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: March 26, 1999
CAPITAL AUTO RECEIVABLES, INC.
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(Exact name of registrant as specified in its charter)
Delaware 333-06039 38-3082892
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(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
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(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code 302-658-7581
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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
1999-1 (the "Trust") and the First National Bank of Chicago,
as Indenture Trustee, dated as of March 11, 1999
4.2 Trust Agreement between Capital Auto Receivables, Inc. (the
"Seller") and Bankers Trust (Delaware), as Owner Trustee,
dated as of March 11, 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 1999-1 as the Issuer, dated as of March 11, 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 March 11, 1999
<PAGE>
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.
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(Registrant)
s/ William F. Muir
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Dated: March 26, 1999 William F. Muir, Chairman of the Board
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s/ John D. Finnegan
Dated: March 26, 1999 --------------------------------------
----------------- John D. Finnegan, President and Director
<PAGE>
EXHIBIT INDEX
Exhibit Description
- ------- -----------
4.2 Indenture between Capital Auto Receivables Asset Trust
1999-1 (the "Trust") and the First National Bank of
Chicago, as Indenture Trustee, dated as of March 11, 1999
4.2 Trust Agreement between Capital Auto
Receivables, Inc. (the "Seller") and Bankers
Trust (Delaware), as Owner Trustee, dated as
of March 11, 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 1999-1 as the Issurer, dated as
of March 11, 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 March 11, 1999
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 1999-1
ISSUER
DATED AS OF MARCH 11, 1999
<PAGE>
TABLE OF CONTENTS
Page
ARTICLE I
CERTAIN DEFINITIONS
SECTION 1.01. Definitions 1
ARTICLE II
CONVEYANCE OF RECEIVABLES; ORIGINAL ISSUANCE OF SECURITIES
SECTION 2.01. Conveyance of Receivables 1
SECTION 2.02. Custody of Receivable Files 2
SECTION 2.03. Acceptance by Issuer 2
SECTION 2.04. Representations and Warranties as to the
Receivables 3
SECTION 2.05. Repurchase of Receivables Upon Breach of
Warranty 3
ARTICLE III
THE SELLER
SECTION 3.01. Representations of Seller 4
SECTION 3.02. Liability of Seller 5
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 6
SECTION 3.05. Seller May Own Notes or Certificates 6
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 7
SECTION 4.02. Annual Independent Accountants' Report 7
SECTION 4.03. Access to Certain Documentation and
Information Regarding Receivables 8
SECTION 4.04. Amendments to Schedule of Receivables 8
SECTION 4.05. Assignment of Administrative Receivables and
Warranty Receivables 8
SECTION 4.06. Distributions 9
SECTION 4.07. Reserve Account 11
SECTION 4.08. Net Deposits 12
SECTION 4.09. Statements to Securityholders 12
<PAGE>
ARTICLE V
CERTIFICATEHOLDER AND NOTEHOLDER STATEMENTS AND ACCOUNTS;
COLLECTIONS, DEPOSITS AND INVESTMENTS; ADVANCES
SECTION 5.01. Establishment of Accounts 14
SECTION 5.02. Collections 18
SECTION 5.03. Investment Earnings and Supplemental
Servicing Fees 18
SECTION 5.04. Monthly Advances 19
SECTION 5.05. Additional Deposits 19
ARTICLE VI
LIABILITIES OF SERVICER AND OTHERS
SECTION 6.01. Liability of Servicer; Indemnities 20
SECTION 6.02. Merger or Consolidation of, or Assumption
of the Obligations of, the Servicer 21
SECTION 6.03. Limitation on Liability of Servicer and Others 21
SECTION 6.04. Delegation of Duties 22
SECTION 6.05. Servicer Not to Resign 22
ARTICLE VII
DEFAULT
SECTION 7.01. Servicer Defaults 23
SECTION 7.02. Consequences of a Servicer Default 24
SECTION 7.03. Indenture Trustee to Act; Appointment
of Successor 24
SECTION 7.04. Notification to Noteholders and
Certificateholders 25
SECTION 7.05. Waiver of Past Defaults 25
SECTION 7.06. Repayment of Advances 25
ARTICLE VIII
TERMINATION
SECTION 8.01. Optional Purchase of All Receivables;
Insolvency of Seller; Termination of Trust 26
ARTICLE IX
MISCELLANEOUS PROVISIONS
SECTION 9.01. Amendment 28
SECTION 9.02. Protection of Title to Trust 29
SECTION 9.03. Notices 31
SECTION 9.05. Severability of Provisions 31
SECTION 9.06. Assignment 31
SECTION 9.07. Third-Party Beneficiaries 31
SECTION 9.08. Separate Counterparts 32
SECTION 9.09. Headings and Cross-References 32
SECTION 9.10. Assignment to Indenture Trustee 32
SECTION 9.11. No Petition Covenants 32
SECTION 9.12. Limitation of Liability of Indenture Trustee
and Owner Trustee 32
SECTION 9.13. Tax Treatment 33
SECTION 9.14. Furnishing Documents 33
EXHIBIT A Locations of Schedule of Receivables
APPENDIX A Definitions and Rules of Construction
APPENDIX B Notices Addresses and Procedures
<PAGE>
THIS TRUST SALE AND SERVICING AGREEMENT is made as of March 11, 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 1999-1, 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
1.1. Section 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; ORIGINAL ISSUANCE OF SECURITIES
1.1. Section 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:
<PAGE>
(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)
(c) 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;
(d)
(e) 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;
(f)
(g) the interest of the Seller in any proceeds from recourse against
Dealers on Receivables;
(h)
(i) 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
(j)
(k) the interest of the Seller in any proceeds of the property described
in clauses (a), (b) and (e) above.
(l)
(m) 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.
(n)
1.2. Section 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.
1.3.
1.4. Section 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, 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
<PAGE>
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.
1.5.
1.6. Section 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.
1.7.
1.8. Section 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
<PAGE>
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, Noteholders, Certificateholders, the
Owner Trustee or the Indenture Trustee. The Servicer also acknowledges its
obligations to repurchase Administrative Receivables from the Issuer pursuant to
SECTION 3.08 of the Pooling and Servicing Agreement.
1.9.
ARTICLE III
THE SELLER
1.1. Section 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. 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.
(b)
(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;
(i) 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;
(i) 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;
(i) 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;
<PAGE>
(i) 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
(i) 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.
(a) REPRESENTATIONS AND WARRANTIES AS TO THE RECEIVABLES.
(b)
(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.
(i) 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.
1.1. Section 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.
<PAGE>
1.1. Section MERGER OR CONSOLIDATION OF, OR ASSUMPTION OF THE OBLIGATIONS OF,
SELLER; AMENDMENT OF CERTIFICATE OF INCORPORATION .
1.2.
(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.
(a) 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, 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.
(b)
1.2. Section 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.
1.3.
1.4. Section 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.
1.5.
<PAGE>
ARTICLE IV
SERVICER'S COVENANTS; DISTRIBUTIONS; RESERVE ACCOUNT;
STATEMENTS TO NOTEHOLDERS AND CERTIFICATEHOLDERS
1.1. Section ANNUAL STATEMENT AS TO COMPLIANCE; NOTICE OF SERVICER DEFAULT.
1.2.
(a) The Servicer shall deliver to the Indenture Trustee and the Owner
Trustee, on or before August 15 of each year, beginning August 15,
2000, 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
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
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.
1.1. Section ANNUAL INDEPENDENT ACCOUNTANTS' REPORT .
1.2.
(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 and the Rating Agencies, on or before August 15 of each
year, beginning August 15, 2000 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
<PAGE>
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.
(b)
(c) 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.
(d)
(e) 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.
(f)
1.3. Section 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.
1.4.
1.5. Section 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.
1.6.
<PAGE>
1.7. Section 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, including bringing suit in the name of such Person or the names of
the Noteholders or the Certificateholders.
1.1. Section DISTRIBUTIONS .
1.2.
(a) On or before each Determination Date, the Servicer shall calculate the
Total Available Amount, the Available Interest, the Available
Principal, the Total Servicing Fee, the Aggregate Noteholders'
Interest Distributable Amount, the Aggregate Noteholders' Principal
Distributable Amount, the Certificateholders' Interest Distributable
Amount, the Certificateholders' Principal Distributable Amount, and
all other amounts required to determine the amounts to be deposited in
or paid from each of the Collection Account, the Note Distribution
Account, the Certificate Distribution Account, the Reserve Account
and, if applicable, the Payment Ahead Servicing Account on the related
Distribution Date.
(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)
(iii)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.
(i) 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 SUBSECTION
3.11(B) of
<PAGE>
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.
(i) 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 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.
(c) 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:
(d)
(i) first, to the Servicer, to the extent of the Total Available
Amount, the Total Servicing Fee;
(i) second, to the Note Distribution Account, to the extent of the
Total Available Amount (as such amount has been reduced by the
distributions described in clause (i) above), the Aggregate
Noteholders' Interest Distributable Amount;
(i) third, 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) and (ii) above), the
Certificateholders' Interest Distributable Amount;
(i) fourth, 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), (ii) and (iii) above),
the Aggregate Noteholders' Principal Distributable Amount;
(i) fifth, 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 (iv) above),
the Certificateholders' Principal Distributable Amount; and
(i) sixth, to the Reserve Account, any portion of the Total Available
Amount remaining after the distributions described in CLAUSES
(i) through (v) above.
<PAGE>
(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 specified in SECTIONS 5.1(A), (B) OR (C) of the
Indenture, 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.
5.7. Section RESERVE ACCOUNT .
5.8.
(c) 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 1999-1 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.
(c) 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.
(d)
(e) 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
behalf of itself and its successors and assigns, hereby pledges to the
Indenture Trustee and its successors and assigns, all its right, 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.
(f)
(g) Each of the Seller and the 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:
<PAGE>
(h)
(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
(i) 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.
(c) 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.
(d)
5.8. Section 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
SUBSECTION 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.
<PAGE>
5.7. Section STATEMENTS TO SECURITYHOLDERS .
5.8.
(c) 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;
(i) the amount of the distribution, if any, allocable to interest on
or with respect to each class of securities;
(i) the Aggregate Principal Balance as of the close of business on
the last day of such Monthly Period, the Aggregate Discounted
Principal Balance as of the close of business on the last day of
the second Monthly Period preceding such Distribution Date (or,
for the first Distribution Date, the Initial Aggregate Discounted
Principal Balance) and the Principal Distributable Amount for
such Distribution Date;
(i) 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;
(i) 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;
(i) 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;
(i) the amount of Outstanding Monthly Advances on such Distribution
Date;
(i) the amount of the Total Servicing Fee paid to the Servicer with
respect to the related Monthly Period;
<PAGE>
(i) the amount, if any, distributed to Noteholders and
Certificateholders from amounts on deposit in the Reserve
Account; and
(i) the balance of the Reserve Account on such Distribution Date
(after giving effect to changes therein on 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.
(c) 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.
(d)
ARTICLE V
CERTIFICATEHOLDER AND NOTEHOLDER STATEMENTS AND ACCOUNTS;
COLLECTIONS, DEPOSITS AND INVESTMENTS; ADVANCES
5.7. Section ESTABLISHMENT OF ACCOUNTS .
5.8.
(i) 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 1999-1 Collection Account
(the "COLLECTION ACCOUNT"), bearing an additional designation
clearly indicating that the funds deposited therein are held for
the benefit of the Noteholders and the Certificateholders.
(i) 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
1999-1 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.
(i) 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 1999-1 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.
<PAGE>
(i) 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 1999-1 Payment
Ahead Servicing Account (the "PAYMENT AHEAD SERVICING ACCOUNT").
The Payment Ahead Servicing Account shall not be property of the
Issuer.
(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 except, 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 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.
(ii)
(iii)With respect to the Designated Account Property, the
Indenture Trustee agrees, by its acceptance hereof, that:
<PAGE>
(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.
(A) 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.
(A) All property delivered to the Securities Intermediary pursuant to
this Agreement will be credited upon receipt of such property to
the appropriate Designated Account.
(A) 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.
(A) 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.
(A) 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.
(A) 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 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.
<PAGE>
(A) 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.
(A) 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.
(A) 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.
(i) 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.
(i) 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.
(i) 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.
<PAGE>
(b) 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.
(c)
(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)
(f) 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.
(g)
<PAGE>
1.8. Section 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 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
1.9.
1.10. Section 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.
6.2. Section MONTHLY ADVANCES .
6.3.
<PAGE>
(b) 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 SUBSECTION
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.
(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.
(c)
6.3. Section 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.
6.4.
<PAGE>
ARTICLE VI
LIABILITIES OF SERVICER AND OTHERS
6.2. Section LIABILITY OF SERVICER; INDEMNITIES .
6.3.
(b) 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 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;
(i) 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;
(i) The Servicer shall indemnify, defend and hold harmless the
Indenture Trustee, the Owner Trustee, the Issuer, 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 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
(i) 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,
<PAGE>
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 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.
(c)
6.3. Section 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.
6.2. Section LIMITATION ON LIABILITY OF SERVICER AND OTHERS .
6.3.
<PAGE>
(b) 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 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 SUBSECTION 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)
(d) 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.
(e)
(f) The Applicable Trustee shall distribute out of the Collection Account
on a Distribution Date any amounts permitted for reimbursement
pursuant to SUBSECTION 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.
(g)
<PAGE>
6.3. Section 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.
6.4.
6.5. Section 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 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. 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.
6.6.
ARTICLE VII
DEFAULT
6.2. Section SERVICER DEFAULTS . Each of the following shall constitute a
"SERVICER DEFAULT":
(b) 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;
(c)
(d) 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;
<PAGE>
(e)
(f) 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
(g)
(h) 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 reorganization statute, make an assignment
for the benefit of its creditors or voluntarily suspend payment of its
obligations.
(i)
6.3. Section 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.
<PAGE>
6.4.
6.5. Section 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 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.
6.6.
6.7. Section 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.
6.8.
6.9. Section 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.
<PAGE>
6.10.
6.11. Section 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.
6.12.
ARTICLE VIII
TERMINATION
6.2. Section OPTIONAL PURCHASE OF ALL RECEIVABLES; INSOLVENCY OF SELLER;
TERMINATION OF TRUST .
(b) 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. 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
<PAGE>
"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:
(c)
(i) 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;
(i) if such Event of Default Sale results from the occurrence of an
Event of Default specified in SECTION 5.1(A), (B) OR (C) of the
Indenture, 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;
(i) 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;
(i) if such Event of Default Sale does not result from the
circumstances specified in SECTION 8.01(B)(II), 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; and
(i) 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.
<PAGE>
(c) Notice of any termination of the Trust shall be given by the Servicer
to the Owner Trustee and the Indenture Trustee 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).
(e) After indefeasible payment in full to the Indenture Trustee, the Owner
Trustee, the Noteholders, the Certificateholders and the Servicer of
all amounts required to be paid under this Agreement, the Indenture
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
6.2. Section AMENDMENT .
6.3.
(b) 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.
<PAGE>
(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 aforesaid percentage required to
consent to any such amendment, without the consent of the holders of
all Notes and Certificates then outstanding.
(c)
(d) 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.
(e)
(f) 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 and Certificateholder.
(g)
(h) It shall not be necessary for the consent of Noteholders or
Certificateholders pursuant to SUBSECTION 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.
(i)
(j) 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 SUBSECTION
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.
(k)
(l) 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.
<PAGE>
6.2. Section PROTECTION OF TITLE TO TRUST .
6.3.
(b) 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 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 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)
(d) 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.
(e)
(f) 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 and Payment Ahead Servicing Account and any
Payments Ahead held by the Servicer in respect of such Receivable.
(g)
(h) 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.
(i)
(j) 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.
<PAGE>
(k)
(l) 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.
(m)
(n) 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.
(o)
(p) The Servicer shall deliver to the Indenture Trustee and the Owner
Trustee 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.
(q)
(r) 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.
(s)
6.3. Section 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.
6.4.
6.5. Section 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.
6.6.
6.7. Section 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.
<PAGE>
6.8.
6.9. Section 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 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.
6.10.
6.11. Section THIRD-PARTY BENEFICIARIES . This Agreement shall inure to the
benefit of and be binding upon the parties hereto, the Noteholders, the
Certificateholders 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.
6.12.
6.13. Section 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.
6.14.
6.15. Section 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.
6.16.
6.17. Section 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 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.
6.18.
6.19. Section 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.
<PAGE>
6.2. Section LIMITATION OF LIABILITY OF INDENTURE TRUSTEE AND OWNER TRUSTEE .
6.3.
(b) 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.
(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.
(c)
6.3. Section 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.
6.4.
6.5. Section 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.
6.6.
* * * * *
<PAGE>
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 1999-1
By: BANKERS TRUST (DELAWARE), not in its individual
capacity but solely as Owner Trustee on behalf
of the Trust,
By: ______________________________
Name: Lillian Peros
Title: Attorney-in-Fact
CAPITAL AUTO RECEIVABLES, INC.,
Seller
By: ___________________________________
Name: D. C. Walker
Title: Vice President
GENERAL MOTORS ACCEPTANCE CORPORATION
By: ___________________________________
Name: P. D. Bull
Title: Vice President
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>
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>
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.
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 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 (vi) of the Trust Sale and Servicing Agreement have
been paid or provided for.
<PAGE>
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 SUBSECTION
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.
AGGREGATE AMOUNT FINANCED: $2,809,779,024.75, which represents the
aggregate of the Amount Financed under all of the Receivables.
AGGREGATE DISCOUNTED PRINCIPAL BALANCE: As of any date, the present value
as of such date of all scheduled monthly payments on all the Receivables (other
than Liquidating Receivables) held by the Trust on such date which have not been
received on or prior to such date, (determined after taking into account any
Prepayments, Warranty Payments and or Administrative Purchase Payments in
respect of such Receivables), discounted to such date at the Discount Rate.
<PAGE>
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.
<PAGE>
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 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, and
(v) 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,
<PAGE>
(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:
(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
<PAGE>
(iii)amounts representing reimbursement for Liquidation Expenses
pursuant to SUBSECTION 4.06(B)(III) of the Trust Sale 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 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.
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. CODEss. 3801 ET SEQ., as the same may be amended from time to time.
CARI: Capital Auto Receivables, Inc., a Delaware corporation.
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.
<PAGE>
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.
CERTIFICATEHOLDERS' MONTHLY INTEREST DISTRIBUTABLE AMOUNT: With respect
to any Distribution Date, interest equal to the product of (i) one-twelfth of
the Pass Through Rate (or, in the case of the first Distribution Date, the Pass
Through Rate MULTIPLIED BY a fraction, the numerator of which is 34 and the
denominator of which is 360) multiplied by (ii) the Certificate Balance as of
the close of the preceding Distribution Date (or, in the case of the first
Distribution Date, the Certificate Balance on the Closing Date).
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:
(a) the LESSER of
(i) the Certificateholders' Percentage of the Principal Distributable
Amount and
(ii) the Certificate Balance PLUS
(b) any outstanding Certificateholders' Principal Carryover Shortfall as
of the close of the preceding Distribution Date.
<PAGE>
In addition, on the Final Scheduled Distribution Date for the Certificates, the
amount required to be distributed to Certificateholders in respect of the
Certificate Balance and Certificateholders' Principal Carryover Shortfall shall
include the LESSER of:
(a) the SUM of
(i) the principal portion of any Scheduled Payments of principal due
and remaining unpaid on each Scheduled Interest Receivable and
(ii) any principal due and remaining unpaid on each Simple Interest
Receivable, in each case in the Trust as of the last day of the
related Monthly Period; and
(b) the amount that is necessary (after giving effect to the other amounts
to be deposited in the Certificate Distribution Account on such
Distribution Date and allocable to payments in respect of the
Certificate Balance and Certificateholders' Principal Carryover
Shortfall) to reduce the Certificate Balance and Certificateholders'
Principal Carryover Shortfall to zero, in either case after giving
effect to any required distribution of the Aggregate Noteholders'
Principal Distributable Amount to the Note Distribution Account.
In addition, on any Distribution Date on which, after giving effect to all
distributions to the Servicer (other than Additional Servicing), the Noteholders
and the Certificateholders on such Distribution Date, (i) the outstanding
principal balance of the Notes is zero and (ii) the amount on deposit in the
Reserve Account is equal to or greater than the Certificate Balance and
Certificateholders' Principal Carryover Shortfall, Certificateholders' Principal
Distributable Amount shall include an amount equal to such Certificate Balance
and Certificateholders' Principal Carryover Shortfall.
CERTIFICATE: Any one of the 6.090% 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, $137,981,417.23
and, on any Distribution Date thereafter, will equal the initial Certificate
Balance reduced by (i) all distributions in respect of the Certificateholders'
Principal Distributable Amount 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 DISTRIBUTION ACCOUNT: The account, if any, designated as such,
established and maintained pursuant to SECTION 5.1(A) of the Trust Agreement and
Section 5.1(a)(iii) of the Trust Sale and Servicing Agreement.
<PAGE>
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.
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.
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.
CLASS A-1 NOTES: The Class A-1 5.364% Asset Backed Notes in the aggregate
principal amount of $1,352,200,000 issued pursuant to the Indenture.
CLASS A-2 NOTES: The Class A-2 5.580% Asset Backed Notes in the aggregate
principal amount of $735,000,000 issued pursuant to the Indenture.
CLASS A-3 NOTES: The Class A-3 5.680% Asset Backed Notes in the aggregate
principal amount of $403,000,000 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: March 11, 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.
<PAGE>
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.
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: February 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 SUBSECTION 5.01(E) of the Trust Sale and
Servicing Agreement or in the Payment Ahead Servicing Account with respect to
such Receivable.
DEFINITIVE NOTES: The Notes issued in the form of definitive notes pursuant
to SECTION 2.12 or SECTION 2.15 of the Indenture.
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 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
and the Reserve Account, collectively.
<PAGE>
DETERMINATION DATE: The tenth day of each calendar month, or if such tenth
day is not a Business Day, the next succeeding Business Day.
DISCOUNT RATE: 8.0% per annum.
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 April 15, 1999.
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;
(i) 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;
<PAGE>
(i) 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;
(i) 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);
(i) bankers' acceptances issued by any depository institution or
trust company referred to in clause (ii) above;
(i) 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);
(i) 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;
(i) (solely in the case of the Reserve Account) the Notes; and
(i) 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
<PAGE>
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
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.
FDIC: Federal Deposit Insurance Corporation or any successor agency.
<PAGE>
FINAL SCHEDULED DISTRIBUTION DATE: (i) With respect to a class of Notes,
the Distribution Date in the month set forth below opposite such Notes:
Class A-1 Notes: May 2001;
Class A-2 Notes: June 2002;
Class A-3 Notes: August 2004; and
(ii) with respect to the Certificates, the Distribution Date in August
2004.
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.
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.
<PAGE>
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 DISCOUNTED PRINCIPAL BALANCE: $2,628,181,417.23.
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: With respect to each class of Notes, the per annum rate set
forth below:
Class A-1 Notes: 5.364%
Class A-2 Notes: 5.580%
Class A-3 Notes: 5.680%
INVESTMENT COMPANY ACT: The Investment Company Act of 1940, as the same may
be amended from time to time.
<PAGE>
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.
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.
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.
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, the calendar month
preceding the month in which such Distribution Date occurs and, for the first
Distribution Date, the two calendar months preceding the month in which such
Distribution Date occurs.
<PAGE>
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.
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) 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 34 and the
denominator of which is 360).
NOTEHOLDERS' PERCENTAGE: 100% until the principal balance of all of the
Notes is paid (or provided for) in full, and zero thereafter.
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 a class of
Notes on a Distribution Date, the LESSER of:
(i) the REMAINDER of
(A) the Noteholders' Percentage of the Principal Distributable Amount
MINUS
(B) the Noteholders' Principal Distributable Amount for each class of
Notes having priority of payment (as described in SECTION 8.2(c) (ii)
of the Indenture) over such class of Notes and
(ii) the outstanding principal balance of such class of Notes.
<PAGE>
In addition, on the Final Scheduled Distribution Date for any class of Notes,
the Noteholders' Principal Distributable Amount for such class of Notes will
also include the amount that is necessary (after giving effect to the other
amounts to be deposited in the Note Distribution Account on such Distribution
Date and allocable to payments of principal) to reduce the outstanding principal
balance of such class of Notes to zero.
NOTES: The Class A-1 Notes, the Class A-2 Notes and the Class A-3 Notes.
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 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.
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.
<PAGE>
OBLIGOR: The purchaser or the co-purchasers of the Financed Vehicle or
other person who owes payments under a Receivable.
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;
(i) 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
(i) 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
<PAGE>
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 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 SUBSECTION
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 SUBSECTION 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.
<PAGE>
PASS THROUGH RATE: 6.09% per annum.
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 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.
<PAGE>
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.
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
excess of (i) the Aggregate Discounted Principal Balance as of the close of
business on the last day of the second Monthly Period preceding such
Distribution Date (or, in the case of the first Distribution Date, the excess of
the Initial Aggregate Discounted Principal Balance) over (ii) the Aggregate
Discounted Principal Balance as of the close of business on the last day of the
first Monthly Period preceding such Distribution Date.
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.
<PAGE>
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.
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 last day of the preceding Monthly Period.
REDEEMABLE NOTES: The Class A-3 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.
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 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.
<PAGE>
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 $19,711,360.63.
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.
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.
<PAGE>
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.
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.
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'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.
SIMPLE INTEREST ADVANCE: The amount, as of the last day of the related
Monthly Period, which the Servicer is required to advance pursuant to SUBSECTION
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.
<PAGE>
SPECIFIED RESERVE ACCOUNT BALANCE: With respect to any Distribution Date,
the lesser of (i) $19,711,360.63 and (ii) the remaining outstanding principal
balance of the Notes and the Certificate Balance as of the close of business on
the last day of the related Monthly Period.
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.
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.
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 1999-1, 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.
<PAGE>
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.
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 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.
<PAGE>
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)
(c) "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.
(d)
(e) 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.
(f)
(g) 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.
(h)
(i) 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.
(j)
<PAGE>
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:
D.C. Walker, Vice President,
3031 West Grand Boulevard,
Detroit, Michigan 48202,
(a) in the case of the Servicer, the Administrator or the Custodian, at
the following address:
P. D. Bull, Vice President,
General Motors Acceptance Corporation,
3031 West Grand Boulevard,
Detroit, Michigan 48202,
(a) in the case of the Indenture Trustee, at its Corporate Trust Office,
(a) 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>
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.
(a) 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,
(a) in the case of Standard & Poor's Ratings Services, to
Standard & Poor's Ratings Services,
25 Broadway,
New York, New York 10004,
Attention: Asset Backed Surveillance Department,
(a) 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
(a) 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,
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 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.
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 1999-1
(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 1999-1 ASSET BACKED NOTES
(TITLE OF INDENTURE SECURITIES)
<PAGE>
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.
<PAGE>
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 10th day of March, 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).
<PAGE>
EXHIBIT 6
THE CONSENT OF THE TRUSTEE REQUIRED
BY SECTION 321(b) OF THE ACT
March 10, 1999
Securities and Exchange Commission
Washington, D.C. 20549
Gentlemen:
In connection with the qualification of an indenture between Capital Auto
Receivables Asset Trust 1999-1 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
<PAGE>
EXHIBIT 7
Legal Title of Bank: The First National Bank of Chicago Call Date: 12/31/98
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
---------
CONSOLIDATED REPORT OF CONDITION FOR INSURED COMMERCIAL
AND STATE-CHARTERED SAVINGS BANKS FOR DECEMBER 31, 1998
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.
<TABLE>
SCHEDULE RC--BALANCE SHEET
<CAPTION>
DOLLAR AMOUNTS IN THOUSANDS C400
----
ASSETS
1. Cash and balances due from depository institutions (from Schedule
RC-A): RCFD
----
<S> <C> <C> <C> <C>
a. Noninterest-bearing balances and currency and coin(1)................... 0081 5,585,982 1.a
b. Interest-bearing balances(2)............................................ 0071 4,623,842 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 11,181,405 2.b
3. Federal funds sold and securities purchased under agreements to
resell .................................................................... 1350 9,853,544 3.
4. Loans and lease financing receivables: RCFD
a. Loans and leases, net of unearned income (from Schedule ----
RC-C)................................................................... 2122 31,155,998 4.a
b. LESS: Allowance for loan and lease losses............................... 3123 411,963 4.b
c. LESS: Allocated transfer risk reserve................................... 3128 3,884 4.c
d. Loans and leases, net of unearned income, allowance, and RCFD
----
reserve (item 4.a minus 4.b and 4.c).................................... 2125 30,740,151 4.d
5. Trading assets (from Schedule RD-D)........................................ 3545 7,635,778 5.
6. Premises and fixed assets (including capitalized leases)................... 2145 739,925 6.
7. Other real estate owned (from Schedule RC-M)............................... 2150 4,827 7.
8. Investments in unconsolidated subsidiaries and associated
companies (from Schedule RC-M)............................................. 2130 202,359 8.
9. Customers' liability to this bank on acceptances outstanding .............. 2155 269,516 9.
10. Intangible assets (from Schedule RC-M)..................................... 2143 291,665 10.
11. Other assets (from Schedule RC-F).......................................... 2160 3,071,912 11.
12. Total assets (sum of items 1 through 11)................................... 2170 74,200,906 12.
<FN>
- ----------
(1) Includes cash items in process of collection and unposted debits.
(2) Includes time certificates of deposit not held for trading.
</FN>
</TABLE>
<PAGE>
Legal Title of Bank: The First National Bank of Chicago Call Date: 12/31/98
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>
<CAPTION>
SCHEDULE RC-CONTINUED
DOLLAR AMOUNTS IN THOUSANDS
LIABILITIES
<S> <C> <C> <C>
13. Deposits:
a. In domestic offices (sum of totals of columns A and C RCON
----
from Schedule RC-E, part 1)............................................. 2200 22,524,140 13.a
(1) Noninterest-bearing(1).............................................. 6631 10,141,937 13.a1
(2) Interest-bearing.................................................... 6636 12,382,203 13.a2
b. In foreign offices, Edge and Agreement subsidiaries, and RCFN
----
IBFs (from Schedule RC-E, part II)...................................... 2200 19,691,237 13.b
(1) Noninterest bearing................................................. 6631 408,126 13.b1
(2) Interest-bearing.................................................... 6636 19,283,111 13.b2
14. Federal funds purchased and securities sold under agreements
to repurchase: RCFD 2800 9,113,686 14
15. a. Demand notes issued to the U.S. Treasury................................ RCON 2840 120,599 15.a
b. Trading Liabilities(from Sechedule RC-D)................................ RCFD 3548 6,797,927 15.b
16. Other borrowed money: RCFD
----
a. With original maturity of one year or less.............................. 2332 5,385,355 16.a
b. With original maturity of more than one year........................... A547 327,126 16.b
c. With original maturity of more than three years ................... A548 316,411 16.c
17. Not applicable
18. Bank's liability on acceptance executed and outstanding ................... 2920 269,516 18.
19. Subordinated notes and debentures.......................................... 3200 2,400,000 19.
20. Other liabilities (from Schedule RC-G)..................................... 2930 2,137,443 20.
21. Total liabilities (sum of items 13 through 20)............................. 2948 69,083,440 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 3,201,435 25.
26. a. Undivided profits and capital reserves.................................. 3632 1,695,446 26.a
b. Net unrealized holding gains (losses) on available-for-sale
securities.............................................................. 8434 6,349 26.b
27. Cumulative foreign currency translation adjustments ....................... 3284 13,378 27.
28. Total equity capital (sum of items 23 through 27).......................... 3210 5,117,466 28.
29. Total liabilities, limited-life preferred stock, and equity
capital (sum of items 21, 22, and 28)...................................... 3300 74,200,906 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 bank by independent external auditors as of any date during 1996 Number
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .RCFD 6724 . . . N/A. M1
1 = Independent audit of the bank conducted in accordance 4 = Directors' examination of the bank performed by
with generally accepted auditing standards by a certified other external auditors (may be required by state
public accounting firm which submits a report on the bank chartering authority)
2 = Independent audit of the bank's parent holding company 5 = Review of the bank's financial statements by
conducted in accordance with generally accepted auditing external auditors
standards by a certified public accounting firm which 6 = Compilation of the bank's financial statements by
submits a report on the consolidated holding company external auditors
(but not on the bank separately) 7 = Other audit procedures (excluding tax preparation
3 = Directors' examination of the bank conducted in work)
accordance with generally accepted auditing standards 8 = No external audit work
by a certified public accounting firm (may be required
by state chartering authority)
<FN>
- -----------
(1) Includes total demand deposits and noninterest-bearing time and savings deposits.
</FN>
</TABLE>
EXHIBIT 99.3
POOLING AND SERVICING AGREEMENT
BETWEEN
CAPITAL AUTO RECEIVABLES, INC.
AND
GENERAL MOTORS ACCEPTANCE CORPORATION
DATED AS OF MARCH 11, 1999
<PAGE>
TABLE OF CONTENTS
PAGE
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 9
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
SECTION 5.06 Further Assignments 15
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 17
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
EXHIBIT A - Form of Assignment
APPENDIX A - Definitions, Rules of Construction and Notices
<PAGE>
POOLING AND SERVICING AGREEMENT, dated as of March 11, 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 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>
ARTICLE I
DEFINITIONS
ARTICLE 1.1 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, 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 1.1 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 SECTIONS 3.08 OR 5.04 of this Agreement, any
provision of the Further Transfer and Servicing Agreements or otherwise.
ARTICLE 1.2
ARTICLE 1.3
ARTICLE II
PURCHASE AND SALE OF RECEIVABLES
ARTICLE 1.1 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:
ARTICLE 1.2
(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)
(c) 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;
(d)
(e) 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;
(f)
(g) the interest of GMAC in any proceeds from recourse against Dealers on
Receivables; and
(h)
<PAGE>
(i) the interest of GMAC in any proceeds of the property described in
clauses (a) and (b) above.
(j)
(k) The property described in clauses (a) through (e) is referred to
herein collectively as the "PURCHASED PROPERTY."
(l)
(m) 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.
(n)
(o) 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.
(p)
ARTICLE 1.3 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 Discounted 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 $2,487,750,363 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.
ARTICLE 1.4
ARTICLE 1.5 THE CLOSING . The sale and purchase of the Receivables shall take
place at the offices of GMAC, 3031 West Grand Boulevard, Detroit, Michigan
48202, 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.
ARTICLE 1.6
ARTICLE 1.7 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:
ARTICLE 1.8
(a) the fully executed original of the instalment sale contract for such
Receivable;
(b)
(c) documents evidencing or related to any Insurance Policy;
(d)
(e) 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;
<PAGE>
(f)
(g) 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
(h)
(i) 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.
(j)
(k)
ARTICLE III
ADMINISTRATION AND SERVICING OF RECEIVABLES
ARTICLE 1.1 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 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
<PAGE>
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.
ARTICLE 1.2
ARTICLE 1.3 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 SUBSECTION 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.
ARTICLE 1.4
ARTICLE 1.5 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.
ARTICLE 1.6
ARTICLE 1.7 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).
<PAGE>
ARTICLE 1.8
ARTICLE 1.9 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.
ARTICLE 1.10
ARTICLE 1.11 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.
ARTICLE 1.12
ARTICLE 1.13 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.
ARTICLE 1.14
(a) The Servicer covenants that from and after the closing hereunder:
(b)
(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;
(i) NO IMPAIRMENT. The Servicer shall do nothing to impair the rights
of CARI or any Interested Party in and to the Receivables; and
(i) 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).
(a) 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:
(b)
<PAGE>
(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;
(i) 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;
(i) 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;
(i) 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;
(i) 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
<PAGE>
(i) 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.
ARTICLE 1.1 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.
ARTICLE 1.2
ARTICLE 1.3 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).
ARTICLE 1.4
ARTICLE 1.5 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 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 such accountings relating to such Receivables and the actions of
the Servicer with respect thereto as CARI may reasonably request.
<PAGE>
ARTICLE 1.6
ARTICLE 1.7 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:
ARTICLE 1.8
(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 SUBSECTION 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)
(c) 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.
(d)
(e) 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.
(f)
(g)
<PAGE>
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
ARTICLE 1.1 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 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, (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 and (v) is a Simple Interest
Receivable;
(b)
(c) 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;
(d)
(e) 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;
(f)
<PAGE>
(g) 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;
(h)
(i) 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;
(j)
(k) 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;
(l)
(m) NO WAIVER. Since the Cutoff Date, no provision of a Receivable has
been waived, altered or modified in any respect;
(n)
(o) NO DEFENSES. No right of rescission, setoff, counterclaim or defense
has been asserted or threatened with respect to any Receivable;
(p)
(q) 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;
(r)
(s) 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;
(t)
(u) 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;
(v)
(w) 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;
(x)
(y) 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;
(z)
<PAGE>
(aa) ONE ORIGINAL. There is only one original executed copy of each
Receivable;
(bb)
(cc) 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);
(dd)
(ee) MATURITY OF RECEIVABLES. Each Receivable has an original maturity of
not less than 24 months and not greater than 60 months;
(ff)
(gg) LOWEST ANNUAL PERCENTAGE RATE. The lowest Annual Percentage Rate of
any Receivable is 0.01%;
(hh)
(ii) SCHEDULED PAYMENTS; DELINQUENCY. Each Receivable was originated on or
after December 1, 1996, has a first scheduled payment that is due on
or after January 1, 1997, has a final scheduled payment that is due no
later than July 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;
(jj)
(kk) VEHICLES. Each Financed Vehicle shall be a new automobile or light
truck;
(ll)
(mm) ORIGIN. Each Receivable shall have been originated in the United
States; and
(nn)
(oo) 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.
(pp)
ARTICLE 1.2 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:
ARTICLE 1.3
(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)
(c) 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;
(d)
(e) 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 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;
<PAGE>
(f)
(g) 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;
(h)
(i) 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
(j)
(k) 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.
(l)
ARTICLE 1.4 REPRESENTATIONS AND WARRANTIES OF CARI . CARI hereby represents and
warrants to GMAC as of the date hereof and as of the closing hereunder:
ARTICLE 1.5
(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)
(c) 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;
<PAGE>
(d)
(e) 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;
(f)
(g) 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
(h)
(i) 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.
(j)
(k)
ARTICLE V
ADDITIONAL AGREEMENTS
The Servicer agrees with CARI as follows:
ARTICLE 1.1 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.
ARTICLE 1.1 PROTECTION OF TITLE .
ARTICLE 1.2
(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.
<PAGE>
(a) 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.
(b)
(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.
(d)
ARTICLE 1.2 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.
ARTICLE 1.3
ARTICLE 1.4 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.
ARTICLE 1.5
ARTICLE 1.6 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.
ARTICLE 1.7
<PAGE>
ARTICLE 1.8 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 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.
ARTICLE 1.9
ARTICLE 1.10 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 1.11
ARTICLE 1.12
ARTICLE VI
CONDITIONS
ARTICLE 1.1 CONDITIONS TO OBLIGATION OF CARI . The obligation of CARI to
purchase the Receivables hereunder is subject to the satisfaction of the
following conditions:
ARTICLE 1.2
(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)
(c) NO REPURCHASE EVENT. No Repurchase Event shall have occurred on or
prior to the closing hereunder.
(d)
(e) 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.
(a) DOCUMENTS TO BE DELIVERED BY GMAC AT THE CLOSING.
(b)
(i) THE ASSIGNMENT. At the Closing, GMAC shall execute and deliver an
assignment in the form attached hereto as EXHIBIT A.
(i) 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 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.
<PAGE>
(i) OTHER DOCUMENTS. At the closing hereunder, GMAC shall provide
such other documents as CARI may reasonably request.
(a) 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.
(b)
ARTICLE 1.2 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:
ARTICLE 1.3
(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)
(c) RECEIVABLES PURCHASE PRICE. At the closing hereunder, CARI shall pay
to GMAC the Receivables Purchase Price as provided in SECTION 2.02.
(d)
(e)
ARTICLE VII
MISCELLANEOUS PROVISIONS
ARTICLE 1.1 AMENDMENT . This Agreement may be amended from time to time (subject
to any expressly applicable amendment provision of the Further Transfer and
Servicing Agreements) by a written amendment duly executed and delivered by GMAC
and CARI.
ARTICLE 1.2
ARTICLE 1.3 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.
ARTICLE 1.4
ARTICLE 1.5 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.
ARTICLE 1.6
ARTICLE 1.7 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 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.
<PAGE>
ARTICLE 1.8
ARTICLE 1.9 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.
ARTICLE 1.10
ARTICLE 1.11 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.
ARTICLE 1.12
ARTICLE 1.13 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.
ARTICLE 1.14
ARTICLE 1.15 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.
ARTICLE 1.16
ARTICLE 1.17 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.
ARTICLE 1.18
ARTICLE 1.19 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.
ARTICLE 1.20
* * * * *
<PAGE>
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: P. D. Bull
Title: Vice President
CAPITAL AUTO RECEIVABLES, INC.
By: _________________________________
Name: D. C. Walker
Title: Vice President
<PAGE>
EXHIBIT A
ASSIGNMENT PURSUANT TO POOLING AND SERVICING AGREEMENT
For value received, in accordance with the Pooling and Servicing Agreement,
dated as of March 11, 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>
IN WITNESS WHEREOF, the undersigned has caused this Assignment to be
duly executed as of March 11, 1999.
GENERAL MOTORS ACCEPTANCE CORPORATION
By: _________________________________
Name: P.D. Bull
Title: Vice President
<PAGE>
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 1999-1.
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 1999-1.
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 1999-1.
EXHIBIT 4.1
CAPITAL AUTO RECEIVABLES ASSET TRUST 1999-1
CLASS A-1 5.364% ASSET BACKED NOTES
CLASS A-2 5.580% ASSET BACKED NOTES
CLASS A-3 5.680% ASSET BACKED NOTES
--------------------
INDENTURE
DATED AS OF MARCH 11, 1999
--------------------
THE FIRST NATIONAL BANK OF CHICAGO,
A NATIONAL BANKING ASSOCIATION,
INDENTURE TRUSTEE
<PAGE>
CROSS-REFERENCE TABLE
================================================================================
TIA INDENTURE
SECTION SECTION
================================================================================
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.
================================================================================
Note:This cross reference table shall not, for any purpose, be deemed to be part
of this Indenture.
<PAGE>
TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS AND INCORPORATION BY REFERENCE
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 4
2.4 Registration; Registration of Transfer and Exchange of Notes 4
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 8
2.9 Release of Collateral 8
2.10 9
2.11 Notices to Clearing Agency 9
2.12 Definitive Notes 9
2.13 Seller as Noteholder 10
2.14 Tax Treatment 10
2.15 Special Terms Applicable to the Class A-1 Notes 10
ARTICLE III
COVENANTS
3.1 Payment of Principal and Interest 11
3.2 Maintenance of Agency Office 11
3.3 Money for Payments To Be Held in Trust 11
3.4 Existence 13
3.5 Protection of Trust Estate; Acknowledgment of Pledge 13
3.6 Opinions as to Trust Estate 14
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 17
3.11 Successor or Transferee 19
3.12 No Other Business 19
3.13 No Borrowing 19
3.14 Guarantees, Loans, Advances and Other Liabilities 19
3.15 Servicer's Obligations 20
3.16 Capital Expenditures 20
3.17 Removal of Administrator 20
3.18 Restricted Payments 20
3.19 Notice of Events of Default 20
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 21
<PAGE>
ARTICLE IV
SATISFACTION AND DISCHARGE
4.1 Satisfaction and Discharge of Indenture 21
4.2 Application of Trust Money 23
4.3 Repayment of Monies Held by Paying Agent 23
4.4 Duration of Position of Indenture Trustee 23
ARTICLE V
DEFAULT AND REMEDIES
5.1 Events of Default 23
5.2 Acceleration of Maturity; Rescission and Annulment 24
5.3 Collection of Indebtedness and Suits for Enforcement
by Indenture Trustee 25
5.4 Remedies; Priorities 27
5.5 Optional Preservation of the Receivables 28
5.6 Limitation of Suits 29
5.7 Unconditional Rights of Noteholders To Receive
Principal and Interest 29
5.8 Restoration of Rights and Remedies 30
5.9 Rights and Remedies Cumulative 30
5.10 Delay or Omission Not a Waiver 30
5.11 Control by Noteholders 30
5.12 Waiver of Past Defaults 31
5.13 Undertaking for Costs 31
5.14 Waiver of Stay or Extension Laws 32
5.15 Action on Notes 32
5.16 Performance and Enforcement of Certain Obligations 32
ARTICLE VI
THE INDENTURE TRUSTEE
6.1 Duties of Indenture Trustee 33
6.2 Rights of Indenture Trustee 34
6.3 Indenture Trustee May Own Notes 35
6.4 Indenture Trustee's Disclaimer 35
6.5 Notice of Defaults 35
6.6 Reports by Indenture Trustee to Holders 36
6.7 Compensation; Indemnity 36
6.8 Replacement of Indenture Trustee 36
6.9 Merger or Consolidation of Indenture Trustee 37
6.10 Appointment of Co-Indenture Trustee or Separate
Indenture Trustee 38
6.11 Eligibility; Disqualification 39
6.12 Preferential Collection of Claims Against Issuer 39
6.13 Representations and Warranties of Indenture Trustee 39
6.14 Indenture Trustee May Enforce Claims Without Possession
of Notes 40
6.15 Suit for Enforcement 40
6.16 Rights of Noteholders to Direct Indenture Trustee 40
<PAGE>
ARTICLE VII
NOTEHOLDERS' LISTS AND REPORTS
7.1 Issuer To Furnish Indenture Trustee Names and
Addresses of Noteholders 41
7.2 Preservation of Information, Communications to Noteholders 41
7.3 Reports by Issuer 42
7.4 Reports by Trustee 42
ARTICLE VIII
ACCOUNTS, DISBURSEMENTS AND RELEASES
8.1 Collection of Money 43
8.2 Designated Accounts; Payments 43
8.3 General Provisions Regarding Accounts 44
8.4 Release of Trust Estate 45
8.5 Opinion of Counsel 45
ARTICLE IX
SUPPLEMENTAL INDENTURES
9.1 Supplemental Indentures Without Consent of Noteholders 46
9.2 Supplemental Indentures With Consent of Noteholders 47
9.3 Execution of Supplemental Indentures 49
9.4 Effect of Supplemental Indenture 49
9.5 Conformity with Trust Indenture Act 49
9.6 Reference in Notes to Supplemental Indentures 49
ARTICLE X
REDEMPTION OF NOTES
10.1 Redemption 49
10.2 Form of Redemption Notice 50
10.3 Notes Payable on Redemption Date 50
ARTICLE XI
MISCELLANEOUS
11.1 Compliance Certificates and Opinions, etc. 51
11.2 Form of Documents Delivered to Indenture Trustee 53
11.3 Acts of Noteholders 53
11.4 Notices, etc., to Indenture Trustee, Issuer and Rating
Agencies 54
11.5 Notices to Noteholders; Waiver 55
11.6 Alternate Payment and Notice Provisions 55
11.7 Conflict with Trust Indenture Act 55
11.8 Effect of Headings and Table of Contents 56
11.9 Successors and Assigns 56
11.10 Separability 56
11.11 Benefits of Indenture 56
11.12 Legal Holidays 56
11.13 GOVERNING LAW 57
11.14 Counterparts 57
11.15 Recording of Indenture 57
11.16 No Recourse 57
11.17 No Petition 58
11.18 Inspection 58
11.19 Indemnification by and Reimbursement of the Servicer 58
Exhibit A Location of Schedule of Receivables
Exhibit B Form of Note Depository Agreement
Exhibit C Form of Asset Backed Note
Exhibit D Rule 144A Certificate
<PAGE>
INDENTURE, dated as of March 11, 1999, between CAPITAL AUTO RECEIVABLES
ASSET TRUST 1999-1, 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 and (only to the extent
expressly provided herein) the Certificates:
GRANTING CLAUSE
The Issuer hereby Grants to the Indenture Trustee at the Closing Date, as
trustee for the benefit of the Noteholders and (only to the extent expressly
provided herein) the Certificateholders, (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 and the
Certificate Distribution 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); and (g) 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").
<PAGE>
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, and (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 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, 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
1.1 SECTION 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 (the "TRUST SALE AND SERVICING AGREEMENT") dated as
of March 11, 1999, 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.
1.2
1.3 SECTION 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:
1.4
1.5 "COMMISSION" means the Securities and Exchange Commission.
1.6
1.7 "INDENTURE SECURITIES" means the Notes.
<PAGE>
1.8
1.9 "indenture security holder" means a Noteholder.
1.10
1.11 "indenture to be qualified" means this Indenture.
1.12
1.13 "INDENTURE TRUSTEE" means the Indenture Trustee.
1.14
1.15 "OBLIGOR" on the indenture securities means the Issuer and any other
obligor on the indenture securities.
1.16
1.17 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.
1.18
ARTICLE II
THE NOTES
1.1 SECTION FORM .
1.2
(a) Each of the Class A-1 Notes, the Class A-2 Notes and the Class A-3
Notes, together, in each case, with the Indenture Trustee's
certificate of authentication, shall be substantially in the form set
forth in EXHIBIT C, with such appropriate insertions, omissions,
substitutions and other variations as are required or permitted by
this Indenture, and each such class 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.
(a) 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.
(b)
(c) The terms of each class of Notes as provided for in EXHIBIT C hereto
are part of the terms of this Indenture.
(d)
1.2 SECTION EXECUTION, AUTHENTICATION AND DELIVERY.
1.3
(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, if applicable, for one Note
representing a residual portion of each class which may be issued in a
different denomination).
<PAGE>
(a) 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.
(b)
(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)
(e) 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, the
Notes for original issue in aggregate principal amount of
$2,490,200,000, comprised of (i) Class A-1 Notes in the aggregate
principal amount of $1,352,200,000, (ii) Class A-2 Notes in the
aggregate principal amount of $735,000,000 and (iii) Class A-3 Notes
in the aggregate principal amount of $403,000,000. The aggregate
principal amount of all Notes outstanding at any time may not exceed
$2,490,200,000 except as provided in SECTION 2.5.
(f)
(g) 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, 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.
(h)
1.2 SECTION TEMPORARY NOTES.
1.3
(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.
(a) 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.
(b)
<PAGE>
1.2 SECTION REGISTRATION; REGISTRATION OF TRANSFER AND EXCHANGE OF NOTES.
1.3
(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.
(a) 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.
(b)
(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)
(e) 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.
(f)
(g) 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.
(h)
(i) 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.
<PAGE>
(j)
(k) 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.
(l)
(m) 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.
(n)
1.2 SECTION MUTILATED, DESTROYED, LOST OR STOLEN NOTES.
1.3
(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, 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.
(a) 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.
<PAGE>
(b)
(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)
(e) 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.
(f) 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.
(g)
1.2 SECTION 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.
1.3
1.4 SECTION PAYMENT OF PRINCIPAL AND INTEREST.
1.5
(a) Interest on each class of Notes shall accrue in the manner set forth
in EXHIBIT C 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.
<PAGE>
(a) 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, 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, except for: (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.
(b)
(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
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)
(e) 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.
(f)
<PAGE>
1.2 SECTION 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.
1.3
1.4 SECTION 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).
1.5
1.6 SECTION 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 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:
1.7
(a) the provisions of this SECTION 2.10 shall be in full force and effect;
(a) 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;
(a) 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;
(a) the rights of the Note Owners shall be exercised only throug 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
<PAGE>
(a) 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.
1.1 SECTION 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.
1.2
1.3 SECTION DEFINITIVE NOTES .
1.4
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 Class A-1 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 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.
1.1 SECTION 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.
1.2
<PAGE>
1.3 SECTION 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.
1.4
1.5 SECTION SPECIAL TERMS APPLICABLE TO THE CLASS A-1 NOTES .
1.6
(a) The Class A-1 Notes have not and will not be registered under the
Securities Act of 1933, as amended (the "SECURITIES ACT"), or the
securities laws of any other jurisdiction. Consequently, the Class A-1
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. An interest in the Class
A-1 Notes are being sold in a private placement on the date hereof. No
sale, pledge or other transfer of any Class A-1 Note (or interest
therein) after the date hereof 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 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 the Class A-1 Notes under the Securities Act, qualify the
Class A-1 Notes under the securities laws of any state or provide
registration rights to any purchaser or holder thereof.
(b)
(c) [Reserved].
(d)
(e) The Class A-1 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 Class A-1 Notes.
(f)
(g) Each Class A-1 Note shall bear a legend to the effect set forth in
subsection (a) above.
(h)
<PAGE>
ARTICLE III
COVENANTS
1.1 SECTION 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.
1.1 SECTION 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.
1.2
1.3 SECTION MONEY FOR PAYMENTS TO BE HELD IN TRUST .
1.4
(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)
(c) 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 (including 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.
(d)
<PAGE>
(e) 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:
(f)
(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;
(i) give the Indenture Trustee 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;
(i) 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;
(i) 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
(i) 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.
(a) 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.
(b)
(c) 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
<PAGE>
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).
(d)
1.2 SECTION 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.
1.3
1.4 SECTION PROTECTION OF TRUST ESTATE; ACKNOWLEDGMENT OF PLEDGE .
1.5
(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:
(b)
(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 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.
(i) perfect, publish notice of or protect the validity of any Grant
made or to be made by this Indenture;
(i) enforce the rights of the Indenture Trustee and the Noteholders
in any of the Collateral; or
<PAGE>
(i) preserve and defend title to the Trust Estate and the rights of
the Indenture Trustee 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.
(a) 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 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 Certificateholders and the Servicer, and as security for the
performance by the Seller of its obligations under the Trust Sale and
Servicing Agreement.
(b)
1.2 SECTION OPINIONS AS TO TRUST ESTATE .
1.3
(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.
(a) On or before August 15 in each calendar year, beginning August 15,
2000, 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, 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.
(b)
<PAGE>
1.2 SECTION PERFORMANCE OF OBLIGATIONS; SERVICING OF RECEIVABLES .
1.3
(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.
(a) 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.
(b)
(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)
(e) 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 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 pursuant to the Trust Sale
and Servicing Agreement and the Pooling and Servicing Agreement to
remedy such failure.
(f)
(g) 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 Indenture Trustee or the
Holders of at least a majority in Outstanding Amount of the Notes, as
applicable in accordance with the terms thereof, 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. If any such amendment,
<PAGE>
modification, supplement or waiver shall be so consented to by the
Indenture Trustee or such Holders, as applicable, the Issuer agrees,
promptly following a request by the Indenture Trustee to do so, to
execute and deliver, in its own name and at its own expense, such
agreements, instruments, consents and other documents as the Indenture
Trustee may deem necessary or appropriate in the circumstances.
(h)
1.2 SECTION 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;
(a) 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;
(a) voluntarily commence any insolvency, readjustment of debt, marshalling
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
(a) 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 a valid first priority security interest in the Trust
Estate (other than with respect to any such tax, mechanics' or other
lien).
1.1 SECTION ANNUAL STATEMENT AS TO COMPLIANCE . The Issuer shall deliver to the
Indenture Trustee, on or before August 15 of each year, beginning August 15,
2000, an Officer's Certificate signed by an Authorized Officer, dated as of June
30 of such year, stating that:
1.2
<PAGE>
(a) a review of the activities of the Issuer during such fiscal year and
of performance under this Indenture has been made under such
Authorized Officer's supervision; and
(a) 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 year, 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.
1.1 SECTION CONSOLIDATION, MERGER, ETC., OF ISSUER; DISPOSITION OF TRUST ASSETS.
1.2 (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;
(i) immediately after giving effect to such merger or consolidation,
no Default or Event of Default shall have occurred and be
continuing;
(i) the Rating Agency Condition shall have been satisfied with
respect to such transaction and such Person;
(i) any action as is necessary to maintain the lien and security
interest created by this Indenture shall have been taken; and
(i) 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;
(A) that such consolidation or merger and such supplemental
indenture shall have no material adverse tax consequence to
the Issuer or any Noteholder or Certificateholder; and
<PAGE>
(A) 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.
(a) 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:
(b)
(i) the Person that acquires such properties or assets of the Issuer
(A) 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 (B) by an indenture supplemental hereto, executed and
delivered to the Indenture Trustee, in form satisfactory to the
Indenture Trustee:
(1) 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;
(1) 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;
(1) 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
(1) 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;
(i) immediately after giving effect to such transaction, no Default
or Event of Default shall have occurred and be continuing;
(i) the Rating Agency Condition shall have been satisfied with
respect to such transaction and such Person;
(i) any action as is necessary to maintain the lien and security
interest created by this Indenture shall have been taken; and
(i) 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:
<PAGE>
(A) such sale, conveyance, exchange, transfer or disposition and
such supplemental indenture comply with this SECTION 3.10;
(A) 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; and
(A) 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.
1.1 SECTION SUCCESSOR OR TRANSFEREE .
1.2
(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.
(a) Upon a conveyance or transfer of 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.
(b)
1.2 SECTION 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.
1.3
1.4
SECTION NO BORROWING . The Issuer shall not issue, incur, assume, guarantee or
otherwise become liable, directly or indirectly, for any indebtedness for money
borrowed other than indebtedness for money borrowed in respect of the Notes or
in accordance with the Basic Documents.
1.5
1.6 SECTION 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.
<PAGE>
1.7
1.8 SECTION 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.
1.9
1.10 SECTION 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.
1.11
1.12 SECTION 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.
1.13
1.14 SECTION 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:
1.15
(a) pay any dividend or make any distribution (by reduction of capital or
otherwise), 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;
(a) redeem, purchase, retire or otherwise acquire for value any such
ownership or equity interest or similar security; or
(a) 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 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, directly or indirectly, make
payments to or distributions from the Collection Account except in accordance
with the Basic Documents.
1.1 SECTION NOTICE OF EVENTS OF DEFAULT . The Issuer agrees to give the
Indenture Trustee 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.
1.2
<PAGE>
1.3 SECTION 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.
1.4
1.5 SECTION 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.
1.6
1.7 SECTION REPRESENTATIONS AND WARRANTIES BY THE ISSUER TO THE INDENTURE
TRUSTEE . The Issuer hereby represents and warrants to the Indenture Trustee as
follows:
1.8
(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
(b)
(c) 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.
(d)
(e)
<PAGE>
ARTICLE IV
SATISFACTION AND DISCHARGE
1.1 SECTION 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:
(1) 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
(1) all Notes not theretofore delivered to the Indenture Trustee for
cancellation:
(A) have become due and payable,
(A) will be due and payable on their respective Final Scheduled
Distribution Dates within one year, or
(A) 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)(2) above,
has irrevocably deposited or caused to be irrevocably deposited with the
Indenture Trustee cash or direct 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;
<PAGE>
(a) the Issuer has paid or caused to be paid all other sums payable
hereunder by the Issuer; and
(a) 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.
1.1 SECTION 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; 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.
1.2
1.3 SECTION 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.
1.4
1.5 SECTION 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.
1.6
1.7
<PAGE>
ARTICLE V
DEFAULT AND REMEDIES
1.1 SECTION 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
(a) 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
(a) failure to pay in full the outstanding principal balance of any class
of Notes by the Final Scheduled Distribution Date for such class; or
(a) 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
(a) 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
(a) 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, 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.
<PAGE>
The Issuer shall deliver to the Indenture Trustee, 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.
1.1 SECTION ACCELERATION OF MATURITY; RESCISSION AND ANNULMENT .
1.2
(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.
(a) 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.
<PAGE>
1.1 SECTION COLLECTION OF INDEBTEDNESS AND SUITS FOR ENFORCEMENT BY INDENTURE
TRUSTEE .
1.2
(a) The Issuer covenants that if an Event of Default under SECTIONS
5.1(a), (b) OR (c) occurs and such Event of Default has not been
waived pursuant to SECTION 5.12, the Issuer shall, upon demand of the
Indenture 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.
(a) 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.
(b)
(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)
(e) 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:
(f)
<PAGE>
(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 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) and of the Noteholders allowed
in such Proceedings;
(i) unless prohibited by applicable law and regulations, to vote on
behalf of the Holders of Notes in any election of a trustee, a
standby trustee or Person performing similar functions in any
such Proceedings;
(i) 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 and of the
Indenture Trustee on their behalf; and
(i) 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 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 to make
payments to the Indenture Trustee, and, if the Indenture Trustee shall consent
to the making of payments directly to such Noteholders, 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.
(a) 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 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 in any such proceeding except,
as aforesaid, to vote for the election of a trustee in bankruptcy or
similar Person.
(b)
(c) 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 ratable
benefit of the Noteholders.
<PAGE>
(d)
(e) 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 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.
(f)
1.2 SECTION REMEDIES; PRIORITIES .
1.3
(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 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;
(i) institute Proceedings from time to time for the complete or
partial foreclosure of this Indenture with respect to the Trust
Estate;
(i) 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 and the Noteholders; and
<PAGE>
(i) 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 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 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.
(a) 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:
(b) 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 and the
Indenture Trustee a notice that states the record date, the payment date and the
amount to be paid.
<PAGE>
1.1 SECTION 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 and the Noteholders that there be at all times sufficient
funds for the payment of principal of and interest on the Notes, 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.
1.2
1.3 SECTION 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:
1.4
(i) such Holder has previously given written notice to the Indenture
Trustee of a continuing Event of Default;
(i) 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;
(i) 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;
(i) the Indenture Trustee for 60 days after its receipt of such
notice, request and offer of indemnity has failed to institute
such Proceedings; and
(i) 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.
<PAGE>
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.
1.1 SECTION 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.
1.2
1.3 SECTION 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.
1.4
1.5 SECTION 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 hereunder, or
otherwise, shall not prevent the concurrent assertion or employment of any other
appropriate right or remedy.
1.6
1.7 SECTION 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.
1.8
1.9 SECTION 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:
<PAGE>
1.10
(i) such direction shall not be in conflict with any rule of law or
with this Indenture;
(i) 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;
(i) 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
(i) 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.
1.1 SECTION WAIVER OF PAST DEFAULTS.
1.2
(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.
(a) 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.
(b)
<PAGE>
1.2 SECTION 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)
(c) 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
(d)
(e) 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).
(f)
1.3 SECTION 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 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.
1.4
1.5 SECTION 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).
1.6
<PAGE>
1.7 SECTION PERFORMANCE AND ENFORCEMENT OF CERTAIN OBLIGATIONS .
1.8
(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, 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 and the Pooling and
Servicing Agreement 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 or the Servicer thereunder and the institution
of legal or administrative actions or proceedings to compel or secure
performance by the Seller or the Servicer of their respective
obligations under the Trust Sale and Servicing Agreement and the
Pooling and Servicing Agreement.
(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 or the Servicer under or in connection with
the Trust Sale and Servicing Agreement and the Pooling and Servicing
Agreement, 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.
(c)
(d) [RESERVED.]
(e)
(f) 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.
(g)
(h)
<PAGE>
ARTICLE VI
THE INDENTURE TRUSTEE
1.1 SECTION DUTIES OF INDENTURE TRUSTEE .
1.2
(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.
(a) Except during the continuance of an Event of Default:
(b)
(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
(i) 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 expressed 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.
(a) 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:
(b)
(i) this SECTION 6.1(C) does not limit the effect of SECTION 6.1(B);
(i) 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
(i) 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.
(a) 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.
(b)
<PAGE>
(c) 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.
(d)
(e) 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.
(f)
(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.
(h)
1.2 SECTION RIGHTS OF INDENTURE TRUSTEE .
1.3
(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.
(a) 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.
(b)
(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.
(d)
(e) 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.
(f)
(g) 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.
(h)
<PAGE>
1.2 SECTION 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.
1.3
1.4 SECTION 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.
1.5
1.6 SECTION 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 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.
1.7
1.8 SECTION 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.
1.9
1.10 SECTION COMPENSATION; INDEMNITY .
1.11
(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 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.
(a) 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.
(b)
<PAGE>
1.2 SECTION REPLACEMENT OF INDENTURE TRUSTEE .
1.3
(a) The Indenture Trustee may at any time give notice of its intent to
resign by so notifying the Issuer; 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;
(i) the Indenture Trustee is adjudged a bankrupt or insolvent;
(i) a receiver or other public officer takes charge of the Indenture
Trustee or its property; or
(i) the Indenture Trustee otherwise becomes incapable of acting.
(a) 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.
(b)
(c) A successor Indenture Trustee shall deliver a written acceptance of
its appointment and designation to the retiring Indenture Trustee and
to the Issuer. 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.
(d)
(e) 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.
(f)
(g) 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.
(h)
(i) 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.
(j)
<PAGE>
1.2 SECTION MERGER OR CONSOLIDATION OF INDENTURE TRUSTEE .
1.3
(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.
(a) 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.
(b)
1.2 SECTION 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 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.
(a) Every separate trustee and co-trustee shall, to the extent permitted
by law, be appointed and act subject to the following provisions and
conditions:
<PAGE>
(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;
(i) no trustee hereunder shall be personally liable by reason of any
act or omission of any other trustee hereunder; and
(i) the Indenture Trustee may at any time accept the resignation of
or remove any separate trustee or co-trustee.
(a) 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.
(b)
(c) 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.
(d)
1.2 SECTION 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.
1.3
<PAGE>
1.4 SECTION 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.
1.5
1.6 SECTION REPRESENTATIONS AND WARRANTIES OF INDENTURE TRUSTEE . The Indenture
Trustee represents and warrants as of the Closing Date that:
1.7
(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)
(c) 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;
(d)
(e) 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;
(f)
(g) 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
(h)
(i) 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.
(j)
1.8 SECTION 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.
<PAGE>
1.9
1.10 SECTION 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.
1.11
1.12 SECTION 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.
1.13
1.14
ARTICLE VII
NOTEHOLDERS' LISTS AND REPORTS
1.1 SECTION 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 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.
<PAGE>
1.1 SECTION PRESERVATION OF INFORMATION, COMMUNICATIONS TO NOTEHOLDERS .
1.2
(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.
(a) Noteholders may communicate pursuant to TIA ss. 312(b) with other
Noteholders with respect to their rights under this Indenture or under
the Notes.
(b)
(c) The Issuer, the Indenture Trustee and the Note Registrar shall have
the protection of TIA ss. 312(c).
(d)
1.2 SECTION REPORTS BY ISSUER .
1.3
(a) The Issuer shall:
(i) file with the Indenture Trustee, 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;
(i) 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
(i) 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) and (ii) of
this SECTION 7.3(A) as may be required by rules and regulations
prescribed from time to time by the Commission.
(a) Unless the Issuer otherwise determines, the fiscal year of the Issuer
shall end on December 31 of such year.
(b)
<PAGE>
1.2 SECTION REPORTS BY TRUSTEE .
1.3
(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. The Issuer
shall notify the Indenture Trustee if and when the Notes are listed on
any stock exchange.
(a) 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.
(b)
(c)
ARTICLE VIII
ACCOUNTS, DISBURSEMENTS AND RELEASES
1.1 SECTION 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.
1.1 SECTION DESIGNATED ACCOUNTS; PAYMENTS .
1.2
(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 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.
(a) 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.
(b)
<PAGE>
(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:
(d)
(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.
(i) Unless otherwise provided in clause (iii) below, an amount equal
to the Aggregate Noteholders' Principal Distributable Amount
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) First, to the Class A-1 Notes, until the Outstanding Amount
attributable to such class is reduced to zero;
(A) Second, to the Class A-2 Notes, until the Outstanding Amount
attributable to such class is reduced to zero; and
(A) Third, to the Class A-3 Notes, until the Outstanding Amount
attributable to such class is reduced to zero.
(i) 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 after
the applications described in SECTION 8.2(c)(i) and any amounts then
on deposit or deposited into the Note Distribution Account thereafter
shall be applied to the repayment of principal on each 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.
(ii)
<PAGE>
1.2 SECTION GENERAL PROVISIONS REGARDING ACCOUNTS .
1.3
(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, acceptable to the Indenture Trustee, to such effect.
(a) 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.
(b)
(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.
(d)
1.2 SECTION RELEASE OF TRUST ESTATE .
1.3
(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.
<PAGE>
(a) 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, release any remaining portion of the Trust
Estate that secured the Notes 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 of an Issuer Request accompanied
by 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.
(b)
1.2 SECTION 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, in form and substance 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 in
contravention of the provisions of this Indenture; PROVIDED, HOWEVER, that such
Opinion of Counsel 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.
1.3
1.4
ARTICLE IX
SUPPLEMENTAL INDENTURES
1.1 SECTION SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF NOTEHOLDERS .
1.2
(a) Without the consent of the Holders of any Notes but with prior notice
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;
(i) 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;
<PAGE>
(i) 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;
(i) to convey, transfer, assign, mortgage or pledge any property to
or with the Indenture Trustee;
(i) 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;
(i) 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
(i) 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.
(a) 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, 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 Noteholders 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.
(b)
1.2 SECTION SUPPLEMENTAL INDENTURES WITH CONSENT OF NOTEHOLDERS .
1.3
(a) The Issuer and the Indenture Trustee, when authorized by an Issuer
Order, also may, with prior notice 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, enter into an indenture or 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 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:
(b)
<PAGE>
(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
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);
(i) 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;
(i) modify or alter the provisions of the proviso to the definition
of the term "Outstanding";
(i) 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;
(i) 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;
(i) 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
(i) 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.
(a) 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.
(b)
<PAGE>
(c) It shall be sufficient if an Act of Noteholders approves the
substance, but not the form, of any proposed supplemental indenture.
(d)
(e) 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 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.
(f)
1.2 SECTION 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 supplemental indenture that affects the Indenture Trustee's own
rights, duties, liabilities or immunities under this Indenture or otherwise.
1.3
1.4 SECTION 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.
1.5
1.6 SECTION 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.
1.7
1.8 SECTION 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.
1.9
1.10
<PAGE>
ARTICLE X
REDEMPTION OF NOTES
1.1 SECTION 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.
1.1 SECTION FORM OF REDEMPTION NOTICE .
1.2
(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.
(a) All notices of redemption shall state:
(b)
(i) the Redemption Date;
(i) the applicable Redemption Price; and
(i) 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).
(a) 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.
(b)
<PAGE>
1.2 SECTION NOTES PAYABLE ON REDEMPTION DATE .
1.3
1.4 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 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.
1.5
1.6
ARTICLE XI
MISCELLANEOUS
1.1 SECTION COMPLIANCE CERTIFICATES AND OPINIONS, ETC.
1.2
(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;
(i) 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;
(i) 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
(i) a statement as to whether, in the opinion of each such signatory,
such condition or covenant has been complied with.
<PAGE>
(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
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)
(iii)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 described 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.
(i) 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.
(i) 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.
<PAGE>
(i) 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.
1.1 SECTION FORM OF DOCUMENTS DELIVERED TO INDENTURE TRUSTEE .
1.2
(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.
(a) 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 the
certificate or opinion or representations with respect to the matters
upon which his certificate or opinion is based are 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.
(b)
(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)
(e) 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.
(f)
<PAGE>
1.2 SECTION ACTS OF NOTEHOLDERS .
1.3
(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 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.
(a) 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.
(b)
(c) The ownership of Notes shall be proved by the Note Register.
(d)
(e) 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.
(f)
1.2 SECTION NOTICES, ETC., TO INDENTURE TRUSTEE, ISSUER 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:
1.3
(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)
(c) 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.
(d)
<PAGE>
(e) 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 Indenture Trustee.
(f)
(g) Notices required to be given to the Rating Agencies by the Issuer, the
Indenture Trustee or the Owner Trustee shall be delivered as specified
in APPENDIX B to the Trust Sale and Servicing Agreement.
(h)
1.4 SECTION NOTICES TO NOTEHOLDERS; WAIVER .
1.5
(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 Noteholder 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.
(a) 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.
(b)
(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)
(e) 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.
(f)
1.2 SECTION 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.
<PAGE>
1.1 SECTION CONFLICT WITH TRUST INDENTURE ACT .
1.2
(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.
(a) 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.
(b)
1.2 SECTION 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.
1.1 SECTION SUCCESSORS AND ASSIGNS .
1.2
(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.
(a) All covenants and agreements of the Indenture Trustee in this
Indenture shall bind its successors and assigns, whether so expressed
or not.
(b)
1.2 SECTION SEPARABILITY .
1.3
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.
1.1 SECTION BENEFITS OF INDENTURE .
1.2
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, the
Noteholders, the Certificateholders (only to the extent expressly provided
herein) 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.
<PAGE>
1.1 SECTION LEGAL HOLIDAYS .
1.2
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.
1.1 SECTION 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.
1.1 SECTION COUNTERPARTS .
1.2
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.
1.1 SECTION RECORDING OF INDENTURE .
1.2
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.
1.1 SECTION NO RECOURSE .
1.2
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:
(i) the Indenture Trustee or the Owner Trustee in its individual
capacity;
(ii) any owner of a beneficial interest in the Issuer; or
<PAGE>
(i) 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
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.
1.1 SECTION NO PETITION .
1.2
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.
1.1 SECTION INSPECTION .
1.2
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.
1.1 SECTION INDEMNIFICATION BY AND REIMBURSEMENT OF THE SERVICER .
1.2
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.
* * * * *
<PAGE>
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 1999-1
By: BANKERS TRUST (DELAWARE),
not in its individual
capacity but solely as
Owner Trustee,
By: __________________________
Name: Lillian Peros
Title: Attorney-in-Fact
THE FIRST NATIONAL BANK OF CHICAGO, as Indenture Trustee,
By: ____________________________
Name: Steven M. Wagner
Title: First Vice President
<PAGE>
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 1999-1, 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 11th day of March, 1999.
Notary Public in and for the State of
__________________________.
My commission expires:
- ----------------------------
<PAGE>
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 11th day of March, 1999.
Notary Public in and for the State of
_______________________.
My commission expires:
- ----------------------------
<PAGE>
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>
EXHIBIT B
FORM OF NOTE DEPOSITORY AGREEMENT
<PAGE>
EXHIBIT C
FORM OF ASSET BACKED NOTES
REGISTERED $____________
No. R-
SEE REVERSE FOR CERTAIN DEFINITIONS
CUSIP NO. __________
Unless this Note is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the Issuer or its
agent for registration of transfer, exchange or payment, and any Note issued is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC (and any payment is made to Cede & Co. or to
such other entity as is requested by an authorized representative of DTC), ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL inasmuch as the registered owner hereof, Cede & Co., has an interest
herein.1
THE PRINCIPAL OF THIS NOTE IS PAYABLE AS SET FORTH HEREIN. ACCORDINGLY, THE
OUTSTANDING PRINCIPAL AMOUNT OF THIS NOTE AT ANY TIME MAY BE LESS THAN THE
AMOUNT SHOWN ON THE FACE HEREOF.
CAPITAL AUTO RECEIVABLES ASSET TRUST 1999-1
CLASS A-__% ASSET BACKED NOTES
CAPITAL AUTO RECEIVABLES ASSET TRUST 1999-1, a business trust
organized and existing under the laws of the State of Delaware (herein referred
to as the "ISSUER"), for value received, hereby promises to pay to
_______________, or registered assigns, the principal sum of _______________
DOLLARS ($_________) 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
1Not applicable to the Class A-1 Notes. For the Class A-1 Notes see SECTION
2.15(d).
<PAGE>
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 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, 34/360). 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.
<PAGE>
IN WITNESS WHEREOF, the Issuer has caused this instrument to be signed,
manually or in facsimile, by its Authorized Officer.
Date: March 11, 1999 CAPITAL AUTO RECEIVABLES ASSET
TRUST 1999-1,
By: BANKERS TRUST (DELAWARE),
not in its individual capacity but solely
as Owner Trustee under the Trust Agreement
By: ______________________________
Name: Lillian Peros
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>
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 March 11, 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 three 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.
<PAGE>
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, 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.
<PAGE>
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.
<PAGE>
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:
- ------------------------------ ----------------------------------
1NOTE: 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>
EXHIBIT D
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 1999-1
One First National Plaza
Chicago, IL 60670
Ladies and Gentlemen:
In connection with the purchase of a Class A-1 5.364% Asset Backed Note
(the "CLASS A-1 NOTE") of the Capital Auto Receivables Asset Trust 1999-1, the
undersigned buyer ("BUYER") hereby acknowledges, represents and agrees that:
(1) The Buyer has received the Private Placement Memorandum dated March 11, 1999
(the "PRIVATE PLACEMENT MEMORANDUM") relating to the offering of the Class A-1
Note (including EXHIBIT A thereto).
(2)
(3) 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 Class
A-1 Note to it 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.
(4)
(5) Buyer is purchasing the Class A-1 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 Class A-1 Note pursuant to Rule 144A under the
Securities Act. Buyer agrees to offer, sell or otherwise transfer the Class A-1
Note only in conformity with the restrictions on transfer set forth in the
Indenture dated as of March 11, 1999 pursuant to which the Class A-1 Note was
issued and the legend set forth on the definitive physical certificate
evidencing the Class A-1 Note. Buyer acknowledges the definitive certificate
evidencing the Class A-1 Note will bear a legend in the form set forth in the
paragraph entitled "Restrictions on the Transferability of the Notes" in the
Private Placement Memorandum
(6)
(7) Buyer acknowledges that you and others will rely upon our confirmations,
acknowledgements 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)
(9)
(10) ______________________________
(11) Print Name of Buyer
(12)
(13) By:____________________________
(14)
(15) Name:
(16)
(17) Title:
(18)
Date: __________________________
EXHIBIT 4.2
TRUST AGREEMENT
BETWEEN
CAPITAL AUTO RECEIVABLES, INC.
SELLER
AND
BANKERS TRUST (DELAWARE)
OWNER TRUSTEE
DATED AS OF MARCH 11, 1999
<PAGE>
TABLE OF CONTENTS
Page
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 2
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 [Reserved] 8
Section 3.12 [Reserved] 8
Section 3.13 [Reserved] 8
Section 3.14 Seller as Certificateholder 8
ARTICLE IV
ACTIONS BY OWNER TRUSTEE 8
Section 4.1 Prior Notice to Certificateholders with Respect
to Certain Matters 8
Section 4.2 Action by Certificateholders with Respect
to Certain Matters 9
Section 4.3 Action by Certificateholders with Respect
to Bankruptcy 9
Section 4.4 Restrictions on Certificateholders' Power 9
Section 4.5 Majority Control 10
ARTICLE V
APPLICATION OF TRUST FUNDS; CERTAIN DUTIES 10
Section 5.1 Establishment of Certificate Distribution Account 10
Section 5.2 Application of Trust Fund 10
Section 5.3 Method of Payment 11
Section 5.4 Accounting and Reports to the Certificateholders,
the Internal Revenue Service and Others 12
Section 5.5 Signature on Returns; Other Tax Matters 12
<PAGE>
ARTICLE VI
THE OWNER TRUSTEE 12
Section 6.1 Duties of Owner Trustee 12
Section 6.2 Rights of Owner Trustee 13
Section 6.3 Acceptance of Trusts and Duties 13
Section 6.4 Action upon Instruction by Certificateholders 15
Section 6.5 Furnishing of Documents 15
Section 6.6 Representations and Warranties of Owner Trustee 16
Section 6.7 Reliance; Advice of Counsel 16
Section 6.8 Owner Trustee May Own Certificates and Notes 17
Section 6.9 Compensation and Indemnity 17
Section 6.10 Replacement of Owner Trustee 17
Section 6.11 Merger or Consolidation of Owner Trustee 18
Section 6.12 Appointment of Co-Trustee or Separate Trustee 19
Section 6.13 Eligibility Requirements for Owner Trustee 20
ARTICLE VII
TERMINATION OF TRUST AGREEMENT 20
Section 7.1 Termination of Trust Agreement 20
ARTICLE VIII
AMENDMENTS 21
Section 8.1 Amendments Without Consent of Certificateholders
or Noteholders 21
Section 8.2 Amendments With Consent of Certificateholders
and Noteholders 22
Section 8.3 Form of Amendments 22
ARTICLE IX
MISCELLANEOUS 23
Section 9.1 No Legal Title to Owner Trust Estate 23
Section 9.2 Limitations on Rights of Others 23
Section 9.3 Derivative Actions 23
Section 9.4 Notices 23
Section 9.5 Severability 23
Section 9.6 Counterparts 24
Section 9.7 Successors and Assigns 24
Section 9.8 No Petition 24
Section 9.9 No Recourse 24
Section 9.10 Headings 24
Section 9.11 Governing Law 24
Section 9.12 [Reserved] 25
Section 9.13 Indemnification by and Reimbursement
of the Servicer 25
EXHIBITS
Exhibit A Form of Certificate
Exhibit B Form of Certificate of Trust
<PAGE>
TRUST AGREEMENT, dated as of March 11, 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
1.1 SECTION 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
1.1 SECTION NAME . The Trust created hereby shall be known as "Capital Auto
Receivables Asset Trust 1999-1" 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.
1.1 SECTION OFFICE . The office of the Trust shall be in care of the Owner
Trustee at the Corporate Trust Office or at such other address in Delaware as
the Owner Trustee may designate by written notice to the Certificate Owners and
the Seller.
1.2
1.3 SECTION PURPOSES AND POWERS . The purpose of the Trust is,and the Trust
shall have the power and authority, to engage in the following activities:
1.4
(i) to acquire, manage and hold the Receivables;
(i) 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;
<PAGE>
(i) 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 Certificateholders, to make deposits into
and withdrawals from the Reserve Account and to pay the
organizational, start-up and transactional expenses of the Trust;
(i) to assign, grant, transfer, pledge, mortgage and convey the Trust
Estate pursuant to the terms of the Indenture and to hold, manage
and distribute to the Certificate Owners pursuant to the terms of
this Agreement and the Trust Sale and Servicing Agreement any
portion of the Trust Estate released from the lien of, and
remitted to the Trust pursuant to, the Indenture;
(i) to enter into and perform its obligations and exercise its rights
under the Basic Documents to which it is to be a party;
(i) to engage in those activities, including entering into
agreements, that are necessary, suitable or convenient to
accomplish the foregoing or are incidental thereto or connected
therewith; and
(i) 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.
1.1 SECTION 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.
1.2
1.3 SECTION 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.
1.4
1.5 SECTION 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.
<PAGE>
1.6
1.7 SECTION 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.
1.8
1.9 SECTION 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.
1.10
1.11 SECTION 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.
1.12
1.13 SECTION REPRESENTATIONS AND WARRANTIES OF THE SELLER . The Seller hereby
represents and warrants to the Owner Trustee that:
1.14
(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.
(a) 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.
(a) 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.
<PAGE>
(a) 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 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.
1.1 SECTION 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 either (A) a division of the Seller, or any other single
Person, disregarded as a separate entity for federal income tax purposes if all
Certificates are owned solely by the Seller or by such single Person, or (B) a
partnership for federal income tax purposes if the Certificates are owned by
more than one Person 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
1.1 SECTION 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.
1.1 SECTION FORM OF THE CERTIFICATES .
1.2
(a) The Certificates shall be substantially in the form set forth in EXHIBIT A
and shall be issued in minimum denominations of $20,000. The Certificates shall
represent the entire beneficial interest in the Trust. The Certificates shall be
executed on behalf of the Trust by manual or facsimile signature of a
Responsible Officer of the Owner Trustee. Certificates bearing the manual or
facsimile signatures of individuals who were, at the time when such signatures
shall have been affixed, authorized to sign on behalf of the Trust, shall be
duly issued, fully paid and non-assessable beneficial interests in the Trust,
notwithstanding that such individuals or any of them shall have ceased to be so
authorized prior to the authentication and delivery of such Certificates or did
not hold such offices at the date of authentication and delivery of such
Certificates.
<PAGE>
(a) 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.
(b)
(c) The terms of the Certificates set forth in EXHIBIT A shall form part
of this Agreement.
(d)
1.2 SECTION 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.
1.1 SECTION REGISTRATION;REGISTRATION OF TRANSFER AND EXCHANGE OF CERTIFICATES.
1.2
(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.
(a) Certificateholders may at any time, without consent of the
Noteholders, sell, transfer, convey or assign in any manner whatsoever
their rights to and interests in the Certificates, provided that the
following conditions are satisfied: (i) the transferee provides
written verification from the applicable Rating Agencies that such
sale, transfer, conveyance or assignment will not result in a
reduction or withdrawal of the rating of any class of Notes then
outstanding, (ii) the transferee provides to the Owner Trustee and the
Indenture Trustee an opinion of independent counsel that such action
will not cause the Trust to be treated as an association (or publicly
traded partnership) taxable as a corporation for Federal income tax
purposes, (iii) such transferee or assignee agrees in writing to take
positions for tax purposes consistent with the tax positions agreed to
be taken by the initial Certificateholders herein, (iv) the transferee
provides the Owner Trustee (and the Certificate Registrar if not the
Owner Trustee) with an opinion of counsel satisfactory to the Owner
Trustee stating that such transfer (x) is exempt from registration
under applicable state and federal securities laws, (y) will not cause
the Trust to be an "investment company" or under the "control" of an
"investment company" within the meaning of the Investment Company Act
and (z) otherwise complies with the restrictions on Transfer contained
<PAGE>
in this Agreement, and (v) the transferee certifies to the Owner
Trustee that it is not a BENEFIT PLAN. The Owner Trustee shall have no
obligation to determine whether or not a transferee of a Trust
Certificate is or is not a Benefit Plan.
(b)
(c) Subject to SECTION 3.4(B), upon surrender for registration of transfer
of any Certificate at the office or agency maintained pursuant to
SECTION 3.8, the Owner Trustee shall execute on behalf of the Trust,
authenticate and deliver (or shall cause 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.
(d)
(e) 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.
(f)
(g) 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.
(h)
(i) 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.
<PAGE>
1.1 SECTION MUTILATED, DESTROYED, LOST OR STOLEN CERTIFICATES .
1.2
(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.
(a) If, after the delivery of a replacement Certificate in respect of a
destroyed, lost or stolen Certificate pursuant to SUBSECTION 3.5(A), a
protected purchaser of the original Certificate in lieu of which such
replacement Certificate was issued presents for payment such original
Certificate, the Owner Trustee shall be entitled to recover such
replacement Certificate (and any distributions or payments made with
respect thereto) from the Person to whom it was delivered 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.
(b)
(c) In connection with the issuance of any replacement Certificate under
this SECTION 3.5, the Owner Trustee may require the payment by the
Holder of such Certificate of a sum sufficient to cover any tax or
other governmental charge that may be imposed in relation thereto and
any other reasonable expenses (including the fees and expenses of the
Owner Trustee and the Certificate Registrar) connected therewith.
(d)
(e) 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.
(f)
(g) 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.
(h)
1.2 SECTION 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.
<PAGE>
1.3
1.4 SECTION 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.
1.5
1.6 SECTION 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.
1.7
1.8 SECTION 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 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.
<PAGE>
1.9
1.10 SECTION [RESERVED].
1.11
1.12 SECTION [RESERVED].
1.13
1.14 SECTION [RESERVED] .
1.15
1.16 SECTION [RESERVED]
1.17
1.18 SECTION 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.
1.19
ARTICLE IV
ACTIONS BY OWNER TRUSTEE
1.1 SECTION 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);
(a) 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;
(a) the amendment of the Indenture by a supplemental indenture in
circumstances where the consent of any Noteholder is required;
(a) 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;
<PAGE>
(a) 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
(a) 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.
1.1 SECTION 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.
1.2
1.3 SECTION ACTION BY CERTIFICATEHOLDERS WITH RESPECT TO BANKRUPTCY . The Owner
Trustee shall not have the power to commence a voluntary proceeding in
bankruptcy relating to the Trust without the unanimous prior approval of all
Holders of Certificates; 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.
1.4
1.5 SECTION 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.
1.6
1.7 SECTION 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.
1.8
<PAGE>
ARTICLE V
APPLICATION OF TRUST FUNDS; CERTAIN DUTIES
1.1 SECTION ESTABLISHMENT OF CERTIFICATE DISTRIBUTION ACCOUNT .
1.2
(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 1999-1 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.
(a) 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 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.
1.1 SECTION APPLICATION OF TRUST FUNDS .
1.2
(a) On each Distribution Date, the Owner Trustee shall distribute to the
Certificateholders, 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, 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.
(a) 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 so long as the Seller is the sole Certificateholder.
<PAGE>
(b)
(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 Certificateholder in
accordance with this SECTION 5.2; PROVIDED that the Owner Trustee
shall not have an obligation to withhold any such amount so long as
the Seller is the sole Certificateholder. The Owner Trustee is hereby
authorized and directed to retain from amounts otherwise distributable
to the Certificateholders sufficient funds for the payment of any tax
that is legally owed by the Trust (but such authorization shall not
prevent the Owner Trustee from contesting any such tax in appropriate
proceedings and withholding payment of such tax, if permitted by law,
pending the outcome of such proceedings). The amount of any
withholding tax imposed with respect to a Certificateholder shall be
treated as cash distributed to such Certificateholder at the time it
is withheld by the Trust and remitted to the appropriate taxing
authority. If there is a possibility that withholding tax is payable
with respect to a distribution (such as a distribution to a non-U.S.
Certificateholder), the Owner Trustee may in its sole discretion
withhold such amounts in accordance with this SUBSECTION 5.2(C). If a
Certificateholder wishes to apply for a refund of any such withholding
tax, the Owner Trustee shall reasonably cooperate with such
Certificateholder in making such claim so long as such
Certificateholder agrees to reimburse the Owner Trustee for any
out-of-pocket expenses incurred.
(d)
(e) 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.
(f)
1.2 SECTION METHOD OF PAYMENT . Subject to SUBSECTION 7.1(C), distributions
required to be made to Certificateholders on any Distribution Date shall be made
to each Certificateholder of record on the immediately preceding Record Date
either by wire transfer, in immediately available funds, to the account of such
Holder at a bank or other entity having appropriate facilities therefor, if such
Certificateholder shall have provided to the Certificate Registrar appropriate
written instructions at least five Business Days prior to such Record Date and
such Holder's Certificates in the aggregate evidence a denomination of not less
than $1,000,000, or, if not, by check mailed to such Certificateholder at the
address of such holder appearing in the Certificate Register.
1.3
1.4 SECTION 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 SUBSECTION 5.2(C) with respect to income
or distributions to Certificateholders.
<PAGE>
1.5
1.6 SECTION 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.
1.7
ARTICLE VI
THE OWNER TRUSTEE
1.1 SECTION 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)
(c) 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.
(d)
(e) 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.
(f)
(g) 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:
(h)
(ii) this SUBSECTION 6.1(D) shall not limit the effect of SUBSECTION
6.1(A) OR (B);
(i) 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
(i) 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.
<PAGE>
(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)
(g) The Owner Trustee shall not take any action that (i) is inconsistent
with the purposes of the Trust set forth in SECTION 2.3 or (ii) would,
to the actual knowledge of a Responsible Officer of the Owner Trustee,
result in the Trust's becoming taxable as a corporation for federal
income tax purposes. The Certificateholders shall not direct the Owner
Trustee to take action that would violate the provisions of this
SECTION 6.1.
(h)
1.2 SECTION 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.
1.3
1.4 SECTION 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 sentence):
1.5
(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
Certificateholders 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.
<PAGE>
(a) 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;
(a) 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;
(a) 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;
(a) 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;
(a) 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
(a) 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.
<PAGE>
1.1 SECTION ACTION UPON INSTRUCTION BY CERTIFICATEHOLDERS.
1.2
(e) 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.
(e) 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.
(f)
(g) 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.
(h)
1.2 SECTION 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.
1.3
1.4 SECTION REPRESENTATIONS AND WARRANTIES OF OWNER TRUSTEE . The Owner Trustee
hereby represents and warrants to the Seller, for the benefit of the
Certificateholders, that:
1.5
(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.
<PAGE>
(a) 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.
(a) The execution, delivery and performance by it of this Agreement (i)
shall not violate any provision of any law or regulation governing the
banking and trust powers of the Owner Trustee or any order, writ,
judgment or decree of any court, arbitrator or governmental authority
applicable to the Owner Trustee or any of its assets, (ii) shall not
violate any provision of the corporate charter or by-laws of the Owner
Trustee or (iii) shall not violate any provision of, or constitute,
with or without notice or lapse of time, a default under, or result in
the creation or imposition of any lien on any properties included in
the Trust pursuant to the provisions of any mortgage, indenture,
contract, agreement or other undertaking to which it is a party, which
violation, default or lien could reasonably be expected to have a
materially adverse effect on the Owner Trustee's performance or
ability to perform its duties as Owner Trustee under this Agreement or
on the transactions contemplated in this Agreement.
(a) 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.
1.1 SECTION RELIANCE; ADVICE OF COUNSEL .
1.2
(e) 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.
(e) 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.
<PAGE>
(f)
1.2 SECTION 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.
1.3
1.4 SECTION 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, 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.
1.1 SECTION REPLACEMENT OF OWNER TRUSTEE .
1.2
(e) 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;
(i) the Owner Trustee shall be adjudged bankrupt or insolvent;
(i) 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
(i) the Owner Trustee shall otherwise be incapable of acting.
<PAGE>
(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)
(d) Any resignation or removal of the Owner Trustee and appointment of a
successor Owner Trustee pursuant to any of the provisions of this
SECTION 6.10 shall not become effective and no such resignation shall
be deemed to have occurred until a written acceptance of appointment
is delivered by the successor Owner Trustee to the outgoing Owner
Trustee and the Administrator and all fees and expenses due to the
outgoing Owner Trustee are paid. Any successor Owner Trustee appointed
pursuant to this SECTION 6.10 shall be eligible to act in such
capacity in accordance with SECTION 6.13 and, following compliance
with the preceding sentence, shall become fully vested with all the
rights, powers, duties and obligations of its predecessor under this
Agreement, with like effect as if originally named as Owner Trustee.
The Administrator shall provide notice of such resignation or removal
of the Owner Trustee to each of the Rating Agencies.
(e)
(f) 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.
(g)
(h) 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.
(i)
1.2 SECTION 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.
<PAGE>
1.1 SECTION APPOINTMENT OF CO-TRUSTEE OR SEPARATE TRUSTEE .
1.2
(b) 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:
(c)
(ii) all rights, powers, duties and obligations conferred or imposed
upon the Owner Trustee shall be conferred upon and exercised or
performed by the Owner Trustee and such separate trustee or
co-trustee jointly (it being understood that such separate
trustee or co-trustee is not authorized to act separately without
the Owner Trustee joining in such act), except to the extent that
under any law of any jurisdiction in which any particular act or
acts are to be performed, the Owner Trustee shall be incompetent
or unqualified to perform such act or acts, in which event such
rights, powers, duties and obligations (including the holding of
title to the Trust or any portion thereof in any such
jurisdiction) shall be exercised and performed singly by such
separate trustee or co-trustee, but solely at the direction of
the Owner Trustee;
(i) no trustee under this Agreement shall be personally liable by
reason of any act or omission of any other trustee under this
Agreement; and
(i) 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.
<PAGE>
(d)
(e) 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.
(f)
1.2 SECTION 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 Rating
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.
1.3
ARTICLE VII
TERMINATION OF TRUST AGREEMENT
1.1 SECTION TERMINATION OF TRUST AGREEMENT .
(c) 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.
(d)
<PAGE>
(e) Neither the Seller nor any Certificateholder shall be entitled to
revoke or terminate the Trust or this Agreement.
(f)
(g) 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 SUBSECTION 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.
(h)
(i) 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 SUBSECTION 7.1(C), the
Owner Trustee shall give a second written notice to the remaining
Certificateholders to surrender their Certificates for cancellation
and receive the final distribution with respect thereto. If within one
year after the second notice all the Certificates shall not have been
surrendered for cancellation, the Owner Trustee may take appropriate
steps, or may appoint an agent to take appropriate steps, to contact
the remaining Certificateholders concerning surrender of their
Certificates, and the cost thereof shall be paid out of the funds and
other assets that shall remain subject to this Agreement. Subject to
applicable laws with respect to escheat of funds, any funds remaining
in the Trust after exhaustion of such remedies in the preceding
sentence shall be deemed property of the Seller and distributed by the
Owner Trustee to the Seller, and the Owner Trustee shall have no
further liability to the Certificateholders with respect thereto.
(j)
(k) 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.
(l)
<PAGE>
ARTICLE VIII
AMENDMENTS
1.1 SECTION AMENDMENTS WITHOUT CONSENT OF CERTIFICATEHOLDERS OR NOTEHOLDERS .
This Agreement may be amended by the Seller and the Owner Trustee without the
consent of any of the Noteholders or the Certificateholders (but with prior
notice 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.
1.1 SECTION 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 each of the Rating
Agencies prior to obtaining consent to any proposed amendment under this SECTION
8.2.
<PAGE>
1.1 SECTION FORM OF AMENDMENTS .
1.2
(c) 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.
(c) 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.
(d)
(e) 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.
(f)
(g) 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.
(h)
ARTICLE IX
MISCELLANEOUS
1.1 SECTION 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.
1.1 SECTION 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 and the Noteholders, and
nothing in this Agreement, whether express or implied, shall be construed to
give to any other Person any legal or equitable right, remedy or claim in the
Owner Trust Estate or under or in respect of this Agreement or any covenants,
conditions or provisions contained herein.
<PAGE>
1.1 SECTION 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:
(c) such Certificate Owner must meet all requirements set forth in the
Business Trust Statute; and
(d)
(e) 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.
(f)
1.2 SECTION 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.
1.3
1.4 SECTION 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
1.5
1.6 SECTION 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.
1.7
1.8 SECTION 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.
1.9
1.10 SECTION NO PETITION. The Owner Trustee by entering this Trust Agreement
and each Certificateholder, 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.
1.11
<PAGE>
1.12 SECTION 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.
1.13
1.14 SECTION 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.
1.15
1.16 SECTION 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.
1.17
1.18 SECTION [RESERVED]
1.19
1.20 SECTION 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.
1.21
1.22
* * * * *
<PAGE>
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: Lillian Peros
Title: Attorney-in-Fact
CAPITAL AUTO RECEIVABLES, INC.
By: __________________________
Name: D. C. Walker
Title: Vice President
<PAGE>
EXHIBIT A
NUMBER R- $_____________
CUSIP NO.____
SEE REVERSE FOR CERTAIN DEFINITIONS
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.
THE SECURITIES REPRESENTED BY THIS CERTIFICATE WERE ORIGINALLY ISSUED ON
MARCH 11, 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 CERTIFICATE IS ALSO SUBJECT TO THE RESTRICTIONS SET FORTH IN THE TRUST
AGREEMENT REFERENCED BELOW.
CAPITAL AUTO RECEIVABLES ASSET TRUST 1999-1
6.090 % 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
Corporation or any of their respective affiliates, except to the extent
described in the Basic Documents.)
<PAGE>
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 1999-1 (the "TRUST") formed by Capital Auto Receivables,
Inc., a Delaware corporation.
The Trust was created pursuant to a Trust Agreement, dated as of March 11,
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
"6.090% 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 April 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 either (A) division of the Seller, or any other single Person, and
disregarded as a separate entity if all Certificates are owned solely by the
Seller or by such single Person, or (B) a partnership if the Certificates are
owned by more than one Person. 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
disregarded entity or partnership as described in the previous sentence.
<PAGE>
Each Certificateholder 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 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.
<PAGE>
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 1999-1
BANKERS TRUST (DELAWARE),
not in its individual capacity but solely as
Owner Trustee
By: _________________________
Dated: March 11, 1999 Name: Lillian Peros
Title: Attorney-in-Fact
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:_________________________ By: ___________________________
Name: Lillian Peros Name:
Title: Attorney-in-Fact Title:
<PAGE>
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 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 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 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.
<PAGE>
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>
EXHIBIT B
CERTIFICATE OF TRUST OF
CAPITAL AUTO RECEIVABLES ASSET TRUST 1999-1
THIS Certificate of Trust of Capital Auto Receivables Asset Trust 1999-1
(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 1999-1.
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 March 11, 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 March 11, 1999
By: _______________________________
Name:
Title:
