<PAGE> 1
THE INFORMATION IN THIS PROSPECTUS SUPPLEMENT AND THE ACCOMPANYING PROSPECTUS IS
NOT COMPLETE AND MAY BE CHANGED. THESE SECURITIES MAY NOT BE SOLD NOR MAY OFFERS
TO BUY BE ACCEPTED PRIOR TO THE TIME A FINAL PROSPECTUS SUPPLEMENT AND THE
RELATED PROSPECTUS IS DELIVERED. THIS PROSPECTUS SUPPLEMENT AND THE ACCOMPANYING
PROSPECTUS IS NOT AN OFFER TO SELL THESE SECURITIES AND IT IS NOT SOLICITING AN
OFFER TO BUY THESE SECURITIES IN ANY STATE WHERE THE OFFER OR SALE IS NOT
PERMITTED.
Filed Pursuant to Rule 424(b)(3)
Registration No. 333-06039
PROSPECTUS SUPPLEMENT TO PROSPECTUS DATED , 1999
CAPITAL AUTO RECEIVABLES ASSET TRUST 1999-2
$1,153,279,000.00 Asset Backed Notes, Class A
$63,751,066.84 Asset Backed Certificates
CAPITAL AUTO RECEIVABLES, INC.
Seller
GENERAL MOTORS ACCEPTANCE CORPORATION
Servicer
YOU SHOULD CONSIDER
CAREFULLY THE RISK FACTORS
BEGINNING ON PAGE IN THIS
PROSPECTUS SUPPLEMENT AND
PAGE 3 IN THE PROSPECTUS.
The Notes represent
obligations of the Trust
only. The Certificates
represent interests in the
Trust only. The Notes and
the Certificates do not
represent obligations of or
interests in, and are not
guaranteed by, Capital Auto
Receivables, Inc., General
Motors Acceptance
Corporation or any of their
affiliates.
This prospectus supplement
may be used to offer and
sell the Notes and the
Certificates only if
accompanied by the
prospectus.
The Trust will issue the following classes of
Notes and Certificates:
<TABLE>
<CAPTION>
CLASS A NOTES
-----------------------------------------------------------------------
A-1 A-2 A-3 A-4 A-5
NOTES NOTES NOTES NOTES NOTES
------------ ------------ ------------ ------------ -----------
<S> <C> <C> <C> <C> <C>
Principal
Amount.............. $427,000,000 $370,000,000 $306,500,000 $400,000,000 $76,779,000
Interest Rate........
Targeted Final
Distribution Date... March September March September September
2000 2000 2001 2001 2002
Final Scheduled
Distribution Date... July June March May January
2001 2002 2003 2004 2005
Price to Public...... N/A
Underwriting
Discount............ N/A
Proceeds to
Seller.............. N/A
<CAPTION>
INITIAL
VARIABLE
PAY TERM CERTIF-
NOTE ICATES
------------ --------------
<S> <C> <C>
Principal
Amount.............. $481,000,000 $63,751,066.84
Interest Rate........ One Month
LIBOR
plus %
Targeted Final
Distribution Date... N/A N/A
Final Scheduled
Distribution Date... January January
2005 2005
Price to Public...... N/A
Underwriting
Discount............ N/A
Proceeds to
Seller.............. N/A
</TABLE>
CREDIT ENHANCEMENT
- Reserve Account, with an initial deposit of
$ .
- The Certificates are subordinated to the Notes.
This prospectus supplement and the accompanying
prospectus relate only to the offering of the
Class A-2 Notes, the Class A-3 Notes, the Class
A-4 Notes, the Class A-5 Notes and the
Certificates. The Seller will retain Certificates
with an initial Certificate balance of
$638,066.84. The Class A-1 Notes and the Variable
Pay Term Notes are not offered under these
documents.
NEITHER THE SEC NOR ANY STATE SECURITIES COMMISSION HAS APPROVED OR DISAPPROVED
THESE SECURITIES OR DETERMINED THAT THIS PROSPECTUS SUPPLEMENT OR THE PROSPECTUS
IS ACCURATE OR COMPLETE. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL
OFFENSE.
Joint Bookrunners
CREDIT SUISSE FIRST BOSTON J. P. MORGAN & CO.
Co-Managers
BANC OF AMERICA SECURITIES LLC
BANC ONE CAPITAL MARKETS, INC.
CHASE SECURITIES INC.
LEHMAN BROTHERS
MERRILL LYNCH & CO.
SALOMON SMITH BARNEY
, 1999
<PAGE> 2
IMPORTANT NOTICE ABOUT INFORMATION PRESENTED IN THIS
PROSPECTUS SUPPLEMENT AND THE ACCOMPANYING PROSPECTUS
We provide information to you about the Notes and the Certificates in two
separate documents:
(a) the prospectus, which provides general information and terms of
the Notes and the Certificates, some of which may not apply to a particular
series of Notes or Certificates, including your series.
(b) this prospectus supplement, which will provide information
regarding the pool of contracts held by the Trust and will specify the
terms of your series of Notes or Certificates.
IF THE TERMS OF YOUR SERIES OF NOTES OR CERTIFICATES VARY BETWEEN THE
PROSPECTUS AND THIS PROSPECTUS SUPPLEMENT, YOU SHOULD RELY ON THE INFORMATION IN
THIS PROSPECTUS SUPPLEMENT.
You should rely only on the information provided in the accompanying
prospectus and this prospectus supplement, including the information
incorporated by reference. We have not authorized anyone to provide you with
other or different information. We are not offering the Notes or the
Certificates offered hereby in any state where the offer is not permitted. We do
not claim that the information in the accompanying prospectus and this
prospectus supplement is accurate on any date other than the dates stated on
their respective covers.
You can find a listing of the pages where capitalized terms used in the
prospectus and this prospectus supplement are defined under the caption "Index
of Terms" which appears at the end of the prospectus.
<PAGE> 3
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
PROSPECTUS SUPPLEMENT
SUMMARY OF TRANSACTION PARTIES.............................. S-1
SUMMARY OF MONTHLY DEPOSITS TO AND WITHDRAWALS FROM
ACCOUNTS.................................................. S-2
SUMMARY..................................................... S-3
RISK FACTORS................................................ S-9
THE TRUST................................................... S-13
THE RECEIVABLES POOL........................................ S-13
THE SERVICER................................................ S-15
THE NOTES................................................... S-16
THE CERTIFICATES............................................ S-21
THE TRANSFER AND SERVICING AGREEMENTS....................... S-22
ERISA CONSIDERATIONS........................................ S-32
CERTAIN FEDERAL INCOME TAX CONSEQUENCES..................... S-33
UNDERWRITING................................................ S-34
LEGAL OPINIONS.............................................. S-35
PROSPECTUS
RISK FACTORS................................................ 3
THE TRUSTS.................................................. 7
THE RECEIVABLES POOLS....................................... 8
WEIGHTED AVERAGE LIFE OF THE SECURITIES..................... 10
POOL FACTORS AND TRADING INFORMATION........................ 10
USE OF PROCEEDS............................................. 11
THE SELLER.................................................. 11
THE SERVICER................................................ 12
THE NOTES................................................... 12
THE CERTIFICATES............................................ 18
CERTAIN INFORMATION REGARDING THE SECURITIES................ 20
THE TRANSFER AND SERVICING AGREEMENTS....................... 25
CERTAIN LEGAL ASPECTS OF THE RECEIVABLES.................... 40
CERTAIN FEDERAL INCOME TAX CONSIDERATIONS................... 44
STATE AND LOCAL TAX CONSEQUENCES............................ 56
ERISA CONSIDERATIONS........................................ 57
PLAN OF DISTRIBUTION........................................ 57
LEGAL OPINIONS.............................................. 58
WHERE YOU CAN FIND MORE INFORMATION......................... 58
INCORPORATION BY REFERENCE.................................. 58
INDEX OF TERMS.............................................. -i-
</TABLE>
<PAGE> 4
SUMMARY OF TRANSACTION PARTIES
[FLOWCHART]
S-1
<PAGE> 5
SUMMARY OF MONTHLY DEPOSITS TO AND WITHDRAWALS FROM ACCOUNTS
[FLOWCHART]
S-2
<PAGE> 6
SUMMARY
- - This Summary highlights selected information from this document and does not
contain all of the information that you need to consider in making your
investment decision. To understand the terms of this offering of the Class A
Notes and the Certificates, carefully read this entire document and the
accompanying prospectus.
THE PARTIES
Issuer
Capital Auto Receivables Asset Trust 1999-2, a Delaware business trust formed by
the Seller, will issue five classes of Class A Notes, up to six classes of
Variable Pay Term Notes and a class of Certificates.
Seller
Capital Auto Receivables, Inc., a wholly-owned subsidiary of GMAC, will be the
Seller to the Trust.
Servicer
General Motors Acceptance Corporation, which we refer to as GMAC, a wholly-
owned subsidiary of General Motors Corporation, will be the Servicer for the
Trust.
Indenture Trustee
The First National Bank of Chicago.
Owner Trustee
Bankers Trust (Delaware).
THE NOTES
Class A Notes
The Trust will issue the following Class A Notes:
<TABLE>
<CAPTION>
AGGREGATE PRINCIPAL INTEREST
CLASS AMOUNT RATE
- ----- ------------------- --------
<S> <C> <C>
A-1 $427,000,000 %
A-2 $370,000,000 %
A-3 $306,500,000 %
A-4 $400,000,000 %
A-5 $ 76,779,000 %
</TABLE>
Only the Class A-2 Notes, the Class A-3 Notes, the Class A-4 Notes and the Class
A-5 Notes are offered hereby. The Class A-1 Notes will be sold in a private
placement and are not offered hereby.
Variable Pay Term Notes
- - At the time of issuance of the Class A Notes, the Trust will issue a Variable
Pay Term Note in an initial principal amount of $481,000,000.00. The initial
Variable Pay Term Note will bear interest at a floating rate of one-month
LIBOR plus %, except as described below. The Seller will sell a 100%
participation interest in the initial Variable Pay Term Note in a private
placement. We are not offering any interest in the initial Variable Pay Term
Note hereby.
- - The Trust will be able to issue additional Variable Pay Term Notes on the
targeted final distribution date for each class of the Class A Notes. If
issued, the proceeds will be available to make payments of principal on that
targeted final distribution date.
- - Any additional Variable Pay Term Notes will bear interest at a floating rate
based on one-month LIBOR, except as described below. The spread over LIBOR for
each additional Variable Pay Term Note will be determined at the time of
issuance based on market conditions but will not exceed 2.5%.
- - If the interest rate swap described below is terminated, the interest rate on
the Variable Pay Term Notes will automatically become a fixed rate of %
per annum, which is the fixed
S-3
<PAGE> 7
rate payable by the Trust under the interest rate swap.
- - With respect to each targeted final distribution date for a class of Class A
Notes, subject to the conditions to issuing additional Variable Pay Term Notes
described below, the Seller will agree to offer to a commercial paper facility
administered by GMAC the right to purchase a 100% participation interest in
additional Variable Pay Term Notes such that the proceeds received by the
Trust, together with collections on the receivables, will be sufficient to pay
that class of Class A Notes in full on that targeted final distribution date.
Neither this commercial paper facility nor any other person or entity is
obligated to purchase an interest in any additional Variable Pay Term Notes.
As a result, we cannot assure you that any additional Variable Pay Term Notes
will be sold or that the proceeds from any sale of Variable Pay Term Notes
will be sufficient to pay a class of Class A Notes in full on its targeted
final distribution date.
- - If sufficient Variable Pay Term Notes are not sold on the targeted final
distribution date for any class of Class A Notes, then it is unlikely that the
full principal amount of that class of Class A Notes will be paid on its
targeted final distribution date.
- - The principal amount of the Variable Pay Term Notes that we may issue on any
targeted final distribution date is limited. After giving effect to the
issuance of Variable Pay Term Notes and all payments on the Notes and the
Certificates on any targeted final distribution date, the total principal
amount of Notes and Certificates outstanding cannot exceed the total principal
balance of the receivables held by the Trust on the last day of the prior
month.
- - We may not issue additional Variable Pay Term Notes if the interest rate swap
is terminated or an event of default under the indenture governing the Notes
has occurred and is continuing.
Interest Payments
- - The Trust will pay interest on the Notes monthly, on the 15th day of each
month, or on the next business day, which we refer to as the "DISTRIBUTION
DATE." The first distribution date is October 15, 1999.
- - The prospectus and this prospectus supplement describe how the available funds
are allocated to interest payments.
- - The Trust will pay interest on all the Class A Notes that we are offering
under this prospectus supplement based on a 360-day year consisting of twelve
30-day months.
- - Interest payments on all Class A Notes and all Variable Pay Term Notes will
have the same priority.
Principal Payments
- - In general, the Trust will not make payments of principal on any class of
Class A Notes until its targeted final distribution date. On the targeted
final distribution date for each class of Class A Notes, the Trust will pay,
to the extent of available funds, the entire outstanding principal balance of
that class of Class A Notes.
- - Amounts available to pay principal on the Notes on each distribution date that
is not a targeted final distribution date for any Class A Notes will be
applied to make principal payments on the Variable Pay Term Notes. On each
distribution date, except after the Notes have been accelerated following an
event of default as described below, distributions with respect to Certificate
S-4
<PAGE> 8
balance on the Certificates will also be made.
- - The amount available to make principal payments on each distribution date will
be based on the amount of collections and defaults on the receivables during
the prior month. On the targeted final distribution date for a class of Class
A Notes, the proceeds from the issuance of additional Variable Pay Term Notes,
if any, will also be available to make principal payments. The prospectus and
this prospectus supplement describe how the available funds are allocated to
principal payments.
- - If any class of Class A Notes is not paid in full on its targeted final
distribution date, on each distribution date thereafter, until that class of
Class A Notes is paid in full, amounts available to make principal payments on
the Notes will be applied to that class of Class A Notes and the Variable Pay
Term Notes pro rata. If on two consecutive targeted final distribution dates
the corresponding targeted classes of Class A Notes are not paid in full or in
the event the interest rate swap is terminated, on each distribution date
thereafter, amounts available to make principal payments on the Notes will be
applied to the Class A Notes and the Variable Pay Term Notes pro rata. In such
event, payments on the Class A Notes will be made sequentially, so that no
principal payments will be made on any class of Class A Notes until all Class
A Notes with a lower numerical designation have been paid in full. For
example, the Class A-2 Notes will be paid in full before any payments are made
on the Class A-3 Notes and the Class A-3 Notes will be paid in full before any
payments are made on the Class A-4 Notes.
- - The failure of the Trust to pay any class of Class A Notes in full on its
targeted final distribution date will not constitute an event of default.
- - On each distribution date after an event of default occurs and the Notes are
accelerated, until the time when all events of default have been cured or
waived as provided in the indenture, principal payments on each class of the
Class A Notes and the Variable Pay Term Notes will be made ratably to all
noteholders, based on the outstanding principal balance of each class of
Notes.
- - All unpaid principal on a class of Notes will be due on the final scheduled
distribution date for that class. Failure to pay a class of Notes in full on
its final scheduled distribution date will result in an event of default.
- - When the total principal balance of the receivables declines to less than 10%
of the total amount financed under the receivables, the Servicer may purchase
all of the remaining receivables. If the Servicer purchases the receivables,
the outstanding Class A-5 Notes, if any, and Variable Pay Term Notes will be
redeemed at a price equal to their remaining principal balance plus accrued
and unpaid interest.
THE CERTIFICATES
- - The Trust will issue Certificates with an aggregate initial Certificate
balance of $63,751,066.84.
- - The Seller will initially retain Certificates with an initial Certificate
balance of $638,066.84.
Interest Payments
- - The Trust will pay interest on the Certificates on each distribution date.
- - The Certificates will bear interest at % per annum.
S-5
<PAGE> 9
- - The prospectus and this prospectus supplement describe how the available funds
are allocated to interest payments.
- - The Trust will pay interest on the Certificates based on a 360-day year
consisting of twelve 30-day months.
Certificate balance
- - On each distribution date, except after the Notes have been accelerated
following an event of default as described below, a pro rata portion, based on
the outstanding amount of Notes and Certificates, of the amount available to
make principal payments will be applied to make distributions with respect to
Certificate balance.
Subordination
- - If an event of default occurs and the Notes are accelerated, no payments of
interest on the Certificates or distributions with respect to Certificate
balance will be made until the Notes are paid in full or the acceleration is
rescinded.
Early Retirement of the Certificates
- - When the total principal balance of the receivables declines to 10% or less of
the total amount financed under the receivables, the Servicer may purchase all
of the remaining receivables. If the Servicer purchases the receivables, the
outstanding Certificates, if any, will be redeemed at a price equal to the
remaining Certificate balance plus accrued and unpaid interest.
THE TRUST PROPERTY
The primary assets of the Trust will be a pool of fixed rate retail instalment
sales contracts used to finance the purchase of new and used cars and light
trucks. We refer to these contracts as "RECEIVABLES" and to the persons who
financed their purchases with these contracts as "OBLIGORS." The receivables in
the Trust will be sold by GMAC to the Seller, and then by the Seller to the
Trust. The Trust will grant a security interest in the receivables and the other
Trust property to the Indenture Trustee on behalf of the noteholders. The Trust
property will also include, with other specific exceptions described in the
prospectus:
- - Monies received under the receivables on or after a cut-off date of August 1,
1999;
- - Amounts held on deposit in trust accounts maintained for the Trust;
- - Security interests in the vehicles financed by the receivables;
- - Any recourse GMAC has against the dealers from which it purchased the
receivables;
- - Any proceeds from claims on insurance policies covering the financed vehicles;
- - An interest rate swap;
- - Specified rights of the Seller under its purchase agreement with GMAC; and
- - All rights of the Trust under the related transfer agreement with the Seller.
The aggregate principal balance of the receivables on the cut-off date was
$2,125,030,066.84.
PRIORITY OF DISTRIBUTIONS
- - The Trust will distribute available funds in the following order of priority:
- servicing fee payments to the Servicer;
- net amount payable, if any, to the swap counterparty described below;
- interest on the Notes;
- interest on the Certificates;
- principal on the Notes;
- principal on the Certificates; and
- deposits into the reserve account.
S-6
<PAGE> 10
- - If an event of default occurs and the Notes are accelerated, the Trust will
pay each class of the Class A Notes and the Variable Pay Term Notes in full,
on a pro rata basis, before making any interest payments on the Certificates
or any payments with respect to the Certificate balance until all events of
default have been cured or waived as provided in the indenture.
RESERVE ACCOUNT
- - On the closing date, the Seller will deposit $ in cash or eligible
investments into the reserve account. Collections on the receivables, to the
extent available for such purpose, will be added to the reserve account on
each distribution date if the reserve account balance is below a specified
reserve amount. The specified reserve amount will increase so long as any
funds are held in the Accumulation Account described below. See "The Transfer
and Servicing Agreements--Reserve Account" in this prospectus supplement.
- - To the extent that funds from principal and interest collections on the
receivables are not sufficient to pay the basic servicing fee, to pay the net
amount, if any, due to the swap counterparty and to make required
distributions on the Notes and the Certificates, the Trust will withdraw cash
from the reserve account for those purposes. Amounts on deposit in the reserve
account will not be available, however, on the targeted final distribution
date for any class of Class A Notes to the extent that the proceeds, if any,
from the sale of additional Variable Pay Term Notes together with collections
on the receivables are insufficient to pay that class of Class A Notes in
full.
- - On any distribution date, after the Trust pays the total servicing fee and the
swap counterparty and makes all required distributions on the Notes and the
Certificates, the amount in the reserve account may exceed the specified
reserve amount. If so, the Trust will pay the excess to the Seller.
INTEREST RATE SWAP
- - On the Closing Date, the Trust will enter into an interest rate swap with
General Re Financial Products Corporation, as swap counterparty. General Re
Corporation will guarantee the obligations of the swap counterparty under the
interest rate swap.
- - Under the interest rate swap, the Trust will receive payments at a rate
determined by reference to LIBOR, which is the basis for determining the
amount of interest due on the Variable Pay Term Notes.
- - Under the interest rate swap, on each distribution date, the Trust will be
obligated to pay to the swap counterparty a fixed monthly rate on a notional
amount equal to the aggregate outstanding balance of all Variable Pay Term
Notes. The swap counterparty will be obligated to pay to the Trust a floating
interest rate based on LIBOR on the same notional amount.
- - Under the interest rate swap, the amount that the Trust is obligated to pay to
the swap counterparty will be netted against the amount that the swap
counterparty is obligated to pay the Trust. Only the net amount payable will
be due from the Trust or the swap counterparty, as applicable.
- - If the interest rate swap is terminated, the interest rate on the Variable Pay
Term Notes will automatically become a fixed rate equal to the fixed rate
payable by the Trust under the interest rate swap and the Trust will no longer
be permitted to issue Variable Pay Term Notes. See "The Transfer and Servicing
Agreements--Interest Rate
S-7
<PAGE> 11
Swap" in this prospectus supplement for additional information.
SERVICING FEES
The Trust will pay the Servicer a monthly basic 1% servicing fee as compensation
for servicing the receivables. The Servicer will also be entitled to any late
fees, prepayment charges and other administrative fees and expenses collected
during the related month and investment earnings on Trust accounts. The Trust
will also pay the Servicer an additional monthly servicing fee of up to 1% to
the extent described in the prospectus.
TAX STATUS
In the opinion of Kirkland & Ellis, special tax counsel, (1) the Class A Notes
will be characterized as indebtedness for federal income tax purposes and (2)
the Trust will not be taxable as an association or publicly traded partnership
taxable as a corporation, but instead should be classified as a grantor trust
for federal income tax purposes. The Certificates should therefore be trust
certificates representing equity interests in the Trust.
Each noteholder, by the acceptance of a Note, will agree to treat the Notes as
indebtedness for federal, state and local income and franchise tax purposes.
Each certificateholder, by the acceptance of a trust certificate, will agree to
treat the trust certificates as equity interests in the Trust for federal, state
and local income and franchise tax purposes.
See "Certain Federal Income Tax Considerations" and "State and Local Tax
Consequences" in the prospectus concerning the application of federal, state and
local tax laws.
ERISA CONSIDERATIONS
Subject to the considerations discussed under "ERISA Considerations," an
employee benefit plan subject to the Employee Retirement Income Security Act of
1974 may purchase the Class A Notes. An employee benefit plan should consult
with its counsel before purchasing the Notes.
Subject to the considerations discussed under "ERISA Considerations," the
Certificates may not be acquired by any employee benefit plan subject to ERISA
or by an individual retirement account.
See "ERISA Considerations" in the prospectus and this prospectus supplement.
RATINGS
- - We will not issue the Class A Notes offered hereby unless they are rated in
the highest rating category for long-term obligations (i.e., "AAA") by at
least one nationally recognized rating agency.
- - We will not issue the Certificates unless they are rated in the "A" category
for long-term obligations or its equivalent by at least one nationally
recognized rating agency.
- - We cannot assure you that a rating agency will maintain its rating if
circumstances change. If a rating agency changes its rating, no one has an
obligation to provide additional credit enhancement or restore the original
rating.
- - A rating is not a recommendation to buy the Class A Notes or the Certificates.
The rating considers only the likelihood that the Trust will pay interest on
time and will ultimately pay principal in full or make full distributions of
Certificate balance. The rating does not consider the prices of the Class A
Notes or the Certificates, their suitability to a particular investor or the
timing of principal payments or distributions of Certificate balance. In
particular, the rating does not address whether any class of Class A Notes
will be paid in full on its targeted final distribution date.
S-8
<PAGE> 12
RISK FACTORS
In addition to the risk factors on page 3 of the prospectus, you should
consider the following risk factors in deciding whether to purchase the Notes.
FAILURE TO SELL ADDITIONAL
VARIABLE PAY TERM NOTES WILL
RESULT IN CLASS A NOTES NOT
BEING PAID IN FULL ON THEIR
TARGETED FINAL DISTRIBUTION
DATES The Trust's ability to pay the full principal
amount of any class of Class A Notes on its
targeted final distribution date will depend on
whether the Trust is able to sell an additional
Variable Pay Term Note on that targeted final
distribution date and the amount of proceeds,
if any, generated from that sale. If the Trust
does not generate sufficient proceeds, it is
unlikely that the full principal amount of a
class of Class A Notes will be paid on its
targeted final distribution date. Furthermore,
if on two consecutive targeted final
distribution dates the corresponding targeted
classes of Class A Notes are not paid in full
or in the event the interest rate swap is
terminated, on each subsequent distribution
date, principal payments will be made on the
Class A Notes sequentially, so that principal
payments will be made on each class of Class A
Notes after all classes of Class A Notes with a
lower numerical designation have been paid in
full, regardless of the targeted final
distribution date for that class.
Although the Seller will agree to offer the
right to purchase a 100% participation interest
in the Variable Pay Term Note that may be
issued on any targeted final distribution date
to a commercial paper facility administered by
GMAC, neither that facility, nor any other
person or entity, is obligated to purchase any
additional Variable Pay Term Note or any
interest therein. Furthermore, neither the
Seller, the Servicer nor any other person is
obligated to identify any other potential
purchasers. In addition, the spread over LIBOR
for additional Variable Pay Term Notes is
limited to 2.5%. Accordingly, we cannot assure
you that any additional Variable Pay Term Notes
will be sold or that the proceeds from any sale
of Variable Pay Term Notes will be sufficient
to pay a class of Class A Notes in full on its
targeted final distribution date.
You will bear all reinvestment risk resulting
from payments on the Class A Notes being made
before or after their respective targeted final
payment dates.
DISTRIBUTIONS ON THE
CERTIFICATES ARE SUBORDINATED
IN PRIORITY TO PAYMENTS ON THE
NOTES Distributions on the Certificates will be
subordinated in priority to the Notes as
described herein. If an event of default occurs
and the Notes are accelerated, no payments of
interest on the Certificates or distributions
with respect to Certificate balance will be
made until the Notes are paid in full or the
acceleration is
S-9
<PAGE> 13
rescinded. In this event, amounts otherwise
available to make payments on the Certificates
will be available to make payments on the
Notes. See "The Transfer and Servicing
Agreements--Distributions" in this Prospectus
Supplement.
PAYMENTS ON THE NOTES AND THE
CERTIFICATES DEPEND ON
COLLECTIONS ON THE RECEIVABLES The Trust's ability to make principal payments
on the Notes and distributions with respect to
the Certificate balance will depend on the
amount of collections on the receivables and
the amount of receivables that default. If
there are insufficient funds to pay the entire
amount due on any class of securities, you may
experience delays and/or reductions in
principal payments on your Notes or
distributions with respect to the Certificate
balance on your Certificates.
INTEREST RATE SWAP RISK The Trust has entered into the interest rate
swap because the receivables owned by the Trust
bear interest at a fixed rate while the
Variable Pay Term Notes will generally bear
interest at a floating rate based on one-month
LIBOR. The Trust will use payments made by the
swap counterparty to help make interest
payments on the Notes and the Certificates. If
the interest rate swap is terminated, the
interest rate on the Variable Pay Term Notes
will automatically become fixed at the fixed
rate payable by the Trust under the interest
rate swap.
During those periods in which the floating
LIBOR-based rate payable by the swap
counterparty is substantially greater than the
fixed rate payable by the Trust, the Trust will
be more dependent on receiving payments from
the swap counterparty in order to make payments
on the Notes and the Certificates. If the swap
counterparty fails to pay the net amount due,
you may experience delays and/or reductions in
the interest and principal payments on your
Notes and in the interest payments and
distributions with respect to Certificate
balance on your Certificates.
On the other hand, during those periods in
which the floating rate payable by the swap
counterparty is less than the fixed rate
payable by the Trust, the Trust will be
obligated to make payments to the swap
counterparty. The swap counterparty will have a
claim on the assets of the Trust for the net
amount due, if any, to the swap counterparty
under the interest rate swap. The swap
counterparty's claim will be higher in priority
than payments on the Notes and the
Certificates. On any distribution date, if
there are not enough funds in the Trust to pay
all of the Trust's obligations for that
distribution date, the swap
S-10
<PAGE> 14
counterparty will receive full payment of the
net amount due under the interest rate swap
before you receive payments on your Notes or
Certificates. If there is a shortage of funds
available on any distribution date, you may
experience delays and/or reductions in interest
and principal payments on your Notes and in the
interest payments and distributions with
respect to Certificate balance on your
Certificates.
In addition, in the event of the termination of
the interest rate swap, a termination payment
may be due to the swap counterparty. Any such
payment would be made by the Trust out of funds
that would otherwise be available to make
payments on the Notes and the Certificates and
would be paid from available funds pari passu
with payments of interest on the Notes. The
amount of any such termination payment may be
based on the market value of the interest rate
swap. Any such termination payment could, if
market interest rates and other conditions have
changed materially, be substantial. In such
event, you may experience delays and/or
reductions in interest and principal payments
on your Notes and in the interest payments and
distributions with respect to Certificate
balance on your Certificates.
The obligations of the swap counterparty under
the interest rate swap are unsecured. However,
in the event that the long-term senior
unsecured debt or commercial paper of the swap
counterparty guarantor ceases to be rated at a
level acceptable to the rating agencies, the
swap counterparty will be obligated to take the
actions specified in the interest rate swap as
described below in "The Transfer and Servicing
Agreements--Interest Rate Swap".
YEAR 2000 PROBLEM MAY AFFECT
COLLECTIONS AND DISTRIBUTIONS
OF RECEIPTS ON THE
RECEIVABLES We are aware of issues associated with the
programming code in existing computer systems
as the year 2000 approaches. The "year 2000
problem" is pervasive and complex; virtually
every computer operation will be affected in
some way by the rollover of the two digit year
value to 00. The issue is whether computer
systems will properly recognize date-sensitive
information when the year changes to 2000.
Systems that do not properly recognize such
information could generate erroneous data or
cause a system to fail.
We have been advised by each of the Servicer,
the Indenture Trustee and the swap counterparty
that, to the extent applicable to its services
under the agreements to which it is a party,
they are committed either to (1) implement
modifications to their respective existing
systems to the extent required to
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<PAGE> 15
cause them to be year 2000 ready or (2) acquire
computer systems that are year 2000 ready, in
each case prior to January 1, 2000. However, we
have not made any independent investigation of
the computer systems of the Servicer, the
Indenture Trustee or the swap counterparty. In
the event that computer problems arise out of a
failure to complete these efforts on time, or
in the event that the computer systems of the
Servicer, the Indenture Trustee or the swap
counterparty are not fully year 2000 ready, the
resulting disruptions in the collection or
distribution of receipts on the receivables
could materially and adversely affect your
investment.
S-12
<PAGE> 16
THE TRUST
The Issuer, Capital Auto Receivables Asset Trust 1999-2, is a business
trust formed under the laws of the State of Delaware. The Trust will be
established and operated pursuant to a Trust Agreement dated on or before
, 1999 (the "CLOSING DATE").
The Trust will engage in only the following activities:
- Acquire, hold and manage the Receivables and other assets of the
Trust;
- Issue Securities;
- Make payments on the Securities; and
- Take any action necessary to fulfill the role of the Trust in
connection with the Notes and the Certificates.
The Trust's principal offices are in Wilmington, Delaware, in care of
Bankers Trust (Delaware), as Owner Trustee, at the address listed in "--The
Owner Trustee" below.
CAPITALIZATION OF THE TRUST
The following table illustrates the capitalization of the Trust as of the
Cutoff Date, as if the issuance of the Class A Notes, the initial Variable Pay
Term Note and the Certificates had taken place on such date:
<TABLE>
<S> <C>
Class A-1 % Asset Backed Notes............ $ 427,000,000.00
Class A-2 % Asset Backed Notes............ $ 370,000,000.00
Class A-3 % Asset Backed Notes............ $ 306,500,000.00
Class A-4 % Asset Backed Notes............ $ 400,000,000.00
Class A-5 % Asset Backed Notes............ $ 76,779,000.00
Variable Pay Term Floating Rate Asset Backed
Note......................................... $ 481,000,000.00
% Asset Backed Certificates............... $ 63,751,066.84
-----------------
Total........................................ $2,125,030,066.84
=================
</TABLE>
The Class A-1 Notes and the Variable Pay Term Notes are not being offered
hereby. The Certificates represent the equity of the Trust and will be issued
under the Trust Agreement. The Seller will initially hold Certificates with an
aggregate initial balance of $638,066.84.
THE OWNER TRUSTEE
Bankers Trust (Delaware) is the Owner Trustee under the Trust Agreement
(the "OWNER TRUSTEE"). Bankers Trust (Delaware) is a Delaware banking
corporation and a wholly-owned subsidiary of Bankers Trust Company, a New York
corporation. Its principal offices are located at 1011 Centre Rd., Suite 200,
Wilmington, Delaware 19805.
THE RECEIVABLES POOL
The Receivables to be included in the Receivables Pool related to the Notes
were selected from GMAC's portfolio based on several criteria, including that
each Receivable:
- has a first payment due date on or after April 1, 1998;
- was originated on or after March 1, 1998;
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<PAGE> 17
- has an original term of 10 to 60 months;
- provides for finance charges at an annual percentage rate within the
range specified in the second table below;
- as of August 1, 1999 (the "CUTOFF DATE"), was not more than 29 days past
due; and
- satisfies the other criteria set forth in the Prospectus under "The
Receivables Pools."
Scheduled Interest Receivables represent 34% of the Aggregate Principal
Balance as of the Cutoff Date. The balance of the Receivables are Simple
Interest Receivables. Receivables representing 58% of the Aggregate Principal
Balance as of the Cutoff Date were secured by new vehicles at the time of
origination. The balance of the Receivables was secured by used vehicles at the
time of origination.
The following tables describe the Receivables Pool:
COMPOSITION OF THE RECEIVABLES POOL
<TABLE>
<S> <C>
Weighted Average Annual Percentage Rate of
Receivables(1)................................. 10.48%
Aggregate Amount Financed........................ $2,125,030,066.84
Number of Contracts in Pool...................... 143,941
Average Amount Financed.......................... $14,763.20
Weighted Average Original Maturity (2)........... 55.70 months
Weighted Average Remaining Maturity (Range)...... 51.74 months (6 to 59 months)
</TABLE>
- -------------------------
(1) Based on weighting by current balance and remaining term of each Receivable.
(2) Based on weighting by original principal balance of each Receivable.
DISTRIBUTION BY ANNUAL PERCENTAGE RATE OF THE RECEIVABLES POOL
<TABLE>
<CAPTION>
NUMBER PERCENTAGE OF
ANNUAL PERCENTAGE OF AGGREGATE AGGREGATE AMOUNT
RATE RANGE CONTRACTS AMOUNT FINANCED FINANCED
- ---------------------------------- --------- --------------- ----------------
<S> <C> <C> <C>
6.00% to 7.00%.................... 4,270 $ 73,401,728 3.46%
7.01% to 8.00%.................... 22,969 $ 369,212,206 17.37%
8.01% to 9.00%.................... 30,124 $ 487,127,894 22.92%
9.01% to 10.00%................... 25,194 $ 386,861,239 18.21%
10.01% to 11.00%.................. 13,325 $ 194,963,465 9.18%
11.01% to 12.00%.................. 10,153 $ 141,258,432 6.65%
12.01% to 13.00%.................. 8,794 $ 120,979,530 5.69%
13.01% to 14.00%.................. 5,776 $ 75,949,150 3.57%
14.01% to 15.00%.................. 5,390 $ 67,962,185 3.20%
15.01% to 16.00%.................. 3,639 $ 43,765,792 2.06%
16.01% to 17.00%.................. 3,568 $ 43,428,349 2.04%
17.01% to 18.00%.................. 4,818 $ 58,701,533 2.76%
18.01% to 19.00%.................. 3,111 $ 32,572,384 1.53%
19.01% to 20.00%.................. 2,810 $ 28,846,179 1.36%
------- -------------- -------
Total........................ 143,941 $2,125,030,067 100.00%
</TABLE>
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<PAGE> 18
The Receivables Pool includes Receivables originated in 46 states and the
District of Columbia. The following table sets forth the percentage of the
Aggregate Amount Financed in the states with the largest concentration of
Receivables. No other state accounts for more than 3.2% of the Aggregate Amount
Financed.
<TABLE>
<CAPTION>
PERCENTAGE OF
AGGREGATE
STATE(1) AMOUNT FINANCED
-------- ---------------
<S> <C>
Texas.............................................. 19.64%
California......................................... 10.73
Florida............................................ 5.98
Michigan........................................... 5.04
Georgia............................................ 4.50
Louisiana.......................................... 4.31
</TABLE>
- -------------------------
(1) Based on billing addresses of the obligors on the Receivables.
THE SERVICER
DELINQUENCIES, REPOSSESSIONS AND NET LOSSES
The following table shows GMAC's experience in the United States for (1)
delinquencies on new and used retail car and light truck receivables, (2)
repossessions and (3) net losses relating to GMAC's entire vehicle portfolio
(including receivables previously sold by GMAC which it continues to service).
There can be no assurance that the delinquency, repossession and net loss
experience on the Receivables will be comparable to that set forth below.
<TABLE>
<CAPTION>
SIX MONTHS
ENDED
NEW AND USED JUNE 30 YEAR ENDED DECEMBER 31
VEHICLE CONTRACTS ---------------- -----------------------------
1999 1998 1998 1997 1996 1995
----- ----- ----- ----- ----- -----
<S> <C> <C> <C> <C> <C> <C>
Total Retail Contracts Outstanding
at End of the Period (in
thousands)...................... 3,060 2,985 2,981 2,861 3,005 3,518
Average Daily Delinquency
31-60 Days........................ 2.24% 2.62% 2.66% 3.24% 3.14% 2.75%
61-90 Days........................ 0.15 0.16 0.18 0.23 0.22 0.19
91 Days or More................... 0.02 0.02 0.02 0.03 0.03 0.02
Repossessions as a Percent of
Average Number of Contracts
Outstanding..................... 2.16%(1) 2.54%(1) 2.48% 3.21% 3.59% 3.07%
Net Losses as a Percent of
Liquidations(2)................. 1.12% 1.77% 1.70% 2.30% 2.35% 1.40%
Net Losses as a Percent of Average
Receivables(2).................. 0.60%(1) 0.92%(1) 0.83% 1.31% 1.45% 0.89%
</TABLE>
- -------------------------
(1) Annualized rate.
(2) Percentages based on gross accounts receivable including unearned income.
The net loss figures above reflect the fact that GMAC had recourse against
dealers on a portion of its retail instalment sale contracts. For each period
above, this was less than 1.5% of the portfolio at the end of the period. The
percentage of the Aggregate Amount Financed in
S-15
<PAGE> 19
the Receivables Pool with recourse to dealers is less than 1.0%. GMAC applies
the same underwriting standards to the purchase of contracts without regard to
whether dealer recourse is provided. Based on its experience, GMAC believes that
there is no material difference between the rates of delinquency and
repossession on contracts with recourse against dealers as compared to contracts
without recourse against dealers. However, the net loss experience of contracts
without recourse against dealers is higher than that of contracts with recourse
against dealers because, under its recourse obligation, the dealer is
responsible to GMAC for payment of the unpaid balance of the contract, provided
GMAC retakes the car from the obligor and returns it to the dealer within a
specified time.
THE NOTES
GENERAL
The Notes will be issued pursuant to the terms of an Indenture to be dated
as of the Closing Date between the Trust and the Indenture Trustee (as amended
and supplemented from time to time, the "INDENTURE"), a form of which has been
filed as an exhibit to the Registration Statement of which this Prospectus
Supplement forms a part. A copy of the Indenture will be available to holders of
Notes from the Seller upon request and will be filed with the SEC following the
initial issuance of the Notes. The following summary describes certain terms of
the Notes and the Indenture. The summary does not purport to be complete and is
subject to, and is qualified in its entirety by reference to, all of the
provisions of the Notes, the Indenture and the Prospectus. Where particular
provisions or terms used in the Indenture are referred to, the actual provisions
(including definitions of terms) are incorporated by reference as part of the
summary. The First National Bank of Chicago, a national banking association,
will be the "INDENTURE TRUSTEE."
The Class A Notes. The "INTEREST RATE," the "TARGETED FINAL DISTRIBUTION
DATE" and the "FINAL SCHEDULED DISTRIBUTION DATE" for each class of the Class A
Notes are as set forth on the cover page to this Prospectus Supplement.
The Variable Pay Term Notes. All Variable Pay Term Notes will have the same
Final Scheduled Distribution Date of January 2005. All Variable Pay Term Notes
will bear interest at a floating rate equal to LIBOR plus a margin not to exceed
2.5%, except as described below. For the Variable Pay Term Note issued on the
Closing Date, the Interest Rate per annum will be LIBOR plus %. If the
Interest Rate Swap is terminated, the Interest Rate on the Variable Pay Term
Notes will automatically become fixed at % per annum, which is the fixed
rate payable by the Trust under the Interest Rate Swap. See "--Issuance of
Additional Variable Pay Term Notes" below.
"LIBOR" means, with respect to each Distribution Date other than the
initial Distribution Date, the rate for deposits in U.S. Dollars for a period of
one month which appears on the Dow Jones Telerate Service Page 3750 as of 11:00
a.m., London time, on the day that is two LIBOR Business Days prior to the
preceding Distribution Date and, in the case of the initial Distribution Date,
%. If that rate does not appear on the Dow Jones Telerate Service Page 3750
(or any other page as may replace that page on that service, or if that service
is no longer offered, any other service for displaying LIBOR or comparable rates
as may be selected by the Indenture Trustee after consultation with the Seller),
then LIBOR will be the Reference Bank Rate.
A "LIBOR BUSINESS DAY" means any day other than a Saturday, Sunday or any
other day on which banks in London are required or authorized to be closed.
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<PAGE> 20
The "REFERENCE BANK RATE" for any Distribution Date will be determined on
the basis of the rates at which deposits in U.S. Dollars are offered by the
reference banks (which will be four major banks that are engaged in transactions
in the London interbank market, selected by the Indenture Trustee after
consultation with the Seller) as of 11:00 a.m., London time, on the day that is
two LIBOR Business Days prior to the immediately preceding Distribution Date to
prime banks in the London interbank market for a period of one month, in amounts
approximately equal to the principal amount of the Variable Pay Term Notes then
outstanding. The Indenture Trustee will request the principal London office of
each of the reference banks to provide a quotation of its rate. If at least two
quotations are provided, the rate will be the arithmetic mean of the quotations,
rounded upwards to the nearest one-sixteenth of one percent. If on that date
fewer than two quotations are provided as requested, the rate will be the
arithmetic mean, rounded upwards to the nearest one-sixteenth of one percent, of
the rates quoted by one or more major banks in New York City, selected by the
Indenture Trustee after consultation with the Seller, as of 11:00 a.m., New York
City time, on that date to leading European banks for United States dollar
deposits for a period of one month in amounts approximately equal to the
principal amount of any class of Variable Pay Term Notes then outstanding. If no
quotation can be obtained, then LIBOR will be the rate from the prior
Distribution Date.
PAYMENTS OF INTEREST
Interest on the unpaid principal balance of each class of the Class A Notes
and the Variable Pay Term Notes will accrue at the applicable Interest Rate and
will be paid monthly on each Distribution Date. Interest payments on all Class A
Notes and Variable Pay Term Notes will have the same priority while interest on
the Certificates will not be paid on any Distribution Date until interest on the
Class A Notes and the Variable Pay Term Notes has been paid in full.
Each Distribution Date will be a Payment Date as described in the
Prospectus. "DISTRIBUTION DATE" means the 15th day of each month or, if any such
date is not a Business Day, the next succeeding Business Day, commencing October
15, 1999. A "BUSINESS DAY" is any day other than a Saturday, 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. Interest will accrue on the Class A
Notes from and including the Closing Date. For each class of the Class A Notes
and the Variable Pay Term Notes, interest will be payable on each Distribution
Date in an amount equal to the Noteholders' Interest Distributable Amount for
that Distribution Date. Interest on the Class A-1 Notes and the Variable Pay
Term Notes will be calculated on the basis of actual days elapsed during the
period for which interest is payable and a 360-day year. Interest on all other
Class A Notes will be calculated on the basis of a 360-day year consisting of
twelve 30-day months. Failure to pay the full Noteholders' Interest
Distributable Amount on any class of Notes on any Distribution Date will
constitute an Event of Default under the Indenture after a five-day grace
period.
PAYMENTS OF PRINCIPAL
In general, no payments will be made on any class of the Class A Notes
until its Targeted Final Distribution Date. On the Targeted Final Distribution
Date for each class of Class A Notes, the Trust will pay, to the extent of
available funds, the entire outstanding principal balance of that class of Class
A Notes. Amounts available to pay principal on the Notes on each Distribution
Date that is not a Targeted Final Distribution Date will be applied to make
principal payments on the Variable Pay Term Notes to the extent of the
outstanding principal
S-17
<PAGE> 21
balance of the Variable Pay Term Notes. If and to the extent the amount
available to pay principal on the Notes exceeds the outstanding principal
balance of the Variable Pay Term Notes, this excess will be deposited into an
account which we refer to as the "ACCUMULATION ACCOUNT." Amounts on deposit in
the Accumulation Account will be available on the next succeeding Targeted Final
Distribution Date to pay principal on the Class A Notes. The Accumulation
Account will be a Designated Account.
If any class of Class A Notes is not paid in full on its Targeted Final
Distribution Date, on each Distribution Date thereafter, until that class of
Class A Notes is paid in full, amounts available to make principal payments on
the Notes will be applied to that class of Class A Notes and the Variable Pay
Term Notes pro rata based on their outstanding principal balances. If on two
consecutive Targeted Final Distribution Dates the corresponding targeted classes
of Class A Notes are not paid in full or in the event the Interest Rate Swap is
terminated, on each Distribution Date thereafter, amounts available to make
principal payments on the Notes will be applied to the Class A Notes and the
Variable Pay Term Notes pro rata. In such event, payments on the Class A Notes
will be made sequentially, such that no principal payments will be made on any
class of Class A Notes until all Class A Notes with a lower numerical
designation have been paid in full. Thus, in such event, on each Distribution
Date, the Class A Notes would be paid as follows:
- First, the Class A-1 Notes until paid in full,
- Second, the Class A-2 Notes until paid in full,
- Third, the Class A-3 Notes until paid in full,
- Fourth, the Class A-4 Notes until paid in full, and
- Fifth, the Class A-5 Notes until paid in full.
It is unlikely that there will be sufficient funds to pay a class of Class
A Notes on its Targeted Final Distribution Date if the Trust is not able to
generate sufficient proceeds from the sale of additional Variable Pay Term Notes
on that Targeted Final Distribution Date. See "--Issuance of Additional Variable
Pay Term Notes" below.
Except as provided below, principal payments to be made on the Variable Pay
Term Notes will be applied to the Variable Pay Term Notes in the order in which
they were issued, such that the earliest issued Variable Pay Term Notes will be
paid in full before any principal payments are made on later issued Variable Pay
Term Notes.
Notwithstanding the above, at any time that the principal balance of the
Class A Notes and the Variable Pay Term Notes has been declared due and payable
following the occurrence of an Event of Default, principal payments on each
class of the Class A Notes and the Variable Pay Term Notes will be made ratably
to all Noteholders on each Distribution Date, based on the outstanding principal
balance of that class of Notes until all Events of Default have been cured or
waived as provided in the Indenture.
Although failure to pay the full principal amount of a class of Notes on
the applicable Final Scheduled Distribution Date will be an Event of Default,
failure to pay a class of Notes on the applicable Targeted Final Distribution
Date will not result in an Event of Default.
REDEMPTION
If the Servicer exercises its option to purchase the Receivables when the
Aggregate Principal Balance of the Receivables on the last day of any Monthly
Period has declined to 10% or less of the Aggregate Amount Financed, then the
outstanding Class A-5 Notes, if any, and the Variable Pay Term Notes will be
redeemed in whole, but not in part, on the
S-18
<PAGE> 22
Distribution Date on which the Servicer exercises this option. The Servicer's
option is described in the Prospectus under "The Transfer and Servicing
Agreements--Termination." The redemption price will be equal to the unpaid
principal amount of the Class A-5 Notes and the Variable Pay Term Notes, plus
accrued and unpaid interest thereon.
ISSUANCE OF ADDITIONAL VARIABLE PAY TERM NOTES
On the Closing Date, the Trust will issue a Variable Pay Term Note in an
initial principal amount of $481,000,000.00. The Trust will be able to issue
additional Variable Pay Term Notes on the Targeted Final Distribution Date for
each class of the Class A Notes and use the proceeds to make payments of
principal on that Targeted Final Distribution Date. Additional Variable Pay Term
Notes issued after the Closing Date will have an Interest Rate equal to LIBOR
plus a margin; provided, however, that in no event will such margin over LIBOR
exceed 2.5%, subject to adjustment to a fixed rate as described above. The
Interest Rate will be determined at the time of issuance and will reflect then
current market conditions. The Variable Pay Term Notes issued on each Targeted
Final Distribution Date will constitute a separate class of Variable Pay Term
Notes.
The Trust may issue Variable Pay Term Notes on any Targeted Final
Distribution Date only if all of the following conditions are satisfied:
- after giving effect to the issuance of such Variable Pay Term Notes and
all payments of principal on the Notes and payments with respect to the
Certificate Balance on that Targeted Final Distribution Date, the sum of
the outstanding principal balance of the Notes plus the Certificate
Balance cannot exceed the Aggregate Principal Balance of the Receivables
on the last day of the month immediately preceding that Targeted Final
Distribution Date;
- the Interest Rate Swap must be in full force and effect, and
- no Event of Default under the Indenture shall have occurred and be
continuing.
The Variable Pay Term Notes are not being offered hereby. A 100%
participation interest in the initial Variable Pay Term Note will be sold in a
private placement. Subject to the conditions set forth above, the Seller will
agree to offer to a commercial paper facility administered by GMAC the right to
purchase a 100% participation interest in the Variable Pay Term Notes that may
be issued on the Targeted Final Distribution Date for a class of Class A Notes
such that the Total Note Principal Payment Amount will be sufficient to pay such
class of Class A Notes in full on such Targeted Final Distribution Date.
However, neither that commercial paper facility nor any other person or entity
is obligated to purchase an interest in any Variable Pay Term Notes and neither
the Seller, the Servicer nor any other person or entity is obligated to identify
any other prospective purchasers. As a result, we cannot assure that any
additional Variable Pay Term Notes will be sold or that the proceeds from any
sale of Variable Pay Term Notes will be sufficient to pay a class of Class A
Notes in full on its Targeted Final Distribution Date. See "Risk
Factors--Failure to Sell Additional Variable Pay Term Notes Will Result in Class
A Notes Not Being Paid In Full on Their Targeted Final Distribution Dates."
If, on a Targeted Final Distribution Date for any class of Class A Notes,
the Seller has a binding agreement for the sale of an interest in the Variable
Pay Term Notes but the Servicer determines that the proceeds from that sale will
not be received on that Targeted Final Distribution Date in time to make
payments on the Notes on that Targeted Final Distribution Date, the Servicer
may, in its sole discretion, make a liquidity advance to the Trust in an amount
equal to these proceeds if it determines, in its sole discretion, that it has
received
S-19
<PAGE> 23
reasonable assurances from the purchaser of an interest in the Variable Pay Term
Notes to the effect that the full amount of the proceeds will be delivered to
the Trust later on that Targeted Final Distribution Date or within two Business
Days thereafter. If the Servicer makes a liquidity advance (a "SERVICER
LIQUIDITY ADVANCE"), it will be immediately reimbursed for the advance upon
receipt by the Trust of the purchase price for the additional Variable Pay Term
Notes or an interest therein. If the purchase price for the interest in the
additional Variable Pay Term Notes is not paid within two Business Days after
the Targeted Final Distribution Date, the Servicer will have the right to be
reimbursed out of collections on the Receivables as and when received.
PARITY OF NOTES
Interest payments on all classes of Class A Notes and Variable Pay Term
Notes will have the same priority. Under certain circumstances, the amount
available to make these payments could be less than the amount of interest
payable on the Notes on any Distribution Date, in which case each class of
Noteholders will receive their ratable share (based upon the aggregate amount of
interest due to that class of Noteholders on such Distribution Date) of the
aggregate amount available to be distributed in respect of interest on the
Notes. See "The Transfer and Servicing Agreements--Distributions" and "--Reserve
Account."
Principal payments on the Notes will be made as described above. If an
Event of Default occurs as a result of which the principal balances of the Class
A Notes and the Variable Pay Term Notes are declared immediately due and
payable, each class of Notes will be entitled to ratable repayment of principal
on each Distribution Date, based on the outstanding principal balance of the
Notes until all Events of Default have been cured or waived as provided in the
Indenture.
ADDITIONAL INDENTURE MATTERS
As set forth in the Prospectus under the caption "The Notes--The
Indenture--Events of Default; Rights Upon Event of Default," the Indenture
Trustee may sell the Trust's assets following an Event of Default only if
certain conditions are satisfied. With respect to an Event of Default resulting
from a breach by the Trust of the covenants in the Indenture, the consent from
the holders of all the outstanding Notes must be accompanied by the consent of
the holders of all the outstanding Certificates.
DELIVERY OF NOTES
The Class A Notes will be issued on or about the Closing Date in book entry
form through the facilities of the DTC, Cedelbank and the Euroclear System
against payment in immediately available funds. DTC has informed its
participants and other members of the financial community that it has developed
and is implementing a program to deal with the "Year 2000 problem" so that its
systems, as the same relate to the timely payment of distributions (including
principal and income payments) to securityholders, book-entry deliveries, and
settlement of trades with DTC, continue to function appropriately.
S-20
<PAGE> 24
THE CERTIFICATES
GENERAL
The Trust will issue the Certificates pursuant to the terms of a Trust
Agreement, a form of which the Seller has filed as an exhibit to the
Registration Statement of which this Prospectus Supplement forms a part. A copy
of the Trust Agreement will be available to holders of Certificates from the
Seller upon request and will be filed with the SEC following the initial
issuance of the Notes and the Certificates. The following summary describes
certain terms of the Certificates and the Trust Agreement. The summary does not
purport to be complete and is subject to, and qualified in its entirety by
reference to, all of the provisions of the Certificates, the Trust Agreement and
the Prospectus. Where particular provisions or terms used in the Trust Agreement
are referred to, the actual provisions (including definitions of terms) are
incorporated by reference as part of such summary.
INTEREST
On each Distribution Date, interest will be distributed to
Certificateholders at the Pass Through Rate with respect to the Certificate
Balance. Any Certificateholders' Interest Distributable Amount with respect to a
Distribution Date which is not distributed on such Distribution Date will be
distributed on the next Distribution Date. Interest will accrue from and
including the Closing Date and will be payable on each Distribution Date in an
amount equal to the Certificateholders' Interest Distributable Amount for that
Distribution Date. Interest with respect to the Certificates will be calculated
on the basis of a 360-day year consisting of twelve 30-day months.
CERTIFICATE BALANCE
On each Distribution Date, the Certificateholders' Percentage of the
Principal Distributable Amount will be available to make distributions with
respect to Certificate Balance. The Final Scheduled Distribution Date for the
Certificates will occur on the January 2005 Distribution Date.
SUBORDINATION TO THE NOTES
Notwithstanding the above, if an Event of Default occurs, and the Notes are
accelerated, no payments of interest on the Certificates or distributions with
respect to Certificate Balance will be made until the Notes are paid in full or
the acceleration is rescinded. In this event, amounts otherwise available to
make payments on the Certificates will be available to make payments on the
Notes. See "The Transfer and Servicing Agreements--Distributions" in this
Prospectus Supplement.
EARLY RETIREMENT OF THE CERTIFICATES
If the Servicer exercises its option to purchase the Receivables when the
Aggregate Principal Balance declines to 10% or less of the Aggregate Amount
Financed, Certificateholders will receive an amount in respect of the
Certificates equal to the Certificate Balance together with accrued interest at
the Pass Through Rate. This distribution will effect early retirement of the
Certificates. See "The Transfer and Servicing Agreements--Termination" in the
Prospectus.
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<PAGE> 25
THE TRANSFER AND SERVICING AGREEMENTS
The parties will enter into the Transfer and Servicing Agreements, as of
the Closing Date. See "The Transfer and Servicing Agreements" in the Prospectus.
The following summary describes certain terms of the Transfer and Servicing
Agreements. The Seller has filed forms of the Transfer and Servicing Agreements
as exhibits to the Registration Statement of which this Prospectus Supplement
forms a part. A copy of the Transfer and Servicing Agreements will be available
to holders of Notes from the Seller upon request. The summary does not purport
to be complete and is subject to, and qualified in its entirety by reference to,
all of the provisions of the Transfer and Servicing Agreements and the
Prospectus. Where particular provisions or terms used in the Transfer and
Servicing Agreements are referred to, the actual provisions (including
definitions of terms) are incorporated by reference as part of such summary.
SERVICING COMPENSATION AND PAYMENT OF EXPENSES
On each Distribution Date, the Servicer will be entitled to receive the
Total Servicing Fee, which consists of the Basic Servicing Fee for the prior
month, unpaid Basic Servicing Fees from prior Distribution Dates and the
Additional Servicing Fee for the prior month. In addition, the Servicer will
receive any Supplemental Servicing Fees and Investment Earnings. The "BASIC
SERVICING FEE RATE" will be 1%.
DISTRIBUTIONS
On or before each Distribution Date, the Servicer will transfer all
collections on the Receivables for the prior month (and, for the initial
Distribution Date, two months preceding such Distribution Date) and all
Prepayments to the Collection Account. On each Distribution Date, the Indenture
Trustee will cause collections made during the prior month which constitute
Payments Ahead to be transferred from the Collection Account to the Servicer or
to the Payment Ahead Servicing Account, if required.
The Indenture Trustee will make distributions to the Note Distribution
Account and the Certificate Distribution Account out of the amounts on deposit
in the Collection Account. The amount to be distributed to the Note Distribution
Account and Certificate Distribution Account will be determined in the manner
described below.
Determination of Available Amounts. The "TOTAL AVAILABLE AMOUNT" for a
Distribution Date will be the sum of the Available Interest and the Available
Principal, and all cash or other immediately available funds on deposit in the
Reserve Account immediately prior to such Distribution Date plus (1) on the
Targeted Final Distribution Date for any class of Class A Notes, any Variable
Pay Term Notes Issuance Proceeds and the Accumulation Amount and (2) on the
first Distribution Date after the Notes have been declared due and payable
following the occurrence of an Event of Default and on the first Distribution
Date after the termination of the Interest Rate Swap, the Accumulation Amount.
"AVAILABLE INTEREST" for a Distribution Date means the sum, with
respect to the related Monthly Period of: (1) that portion of all
collections on the 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 existing
Payments Ahead being applied in such Monthly Period but excluding Excess
Payments made during such Monthly Period that are treated as Payments
Ahead), (2) proceeds ("LIQUIDATION PROCEEDS") of the liquidation of
defaulted Receivables
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("LIQUIDATING RECEIVABLES"), to the extent allocable to interest in
accordance with the Servicer's customary servicing procedures, (3) all
Simple Interest Advances, (4) all Scheduled Interest Advances to the extent
allocable to interest, (5) the net amount paid by the Swap Counterparty, if
any, to the Trust pursuant to the Interest Rate Swap, and (6) 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 thereon.
"AVAILABLE PRINCIPAL" for a Distribution Date means the sum, with
respect to the related Monthly Period of: (1) that portion of all
collections on the Receivables held by the Trust (other than Liquidating
Receivables) allocable to principal (including, in the case of Scheduled
Interest Receivables, the principal portion of Prepayments and existing
Payments Ahead being applied in such Monthly Period but excluding Excess
Payments made during such Monthly Period that are treated as Payments
Ahead), (2) Liquidation Proceeds to the extent allocable to principal in
accordance with the Servicer's customary servicing procedures, (3) all
Scheduled Interest Advances to the extent allocable to principal, and (4)
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 the related Monthly Period.
The Available Interest and the Available Principal on any Distribution Date
will exclude: (1) any Excess Simple Interest Collections, (2) amounts received
on any Scheduled Interest Receivable (other than a Liquidating Receivable) to
the extent that the Servicer has previously made an unreimbursed Scheduled
Interest Advance, (3) Liquidation Proceeds with respect to Simple Interest
Receivables paid to the Servicer to reimburse outstanding Simple Interest
Advances as described in the Prospectus under "The Transfer and Servicing
Agreements--Monthly Advances," (4) Liquidation Proceeds with respect to
Scheduled Interest Receivables to the extent of any unreimbursed Scheduled
Interest Advances, and (5) amounts representing reimbursement for certain
Liquidation Expenses. For purposes of the definitions of Available Interest and
Available Principal, references to the related Monthly Period shall include, for
the initial Distribution Date, the two Monthly Periods preceding such
Distribution Date.
Monthly Withdrawals and Deposits. On or before the tenth day of each
calendar month, or if that day is not a Business Day, the next succeeding
Business Day, with respect to the prior month and the related Distribution Date,
the Servicer will calculate the Total Available Amount, the Available Interest,
the Available Principal, any expected Variable Pay Term Notes Issuance Proceeds,
the Accumulation Amount, the Total Servicing Fee, the Total Note Principal
Payment Amount, the Aggregate Noteholders' Interest Distributable Amount, the
Aggregate Noteholders' Principal Distributable Amount, the Certificateholders'
Interest Distributable Amount, the Certificateholders' Principal Distributable
Amount, the net amount, if any, payable by the Trust under the Interest Rate
Swap and certain other items. Based on these calculations, the Servicer will
deliver to the Indenture Trustee a certificate specifying such amounts and
instructing the Indenture Trustee to make withdrawals, deposits and payments of
the following amounts on such Distribution Date:
(1) the amount, if any, to be withdrawn from the Reserve Account and
deposited in the Collection Account;
(2) the amount to be withdrawn from the Collection Account and paid to
the Servicer in respect of the Total Servicing Fee for such Distribution
Date and the net
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amount, if any, to be paid under the Interest Rate Swap to the Swap
Counterparty for such Distribution Date;
(3) the amounts to be withdrawn from the Collection Account in respect
of the Aggregate Noteholders' Interest Distributable Amount and the
Aggregate Noteholders' Principal Distributable Amount and deposited in the
Note Distribution Account for payment to Noteholders on such Distribution
Date;
(4) the amounts to be withdrawn from the Collection Account in respect
of the Certificateholders' Interest Distributable Amount and the
Certificateholders' Principal Distributable Amount and deposited in the
Certificate Distribution Account for distribution to Certificateholders on
such Distribution Date;
(5) the amount, if any, to be withdrawn from the Collection Account
and deposited in the Reserve Account;
(6) the amount, if any, to be withdrawn from the Reserve Account and
paid to the Seller;
(7) the amount, if any, to be withdrawn from the Collection Account
and deposited in the Accumulation Account; and
(8) the amount, if any, to be withdrawn from the Accumulation Account
and deposited in the Collection Account.
The amount, if any, to be withdrawn from the Reserve Account and deposited
to the Collection Account as specified in clause (1) above with respect to any
Distribution Date will be the lesser of (x) the amount of cash or other
immediately available funds therein on such Distribution Date and (y) the
amount, if any, by which (a) the sum of the Total Servicing Fee, the Aggregate
Noteholders' Interest Distributable Amount, the Certificateholders' Interest
Distributable Amount, the Aggregate Noteholders' Principal Distributable Amount,
the net amount, if any, payable by the Trust under the Interest Rate Swap and
the Certificateholders' Principal Distributable Amount exceeds (b) the Available
Interest and the Available Principal for such Distribution Date.
The amount, if any, to be withdrawn from the Collection Account and
deposited in the Reserve Account as specified in clause (5) above with respect
to any Distribution Date will equal the amount, if any, by which (x) the
Available Interest and the Available Principal for such Distribution Date
exceeds (y) the amount described in subclause (a) of clause (y) of the preceding
paragraph.
The amount, if any, to be withdrawn from the Reserve Account and paid to
the Seller as specified in clause (6) above with respect to any Distribution
Date will equal the amount, if any, by which the amount on deposit in the
Reserve Account after all other deposits (including the deposit pursuant to
clause (5) above) and withdrawals on such Distribution Date exceeds the
Specified Reserve Account Balance for such date.
The amount, if any, to be withdrawn from the Collection Account and
deposited in the Accumulation Account as specified in clause (7) above with
respect to any Distribution Date that is not a Targeted Final Distribution Date
for a class of Class A Notes will be, except as described in the following
sentence, the amount, if any, by which (x) the Noteholders' Percentage of the
Principal Distributable Amount for that Distribution Date exceeds (y) the
outstanding principal balance of the Variable Pay Term Notes as of the open of
business on that Distribution Date. No funds will be withdrawn from the
Collection Account and
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deposited in the Accumulation Account on any Distribution Date that is a
Targeted Final Distribution Date for a class of Class A Notes, any Distribution
Date during a Sequential Amortization Period or any Distribution Date after the
Notes have been accelerated following the occurrence of an Event of Default
until all Events of Default have been cured or waived as provided in the
Indenture.
The amount, if any, to be withdrawn from the Accumulation Account and
deposited in the Collection Account as specified in clause (8) above will be the
Accumulation Amount, if any, (a) on each Distribution Date that is a Targeted
Final Distribution Date for a class of Class A Notes, (b) on the first
Distribution Date during a Sequential Amortization Period, or (c) on the first
Distribution Date after the Notes have been declared due and payable following
the occurrence of an Event of Default. In all other cases, no amounts will be
transferred from the Accumulation Account to the Collection Account.
On each Distribution Date, all amounts on deposit in the Note Distribution
Account will be distributed to the Noteholders and all amounts on deposit in the
Certificate Distribution Account will be distributed to the Certificateholders,
in each case as described herein.
Priorities for Withdrawals from Collection Account. Withdrawals of funds
from the Collection Account on a Distribution Date for application as described
in clauses (2), (3) and (4) under "--Distributions--Monthly Withdrawals and
Deposits" above will be made only to the extent of the Total Available Amount
allocated to such application for such Distribution Date. In calculating the
amounts which can be withdrawn from the Collection Account and applied as
specified in such clauses (2), (3) and (4), the Servicer will allocate the Total
Available Amount in the following order of priority:
(1) the Total Servicing Fee;
(2) the net amount, if any, to be paid under the Interest Rate Swap to
the Swap Counterparty;
(3) the Aggregate Noteholders' Interest Distributable Amount;
(4) the Certificateholders' Interest Distributable Amount;
(5) the Aggregate Noteholders' Principal Distributable Amount; and
(6) the Certificateholders' Principal Distributable Amount.
Notwithstanding the foregoing, at any time that all classes of Notes have
not been paid in full and the principal balance of the Notes has been declared
due and payable following the occurrence of an Event of Default under the
Indenture, until the time when the Notes have been paid in full or the
declaration has been rescinded and any continuing Events of Default have been
cured or waived pursuant to the Indenture, no amounts will be deposited in or
distributed to the Certificate Distribution Account. Any such amounts otherwise
distributable to the Certificate Distribution Account will be deposited instead
into the Note Distribution Account for payments on the Notes as described
herein.
Certain Defined Terms. As used in this Prospectus Supplement, the following
terms have the meanings set forth below.
"ACCUMULATION AMOUNT" means, for any Distribution Date, the aggregate
amount deposited into the Accumulation Account prior to such Distribution Date
and not previously applied to make payments on the Notes. On any Distribution
Date which is a Targeted Final Distribution Date for a class of Class A Notes,
except during a Sequential Amortization
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Period or after the Notes have been declared due and payable following an Event
of Default until all Events of Default have been cured or waived as provided in
the Indenture, the Accumulation Amount, together with the Noteholders'
Percentage of the Principal Distributable Amount for such Distribution Date and
the expected Variable Pay Term Notes Issuance Proceeds, may not exceed the
outstanding principal balance of that class of Class A Notes and the Variable
Pay Term Notes as of the opening of business on that Distribution Date.
"AGGREGATE NOTEHOLDERS' INTEREST DISTRIBUTABLE AMOUNT" means, with respect
to any Distribution Date, the sum of (1) the Noteholders' Interest Distributable
Amounts for all classes of Notes and (2) the Noteholders' Interest Carryover
Shortfall as of the preceding Distribution Date.
"AGGREGATE NOTEHOLDERS' PRINCIPAL DISTRIBUTABLE AMOUNT" means, with respect
to any Distribution Date the sum of the (1) Noteholders' Principal Distributable
Amounts for all classes of Notes and (2) the Noteholders' Principal Carryover
Shortfall as of the preceding Distribution Date.
"CERTIFICATE BALANCE" means, initially, $63,751,066.84 and, on any
Distribution Date thereafter, will equal the initial Certificate Balance,
reduced by (1) all distributions in respect of Certificate Balance actually made
on or prior to such date to Certificateholders, (2) the Noteholders' Principal
Carryover Shortfall as of the close of the preceding Distribution Date and (3)
the Certificateholders' Principal Carryover Shortfall as of the close of the
preceding Distribution Date.
"CERTIFICATEHOLDERS' INTEREST CARRYOVER SHORTFALL" means, as of the close
of any Distribution Date, the excess of the Certificateholders' Interest
Distributable Amount for such Distribution Date over the amount that was
actually deposited in the Certificate Distribution Account on such Distribution
Date in respect of interest on the Certificates.
"CERTIFICATEHOLDERS' INTEREST DISTRIBUTABLE AMOUNT" means, with respect to
any Distribution Date, the sum of (1) the Certificateholders' Monthly Interest
Distributable Amount for such Distribution Date and (2) the Certificateholders'
Interest Carryover Shortfall as of the close of the preceding Distribution Date.
"CERTIFICATEHOLDERS' MONTHLY INTEREST DISTRIBUTABLE AMOUNT" means, with
respect to any Distribution Date, interest equal to one-twelfth of the Pass
Through Rate multiplied by the Certificate Balance as of the close of the
preceding Distribution Date (or, in the case of the first Distribution Date,
interest at the Pass Through Rate multiplied by a fraction, the numerator of
which is and the denominator of which is 360 multiplied by the
initial Certificate Balance).
"CERTIFICATEHOLDERS' PERCENTAGE" means, with respect to any Distribution
Date, 100% minus the Noteholders' Percentage.
"CERTIFICATEHOLDERS' PRINCIPAL CARRYOVER SHORTFALL" means, as of the close
of any Distribution Date, the excess of the Certificateholders' Principal
Distributable Amount for such Distribution Date over 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" means, with respect to
any Distribution Date, the sum of (a) the lesser of (1) the Certificateholders'
Percentage of the Principal Distributable Amount and (2) the Certificate Balance
plus (b) any outstanding
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Certificateholders' Principal Carryover Shortfall as of the close of the
preceding Distribution Date.
"CLASS A PERCENTAGE" means, for a Distribution Date, the percentage equal
to a fraction, the numerator of which is the outstanding principal balance of
the Class A Notes and the denominator of which is the sum of the outstanding
principal balance of the Class A Notes plus the outstanding principal balance of
the Variable Pay Term Notes, in each case at the close of the immediately
preceding Distribution Date (or, in the case of the first Distribution Date, the
Closing Date).
"INITIAL AGGREGATE PRINCIPAL BALANCE" means $2,125,030,066.84.
"NOTEHOLDERS' INTEREST CARRYOVER SHORTFALL" means, as of the close of any
Distribution Date, the excess of the Aggregate Noteholders' Interest
Distributable Amount for such Distribution Date over the amount that was
actually deposited in the Note Distribution Account on such Distribution Date in
respect of interest.
"NOTEHOLDERS' INTEREST DISTRIBUTABLE AMOUNT" means, with respect to any
class of Notes and any Distribution Date, the product of (1) 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 (2) in the case of (a)
the Class A-2 Notes, the Class A-3 Notes, the Class A-4 Notes and the Class A-5
Notes, one-twelfth of the Interest Rate for such class (or, in the case of the
first Distribution Date, the Interest Rate for such class multiplied by a
fraction, the numerator of which is and the denominator of which
is 360) and (b) the Class A-1 Notes and each class of the Variable Pay Term
Notes, the product of the Interest Rate for such class for such Distribution
Date and a fraction, the numerator of which is the number of days elapsed from
and including the prior Distribution Date (or, in the case of the first
Distribution Date, from and including the Closing Date), to but excluding that
Distribution Date and the denominator of which is 360.
"NOTEHOLDERS' PERCENTAGE" means, as of any Distribution Date, the
percentage equal to a fraction, the numerator of which is the outstanding
principal balance of the Notes and the denominator of which is the sum of the
outstanding principal balance of the Notes and the Certificate Balance, in each
case as of the close of the preceding Distribution Date.
"NOTEHOLDERS' PRINCIPAL CARRYOVER SHORTFALL" means, as of the close of any
Distribution Date, the excess of the Aggregate Noteholders' Principal
Distributable Amount for such Distribution Date over the amount that was
actually deposited in the Note Distribution Account on such current Distribution
Date in respect of principal.
"NOTEHOLDERS' PRINCIPAL DISTRIBUTABLE AMOUNT" means:
For the Class A Notes,
- Except during a Sequential Amortization Period:
- For a class of Class A Notes on its Targeted Final Distribution
Date, the Noteholders' Principal Distributable Amount for that
class of Class A Notes is the lesser of
- the outstanding principal balance of that class as of the
close of the immediately preceding Distribution Date and
- the Total Note Principal Payment Amount.
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- If the Distribution Date is not a Targeted Final Distribution
Date for any class of Class A Notes, the Noteholders' Principal
Distributable Amount for a class of Class A Notes is zero.
- During a Sequential Amortization Period, the Noteholders' Principal
Distributable Amount for a Distribution Date for a class of Class A
Notes is the lesser of
- the outstanding principal balance of that class as of the close
of the immediately preceding Distribution Date and
- the remainder of
- the Class A Percentage of the Noteholders' Principal
Distributable Amount minus
- the outstanding principal balance for each class of Class A
Notes with a lower numerical designation as of the close of
the immediately preceding Distribution Date.
For the Variable Pay Term Notes,
- Except during a Sequential Amortization Period:
- If the Distribution Date is a Targeted Final Distribution Date
for a class of Class A Notes, the Noteholders' Principal
Distributable Amount for the Variable Pay Term Notes is the
remainder of
- the Total Note Principal Payment Amount minus the
Noteholders' Principal Distributable Amount for that class
of Class A Notes on that Distribution Date determined as
described above.
- If the Distribution Date is not a Targeted Final Distribution
Date for a class of Class A Notes, the Noteholders' Principal
Distributable Amount for the Variable Pay Term Notes is the
lesser of
- the outstanding principal balance of the Variable Pay Term
Notes as of the close of the immediately preceding
Distribution Date and
- the Noteholders' Percentage of the Principal Distributable
Amount for that Distribution Date.
- During a Sequential Amortization Period, the Noteholders' Principal
Distributable Amount for the Variable Pay Term Notes on a Distribution
Date is the lesser of
- the outstanding principal balance of the Variable Pay Term Notes
as of the close of the immediately preceding Distribution Date
and
- the Variable Pay Term Percentage of the Noteholders' Percentage
of the Principal Distributable Amount.
Notwithstanding the foregoing, on the Final Scheduled Distribution Date for
any class of Class A Notes or Variable Pay Term Notes, the Noteholders'
Principal Distributable Amount for that class will equal the outstanding
principal balance of that class as of the close of the immediately
preceding Distribution Date.
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"PASS THROUGH RATE" means, with respect to the Certificates,
per annum.
"PRINCIPAL DISTRIBUTABLE AMOUNT" means, with respect to any Distribution
Date, the sum of (1) the principal portion of all Scheduled Payments due with
respect to the related Monthly Period on Scheduled Interest Receivables held by
the Trust (other than Liquidating Receivables) and the principal portion of all
payments received by the Trust during the related Monthly Period on Simple
Interest Receivables held by the Trust (other than Liquidating Receivables), (2)
the principal portion of all Prepayments received during the related Monthly
Period (except to the extent included in (1) above) and (3) the Principal
Balance of each Receivable that the Servicer became obligated or elected to
purchase, the Seller became obligated to repurchase or that became a Liquidating
Receivable during the related Monthly Period (except to the extent included in
(1) or (2) above). For purposes of the foregoing, references to the related
Monthly Period shall include, for the initial Distribution Date, the two Monthly
Periods preceding such Distribution Date.
"SEQUENTIAL AMORTIZATION COMMENCEMENT DATE" means (1) the Targeted Final
Distribution Date for a class of Class A Notes if the principal amount of that
class is not paid in full on that Targeted Final Distribution Date, unless that
Targeted Final Distribution Date occurs during a Sequential Amortization Period,
or (2) the first Distribution Date following the date on which the Interest Rate
Swap is terminated.
"SEQUENTIAL AMORTIZATION PERIOD" means the period commencing on a
Sequential Amortization Commencement Date and, if such Sequential Amortization
Commencement Date occurred as a result of the failure to pay a class of Class A
Notes in full on its Targeted Final Distribution Date, ending on the
Distribution Date on which such class of Class A Notes is paid in full so long
as such Distribution Date occurs prior to the Targeted Final Distribution Date
for the class of Class A Notes with the next highest numerical designation;
provided that a Sequential Amortization Period shall not so terminate if the
failure to so pay a class of Class A Notes in full on its Targeted Final
Distribution Date follows a failure to pay the class of Class A Notes with the
next lowest numerical designation on its Targeted Final Distribution Date.
"TOTAL NOTE PRINCIPAL PAYMENT AMOUNT" means, for any Distribution Date, the
sum of
- the Noteholders' Percentage of the Principal Distributable Amount plus
- the Variable Pay Term Notes Issuance Proceeds plus
- the Accumulation Amount.
"VARIABLE PAY TERM NOTES ISSUANCE PROCEEDS" means, for any Distribution
Date, the proceeds to the Trust from the issuance of Variable Pay Term Notes on
that Distribution Date.
"VARIABLE PAY TERM PERCENTAGE" means, for any Distribution Date, 100% minus
the Class A Percentage for that Distribution Date.
RESERVE ACCOUNT
Pursuant to the Trust Sale and Servicing Agreement, the Trust will
establish the Reserve Account with the Indenture Trustee. The Reserve Account
will be funded by an initial deposit by the Seller on the Closing Date of
$53,125,751.67, which equals 2.5% of the Initial Aggregate Principal Balance. On
each Distribution Date, amounts in the Reserve Account will be available to make
payments on the Notes and the Certificates as described above under "The
Distributions--Monthly Withdrawals and Deposits."
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If the amount on deposit in the Reserve Account on any Distribution Date,
after giving effect to all other deposits, including the deposit described in
clause (5) under "The Distributions--Monthly Withdrawals and Deposits", and
withdrawals therefrom on such Distribution Date, is greater than the Specified
Reserve Account Balance for such Distribution Date, the Servicer will instruct
the Indenture Trustee to distribute the amount of the excess to the Seller. Upon
any distribution to the Seller of amounts from the Reserve Account, neither the
Noteholders nor the Certificateholders will have any rights in, or claims to,
such amounts.
"SPECIFIED RESERVE ACCOUNT BALANCE". With respect to any Distribution Date,
means the sum of
- the greater of
- 3.5% of the outstanding principal balance of the Notes and the
Certificates as of the close of business on such Distribution
Date (after giving effect to all payments and distributions to be
made on such Distribution Date); and
- $15,937,725.50,
- but in no event more than the outstanding principal balance of
the Notes and the Certificates as of the close of business on
such Distribution Date (after giving effect to all payments and
distributions to be made on such Distribution Date);
plus, in each case, if a deposit is to be made into the Accumulation
Account on such Distribution Date or was made on any prior Distribution
Date, an amount equal to the product of
- the Accumulation Amount on such Distribution Date (after giving
effect to all deposits and withdrawals from the Accumulation Account
on such Distribution Date)
multiplied by
- the number of Distribution Dates after such Distribution Date
through and including the next Distribution Date that is a Targeted
Final Distribution Date for any class of Class A Notes divided by 12
multiplied by
- LIBOR for such Distribution Date minus 2.5%.
INTEREST RATE SWAP
On the Closing Date, the Trust will enter into an Interest Rate Swap with
General Re Financial Products Corporation, as the Swap Counterparty. The
obligations of the Swap Counterparty under the Interest Rate Swap will be
guaranteed by General Re Corporation, as the Swap Counterparty Guarantor. As of
the date hereof, the long-term debt obligations of the Swap Counterparty
Guarantor are rated "AAA" by Standard & Poor's Ratings Services and "Aa1" by
Moody's Investors Service, Inc.
Under the Interest Rate Swap, the Trust will receive payments at a rate
determined by reference to LIBOR, which is the basis for determining the amount
of interest due on the Variable Pay Term Notes. Under the Interest Rate Swap,
with respect to each Distribution
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Date, (1) the Trust will be obligated to pay to the Swap Counterparty a fixed
monthly interest rate of % on a notional amount equal to the outstanding
principal balance on the Variable Pay Term Notes and (2) the Swap Counterparty
will be obligated to pay to the Trust a floating interest rate of LIBOR plus
% on a notional amount equal to the outstanding principal balance on the
Variable Pay Term Notes.
With respect to each Distribution Date, the amount the Trust is obligated
to pay will be netted against the amount the Swap Counterparty is obligated to
pay under the Interest Rate Swap. Only the net amount will be due from the Trust
or the Swap Counterparty, as applicable.
Upon the occurrence of the events of default and termination events
specified in the Interest Rate Swap, the non-defaulting party or non-affected
party may elect to terminate the Interest Rate Swap. These events include
failure to make payments due under the Interest Rate Swap, the occurrence of
certain bankruptcy and insolvency events and other customary events. The Trust
will also be deemed to be in default for such purpose if (1) there is an Event
of Default under the Indenture resulting from a payment default or a bankruptcy
or insolvency event with respect to the Trust and the Notes are declared due in
full, (2) the Notes are declared due in full following an Event of Default under
the Indenture resulting from a covenant default under the Indenture and the
holders of all the outstanding Notes and Certificates consent to the sale by the
Indenture Trustee of the Trust's assets or (3) if an amendment to the Transfer
and Servicing Agreements or the Indenture that materially and adversely affects
the Swap Counterparty is made without the consent of the Swap Counterparty. If
the Interest Rate Swap terminates, a Sequential Amortization Period will
commence and the Trust will not be permitted to issue any additional Variable
Pay Term Notes. In addition, in such event, the Interest Rate on all outstanding
Variable Pay Term Notes will automatically be adjusted to a fixed rate of
%, which is the fixed rate payable by the Trust under the Interest Rate
Swap.
In addition, in the event of the termination of the Interest Rate Swap, a
termination payment may be due (1) to the Swap Counterparty by the Trust out of
funds that would otherwise be available to make payments on the Notes and the
Certificates or (2) to the Trust by the Swap Counterparty. Any termination
payments due by the Trust will be paid from available funds pari passu with
payments of interest on the Notes. The amount of any such termination payment
may be based on market quotations of the cost of entering into a similar swap
transaction or such other method as may be required under the Interest Rate
Swap, in each case, in accordance with the procedures set forth in the Interest
Rate Swap. Any such termination payment could, if market interest rates and
other conditions have changed materially, be substantial. Under the terms of the
Interest Rate Swap, the non-defaulting party is not obligated to make a
termination payment otherwise due in the event of termination following the
occurrence of an event of default.
The obligations of the Trust under the Interest Rate Swap are secured under
the Indenture. The obligations of the Swap Counterparty under the Interest Rate
Swap are unsecured. However, in the event that the Swap Counterparty Guarantor's
long-term senior unsecured debt or commercial paper ceases to be rated at a
level acceptable to the rating agencies, under the Interest Rate Swap, the Swap
Counterparty will be obligated, within 30 calendar days of the date on which the
Swap Counterparty Guarantor's ratings fall below the required ratings, either to
(a) post collateral or establish other arrangements to secure its obligations
under the Interest Rate Swap or (b) arrange for a substitute swap counterparty
to assume the rights and obligations of the Swap Counterparty under the Interest
Rate Swap, in either case so that the ratings of the Notes are maintained or, if
applicable, restored to their
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level immediately prior to the change in the ratings of the Swap Counterparty
Guarantor's debt giving rise to such obligation. If the Swap Counterparty fails
to take either of these actions, the Trust will be entitled to terminate its
interest rate swap with the Swap Counterparty and to claim from the Swap
Counterparty a termination payment as described above. Such termination and
replacement will not constitute a termination of the Interest Rate Swap for
purposes of the second preceding paragraph.
The Swap Counterparty will have the right to consent to amendments under
the Indenture and the Transfer and Servicing Agreements, other than amendments
that do not materially and adversely affect the interests of the Swap
Counterparty.
The Swap Counterparty is an indirect, wholly owned subsidiary of the Swap
Counterparty Guarantor. The Swap Counterparty is a dealer in interest rate and
cross-currency swaps and other derivative products in all major currencies from
offices or affiliates in New York, London, Tokyo, Hong Kong and Toronto. Its
executive offices are located at 630 Fifth Avenue, Suite 450, New York, New York
10111 and its telephone number is (212) 307-2300.
The Swap Counterparty Guarantor was established in 1980 to serve as the
parent company of General Reinsurance Corporation (formed in 1921) and its
affiliates. The swap obligations of the Swap Counterparty are guaranteed by the
Swap Counterparty Guarantor. The Swap Counterparty Guarantor and its
subsidiaries ("General Re") operate four principal businesses: North American
property/casualty reinsurance, international property/casualty reinsurance,
life/health reinsurance and financial services. General Re's principal
reinsurance operations are based in North America and Germany, with other major
operations in Asia, Australia, Europe and South America. General Re's principal
financial services operations are located in New York, London, Tokyo, Hong Kong
and Toronto. Its executive offices are located at 695 East Main Street,
Stamford, Connecticut 06901 and its telephone number is (203) 328-5000.
The Swap Counterparty Guarantor is a wholly owned subsidiary of Berkshire
Hathaway Inc. Berkshire Hathaway Inc. is a holding company that owns
subsidiaries engaged in a number of diverse business activities, including the
property and casualty insurance business conducted on a direct and reinsurance
basis. Its common stock is traded on the New York Stock Exchange.
The information in the preceding three paragraphs has been provided by the
Swap Counterparty for use in this Prospectus Supplement. Except for the
foregoing three paragraphs, the Swap Counterparty, Guarantor and their
respective affiliates have not prepared and do not accept responsibility for
this Prospectus Supplement. No representation is made by the Servicer, the
Seller or any of their affiliates as to the accuracy or completeness of such
information.
TERMINATION
Following payment in full of the Securities and payment of all liabilities
of the Trust in accordance with applicable law, any remaining assets in the
Trust and any remaining amount in the Reserve Account will be distributed to the
Seller.
ERISA CONSIDERATIONS
THE NOTES
Although there is little guidance on the subject, the Seller believes that,
at the time of their issuance, the Class A Notes offered hereby would be treated
as indebtedness without substantial equity features for purposes of the Plan
Assets Regulation. The debt treatment of
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<PAGE> 36
the Class A Notes offered hereby could change, subsequent to their issuance, if
the Issuer incurred losses. However, without regard to whether the Class A Notes
are treated as an equity interest for such purposes, the acquisition or holding
of such Notes by or on behalf of a Benefit Plan could be considered to give rise
to a prohibited transaction if the Seller, the Trust or any of their respective
affiliates is or becomes a party in interest or a disqualified person with
respect to such Benefit Plan. Certain exemptions from the prohibited transaction
rules could be applicable to the purchase and holding of the Class A Notes
offered hereby by a Benefit Plan depending on the type and circumstances of the
plan fiduciary making the decision to acquire such Notes. Included among these
exemptions are: Prohibited Transaction Class Exemption ("PTCE") 96-23, regarding
transactions affected by in-house asset managers; PTCE 95-60, regarding
investments by insurance company general accounts; PTCE 90-1, regarding
investments by insurance company pooled separate accounts; PTCE 91-38, regarding
investments by bank collective investment funds; and PTCE 84-14, regarding
transactions effected by "qualified professional asset managers." For additional
information regarding treatment of the Class A Notes under ERISA, see "ERISA
Considerations" in the Prospectus.
THE CERTIFICATES
The Certificates may not be acquired by (a) an employee benefit plan (as
defined in Section 3(3) of ERISA) that is subject to the provisions of Title I
of ERISA, (b) a plan described in Section 4975(e)(1) of the Code or (c) any
entity whose underlying assets include plan assets by reason of a plan's
investment in the entity. By its acceptance of a Certificate, each
Certificateholder will be deemed to have represented and warranted that it is
not subject to the foregoing limitation. For additional information regarding
treatment of the Certificates under ERISA, see "ERISA Considerations" in the
Prospectus.
CERTAIN FEDERAL INCOME TAX CONSEQUENCES
In the opinion of Kirkland & Ellis, special tax counsel to the Seller, for
U.S. federal income tax purposes, the Class A Notes offered hereby will
constitute indebtedness. Each Noteholder, by the acceptance of a Note, will
agree to treat the Notes as indebtedness for federal, state and local income and
franchise tax purposes.
In the opinion of Kirkland & Ellis, the Trust will not be taxable as an
association or publicly traded partnership taxable as a corporation, but should
be classified as a grantor trust for federal income tax purposes. If the
Internal Revenue Service were to contend successfully that the Trust is not a
grantor trust, the Trust should be classified for federal income tax purposes as
a partnership which is not taxable as a corporation. Each Certificateholder, by
the acceptance of a Trust Certificate, will agree to treat the Trust
Certificates as equity interests in the Trust for federal, state and local
income and franchise tax purposes. Certificateholders generally must report
their respective allocable shares of all income earned on the Receivables and,
subject to certain limitations on individuals, estates and trusts, may deduct
their respective allocable shares of interest paid on the Notes and reasonable
servicing and other fees. See "Certain Federal Income Tax Considerations--Trust
Certificates" in the Prospectus.
See "Certain Federal Income Tax Considerations" and "State and Local Tax
Consequences" in the Prospectus.
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<PAGE> 37
UNDERWRITING
Subject to the terms and conditions set forth in the Underwriting
Agreement, the Seller has agreed to sell to each of the Underwriters named
below, and each of the Underwriters has severally agreed to purchase from the
Seller, the principal amount of Class A-2 Notes, Class A-3 Notes, Class A-4
Notes and Class A-5 Notes and the Certificates set forth opposite its name
below:
AGGREGATE PRINCIPAL AMOUNT TO BE PURCHASED
<TABLE>
<CAPTION>
CLASS A-2 CLASS A-3 CLASS A-4 CLASS A-5
UNDERWRITER NOTES NOTES NOTES NOTES CERTIFICATES TOTAL
----------- --------- --------- --------- --------- ------------ ------
<S> <C> <C> <C> <C> <C> <C>
Credit Suisse First Boston
Corporation....................
J. P. Morgan Securities Inc. ....
Banc of America Securities LLC...
Bank One Capital Markets, Inc....
Chase Securities Inc. ...........
Lehman Brothers Inc. ............
Merrill Lynch, Pierce, Fenner &
Smith Incorporated.............
Salomon Smith Barney Inc. .......
Total........................
</TABLE>
The Seller has been advised by the Underwriters that the several
Underwriters propose initially to offer the Class A-2 Notes, the Class A-3
Notes, the Class A-4 Notes and the Class A-5 Notes and the Certificates to the
public at the prices set forth on the cover page hereof, and to certain dealers
at such prices less a selling concession not in excess of the percentage set
forth below for each class of Notes and the Certificates. The Underwriters may
allow, and such dealers may reallow to certain other dealers, a subsequent
concession not in excess of the percentage set forth below for each class of
Notes and the Certificates. After the initial public offering, the public
offering price and such concessions may be changed.
<TABLE>
<CAPTION>
SELLING CONCESSION REALLOWANCE
------------------ -----------
<S> <C> <C>
Class A-2 Notes................................. -- --
Class A-3 Notes................................. -- --
Class A-4 Notes................................. -- --
Class A-5 Notes................................. -- --
Certificates.................................... -- --
</TABLE>
The Underwriters may engage in over-allotment transactions, stabilizing
transactions, syndicate covering transactions and penalty bids with respect to
the Class A Notes and the Certificates in accordance with Regulation M under the
Securities Exchange Act of 1934. Over-allotment transactions involve syndicate
sales in excess of the offering size, which creates a syndicate short position.
Stabilizing transactions permit bids to purchase the Class A Notes or the
Certificates so long as the stabilizing bids do not exceed a specified maximum.
Syndicate covering transactions involve purchases of the Class A Notes or the
Certificates in the open market after the distribution has been completed in
order to cover syndicate short positions. Penalty bids permit the Underwriters
to reclaim a selling concession from a syndicate member when the Class A Notes
or the Certificates originally sold by such syndicate member are purchased in a
syndicate covering transaction. Such over-allotment transactions, stabilizing
transactions, syndicate covering transactions and penalty bids may cause the
prices of the Class A Notes or the Certificates to be higher than they would
S-34
<PAGE> 38
otherwise be in the absence of such transactions. Neither the Seller nor any of
the Underwriters represent that the Underwriters will engage in any such
transactions or that such transactions, once commenced, will not be discontinued
without notice at any time.
The Seller will receive aggregate proceeds of approximately $ from
the sale of the Class A Notes described above (representing % of the
principal amount of such Class A Notes) and approximately $ from the
sale of the Certificates (representing % of the aggregate initial
Certificate Balance) after paying the aggregate underwriting discount of
$ on such Class A Notes (representing % of the principal amount of
such Class A Notes) and an aggregate underwriting discount of $ on the
Certificates (representing % of the aggregate initial Certificate Balance).
Additional offering expenses are estimated to be $ .
LEGAL OPINIONS
In addition to the legal opinions described in the Prospectus, certain
legal matters relating to the Notes and the Certificates will be passed upon for
the Underwriters by Mayer, Brown & Platt. Mayer, Brown & Platt has from time to
time represented, and is currently representing, General Motors Corporation and
certain of its affiliates.
S-35
<PAGE> 39
PROSPECTUS
CAPITAL AUTO RECEIVABLES ASSET TRUSTS
Asset Backed Notes
Asset Backed Certificates
CAPITAL AUTO RECEIVABLES, INC.
Seller
GENERAL MOTORS ACCEPTANCE CORPORATION
Servicer
<TABLE>
<S> <C>
THE TRUSTS--
YOU SHOULD CONSIDER CAREFULLY
THE RISK FACTORS BEGINNING ON - We will form a new Trust to issue each series of
PAGE 3 IN THIS PROSPECTUS. Securities.
The Notes of any series - The primary assets of each Trust will be a pool
represent obligations of the of fixed rate retail motor vehicle instalment sales
related Trust only. The contracts, including security interests in the
Certificates of such series automobiles and light trucks financed under such
represent the beneficial contracts.
interest in the related Trust
only. The Certificates and THE SECURITIES--
Notes issued by any Trust do
not represent obligations of or - will represent indebtedness of the related Trust
interests in, and are not (in the case of Notes) or beneficial interests in
guaranteed by Capital Auto the related Trust (in the case of Certificates);
Receivables, Inc., GMAC or any
of their affiliates. - will be paid only from the assets of the related
Trust and other available funds, including amounts
This prospectus may be used to on deposit in any related reserve account;
offer and sell any Securities
only if accompanied by the - will represent the right to payments in the
related prospectus supplement. amounts and at the times described in the related
prospectus supplement;
- may benefit from one or more forms of credit
enhancement; and
- will be issued as part of a designated series,
which will include one or more classes of Notes and
may include one or more classes of Certificates.
</TABLE>
NEITHER THE SEC NOR ANY STATE SECURITIES COMMISSION HAS APPROVED OR DISAPPROVED
THESE SECURITIES OR DETERMINED THAT THIS PROSPECTUS IS ACCURATE OR COMPLETE. ANY
REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
AUGUST , 1999
<PAGE> 40
IMPORTANT NOTICE ABOUT INFORMATION PRESENTED IN THIS
PROSPECTUS AND THE ACCOMPANYING PROSPECTUS SUPPLEMENT
We provide information to you about the Notes or Certificates (collectively
called "SECURITIES") in two separate documents:
(a) this prospectus, which provides general information and terms of
the Securities, some of which may not apply to a particular series of
Securities, including your series.
(b) the accompanying prospectus supplement, which will provide
information regarding the pool of contracts held by the Trust and will
specify the terms of your series of Securities.
IF THE TERMS OF YOUR SERIES OF SECURITIES VARY BETWEEN THIS PROSPECTUS AND
THE PROSPECTUS SUPPLEMENT, YOU SHOULD RELY ON THE INFORMATION IN THE PROSPECTUS
SUPPLEMENT.
You should rely only on the information provided in this prospectus and the
accompanying prospectus supplement, including the information incorporated by
reference. We have not authorized anyone to provide you with other or different
information. We are not offering the Securities in any state where the offer is
not permitted. We do not claim that the information in this prospectus and the
accompanying prospectus supplement is accurate on any date other than the dates
stated on their respective covers.
You can find a listing of the pages where capitalized terms used in this
prospectus and the prospectus supplement are defined under the caption "Index of
Terms" which appears at the end of this prospectus.
2
<PAGE> 41
RISK FACTORS
You should consider the following risk factors in deciding whether to
purchase the Securities.
RISK OF UNCOLLECTIBLE
RECEIVABLES DUE TO PRIORITY
OF CERTAIN LIENS ON FINANCED
VEHICLES OR RECEIVABLES Obligors who purchase financed vehicles give
GMAC a security interest in those vehicles. If
GMAC fails to perfect its security interest in
a financed vehicle, GMAC must repurchase the
receivable from the Trust.
GMAC will assign its security interest in the
financed vehicles to the Seller. The Seller
will in turn assign its security interest in
the financed vehicles to the Trust and the
Trust will pledge such security interest to the
Indenture Trustee. If, for any reason, these
assignments and this pledge are not perfected,
the interests of the Seller, the Trust and the
Indenture Trustee would be subordinate to,
among others, the following: (1) bankruptcy
trustee of the obligor, (2) subsequent
purchaser of the financed vehicle and (3)
holder of a perfected security interest.
The Trust and the Indenture Trustee may not be
able to collect on a defaulted receivable in
the absence of a perfected security interest in
the related financed vehicle.
Even if the Trust and the Indenture Trustee has
a perfected security interest in the financed
vehicles, certain events could jeopardize that
interest, such as: (1) fraud or forgery by the
vehicle owner, (2) negligence or fraud by the
Servicer, (3) mistakes by government agencies
and (4) liens for repairs or unpaid taxes.
See "Certain Legal Aspects of the
Receivables--Security Interest in Vehicles" in
this prospectus.
GMAC, the Seller and the Indenture Trustee will
file financing statements with respect to each
pool of receivables sold to a Trust. The
financing statements will perfect the security
interests of the Seller, the Trust and the
Indenture Trustee in the pool of receivables.
However, GMAC will serve as the custodian of
the receivables and will not physically
segregate or mark the receivables to indicate
that they have been sold to the Seller, sold by
the Seller to the Trust or pledged by the Trust
to the Indenture Trustee. See "The Transfer and
Servicing Agreements-- Sale and Assignment of
Receivables" in this prospectus.
If another party purchases or takes a security
interest in the receivables (1) for value, (2)
in the ordinary course
3
<PAGE> 42
of business and (3) without actual knowledge of
the Seller's, the Trust's or the Indenture
Trustee's interest, such purchaser or secured
party will acquire an interest in the
receivables superior to the Trust's and the
Indenture Trustee's interest.
POSSIBLE REDUCTIONS AND
DELAYS IN PAYMENTS DUE TO
BANKRUPTCY If GMAC filed for bankruptcy under the federal
bankruptcy code or any state insolvency laws, a
court may (1) consolidate the assets and
liabilities of GMAC with those of the Seller,
(2) decide that the sale of the receivables to
the Seller was not a "true sale" or (3)
disallow a transfer of receivables prior to the
bankruptcy. Thus, the receivables might become
part of GMAC's bankruptcy estate, in which case
you might experience reductions and/or delays
in payments on your Securities. See "Certain
Legal Aspects of the Receivables--Sales of
Receivables by GMAC" in this prospectus.
MATURITY AND PREPAYMENT
CONSIDERATIONS Obligors may prepay the receivables in full or
in part at any time. In addition, the
receivables may be prepaid as a result of
defaults or from credit life, disability or
physical damage insurance. Also, GMAC or the
Seller may be required to repurchase
receivables from a Trust in certain
circumstances, and the Servicer may have the
right to purchase all remaining receivables
from a Trust pursuant to its optional purchase
right.
Each such prepayment, repurchase or purchase
will shorten the average life of the related
Securities. A variety of unpredictable
economic, social and other factors influence
prepayment rates.
You will bear all reinvestment risk resulting
from a faster or slower rate of prepayment,
repurchase or extension of the receivables held
by your Trust, unless otherwise provided in the
related prospectus supplement.
LIMITED ENFORCEABILITY OF THE
RECEIVABLES Federal and state consumer protection laws
regulate the creation and enforcement of
consumer loans such as the receivables.
Specific statutory liabilities are imposed upon
creditors who fail to comply with these
regulatory provisions. In some cases, this
liability could affect an assignee's ability to
enforce secured loans such as the receivables.
If an obligor had a claim for violation of
these laws prior to the Cutoff Date, GMAC must
repurchase the receivable unless the breach is
cured. If GMAC fails to repurchase such
receivable, you might experience reductions
and/or delays in payments on your Securities.
See "Certain Legal Aspects of the
4
<PAGE> 43
Receivables--Consumer Protection Laws" in this
prospectus.
LIMITED OBLIGATIONS OF GMAC
AND THE SELLER GMAC, the Seller and their respective
affiliates are generally not obligated to make
any payments to you with respect to your
Securities and do not guarantee payments on the
receivables or your Notes or Certificates.
However, GMAC will make representations and
warranties with respect to the characteristics
of the receivables and such representations and
warranties will then be assigned to the Trust.
If GMAC breaches the representations and
warranties, it may be required to repurchase
the applicable receivables from the Trust.
If GMAC fails to repurchase such receivables,
you might experience reductions and/or delays
in payments on your Securities. See "The
Transfer and Servicing Agreements--Sale and
Assignment of Receivables" in this prospectus.
LIMITED ASSETS OF EACH TRUST No Trust will have any significant assets or
sources of funds other than its receivables,
its rights in any reserve account or other
rights or credit enhancements as are specified
in the related prospectus supplement. The
Securities will represent interests in the
related Trust only. Except as described in the
related prospectus supplement, the Securities
will not be insured or guaranteed by GMAC, the
Seller, the Owner Trustee, the Indenture
Trustee, any of their affiliates or any other
person or entity. You must rely primarily on
payments on the related receivables and on the
reserve account for repayment of your
Securities. In addition, with respect to the
defaulted receivables, you may have to look to
the obligors on the related receivables and the
proceeds from the repossession and sale of
financed vehicles which secure defaulted
receivables. If these sources are insufficient,
you may receive payments late or not receive
back your full principal investment or all
interest due to you. See "The Transfer and
Servicing Agreements--Distributions," "--Credit
Enhancement" and "Certain Legal Aspects of the
Receivables" in this prospectus.
LIMITED ABILITY TO RESELL
SECURITIES The underwriters may assist in the resale of
Securities, but they are not required to do so.
A secondary market for any Securities may not
develop. If a secondary market does develop, it
might not continue or it might not be
sufficiently liquid to allow you to resell any
of your Securities.
5
<PAGE> 44
LIMITED NATURE OF RATINGS The Securities for each Trust will be issued
only if they receive the required rating. A
security rating is not a recommendation to buy,
sell or hold the Securities. The ratings may be
revised or withdrawn at any time. Ratings on
the Securities do not address the timing of
distributions of principal on the Securities
prior to their applicable final scheduled
payment date.
6
<PAGE> 45
THE TRUSTS
With respect to each series of Securities, the Seller will establish a
separate Trust (a "TRUST") by selling and assigning the Trust Property to the
Trust in exchange for the related Securities. Each series of Securities will
include one or more classes of asset backed notes (the "NOTES") and one or more
classes of asset backed certificates (the "CERTIFICATES"). The related
Prospectus Supplement will specify which classes of Notes and Certificates
included in each series will be offered to investors.
The Trust Property of each Trust will include:
(1) a pool (a "RECEIVABLES POOL") of retail instalment sales contracts
for new and used automobiles and light trucks (the "RECEIVABLES"), all
Scheduled Payments due thereunder on and after the Cutoff Date to be
specified in the Prospectus Supplement (the "CUTOFF DATE") (in the case of
Scheduled Interest Receivables) and all payments received thereunder on and
after the Cutoff Date (in the case of Simple Interest Receivables), in each
case exclusive of any amount allocable to the premium for physical damage
insurance force-placed by the Servicer,
(2) such amounts as from time to time may be held in separate trust
accounts established and maintained pursuant to the related Trust Sale and
Servicing Agreement and the proceeds of such accounts,
(3) security interests in vehicles financed by the Receivables (the
"FINANCED VEHICLES") and, to the extent permitted by law, any accessions
thereto,
(4) any recourse against dealers with respect to the Receivables,
(5) except for those Receivables originated in Wisconsin, the right to
proceeds of credit life, credit disability, physical damage or other
insurance policies covering the Financed Vehicles and
(6) certain rights of the Seller under the related Pooling and
Servicing Agreement.
To the extent specified in the related Prospectus Supplement, a Reserve
Account or other form of credit enhancement may be held by the Owner Trustee or
the Indenture Trustee for the benefit of holders of the Securities. The Reserve
Account, if any, for a series of Securities may not be included in the property
of the related Trust but may instead be a segregated trust account held by the
Indenture Trustee for the benefit of the holders of such related Securities.
Except as otherwise set forth in the related Prospectus Supplement, the
activities of each Trust will be limited to (1) acquiring, managing and holding
the related Receivables and the other assets of the Trust and proceeds
therefrom, (2) issuing the related Securities and making payments and
distributions thereon and (3) engaging in other activities that are necessary,
suitable or convenient to accomplish any of the foregoing or are incidental
thereto or connected therewith.
The Servicer will continue to service the Receivables held by each Trust
and will receive fees for such services. See "The Transfer and Servicing
Agreements--Servicing Compensation and Payment of Expenses" in this Prospectus.
To facilitate the servicing of the Receivables, the Trust will authorize GMAC,
as Custodian, to retain physical possession of the Receivables held by each
Trust and other documents relating thereto as custodian for the Trust. Due to
the administrative burden and expense, the certificates of title to the Financed
7
<PAGE> 46
Vehicles will not be amended to reflect the sale and assignment of the security
interest in the Financed Vehicles to the Seller or the Trust or the pledge
thereof by the Trust to the Indenture Trustee. In the absence of such an
amendment, the Trust and the Indenture Trustee may not have a perfected security
interest in the Financed Vehicles in all states. None of the Trust, the
Indenture Trustee nor the Owner Trustee will be responsible for the legality,
validity or enforceability of any security interest in any Financed Vehicle. See
"Certain Legal Aspects of the Receivables" and "The Transfer and Servicing
Agreements--Sale and Assignment of Receivables" in this Prospectus.
The principal offices of each Trust will be specified in the related
Prospectus Supplement.
THE OWNER TRUSTEE
The Owner Trustee for each Trust will be specified in the related
Prospectus Supplement. The Owner Trustee's liability in connection with the
issuance and sale of the Securities is limited solely to the express obligations
of such Owner Trustee set forth in the related Trust Agreement. An Owner Trustee
may resign at any time, in which event the Servicer, or its successor, will be
obligated to appoint a successor trustee. The Administrator of a Trust may also
remove the Owner Trustee if the Owner Trustee ceases to be eligible to continue
as Owner Trustee under the related Trust Agreement or if the Owner Trustee
becomes insolvent. In such circumstances, the Administrator will be obligated to
appoint a successor trustee. Any resignation or removal of an Owner Trustee and
appointment of a successor trustee will not become effective until acceptance of
the appointment by the successor trustee.
THE RECEIVABLES POOLS
The Receivables in each Receivables Pool have been or will be acquired by
General Motors Acceptance Corporation ("GMAC") through its nationwide branch
system, directly or through General Motors Corporation ("GENERAL MOTORS"), from
automobile and light truck dealers pursuant to agreements with General Motors
dealers and dealerships affiliated with General Motors dealers. See "The Seller"
and "The Servicer" in this Prospectus.
The Receivables have been or will be originated by participating dealers in
accordance with GMAC's requirements under the dealer agreements. The Receivables
have been or will be acquired in accordance with GMAC's underwriting standards
in the ordinary course of business, which evaluate the prospective purchaser's
ability to pay and creditworthiness, as well as the asset value of the vehicle
to be financed. GMAC's standards generally also require physical damage
insurance to be maintained on each Financed Vehicle. The Receivables have been
or will be acquired by GMAC in the ordinary course of business.
The Receivables to be held by each Trust will be selected from GMAC's
portfolio for inclusion in a Receivables Pool by several criteria, including
that, unless otherwise provided in the related Prospectus Supplement, each
Receivable (1) is secured by a new or used vehicle, (2) was originated in the
United States, (3) provides for level monthly payments (except for the first and
last payments which may be different from the level payments) that fully
amortize the amount financed over its original term to maturity and (4)
satisfies the other criteria set forth in the related Prospectus Supplement. The
"AMOUNT FINANCED" with respect to a Receivable will equal the aggregate amount
advanced toward the purchase price of the Financed Vehicle, including
accessories, insurance premiums, service and warranty contracts
8
<PAGE> 47
and other items customarily financed as part of retail automobile instalment
sale contracts and related costs. The Amount Financed does not include any
amount allocable to the premium for physical damage insurance covering the
Financed Vehicle force-placed by GMAC or, in the case of a Scheduled Interest
Receivable, payments due from the related obligor prior to the related Cutoff
Date allocable to principal or, in the case of a Simple Interest Receivable,
payments received from the obligor prior to the related Cutoff Date allocable to
principal. The aggregate Amount Financed under the Receivables held by a Trust
(the "AGGREGATE AMOUNT FINANCED") will be specified in the related Prospectus
Supplement.
"SCHEDULED INTEREST RECEIVABLES" are Receivables pursuant to which the
payments due from the Obligors during any month (the "SCHEDULED PAYMENTS") are
allocated between finance charges and principal on a scheduled basis, without
regard to the period of time which has elapsed since the preceding payment was
made, using the actuarial method or the method known as the Rule of 78s or
sum-of-the-digits method. If an obligor elects to prepay a Scheduled Interest
Receivable in full, the obligor is entitled to a rebate of the portion of the
Scheduled Payments attributable to unearned finance charges. The amount of the
rebate is determined with reference to the contract type and applicable state
law. With minor variations based on state law, actuarial rebates are calculated
on the basis of a constant interest rate. Rebates calculated on a Rule of 78s or
sum-of-the-digits basis are smaller than the corresponding rebates under the
actuarial method. Scheduled Interest Receivables provide for Rule of 78s rebates
except in states that require the actuarial method. Distributions to Noteholders
and Certificateholders will not be affected by Rule of 78s rebates, because all
allocations with respect to Scheduled Interest Receivables for purposes of the
related Trust are made using the actuarial method. The portion of a Receivables
Pool which consists of Scheduled Interest Receivables will be specified in the
related Prospectus Supplement.
"SIMPLE INTEREST RECEIVABLES" are Receivables which provide for allocation
of payments between finance charges and principal based on the actual date on
which a payment is received. Late payments (or early payments) on a Simple
Interest Receivable may result in the obligor making a greater (or smaller)
number of payments than originally scheduled. The amount of any such additional
payments required to pay the outstanding principal balance in full generally
will not exceed the amount of an originally scheduled payment. If an obligor
elects to prepay a Simple Interest Receivable in full, the obligor will not
receive a rebate attributable to unearned finance charges. Instead, the obligor
is required to pay finance charges only to, but not including, the date of
prepayment. The amount of finance charges on a Simple Interest Receivable that
would have accrued from and after the date of prepayment if all monthly payments
had been made as scheduled will generally be greater than the rebate on a
Scheduled Interest Receivable that provides for a Rule of 78s rebate, and will
generally be equal to the rebate on a Scheduled Interest Receivable that
provides for an actuarial rebate. The portion of a Receivables Pool which
consists of Simple Interest Receivables will be specified in the related
Prospectus Supplement.
With respect to each Trust, the "AGGREGATE PRINCIPAL BALANCE," as of any
date, means the sum of the Principal Balances of all outstanding Receivables
(other than Liquidating Receivables) held by the Trust on such date. The
"PRINCIPAL BALANCE," as of any date with respect to any Receivable, is equal to
the Amount Financed minus the sum of either (a) in the case of a Scheduled
Interest Receivable, (1) that portion of all Scheduled Payments due on or prior
to such date allocable to principal, (2) that portion of any Warranty Payment or
Administrative Purchase Payment with respect to such Receivable allocable to
principal and (3) any Prepayment applied by the Servicer to reduce the Principal
Balance of such Receivable, or (b) in the case of a Simple Interest Receivable,
(1) that portion of all
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payments received on or prior to such date allocable to principal and (2) that
portion of any Warranty Payment or Administrative Purchase Payment with respect
to such Receivable allocable to principal.
Information with respect to each Receivables Pool will be set forth in the
related Prospectus Supplement, including, to the extent appropriate, the
composition, distribution by annual percentage rate ("APR"), states of
origination and portion of such Receivables Pool secured by new vehicles and by
used vehicles.
WEIGHTED AVERAGE LIFE OF THE SECURITIES
The weighted average life of the Securities will generally be influenced by
the rate at which the principal balances of the related Receivables are paid,
which payment may be in the form of scheduled amortization or prepayments. For
this purpose, the term "prepayment" includes charge-offs, liquidations due to
defaults and repurchases by the Seller or GMAC pursuant to the related Trust
Sale and Servicing Agreement, as well as receipt of proceeds from credit life
and casualty insurance policies. All of the Receivables are prepayable at any
time without penalty to the obligor. The rate of prepayment of automotive
receivables is influenced by a variety of economic, social and other factors,
including the fact that an obligor generally may not sell or transfer the
Financed Vehicle securing a Receivable without the consent of the Servicer. Any
reinvestment risk resulting from prepayment of Receivables will be borne
entirely by the holders of Securities. See also "Certain Legal Aspects of the
Receivables--Transfer of Vehicles" in this Prospectus.
POOL FACTORS AND TRADING INFORMATION
The "NOTE POOL FACTOR" for each class of Notes will be a seven-digit
decimal which the Servicer will compute prior to each distribution with respect
to such Notes indicating the remaining outstanding principal balance of such
Notes, as of the close of such date, as a fraction of the initial outstanding
principal balance of such Notes. The "CERTIFICATE POOL FACTOR" for each class of
Certificates will be a seven-digit decimal which the Servicer will compute prior
to each distribution with respect to such Certificates indicating the remaining
Certificate Balance as of the close of such date, as a fraction of the initial
Certificate Balance. Each Note Pool Factor and each Certificate Pool Factor will
initially be 1.0000000. Thereafter the Note Pool Factor and the Certificate Pool
Factor will decline to reflect reductions in the outstanding principal balance
of the Notes, or the reduction of the Certificate Balance of the Certificates,
as the case may be. A Noteholder's portion of the aggregate outstanding
principal balance of the related class of Notes is the product of (1) the
original denomination of such Noteholder's Note and (2) the Note Pool Factor. A
Certificateholder's portion of the aggregate outstanding Certificate Balance for
the related class of Certificates is the product of (a) the original
denomination of the Certificateholder's Certificate and (b) the Certificate Pool
Factor.
With respect to each Trust, the holder or holders of record of the Notes
(the "NOTEHOLDERS") will receive reports on or about each Payment Date
concerning payments received on the Receivables, the Aggregate Principal
Balance, each Note Pool Factor, and various other items of information.
Noteholders of record during any calendar year will be furnished information for
tax reporting purposes not later than the latest date permitted by law. See
"Certain Information Regarding the Securities--Reports to Securityholders."
Unless otherwise provided in the related Prospectus Supplement, with respect to
the Trust, the holder
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or holders of record of the Certificates (the "CERTIFICATEHOLDERS") will receive
reports on or about each Distribution Date concerning payments received on the
Receivables, the Aggregate Principal Balance, each Certificate Pool Factor and
various other items of information. Certificateholders of record during any
calendar year will be furnished information for tax reporting purposes not later
than the latest date permitted by law. See "Certain Information Regarding the
Securities--Reports to Securityholders" in this Prospectus.
USE OF PROCEEDS
Unless otherwise provided in the related Prospectus Supplement, the net
proceeds to be received by the Seller from the sale of the Securities of a given
Series will be applied to the purchase of the Receivables from GMAC.
THE SELLER
Capital Auto Receivables, Inc. (the "SELLER"), a wholly-owned subsidiary of
GMAC, was incorporated in the State of Delaware on November 6, 1992. The Seller
is organized for the limited purposes of purchasing Receivables from GMAC,
transferring such Receivables to third parties, forming trusts and engaging in
related activities. The principal executive offices of the Seller are located at
Corporation Trust Center, 1209 Orange Street, Wilmington, Delaware 19801.
GMAC Auto Receivables Corporation, a wholly-owned subsidiary of GMAC
incorporated in the State of Delaware on November 16, 1990, was merged with and
into the Seller on February 22, 1996. It was also organized for the limited
purposes of purchasing Receivables from GMAC, transferring such Receivables to
third parties, forming trusts and engaging in related activities.
The Seller has taken steps in structuring the transactions contemplated
hereby that are intended to make it unlikely that the voluntary or involuntary
application for relief by GMAC under the United States Bankruptcy Code or
similar applicable state laws ("INSOLVENCY LAWS") will result in consolidation
of the assets and liabilities of the Seller with those of GMAC. These steps
include the creation of the Seller as a separate, limited-purpose subsidiary
pursuant to a certificate of incorporation containing certain limitations
(including restrictions on the nature of the Seller's business and a restriction
on the Seller's ability to commence a voluntary case or proceeding under any
Insolvency Law without the unanimous affirmative vote of all of its directors).
Under certain circumstances, the Seller is required to have at least one
director who qualifies under its By-laws as an "Independent Director."
If, notwithstanding the foregoing measures, a court concluded that the
assets and liabilities of the Seller should be consolidated with the assets and
liabilities of GMAC in the event of the application of the federal bankruptcy
laws to GMAC, a filing were made under any Insolvency Law by or against the
Seller, or an attempt were made to litigate the consolidation issue, then delays
in distributions on the Notes and the Certificates (and possible reductions in
the amount of such distributions) could occur. See also "Certain Legal Aspects
of the Receivables--Sale of Receivables by GMAC" in this Prospectus.
Certain of the Securities issued by a Trust may be sold by the Seller in
private placements or other transactions and will not be offered hereby and by
the related Prospectus
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Supplement. The Seller may also retain all or a portion of the Certificates or
of one or more classes of Notes issued by each Trust as described in the related
Prospectus Supplement.
THE SERVICER
GMAC, a wholly-owned subsidiary of General Motors, was incorporated in 1919
under the New York Banking Law relating to investment companies. GMAC
relinquished this status and became a Delaware corporation on January 1, 1998.
Operating directly and through subsidiaries and associated companies in which it
has equity investments, GMAC provides a wide variety of automotive financial
services to and through franchised General Motors dealers in many countries
throughout the world. Financial services also are offered to other dealerships
in which General Motors dealers have an interest and to the customers of those
dealerships. Other financial services offered by GMAC or its subsidiaries
include insurance, mortgage banking and investment services.
The principal business of GMAC and its subsidiaries is to finance the
acquisition and resale by franchised General Motors dealers of various new
automotive and nonautomotive products manufactured by General Motors or certain
of its subsidiaries and associates, and to acquire from such dealers, either
directly or indirectly, instalment obligations covering retail sales and leases
of new General Motors products as well as used units of any make. In addition,
new products of other manufacturers are financed. GMAC also leases motor
vehicles and certain types of capital equipment to others.
GMAC has its principal office at 767 Fifth Avenue, New York, New York 10153
(Tel. No. 212-418-6120) and administrative offices at 3044 West Grand Boulevard,
Detroit, Michigan 48202 (Tel. No. 313-556-5000).
DELINQUENCIES, REPOSSESSIONS AND NET LOSSES
Certain information concerning GMAC's experience in the United States
pertaining to delinquencies on new and used retail automobile and light truck
receivables and repossessions and net loss information relating to its entire
vehicle portfolio (including receivables previously sold which GMAC continues to
service) will be set forth in each Prospectus Supplement. There can be no
assurance that the delinquency, repossession and net loss experience on any
Receivables Pool will be comparable to prior experience.
THE NOTES
GENERAL
With respect to each Trust, one or more classes of Notes will be issued
pursuant to the terms of an Indenture, a form of which has been filed as an
exhibit to the Registration Statement of which this Prospectus forms a part. The
following summary does not purport to be complete and is subject to, and is
qualified in its entirety by reference to, all of the provisions of the Notes
and the Indenture. Where particular provisions or terms used in the Indenture
are referred to, the actual provisions (including definitions of terms) are
incorporated by reference as part of this summary.
Unless otherwise specified in the related Prospectus Supplement, each class
of Notes will initially be represented by one or more Notes, in each case
registered in the name of the
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nominee of DTC (together with any successor depository selected by the Trust,
the "DEPOSITORY") (in the United States) or Cedelbank or Euroclear (in Europe)
except as set forth below. Unless otherwise specified in the related Prospectus
Supplement, Notes will be available for purchase in denominations of $1,000 and
integral multiples thereof in book-entry form only. The Seller has been informed
by DTC that DTC's nominee will be Cede. Accordingly, Cede is expected to be the
holder of record of the Notes. Unless and until Definitive Notes are issued
under the limited circumstances described herein or in the related Prospectus
Supplement, no Noteholder will be entitled to receive a physical certificate
representing a Note. All references herein to actions by Noteholders refer to
actions taken by DTC upon instructions from its participating organizations (the
"PARTICIPANTS"). All references herein to distributions, notices, reports and
statements to Noteholders refer to distributions, notices, reports and
statements to DTC or Cede, as the registered holder of the Notes, as the case
may be, for distribution to Noteholders in accordance with DTC's procedures with
respect thereto. See "Certain Information Regarding the Securities--Book-Entry
Registration" and "--Definitive Securities" in this Prospectus.
PRINCIPAL AND INTEREST ON THE NOTES
The timing and priority of payment, seniority, allocations of loss,
Interest Rate and amount of or method of determining payments of principal and
interest on the Notes will be described in the related Prospectus Supplement.
The right of holders of any class of Notes to receive payments of principal and
interest may be senior or subordinate to the rights of holders of any other
class or classes of Notes in the series, as described in the related Prospectus
Supplement. Unless otherwise provided in the related Prospectus Supplement,
payments of interest on the Notes will be made prior to payments of principal
thereon. A series may include one or more classes of Notes ("STRIP NOTES")
entitled to (1) principal payments with disproportionate, nominal or no interest
payment or (2) interest payments with disproportionate, nominal or no principal
payments. Each class of Notes may have a different Interest Rate, which may be a
fixed, variable or adjustable Interest Rate (and which may be zero for certain
classes of Strip Notes), or any combination of the foregoing. The related
Prospectus Supplement will specify the Interest Rate for each class of Notes, or
the initial Interest Rate and the method for determining the Interest Rate. One
or more classes of Notes of a series may be redeemable under the circumstances
specified in the related Prospectus Supplement.
Unless otherwise specified in the related Prospectus Supplement, payments
to Noteholders of all classes within a series in respect of interest will have
the same priority. Under certain circumstances, the amount available for such
payments could be less than the amount of interest payable on the Notes on any
of the dates specified for payments on any class of Notes in the related
Prospectus Supplement (each, a "PAYMENT DATE"). In that case, each such class of
Noteholders will receive their ratable share (based upon the aggregate amount of
interest due to such class of Noteholders) of the aggregate amount available to
be distributed in respect of interest on the Notes. See "The Transfer and
Servicing Agreements--Distributions" and "--Credit Enhancement" in this
Prospectus.
In the case of a series of Notes which includes two or more classes of
Notes, the sequential order and priority of payment in respect of principal and
interest, and any schedule or formula or other provisions applicable to the
determination thereof, of each such class will be set forth in the related
Prospectus Supplement. Unless otherwise specified in the related Prospectus
Supplement, payments in respect of principal and interest of any class of Notes
will be made on a pro rata basis among all of the Notes of such class. Notes
legally and/or
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beneficially owned by the Seller or its affiliates will be entitled to equal and
proportionate benefits under the Indenture, except that such Notes that are both
legally and beneficially owned by the Seller or its affiliates will be deemed
not to be outstanding for the purpose of determining whether the requisite
percentage of Noteholders have given any request, demand, authorization,
direction, notice, consent or other action under the Related Documents. If more
than one class of Notes in a series is issued and the rights of the classes are
different with respect to voting on any matters, including giving any request,
demand, authorization, direction, notice, consent or other action under the
Related Documents, such rights will be described in the related Prospectus
Supplement.
THE INDENTURE
A form of Indenture has been filed as an exhibit to the Registration
Statement of which this Prospectus forms a part. The Seller will provide a copy
of the applicable Indenture (without exhibits) upon request to a holder of Notes
issued thereunder.
Modification of Indenture Without Noteholder Consent. Each Trust and
related Indenture Trustee (on behalf of such Trust) may, without consent of the
related Noteholders, enter into one or more supplemental indentures for any of
the following purposes: (1) to correct or amplify the description of the
collateral or add additional collateral; (2) to provide for the assumption of
the Notes and the Indenture obligations by a permitted successor to the Trust;
(3) to add additional covenants for the benefit of the related Noteholders; (4)
to convey, transfer, assign, mortgage or pledge any property to or with the
Indenture Trustee; (5) to cure any ambiguity or correct or supplement any
provision in the Indenture or in any supplemental indenture which may be
inconsistent with any other provision of the Indenture or in any supplemental
indenture or in any other Related Document; (6) to provide for the acceptance of
the appointment of a successor Indenture Trustee or to add to or change any of
the provisions of the Indenture as shall be necessary and permitted to
facilitate the administration by more than one trustee; (7) to modify, eliminate
or add to the provisions of the Indenture in order to comply with the Trust
Indenture Act of 1939, as amended (the "TRUST INDENTURE ACT"); and (8) to add
any provisions to, change in any manner, or eliminate any of the provisions of,
the Indenture or modify in any manner the rights of Noteholders under such
Indenture; provided that any action specified in this clause (8) shall not, as
evidenced by an opinion of counsel, adversely affect in any material respect the
interests of any related Noteholder unless Noteholder consent is otherwise
obtained as described below.
Modification of Indenture With Noteholder Consent. With respect to each
Trust, unless otherwise specified in the related Prospectus Supplement, with the
consent of the holders of a majority in principal amount of the outstanding
Notes affected thereby, the Trust and the Indenture Trustee may execute a
supplemental indenture to add provisions to, change in any manner or eliminate
any provisions of, the related Indenture, or modify in any manner the rights of
the related Noteholders.
Without the consent of the holder of each outstanding related Note affected
thereby, however, no supplemental indenture will: (1) change the due date of any
instalment of principal of or interest on any Note or reduce the principal
amount thereof, the interest rate specified thereon or the redemption price with
respect thereto or change any place of payment where or the coin or currency in
which any Note or any interest thereon is payable or modify any of the
provisions of the 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 Payment
Date; (2) impair the right to institute suit for the enforcement of certain
provisions of the Indenture regarding payment; (3) reduce the percentage of the
aggregate principal amount of the
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outstanding 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 the Indenture or of certain
defaults thereunder and their consequences as provided for in the Indenture; (4)
modify any of the provisions of the Indenture regarding the voting of Notes held
by the related Trust, any other obligor on the Notes, the Seller or an affiliate
of any of them; (5) reduce the percentage of the aggregate outstanding principal
amount of the Notes the consent of the holders of which is required to direct
the Indenture Trustee to sell or liquidate the assets of the Trust if the
proceeds of such sale would be insufficient to pay the principal amount and
accrued but unpaid interest on the outstanding Notes; (6) decrease the
percentage of the aggregate principal amount of the Notes required to amend the
sections of the Indenture which specify the applicable percentage of aggregate
principal amount of the Notes necessary to amend the Indenture; or (7) permit
the creation of any lien ranking prior to or on a parity with the lien of the
Indenture with respect to any part of the assets of the Trust or, except as
otherwise permitted or contemplated in the Indenture, terminate the lien of the
Indenture on any such collateral or deprive the holder of any Note of the
security afforded by the lien of the Indenture.
Events of Default; Rights Upon Event of Default. With respect to each
Trust, unless otherwise specified in the related Prospectus Supplement, "EVENTS
OF DEFAULT" under the Indenture will consist of: (1) any failure to pay interest
on the related Notes as and when the same becomes due and payable, which failure
continues unremedied for five days; (2) except as provided in clause (3), any
failure (a) to make any required payment of principal on the Notes or (b) to
observe or perform in any material respect any other covenants or agreements in
the Indenture, which failure in the case of a default under clause (2)(b)
materially and adversely affects the rights of related Noteholders, and which
failure in either case continues for 30 days after the giving of written notice
of such failure (x) to the Trust, to the Seller or the Servicer, as applicable,
by the Indenture Trustee or (y) to the Seller or the Servicer, as applicable,
and the Indenture Trustee by the holders of not less than 25% of the principal
amount of the related Notes; (3) failure to pay the unpaid principal balance of
any related class of Notes on or prior to the respective final scheduled Payment
Date for such class; and (4) certain events of bankruptcy, insolvency or
receivership with respect to the Trust indicating its insolvency, reorganization
pursuant to bankruptcy proceedings or inability to pay its obligations. However,
the amount of principal required to be paid to Noteholders under the related
Indenture will generally be limited to amounts available to be deposited
therefor in the Note Distribution Account. Therefore, unless otherwise specified
in the related Prospectus Supplement, the failure to pay principal on a class of
Notes generally will not result in the occurrence of an Event of Default unless
such class of Notes has a final scheduled Payment Date, and then not until such
final scheduled Payment Date for such class of Notes.
If an Event of Default should occur and be continuing with respect to the
Notes of any series, the related Indenture Trustee or holders of a majority in
principal amount of such Notes then outstanding may declare the principal of the
Notes to be immediately due and payable. Such declaration may, under certain
circumstances, be rescinded by the holders of a majority in principal amount of
the Notes then outstanding.
Unless otherwise specified in the related Prospectus Supplement, if the
Notes of any series are declared due and payable following an Event of Default
with respect thereto, in lieu of the Trust maintaining possession of the assets
of the Trust and continuing to apply collections on such Receivables as if there
had been no declaration of acceleration, the related Indenture Trustee may (a)
institute proceedings to collect amounts due on foreclosed property, (b)
exercise remedies as a secured party or (c) sell the assets of the Trust. In
such
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event, any money or property collected by the Indenture Trustee shall be
applied: (1) first to the Indenture Trustee for fees, expenses and
indemnification due to it under the Indenture and not paid, if any, (2) next to
the related Owner Trustee for amounts due (not including amounts due for
payments to the Certificateholders) under the Related Documents and (3) the
remainder to the related Collection Account for distribution pursuant to the
Related Documents. The Indenture Trustee, however, is prohibited from selling
the related Receivables following an Event of Default, unless (1) the holders of
all the outstanding related Notes consent to such sale, (2) the proceeds of such
sale are sufficient to pay in full the principal of and the accrued interest on
such outstanding Securities at the date of such sale or (3) (x) there has been a
default in the payment of interest or principal on the Notes, (y) the Indenture
Trustee determines that the Receivables will not continue to provide sufficient
funds on an ongoing basis to make all payments on the Notes as such payments
would have become due if such obligations had not been declared due and payable
and (z) the Indenture Trustee obtains the consent of the holders of a majority
of the aggregate outstanding amount of the Notes.
Unless otherwise specified in the related Prospectus Supplement following a
declaration upon an Event of Default that the Notes are immediately due and
payable, (x) Noteholders will be entitled to ratable repayment of principal on
the basis of their respective unpaid principal balances and (y) repayment in
full of the accrued interest on and unpaid principal balances of the Notes will
be made prior to any further distribution of interest on the Certificates or in
respect of the Certificate Balance.
Subject to the provisions of the Indenture relating to the duties of the
Indenture Trustee, if an Event of Default occurs and is continuing with respect
to a series of Notes, the Indenture Trustee will be under no obligation to
exercise any of the rights or powers under the Indenture at the request or
direction of any of the holders of such Notes, if the Indenture Trustee
reasonably believes it will not be adequately indemnified against the costs,
expenses and liabilities which might be incurred by it in complying with such
request. Subject to the provisions for indemnification and certain limitations
contained in the Indenture, the holders of a majority in aggregate principal
amount of the outstanding Notes of a Trust, voting together as a single class
will have the right to direct the time, method and place of conducting any
proceeding for any remedy available to the Indenture Trustee and the holders of
a majority in aggregate principal amount of such Notes then outstanding voting
together as a single class, may, in certain cases, waive any default with
respect thereto, except a default in the payment of principal or interest or a
default in respect of a covenant or provision of the Indenture that cannot be
modified without the waiver or consent of all of the holders of such outstanding
Notes.
No holder of a Note of any series will have the right to institute any
proceeding with respect to the related Indenture, unless (1) such holder
previously has given to the Indenture Trustee written notice of a continuing
Event of Default, (2) the holders of not less than 25% in aggregate principal
amount of the outstanding Notes of a Trust voting together as a single class
such series have made written request of the Indenture Trustee to institute such
proceeding in its own name as Indenture Trustee, (3) such holder or holders have
offered the Indenture Trustee reasonable indemnity, (4) the Indenture Trustee
has for 60 days failed to institute such proceeding and (5) 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 in aggregate principal
amount of such outstanding Notes.
If an Event of Default occurs and is continuing with respect to any Trust
and if it is known to the Indenture Trustee, the Indenture Trustee will mail to
each Noteholder of such
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Trust notice of the Event of Default within 90 days after it occurs. Except in
the case of a failure to make any required payment of principal of or interest
on any Note, the Indenture Trustee may withhold the notice beyond such 90-day
period if and so long as it determines in good faith that withholding the notice
is in the interests of Noteholders.
In addition, each Indenture Trustee and the related Noteholders, by
accepting the related Notes, will covenant that they will not, for a period of
one year and one day after the termination of the related Trust Agreement,
institute against the related Trust or Seller, any bankruptcy, reorganization or
other proceeding under any federal or state bankruptcy or similar law.
Neither the Indenture Trustee nor the Owner Trustee in its individual
capacity, nor any holder of a Certificate including, without limitation, the
Seller, nor any of their respective owners, beneficiaries, agents, officers,
directors, employees, affiliates, or any successors or assigns of the Indenture
Trustee or the Owner Trustee will, in the absence of an express agreement to the
contrary, be personally liable for the payment of the principal of or interest
on the related Notes or for the agreements of the related Trust contained in the
Indenture.
Certain Covenants. Each Indenture provides that the related Trust may not
consolidate with or merge into any other entity, unless (1) the entity formed by
or surviving such consolidation or merger is organized under the laws of the
United States, any state or the District of Columbia, (2) such entity expressly
assumes the Trust's obligation to make due and punctual payments on the Notes
and the performance or observance of every agreement and covenant of the Trust
under the Indenture, (3) no Event of Default has occurred and is continuing
immediately after such merger or consolidation, (4) the Trust has been advised
that the rating of the related Notes or Certificates then in effect would not be
reduced or withdrawn by the Rating Agencies as a result of such merger or
consolidation, (5) any action necessary to maintain the lien and security
interest created by the related Indenture has been taken and (6) the Trust has
received an opinion of counsel to the effect that such consolidation or merger
would have no material adverse tax consequence to the Trust or to any related
Noteholder or Certificateholder.
Each Trust will not, among other things, except as expressly permitted by
the Indenture, the Transfer and Servicing Agreements or certain related
documents for such Trust (collectively, the "RELATED DOCUMENTS"), (1) sell,
transfer, exchange or otherwise dispose of any of the assets of the Trust, (2)
claim any credit on or make any deduction from the principal and interest
payable in respect of the related Notes (other than amounts withheld under the
Code or applicable state law) or assert any claim against any present or former
holder of such Notes because of the payment of taxes levied or assessed upon the
Trust, (3) dissolve or liquidate in whole or in part, (4) permit the validity or
effectiveness of the related Indenture to be impaired or permit any person to be
released from any covenants or obligations with respect to the related Notes
under such Indenture except as may be expressly permitted thereby or (5) permit
any lien, charge, excise, claim, security interest, mortgage or other
encumbrance to be created on or extend to or otherwise arise upon or burden the
assets of the Trust or any part thereof, or any interest therein or the proceeds
thereof.
Except as specified in the related Prospectus Supplement, a Trust may
engage in any activity other than as specified under "The Trusts" above. No
Trust will incur, assume or guarantee any indebtedness other than indebtedness
incurred pursuant to the related Notes and the related Indenture or otherwise in
accordance with the Related Documents.
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Annual Compliance Statement. Each Trust will be required to file annually
with the related Indenture Trustee a written statement as to the fulfillment of
its obligations under the Indenture.
Indenture Trustee's Annual Report. The Indenture Trustee will be required
to mail each year to all related Noteholders, to the extent required under the
Trust Indenture Act, a brief report relating to its eligibility and
qualification to continue as Indenture Trustee under the related Indenture, any
amounts advanced by it under the Indenture, the amount, interest rate and
maturity date of certain indebtedness owing by the Trust to the Indenture
Trustee in its individual capacity, the property and funds physically held by
the Indenture Trustee as such and any action taken by it that materially affects
the Notes and that has not been previously reported.
Satisfaction and Discharge of Indenture. The Indenture will be discharged
with respect to the related Notes upon the delivery to the related Indenture
Trustee for cancellation of all such Notes or, with certain limitations, upon
deposit with the Indenture Trustee of funds sufficient for the payment in full
of all of such Notes. The Indenture Trustee will continue to act as Indenture
Trustee under the Indenture and the related Trust Sale and Servicing Agreement
for the benefit of the related Certificateholders until such time as all
payments in respect of Certificate Balance and interest due to such
Certificateholders have been paid in full.
THE INDENTURE TRUSTEE
The Indenture Trustee for a series of Notes will be specified in the
related Prospectus Supplement. The Indenture Trustee may give notice of its
intent to resign at any time, in which event the Trust will be obligated to
appoint a successor trustee. The Trust may also remove the Indenture Trustee if
the Indenture Trustee ceases to be eligible to continue as such under the
Indenture or if the Indenture Trustee becomes insolvent or otherwise becomes
incapable of acting. In such circumstances, the Trust will be obligated to
appoint a successor trustee. The holders of a majority of the aggregate
principal amount of the outstanding Notes outstanding also have the right to
remove the Indenture Trustee and appoint a successor. Any resignation or removal
of the Indenture Trustee and appointment of a successor trustee does not become
effective until acceptance of the appointment by the successor trustee.
THE CERTIFICATES
GENERAL
With respect to each Trust, one or more classes of Certificates may be
issued pursuant to the terms of a Trust Agreement (the "TRUST AGREEMENT"), a
form of which has been filed as an exhibit to the Registration Statement of
which this Prospectus forms a part. The Certificates issued by each Trust may be
offered hereby or may be sold in transactions exempt from registration under the
Securities Act or retained by the Seller or its affiliates. The following
summary does not purport to be complete and is subject to, and qualified in its
entirety by reference to, all of the provisions of the Certificates and the
Trust Agreement. Where particular provisions or terms used in the Trust
Agreement are referred to, the actual provisions (including definitions of
terms) are incorporated by reference as part of this summary.
Each class of Certificates to be sold by the Certificate Underwriters (as
defined in the related Prospectus Supplement) will initially be represented by a
single Certificate registered
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in the name of the Depository, except as set forth below. Unless otherwise
specified in the related Prospectus Supplement, any Certificates offered under
any such Prospectus Supplement will be available for purchase in minimum
denominations of $20,000 and integral multiples of $1,000 in excess thereof in
book-entry form only and resales or other transfers of the Certificates will not
be permitted in amounts of less than $20,000. The Seller has been informed by
DTC that DTC's nominee will be Cede. Accordingly, Cede is expected to be the
holder of record of any offered Certificates that are not retained by the
Seller. Unless and until Definitive Certificates are issued under the limited
circumstances described herein or in the related Prospectus Supplement, no such
Certificateholder (other than the Seller) will be entitled to receive a physical
certificate representing a Certificate. In such case, all references herein to
actions by Certificateholders refer to actions taken by DTC upon instructions
from the Participants and all references herein to distributions, notices,
reports and statements to Certificateholders refer to distributions, notices,
reports and statements to DTC or Cede, as the registered holder of the
Certificates, as the case may be, for distribution to Certificateholders in
accordance with DTC's procedures with respect thereto. See "Certain Information
Regarding the Securities--Book Entry Registration" and "--Definitive Securities"
in this Prospectus. Certificates owned by the Seller or its affiliates will be
entitled to equal and proportionate benefits under the Trust Agreement, except
that, unless all such Certificates are owned by the Seller and its affiliates,
such Certificates will be deemed not to be outstanding for purposes of
determining whether the requisite percentage of Certificateholders have given
any request, demand, authorization, direction, notice, consent or other action
under the Related Documents (other than commencement by the Trust of a voluntary
proceeding in bankruptcy as described in "The Transfer and Servicing
Agreements--Insolvency Event)."
Under the Trust Agreement, the Trust (and the Owner Trustee on its behalf)
and the related Certificateholders, by accepting the related Certificates, will
covenant that they will not, for a period of one year and one day after the
termination of the Trust Agreement, institute against the Seller any bankruptcy,
reorganization or other proceeding under any federal or state bankruptcy or
similar law.
DISTRIBUTIONS OF INTEREST AND CERTIFICATE BALANCE
The timing and priority of distributions, seniority, allocations of loss,
Pass Through Rate and amount of or method of determining distributions with
respect to Certificate Balance and interest (or, where applicable, with respect
to Certificate Balance only or interest only) on the Certificates of any series
will be described in the related Prospectus Supplement. Distributions of
interest on the Certificates will be made on the dates specified in the related
Prospectus Supplement (each, a "DISTRIBUTION DATE") and will be made prior to
distributions with respect to Certificate Balance. A series may include one or
more classes of Certificates ("STRIP CERTIFICATES") entitled to (1)
distributions in respect of Certificate Balance with disproportionate, nominal
or no interest distributions, or (2) interest distributions, with
disproportionate, nominal or no distributions in respect of Certificate Balance.
Each class of Certificates may have a different Pass Through Rate, which may be
a fixed, variable or adjustable Pass Through Rate (and which may be zero for
certain classes of Strip Certificates), or any combination of the foregoing. The
related Prospectus Supplement will specify the Pass Through Rate for each class
of Certificate, or the initial Pass Through Rate and the method for determining
the Pass Through Rate. Unless otherwise specified in the related Prospectus
Supplement, interest on the Certificates will be calculated on the basis of a
360-day year consisting of twelve 30-day months. Distributions in respect of the
Certificates will be subordinate to payments in respect of the Notes as more
fully described in the related
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Prospectus Supplement. Distributions in respect of Certificate Balance of any
class of Certificates will be made on a pro rata basis among all of the
Certificateholders of such class.
In the case of a series of Certificates which includes two or more classes
of Certificates, the timing, sequential order, priority of payment or amount of
distributions in respect of principal, and any schedule or formula or other
provisions applicable to the determination thereof, of each such class shall be
as set forth in the related Prospectus Supplement.
CERTAIN INFORMATION REGARDING THE SECURITIES
BOOK-ENTRY REGISTRATION
The Depository Trust Company ("DTC") is a limited purpose trust company
organized under the laws of the State of New York, a member of the Federal
Reserve System, a "clearing corporation" within the meaning of the New York UCC
and a "clearing agency" registered pursuant to Section 17A of the Exchange Act.
DTC was created to hold securities for its Participants and to facilitate the
clearance and settlement of securities transactions between Participants through
electronic book-entries, thereby eliminating the need for physical movement of
certificates. Participants include securities brokers and dealers, banks, trust
companies and clearing corporations. Indirect access to the DTC system also is
available to others such as banks, brokers, dealers and trust companies that
clear through or maintain a custodial relationship with a Participant, either
directly or indirectly ("INDIRECT PARTICIPANTS").
A "SECURITYHOLDER," as used herein, shall mean a holder of a beneficial
interest in a book-entry security. Unless otherwise specified in the related
Prospectus Supplement, Securityholders that are not Participants or Indirect
Participants but desire to purchase, sell or otherwise transfer ownership of, or
other interests in, Securities may do so only through Participants and Indirect
Participants. In addition, Securityholders will receive all distributions of
principal and interest from the related Owner Trustee or Indenture Trustee, as
applicable (the "APPLICABLE TRUSTEE"), through DTC Participants. Under a
book-entry format, Securityholders may experience some delay in their receipt of
payments, since such payments will be forwarded by the Applicable Trustee to
Cede & Co. ("CEDE"), as nominee for DTC. DTC will forward such payments to its
Participants, which thereafter will forward them to Indirect Participants or
Securityholders. Except for the Seller, it is anticipated that the only
"Noteholder" and "Certificateholder" will be Cede, as nominee of DTC.
Securityholders will not be recognized by the Trustee as Noteholders or
Certificateholders, as such term is used in the Trust Agreement and Indenture,
as applicable, and Securityholders will be permitted to exercise the rights of
Securityholders only indirectly through DTC and its Participants.
Under the rules, regulations and procedures creating and affecting DTC and
its operations (the "RULES"), DTC is required to make book-entry transfers of
Securities among Participants on whose behalf it acts with respect to the
Securities and to receive and transmit payments of principal of, and interest
on, the Securities. Participants and Indirect Participants with which
Securityholders have accounts with respect to the Securityholders similarly are
required to make book-entry transfers and receive and transmit such payments on
behalf of their respective Securityholders. Accordingly, although
Securityholders will not possess Securities the Rules provide a mechanism by
which Securityholders will receive payments and will be able to transfer their
interests.
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Because DTC can only act on behalf of Participants, who in turn act on
behalf of Indirect Participants and certain banks, the ability of
Securityholders to pledge Securities to persons or entities that do not
participate in the DTC system, or to otherwise act with respect to such
Securityholders may be limited due to the lack of a physical certificate for
such Securities.
DTC has advised the Seller that it will take any action permitted to be
taken by a Noteholder under the related Indenture or a Certificateholder under
the related Trust Agreement only at the direction of one or more Participants to
whose accounts with DTC the Notes or Certificates are credited. DTC may take
conflicting actions with respect to other undivided interests to the extent that
such actions are taken on behalf of Participants whose holdings include such
undivided interests.
In addition to holding Notes through Participants or Indirect Participants
of DTC in the United States as described above, holders of book-entry Notes may
hold their Notes through Cedelbank or Euroclear in Europe if they are
participants of such systems, or indirectly through organizations which are
participants in such systems.
Cedelbank and Euroclear will hold omnibus positions on behalf of their
participants through customers' securities accounts in Cedelbank's and
Euroclear's names on the books of their respective depositaries which in turn
will hold such positions in customers' securities accounts in the depositaries'
names on the books of DTC.
Transfers between Cedelbank Participants (as defined below) and Euroclear
Participants (as defined below) will occur in accordance with their respective
rules and operating procedures. Cross-market transfers between persons holding
directly or indirectly through DTC, on the one hand, and directly or indirectly
through Cedelbank Participants or Euroclear Participants, on the other hand,
will be effected in DTC in accordance with DTC rules on behalf of the relevant
European international clearing systems by its depositary. Cross-market
transactions will require delivery of instructions to the relevant European
international clearing system by the counterparty in such system in accordance
with its rules and procedures and within its established deadlines (European
time). The relevant European international clearing system will, if the
transaction meets its settlement requirements, deliver instructions to its
depositary to take action to effect final settlement on its behalf by delivering
or receiving securities in DTC, and making or receiving payment in accordance
with normal procedures for same-day funds settlement applicable to DTC.
Cedelbank Participants and Euroclear Participants may not deliver instructions
directly to the depositaries.
Because of time-zone differences, credits of securities received in
Cedelbank or Euroclear as a result of a transaction with a Participant will be
made during subsequent securities settlement processing and dated the Business
Day following the DTC settlement date. Such credits or any transactions in such
securities settled during such processing will be reported to the relevant
Euroclear or Cedelbank Participants on such Business Day. Cash received in
Cedelbank or Euroclear as a result of sales of securities by or through a
Cedelbank Participant or a Euroclear Participant to a Participant will be
received with value on the DTC settlement date but will be available in the
relevant Cedelbank or Euroclear cash account only as of the Business Day
following settlement in DTC. For information with respect to tax documentation
procedures, see "Certain Federal Income Tax Considerations--Characterization and
Treatment--Tax Consequences to Foreign Noteholders" in this Prospectus.
Cedelbank is incorporated under the laws of Luxembourg as a professional
depository. Cedelbank holds securities for its participating organizations
("CEDELBANK PARTICIPANTS") and
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facilitates the clearance and settlement of securities transactions between
Cedelbank Participants through electronic book-entry changes in accounts of
Cedelbank Participants, thereby eliminating the need for physical movement of
certificates. Transactions may be settled in Cedelbank in any of 28 currencies,
including United States dollars. Cedelbank provides to Cedelbank Participants,
among other things, services for safekeeping, administration, clearance and
settlement of internationally traded securities and securities lending and
borrowing. Cedelbank interfaces with domestic markets in several countries. As a
professional depository, Cedelbank is subject to regulation by the Luxembourg
Monetary Institute. Cedelbank Participants are recognized financial institutions
around the world, including underwriters, securities brokers and dealers, banks,
trust companies, clearing corporations and certain other organizations and may
include the Underwriters. Indirect access to Cedelbank is also available to
others, such as banks, brokers, dealers and trust companies that clear through
or maintain a custodial relationship with a Cedelbank Participant, either
directly or indirectly.
Euroclear was created in 1968 to hold securities for participants of
Euroclear ("EUROCLEAR PARTICIPANTS") and to clear and settle transactions
between Euroclear Participants through simultaneous electronic book-entry
delivery against payment, thereby eliminating the need for physical movement of
certificates and any risk from lack of simultaneous transfers of securities and
cash. Transactions may now be settled in any of 29 currencies, including United
States dollars. Euroclear includes various other services, including securities
lending and borrowing and interfaces with domestic markets in several countries
generally similar to the arrangements for cross-market transfers with DTC
described above. Euroclear is operated by the Brussels, Belgium office of Morgan
Guaranty Trust Company of New York (the "EUROCLEAR OPERATOR"), under contract
with Euro-clear Clearance Systems S.C., a Belgian cooperative corporation (the
"COOPERATIVE"). All operations are conducted by the Euroclear Operator, and all
Euroclear securities clearance accounts and Euroclear cash accounts are accounts
with the Euroclear Operator, not the Cooperative. The Cooperative establishes
policy for Euroclear on behalf of Euroclear Participants. Euroclear Participants
include banks (including central banks), securities brokers and dealers and
other professional financial intermediaries and may include the Underwriters.
Indirect access to Euroclear is also available to other firms that clear through
or maintain a custodial relationship with a Euroclear Participant, either
directly or indirectly.
The Euroclear Operator is the Belgian branch of a New York banking
corporation which is a member bank of the Federal Reserve System. As such, it is
regulated and examined by the Board of Governors of the Federal Reserve System
and the New York State Banking Department, as well as the Belgian Banking
Commission.
Securities clearance accounts and cash accounts with the Euroclear Operator
are governed by the Terms and Conditions Governing Use of Euroclear and the
related Operating Procedures of the Euroclear System and the applicable Belgian
law (collectively, the "TERMS AND CONDITIONS"). The Terms and Conditions govern
transfers of securities and cash with Euroclear, withdrawals of securities and
cash from Euroclear, and receipts of payments with respect to securities in
Euroclear. All securities in Euroclear are held on a fungible basis without
attribution of specific certificates to specific securities clearance accounts.
The Euroclear Operator acts under the Terms and Conditions only on behalf of
Euroclear Participants, and has no record of or relationship with persons
holding through Euroclear Participants.
Distributions with respect to Notes held through Cedelbank or Euroclear
will be credited to the cash accounts of Cedelbank Participants or Euroclear
Participants in accordance with
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the relevant system's rules and procedures, to the extent received by its
depositary. Such distributions will be subject to tax reporting in accordance
with relevant United States tax laws and regulations. See "Certain Federal
Income Tax Considerations--Characterization and Treatment--Information Reporting
and Backup Withholding" in this Prospectus. Cedelbank or the Euroclear Operator,
as the case may be, will take any other action permitted to be taken by a
Noteholder under the Indenture or other Related Document on behalf of a
Cedelbank Participant or Euroclear Participant only in accordance with its
relevant rules and procedures and subject to its depositary's ability to effect
such actions on its behalf through DTC.
Although DTC, Cedelbank and Euroclear have agreed to the foregoing
procedures in order to facilitate transfers of Notes among participants of DTC,
Cedelbank and Euroclear, they are under no obligation to perform or continue to
perform such procedures and such procedures may be discontinued at any time.
Except as required by law, neither the Trust, the Seller, the Servicer, the
Administrator, the Owner Trustee nor the Indenture Trustee will have any
liability for any aspect of the records relating to or payments made on account
of beneficial ownership interests of the Notes or the Certificates of any series
held by Cede, as nominee for DTC, by Cedelbank or by Euroclear in Europe, or for
maintaining, supervising or reviewing any records relating to such beneficial
ownership interests.
DEFINITIVE SECURITIES
Unless otherwise specified in the related Prospectus Supplement, any Notes
and Certificates originally issued in book-entry form will be issued in fully
registered, certificated form ("DEFINITIVE NOTES" or "DEFINITIVE CERTIFICATES,"
as the case may be, and, collectively, the "DEFINITIVE SECURITIES") to
Noteholders, Certificateholders or their respective nominees, rather than to DTC
or its nominee, only if (1) the related Administrator advises the appropriate
trustee in writing that DTC is no longer willing or able to discharge properly
its responsibilities as depository with respect to such Securities and the Trust
is unable to locate a qualified successor, (2) the Administrator, at its option,
elects to terminate the book-entry system through DTC or (3) after the
occurrence of an Event of Default or a Servicer Default, holders representing at
least a majority of the outstanding principal amount of such Securities advise
the appropriate trustee through DTC in writing that the continuation of a
book-entry system through DTC (or a successor thereto) is no longer in the best
interest of the holders of such Securities.
Upon the occurrence of any event described in the immediately preceding
paragraph, the appropriate trustee will be required to notify DTC of the
availability of Definitive Notes or Definitive Certificates, as the case may be.
DTC shall notify all the Note Owners or Certificate Owners, as applicable, of
the availability of Definitive Notes or Definitive Certificates, as the case may
be. Upon surrender by DTC of the definitive certificates representing the
Securities and receipt of instructions for re-registration, the appropriate
trustee will reissue such Securities as Definitive Notes or Definitive
Certificates, as the case may be, to holders thereof.
Distributions of principal of, and interest on, the Definitive Securities
will thereafter be made in accordance with the procedures set forth in the
related Indenture or related Trust Agreement, as applicable, directly to holders
of Definitive Securities in whose names the Definitive Securities were
registered at the close of business on the last day of the preceding Monthly
Period. Such distributions will be made by check mailed to the address of such
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holder as it appears on the register maintained by the Indenture Trustee or
Owner Trustee, as applicable. The final payment on any Definitive Security,
however, will be made only upon presentation and surrender of such Definitive
Security at the office or agency specified in the notice of final distribution
to the holders of such class.
Definitive Securities will be transferable and exchangeable at the offices
of the appropriate trustee or of a registrar named in a notice delivered to
holders of Definitive Securities. No service charge will be imposed for any
registration of transfer or exchange, but the appropriate trustee may require
payment of a sum sufficient to cover any tax or other governmental charge
imposed in connection therewith.
REPORTS TO SECURITYHOLDERS
With respect to each Trust, on or prior to each Payment Date, the Servicer
will prepare and provide to the Indenture Trustee a statement to be delivered to
the related Noteholders on such Payment Date and on or prior to each
Distribution Date, the Servicer will prepare and provide to the Owner Trustee a
statement to be delivered to the related Certificateholders. Each such statement
to be delivered to Noteholders will include the information set forth below as
to the Notes with respect to such Payment Date or the period since the previous
Payment Date on such Notes, as applicable. Each such statement to be delivered
to Certificateholders will include the information set forth below as to the
Certificates with respect to such Distribution Date or the period since the
previous Distribution Date, as applicable:
(1) the amount of the distribution allocable to principal of each
class of the Notes and to the Certificate Balance of each class of
Certificates;
(2) the amount of the distribution allocable to interest on or with
respect to each class of securities;
(3) the Aggregate Principal Balance as of the close of business on the
last day of the preceding Monthly Period;
(4) the aggregate outstanding principal balance and the Note Pool
Factor for each class of Notes, and the Certificate Balance and the
Certificate Pool Factor for each class of Certificates, each after giving
effect to all payments reported under (1) above on such date;
(5) 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 statement, as the case may be;
(6) the amount of outstanding Monthly Advances on such date;
(7) the amount of the Total Servicing Fee paid to the Servicer with
respect to the related Monthly Period or Periods, as the case may be;
(8) the Interest Rate or Pass Through Rate for the next period for any
class of Notes or Certificates with variable or adjustable rates;
(9) the amount, if any, distributed to Noteholders and
Certificateholders from amounts on deposit in the Reserve Account or from
other forms of credit enhancement;
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(10) the Noteholders' Interest Carryover Shortfall, the Noteholders'
Principal Carryover Shortfall, the Certificateholders' Interest Carryover
Shortfall and the Certificateholders' Principal Carryover Shortfall (each
as defined in the related Prospectus Supplement), if any, and the change in
such amounts from the preceding statement; and
(11) the balance of the Reserve Account, if any, on such date, after
giving effect to changes therein on such date.
Each amount set forth pursuant to subclauses (1), (2), (7), (9) and (10)
with respect to Notes or Certificates will be expressed as a dollar amount per
$1,000 of the initial principal balance of the Notes or the initial Certificate
Balance, as applicable.
Within the prescribed period of time for tax reporting purposes after the
end of each calendar year during the term of the Trust, the trustees will mail
to each holder of a class of Securities who at any time during such calendar
year has been a securityholder, and received any payment thereon, a statement
containing certain information for the purposes of such securityholder's
preparation of federal income tax returns. As long as the holder of record of
the Securities is Cede, as nominee of DTC, beneficial owners of the Securities
will receive tax and other information from Participants and Indirect
Participants rather than from the trustees. See "Certain Federal Income Tax
Considerations" in this Prospectus.
THE TRANSFER AND SERVICING AGREEMENTS
Except as otherwise specified in the related Prospectus Supplement, the
following summary describes certain terms of:
(1) the Pooling and Servicing Agreement pursuant to which the Seller
will purchase Receivables from GMAC, the Servicer will agree to service
such Receivables, and GMAC, as Custodian, will agree to act as custodian
for the documents evidencing the Receivables,
(2) the Trust Sale and Servicing Agreement pursuant to which a Trust
will acquire such Receivables from the Seller and agree to the servicing
thereof by the Servicer and the appointment of GMAC as Custodian,
(3) the Trust Agreement pursuant to which such Trust will be created
and Certificates will be issued and
(4) the Administration Agreement pursuant to which GMAC will undertake
certain administrative duties with respect to such Trust (collectively, the
"TRANSFER AND SERVICING AGREEMENTS"). Forms of the Transfer and Servicing
Agreements have been filed as exhibits to the Registration Statement of
which this Prospectus forms a part. The Seller will provide a copy of the
Transfer and Servicing Agreements (without exhibits) upon request to a
holder of Securities described therein. This summary does not purport to be
complete and is subject to, and qualified in its entirety by reference to,
all of the provisions of the Transfer and Servicing Agreements. Where
particular provisions or terms used in the Transfer and Servicing
Agreements are referred to, the actual provisions (including definitions of
terms) are incorporated by reference as part of such summary.
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SALE AND ASSIGNMENT OF RECEIVABLES
On the Closing Date specified in the related Prospectus Supplement (the
"CLOSING DATE"), GMAC will sell and assign to the Seller, without recourse, its
entire interest in the related Receivables, including its security interests in
the Financed Vehicles, pursuant to a Pooling and Servicing Agreement between
GMAC and the Seller (a "POOLING AND SERVICING AGREEMENT"). On the Closing Date,
the Seller will transfer and assign to the applicable Trust, without recourse,
its entire interest in the related Receivables, including its security interests
in the Financed Vehicles, pursuant to a Trust Sale and Servicing Agreement among
the Seller, the Servicer and the Trust (a "TRUST SALE AND SERVICING AGREEMENT").
Each Receivable with respect to a Trust will be identified in a schedule which
will be on file at the locations set forth in an exhibit to the related Trust
Sale and Servicing Agreement (a "SCHEDULE OF RECEIVABLES"). The Trust will,
concurrently with such transfer and assignment, execute and deliver the related
Notes and Certificates to the Seller in exchange for such Receivables. Except as
set forth in the related Prospectus Supplement, the Seller will sell the related
Securities offered hereby (which may or may not include all Securities of a
series) to the respective underwriters set forth in the related Prospectus
Supplement. See "Plan of Distribution" in this Prospectus.
In each Pooling and Servicing Agreement, GMAC will represent and warrant to
the Seller, among other things, that:
(1) the information provided in the related Schedule of Receivables is
correct in all material respects;
(2) the obligor on each Receivable is required to maintain physical
damage insurance covering the Financed Vehicle in accordance with GMAC's
normal requirements;
(3) as of the Closing Date, to the best of its knowledge, the related
Receivables are free and clear of all filed security interests, liens,
charges and encumbrances on account of work, labor or materials (other than
tax liens and other liens that arise by operation of law) and no offsets,
defenses or counterclaims have been asserted or threatened;
(4) as of the Closing Date, each Receivable is or will be secured by a
first perfected security interest in favor of GMAC in the Financed Vehicle;
and
(5) each related Receivable, at the time it was originated complied,
and as of the Closing Date complies, in all material respects with
applicable federal and state laws, including, without limitation, consumer
credit, truth-in-lending, equal credit opportunity and disclosure laws. In
the related Trust Sale and Servicing Agreement, the Seller will assign the
representations and warranties of GMAC, as set forth above, to the Trust,
and will represent and warrant to the Trust 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.
As of the last day of the second (or, if the Seller elects, the first)
month following the discovery by the Seller, the Servicer, the Owner Trustee or
the Indenture Trustee of a breach of any representation or warranty of the
Seller or GMAC that materially and adversely affects the interests of the
related Securityholders in any Receivable, the Seller, unless the breach is
cured in all material respects, will repurchase (or, will enforce the obligation
of GMAC under the Pooling and Servicing Agreement to repurchase) such Receivable
(a "WARRANTY RECEIVABLE") from the Trust at a price equal to: (a) in the case of
a Scheduled Interest
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Receivable, the sum of all remaining Scheduled Payments on such Receivable, plus
all past due Scheduled Payments with respect to which a Scheduled Interest
Advance has not been made, plus all outstanding Scheduled Interest Advances on
such Receivable, plus an amount equal to any reimbursements of outstanding
Scheduled Interest Advances made to the Servicer with respect to such Receivable
from the proceeds of other Receivables, minus (1) the rebate that would be
payable to the obligor on such Receivable were the obligor to prepay such
Receivable in full on such day and (2) any Liquidation Proceeds with respect to
such Receivable previously received (to the extent applied to reduce the
Principal Balance of such Receivable); or (b) in the case of a Simple Interest
Receivable, the Amount Financed minus (1) that portion of all payments received
on or prior to the last day of the related Monthly Period allocable to principal
and (2) any Liquidation Proceeds with respect to such Receivable (to the extent
applied to reduce the Principal Balance of such Receivable) (in either case, the
"WARRANTY PAYMENT"). The Seller or GMAC, as applicable, will be entitled to
receive any amounts held by the Servicer or in the Payment Ahead Servicing
Account with respect to such Warranty Receivable. The repurchase obligation
constitutes the sole remedy available to the Trust, the Noteholders, the
Indenture Trustee, the Certificateholders or the Owner Trustee for any such
uncured breach.
In each Pooling and Servicing Agreement, the Servicer will covenant that
(1) except as contemplated in such Agreement, the Servicer will not release any
Financed Vehicle from the security interest securing the related Receivable, (2)
the Servicer will do nothing to impair the rights of the Indenture Trustee, the
Owner Trustee, the Noteholders or the Certificateholders in the related
Receivables and (3) the Servicer will not amend or otherwise modify any such
Receivable such that the Amount Financed, the APR, 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 Distribution Date. As of
the last day of the second (or, if the Servicer so elects, the first) month
following the discovery by the Servicer, the Owner Trustee or the Indenture
Trustee of a breach of any covenant that materially and adversely affects any
Receivable and unless such breach is cured in all material respects, the
Servicer will, with respect to such Receivable (an "ADMINISTRATIVE RECEIVABLE"):
(1) in the case of a Scheduled Interest Receivable, (a) release all claims for
reimbursement of Scheduled Interest Advances made on such Receivable and (b)
purchase such Receivable from the Trust at a price equal to the sum of all
remaining Scheduled Payments on such Receivable plus an amount equal to any
reimbursements of outstanding Scheduled Interest Advances made to the Servicer
with respect to such Receivable from the proceeds of other Receivables, plus all
past due Scheduled Payments with respect to which a Scheduled Interest Advance
has not been made, minus the rebate that would be payable to the obligor on such
Receivable were the obligor to prepay such Receivable in full on such day; or
(2) in the case of a Simple Interest Receivable, purchase such Receivable from
the Trust at a price equal to the Amount Financed minus that portion of all
payments made on or prior to the last day of the related Monthly Period
allocable to principal (in either case, the "ADMINISTRATIVE PURCHASE PAYMENT").
The Servicer will be entitled to receive any amounts held by the Servicer or in
the Payment Ahead Servicing Account with respect to such Administrative
Receivable. This repurchase obligation constitutes the sole remedy available to
the Trust, the Indenture Trustee, the Owner Trustee, the Noteholders and the
Certificateholders for any such uncured breach.
Pursuant to each Trust Sale and Servicing Agreement, the Trust will agree
to GMAC acting as custodian to maintain possession, as the Trust's agent, of the
related retail instalment
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sale contracts and any other documents relating to the Receivables. To assure
uniform quality in servicing both the Receivables and GMAC's own portfolio of
receivables, as well as to facilitate servicing and save administrative costs,
the documents will not be physically segregated from other similar documents
that are in GMAC's possession or otherwise stamped or marked to reflect the
transfer to the related Trust so long as GMAC is the custodian of such
documents. However, Uniform Commercial Code ("UCC") financing statements
reflecting the sale and assignment of such Receivables to the Trust and the
pledge by the Trust to the Indenture Trustee will be filed, and the Servicer's
accounting records and computer files will reflect such sale and assignment.
Because such Receivables will remain in the possession of GMAC, as Custodian,
and will not be stamped or otherwise marked to reflect the assignment to the
Trust or the pledge to the Indenture Trustee, if a subsequent purchaser were
able to take physical possession of the Receivables without knowledge of the
assignment, the Trust's and the Indenture Trustee's interests in such
Receivables could be defeated.
ACCOUNTS
With respect to each Trust, the Servicer will establish and maintain one or
more accounts, in the name of the Indenture Trustee on behalf of the related
Noteholders and the Certificateholders, into which all payments made on or with
respect to the related Receivables will be deposited (the "COLLECTION ACCOUNT").
The Servicer will establish and maintain with respect to each Trust an account,
in the name of the Indenture Trustee on behalf of the related Noteholders, in
which amounts released from the Collection Account and any Reserve Account or
other credit enhancement for payment to such Noteholders will be deposited and
from which all distributions to such Noteholders will be made (the "NOTE
DISTRIBUTION ACCOUNT"). The Servicer will establish and maintain with respect to
each Trust an account, in the name of the Owner Trustee on behalf of the related
Certificateholders, in which amounts released from the Collection Account and
any Reserve Account or other credit enhancement for distribution to such
Certificateholders will be deposited and from which all distributions to such
Certificateholders will be made (the "CERTIFICATE DISTRIBUTION ACCOUNT"). The
Servicer will establish for each Trust an additional account (the "PAYMENT AHEAD
SERVICING ACCOUNT") in the name of the Indenture Trustee, into which to the
extent required by the Trust Sale and Servicing Agreement, early payments by or
on behalf of obligors on Scheduled Interest Receivables which do not constitute
either Scheduled Payments or Prepayments will be deposited until such time as
payment becomes due. The Payment Ahead Servicing Account will not be property of
the related Trust. Unless otherwise provided in the related Prospectus
Supplement, the Payment Ahead Servicing Account will initially be maintained in
the trust department of the Indenture Trustee.
For any series, funds in the Collection Account, the Note Distribution
Account and any Reserve Account and other accounts identified as such in the
related Prospectus Supplement (collectively, the "DESIGNATED ACCOUNTS") will be
invested as provided in the Trust Sale and Servicing Agreement in Eligible
Investments. "ELIGIBLE INVESTMENTS" are generally limited to investments
acceptable to the rating agencies then rating the related Notes and Certificates
at the request of the Seller (the "RATING AGENCIES") as being consistent with
the rating of such Notes. Except as described below or in the related Prospectus
Supplement, Eligible Investments are limited to obligations or securities that
mature no later than the business day preceding the next Distribution Date or,
in the case of the Note Distribution Account, the next Payment Date with respect
to the Notes. To the extent permitted by the Rating Agencies, funds in any
Reserve Account may be invested in related Notes that will not mature prior to
the next Payment Date with respect to the Notes. Except as otherwise specified
in the
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related Prospectus Supplement, such Notes will not be sold to meet any
shortfalls unless they are sold at a price equal to or greater than the unpaid
principal balance thereof if, following such sale, the amount on deposit in such
Reserve Account would be less than the related Specified Reserve Account
Balance. Thus, the amount of cash in any Reserve Account at any time may be less
than the balance of the Reserve Account. If the amount required to be withdrawn
from any Reserve Account to cover shortfalls in collections on the Receivables
(as provided in the related Prospectus Supplement) exceeds the amount of cash in
the Reserve Account, a temporary shortfall in the amounts distributed to the
Noteholders or Certificateholders could result, which could, in turn, increase
the average life of the Notes or the Certificates. Except as otherwise specified
in the related Prospectus Supplement, investment earnings on funds deposited in
the Designated Accounts and the Payment Ahead Servicing Account, net of losses
and investment expenses (collectively, "INVESTMENT EARNINGS"), will be payable
to the Servicer.
The Designated Accounts will be maintained as Eligible Deposit Accounts.
"ELIGIBLE DEPOSIT ACCOUNT" means either (a) a segregated account with an
Eligible Institution or (b) 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 then rating such institution in one of its generic rating categories
which signifies investment grade. "ELIGIBLE INSTITUTION" means, with respect to
a Trust, (a) the corporate trust department of the related Indenture Trustee or
the Owner Trustee, as applicable, or (b) 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), (1)
which has either (A) a long-term unsecured debt rating acceptable to the Rating
Agencies or (B) a short-term unsecured debt rating or certificate of deposit
rating acceptable to the Rating Agencies and (2) whose deposits are insured by
the Federal Deposit Insurance Corporation or any successor thereto.
Any other accounts to be established with respect to a Trust will be
described in the related Prospectus Supplement.
SERVICING COMPENSATION AND PAYMENT OF EXPENSES
With respect to each Trust, unless otherwise provided in the related
Prospectus Supplement, on each Distribution Date, the Servicer will receive a
servicing fee (the "BASIC SERVICING FEE") for the preceding Monthly Period equal
to one-twelfth of the Basic Servicing Fee Rate specified in the related
Prospectus Supplement multiplied by the Aggregate Principal Balance of all
Receivables held by such Trust as of the first day of such Monthly Period.
Unless otherwise specified in the related Prospectus Supplement, on each
Distribution Date, the Servicer will also receive with respect to each Trust an
additional amount (the "ADDITIONAL SERVICING") equal to the lesser of (1) the
amount 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 (2) the amount by which the amount on deposit
in the Reserve Account on such Distribution Date (after giving effect to all
deposits, withdrawals and payments affecting any such Reserve Account other than
the Additional Servicing and payments to the Seller) exceeds the Specified
Reserve Account Balance. On each Distribution Date, the Servicer will be paid
the Basic Servicing Fee, any unpaid Basic
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Servicing Fees from all prior Distribution Dates and the Additional Servicing
(collectively, the "TOTAL SERVICING FEE") to the extent of funds available
therefor. Unless otherwise provided in the Prospectus Supplement, the Total
Servicing Fee for each Monthly Period (together with any portion of the Total
Servicing Fee that remains unpaid from prior Distribution Dates) may be paid at
the beginning of such Monthly Period out of collections for such Monthly Period.
In addition, unless otherwise provided in the related Prospectus Supplement,
with respect to each Trust the Servicer will be entitled to retain any late
fees, prepayment charges or certain similar fees and charges collected during a
Monthly Period (the "SUPPLEMENTAL SERVICING FEE") and any Investment Earnings
during a Monthly Period.
The foregoing amounts with respect to each Trust are intended to compensate
the Servicer for performing the functions of a third party servicer of
automobile receivables as an agent for their beneficial owner, including
collecting and posting all payments, responding to inquiries of obligors on the
Receivables, investigating delinquencies, sending payment coupons to obligors,
reporting tax information to obligors and policing the collateral. Such amounts
will also compensate the Servicer for its services as the Receivables Pool
administrator, including making Monthly Advances, accounting for collections,
furnishing monthly and annual statements to the Owner Trustee and the Indenture
Trustee with respect to distributions and generating federal income tax
information for the Trust, the Certificateholders and the Noteholders. Such
amounts also will reimburse the Servicer for certain taxes, the fees of the
Owner Trustee and the Indenture Trustee, accounting fees, outside auditor fees,
data processing costs and other costs incurred in connection with administering
the Receivables Pool.
SERVICING PROCEDURES
The Servicer will make reasonable efforts to collect all payments due with
respect to the Receivables held by any Trust and will, consistent with the
related Pooling and Servicing Agreement and Trust Sale and Servicing Agreement,
follow such collection procedures as it follows with respect to comparable
automobile receivables that it services for itself or others. See "Certain Legal
Aspects of the Receivables" in this Prospectus. The Servicer is authorized to
grant certain rebates, adjustments or extensions with respect to a Receivable.
However, if any such modification of a Receivable alters the Amount Financed,
the APR, 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) 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
Distribution Date, the Servicer will be obligated to purchase such Receivable.
If the Servicer determines that eventual payment in full of a Receivable is
unlikely, the Servicer will follow its normal practices and procedures to
realize upon the Receivable, including the repossession and disposition of the
Financed Vehicle securing the Receivable at a public or private sale, or the
taking of any other action permitted by applicable law. The Servicer will be
entitled to receive an amount specified in the Pooling and Servicing Agreement
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
("LIQUIDATION EXPENSES").
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COLLECTIONS
With respect to each Trust, the Servicer will deposit all payments on the
related Receivables received from obligors and all proceeds of Receivables
collected during each calendar month (each, a "MONTHLY PERIOD") into the related
Collection Account not later than two Business Days after receipt. However, at
any time that (1) GMAC is the Servicer, (2) there exists no Servicer Default and
(3) either (A) the short-term unsecured debt of the Servicer is rated at least
A-1 by Standard & Poor's Rating Services and P-1 by Moody's Investors Service,
Inc., or (B) certain arrangements are made which are acceptable to the Rating
Agencies, the Servicer may retain such amounts until the related Distribution
Date. Pending deposit into the Collection Account, collections may be employed
by the Servicer at its own risk and for its own benefit and will not be
segregated from its own funds.
Collections on a Scheduled Interest Receivable made during a Monthly Period
(other than an Administrative Receivable or a Warranty Receivable) which are not
late fees, prepayment charges or certain other similar fees or charges will be
applied first to any outstanding Scheduled Interest Advances made by the
Servicer with respect to such Receivable and then to the Scheduled Payment. Any
collections on such a Receivable remaining after such applications will be
considered an "EXCESS PAYMENT." Such Excess Payment will be held by the Servicer
(or, if the Servicer has not satisfied conditions (2) and (3) described in the
preceding paragraph, will be deposited in the Payment Ahead Servicing Account),
and will be deemed a "PAYMENT AHEAD," except as described in the following
sentence. If and to the extent that an Excess Payment (1) together with any
unapplied Payments Ahead exceeds the sum of three Scheduled Payments, or (2)
constitutes, either alone or together with any previous unapplied Payments
Ahead, full prepayment, then such portion of such Excess Payment shall not be
deemed a Payment Ahead and shall instead be applied as a full or partial
prepayment of such Receivable (a "PREPAYMENT"). On any Distribution Date on
which a Prepayment is to be applied with respect to a Scheduled Interest
Receivable, the "Prepayment Surplus" will equal that portion of the Prepayment,
net of any rebate to the obligor of the portion of the Scheduled Payments
attributable to unearned finance charges, which is not allocable to principal.
Collections made during a Monthly Period with respect to Simple Interest
Receivables (other than Administrative Receivables and Warranty Receivables)
which are not late fees or certain other similar fees or charges will 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 Receivables. With respect to
a Monthly Period, "EXCESS SIMPLE INTEREST COLLECTIONS" represent the excess, if
any, of (1) all payments received during such Monthly Period on all Simple
Interest Receivables held by the Trust to the extent allocable to interest over
(2) the amount of interest that would be due during such Monthly Period on all
Simple Interest Receivables held by the Trust, assuming that the payment on each
such Receivable was received on its respective due date.
Collections on Administrative Receivables and Warranty Receivables
(including Administrative Purchase Payments and Warranty Payments) will
generally be applied in the manner described above, except that unapplied
Payments Ahead on a Scheduled Interest Receivable will be made to the Servicer
or the Seller, as applicable, and Administrative Purchase Payments and Warranty
Payments on a Simple Interest Receivable will not be applied to Excess Simple
Interest Collections.
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MONTHLY ADVANCES
Unless otherwise provided in the related Prospectus Supplement, if the full
Scheduled Payment due on a Scheduled Interest Receivable is not received by the
end of the month in which it is due, whether as the result of any extension
granted to the obligor or otherwise, the amount of Payments Ahead, if any, not
previously applied with respect to such Receivable will be applied by the
Servicer to the extent of the shortfall and the Payments Ahead will be reduced
accordingly. If any shortfall remains, the Servicer will advance an amount (a
"SCHEDULED INTEREST ADVANCE") equal to the amount of such shortfall. The
Servicer will be obligated to make a Scheduled Interest Advance only to the
extent that the Servicer, in its sole discretion, expects to recoup such advance
from subsequent collections or recoveries on any Receivable. The Servicer will
be reimbursed for any Scheduled Interest Advances with respect to a Receivable
from subsequent payments or collections relating to such Receivable. At such
time as the Servicer determines that Scheduled Interest Advances will not be
recoverable from payments with respect to such Receivable, the Servicer will be
entitled to recoup its Scheduled Interest Advances from collections from other
related Receivables.
Unless otherwise provided in the related Prospectus Supplement, with
respect to each Trust, as of the last day of each Monthly Period, the Servicer
will advance an amount (a "SIMPLE INTEREST ADVANCE" and, collectively with a
Scheduled Interest Advance, a "MONTHLY ADVANCE") equal to the excess, if any, of
(1) the amount of interest that would be due during such Monthly Period on all
Simple Interest Receivables held by the Trust assuming that the payment on each
such Receivable was received on its respective due date over (2) all payments
received during such Monthly Period on all Simple Interest Receivables held by
the Trust to the extent allocable to interest. In addition, with respect to each
Trust, the Servicer will be paid, to the extent all previously made Simple
Interest Advances exceed all Excess Simple Interest Collections previously paid
to the Servicer, all Liquidation Proceeds realized with respect to Simple
Interest Receivables allocable to accrued and unpaid interest thereon (but not
including interest for the then current Monthly Period). Unless otherwise
provided in the related Prospectus Supplement, the Servicer will not make any
advance with respect to principal on any Simple Interest Receivable.
DISTRIBUTIONS
With respect to each Trust, beginning on the Payment Date or Distribution
Date, as applicable, specified in the related Prospectus Supplement,
distributions of principal and interest (or, where applicable, of principal or
interest only) (with respect to the Notes) and distributions in respect of
Certificate Balance and interest (or, where applicable, of Certificate Balance
or interest only) (with respect to the Certificates) on each class of Securities
entitled thereto will be made by the Indenture Trustee or the Owner Trustee, as
applicable, to the Noteholders and the Certificateholders. The timing,
calculation, allocation, order, source, priorities of and requirements for all
payments to each class of Noteholders and all distributions to each class of
Certificateholders will be set forth in the related Prospectus Supplement.
With respect to each Trust, on each Payment Date and Distribution Date,
collections on the Receivables will be transferred from the Collection Account
to the Note Distribution Account and the Certificate Distribution Account for
distribution to Noteholders and Certificateholders as and to the extent
described in the related Prospectus Supplement. Credit enhancement, such as a
Reserve Account, will be available to cover any shortfalls in the amount
available for distribution on such date to the extent specified in the related
Prospectus Supplement. Distributions in respect of principal and Certificate
Balance will be subordinate
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to distributions in respect of interest, and distributions in respect of the
Certificates will be subordinate to payments in respect of the Notes, as more
fully described in the related Prospectus Supplement.
CREDIT ENHANCEMENT
The amounts and types of credit enhancement arrangements and the provider
thereof, if applicable, with respect to each class of Securities will be set
forth in the related Prospectus Supplement. If and to the extent provided in the
related Prospectus Supplement, credit enhancement may be in the form of
subordination of one or more classes of Securities, Reserve Accounts,
overcollateralization, letters of credit, credit or liquidity facilities,
repurchase obligations, third party payments or other support, cash advances or
deposits or such other arrangements as may be described in the related
Prospectus Supplement or any combination of two or more of the foregoing. If
specified in the applicable Prospectus Supplement, credit enhancement for a
series of Securities may cover one or more other series of Securities.
The presence of a Reserve Account and other forms of credit enhancement is
intended to enhance the likelihood of receipt by the Noteholders and the
Certificateholders of the full amount of principal or Certificate Balance, as
the case may be, and interest due thereon and to decrease the likelihood that
the Noteholders and the Certificateholders will experience losses. Unless
otherwise specified in the related Prospectus Supplement, the credit enhancement
for a class of Securities will not provide protection against all risks of loss
and will not guarantee repayment of the entire principal balance or Certificate
Balance, as the case may be, and interest thereon. If losses occur which exceed
the amount covered by any credit enhancement or which are not covered by any
credit enhancement, securityholders will bear their allocable share of
deficiencies. In addition, if a form of credit enhancement covers more than one
series of Securities, securityholders of any such series will be subject to the
risk that such credit enhancement will be exhausted by the claims of
securityholders of other series.
Reserve Account. If so provided in the related Prospectus Supplement,
pursuant to the Trust Sale and Servicing Agreement, the Seller will establish
for a series an account, as specified in the related Prospectus Supplement (the
"RESERVE ACCOUNT"), which will be maintained with the Indenture Trustee.
Unless otherwise provided in the related Prospectus Supplement, the Reserve
Account will not be included in the property of the related Trust but will be a
segregated trust account held by the Indenture Trustee for the benefit of
Noteholders and Certificateholders. Unless otherwise provided in the related
Prospectus Supplement, the Reserve Account will be funded by an initial deposit
by the Seller on the Closing Date of the Reserve Account Initial Deposit (in the
amount set forth in the related Prospectus Supplement). To the extent, if any,
described in the related Prospectus Supplement, the amount on deposit in the
Reserve Account will be increased on each Distribution Date thereafter up to the
Specified Reserve Account Balance (as defined in the related Prospectus
Supplement) by the deposit therein of the amount of collections on the related
Receivables remaining on each such Distribution Date after the payment of the
Total Servicing Fee and the distributions and allocations to the Noteholders and
the Certificateholders required on such date. Unless otherwise provided in the
related Prospectus Supplement or agreed by the Seller, amounts on deposit in the
Reserve Account after payments to Noteholders, Certificateholders and the
Servicer may be paid to the Seller to the extent that such amounts exceed the
Specified Reserve Account Balance. Upon any distribution to the Seller of
amounts from the Reserve Account, neither the Noteholders nor the
Certificateholders will have any rights in, or claims to, such amounts.
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NET DEPOSITS
As an administrative convenience during such Monthly Periods as the
Servicer is permitted to hold payments on Receivables until the related
Distribution Date, the Servicer will also be permitted to make the deposit of
collections, aggregate Monthly Advances, Warranty Purchase Payments and
Administrative Purchase Payments for any Trust for or with respect to the
Monthly Period net of distributions to be made to the Servicer for such Trust
with respect to the Monthly Period. Similarly, the Servicer may cause to be made
a single, net transfer from the Collection Account to the related Payment Ahead
Servicing Account, or vice versa. The Servicer, however, will account to the
Indenture Trustee, the Owner Trustee, the Noteholders and the Certificateholders
with respect to each Trust as if all deposits, distributions and transfers were
made individually. In addition, in connection with any Trust at any time that
the Servicer is not required to remit collections on a daily basis, the Servicer
may retain collections allocable to the Notes or the Note Distribution Account
until the related Payment Date, and pending deposit into the Collection Account
or the Note Distribution Account, such collections may be employed by the
Servicer at its own risk and for its own benefit and will not be segregated from
its own funds. On each Payment Date, the Servicer, the Seller, the Indenture
Trustee and the Owner Trustee will make all distributions, deposits and other
remittances with respect to the Notes or the Note Distribution Account of a
Trust for the periods since the previous distribution was to have been made. If
Payment Dates do not coincide with Distribution Dates, all distributions,
deposits or other remittances made on a Payment Date will be treated as having
been distributed, deposited or remitted on the Distribution Date for the
applicable Monthly Period for purposes of determining other amounts required to
be distributed, deposited or otherwise remitted on such Distribution Date.
STATEMENTS TO TRUSTEES AND TRUST
Prior to each Payment Date and Distribution Date, with respect to each
Trust the Servicer will provide to the Indenture Trustee and the Owner Trustee
as of the close of business on the last day of the preceding Monthly Period a
statement setting forth substantially the same information as is required to be
provided in the periodic reports provided to securityholders on such date
described under "Certain Information Regarding the Securities--Reports to
Securityholders" in this Prospectus.
EVIDENCE AS TO COMPLIANCE
Each Trust Sale and Servicing Agreement will provide that a firm of
independent public accountants will furnish to the Owner Trustee and the
Indenture Trustee on or before August 15 of each year, beginning the first
August 15 which is at least twelve months after the related Closing Date, a
statement as to compliance by the Servicer during the preceding twelve months
ended June 30 (or in the case of the first such certificate, the period from the
Closing Date to the June 30 of such year) with certain standards relating to the
servicing of the Receivables, the Servicer's accounting records and computer
files with respect thereto and certain other matters.
Each Trust Sale and Servicing Agreement will also provide for delivery to
the Owner Trustee and the Indenture Trustee, on or before August 15 of each
year, beginning the first August 15 which is at least twelve months after the
related Closing Date, of a certificate signed by an officer of the Servicer
stating that the Servicer has fulfilled its obligations under the Trust Sale and
Servicing Agreement and the Pooling and Servicing Agreement throughout the
preceding twelve months ended June 30 (or in the case of the first such
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certificate, the period from the Closing Date to the June 30 of such year) or,
if there has been a default in the fulfillment of any such obligation,
describing each such default. Such certificate may be provided as a single
certificate making the required statements as to more than one Trust Sale and
Servicing Agreement.
Copies of such statements and certificates may be obtained by
Securityholders by a request in writing addressed to the applicable Indenture
Trustee or Owner Trustee.
In each Trust Sale and Servicing Agreement, the Seller will agree to give
the Indenture Trustee and the Owner Trustee notice of any event which with the
giving of notice or the lapse of time, or both, would become a Servicer Default.
In addition, the Seller will agree to give the Indenture Trustee, the Owner
Trustee and the Trust notice of certain covenant breaches which with the giving
of notice or lapse of time, or both, would constitute a Servicer Default.
CERTAIN MATTERS REGARDING THE SERVICER
Each Trust Sale and Servicing Agreement will provide that GMAC may not
resign from its obligations and duties as Servicer thereunder and under the
Pooling and Servicing Agreement, except upon determination that GMAC's
performance of such duties is no longer permissible under applicable law. No
such resignation will become effective until the related Indenture Trustee or a
successor servicer has assumed GMAC's servicing obligations and duties under the
related Transfer and Servicing Agreements.
Each Trust Sale and Servicing Agreement will further provide that, except
as specifically provided otherwise, neither the Servicer nor any of its
directors, officers, employees and agents will be under any liability to the
related Trust or the related Noteholders or Certificateholders for taking any
action or for refraining from taking any action pursuant to the related Transfer
and Servicing Agreements or the related Indenture or for errors in judgment.
Neither the Servicer nor any such person will be protected against any liability
that would otherwise be imposed by reason of wilful misfeasance, bad faith or
negligence (except errors in judgment) in the performance of the Servicer's
duties thereunder or by reason of reckless disregard of its obligations and
duties thereunder. Each Trust Sale and Servicing Agreement will further provide
that the Servicer and its directors, officers, employees and agents will be
reimbursed by the Indenture Trustee or the Owner Trustee for any contractual
damages, liability or expense incurred by reason of such trustee's wilful
misfeasance, bad faith or negligence (except errors in judgment) in the
performance of such trustee's duties thereunder or by reason of reckless
disregard of its obligations and duties thereunder or under the related Trust
Agreement or the related Indenture. In addition, each Trust Sale and Servicing
Agreement will provide that the Servicer is under no obligation to appear in,
prosecute or defend any legal action that is not incidental to the Servicer's
servicing responsibilities under the related Transfer and Servicing Agreements
and that, in its opinion, may cause it to incur any expense or liability. The
Servicer may, however, undertake any reasonable action that it may deem
necessary or desirable in respect of the related Transfer and Servicing
Agreements and the rights and duties of the parties thereto and the interests of
the Noteholders and the Certificateholders thereunder. In such event, the legal
expenses and costs of such action and any liability resulting therefrom will be
expenses, costs and liabilities of the related Trust, and the Servicer will be
entitled to be reimbursed therefor out of the related Collection Account. Any
such indemnification or reimbursement will reduce the amount otherwise available
for distribution to the Noteholders and the Certificateholders.
Under the circumstances specified in each Trust Sale and Servicing
Agreement, any entity into which the Servicer may be merged or consolidated, or
any entity resulting from any
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merger or consolidation to which the Servicer is a party, or any entity
succeeding to the business of the Servicer or, with respect to its obligations
as Servicer, any entity 50% or more of the voting interests of which are owned,
directly or indirectly, by General Motors, which entity in each of the foregoing
cases assumes the obligations of the Servicer under the Trust Sale and Servicing
Agreement and the Pooling and Servicing Agreement, will be the successor of the
Servicer under such Trust Sale and Servicing Agreement and the Pooling and
Servicing Agreement. So long as GMAC acts as Servicer, the Servicer may at any
time subcontract any duties as Servicer under any Trust Sale and Servicing
Agreement and the Pooling and Servicing Agreement to any entity in which more
than 50% of the voting interests are owned, directly or indirectly, by General
Motors or to any entity that agrees to conduct such duties in accordance with
the Servicer's servicing guidelines and the Trust Sale and Servicing Agreement.
The Servicer may at any time perform specific duties as Servicer through
subcontractors who are in the business of servicing receivables similar to the
Receivables, provided that no such delegation will relieve the Servicer of its
responsibility with respect to such duties.
SERVICER DEFAULT
Except as otherwise provided in the related Prospectus Supplement,
"SERVICER DEFAULT" under each Trust Sale and Servicing Agreement will consist
of: (1) any failure by the Servicer to make any required distribution, payment,
transfer or deposit or to direct the related Indenture Trustee to make any
required distribution, which failure continues unremedied for five Business Days
after written notice from the Indenture Trustee or the Owner Trustee is received
by the Servicer or after discovery of such failure by an officer of the
Servicer; (2) any failure by the Servicer to observe or perform in any material
respect any other covenant or agreement in such Trust Sale and Servicing
Agreement, the related Pooling and Servicing Agreement, the related Trust
Agreement or the related Indenture, which failure materially and adversely
affects the rights of the Noteholders or the Certificateholders and which
continues unremedied for 90 days after the giving of written notice of such
failure to the Servicer by the Indenture Trustee or the Owner Trustee or to the
Servicer, the Indenture Trustee and the Owner Trustee by holders of Notes or
Certificates, as applicable, evidencing not less than 25% in principal amount of
such outstanding Notes or of such Certificate Balance or after discovery of such
failure by an officer of the Servicer; (3) any representation, warranty or
certification made by the Servicer in such Trust Sale and Servicing Agreement or
in any certificate delivered pursuant thereto proves to have been incorrect when
made and which has a material adverse effect on the rights of the related
Securityholders and which effect continues unremedied for a period of 60 days
after the giving of written notice thereof to the Servicer by the Indenture
Trustee or the Owner Trustee; or (4) certain events of bankruptcy, insolvency or
receivership with respect to the Servicer by the Servicer indicating its
insolvency, reorganization pursuant to bankruptcy proceedings, or inability to
pay its obligations (each, an "INSOLVENCY EVENT").
Notwithstanding the foregoing, there will be no Servicer Default where a
Servicer Default would otherwise exist under clause (1) above for a period of
ten Business Days or under clause (2) or (3) for a period of 60 days if the
delay or failure giving rise to such Servicer Default was caused by an act of
God or other similar occurrence. Upon the occurrence of any such event, the
Servicer will not be relieved from using its best efforts to perform its
obligations in a timely manner in accordance with the terms of the Pooling and
Servicing Agreement and the Trust Sale and Servicing Agreement and the Servicer
will provide the Indenture Trustee, the Owner Trustee, the Seller and the
Securityholders prompt
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notice of such failure or delay by it, together with a description of its
efforts to so perform its obligations.
RIGHTS UPON SERVICER DEFAULT
As long as a Servicer Default under a Trust Sale and Servicing Agreement
remains unremedied, the related Indenture Trustee or holders of related Notes
evidencing not less than a majority in principal amount of such then outstanding
Notes (or, if the Notes have been paid in full and the Indenture has been
discharged with respect thereto, the related Owner Trustee or the holders of
related Certificates evidencing not less than a majority of the aggregate
outstanding Certificate Balance of all Certificates other than Certificates
owned by the Trust, the Seller, GMAC or any of their affiliates) may terminate
all the rights and obligations of the Servicer under such Trust Sale and
Servicing Agreement and the related Pooling and Servicing Agreement, whereupon
such Indenture Trustee will succeed to all the responsibilities, duties and
liabilities of the Servicer under such agreements and will be entitled to
similar compensation arrangements. If, however, a bankruptcy trustee or similar
official has been appointed for the Servicer, and no Servicer Default other than
such appointment has occurred, such trustee or official may have the power to
prevent the Indenture Trustee or the Noteholders from effecting a transfer of
servicing. If the Indenture Trustee is unwilling to so act, it may, and if it is
unable to so act, it will appoint, or petition a court of competent jurisdiction
for the appointment of, a successor with a net worth of at least $100,000,000
and whose regular business includes the servicing of automotive receivables and
which satisfies the other criteria set forth in the Trust Sale and Servicing
Agreement. The Indenture Trustee may make such arrangements for compensation to
be paid, which in no event may be greater than the servicing compensation to the
Servicer under such Trust Sale and Servicing Agreement.
WAIVER OF PAST DEFAULTS
With respect to each Trust, the holders of Notes evidencing at least a
majority in principal amount of the then outstanding related Notes (or if all of
the Notes have been paid in full, holders of the related Certificates whose
Certificates evidence not less than a majority of the outstanding Certificate
Balance) may, on behalf of all such Noteholders and Certificateholders, waive
any default by the Servicer in the performance of its obligations under the
Pooling and Servicing Agreement and the Trust Sale and Servicing Agreement and
its consequences, except a Servicer Default in making any required deposits to
or payments from any of the Designated Accounts or the Certificate Distribution
Account in accordance with the Trust Sale and Servicing Agreement. No such
waiver will impair such Noteholders' or Certificateholders' rights with respect
to subsequent defaults.
AMENDMENT
Each of the Transfer and Servicing Agreements may be amended by the parties
thereto without the consent of the related Noteholders or Certificateholders (1)
to cure any ambiguity, (2) to correct or supplement any provision therein that
may be defective or inconsistent with any other provision therein or in any
other Related Document, (3) to add or supplement any credit, liquidity or other
enhancement arrangement for the benefit of Noteholders or Certificateholders
(provided that if any such addition affects any class of Noteholders or
Certificateholders differently than any other class of Noteholders or
Certificateholders, then such addition will not, as evidenced by an opinion of
counsel, adversely affect in any material respect the interests of any class of
Noteholders or
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Certificateholders), (4) to add to the covenants, restrictions or obligations of
the Seller, the Servicer, the Owner Trustee or the Indenture Trustee or (5) to
add, change or eliminate any other provisions of such Agreement in any manner
that will not, as evidenced by an opinion of counsel, adversely affect in any
material respect the interests of the Noteholders or the Certificateholders.
Each such Agreement may also be amended by the parties thereto with the consent
of the holders of at least a majority in principal amount of such then
outstanding Notes and the holders of such Certificates evidencing at least a
majority of the Certificate Balance for the purpose of adding any provisions to
or changing in any manner or eliminating any of the provisions of such Agreement
or of modifying in any manner the rights of such Noteholders or
Certificateholders. No such amendment may (1) increase or reduce in any manner
the amount of, or accelerate or delay the timing of, distributions of payments
that are required to be made on any Note or Certificate without the consent of
the holder thereof, any Interest Rate, any Pass Through Rate or the Specified
Reserve Account Balance, (2) adversely affect the rating of any series by any
Rating Agency without the consent of two-thirds of the principal amount of the
outstanding Notes or the Voting Interests of the outstanding Certificates, as
appropriate, of such series or (3) reduce the aforesaid percentage required of
Noteholders or Certificateholders to consent to any such amendment without the
consent of all of the Noteholders or Certificateholders, as the case may be.
INSOLVENCY EVENT
Each Trust Agreement will provide that the Owner Trustee does not have the
power to commence a voluntary proceeding in bankruptcy relating to the related
Trust without the unanimous prior approval of all Certificateholders (including
the Seller); provided, however, that under no circumstance will the Owner
Trustee commence any such proceeding prior to the date that is one year and one
day after the termination of the Trust. In the Trust Sale and Servicing
Agreement, the Servicer and the Seller will covenant that they will not, for a
period of one year and one day after the final distribution with respect to the
related Notes and the related Certificates to the Note Distribution Account or
the Certificate Distribution Account, as applicable, institute against the
related Trust any bankruptcy, reorganization or other proceeding under any
federal or state bankruptcy or similar law.
CERTIFICATEHOLDER LIABILITY; INDEMNIFICATION
Under each Trust Agreement, Certificateholders will be entitled to the same
limitation of personal liability extended to stockholders of for profit
corporations under the Delaware General Corporation Law.
Each Trust Sale and Servicing Agreement provides that the Servicer will
indemnify the Indenture Trustee and the Owner Trustee from and against any loss,
liability, expense, damage or cost arising out of or incurred in connection with
the acceptance or performance of its duties pursuant to the Transfer and
Servicing Agreements, including any judgment, award, settlement, reasonable
attorneys' fees and other costs or expenses incurred in connection with the
defense of any actual or threatened action, proceeding or claim. Neither the
Indenture Trustee nor Owner Trustee will be so indemnified if such acts or
omissions or alleged acts or omissions constitute willful misfeasance bad faith
or negligence by the Indenture Trustee or the Owner Trustee, as applicable. In
addition, the Servicer will indemnify the Trust, the Indenture Trustee, the
Owner Trustee, the Noteholders and the Certificateholders against losses arising
out of the negligence, willful misfeasance or bad faith of the Servicer in the
performance of its duties under the Transfer and Servicing Agreements and the
Indenture or by reason of its reckless disregard of its obligations and duties
thereunder. The Servicer will
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also indemnify such parties against any taxes that may be asserted against such
parties with respect to the transactions contemplated in the Trust Sale and
Servicing Agreement, other than taxes with respect to the sale of Receivables or
Securities, the ownership of Receivables or the receipt of payments on
Securities or other compensation.
TERMINATION
Each Trust will terminate upon the final distribution by the Indenture
Trustee and the Owner Trustee of all monies and other property of the Trust in
accordance with the terms of the Trust Agreement, the Indenture and the Trust
Sale and Servicing Agreement (including in the case of the exercise by the
Servicer of its repurchase option as described below). Upon termination of the
Trust and payment (or deposit into the Note Distribution Account and the
Certificate Distribution Account) of all amounts to be paid to the related
Securityholders, any remaining assets of the Trust and any amounts remaining on
deposit in the related Reserve Account will be paid to the Seller.
Unless otherwise provided in the related Prospectus Supplement, in order to
avoid excessive administrative expense, the Servicer, or its successor, will be
permitted at its option to purchase from each Trust, as of the last day of any
Monthly Period, if the then outstanding Aggregate Principal Balance of the
Receivables held by such Trust is 10% or less of the Aggregate Amount Financed,
all remaining related Receivables and other Trust assets at a price equal to the
aggregate Administrative Purchase Payments for such Receivables plus the
appraised value of any other property held as part of the Trust (which amount
will in no event be less than the sum of the outstanding Notes and Certificates
plus accrued and unpaid interest thereon) and determined as of the end of such
Monthly Period. As further described in the related Prospectus Supplement, any
related outstanding Notes will be redeemed concurrently therewith and the
subsequent distribution to related Certificateholders of all amounts required to
be distributed to them pursuant to the Trust Agreement will effect early
retirement of the Certificates. The Indenture Trustee will give written notice
of redemption to each related Noteholder of record and the Owner Trustee will
give written notice of termination to each related Certificateholder of record.
The final distribution to any Noteholder or Certificateholder will be made only
upon surrender and cancellation of such Noteholder's Note at an office or agency
of the Indenture Trustee specified in the notice of redemption or such
Certificateholder's Certificate at an office or agency of the Owner Trustee
specified in the notice of termination.
ADMINISTRATION AGREEMENT
GMAC, in its capacity as administrator (the "ADMINISTRATOR"), will enter
into an agreement (an "ADMINISTRATION AGREEMENT") with each Trust and the
related Indenture Trustee pursuant to which the Administrator will agree, to the
extent provided in such Administration Agreement, to provide the notices and to
perform other administrative obligations required by the related Indenture. With
respect to each Trust, unless otherwise specified in the Prospectus Supplement,
as compensation for the performance of the Administrator's obligations under the
Administration Agreement and as reimbursement for its expenses related thereto,
the Administrator will be entitled to an administration fee in an amount equal
to $1,500 per month. The Servicer will pay the administration fee.
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CERTAIN LEGAL ASPECTS OF THE RECEIVABLES
SECURITY INTEREST IN VEHICLES
In all states in which the Receivables have been originated, retail
instalment sale contracts such as the Receivables evidence the credit sale of
automobiles and light trucks by dealers to purchasers. The contracts also
constitute personal property security agreements and include grants of security
interests in the vehicles under the UCC. Perfection of security interests in the
vehicles is generally governed by the motor vehicle registration laws of the
state in which the vehicle is located. In all states in which the Receivables
have been originated, a security interest in a vehicle is perfected by notation
of the secured party's lien on the vehicle's certificate of title.
With respect to each Trust, pursuant to the Pooling and Servicing
Agreement, GMAC will assign its security interest in the Financed Vehicles
securing the related Receivables to the Seller and pursuant to the Trust Sale
and Servicing Agreement, the Seller will assign its security interest in the
Financed Vehicles securing such Receivables to the Trust and the Trust will
pledge its interest to the Indenture Trustee. However, because of the
administrative burden and expense, no certificate of title will be amended to
identify the Trust as the new secured party relating to a Financed Vehicle or
the interest of the Indenture Trustee therein. Also, GMAC will continue to hold
any certificates of title relating to the vehicles in its possession as
custodian for the Seller and Trust pursuant to a custodian agreement entered
into pursuant to the related Pooling and Servicing Agreement and Trust Sale and
Servicing Agreement. See "The Transfer and Servicing Agreements--Sale and
Assignment of Receivables" in this Prospectus.
In most states, an assignment such as that under both the related Pooling
and Servicing Agreement and the related Trust Sale and Servicing Agreement is an
effective conveyance of a security interest without amendment of any lien noted
on a vehicle's certificate of title, and the assignee succeeds thereby to the
assignor's rights as secured party. In the absence of fraud or forgery by the
vehicle owner or GMAC or administrative error by state or local agencies, in
most states the notation of GMAC's lien on the certificates of title will be
sufficient to protect the related Trust against the rights of subsequent
purchasers of a Financed Vehicle from an obligor or subsequent lenders to an
obligor who take a security interest in a Financed Vehicle. If there are any
Financed Vehicles as to which GMAC failed to obtain a perfected security
interest, its security interest would be subordinate to, among others,
subsequent purchasers of the Financed Vehicles and holders of perfected security
interests. Such a failure, however, would constitute a breach of the warranties
of GMAC under the related Pooling and Servicing Agreement and, if the interests
of the Securityholders in the related Receivable are materially and adversely
affected, would create an obligation of GMAC to repurchase such Receivable
unless the breach is cured. Similarly, the security interest of the related
Trust in the vehicle could be defeated through fraud or negligence and, because
the Trust is not identified as the secured party on the certificate of title, by
the bankruptcy petition of the obligor.
Under the laws of most states, the perfected security interest in a vehicle
would continue for four months after a vehicle is moved to a state other than
the state in which it is initially registered and thereafter until the vehicle
owner re-registers the vehicle in the new state. A majority of states generally
require surrender of a certificate of title to re-register a vehicle.
Accordingly, a secured party must surrender possession if it holds the
certificate of title to the vehicle or, in the case of vehicles registered in
states providing for the notation of a lien on the
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certificate of title but not possession by the secured party, the secured party
would receive notice of surrender of the certificate of title from the state
department of motor vehicles. Thus, the secured party would have the opportunity
to re-perfect its security interest in the vehicles in the state of relocation.
In states that do not require surrender of a certificate of title for
registration of a motor vehicle, re-registration could defeat perfection. In the
ordinary course of servicing receivables, the Servicer takes steps to effect
re-perfection upon receipt of notice of re-registration or information from the
obligors as to relocation. Similarly, when an obligor sells a vehicle, the
Servicer must surrender possession of the certificate of title or will receive
notice as a result of its lien noted thereon and accordingly will have an
opportunity to require satisfaction of the related Receivable before release of
the lien. Under each Pooling and Servicing Agreement, the Servicer is obligated
to take appropriate steps, at the Servicer's expense, to maintain perfection of
security interests in the Financed Vehicles.
Under the laws of most states, liens for repairs performed on a motor
vehicle and liens for unpaid taxes take priority over even a perfected security
interest in a financed vehicle. The Code also grants priority to certain federal
tax liens over the lien of a secured party. The laws of certain states and
federal law permit the confiscation of motor vehicles by governmental
authorities under certain circumstances if used in unlawful activities, which
may result in the loss of a secured party's perfected security interest in the
confiscated motor vehicle. Under each Pooling and Servicing Agreement, GMAC will
have represented to the Seller that, as of the Closing Date, each Receivable is
or will be secured by a first perfected security interest in favor of GMAC in
the Financed Vehicle. The Seller will have assigned such representation, among
others, to the Owner Trustee pursuant to the related Trust Sale and Servicing
Agreement. However, liens for repairs or taxes, or the confiscation of a
Financed Vehicle, could arise at any time during the term of a Receivable. No
notice will be given to the Owner Trustee, the Indenture Trustee, the Noteholder
or the Certificateholder if such a lien or confiscation arises.
REPOSSESSION
In the event of default by vehicle purchasers, the holder of the retail
instalment sale contract has all the remedies of a secured party under the UCC,
except where specifically limited by other state laws. Among the UCC remedies,
the secured party has the right to perform self-help repossession unless such
act would constitute a breach of the peace. Self-help is the method employed by
the Servicer in most cases and is accomplished simply by retaking possession of
the financed vehicle. In the event of default by the obligor, some jurisdictions
require that the obligor be notified of the default and be given a time period
within which he may cure the default prior to repossession. Generally, the right
of reinstatement may be exercised on a limited number of occasions in any
one-year period. In cases where the obligor objects or raises a defense to
repossession, or if otherwise required by applicable state law, a court order
must be obtained from the appropriate state court, and the vehicle must then be
repossessed in accordance with that order. A secured party may be held
responsible for damages caused by a wrongful repossession of a vehicle.
NOTICE OF SALE; REDEMPTION RIGHTS
The UCC and other state laws require the secured party to provide the
obligor with reasonable notice of the date, time and place of any public sale
and/or the date after which any private sale of the collateral may be held. In
addition, a consent order between the Servicer and the Federal Trade Commission
("FTC REPOSSESSION CONSENT ORDER") imposes similar requirements for the giving
of notice for any such sale. The obligor has the right to
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redeem the collateral prior to actual sale by paying the secured party the
unpaid principal balance of the obligation plus reasonable expenses for
repossessing, holding and preparing the collateral for disposition and arranging
for its sale, plus, in some jurisdictions, reasonable attorneys' fees, or, in
some states, by payment of delinquent instalments or the unpaid balance.
DEFICIENCY JUDGMENTS AND EXCESS PROCEEDS
The proceeds of resale of the Financed Vehicles generally will be applied
first to the expenses of resale and repossession and then to the satisfaction of
the indebtedness. In many instances, the remaining principal amount of such
indebtedness will exceed such proceeds. While some states impose prohibitions or
limitations on deficiency judgments if the net proceeds from resale do not cover
the full amount of the indebtedness, a deficiency judgment can be sought in
those states that do not prohibit or limit such judgments. However, the
deficiency judgment would be a personal judgment against the obligor for the
shortfall, and a defaulting obligor can be expected to have very little capital
or sources of income available following repossession. Therefore, in many cases,
it may not be useful to seek a deficiency judgment or, if one is obtained, it
may be settled at a significant discount.
Occasionally, after resale of a vehicle and payment of all expenses and all
indebtedness, there is a surplus of funds. In that case, the UCC requires the
creditor to remit the surplus to any holder of a lien with respect to the
vehicle or if no such lienholder exists or there are remaining funds, the UCC
and the FTC Repossession Consent Order require the creditor to remit the surplus
to the former owner of the vehicle.
CONSUMER PROTECTION LAWS
Numerous federal and state consumer protection laws and related regulations
impose substantial requirements upon lenders and servicers involved in consumer
finance. These laws include the Truth-in-Lending Act, the Equal Credit
Opportunity Act, the Federal Trade Commission Act, the Fair Credit Reporting
Act, the Fair Debt Collection Procedures 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, state adoptions of the
National Consumer Act and of the Uniform Consumer Credit Code (the "UCCC") and
state sales finance and other similar laws. Also, state laws impose finance
charge ceilings and other restrictions on consumer transactions and require
contract disclosures in addition to those required under federal law. These
requirements impose specific statutory liabilities upon creditors who fail to
comply with their provisions. In some cases, this liability could affect an
assignee's ability to enforce consumer finance contracts such as the Receivables
(or, if a seller with respect to a Receivable is not liable for indemnifying the
Trust as assignee of the Receivables from the Seller, failure to comply could
impose liability on an assignee in excess of the amount of the Receivable).
The so-called "Holder-in-Due-Course" Rule of the Federal Trade Commission
(the "FTC RULE"), the provisions of which are generally duplicated by the UCC,
other state statutes or the common law, has the effect of subjecting a seller in
a consumer credit transaction (and certain related creditors and their
assignees) to all claims and defenses which the obligor in the transaction could
assert against the seller. Liability under the FTC Rule is limited to the
amounts paid by the obligor under the contract and the holder of the contract
may also be unable to collect any balance remaining due thereunder from the
obligor.
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Most of the Receivables will be subject to the requirements of the FTC
Rule. The Trust, as holder of the related Receivables, will be subject to any
claims or defenses that the purchaser of the Financed Vehicle may assert against
the seller of the Financed Vehicle. Such claims are limited to a maximum
liability equal to the amounts paid by the obligor on the Receivable. If an
obligor were successful in asserting any such claim or defense, such claim or
defense would constitute a breach of GMAC's warranties under the related Pooling
and Servicing Agreement and may create an obligation of GMAC to repurchase the
Receivable unless the breach is cured in all material respects. See "The
Transfer and Servicing Agreements--Sale and Assignment of Receivables" in this
Prospectus.
Courts have imposed general equitable principles upon secured parties
pursuing repossession and litigation involving deficiency balances. These
equitable principles may have the effect of relieving an obligor from some or
all of the legal consequences of a default.
In several cases, consumers have asserted that the self-help remedies of
secured parties under the UCC and related laws violate the due process
protections provided under the 14th Amendment to the Constitution of the United
States. Courts have generally upheld the notice provisions of the UCC and
related laws as reasonable or have found that the repossession and resale by the
creditor do not involve sufficient state action to afford constitutional
protection to consumers.
Under each Pooling and Servicing Agreement, GMAC will represent to the
Seller that each Receivable complies with all requirements of law in all
material respects. The Seller will have assigned such representation, among
others, to the related Trust. Accordingly, if an obligor has a claim against the
Trust for violation of any law and such claim materially and adversely affects
the related Trust's interest in a Receivable, such violation may create an
obligation to repurchase the Receivable unless the breach is cured in all
material respects. See "The Transfer and Servicing Agreements--Sale and
Assignment of the Receivables" in this Prospectus.
OTHER LIMITATIONS
In addition to the laws limiting or prohibiting deficiency judgments,
numerous other statutory provisions, including federal bankruptcy laws and
related state laws, may interfere with or affect the ability of a secured party
to realize upon collateral or to enforce a deficiency judgment. For example, in
a Chapter 13 proceeding under the federal bankruptcy law, a court may prevent a
creditor from repossessing the Financed Vehicle, and, as part of the
rehabilitation plan, reduce the amount of the secured indebtedness to the market
value of the Financed Vehicle at the time of bankruptcy, leaving the creditor as
a general unsecured creditor for the remainder of the indebtedness. A bankruptcy
court may also reduce the monthly payments due under a contract or change the
rate of finance charge and time of repayment of the indebtedness.
TRANSFER OF VEHICLES
The Receivables prohibit the sale or transfer of a Financed Vehicle without
the Servicer's consent and permit the Servicer to accelerate the maturity of the
Receivable upon a sale or transfer without the Servicer's consent. The Servicer
will not consent to a sale or transfer and will require prepayment of the
Receivable. Although the Servicer, as agent of each Owner Trustee, may enter
into a transfer of equity agreement with the secondary purchaser for the purpose
of effecting the transfer of the vehicle, the new obligation will not be
included in the related Receivables Pool.
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SALE OF RECEIVABLES BY GMAC
As described herein, the transaction of the Receivables that are being sold
by GMAC to the Seller and from the Seller to the Trust have been structured as,
and will be treated by the parties as, sales. In 1993, the United States Court
of Appeals for the Tenth Circuit found that accounts sold prior to a bankruptcy
should be treated as property of the bankruptcy estate. In the event that GMAC
or the Seller were a debtor in a bankruptcy proceeding and the bankruptcy court
applied this analysis, delays or reductions in receipt of collections on the
Receivables to the related Trust and distributions on the related Securities to
Securityholders could occur.
CERTAIN FEDERAL INCOME TAX CONSIDERATIONS
GENERAL
Set forth below is a discussion of the anticipated material United States
federal income tax considerations relevant to the purchase, ownership and
disposition of the Notes and Certificates. This discussion is based upon current
provisions of the Internal Revenue Code of 1986, as amended (the "CODE"),
existing and proposed Treasury Regulations thereunder, current administrative
rulings, judicial decisions and other applicable authorities. There are no cases
or Internal Revenue Service ("IRS") rulings on similar transactions involving
both debt and equity interests issued by a trust with terms similar to those of
the Notes and the Certificates. As a result, there can be no assurance that the
IRS will not challenge the conclusions reached herein, and no ruling from the
IRS has been or will be sought on any of the issues discussed below.
Furthermore, legislative, judicial or administrative changes may occur, perhaps
with retroactive effect, which could affect the accuracy of the statements and
conclusions set forth herein as well as the tax consequences to Noteholders and
Certificateholders.
This discussion does not purport to deal with all aspects of federal income
taxation that may be relevant to the Noteholders and Certificateholders in light
of their personal investment circumstances nor, except for certain limited
discussions of particular topics, to holders subject to special treatment under
the federal income tax laws (e.g., financial institutions, broker-dealers, life
insurance companies and tax-exempt organizations). This information is directed
to prospective purchasers who purchase Notes or Certificates in the initial
distribution thereof, who are citizens or residents of the United States,
including domestic corporations and partnerships, and who hold the Notes or
Certificates as "capital assets" within the meaning of Section 1221 of the Code.
PROSPECTIVE INVESTORS SHOULD CONSULT WITH THEIR TAX ADVISORS AS TO THE FEDERAL,
STATE, LOCAL, FOREIGN AND ANY OTHER TAX CONSEQUENCES TO THEM OF THE PURCHASE,
OWNERSHIP AND DISPOSITION OF NOTES OR CERTIFICATES.
The following discussion addresses Notes and Certificates falling into four
general categories: (1) Notes (other than Strip Notes or any other series of
Notes specifically identified as receiving different tax treatment in the
related Prospectus Supplement) which the Seller, the Servicer and the
Noteholders will agree to treat as indebtedness secured by the related
Receivables, (2) Certificates representing interests in a trust which the
Seller, the Servicer and the applicable Certificateholders will agree to treat
as equity interests in a grantor trust (a "TAX TRUST"), (3) Certificates
(including Strip Certificates) and Strip Notes, representing interests in a
trust which the Seller, the Servicer and the applicable holders will agree to
treat as equity interests in a partnership (a "TAX PARTNERSHIP"), and
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(iv) Certificates, all of which are owned by the Seller, representing interests
in a trust which the Seller and the Servicer will agree to treat as a division
of the Seller and hence disregarded as a separate entity (a "TAX NON-ENTITY"),
in each case for purposes of federal, state and local income and franchise
taxes. Certificates issued by a Tax Trust are referred to herein as "TRUST
CERTIFICATES", Certificates (including Strip Certificates) and Strip Notes
issued by a Tax Partnership are referred to herein as "PARTNERSHIP
CERTIFICATES," and Certificates issued by a Tax Non-Entity are referred to
herein as "TAX NON-ENTITY CERTIFICATES." The Prospectus Supplement for each
series of Certificates will indicate whether the related trust fund is a Tax
Trust, Tax Partnership or Tax Non-Entity. Because the Seller will treat each Tax
Trust as a grantor trust, each Tax Partnership as a partnership, and each Tax
Non-Entity as a division of Seller, for federal income tax purposes, the Seller
will not comply with the tax reporting requirements that would apply under any
alternative characterizations of a Tax Trust, Tax Partnership or Tax Non-Entity.
For purposes of this discussion, references to a "NOTEHOLDER" are to the
beneficial owner of a Note, and references to a "CERTIFICATEHOLDER" or a
"HOLDER" are to the beneficial owner of a Trust Certificate, Partnership
Certificate or Tax Non-Entity Certificate, as the context may require.
THE NOTES
Characterization as Debt. With respect to each series of Notes (except for
Strip Notes and any series which is specifically identified as receiving
different tax treatment in the applicable Prospectus Supplement), regardless of
whether such Notes are issued by a Tax Trust or a Tax Partnership or a Tax
Non-Entity, Kirkland & Ellis, special tax counsel to the Seller ("TAX COUNSEL"),
will deliver its opinion to the effect that the Notes will be treated as debt
for federal income tax purposes. The Seller, the Servicer and each Noteholder,
by acquiring an interest in a Note, will agree to treat the Notes as
indebtedness for federal, state and local income and franchise tax purposes. See
"Trust Certificates--Classification of Trusts and Trust Certificates",
"Partnership Certificates--Classification of Partnerships and Partnership
Certificates" or "Tax Non-Entity Certificates--Classification of Tax Non-Entity
and Tax Non-Entity Certificates" for a discussion of the potential federal
income tax consequences to Noteholders if the IRS were successful in challenging
the characterization of a Tax Trust, a Tax Partnership or a Tax Non-Entity, as
applicable, for federal income tax purposes.
Treatment of Stated Interest. Based on the foregoing opinion, and assuming
the Notes are not issued with original issue discount ("OID"), the stated
interest on a Note will be taxable to a Noteholder as ordinary income when
received or accrued in accordance with such Noteholder's method of tax
accounting. Interest received on a Note may constitute "investment income" for
purposes of certain limitations of the Code concerning the deductibility of
investment interest expense.
Original Issue Discount. Except to the extent indicated in the related
Prospectus Supplement, no series of Notes will be issued with OID. In general,
OID is the excess of the "stated redemption price at maturity" of a debt
instrument over its "issue price," unless such excess falls within a statutorily
defined de minimis exception. A Note's "stated redemption price at maturity" is
the aggregate of all payments required to be made under the Note through
maturity except "qualified stated interest." "Qualified stated interest" is
generally interest that is unconditionally payable in cash or property (other
than debt instruments of the issuer) at fixed intervals of one year or less
during the entire term of the instrument at certain specified rates. The "issue
price" will be the first price at which a substantial amount of the
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Notes are sold, excluding sales to bond holders, brokers or similar persons
acting as underwriters, placement agents or wholesalers.
If a Note were treated as being issued with OID, a Noteholder would be
required to include OID in income as interest over the term of the Note under a
constant yield method. In general, OID must be included in income in advance of
the receipt of cash representing that income. Thus, each cash distribution would
be treated as an amount already included in income (to the extent OID has
accrued as of the date of the interest distribution and is not allocated to
prior distributions), or as a repayment of principal. This treatment would have
no significant effect on Noteholders using the accrual method of accounting.
However, cash method Noteholders may be required to report income with respect
to the Notes in advance of the receipt of cash attributable to such income. Even
if a note has OID falling within the de minimis exception, the Noteholder must
include such OID in income proportionately as principal payments are made on
such Note.
A holder of a Note which has a fixed maturity date not more than one year
from the issue date of such Note (a "SHORT-TERM NOTE") will generally not be
required to include OID on the Note in income as it accrues, provided such
holder is not an accrual method taxpayer, a bank, a broker or dealer that holds
the Note as inventory, a regulated investment company or common trust fund, or
the beneficial owner of certain pass-through entities specified in the Code, or
provided such holder does not hold the instrument as part of a hedging
transaction, or as a stripped bond or stripped coupon. Instead, the holder of a
Short-Term Note would include the OID accrued on the Note in gross income upon a
sale or exchange of the Note or at maturity, or if such Note is payable in
instalments, as principal is paid thereon. Such a holder would be required to
defer deductions for any interest expense on an obligation incurred to purchase
or carry the Short-Term Note to the extent it exceeds the sum of the interest
income, if any, and OID accrued on such Note. However, a holder may elect to
include OID in income as it accrues on all obligations having a maturity of one
year or less held by the holder in that taxable year or thereafter, in which
case the deferral rule of the preceding sentence will not apply. For purposes of
this paragraph, OID accrues on a Short-Term Note on a ratable (straight-line)
basis, unless the holder irrevocably elects (under regulations to be issued by
the Treasury Department) with respect to such obligation to apply a constant
interest method, using the holder's yield to maturity and daily compounding.
A holder who purchases a Note after the initial distribution thereof at a
discount that exceeds a statutorily defined de minimis amount will be subject to
the "market discount" rules of the Code, and a holder who purchases a Note at a
premium will be subject to the bond premium amortization rules of the Code.
Disposition of Notes. If a Noteholder sells a Note, the holder will
recognize gain or loss in an amount equal to the difference between the amount
realized on the sale and the holder's adjusted tax basis in the Note. The
adjusted tax basis of the Note to a particular Noteholder will equal the
holder's cost for the Note, increased by any OID and market discount previously
included by such Noteholder in income with respect to the Note and decreased by
any bond premium previously amortized and any principal payments previously
received by such Noteholder with respect to such Note. Any such gain or loss
will be capital gain or loss if the Note was held as a capital asset, except for
gain representing accrued interest or accrued market discount not previously
included in income. Capital gain or loss will be long-term if the Note was held
by the holder for more than one year and otherwise will be short-term. Any
capital losses realized generally may be used by a corporate taxpayer only to
offset capital gains, and by an individual taxpayer only to the extent of
capital gains plus $3,000 of other income.
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Information Reporting and Backup Withholding. Each Tax Trust, Tax
Partnership and Tax Non-Entity will be required to report annually to the IRS,
and to each related Noteholder of record, the amount of interest paid on the
Notes (and the amount of interest withheld for federal income taxes, if any) for
each calendar year, except as to exempt holders (generally, corporations,
tax-exempt organizations, qualified pension and profit-sharing trusts,
individual retirement accounts, or nonresident aliens who provide certification
as to their status). Each holder will be required to provide to the related Tax
Trust, Tax Partnership or Tax Non-Entity, under penalties of perjury, a
certificate containing the holder's name, address, correct federal taxpayer
identification number and a statement that the holder is not subject to backup
withholding. Should a nonexempt Noteholder fail to provide the required
certification, the Tax Trust, Tax Partnership or Tax Non-Entity will be required
to withhold, from interest otherwise payable to the holder, 31% of such interest
and remit the withheld amount to the IRS as a credit against the holder's
federal income tax liability.
The IRS has issued new regulations governing the backup withholding and
information reporting requirements. The new regulations are generally effective
for payments made after December 31, 1999. Noteholders should consult their tax
advisors with respect to the impact, if any, of the new regulations.
Because the Seller will treat each Tax Trust as a grantor trust, each Tax
Partnership as a partnership, each Tax Non-Entity as a division of the Seller
and all Notes (except Strip Notes and any other series of Notes specifically
identified as receiving different tax treatment in the related Prospectus
Supplement) as indebtedness for federal income tax purposes, the Seller will not
comply with the tax reporting requirements that would apply under any
alternative characterizations of a Tax Trust, Tax Partnership or Tax Non-Entity.
Tax Consequence to Foreign Noteholders. If interest paid (or accrued) to a
Noteholder who is a nonresident alien, foreign corporation or other non-United
States person (a "foreign person") is not effectively connected with the conduct
of a trade or business within the United States by the foreign person, the
interest generally will be considered "portfolio interest," and generally will
not be subject to United States federal income tax and withholding tax, as long
as the foreign person (1) is not actually or constructively a "10 percent
shareholder" of a related Tax Trust, Tax Partnership or the Seller (including a
holder of 10 percent of the applicable outstanding Certificates) or a
"controlled foreign corporation" with respect to which the related Tax Trust,
Tax Partnership or the Seller is a "related person" within the meaning of the
Code, and (2) provides an appropriate statement, signed under penalties of
perjury, certifying that the beneficial owner of the Note is a foreign person
and providing that foreign person's name and address. If the information
provided in this statement changes, the foreign person must so inform the
related Tax Trust or Tax Partnership within 30 days of such change. If such
interest were not portfolio interest or if applicable certification requirements
were not satisfied, then it would be subject to United States federal income and
withholding tax at a rate of 30 percent unless reduced or eliminated pursuant to
an applicable tax treaty. The IRS has amended the transition period relating to
new regulations governing backup withholding and information reporting
requirements. Withholding certificates or statements that are valid on December
31, 1999, may be treated as valid until the earlier of its expiration or
December 31, 2000. All existing certificates or statements will cease to be
effective after December 31, 2000.
Any capital gain realized on the sale, redemption, retirement or other
taxable disposition of a Note by a foreign person will be exempt from United
States federal income and withholding tax, provided that (1) the gain is not
effectively connected with the conduct of a trade or business in the United
States by the foreign person, and (2) in the case of a foreign
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individual, the foreign person is not present in the United States for 183 days
or more in the taxable year.
If the interest, gain or income on a Note held by a foreign person is
effectively connected with the conduct of a trade or business in the United
States by the foreign person, the holder (although exempt from the withholding
tax previously discussed if an appropriate statement is furnished) generally
will be subject to United States Federal income tax on the interest, gain or
income at regular federal income tax rates. In addition, if the foreign person
is a foreign corporation, it may be subject to a branch profits tax equal to 30
percent of its "effectively connected earnings and profits" within the meaning
of the Code for the taxable year, as adjusted for certain items, unless it
qualifies for a lower rate under an applicable tax treaty.
TRUST CERTIFICATES
Classification of Trusts and Trust Certificates. With respect to each
series of Certificates identified in the related Prospectus Supplement as Trust
Certificates, Tax Counsel will deliver its opinion to the effect that the
related Tax Trust will not be taxable as an association or publicly traded
partnership taxable as a corporation, but should be classified as a grantor
trust under Sections 671 through 679 of the Code. For each such series, the
Seller and the Certificateholders will express in the Trust Agreement and on the
Trust Certificates their intent that, for federal, state and local income and
franchise tax purposes, the Trust Certificates will represent an equity interest
in the Tax Trust.
Although Tax Counsel will opine that each such Tax Trust should properly be
characterized as a grantor trust for federal income tax purposes, such opinion
is not binding on the IRS or the courts and no assurance can be given that this
characterization would prevail. If the IRS were to contend successfully that any
such Tax Trust is not a grantor trust, such Tax Trust should be classified for
federal income tax purposes as a partnership which is not taxable as a
corporation. The income reportable by the holders of such Trust Certificates as
partners could differ from the income reportable by the holders of such Trust
Certificates as grantors of a grantor trust. However, it is not expected that
such differences would be material. If a Tax Trust were classified for federal
income tax purposes as a partnership, the IRS might contend that it is a
"publicly traded partnership" taxable as a corporation. If the IRS were to
contend successfully that a Tax Trust is an association taxable as a corporation
for federal income tax purposes, such Tax Trust would be subject to federal and
state income tax at corporate rates on the income from the Receivables (reduced
by deductions, including interest on any Notes unless the Notes were treated as
an equity interest). See "Partnership Certificates--Classification of
Partnerships and Partnership Certificates" below.
Despite Tax Counsel's opinion that a Tax Trust should be classified as a
grantor trust, the lack of cases or rulings on similar transactions, as
discussed above, permits a variety of alternative characterizations in addition
to the position to be taken that the Trust Certificates represent equity
interests in a grantor trust. For example, because Trust Certificates will have
certain features characteristic of debt, the Trust Certificates might be
considered indebtedness of a Tax Trust, the Seller or the Issuer. Except as
described above, any such characterization would not result in materially
adverse tax consequences to Certificateholders as compared to the consequences
from treatment of Trust Certificates as equity in a trust, described below. The
following discussion assumes that Trust Certificates represent equity interests
in a grantor trust.
Grantor Trust Treatment. As a grantor trust, a Tax Trust will not be
subject to federal income tax. Subject to the discussion below under "Treatment
of Fees or Payment," in Tax
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Counsel's opinion each Certificateholder will be required to report on its
federal income tax return its pro rata share of the entire income from the
Receivables and any other property in the related Tax Trust for the period
during which it owns a Trust Certificate, including interest or finance charges
earned on the Receivables and any gain or loss upon collection or disposition of
the Receivables, in accordance with such Certificateholder's method of
accounting. A Certificateholder using the cash method of accounting should take
into account its pro rata share of income as and when received by the Owner
Trustee. A Certificateholder using an accrual method of accounting should take
into account its pro rata share of income as it accrues or is received by the
Owner Trustee, whichever is earlier.
Assuming that the market discount rules do not apply, the portion of each
payment to a Certificateholder that is allocable to principal on the Receivables
will represent a recovery of capital, which will reduce the tax basis of such
Certificateholder's undivided interest in the Receivables. In computing its
federal income tax liability, a Certificateholder will be entitled to deduct,
consistent with its method of accounting, its pro rata share of interest paid on
any related Notes, reasonable servicing fees, and other fees paid or incurred by
the related Tax Trust. If a Certificateholder is an individual, estate or trust,
the deduction for such Certificateholder's pro rata share of such fees will be
allowed only to the extent that all of such Certificateholder's miscellaneous
itemized deductions, including such fees, exceed 2% of such Certificateholder's
adjusted gross income. Because the Servicer will not report to
Certificateholders the amount of income or deductions attributable to
miscellaneous charges, such a Certificateholder may effectively underreport its
net taxable income. See "Treatment of Fees or Payments" below for a discussion
of other possible consequences if amounts paid to the Servicer exceed reasonable
compensation for services rendered.
Treatment of Fees or Payments. It is expected that income will be reported
to Certificateholders on the assumption that the Certificateholders own a 100%
interest in all of the principal and interest derived from the related
Receivables. However, a portion of the amounts paid to the Servicer or the
Seller may exceed reasonable fees for services. There are no authoritative
guidelines, for federal income tax purposes, as to the maximum amount of
compensation that may be considered reasonable for servicing the Receivables or
performing other services, in the context of this or similar transactions;
accordingly, Tax Counsel is unable to give an opinion on this issue. If amounts
paid to the Servicer or the Seller exceed reasonable compensation for services
provided, the Servicer or the Seller or both may be viewed as having retained,
for federal income tax purposes, an ownership interest in a portion of each
interest payment with respect to certain Receivables. As a result, such
Receivables may be treated as "stripped bonds" within the meaning of the Code.
To the extent that the Receivables are characterized as "stripped bonds,"
the income of the related Tax Trust allocable to Certificateholders would not
include the portion of the interest on the Receivables treated as having been
retained by the Servicer or the Seller, as the case may be, and such Tax Trust's
deductions would be limited to reasonable servicing fees, interest paid on any
related Notes and other fees. In addition, a Certificateholder would not be
subject to the market discount and premium rules discussed below with respect to
the stripped Receivables, but instead would be subject to the OID rules of the
Code. However, if the price at which a Certificateholder were deemed to have
acquired a stripped Receivable is less than the remaining principal balance of
such Receivable by an amount which is less than a statutorily defined de minimis
amount, such Receivable would not be treated as having OID. In general, it
appears that the amount of OID on a Receivable treated as a "stripped bond" will
be de minimis if it is less than 1/4 of 1% for each full year remaining after
the purchase date until the final maturity of the Receivable, although the IRS
could take the
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position that the weighted average maturity date, rather than the final maturity
date, should be used in performing this calculation. If the amount of OID was de
minimis under this rule, the actual amount of discount on such a Receivable
would be includible in income as principal payments are received on the
Receivable.
If the OID on a Receivable were not treated as de minimis, a
Certificateholder would be required to include any OID in income as it accrues,
regardless of when cash payments are received, using a method reflecting a
constant yield on the Receivables. It is possible that the IRS could assert that
a prepayment assumption should be used in computing the yield of a stripped
Receivable. If a stripped Receivable is deemed to be acquired by a
Certificateholder at a significant discount, such prepayment assumption could
accelerate the accrual of income by a Certificateholder.
It is also possible that any fees deemed to be excessive could be
recharacterized as deferred purchase price payable to the Seller by
Certificateholders in exchange for the related Receivables. The likely effect of
such recharacterization would be to increase current taxable income to a
Certificateholder.
Discount And Premium. The following discussion generally assumes that the
fees and other amounts payable to the Servicer and the Seller will not be
recharacterized as being retained ownership interests in the Receivables (as
discussed above). A purchaser of a Trust Certificate should be treated as
purchasing an interest in each Receivable and any other property in the related
Tax Trust at a price determined by allocating the purchase price paid for the
Trust Certificate among the Receivables and other property in proportion to
their fair market values at the time of purchase of the Trust Certificate.
It is believed that the Receivables were not and will not be issued with
OID; therefore, a Tax Trust should not have OID income. However, the purchase
price paid by such Tax Trust for the Receivables may be greater or less than the
remaining principal balance of the Receivables at the time of purchase. If so,
the Receivables will have been acquired at a premium or market discount, as the
case may be. The market discount on a Receivable will be considered to be zero
if it is less than the statutorily defined de minimis amount.
Any gain on the sale of a Trust Certificate attributable to the holder's
share of unrecognized accrued market discount on the related Receivables would
generally be treated as ordinary income to the holder. Moreover, a holder who
acquires a Trust Certificate representing an interest in Receivables acquired at
a market discount may be required to defer a portion of any interest expense
otherwise deductible with respect to indebtedness incurred or maintained to
purchase or carry the Trust Certificate until the holder disposes of the Trust
Certificate in a taxable transaction. Instead of recognizing market discount, if
any, upon a disposition of Trust Certificates (and deferring any applicable
interest expense), a holder may elect to include market discount in income
currently as the discount accrues. The current inclusion election, once made,
applies to all market discount obligations acquired on or after the first day of
the first taxable year to which the election applies, and may not be revoked
without the consent of the IRS.
In the event that a Receivable is treated as purchased at a premium (i.e.,
the allocable portion of the Certificateholder's purchase price for the related
Trust Certificate exceeds the remaining principal balance of the Receivable),
such premium will be amortizable by a Certificateholder as an offset to interest
income (with a corresponding reduction in basis) under a constant yield method
over the term of the Receivable if the Certificateholder makes
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an election. Any such election will apply to all debt instruments held by the
Certificateholder during the year in which the election is made and to all debt
instruments acquired thereafter.
Disposition of Trust Certificates. Generally, capital gain or loss will be
recognized on a sale of Trust Certificates in an amount equal to the difference
between the amount realized and the seller's tax basis in the Trust Certificates
sold. A Certificateholder's tax basis in a Trust Certificate will generally
equal his cost increased by any OID and market discount previously included in
income, and decreased by any bond premium previously amortized and by the amount
of principal payments previously received on the Receivables held by the related
Tax Trust. Any gain on the sale of a Trust Certificate attributable to the
holder's share of unrecognized accrued market discount on the related
Receivables would generally be treated as ordinary income to the
Certificateholder, unless such Certificateholder makes the special election
described under "Discount and Premium" above.
If a Certificateholder is required to recognize an aggregate amount of
income (not including income attributable to disallowed itemized deductions
described above) over the life of the Trust Certificates that exceeds the
aggregate cash distributions with respect thereto, such excess will generally
give rise to a capital loss upon the retirement of the Trust Certificates.
Backup Withholding. Distributions made on Trust Certificates and proceeds
from the sale of the Certificates will be subject to a "backup" withholding tax
of 31% if, as discussed above with respect to the Notes, the Certificateholder
fails to comply with certain identification procedures, unless the holder is an
exempt recipient under applicable provisions of the Code.
Tax Consequences to Foreign Trust Certificateholders. Interest attributable
to Receivables which is received by a Certificateholder which is a foreign
person will generally not be subject to the normal 30% withholding tax imposed
with respect to such payments, provided that such Certificateholder is not
engaged in a trade or business in the United States and that such
Certificateholder fulfills certain certification requirements discussed above
under "The Notes--Tax Consequences to Foreign Noteholders."
PARTNERSHIP CERTIFICATES
Classification of Partnerships and Partnership Certificates. With respect
to each series of Certificates identified in the related Prospectus Supplement
as Partnership Certificates, the Seller and the Servicer will agree, and the
Certificateholders will agree by their purchase of such Partnership
Certificates, to treat the Tax Partnership as a partnership for purposes of
federal, state and local income and franchise tax purposes, with the partners of
such Partnership being the Certificateholders and the Seller (in its capacity as
recipient of distributions from the Reserve Account), and any related Notes
being debt of such Tax Partnership. However, the proper characterization of the
arrangement involving the Tax Partnership, the Partnership Certificates, the
Seller and the Servicer is not clear because there is no authority on
transactions closely comparable to that contemplated herein.
If the Tax Partnership were classified as an association taxable as a
corporation for federal income tax purposes, such Tax Partnership would be
subject to corporate income tax. Any such corporate income tax could materially
reduce or eliminate cash that would otherwise be distributable with respect to
the Partnership Certificates (and Certificateholders could be liable for any
such tax that is unpaid by such Tax Partnership). However, upon the issuance of
each series of Partnership Certificates, Tax Counsel will deliver its opinion
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generally to the effect that such Tax Partnership will not be classified as an
association taxable as a corporation.
Even if a Tax Partnership were not classified as an association taxable as
a corporation, it would be subject to corporate income tax if it were a
"publicly traded partnership" taxable as a corporation. However, in the opinion
of Tax Counsel, even if such Tax Partnership were treated as a publicly traded
partnership, it would not be taxable as a corporation because it would meet
certain qualifying income tests. Nonetheless, if a Tax Partnership were treated
as a publicly traded partnership and the Partnership Certificates were treated
as equity interests in such a partnership, certain holders could suffer adverse
consequences. For example, certain holders might be subject to certain
limitations on their ability to deduct their share of the Tax Partnership's
expenses.
Despite Tax Counsel's opinion that a Tax Partnership will be classified as
a partnership and not as an association or publicly traded partnership taxable
as a corporation, the lack of cases or rulings on similar transactions, as
discussed above, permits a variety of alternative characterizations in addition
to the position to be taken that the Partnership Certificates represent equity
interests in a partnership. For example, because the Partnership Certificates
will have certain features characteristic of debt, the Partnership Certificates
might be considered indebtedness of the Tax Partnership, the Seller or the
Issuer. Except as described above, any such characterization would not result in
materially adverse tax consequences to Certificateholders as compared to the
consequences from treatment of the Partnership Certificates as equity in a
partnership, described below. The following discussion assumes that the
Partnership Certificates represent equity interests in a partnership.
Partnership Taxation. A Tax Partnership will not be subject to federal
income tax, but each Certificateholder will be required to separately take into
account such holder's allocated share of income, gains, losses, deductions and
credits of such Tax Partnership. The Tax Partnership's income will consist
primarily of interest and finance charges earned on the related Receivables
(including appropriate adjustments for market discount, OID, and bond premium)
and any gain upon collection or disposition of such Receivables. The Tax
Partnership's deductions will consist primarily of interest paid or accrued with
respect to any related Notes, servicing and other fees, and losses or deductions
upon collection or disposition of the related Receivables.
The tax items of a partnership are allocable to the partners in accordance
with the Code, Treasury Regulations and the partnership agreement (with respect
to any series of Partnership Certificates, the Trust Agreement and related
documents). Each Trust Agreement for a Tax Partnership will provide that the
Certificateholders will be allocated taxable income of the related Tax
Partnership for each month equal to their allocable share of the sum of (1) the
Pass Through Rate on the related Partnership Certificates for such month; (2) an
amount equivalent to interest that accrues during such month on amounts
previously due on such Partnership Certificates but not yet distributed; (3) any
Tax Partnership income attributable to discount on the related Receivables that
corresponds to any excess of the principal amount of the Partnership
Certificates over their initial issue price; and (4) any Prepayment Surplus (as
defined in the related Prospectus Supplement) payable to the Partnership
Certificates for such month. In addition, each Trust Agreement for a Tax
Partnership will provide that the Certificateholders will be allocated their
allocable share for each month of the entire amount of interest expense paid by
the related Tax Partnership on any related Notes. If the Tax Partnership issues
any Strip Notes or Strip Certificates, it will also provide that the related
Certificateholders will be allocated taxable income of such Tax Partnership for
each month in the amounts described in the related Prospectus Supplement.
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All taxable income of the Tax Partnership remaining after the allocations to the
Certificateholders will be allocated to the Seller. It is believed that the
allocations to Certificateholders will be valid under applicable Treasury
Regulations, although no assurance can be given that the IRS would not require a
greater amount of income to be allocated to Certificateholders. Moreover, even
under the foregoing method of allocation, Certificateholders may be allocated
income equal to the entire Pass Through Rate plus the other items described
above, and holders of Strip Notes or Strip Certificates may be allocated income
equal to the amount described in the related Prospectus Supplement, even though
the related Tax Partnership might not have sufficient cash to make current cash
distributions of such amount. Thus, cash basis holders will in effect be
required to report income from the Partnership Certificates on the accrual
method. In addition, because tax allocations and tax reporting will be done on a
uniform basis for all Certificateholders but Certificateholders may be
purchasing Partnership Certificates at different times and at different prices,
Certificateholders may be required to report on their tax returns taxable income
that is greater or less than the amount reported to them by the related Tax
Partnership.
Additionally, all of the taxable income allocated to a Certificateholder
that is a pension, profit sharing or employee benefit plan or other tax-exempt
entity (including an individual retirement account) will constitute "unrelated
business taxable income" generally taxable to such a holder under the Code.
An individual taxpayer may generally deduct miscellaneous itemized
deductions (which do not include interest expense) only to the extent they
exceed two percent of adjusted gross income, and, certain additional limitations
may apply. Those limitations would apply to an individual Certificateholder's
share of expenses of a Tax Partnership (including fees to the Servicer) and
might result in such holder being taxed on an amount of income that exceeds the
amount of cash actually distributed to such holder over the life of such Tax
Partnership.
Each Tax Partnership intends to make all tax calculations relating to
income and allocations to Certificateholders on an aggregate basis. If the IRS
were to require that such calculations be made separately for each Receivable, a
Tax Partnership might be required to incur additional expense but it is believed
that there would not be a material adverse effect on Certificateholders.
Discount and Premium. It is believed that the Receivables were not and will
not be issued with OID and, therefore, that a Tax Partnership should not have
OID income. However, the purchase price paid by such Tax Partnership for the
related Receivables may be greater or less than the remaining principal balance
of such Receivables at the time of purchase. If so, such Receivables will have
been acquired at a premium or market discount, as the case may be. (As indicated
above, each Tax Partnership will make this calculation on an aggregate basis,
but might be required to recompute it on a Receivable by Receivable basis.)
Each Tax Partnership will make an election that will result in any market
discount on the related Receivables being included in income currently as such
discount accrues over the life of such Receivables. As indicated above, a
portion of such market discount income will be allocated to Certificateholders.
Section 708 Termination. Under Section 708 of the Code, a Tax Partnership
will be deemed to terminate for federal income tax purposes if 50% or more of
the capital and profits interests in such Tax Partnership are sold or exchanged
within a 12-month period. If such a termination occurs, a Tax Partnership will
be considered to contribute all of its assets to a new partnership followed by a
liquidation of the original Tax Partnership. A Tax Partnership will
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not comply with certain technical requirements that might apply when such a
constructive termination occurs. As a result, such Tax Partnership may be
subject to certain tax penalties and may incur additional expenses if it is
required to comply with those requirements. Furthermore, a Tax Partnership might
not be able to comply due to lack of data.
Disposition of Certificates. Generally, capital gain or loss will be
recognized on a sale of Partnership Certificates in an amount equal to the
difference between the amount realized and the seller's tax basis in the
Partnership Certificates sold. A Certificateholder's tax basis in a Partnership
Certificate will generally equal his cost increased by his share of the related
Tax Partnership's income (includible in his income) for the current and prior
taxable years and decreased by any distributions received with respect to such
Partnership Certificate. In addition, both tax basis in the Partnership
Certificates and the amount realized on a sale of a Partnership Certificate
would include the holder's share of any related Notes and other liabilities of
such Tax Partnership. A holder acquiring Partnership Certificates of the same
series at different prices may be required to maintain a single aggregate
adjusted tax basis in such Partnership Certificates, and, upon a sale or other
disposition of some of the Partnership Certificates, allocate a pro rata portion
of such aggregate tax basis to the Partnership Certificates sold (rather than
maintaining a separate tax basis in each Partnership Certificate for purposes of
computing gain or loss on a sale of that Partnership Certificate).
If a Certificateholder is required to recognize an aggregate amount of
income (not including income attributable to disallowed itemized deductions
described above) over the life of the Partnership Certificates that exceeds the
aggregate cash distributions with respect thereto, such excess will generally
give rise to a capital loss upon the retirement of the Partnership Certificates.
Allocations Between Transferors and Transferees. In general, each Tax
Partnership's taxable income and losses will be determined monthly and the tax
items for a particular calendar month will be apportioned among the
Certificateholders in proportion to the principal amount of the Partnership
Certificates or a fractional share of the Strip Notes or Strip Certificates
owned by them as of the first Record Date following the end of such month. As a
result, a holder purchasing Partnership Certificates may be allocated tax items
(which will affect its tax liability and tax basis) attributable to periods
before its actual purchase.
The use of such a monthly convention may not be permitted by existing
regulations. If a monthly convention is not allowed (or only applies to
transfers of less than all of the partner's interest), taxable income or losses
of a Tax Partnership might be reallocated among the Certificateholders. The
Owner Trustee is authorized to revise a Tax Partnership's method of allocation
between transferors and transferees to conform to a method permitted by future
regulations.
Section 754 Election. In the event that a Certificateholder sells its
Partnership Certificate for greater (less) than its adjusted basis therefor, the
purchasing Certificateholder will have a higher (lower) basis in the Partnership
Certificates than the selling Certificateholder had. The tax basis of the
related Tax Partnership's assets will not be adjusted to reflect that higher (or
lower) basis unless such Tax Partnership were to file an election under Section
754 of the Code. In order to avoid the administrative complexities that would be
involved in keeping accurate accounting records, as well as potentially onerous
information reporting requirements, a Tax Partnership will not make such an
election. As a result, Certificateholders might be allocated a greater or lesser
amount of Tax Partnership income than would be based on their own purchase price
for Partnership Certificates.
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Administrative Matters. For each Tax Partnership, the related Owner Trustee
is required to keep or have kept complete and accurate books of such Tax
Partnership. Such books will be maintained for financial reporting and tax
purposes on an accrual basis and the fiscal year of each Tax Partnership will be
the calendar year. The Owner Trustee will file a partnership information return
(IRS Form 1065) with the IRS for each taxable year of such Tax Partnership and
will report each Certificateholder's allocable share of items of Tax Partnership
income and expense to holders and the IRS on Schedule K-1. Any person that holds
Partnership Certificates as a nominee at any time during a calendar year is
required to furnish the related Tax Partnership with a statement containing
certain information on the nominee, the beneficial owners and the Partnership
Certificates so held. Each Tax Partnership will provide the Schedule K-1
information to nominees that fail to provide such Tax Partnership with the
information referenced in the preceding sentence and such nominees will be
required to forward such information to the beneficial owners of the related
Partnership Certificates. Generally, holders must file tax returns that are
consistent with the information return filed by the related Tax Partnership or
be subject to penalties unless the holder notifies the IRS of all such
inconsistencies.
The Seller, as the tax matters partner for each Tax Partnership, will be
responsible for representing the Certificateholders in any dispute with the IRS.
The Code provides for administrative examination of a partnership as if the
partnership were a separate taxpayer. Generally, the statute of limitations for
partnership items does not expire until three years after the date on which the
partnership information return is filed or deemed filed. Any adverse
determination following an audit of the return of a Tax Partnership by the
appropriate taxing authorities could result in an adjustment of the returns of
the Certificateholders and, under certain circumstances, a Certificateholder may
be precluded from separately litigating a proposed adjustment to the items of
the related Tax Partnership. An adjustment could result in an audit of a
Certificateholder's returns and adjustments of items not related to the income
and losses of the related Tax Partnership.
Tax Consequences to Foreign Certificateholders. It is not clear whether any
Tax Partnership would be considered to be engaged in a trade or business in the
United States for purposes of federal withholding taxes with respect to
non-United States persons because there is no clear authority regarding that
issue under facts substantially similar to those described herein. Although it
is not expected that any Tax Partnership would be engaged in a trade or business
in the United States for such purposes, such Tax Partnership will withhold as if
it were so engaged in order to protect such Tax Partnership from possible
adverse consequences of a failure to withhold. It is expected that each Tax
Partnership will withhold on the portion of its taxable income that is allocable
to foreign Certificateholders as if such income were effectively connected to a
United States trade or business, at a rate of 35% for foreign holders that are
taxable as corporations and 39.6% for all other foreign holders. In determining
a holder's nonforeign status, a Tax Partnership may generally rely on the
holder's certification of nonforeign status signed under penalties of perjury.
Each foreign holder might be required to file a United States individual or
corporate income tax return and pay tax (including, in the case of a
corporation, the branch profits tax) on its share of the related Tax
Partnership's income. Each foreign holder must obtain a taxpayer identification
number from the IRS and submit that number to the related Tax Partnership on
Form W-8 in order to assure appropriate crediting of the taxes withheld. A
foreign holder generally would be entitled to file with the IRS a claim for
refund with respect to taxes withheld by the related Tax Partnership, taking the
position that no taxes were due because such Tax Partnership was not engaged in
a U.S. trade or business. However, the IRS
55
<PAGE> 94
may assert that the tax liability should be based on gross income, and no
assurance can be given as to the appropriate amount of tax liability.
Backup Withholding. Distributions made on any Partnership Certificates and
proceeds from the sale of such Partnership Certificates will be subject to a
"backup" withholding tax of 31% if, as discussed above with respect to the
Notes, the Certificateholder fails to comply with certain identification
procedures, unless the holder is an exempt recipient under applicable provisions
of the Code.
TAX NON-ENTITY CERTIFICATES
Classification of Tax Non-Entity and Tax Non-Entity Certificates. With
respect to Certificates identified in the related Prospectus Supplement as Tax
Non-Entity Certificates and which are entirely owned by the Seller, the Seller
and the Servicer will agree, pursuant to the "check-the-box" Treasury
Regulations, to treat the Tax Non-Entity as a division of the Seller, and hence
a disregarded entity, for federal income tax purposes. In other words, for
federal income tax purposes, the Seller will be treated as the owner of all the
assets of the Tax Non-Entity and the obligor of all the liabilities of the Tax
Non-Entity. Under the "check-the-box" Treasury Regulations, unless it is treated
as a Tax Trust for federal income tax purposes, an unincorporated domestic
entity with more than one equity owner is automatically classified as a Tax
Partnership for federal income tax purposes. If the trust is classified as a Tax
Non-Entity when all its equity interests are wholly-owned by the Seller and if
Certificates are then sold or issued in any manner which results in there being
more than one Certificateholder, the trust will be treated as a Tax Partnership.
If Certificates are issued to more than one person, the Seller and the
Servicer will agree, and the applicable Certificateholders will agree by their
purchase, to treat the trust as a Tax Partnership for purposes of federal, state
and local income and franchise tax purposes, with the partners of such
partnership being the Certificateholders (including the Seller) and the Notes
being debt of such partnership.
Risks of Alternative Characterization. If a Tax Non-Entity were an
association or a "publicly traded partnership" taxable as a corporation for
federal income tax purposes, it would be subject to corporate income tax as
discussed above under "Partnership Certificates--Classification of Partnerships
and Partnership Certificates."
STATE AND LOCAL TAX CONSEQUENCES
The above discussion does not address the tax treatment of any Tax Trust,
Tax Partnership, Tax Non-Entity, Notes, Certificates, Noteholders or
Certificateholders under any state or local tax laws. The activities to be
undertaken by the Servicer in servicing and collecting the Receivables will take
place throughout the United States and, therefore, many different tax regimes
potentially apply to different portions of these transactions. Prospective
investors are urged to consult with their tax advisors regarding the state and
local tax treatment of any Tax Trust, Tax Partnership or Tax Non-Entity as well
as any state and local tax consequences to them of purchasing, holding and
disposing of Notes or Certificates.
56
<PAGE> 95
ERISA CONSIDERATIONS
Section 406 of the Employee Retirement Income Security Act of 1974, as
amended ("ERISA"), and Section 4975 of the Code prohibit a pension,
profit-sharing or other employee benefit plan, as well as individual retirement
accounts and certain types of Keogh Plans and certain collective investment
funds or insurance company general or separate accounts in which such plans and
accounts are invested (each a "BENEFIT PLAN"), from engaging in certain
transactions with persons that are "parties in interest" under ERISA or
"disqualified persons" under the Code with respect to such Benefit Plan. A
violation of these "prohibited transaction" rules may result in an excise tax or
other penalties and liabilities under ERISA and the Code for such persons. The
acquisition or holding of Securities by a Benefit Plan could be considered to
give rise to a prohibited transaction if the Seller, the Servicer, the related
Trust or any of their respective Affiliates is or becomes a party in interest or
a disqualified person with respect to such Benefit Plan.
In addition, certain transactions involving the Trust might be deemed to
constitute prohibited transactions under ERISA and the Code with respect to a
Benefit Plan that purchased Notes or Certificates if assets of the Trust were
deemed to be assets of the Benefit Plan. Under a regulation issued by the United
States Department of Labor (the "PLAN ASSETS REGULATION"), the assets of the
Trust would be treated as plan assets of a Benefit Plan for the purposes of
ERISA and the Code only if the Benefit Plan acquired an "equity interest" in the
Trust and none of the exceptions contained in the Plan Assets Regulation was
applicable. An equity interest is defined under the Plan Assets Regulation as an
interest other than an instrument which is treated as indebtedness under
applicable local law and which has no substantial equity features. The likely
treatment of Notes and Certificates is discussed in the related Prospectus
Supplement.
Employee benefit plans that are governmental plans (as defined in Section
3(32) of ERISA) and certain church plans (as defined in Section 3(33) of ERISA)
are not subject to ERISA requirements.
A plan fiduciary considering the purchase of Notes should consult its tax
and/or legal advisors and refer to the applicable Prospectus Supplement
regarding whether the assets of the Trust would be considered plan assets, the
possibility of exemptive relief from the prohibited transaction rules and other
issues and their potential consequences.
PLAN OF DISTRIBUTION
On the terms and conditions set forth in one or more underwriting
agreements (each an "UNDERWRITING AGREEMENT") with respect to each Trust, the
Seller will agree to sell to each of the underwriters named therein and in the
related Prospectus Supplement, and each of such underwriters will severally
agree to purchase from the Seller, the principal amount of each class of
Securities of the related series set forth therein and in the related Prospectus
Supplement.
In each Underwriting Agreement, the several underwriters will agree,
subject to the terms and conditions set forth therein, to purchase all the
Securities described therein which are offered hereby and by the related
Prospectus Supplement if any of such Securities are purchased. In the event of a
default by any such underwriter, each Underwriting Agreement will provide that,
in certain circumstances, purchase commitments of the nondefaulting underwriters
may be increased or the Underwriting Agreement may be terminated.
57
<PAGE> 96
Each Prospectus Supplement will either (1) set forth the price at which
each class of Securities being offered thereby will be offered to the public and
any concessions that may be offered to certain dealers participating in the
offering of such Securities or (2) specify that the related Securities are to be
resold by the Underwriters in negotiated transactions at varying prices to be
determined at the time of such sale. After the initial public offering of any
Securities, the public offering price and such concessions may be changed.
Each Underwriting Agreement will provide that the Seller will indemnify the
underwriters against certain liabilities, including liabilities under the
Securities Act.
The Indenture Trustee may, from time to time, invest the funds in the
Designated Accounts in Eligible Investments acquired from the underwriters.
Under each Underwriting Agreement, except as otherwise provided in the
related Prospectus Supplement, the closing of the sale of any class of
Securities subject thereto will be conditioned on the closing of the sale of all
other such classes.
The place and time of delivery for the Securities in respect of which this
Prospectus is delivered will be set forth in the related Prospectus Supplement.
LEGAL OPINIONS
Certain legal matters relating to the Notes and the Certificates will be
passed upon for each Trust, the Seller and GMAC by Robert L. Schwartz, Esq.,
General Counsel of the Seller and Assistant General Counsel of GMAC, and by
Kirkland & Ellis, special counsel to the Seller, each Trust and GMAC. Mr.
Schwartz owns shares of each of the classes of General Motors common stock and
has options to purchase shares of General Motors common stock, $1 2/3 par value.
Certain federal income tax matters will be passed upon for GMAC, each Trust and
the Seller by Kirkland & Ellis.
WHERE YOU CAN FIND MORE INFORMATION
We filed a registration statement relating to the Securities (the
"REGISTRATION STATEMENT") with the Securities and Exchange Commission (the
"SEC") under the Securities Act of 1933, as amended (the "SECURITIES ACT"). This
Prospectus is part of the Registration Statement, but the Registration Statement
includes additional information.
The Servicer will file with the SEC all required annual, monthly and
special SEC reports and other information about the Trust.
You may read and copy any reports, statements or other information we file
at the SEC's public reference room in Washington, D.C. You can request copies of
these documents, upon payment of a duplicating fee, by writing to the SEC.
Please call the SEC at (800) SEC-0330 for further information on the operation
of the public reference rooms. Our SEC filings are also available to the public
on the SEC Internet site (http://www.sec.gov).
INCORPORATION BY REFERENCE
The SEC allows us to "incorporate by reference" information we file with
it, which means that we can disclose important information to you by referring
you to those documents. The information incorporated by reference is considered
to be part of this Prospectus.
58
<PAGE> 97
Information that we file later with the SEC will automatically update the
information in this Prospectus. In all cases, you should rely on the later
information over different information included in this Prospectus or the
accompanying Prospectus Supplement. We incorporate by reference any future SEC
reports and materials filed by or on behalf of the Trust until we terminate our
offering of the Certificates.
As a recipient of this Prospectus, you may request a copy of any document
we incorporate by reference, except exhibits to the documents (unless the
exhibits are specifically incorporated by reference), at no cost, by writing us
at: General Motors Acceptance Corporation, 3044 West Grand Boulevard, Detroit,
Michigan 48202.
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<PAGE> 98
INDEX OF TERMS
Set forth below is a list of the defined terms used in this Prospectus and
the accompanying Prospectus Supplement and the pages on which the definitions of
such terms may be found herein.
<TABLE>
<CAPTION>
PAGE
--------
<S> <C>
A LIBOR Business Day........................................ S-16
Accumulation Account........................................ S-18
Accumulation Amount......................................... S-25
Additional Servicing........................................ 29
Administration Agreement.................................... 39
Administrative Purchase Payment............................. 27
Administrative Receivable................................... 27
Administrator............................................... 39
Aggregate Amount Financed................................... 9
Aggregate Noteholders' Interest Distributable Amount........ S-25
Aggregate Noteholders' Principal Distributable Amount....... S-26
Aggregate Principal Balance................................. 9
Amount Financed............................................. 8
Applicable Trustee.......................................... 20
APR......................................................... 10
Available Interest.......................................... S-22
Available Principal......................................... S-22
Basic Servicing Fee......................................... 29
Basic Servicing Fee Rate.................................... S-22
Benefit Plan................................................ 57
Business Day................................................ S-17
Cede........................................................ 20
Cedelbank Participants...................................... 21
Certificate Balance......................................... S-26
Certificate Distribution Account............................ 28
Certificate Pool Factor..................................... 11
Certificateholders.......................................... 10
Certificateholders' Interest Carryover Shortfall............ S-26
Certificateholders' Interest Distributable Amount........... S-26
Certificateholders' Monthly Interest Distributable Amount... S-26
Certificateholders' Percentage.............................. S-26
Certificateholders' Principal Carryover Shortfall........... S-26
Certificateholders' Principal Distributable Amount.......... S-26
Certificates................................................ 7
Class A Percentage.......................................... S-26
Closing Date................................................ 26, S-13
Code........................................................ 44
Collection Account.......................................... 28
Cooperative................................................. 22
Cutoff Date................................................. 7, S-14
Definitive Certificates..................................... 23
Definitive Notes............................................ 23
Definitive Securities....................................... 23
Depository.................................................. 13
Designated Accounts......................................... 28
Distribution Date........................................... 19, S-17
</TABLE>
i
<PAGE> 99
<TABLE>
<CAPTION>
PAGE
--------
<S> <C>
DTC......................................................... 20
Eligible Deposit Account.................................... 29
Eligible Institution........................................ 29
Eligible Investments........................................ 28
ERISA....................................................... 57
Euroclear Operator.......................................... 22
Euroclear Participants...................................... 22
Events of Default........................................... 15
Excess Payment.............................................. 31
Excess Simple Interest Collections.......................... 31
Final Scheduled Distribution Date........................... S-16
Financed Vehicles........................................... 7
FTC Repossession Consent Order.............................. 41
FTC Rule.................................................... 42
General Motors.............................................. 8
GMAC........................................................ 8
Indenture................................................... S-16
Indenture Trustee........................................... S-16
Indirect Participants....................................... 20
Initial Aggregate Principal Balance......................... S-26
Insolvency Event............................................ 36
Insolvency Laws............................................. 11
Interest Rate............................................... S-16
Investment Earnings......................................... 29
IRS......................................................... 44
LIBOR....................................................... S-16
Liquidating Receivables..................................... S-22
Liquidation Expenses........................................ 30
Liquidation Proceeds........................................ S-22
Monthly Advance............................................. 32
Monthly Period.............................................. 31
Note Distribution Account................................... 28
Note Pool Factor............................................ 10
Noteholders................................................. 10
Noteholders' Interest Carryover Shortfall................... S-26
Noteholders' Interest Distributable Amount.................. S-27
Noteholders' Percentage..................................... S-27
Noteholders' Principal Carryover Shortfall.................. S-27
Noteholders' Principal Distributable Amount................. S-27
Notes....................................................... 7
OID......................................................... 45
Owner Trustee............................................... S-13
Participants................................................ 13
Partnership Certificates.................................... 45
Pass Through Rate........................................... S-28
Payment Ahead............................................... 31
Payment Ahead Servicing Account............................. 28
Payment Date................................................ 13
Plan Assets Regulation...................................... 57
Pooling and Servicing Agreement............................. 26
Prepayment.................................................. 31
</TABLE>
ii
<PAGE> 100
<TABLE>
<CAPTION>
PAGE
--------
<S> <C>
Principal Balance........................................... 9
Principal Distributable Amount.............................. S-28
PTCE........................................................ S-32
Rating Agencies............................................. 28
Receivables................................................. 7
Receivables Pool............................................ 7
Reference Bank Rate......................................... S-17
Registration Statement...................................... 58
Related Documents........................................... 17
Reserve Account............................................. 33
Rules....................................................... 20
Schedule of Receivables..................................... 26
Scheduled Interest Advance.................................. 32
Scheduled Interest Receivables.............................. 9
Scheduled Payments.......................................... 9
SEC......................................................... 58
Securities.................................................. 2
Securities Act.............................................. 58
Securityholder.............................................. 20
Seller...................................................... 11
Sequential Amortization Commencement Date................... S-29
Sequential Amortization Period.............................. S-29
Servicer Default............................................ 36
Servicer Liquidity Advance.................................. S-20
Short-Term Note............................................. 46
Simple Interest Advance..................................... 32
Simple Interest Receivables................................. 9
Specified Reserve Account Balance........................... S-30
Strip Certificates.......................................... 19
Strip Notes................................................. 13
Supplemental Servicing Fee.................................. 30
Targeted Final Distribution Date............................ S-16
Tax Counsel................................................. 45
Tax Non-Entity.............................................. 45
Tax Non-Entity Certificates................................. 45
Tax Partnership............................................. 44
Tax Trust................................................... 44
Terms and Conditions........................................ 22
Total Available Amount...................................... S-22
Total Note Principal Payment Amount......................... S-29
Total Servicing Fee......................................... 30
Transfer and Servicing Agreements........................... 25
Trust....................................................... 7
Trust Agreement............................................. 18
Trust Certificates.......................................... 45
Trust Indenture Act......................................... 14
Trust Sale and Servicing Agreement.......................... 26
UCC......................................................... 28
UCCC........................................................ 42
Underwriting Agreement...................................... 57
Variable Pay Term Notes Issuance Proceeds................... S-29
</TABLE>
iii
<PAGE> 101
<TABLE>
<CAPTION>
PAGE
--------
<S> <C>
Variable Pay Term Percentage................................ S-29
Warranty Payment............................................ 27
Warranty Receivable......................................... 26
</TABLE>
iv
<PAGE> 102
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NO DEALER, SALESMAN OR OTHER PERSON HAS BEEN AUTHORIZED TO GIVE ANY
INFORMATION OR TO MAKE ANY REPRESENTATIONS NOT CONTAINED IN THIS PROSPECTUS
SUPPLEMENT AND THE PROSPECTUS AND, IF GIVEN OR MADE, SUCH INFORMATION OR
REPRESENTATIONS MUST NOT BE RELIED UPON AS HAVING BEEN AUTHORIZED BY THE SELLER,
THE SERVICER OR THE UNDERWRITERS. THIS PROSPECTUS SUPPLEMENT AND THE PROSPECTUS
DO NOT CONSTITUTE AN OFFER TO SELL, OR A SOLICITATION OF AN OFFER TO BUY, THE
SECURITIES OFFERED HEREBY TO ANYONE IN ANY JURISDICTION IN WHICH THE PERSON
MAKING SUCH OFFER OR SOLICITATION IS NOT QUALIFIED TO DO SO OR TO ANYONE TO WHOM
IT IS UNLAWFUL TO MAKE ANY SUCH OFFER OR SOLICITATION. NEITHER THE DELIVERY OF
THIS PROSPECTUS SUPPLEMENT AND THE PROSPECTUS NOR ANY SALE MADE HEREUNDER SHALL,
UNDER ANY CIRCUMSTANCES, CREATE AN IMPLICATION THAT INFORMATION HEREIN OR
THEREIN IS CORRECT AS OF ANY TIME SINCE THE DATE OF THIS PROSPECTUS SUPPLEMENT
OR THE PROSPECTUS.
------------------
UNTIL , ALL DEALERS EFFECTING TRANSACTIONS IN THE NOTES,
WHETHER OR NOT PARTICIPATING IN THIS DISTRIBUTION, MAY BE REQUIRED TO DELIVER A
PROSPECTUS SUPPLEMENT AND THE PROSPECTUS TO WHICH IT RELATES. THIS DELIVERY
REQUIREMENT IS IN ADDITION TO THE OBLIGATION OF DEALERS TO DELIVER A PROSPECTUS
SUPPLEMENT AND PROSPECTUS WHEN ACTING AS UNDERWRITERS AND WITH RESPECT TO THEIR
UNSOLD ALLOTMENTS OR SUBSCRIPTIONS.
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CAPITAL AUTO RECEIVABLES
ASSET TRUST 1999-2
$1,153,279,000
ASSET BACKED NOTES
$63,751,066.84
ASSET BACKED CERTIFICATES
CAPITAL AUTO RECEIVABLES, INC.
SELLER
GENERAL MOTORS
ACCEPTANCE CORPORATION
SERVICER
------------------------------------
PROSPECTUS SUPPLEMENT
------------------------------------
UNDERWRITERS
Joint Bookrunners
CREDIT SUISSE FIRST BOSTON
J.P. MORGAN & CO.
Co-Managers
BANC OF AMERICA SECURITIES LLC
BANC ONE CAPITAL MARKETS, INC.
CHASE SECURITIES INC.
LEHMAN BROTHERS
MERRILL LYNCH & CO.
SALOMON SMITH BARNEY
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