................................................15
SECTION 5.05 Indemnification.............................................................15
</TABLE>
i
<PAGE> 3
<TABLE>
<S> <C> <C>
SECTION 5.06 Further Assignments.........................................................16
SECTION 5.07 Pre-Closing Collections.....................................................16
ARTICLE VI
CONDITIONS
SECTION 6.01 Conditions to Obligation of CARI............................................16
SECTION 6.02 Conditions To Obligation of GMAC............................................17
ARTICLE VII
MISCELLANEOUS PROVISIONS
SECTION 7.01 Amendment...................................................................17
SECTION 7.02 Survival....................................................................17
SECTION 7.03 Notices.....................................................................17
SECTION 7.04 GOVERNING LAW...............................................................18
SECTION 7.05 Waivers.....................................................................18
SECTION 7.06 Costs and Expenses..........................................................18
SECTION 7.07 Confidential Information....................................................18
SECTION 7.08 Headings....................................................................18
SECTION 7.09 Counterparts................................................................18
SECTION 7.10 No Petition Covenant........................................................18
</TABLE>
EXHIBIT A - Form of Assignment
APPENDIX A - Definitions, Rules of Construction and Notices
ii
<PAGE> 4
POOLING AND SERVICING AGREEMENT, dated as of September 9, 1999, between
CAPITAL AUTO RECEIVABLES, INC., a Delaware corporation ("CARI"), and GENERAL
MOTORS ACCEPTANCE CORPORATION, a Delaware corporation (herein referred to as
"GMAC" in its capacity as seller of the Receivables and as the "Servicer" in its
capacity as servicer of the Receivables).
WHEREAS, CARI desires to purchase a portfolio of automobile and light truck
retail instalment sale contracts and related rights owned by GMAC;
WHEREAS, GMAC is willing to sell such contracts and related rights to CARI;
WHEREAS, CARI may wish to sell or otherwise transfer such contracts and
related rights, or interests therein, to a trust, corporation, partnership or
other entity (any such entity being the "Issuer");
WHEREAS, the Issuer may issue debentures, notes, participations,
certificates of beneficial interest, partnership interests or other interests or
securities (collectively, any such issued interests or securities being
"Securities") to fund its acquisition of such contracts and related rights;
WHEREAS, the Issuer may wish to provide in the agreements pursuant to which
it acquires its interest in such contracts and related rights and issues the
Securities (all such agreements being collectively the "Further Transfer and
Servicing Agreements") that GMAC shall service such contracts;
WHEREAS, the Servicer is willing to service such contracts in accordance
with the terms hereof for the benefit of CARI and, by its execution of the
Further Transfer and Servicing Agreements, will be willing to service such
contracts in accordance with the terms of such Further Transfer and Servicing
Agreements for the benefit of the Issuer and each other party identified or
described herein or in the Further Transfer and Servicing Agreements as having
an interest as owner, trustee, secured party, Swap Counterparty or holder of
Securities (the Issuer and all such parties under the Further Transfer and
Servicing Agreements being "Interested Parties") with respect to such contracts,
and the proceeds thereof, as the interests of such parties may appear from time
to time.
NOW, THEREFORE, in consideration of the premises and the mutual covenants
herein contained, the parties hereto agree as follows:
<PAGE> 5
ARTICLE I
DEFINITIONS
SECTION 1.01 Definitions. Certain capitalized terms used in this Agreement
are defined in and shall have the respective meanings assigned them in Part I of
Appendix A to this Agreement. All references herein to "the Agreement" or "this
Agreement" are to this Pooling and Servicing Agreement as it may be amended,
supplemented or modified from time to time, and all references herein to
Articles and Sections are to Articles or Sections of this Agreement unless
otherwise specified. The rules of construction set forth in Part II of such
Appendix A shall be applicable to this Agreement.
SECTION 1.02 Owner of a Receivable. For purposes of this Agreement, the
"Owner" of a Receivable shall mean CARI until the execution and delivery of the
Further Transfer and Servicing Agreements and thereafter shall mean the Issuer;
provided, that GMAC or CARI, as applicable, shall be the "Owner" of any
Receivable from and after the time that such Person shall acquire such
Receivable, whether pursuant to Section 3.08 or 5.04 of this Agreement, any
provision of the Further Transfer and Servicing Agreements or otherwise.
ARTICLE II
PURCHASE AND SALE OF RECEIVABLES
SECTION 2.01 Purchase and Sale of Receivables. On such date as is acceptable
to CARI and GMAC by which the conditions specified in Article VI have been
satisfied (and in any event immediately prior to consummation of the
transactions contemplated by the Further Transfer and Servicing Agreements, if
any), GMAC shall sell, transfer, assign and otherwise convey to CARI, without
recourse:
(a) all right, title and interest of GMAC in, to and under the Receivables
listed on the Schedule of Receivables and (i) in the case of Scheduled Interest
Receivables, all monies due thereunder on and after the Cutoff Date and (ii) in
the case of Simple Interest Receivables, all monies received thereon on and
after the Cutoff Date, in each case exclusive of any amounts allocable to the
premium for physical damage insurance force-placed by GMAC covering any related
Financed Vehicle;
(b) the interest of GMAC in the security interests in the Financed Vehicles
granted by Obligors pursuant to the Receivables and, to the extent permitted by
law, any accessions thereto;
(c) except for those Receivables originated in Wisconsin, the interest of
GMAC in any proceeds from claims on any physical damage, credit life, credit
disability or other insurance policies covering Financed Vehicles or Obligors;
2
<PAGE> 6
(d) the interest of GMAC in any proceeds from recourse against Dealers on
Receivables; and
(e) the interest of GMAC in any proceeds of the property described in
clauses (a) and (b) above.
The property described in clauses (a) through (e) above is referred to
herein collectively as the "Purchased Property."
It is the intention of GMAC and CARI that the transfer and assignment
contemplated by this Agreement shall constitute a sale of the Receivables from
GMAC to CARI and the beneficial interest in and title to the Receivables shall
not be part of GMAC's estate in the event of the filing of a bankruptcy petition
by or against GMAC under any bankruptcy law.
The foregoing sale does not constitute and is not intended to result in any
assumption by CARI of any obligation of GMAC to the Obligors, Dealers, insurers
or any other Person in connection with the Receivables, any Dealer Agreements,
any insurance policies or any agreement or instrument relating to any of them.
SECTION 2.02 Receivables Purchase Price. In consideration for the Purchased
Property, CARI shall, at the closing hereunder, pay to GMAC an amount equal to
the Initial Aggregate Principal Balance in respect of the Receivables (the
"Receivables Purchase Price") and GMAC shall execute and deliver to CARI an
assignment in the form attached hereto as Exhibit A. A portion of the
Receivables Purchase Price equal to $2,121,906,315.09 shall be paid to GMAC in
immediately available funds, and the balance of the Receivables Purchase Price
shall be recorded as an advance from GMAC to CARI pursuant to the Intercompany
Advance Agreement.
SECTION 2.03 The Closing. The sale and purchase of the Receivables shall
take place at the offices of Kirkland & Ellis, 200 East Randolph Drive, 56th
Floor, Chicago, Illinois 60601, at a date and time mutually agreeable to GMAC
and CARI, and may occur simultaneously with the closing of transactions
contemplated by the Further Transfer and Servicing Agreements.
SECTION 2.04 Custody of Receivable Files. In connection with the sale,
transfer and assignment of the Receivables to CARI pursuant to this Agreement,
CARI, simultaneously with the execution and delivery of this Agreement, shall
enter into the Custodian Agreement with the Custodian, pursuant to which CARI
shall revocably appoint the Custodian, and the Custodian shall accept such
appointment, to act as the agent of CARI as Custodian of the following documents
or instruments which shall be constructively delivered to CARI with respect to
each Receivable:
(a) the fully executed original of the instalment sale contract for such
Receivable;
(b) documents evidencing or related to any Insurance Policy;
3
<PAGE> 7
(c) the original credit application of each Obligor, fully executed by each
such Obligor on GMAC's customary form, or on a form approved by GMAC, for such
application;
(d) where permitted by law, the original certificate of title (when
received) and otherwise such documents, if any, that GMAC keeps on file in
accordance with its customary procedures indicating that the Financed Vehicle is
owned by the Obligor and subject to the interest of GMAC as first lienholder or
secured party; and
(e) any and all other documents that GMAC keeps on file in accordance with
its customary procedures relating to the individual Receivable, Obligor or
Financed Vehicle.
ARTICLE III
ADMINISTRATION AND SERVICING OF RECEIVABLES
SECTION 3.01 Duties of the Servicer. The Servicer is hereby appointed and
authorized to act as agent for the Owner of the Receivables and in such capacity
shall manage, service, administer and make collections on the Receivables with
reasonable care, using that degree of skill and attention that the Servicer
exercises with respect to comparable automotive receivables that it services for
itself or others. The Servicer hereby accepts such appointment and authorization
and agrees to perform the duties of Servicer with respect to the Receivables set
forth herein and in the Further Transfer and Servicing Agreements. The
Servicer's duties shall include collection and posting of all payments,
responding to inquiries of Obligors, investigating delinquencies, sending
payment coupons to Obligors, reporting tax information to Obligors, policing the
collateral, accounting for collections and furnishing monthly and annual
statements to the Owner of any Receivables with respect to distributions,
generating federal income tax information and performing the other duties
specified herein. Subject to the provisions of Section 3.02, the Servicer shall
follow its customary standards, policies and procedures and shall have full
power and authority, acting alone, to do any and all things in connection with
such managing, servicing, administration and collection that it may deem
necessary or desirable. Without limiting the generality of the foregoing, the
Servicer is hereby authorized and empowered by the Owner of the Receivables,
pursuant to this Section 3.01, to execute and deliver, on behalf of all
Interested Parties, or any of them, any and all instruments of satisfaction or
cancellation, or of partial or full release or discharge, and all other
comparable instruments, with respect to the Receivables and the Financed
Vehicles. The Servicer is hereby authorized to commence, in its own name or in
the name of the Owner of such Receivable a legal proceeding to enforce a
Liquidating Receivable as contemplated by Section 3.04, to enforce all
obligations of GMAC and CARI under this Agreement and under the Further Transfer
and Servicing Agreements or to commence or participate in a legal proceeding
(including without limitation a bankruptcy proceeding) relating to or involving
a Receivable or a Liquidating Receivable. If the Servicer commences or
participates in such a legal proceeding in its own name, the Owner of such
Receivable shall thereupon be deemed to have automatically assigned such
Receivable to the Servicer for purposes of commencing or participating in any
such proceeding as a party or claimant, and the Servicer is hereby authorized
and empowered by the Owner of a Receivable to execute and deliver
4
<PAGE> 8
in the Servicer's name any notices, demands, claims, complaints, responses,
affidavits or other documents or instruments in connection with any such
proceeding. Any Owner of Receivables shall furnish the Servicer with any powers
of attorney and other documents and take any other steps which the Servicer may
deem necessary or appropriate to enable the Servicer to carry out its servicing
and administrative duties under this Agreement and the Further Transfer and
Servicing Agreements. Except to the extent required by the preceding two
sentences, the authority and rights granted to the Servicer in this Section 3.01
shall be nonexclusive and shall not be construed to be in derogation of the
retention by the Owner of a Receivable of equivalent authority and rights.
SECTION 3.02 Collection of Receivable Payments. The Servicer shall make
reasonable efforts to collect all payments called for under the terms and
provisions of the Receivables as and when the same shall become due, and shall
follow such collection practices, policies and procedures as it follows with
respect to comparable automotive receivables that it services for itself or
others. Except as provided in Section 3.07(a)(iii), the Servicer is hereby
authorized to grant extensions, rebates or adjustments on a Receivable without
the prior consent of the Owner of such Receivable. The Servicer is authorized in
its discretion to waive any prepayment charge, late payment charge or any other
fees that may be collected in the ordinary course of servicing such Receivable.
SECTION 3.03 Rebates on Full Prepayments on Scheduled Interest Receivables.
If the amount of a full Prepayment by an Obligor under a Scheduled Interest
Receivable, after adjustment for the Rebate, is less than the amount that would
be payable under the actuarial method if a full Prepayment were made at the end
of the billing month under such Scheduled Interest Receivable, either because
the Rebate calculated under the terms of such Receivable is greater than the
amount calculable under the actuarial method or because the Servicer's customary
servicing procedure is to credit a greater Rebate, the Servicer, as part of its
servicing duties, shall remit such difference to the Owner of such Receivable.
SECTION 3.04 Realization Upon Liquidating Receivables. The Servicer shall
use reasonable efforts, consistent with its customary servicing procedures, to
repossess or otherwise comparably convert the ownership of any Financed Vehicle
that it has reasonably determined should be repossessed or otherwise converted
following a default under the Receivable secured by the Financed Vehicle. The
Servicer is authorized to follow such practices, policies and procedures as it
follows with respect to comparable automotive receivables that it services for
itself or others, which practices, policies and procedures may include
reasonable efforts to realize upon any recourse to Dealers, selling the related
Financed Vehicle at public or private sale and other actions by the Servicer in
order to realize upon such a Receivable. The foregoing is subject to the
provision that, in any case in which the Financed Vehicle shall have suffered
damage, the Servicer shall not expend funds in connection with any repair or
towards the repossession of such Financed Vehicle unless it shall determine in
its discretion that such repair and/or repossession shall increase the proceeds
of liquidation of the related Receivable by an amount greater than the amount of
such expenses. The Servicer shall be entitled to receive Liquidation Expenses
with respect to each Liquidating Receivable at such time as the Receivable
becomes a Liquidating Receivable (or as may otherwise be provided in the Further
Transfer and Servicing Agreements).
5
<PAGE> 9
SECTION 3.05 Maintenance of Insurance Policies. The Servicer shall, in
accordance with its customary servicing procedures, require that each Obligor
shall have obtained physical damage insurance covering the Financed Vehicle as
of the execution of the related Receivable. The Servicer shall, in accordance
with its customary servicing procedures, monitor such physical damage insurance
with respect to each Receivable.
SECTION 3.06 Maintenance of Security Interests in Vehicles. The Servicer
shall, in accordance with its customary servicing procedures and at its own
expense, take such steps as are necessary to maintain perfection of the security
interest created by each Receivable in the related Financed Vehicle. The Owner
of each Receivable hereby authorizes the Servicer to re-perfect such security
interest on behalf of such Owner, as necessary because of the relocation of a
Financed Vehicle, or for any other reason.
SECTION 3.07 Covenants, Representations and Warranties of the Servicer. As
of the closing hereunder, the Servicer hereby makes the following
representations, warranties and covenants on which CARI relies in accepting the
Receivables hereunder and on which the Issuer shall rely in accepting the
Receivables and executing and delivering the Securities under the Further
Transfer and Servicing Agreements.
(a) The Servicer covenants that from and after the closing hereunder:
(i) Liens in Force. Except as contemplated in this Agreement or the
Further Transfer and Servicing Agreements, the Servicer shall not release in
whole or in part any Financed Vehicle from the security interest securing
the related Receivable;
(ii) No Impairment. The Servicer shall do nothing to impair the rights
of CARI or any Interested Party in and to the Receivables; and
(iii) No Modifications. The Servicer shall not amend or otherwise
modify any Receivable such that the Amount Financed, the Annual Percentage
Rate, the total number of Scheduled Payments (in the case of a Scheduled
Interest Receivable) or the number of originally scheduled due dates (in the
case of a Simple Interest Receivable), is altered or such that the last
Scheduled Payment (in the case of a Scheduled Interest Receivable) or the
last scheduled due date (in the case of a Simple Interest Receivable) occurs
after the final scheduled payment date that is specified in Section 4.01(r).
(b) Upon the execution of the Further Transfer and Servicing Agreements, the
Servicer represents and warrants to the Issuer and CARI that in addition to the
representations and warranties in Sections 4.01 and 4.02 being true as of the
date of the closing thereunder that as of such closing:
6
<PAGE> 10
(i) Organization and Good Standing. The Servicer had at all relevant
times, and now has, power, authority and legal right to service the
Receivables as provided herein and in the Further Transfer and Servicing
Agreements;
(ii) Power and Authority. The Servicer has the power and authority to
execute and deliver the Further Transfer and Servicing Agreements and to
carry out the terms of such agreements; and the Servicer's execution,
delivery and performance of the Further Transfer and Servicing Agreements
have been duly authorized by the Servicer by all necessary corporate action;
(iii) Binding Obligation. The Further Transfer and Servicing
Agreements, when duly executed and delivered, shall constitute the legal,
valid and binding obligations of the Servicer enforceable in accordance with
their respective 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;
(iv) No Violation. The consummation by the Servicer of the
transactions contemplated by the Further Transfer and Servicing Agreements,
and the fulfillment by the Servicer of the terms of the Further Transfer and
Servicing Agreements, shall not conflict with, result in any breach of any
of the terms and provisions of, or constitute (with or without notice or
lapse of time) a default under, the articles of incorporation or by-laws of
the Servicer, or any indenture, agreement, mortgage, deed of trust or other
instrument to which the Servicer is a party or by which it is bound, or
result in the creation or imposition of any Lien upon any of its properties
pursuant to the terms of any such indenture, agreement, mortgage, deed of
trust or other instrument, other than the Further Transfer and Servicing
Agreements, or violate any law or, to the best of the Servicer's knowledge,
any order, rule or regulation applicable to the Servicer of any court or of
any federal or state regulatory body, administrative agency or other
governmental instrumentality having jurisdiction over the Servicer or any of
its properties;
(v) No Proceedings. To the Servicer's knowledge, there are no
proceedings or investigations pending, or threatened, before any court,
regulatory body, administrative agency or other tribunal or governmental
instrumentality having jurisdiction over the Servicer or its properties (A)
asserting the invalidity of the Further Transfer and Servicing Agreements or
any Securities issued thereunder, (B) seeking to prevent the issuance of
such Securities or the consummation of any of the transactions contemplated
by the Further Transfer and Servicing Agreements, or (C) seeking any
determination or ruling that might materially and adversely affect the
performance by the Servicer of its obligations under, or the validity or
enforceability of, the Further Transfer and Servicing Agreements; and
7
<PAGE> 11
(vi) Reasonable Liquidation Expenses. The amounts defined as
"Liquidation Expenses" are a reasonable estimate of such expenses,
reasonably related to the Servicer's experience for such expenses in
servicing comparable automotive receivables.
SECTION 3.08 Purchase of Receivables Upon Breach of Covenant. Upon discovery
by any of the Servicer, CARI or any party under the Further Transfer and
Servicing Agreements of a breach of any of the covenants set forth in Sections
3.06 and 3.07(a), the party discovering such breach shall give prompt written
notice thereof to the others. As of the last day of the second Monthly Period
following its discovering or receiving notice of such breach (or, at the
Servicer's election, the last day of the first Monthly Period so following), the
Servicer shall, unless it shall have cured such breach in all material respects,
purchase from the Owner thereof any Receivable materially and adversely affected
by such breach as determined by such Owner and, on the related Distribution
Date, the Servicer shall pay the Administrative Purchase Payment, and shall be
entitled to receive the Released Administrative Amount, if any. It is understood
and agreed that the obligation of the Servicer to purchase any Receivable with
respect to which such a breach has occurred and is continuing shall, if such
obligation is fulfilled, constitute the sole remedy against the Servicer for
such breach available to CARI or any Interested Party.
SECTION 3.09 Total Servicing Fee; Payment of Certain Expenses by Servicer.
The Servicer is entitled to receive the Total Servicing Fee and Supplemental
Servicing Fees out of collections in respect of the Receivables. The Servicer
shall also be entitled to Investment Earnings as set forth in the Further
Transfer and Servicing Agreements. Subject to any limitations on the Servicer's
liability under the Further Transfer and Servicing Agreements, the Servicer
shall be required to pay all expenses incurred by it in connection with its
activities under this Agreement and under the Further Transfer and Servicing
Agreements (including fees and disbursements of the Issuer, any trustees and
independent accountants, taxes imposed on the Servicer, expenses incurred in
connection with distributions and reports to holders of Securities and all other
fees and expenses not expressly stated under this Agreement or the Further
Transfer and Servicing Agreements to be for the account of the holders of
Securities).
SECTION 3.10 Servicer's Accounting. On each Determination Date under a
Further Transfer and Servicing Agreement, the Servicer shall deliver to each of
the trustees and other applicable parties under the Further Transfer and
Servicing Agreements (including the Swap Counterparty) and to CARI and the
Rating Agencies a Servicer's Accounting with respect to the immediately
preceding Monthly Period executed by the President or any Vice President of the
Servicer containing all information necessary to each such party for making any
distributions required by the Further Transfer and Servicing Agreements, and all
information necessary to each such party for sending any statements required
under the Further Transfer and Servicing Agreements. Receivables to be purchased
by the Servicer under Sections 3.08 or 5.04 or to be repurchased by CARI or GMAC
under the Further Transfer and Servicing Agreements as of the last day of any
Monthly Period shall be identified by Receivable number (as set forth in the
Schedule of Receivables). With respect to any Receivables for which CARI is the
Owner, the Servicer shall deliver to CARI
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such accountings relating to such Receivables and the actions of the Servicer
with respect thereto as CARI may reasonably request.
SECTION 3.11 Application of Collections. For the purposes of this Agreement
and the Further Transfer and Servicing Agreements, no later than each
Distribution Date all collections for the related Monthly Period shall be
applied by the Servicer as follows:
(a) With respect to each Scheduled Interest Receivable (other than an
Administrative Receivable or a Warranty Receivable), payments by or on behalf of
the Obligor which are not Supplemental Servicing Fees shall be applied first to
reduce outstanding advances of shortfalls in collections, if any, made pursuant
to the Further Transfer and Servicing Agreements with respect to such
Receivable. Next, the amount of any such payments in excess of Supplemental
Servicing Fees and any such advances with respect to such Receivable shall be
applied to the Scheduled Payment with respect to such Receivable. Any amount of
such payments remaining after the applications described in the preceding two
sentences constitutes an Excess Payment with respect to such Receivable, and
such Excess Payment (to the extent it does not constitute a Payment Ahead) shall
be applied to prepay such Receivable. If the amounts applied under the first two
sentences of this Section 3.11(a) shall be less than the Scheduled Payment,
whether as a result of any extension granted to the Obligor or otherwise, then
the Deferred Prepayment, if any, with respect to such Receivable shall be
applied by the Servicer to the extent of the shortfall, and such Deferred
Prepayment shall be reduced accordingly.
(b) With respect to all Simple Interest Receivables (other than
Administrative Receivables and Warranty Receivables), payments by or on behalf
of the Obligors which are not Supplemental Servicing Fees shall be applied first
to the payment to the Servicer of Excess Simple Interest Collections, if any,
and next to principal and interest on all such Simple Interest Receivables.
(c) With respect to each Administrative Receivable and Warranty Receivable,
payments by or on behalf of the Obligor shall be applied in the same manner,
except that any Released Administrative Amount or Released Warranty Amount shall
be remitted to the Servicer or CARI, as applicable. In the case of a Scheduled
Interest Receivable, a Warranty Payment shall be applied to reduce any advances
described in Section 3.11(a) and such Warranty Payment or an Administrative
Purchase Payment, as applicable, shall be applied to the Scheduled Payment, in
each case to the extent that the payments by or on behalf of the Obligor shall
be insufficient, and then to prepay such Receivable in full. In the case of a
Simple Interest Receivable, a Warranty Payment or an Administrative Payment, as
applicable, shall be applied to principal and interest on such Receivable.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.01 Representations and Warranties as to the Receivables. GMAC
makes the following representations and warranties as to the Receivables on
which CARI relies in accepting the
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Receivables. Such representations and warranties speak as of the date hereof, as
of the closing hereunder and as of the closing under the Further Transfer and
Servicing Agreements, and shall survive the sale, transfer and assignment of the
Receivables to CARI and the subsequent assignment and transfer pursuant to the
Further Transfer and Servicing Agreements:
(a) Characteristics of Receivables. Each Receivable (i) was originated by a
Dealer for the retail sale of a Financed Vehicle in the ordinary course of such
Dealer's business, was fully and properly executed by the parties thereto, was
purchased by GMAC from such Dealer under an existing Dealer Agreement, and was
validly assigned by such Dealer to GMAC in accordance with its terms, (ii) has
created or shall create a valid, binding and enforceable first priority security
interest in favor of GMAC in the Financed Vehicle, which security interest is
assignable by GMAC to CARI, (iii) contains customary and enforceable provisions
such as to render the rights and remedies of the holder thereof adequate for
realization against the collateral of the benefits of the security, and (iv)
provides for level monthly payments (provided that the payment in the first
month and the final month of the life of the Receivable may be different from
the level payment) that shall amortize the Amount Financed by maturity and shall
yield interest at the Annual Percentage Rate. Scheduled Interest Receivables
represent (based on Principal Balances) 34% of the Initial Aggregate Principal
Balance, with the balance of the Receivables being Simple Interest Receivables;
(b) Schedule of Receivables. The information set forth in the Schedule of
Receivables is true and correct in all material respects, and no selection
procedures believed to be adverse to CARI or to holders of the Securities issued
under the Further Transfer and Servicing Agreements were utilized in selecting
the Receivables from those receivables of GMAC which meet the selection criteria
under this Agreement;
(c) Compliance With Law. All requirements of applicable federal, state and
local laws, and regulations thereunder, including, without limitation, usury
laws, the Federal Truth-in-Lending Act, the Equal Credit Opportunity Act, the
Fair Credit Billing Act, the Fair Credit Reporting Act, the Fair Debt Collection
Practices Act, the Federal Trade Commission Act, the Magnuson-Moss Warranty Act,
the Federal Reserve Board's Regulations "B" and "Z", the Soldiers' and Sailors'
Civil Relief Act of 1940, the Texas Consumer Credit Code, and state adaptations
of the National Consumer Act and of the Uniform Consumer Credit Code and other
consumer credit laws and equal credit opportunity and disclosure laws, in
respect of any of the Receivables, have been complied with in all material
respects, and each Receivable and the sale of the Financed Vehicle evidenced
thereby complied at the time it was originated or made and now complies in all
material respects with all legal requirements of the jurisdiction in which it
was originated or made;
(d) Binding Obligation. Each Receivable represents the genuine, legal, valid
and binding payment obligation in writing of the Obligor thereon, enforceable by
the holder thereof in accordance with its terms, except as enforceability may be
limited by bankruptcy, insolvency, reorganization or similar laws affecting the
enforcement of creditors' rights in general and by equity, regardless of whether
such enforceability is considered in a proceeding in equity or at law;
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(e) Security Interest in Financed Vehicle. Immediately prior to the sale,
transfer and assignment thereof pursuant hereto, each Receivable was secured by
a validly perfected first priority security interest in the Financed Vehicle in
favor of GMAC as secured party or all necessary and appropriate action had been
commenced that would result in the valid perfection of a first priority security
interest in the Financed Vehicle in favor of GMAC as secured party;
(f) Receivables In Force. No Receivable has been satisfied, subordinated or
rescinded, and the Financed Vehicle securing each such Receivable has not been
released from the lien of the related Receivable in whole or in part;
(g) No Waiver. Since the Cutoff Date, no provision of a Receivable has been
waived, altered or modified in any respect;
(h) No Defenses. No right of rescission, setoff, counterclaim or defense has
been asserted or threatened with respect to any Receivable;
(i) No Liens. There are, to the best of GMAC's knowledge, no liens or claims
that have been filed for work, labor or materials affecting any Financed Vehicle
securing any Receivable that are or may be liens prior to, or equal or
coordinate with, the security interest in the Financed Vehicle granted by the
Receivable;
(j) Insurance. Each Obligor is required to maintain a physical damage
insurance policy of the type that GMAC requires in accordance with its customary
underwriting standards for the purchase of automotive receivables;
(k) Good Title. No Receivable has been sold, transferred, assigned or
pledged by GMAC to any Person other than CARI; immediately prior to the
conveyance of the Receivables pursuant to this Agreement GMAC had good and
marketable title thereto, free of any Lien; and, upon execution and delivery of
this Agreement by GMAC, CARI shall have all of the right, title and interest of
GMAC in and to the Receivables, the unpaid indebtedness evidenced thereby and
the collateral security therefor, free of any Lien;
(l) Lawful Assignment. No Receivable was originated in, or is subject to the
laws of, any jurisdiction the laws of which would make unlawful the sale,
transfer and assignment of such Receivable under this Agreement;
(m) All Filings Made. All filings (including, without limitation, UCC
filings) necessary in any jurisdiction to give CARI a first priority perfected
ownership interest in the Receivables shall have been made;
(n) One Original. There is only one original executed copy of each
Receivable;
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(o) No Documents or Instruments. No Receivable, or constituent part thereof,
constitutes a "negotiable instrument" or "negotiable document of title" (as such
terms are used in the UCC);
(p) Maturity of Receivables. Each Receivable has an original maturity of not
less than 10 months and not greater than 60 months;
(q) Lowest Annual Percentage Rate. The lowest Annual Percentage Rate of any
Receivable is 6.00%;
(r) Scheduled Payments; Delinquency. Each Receivable was originated on or
after March 1, 1998, has a first scheduled payment that is due on or after April
1, 1998, has a final scheduled payment that is due no later than August 31,
2004, and has neither a payment that is more than 29 days overdue as of the
Cutoff Date nor been charged-off by GMAC;
(s) Vehicles. Each Financed Vehicle shall be a new or used automobile or
light truck;
(t) Origin. Each Receivable shall have been originated in the United States;
and
(u) No Amendment. No Receivable has been amended or otherwise modified such
that the total number of the Obligor's Scheduled Payments (in the case of a
Scheduled Interest Receivable) or the number of originally scheduled due dates
(in the case of a Simple Interest Receivable) is increased or such that the
Amount Financed is increased.
SECTION 4.02 Additional Representations and Warranties of GMAC. GMAC hereby
represents and warrants to CARI as of the date hereof, as of the closing
hereunder and as of the closing under the Further Transfer and Servicing
Agreements, both in its capacity as the seller of the Receivables hereunder and
in its capacity as Servicer, that:
(a) Organization and Good Standing. GMAC has been duly organized and is
validly existing as a corporation in good standing under the laws of the State
of Delaware, with power and authority to own its properties and to conduct its
business as such properties are presently owned and such business is presently
conducted;
(b) Due Qualification. GMAC is duly qualified to do business as a foreign
corporation in good standing, 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 (including the servicing of the Receivables)
requires or shall require such qualification;
(c) Power and Authority. GMAC has the power and authority to execute and
deliver this Agreement and to carry out its terms; GMAC has full power and
authority to sell and assign the property to be sold and assigned to CARI and to
service the Receivables as provided herein and in the Further Transfer and
Servicing Agreements, has duly authorized such sale and assignment to
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CARI by all necessary corporate action; and the execution, delivery and
performance of this Agreement have been duly authorized by GMAC by all necessary
corporate action;
(d) Valid Sale; Binding Obligation. This Agreement, when duly executed and
delivered, shall constitute a valid sale, transfer and assignment of the
Receivables, enforceable against creditors of and purchasers from GMAC; and this
Agreement, when duly executed and delivered, shall constitute a legal, valid and
binding obligation of GMAC 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;
(e) No Violation. The consummation of the transactions contemplated by this
Agreement and the fulfillment of the terms of this Agreement shall not conflict
with, result in any breach of any of the terms and provisions of, or constitute
(with or without notice or lapse of time) a default under, the articles of
incorporation or by-laws of GMAC, or any indenture, agreement, mortgage, deed of
trust or other instrument to which GMAC is a party or by which it is bound, or
result in the creation or imposition of any Lien upon any of its properties
pursuant to the terms of any such indenture, agreement, mortgage, deed of trust
or other instrument, other than this Agreement or violate any law or, to the
best of GMAC's knowledge, any order, rule or regulation applicable to GMAC of
any court or of any federal or state regulatory body, administrative agency or
other governmental instrumentality having jurisdiction over GMAC or any of its
properties; and
(f) No Proceedings. To GMAC's knowledge, there are no proceedings or
investigations pending, or threatened, before any court, regulatory body,
administrative agency or other tribunal or governmental instrumentality having
jurisdiction over GMAC or its properties (A) asserting the invalidity of this
Agreement, (B) seeking to prevent the consummation of any of the transactions
contemplated by this Agreement, or (C) seeking any determination or ruling that
might materially and adversely affect the performance by GMAC of its obligations
under, or the validity or enforceability of, this Agreement.
SECTION 4.03 Representations and Warranties of CARI. CARI hereby represents
and warrants to GMAC as of the date hereof and as of the closing hereunder:
(a) Organization and Good Standing. CARI has been duly organized and is
validly existing as a corporation in good standing under the laws of the State
of Delaware, with power and authority to own its properties and to conduct its
business as such properties are presently owned and such business is presently
conducted, and had at all relevant times, and now has, power, authority and
legal right to acquire and own the Receivables;
(b) Due Qualification. CARI is duly qualified to do business as a foreign
corporation in good standing, and has obtained all necessary licenses and
approvals in all jurisdictions in which the ownership or lease of property or
the conduct of its business requires such qualification;
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(c) Power and Authority. CARI has the power and authority to execute and
deliver this Agreement and to carry out its terms and the execution, delivery
and performance of this Agreement have been duly authorized by CARI by all
necessary corporate action;
(d) No Violation. The consummation of the transactions contemplated by this
Agreement and the fulfillment of the terms of this Agreement 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 CARI, or any indenture, agreement, mortgage, deed of
trust or other instrument to which CARI 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 or other instrument,
other than any Further Transfer and Servicing Agreement or violate any law or,
to the best of CARI's knowledge, any order, rule or regulation applicable to
CARI of any court or of any federal or state regulatory body, administrative
agency or other governmental instrumentality having jurisdiction over CARI or
any of its properties; and
(e) No Proceedings. To CARI's knowledge, there are no proceedings or
investigations pending, or threatened, before any court, regulatory body,
administrative agency or other tribunal or governmental instrumentality having
jurisdiction over CARI or its properties (i) asserting the invalidity of this
Agreement, or (ii) seeking any determination or ruling that might materially and
adversely affect the performance by CARI of its obligations under, or the
validity or enforceability of, this Agreement.
ARTICLE V
ADDITIONAL AGREEMENTS
The Servicer agrees with CARI as follows:
SECTION 5.01 Conflicts With Further Transfer and Servicing Agreements. To
the extent that any provision of Sections 5.02 through 5.04 of this Agreement
conflicts with any provision of the Further Transfer and Servicing Agreements,
the Further Transfer and Servicing Agreements shall govern.
SECTION 5.02 Protection of Title.
(a) Filings. GMAC shall execute and file such financing statements and cause
to be executed and filed such continuation and other statements, all in such
manner and in such places as may be required by law fully to preserve, maintain
and protect the interest of CARI under this Agreement in the Receivables and the
other Purchased Property and in the proceeds thereof. GMAC shall deliver (or
cause to be delivered) to CARI file-stamped copies of, or filing receipts for,
any document filed as provided above, as soon as available following such
filing.
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(b) Name Change. GMAC shall not change its name, identity or corporate
structure in any manner that would, could or might make any financing statement
or continuation statement filed by GMAC in accordance with Section 5.02(a)
seriously misleading within the meaning of Section 9-402(7) of the UCC, unless
it shall have given CARI at least 60 days prior written notice thereof.
(c) Executive Office; Maintenance of Offices. GMAC shall give CARI at least
60 days prior written notice of any relocation of its principal executive office
if, as a result of such relocation, the applicable provisions of the UCC would
require the filing of any amendment of any previously filed financing or
continuation statement or of any new financing statement. GMAC shall at all
times maintain each office from which it services Receivables and its principal
executive office within the United States of America.
SECTION 5.03 Other Liens or Interests. Except for the conveyances hereunder
and as contemplated by the Further Transfer and Servicing Agreements, GMAC shall
not sell, pledge, assign or transfer the Receivables to any other Person, or
grant, create, incur, assume or suffer to exist any Lien on any interest
therein, and GMAC shall defend the right, title and interest of CARI in, to and
under such Receivables against all claims of third parties claiming through or
under GMAC.
SECTION 5.04 Repurchase Events. By its execution of the Further Transfer and
Servicing Agreements to which it is a party, GMAC shall acknowledge the
assignment by CARI of such of its right, title and interest in, to and under
this Agreement to the Issuer as shall be provided in the Further Transfer and
Servicing Agreements. GMAC hereby covenants and agrees with CARI for the benefit
of CARI and the Interested Parties that in the event of a breach of any of
GMAC's representations and warranties contained in Section 4.01 hereof with
respect to any Receivable (a "Repurchase Event"), GMAC will repurchase such
Receivable from the Issuer (if the Issuer is then the Owner of such Receivable)
on the date and for the amount specified in the Further Transfer and Servicing
Agreements, without further notice from CARI hereunder. Upon the occurrence of a
Repurchase Event with respect to a Receivable for which CARI is the Owner, GMAC
agrees to repurchase such Receivable from CARI for an amount and upon the same
terms as GMAC would be obligated to repurchase such Receivable from the Issuer
if the Issuer was then the Owner thereof, and upon payment of such amount, GMAC
shall have such rights with respect to such Receivable as if GMAC had purchased
such Receivable from the Issuer as the Owner thereof. It is understood and
agreed that the obligation of GMAC to repurchase any Receivable as to which a
breach has occurred and is continuing shall, if such obligation is fulfilled,
constitute the sole remedy against GMAC for such breach available to CARI or any
Interested Party.
SECTION 5.05 Indemnification. GMAC shall indemnify CARI for any liability as
a result of the failure of a Receivable to be originated in compliance with all
requirements of law. This indemnity obligation shall be in addition to any
obligation that GMAC may otherwise have.
SECTION 5.06 Further Assignments. GMAC acknowledges that CARI may, pursuant
to the Further Transfer and Servicing Agreements, sell the Receivables to the
Issuer and assign its rights hereunder to the Issuer, subject to the terms and
conditions of the Further Transfer and Servicing
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Agreements, and that the Issuer may in turn further pledge, assign or transfer
its rights in the Receivables and this Agreement. GMAC further acknowledges that
CARI may assign its rights under the Custodian Agreement to the Issuer.
SECTION 5.07 Pre-Closing Collections. Within two Business Days after the
closing hereunder, GMAC shall transfer to the account or accounts designated by
CARI (or by the Issuer under the Further Transfer and Servicing Agreements) all
collections on the Receivables held by GMAC at the time of such closing and
conveyed to CARI pursuant to Section 2.01(a); provided that so long as the
Monthly Remittance Conditions are satisfied, such collections need not be
transferred until the first Distribution Date.
ARTICLE VI
CONDITIONS
SECTION 6.01 Conditions to Obligation of CARI. The obligation of CARI to
purchase the Receivables hereunder is subject to the satisfaction of the
following conditions:
(a) Representations and Warranties True. The representations and warranties
of GMAC hereunder shall be true and correct at the time of the closing hereunder
with the same effect as if then made, and GMAC shall have performed all
obligations to be performed by it hereunder on or prior to the closing
hereunder.
(b) No Repurchase Event. No Repurchase Event shall have occurred on or prior
to the closing hereunder.
(c) Computer Files Marked. GMAC shall, at its own expense, on or prior to
the closing hereunder, indicate in its computer files created in connection with
the Receivables that the Receivables have been sold to CARI pursuant to this
Agreement and deliver to CARI the Schedule of Receivables certified by an
officer of GMAC to be true, correct and complete.
(d) Documents to be Delivered By GMAC at the Closing.
(i) The Assignment. At the Closing, GMAC shall execute and deliver an
assignment in the form attached hereto as Exhibit A.
(ii) Evidence of UCC Filing. On or prior to the closing hereunder, GMAC
shall record and file, at its own expense, a UCC-1 financing statement in
each jurisdiction in which required by applicable law, executed by GMAC as
seller or debtor, naming CARI as purchaser or secured party, naming the
Receivables and the other Purchased Property as collateral, meeting the
requirements of the laws of each such jurisdiction and in such manner as is
necessary to perfect the sale, transfer, assignment and conveyance of such
Receivables
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to CARI. GMAC shall deliver a file-stamped copy, or other evidence
satisfactory to CARI of such filing, to CARI on or prior to the closing
hereunder.
(iii) Other Documents. At the closing hereunder, GMAC shall provide
such other documents as CARI may reasonably request.
(e) Other Transactions. The transactions contemplated by the Further
Transfer and Servicing Agreements shall be consummated to the extent that such
transactions are intended to be substantially contemporaneous with the
transactions hereunder.
SECTION 6.02 Conditions To Obligation of GMAC. The obligation of GMAC to
sell the Receivables to CARI hereunder is subject to the satisfaction of the
following conditions:
(a) Representations and Warranties True. The representations and warranties
of CARI hereunder shall be true and correct at the time of the closing hereunder
with the same effect as if then made, and CARI shall have performed all
obligations to be performed by it hereunder on or prior to the closing
hereunder.
(b) Receivables Purchase Price. At the closing hereunder, CARI shall pay to
GMAC the Receivables Purchase Price as provided in Section 2.02.
ARTICLE VII
MISCELLANEOUS PROVISIONS
SECTION 7.01 Amendment. This Agreement may be amended from time to time
(subject to any expressly applicable amendment provision of the Further Transfer
and Servicing Agreements and provided that such amendment shall not, as
evidenced by a Materiality Opinion, materially and adversely affect the
interests of the Swap Counterparty) by a written amendment duly executed and
delivered by GMAC and CARI.
SECTION 7.02 Survival. The representations and warranties of GMAC set forth
in Articles IV and V of this Agreement and of Servicer set forth in Section 3.07
of this Agreement shall remain in full force and effect and shall survive the
closing under Section 2.03 hereof and the closing under the Further Transfer and
Servicing Agreements.
SECTION 7.03 Notices. All demands, notices and communications upon or to
GMAC or CARI under this Agreement shall be delivered as specified in Part III of
Appendix A to this Agreement.
SECTION 7.04 GOVERNING LAW. THIS AGREEMENT AND THE ASSIGNMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH THE DOMESTIC LAWS OF THE STATE OF NEW YORK, WITHOUT
REGARD TO THE PRINCIPLES OF
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CONFLICTS OF LAWS THEREOF OR OF ANY OTHER JURISDICTION, AND THE OBLIGATIONS,
RIGHTS AND REMEDIES OF THE PARTIES UNDER THIS AGREEMENT SHALL BE DETERMINED IN
ACCORDANCE WITH SUCH LAWS.
SECTION 7.05 Waivers. No failure or delay on the part of CARI in exercising
any power, right or remedy under this Agreement or the Assignment shall operate
as a waiver thereof, nor shall any single or partial exercise of any such power,
right or remedy preclude any other or further exercise thereof or the exercise
of any other power, right or remedy.
SECTION 7.06 Costs and Expenses. GMAC agrees to pay all reasonable
out-of-pocket costs and expenses of CARI, including fees and expenses of
counsel, in connection with the perfection as against third parties of CARI's
right, title and interest in, to and under the Receivables and the enforcement
of any obligation of GMAC hereunder.
SECTION 7.07 Confidential Information. CARI agrees that it shall neither use
nor disclose to any person the names and addresses of the Obligors, except in
connection with the enforcement of CARI's rights hereunder, under the
Receivables, under the Further Transfer and Servicing Agreements or as required
by law.
SECTION 7.08 Headings. The headings of the various Articles and Sections
herein are for convenience of reference only and shall not define or limit any
of the terms or provisions hereof.
SECTION 7.09 Counterparts. This Agreement may be executed in two or more
counterparts and by different parties on separate counterparts, each of which
shall be an original, but all of which together shall constitute one and the
same instrument.
SECTION 7.10 No Petition Covenant. Notwithstanding any prior termination of
this Agreement, GMAC shall not, prior to the date which is one year and one day
after the final distribution with respect to the Notes and the Certificates to
the Note Distribution Account or the Certificate Distribution Account, as
applicable, acquiesce, petition or otherwise invoke or cause CARI to invoke the
process of any court or government authority for the purpose of commencing or
sustaining a case against CARI under any federal or state bankruptcy, insolvency
or similar law or appointing a receiver, liquidator, assignee, trustee,
custodian, sequestrator or other similar official of CARI or any substantial
part of its property, or ordering the winding up or liquidation of the affairs
of CARI.
SECTION 7.11 Limitations on Rights of Others. The provisions of this
Agreement are solely for the benefit of GMAC and CARI and, to the extent
expressly provided herein, the Interested Parties, 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, under, or in respect of
this Agreement or any covenants, conditions or provisions contained herein.
* * * * *
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IN WITNESS WHEREOF, the parties hereby have caused this Agreement to be
executed by their respective officers thereunto duly authorized as of the date
and year first above written.
GENERAL MOTORS ACCEPTANCE CORPORATION
By:
--------------------------------------------------
Name: D.C. Walker
Title: Director - U.S. Funding & Securitization
CAPITAL AUTO RECEIVABLES, INC.
By:
--------------------------------------------------
Name: C.A. Ondrick
Title: Manager - Securitization
<PAGE> 23
EXHIBIT A
ASSIGNMENT PURSUANT TO POOLING AND SERVICING AGREEMENT
For value received, in accordance with the Pooling and Servicing
Agreement, dated as of September 9, 1999 (the "Pooling and Servicing
Agreement"), between General Motors Acceptance Corporation, a Delaware
corporation ("GMAC"), and Capital Auto Receivables, Inc., a Delaware corporation
("CARI"), GMAC does hereby sell, assign, transfer and otherwise convey unto
CARI, without recourse, (i) all right, title and interest of GMAC in, to and
under the Receivables listed on the Schedule of Receivables and (a) in the case
of Scheduled Interest Receivables, all monies due thereunder on and after the
Cutoff Date and (b) in the case of Simple Interest Receivables, and all monies
received thereon on and after the Cutoff Date, in each case exclusive of any
amounts allocable to the premium for physical damage insurance force-placed by
GMAC covering any related Financed Vehicle; (ii) the interest of GMAC in the
security interests in the Financed Vehicles granted by Obligors pursuant to the
Receivables and, to the extent permitted by law, any accessions thereto; (iii)
except for those Receivables originated in Wisconsin, the interest of GMAC in
any proceeds from claims on any physical damage, credit life, credit disability
or other insurance policies covering Financed Vehicles or Obligors; (iv) the
interest of GMAC in any proceeds from recourse against Dealers on Receivables;
and (v) the interest of GMAC in any proceeds of the property described in
clauses (i) and (ii) above.
It is the intention of GMAC and CARI that the transfer and assignment
contemplated by this Agreement shall constitute a sale of the Receivables from
GMAC to CARI and the beneficial interest in and title to the Receivables shall
not be part of GMAC's estate in the event of the filing of a bankruptcy petition
by or against GMAC under any bankruptcy law.
The foregoing sale does not constitute and is not intended to result in
any assumption by CARI of any obligation of the undersigned to the Obligors,
Dealers, insurers or any other Person in connection with the Receivables, the
Dealer Agreements, any insurance policies or any agreement or instrument
relating to any of them.
This Assignment is made pursuant to and upon the representations,
warranties and agreements on the part of the undersigned contained in the
Pooling and Servicing Agreement and is to be governed by the Pooling and
Servicing Agreement.
Capitalized terms used herein and not otherwise defined shall have the
meaning assigned to them in the Pooling and Servicing Agreement.
* * * * *
<PAGE> 24
IN WITNESS WHEREOF, the undersigned has caused this Assignment to be duly
executed as of September 9, 1999.
GENERAL MOTORS ACCEPTANCE CORPORATION
By:
------------------------------------------
D.C. Walker
Director - U.S. Funding & Securitization
<PAGE> 25
APPENDIX A
PART I
For ease of reference, capitalized terms defined herein have been
consolidated with and are contained in Appendix A to the Trust Sale and
Servicing Agreement of even date herewith among GMAC, CARI and Capital Auto
Receivables Asset Trust 1999-2.
PART II
For ease of reference, the rules of construction have been consolidated
with and are contained in Part II of Appendix A to the Trust Sale and Servicing
Agreement of even date herewith among GMAC, CARI and Capital Auto Receivables
Asset Trust 1999-2.
PART III
For ease of reference, the notice addresses and procedures have been
consolidated with and are contained in Appendix B to the Trust Sale and
Servicing Agreement of even date herewith among GMAC, CARI and Capital Auto
Receivables Asset Trust 1999-2.
