UNITED STATES SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934
Date of Report: May 4, 2000
CAPITAL AUTO RECEIVABLES, INC.
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(Exact name of registrant as specified in its charter)
Delaware 333-06039 38-3082892
- ------------------------------- ----------- ------------------
(State or other jurisdiction of Commission (I.R.S. Employer
incorporation or organization) File Number Identification
No.)
Corporate Trust Center
1209 Orange Street, Wilmington, DE 19801
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(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code 302-658-7581
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Items 1-6. Not Applicable.
Item 7. Financial Statements and Exhibits.
(a) Not Applicable
(b) Not Applicable
(c) Exhibits
4.1 Indenture between Capital Auto Receivables Asset Trust 2000-1 (the
"Trust") and Bank One, National Association, as Indenture Trustee,
dated as of April 19, 2000
4.2 Trust Agreement between Capital Auto Receivables, Inc. (the "Seller")
and Bankers Trust (Delaware), as Owner Trustee, dated as of April 19,
2000
99.1 Trust Sale and Servicing Agreement among General Motors Acceptance
Corporation, as Servicer, Capital Auto Receivables, Inc. as the Seller
and Capital Auto Receivables Asset Trust 2000-1, as the Issuer, dated
as of April 19, 2000
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99.2 Supplemental Statement of Eligibility on Form T-1 of Bank One,
National Association, as Indenture Trustee under the Indenture
99.3 Pooling and Servicing Agreement between Capital Auto Receivables, Inc.
and General Motors Acceptance Corporation, dated as of April 19, 2000
99.4 Schedule to the Master Agreement between Capital Auto Receivables Asset
Trust 2000-1 and Morgan Stanley Capital Services Inc., dated as of
April 19, 2000.
99.5 Letter Agreement to confirm the terms and conditions of the
Swap Transaction between Morgan Stanley Capital Services
Inc. and Capital Auto Receivables Asset Trust 2000-1, dated
as of April 19, 2000.
99.6 Triparty Contingent Assignment Agreement among Capital Auto Receivables
Asset Trust 2000-1, General Motors Acceptance Corporation and Morgan
Stanley Capital Services Inc., dated as of April 19, 2000.
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
CAPITAL AUTO RECEIVABLES, INC.
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(Registrant)
/s/ WILLIAM F. MUIR
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Dated: May 4, 2000 William F. Muir, Chairman of the Board
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/s/ JOHN D. FINNEGAN
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Dated: May 4, 2000 John D. Finnegan, President and Director
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EXHIBIT INDEX
Exhibit Description
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4.1 Indenture between Capital Auto Receivables
Asset Trust 2000-1 (the "Trust") and
Bank One, National Association, as Indenture
Trustee, dated as of April 19, 2000
4.2 Trust Agreement between Capital Auto
Receivables, Inc. (the "Seller") and Bankers
Trust (Delaware), as Owner Trustee, dated as
of April 19, 2000
99.1 Trust Sale and Servicing Agreement among
General Motors Acceptance Corporation, as
Servicer, Capital Auto Receivables, Inc. as the
Seller and Capital Auto Receivables Asset Trust
2000-1 as the Issuer, dated as of April 19, 2000
99.2 Supplemental Statement of Eligibility on
Form T-1 of Bank One, National Association
as Indenture Trustee under the Indenture
99.3 Pooling and Servicing Agreement between Capital
Auto Receivables, Inc. and General Motors Acceptance
Corporation, dated as of April 19, 2000
99.4 Schedule to the Master Agreement between Capital
Auto Receivables Asset Trust 2000-1 and Morgan Stanley
Capital Services Inc., dated April 19, 2000.
99.5 Letter Agreement to confirm the terms and conditions
of the Swap Transaction between Morgan Stanley Capital
Services Inc. and Capital Auto Receivables Asset Trust
2000-1, dated April 19, 2000.
99.6 Triparty Contingent Assignment Agreement among Capital
Auto Receivables Asset Trust 2000-1 and General Motors
Acceptance Corporation and Morgan Stanley Capital Services
Inc., dated April 19, 2000.
EXHIBIT 4.1
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CAPITAL AUTO RECEIVABLES ASSET TRUST 2000-1
CLASS A-1 6.52% ASSET BACKED NOTES
CLASS A-2 6.81% ASSET BACKED NOTES
CLASS A-3 6.96% ASSET BACKED NOTES
CLASS A-4 7.00% ASSET BACKED NOTES
CLASS A-5 7.07% ASSET BACKED NOTES
FLOATING RATE VARIABLE PAY ASSET BACKED TERM NOTES
INDENTURE
DATED AS OF APRIL 19, 2000
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BANK ONE, NATIONAL ASSOCIATION
INDENTURE TRUSTEE
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CROSS-REFERENCE TABLE
TIA INDENTURE
SECTION SECTION
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<S> <C> <C> <C> <C> <C>
310(a)(1) .............................................................. 6.11
(a)(2) .............................................................. 6.11
(a)(3) .............................................................. 6.10
(a)(4) .............................................................. 6.14
(b) .............................................................. 6.11
(c) .............................................................. N.A.
311(a) .............................................................. 6.12
(b) .............................................................. 6.12
(c) .............................................................. N.A.
312(a) .............................................................. 7.1, 7.2
(b) .............................................................. 7.2
(c) .............................................................. 7.2
313(a) .............................................................. 7.4(a), 7.4(b)
(b)(1) .............................................................. 7.4(a)
(b)(2) .............................................................. 7.4(a)
(c) .............................................................. 7.4(a)
(d) .............................................................. 7.4(a)
314(a) .............................................................. 7.3(a), 3.9
(b) .............................................................. 3.6
(c)(1) .............................................................. 2.2, 2.9, 4.1, 11.1(a)
(c)(2) .............................................................. 11.1(a)
(c)(3) .............................................................. 11.1(a)
(d) .............................................................. 2.9, 11.1(b)
(e) .............................................................. 11.1(a)
(f) .............................................................. 11.1(a)
315(a) .............................................................. 6.1(b)
(b) .............................................................. 6.5
(c) .............................................................. 6.1(a)
(d) .............................................................. 6.2, 6.1(c)
(e) .............................................................. 5.13
316(a)last
sentence .............................................................. 1.1
(a)(1)(A) .............................................................. 5.11
(a)(1)(B) .............................................................. 5.12
(a)(2) .............................................................. Omitted
316(b), (c) .............................................................. 5.7
317(a)(1) .............................................................. 5.3(b)
(a)(2) .............................................................. 5.3(d)
(b) .............................................................. 3.3
318(a) .............................................................. 11.7
N.A. means Not Applicable.
=========================== ============================================================== =========================
Note: This cross reference table shall not, for any purpose, be deemed to be part of this
Indenture.
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TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS AND INCORPORATION BY REFERENCE
<S> <C> <C>
1.1 Definitions...................................................................................2
1.2 Incorporation by Reference of Trust Indenture Act.............................................2
ARTICLE II
THE NOTES
2.1 Form..........................................................................................3
2.2 Execution, Authentication and Delivery........................................................4
2.3 Temporary Notes...............................................................................5
2.4 Registration; Registration of Transfer and Exchange of Notes..................................5
2.5 Mutilated, Destroyed, Lost or Stolen Notes....................................................7
2.6 Persons Deemed Noteholders....................................................................8
2.7 Payment of Principal and Interest.............................................................8
2.8 Cancellation of Notes.........................................................................9
2.9 Release of Collateral........................................................................10
2.10 Book-Entry Notes.............................................................................10
2.11 Notices to Clearing Agency...................................................................11
2.12 Definitive Notes.............................................................................11
2.13 Seller as Noteholder.........................................................................11
2.14 Tax Treatment................................................................................11
2.15 Special Terms Applicable to the Private Notes................................................12
ARTICLE III
COVENANTS
3.1 Payment of Principal and Interest............................................................13
3.2 Maintenance of Agency Office.................................................................13
3.3 Money for Payments To Be Held in Trust.......................................................13
3.4 Existence....................................................................................15
3.5 Protection of Trust Estate; Acknowledgment of Pledge.........................................15
3.6 Opinions as to Trust Estate..................................................................16
3.7 Performance of Obligations; Servicing of Receivables.........................................17
3.8 Negative Covenants...........................................................................18
3.9 Annual Statement as to Compliance............................................................18
3.10 Consolidation, Merger, etc., of Issuer; Disposition of Trust Assets..........................19
3.11 Successor or Transferee......................................................................21
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<S> <C> <C>
3.12 No Other Business............................................................................21
3.13 No Borrowing.................................................................................21
3.14 Guarantees, Loans, Advances and Other Liabilities............................................22
3.15 Servicer's Obligations.......................................................................22
3.16 Capital Expenditures.........................................................................22
3.17 Removal of Administrator.....................................................................22
3.18 Restricted Payments..........................................................................22
3.19 Notice of Events of Default..................................................................23
3.20 Further Instruments and Acts.................................................................23
3.21 Indenture Trustee's Assignment of Administrative Receivables and
Warranty Receivables.........................................................................23
3.22 Representations and Warranties by the Issuer to the Indenture Trustee........................23
ARTICLE IV
SATISFACTION AND DISCHARGE
4.1 Satisfaction and Discharge of Indenture......................................................24
4.2 Application of Trust Money...................................................................25
4.3 Repayment of Monies Held by Paying Agent.....................................................25
4.4 Duration of Position of Indenture Trustee....................................................25
ARTICLE V
DEFAULT AND REMEDIES
5.1 Events of Default............................................................................26
5.2 Acceleration of Maturity; Rescission and Annulment...........................................27
5.3 Collection of Indebtedness and Suits for Enforcement by Indenture Trustee....................28
5.4 Remedies; Priorities.........................................................................30
5.5 Optional Preservation of the Receivables.....................................................31
5.6 Limitation of Suits..........................................................................31
5.7 Unconditional Rights of Noteholders To Receive Principal and Interest........................32
5.8 Restoration of Rights and Remedies...........................................................33
5.9 Rights and Remedies Cumulative...............................................................33
5.10 Delay or Omission Not a Waiver...............................................................33
5.11 Control by Noteholders.......................................................................33
5.12 Waiver of Past Defaults......................................................................34
5.13 Undertaking for Costs........................................................................34
5.14 Waiver of Stay or Extension Laws.............................................................35
5.15 Action on Notes..............................................................................35
5.16 Performance and Enforcement of Certain Obligations...........................................35
ARTICLE VI
THE INDENTURE TRUSTEE
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<S> <C> <C>
6.1 Duties of Indenture Trustee..................................................................36
6.2 Rights of Indenture Trustee..................................................................37
6.3 Indenture Trustee May Own Notes..............................................................39
6.4 Indenture Trustee's Disclaimer...............................................................39
6.5 Notice of Defaults...........................................................................39
6.6 Reports by Indenture Trustee to Holders......................................................39
6.7 Compensation; Indemnity......................................................................39
6.8 Replacement of Indenture Trustee.............................................................40
6.9 Merger or Consolidation of Indenture Trustee.................................................41
6.10 Appointment of Co-Indenture Trustee or Separate Indenture Trustee............................41
6.11 Eligibility; Disqualification................................................................43
6.12 Preferential Collection of Claims Against Issuer.............................................43
6.13 Representations and Warranties of Indenture Trustee..........................................43
6.14 Indenture Trustee May Enforce Claims Without Possession of Notes.............................44
6.15 Suit for Enforcement.........................................................................44
6.16 Rights of Noteholders to Direct Indenture Trustee............................................44
ARTICLE VII
NOTEHOLDERS' LISTS AND REPORTS
7.1 Issuer To Furnish Indenture Trustee Names and Addresses of Noteholders.......................45
7.2 Preservation of Information, Communications to Noteholders...................................45
7.3 Reports by Issuer............................................................................45
7.4 Reports by Trustee...........................................................................46
ARTICLE VIII
ACCOUNTS, DISBURSEMENTS AND RELEASES
8.1 Collection of Money..........................................................................46
8.2 Designated Accounts; Payments................................................................47
8.3 General Provisions Regarding Accounts........................................................50
8.4 Release of Trust Estate......................................................................50
8.5 Opinion of Counsel...........................................................................51
ARTICLE IX
SUPPLEMENTAL INDENTURES
9.1 Supplemental Indentures Without Consent of Noteholders.......................................51
9.2 Supplemental Indentures With Consent of Noteholders..........................................52
9.3 Execution of Supplemental Indentures.........................................................54
9.4 Effect of Supplemental Indenture.............................................................54
9.5 Conformity with Trust Indenture Act..........................................................55
9.6 Reference in Notes to Supplemental Indentures................................................55
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ARTICLE X
REDEMPTION OF NOTES
<S> <C> <C>
10.1 Redemption...................................................................................55
10.2 Form of Redemption Notice....................................................................55
10.3 Notes Payable on Redemption Date.............................................................56
ARTICLE XI
MISCELLANEOUS
11.1 Compliance Certificates and Opinions, etc....................................................56
11.2 Form of Documents Delivered to Indenture Trustee.............................................58
11.3 Acts of Noteholders..........................................................................59
11.4 Notices, etc., to Indenture Trustee, Issuer and Rating Agencies..............................60
11.5 Notices to Noteholders; Waiver...............................................................60
11.6 Alternate Payment and Notice Provisions......................................................61
11.7 Conflict with Trust Indenture Act............................................................61
11.8 Effect of Headings and Table of Contents.....................................................61
11.9 Successors and Assigns.......................................................................61
11.10 Severability.................................................................................62
11.11 Benefits of Indenture........................................................................62
11.12 Legal Holidays...............................................................................62
11.13 GOVERNING LAW................................................................................62
11.14 Counterparts.................................................................................62
11.15 Recording of Indenture.......................................................................63
11.16 No Recourse..................................................................................63
11.17 No Petition..................................................................................63
11.18 Inspection...................................................................................64
11.19 Indemnification by and Reimbursement of the Servicer.........................................64
Exhibit A - Location of Schedule of Receivables
Exhibit B - Form of Note Depository Agreement
Exhibit C-1 - Form of Offered Class A Asset Backed Note
Exhibit C-2 - Form of Variable Pay Term Asset Backed Note
Exhibit C-3 - Form of Class A-1 Asset Backed Note
Exhibit D - Rule 144A Certificate
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(v)
<PAGE>
INDENTURE, dated as of April 19, 2000, between CAPITAL AUTO
RECEIVABLES ASSET TRUST 2000-1, a Delaware business trust (the "ISSUER"), and
BANK ONE, NATIONAL ASSOCIATION, as trustee and not in its individual capacity
(the "Indenture Trustee").
Each party agrees as follows for the benefit of the other
party and for the equal and ratable benefit of the Secured Parties and the
Holders of the Certificates (only to the extent expressly provided herein):
GRANTING CLAUSE
The Issuer hereby Grants to the Indenture Trustee at the
Closing Date, as trustee for the benefit of the Secured Parties (only to the
extent expressly provided herein), (a) all of the Issuer's right, title and
interest in, to and under the Receivables listed on the Schedule of Receivables
which is on file at the locations listed on Exhibit A hereto and (i) in the case
of Scheduled Interest Receivables, all monies due thereon on and after the
Cutoff Date and (ii) in the case of Simple Interest Receivables, all monies
received thereon on and after the Cutoff Date, in each case exclusive of any
amounts allocable to the premium for physical damage insurance force-placed by
the Servicer and covering any related Financed Vehicle; (b) the interest of the
Issuer in the security interests in the Financed Vehicles granted by Obligors
pursuant to the Receivables and, where permitted by law, any accessions thereto;
(c) the interest of the Issuer in any proceeds with respect to the Receivables
from claims on any physical damage, credit life, credit disability or other
insurance policies covering Financed Vehicles or Obligors (except for those
Receivables originated in Wisconsin); (d) the interest of the Issuer in any
proceeds with respect to the Receivables from recourse against dealers thereon;
(e) all right, title and interest in all funds on deposit from time to time in
the Collection Account, the Note Distribution Account, the Certificate
Distribution Account and the Accumulation Account; (f) all right, title and
interest of the Issuer in, to and under the Trust Sale and Servicing Agreement
(including all rights of Capital Auto Receivables, Inc. ("CARI") under the
Pooling and Servicing Agreement assigned to the Issuer pursuant to the Trust
Sale and Servicing Agreement); (g) all right, title and interest of the Issuer
in, to and under any Third Party Instrument; and (h) all present and future
claims, demands, causes and choses in action in respect of any or all of the
foregoing and all payments on or under and all proceeds of every kind and nature
whatsoever in respect of any or all of the foregoing, including all proceeds of
the conversion, voluntary or involuntary, into cash or other liquid property,
all cash proceeds, accounts, accounts receivable, notes, drafts, acceptances,
chattel paper, checks, deposit accounts, insurance proceeds, investment
property, general intangibles, condemnation awards, rights to payment of any and
every kind and other forms of obligations and receivables, instruments and other
property which at any time constitute all or part of or are included in the
proceeds of any of the foregoing (collectively, the "Collateral").
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The foregoing Grant is made in trust to secure the Secured
Obligations and the payment of the Certificate Balance and interest on, and any
other amounts owing in respect of, the Certificates, equally and ratably without
prejudice, priority or distinction, and to secure compliance with the provisions
of this Indenture, all as provided in this Indenture. This Indenture constitutes
a security agreement under the UCC.
The foregoing Grant includes all rights, powers and options
(but none of the obligations, if any) of the Issuer under any agreement or
instrument included in the Collateral, including the immediate and continuing
right to claim for, collect, receive and give receipt for principal and interest
payments in respect of the Receivables included in the Collateral and all other
monies payable under the Collateral, to give and receive notices and other
communications, to make waivers or other agreements, to exercise all rights and
options, to bring Proceedings in the name of the Issuer or otherwise and
generally to do and receive anything that the Issuer is or may be entitled to do
or receive under or with respect to the Collateral.
The Indenture Trustee, as trustee on behalf of the Secured
Parties and (only to the extent expressly provided herein) the
Certificateholders, acknowledges such Grant and accepts the trusts under this
Indenture in accordance with the provisions of this Indenture.
ARTICLE I
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.1 DEFINITIONS. Certain capitalized terms used in
this Indenture shall have the respective meanings assigned them in Part I of
Appendix A to the Trust Sale and Servicing Agreement (as amended from time to
time, the "Trust Sale and Servicing Agreement") dated as of the date hereof,
among the Issuer, CARI and General Motors Acceptance Corporation ("GMAC"). All
references in this Indenture to Articles, Sections, subsections and exhibits are
to the same contained in or attached to this Indenture unless otherwise
specified. All terms defined in this Indenture shall have the defined meanings
when used in any certificate, notice, Note or other document made or delivered
pursuant hereto unless otherwise defined therein. The rules of construction set
forth in Part II of such Appendix A shall be applicable to this Indenture.
SECTION 1.2 INCORPORATION BY REFERENCE OF TRUST INDENTURE
ACT. Whenever this Indenture refers to a provision of the TIA, such provision is
incorporated by reference in and made a part of this Indenture. The following
TIA terms used in this Indenture have the following meanings:
"COMMISSION" means the Securities and Exchange Commission.
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"INDENTURE SECURITIES" means the Notes.
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2
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"INDENTURE SECURITY HOLDER" means a Noteholder.
-------------------------
"INDENTURE TO BE QUALIFIED" means this Indenture.
-------------------------
"INDENTURE TRUSTEE" means the Indenture Trustee.
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"OBLIGOR" on the indenture securities means the Issuer and
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any other obligor on the indenture securities.
All other TIA terms used in this Indenture that are defined
by the TIA, defined by reference to another statute or defined by a Commission
rule have the respective meanings assigned to them by such definitions.
ARTICLE II
THE NOTES
SECTION 2.1 FORM.
(a) Each of the Class A-2 Notes, the Class A-3 Notes, the
Class A-4 Notes and the Class A-5 Notes, together, in each case, with the
Indenture Trustee's certificate of authentication, shall be substantially in the
form set forth in Exhibit C-1 and each of the Variable Pay Term Notes, together
with the Indenture Trustee's certificate of authentication, shall be
substantially in the form set forth in Exhibit C-2 and each of the Class A-1
Notes, together with the Indenture Trustee's certificate of authentication,
shall be substantially in the form set forth in Exhibit C-3, in each case with
such appropriate insertions, omissions, substitutions and other variations as
are required or permitted by this Indenture, and each such Note may have such
letters, numbers or other marks of identification and such legends or
endorsements placed thereon as may, consistently herewith, be determined by the
officers executing such Notes, as evidenced by their execution of the Notes. Any
portion of the text of any Note may be set forth on the reverse thereof, with an
appropriate reference thereto on the face of the Note.
(b) The Definitive Notes shall be typewritten, printed,
lithographed or engraved or produced by any combination of these methods (with
or without steel engraved borders), all as determined by the officers executing
such Notes, as evidenced by their execution of such Notes.
(c) The terms of each class of Notes as provided for in
EXHIBITS C-1, C-2 and C-3 hereto are part of the terms of this Indenture.
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SECTION 2.2 EXECUTION, AUTHENTICATION AND DELIVERY.
(a) Each Note shall be dated the date of its authentication
and shall be issuable as a registered Note in the minimum denomination of $1,000
and in integral multiples thereof (except, if applicable, for one Note
representing a residual portion of each class which may be issued in a different
denomination).
(b) The Notes shall be executed on behalf of the Issuer by
any of its Authorized Officers. The signature of any such Authorized Officer on
the Notes may be manual or facsimile.
(c) Notes bearing the manual or facsimile signature of
individuals who were at any time Authorized Officers of the Issuer shall bind
the Issuer, notwithstanding that such individuals or any of them have ceased to
hold such office prior to the authentication and delivery of such Notes or did
not hold such office at the date of such Notes.
(d) The Indenture Trustee, in exchange for the Grant of the
Receivables and the other components of the Trust, simultaneously with the Grant
to the Indenture Trustee of the Receivables, and the constructive delivery to
the Indenture Trustee of the Receivables Files and the other components and
assets of the Trust, shall cause to be authenticated and delivered to or upon
the order of the Issuer, Notes for original issue in aggregate principal amount
of $2,128,018,000, comprised of (i) Class A-1 Notes in the aggregate principal
amount of $455,000,000, (ii) Class A-2 Notes in the aggregate principal amount
of $390,000,000, (iii) Class A-3 Notes in the aggregate principal amount of
$319,000,000, (iv) Class A-4 Notes in the aggregate principal amount of
$390,000,000, (v) Class A-5 Notes in the aggregate principal amount of
$58,880,000, and (vi) the initial Variable Pay Term Note in the aggregate
principal amount of $515,138,000. The aggregate principal amount of all Notes
outstanding at any time may not exceed $2,128,018,000, except as provided in
Section 2.5.
(e) On the Targeted Final Distribution Date for each class
of Class A Notes, an additional class of Variable Pay Term Notes may be issued
as set forth in Section 2.06 of the Trust Sale and Servicing Agreement. Upon
order of the Seller, the Issuer shall execute and the Indenture Trustee shall
cause to be authenticated and delivered Variable Pay Term Notes of any such
additional class. Each such order shall set forth:
(i) the designation of the particular class
(which shall distinguish such class from all other classes);
(ii) the aggregate principal amount of the class
which may be authenticated and delivered under this Indenture (except
for Notes authenticated and delivered upon registration and transfer
of, or in exchange for, or in lieu of, other Notes of such class
pursuant to this Indenture);
4
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(iii) the Interest Rate for such class; and
(iv) any other terms or provisions of such class
which shall not be inconsistent with the provisions of this Indenture.
(f) No Notes shall be entitled to any benefit under this
Indenture or be valid or obligatory for any purpose, unless there appears on
such Note a certificate of authentication substantially in the form set forth in
Exhibit C-1, Exhibit C-2, or Exhibit C-3, as applicable, executed by the
Indenture Trustee by the manual signature of one of its Authorized Officers, and
such certificate upon any Note shall be conclusive evidence, and the only
evidence, that such Note has been duly authenticated and delivered hereunder.
SECTION 2.3 TEMPORARY NOTES.
(a) Pending the preparation of Definitive Notes, if any, the
Issuer may execute, and upon receipt of an Issuer Order the Indenture Trustee
shall authenticate and deliver, such Temporary Notes which are printed,
lithographed, typewritten, mimeographed or otherwise produced, of the tenor of
the Definitive Notes in lieu of which they are issued and with such variations
as are consistent with the terms of this Indenture as the officers executing
such Notes may determine, as evidenced by their execution of such Notes.
(b) If Temporary Notes are issued, the Issuer shall cause
Definitive Notes to be prepared without unreasonable delay. After the
preparation of Definitive Notes, the Temporary Notes shall be exchangeable for
Definitive Notes upon surrender of the Temporary Notes at the Agency Office of
the Issuer to be maintained as provided in Section 3.2, without charge to the
Noteholder. Upon surrender for cancellation of any one or more Temporary Notes,
the Issuer shall execute and the Indenture Trustee shall authenticate and
deliver in exchange therefor a like principal amount of Definitive Notes of
authorized denominations. Until so delivered in exchange, the Temporary Notes
shall in all respects be entitled to the same benefits under this Indenture as
Definitive Notes.
SECTION 2.4 REGISTRATION; REGISTRATION OF TRANSFER AND
EXCHANGE OF NOTES.
(a) The Issuer shall cause to be kept the Note Register,
comprising separate registers for each class of Notes, in which, subject to such
reasonable regulations as the Issuer may prescribe, the Issuer shall provide for
the registration of the Notes and the registration of transfers and exchanges of
the Notes. The Indenture Trustee shall initially be the Note Registrar for the
purpose of registering the Notes and transfers of the Notes as herein provided.
Upon any resignation of any Note Registrar, the Issuer shall promptly appoint a
successor Note Registrar or, if it elects not to make such an appointment,
assume the duties of the Note Registrar.
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(b) If a Person other than the Indenture Trustee is
appointed by the Issuer as Note Registrar, the Issuer will give the Indenture
Trustee prompt written notice of the appointment of such Note Registrar and of
the location, and any change in the location, of the Note Register. The
Indenture Trustee shall have the right to inspect the Note Register at all
reasonable times and to obtain copies thereof. The Indenture Trustee shall have
the right to rely upon a certificate executed on behalf of the Note Registrar by
an Executive Officer thereof as to the names and addresses of the Noteholders
and the principal amounts and number of such Notes.
(c) Upon surrender for registration of transfer of any Note
at the Corporate Trust Office of the Indenture Trustee or the Agency Office of
the Issuer (and following the delivery, in the former case, of such Notes to the
Issuer by the Indenture Trustee), the Issuer shall execute, the Indenture
Trustee shall authenticate and the Noteholder shall obtain from the Indenture
Trustee, in the name of the designated transferee or transferees, one or more
new Notes in any authorized denominations, of a like aggregate principal amount.
(d) At the option of the Noteholder, Notes may be exchanged
for other Notes of the same class in any authorized denominations, of a like
aggregate principal amount, upon surrender of such Notes to be exchanged at the
Corporate Trust Office of the Indenture Trustee or the Agency Office of the
Issuer (and following the delivery, in the former case, of such Notes to the
Issuer by the Indenture Trustee), the Issuer shall execute, and the Indenture
Trustee shall authenticate and the Noteholder shall obtain from the Indenture
Trustee, such Notes which the Noteholder making the exchange is entitled to
receive.
(e) All Notes issued upon any registration of transfer or
exchange of other Notes shall be the valid obligations of the Issuer, evidencing
the same debt, and entitled to the same benefits under this Indenture, as the
Notes surrendered upon such registration of transfer or exchange.
(f) Every Note presented or surrendered for registration of
transfer or exchange shall be duly endorsed by, or be accompanied by a written
instrument of transfer in form satisfactory to the Indenture Trustee and the
Note Registrar, duly executed by the Holder thereof or such Holder's attorney
duly authorized in writing, with such signature guaranteed by a commercial bank
or trust company located, or having a correspondent located, in the City of New
York or the city in which the Corporate Trust Office of the Indenture Trustee is
located, or by a member firm of a national securities exchange, and such other
documents as the Indenture Trustee may require.
(g) No service charge shall be made to a Holder for any
registration of transfer or exchange of Notes, but the Issuer or Indenture
Trustee may require payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection with any registration of
transfer or exchange of Notes, other than exchanges pursuant to SECTIONS 2.3 OR
9.6 not involving any transfer.
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(h) The preceding provisions of this SECTION 2.4
notwithstanding, the Issuer shall not be required to transfer or make exchanges,
and the Note Registrar need not register transfers or exchanges, of Notes that:
(i) have been selected for redemption pursuant to ARTICLE X, if applicable; or
(ii) are due for repayment within 15 days of submission to the Corporate Trust
Office or the Agency Office.
SECTION 2.5 MUTILATED, DESTROYED, LOST OR STOLEN NOTES.
(a) If (i) any mutilated Note is surrendered to the
Indenture Trustee, or the Indenture Trustee receives evidence to its
satisfaction of the destruction, loss or theft of any Note, and (ii) there is
delivered to the Indenture Trustee such security or indemnity as may be required
by it to hold the Issuer and the Indenture Trustee harmless, then, in the
absence of notice to the Issuer, the Note Registrar or the Indenture Trustee
that such Note has been acquired by a bona fide purchaser, the Issuer shall
execute and upon the Issuer's request the Indenture Trustee shall authenticate
and deliver, in exchange for or in lieu of any such mutilated, destroyed, lost
or stolen Note, a replacement Note of a like class and aggregate principal
amount; PROVIDED, HOWEVER, that if any such destroyed, lost or stolen Note, but
not a mutilated Note, shall have become or within seven days shall be due and
payable, or shall have been called for redemption, instead of issuing a
replacement Note, the Issuer may make payment to the Holder of such destroyed,
lost or stolen Note when so due or payable or upon the Redemption Date, if
applicable, without surrender thereof.
(b) If, after the delivery of a replacement Note or payment
in respect of a destroyed, lost or stolen Note pursuant to subsection (a), a
bona fide purchaser of the original Note in lieu of which such replacement Note
was issued presents for payment such original Note, the Issuer and the Indenture
Trustee shall be entitled to recover such replacement Note (or such payment)
from (i) any Person to whom it was delivered, (ii) the Person taking such
replacement Note from the Person to whom such replacement Note was delivered; or
(iii) any assignee of such Person, except a bona fide purchaser, and the Issuer
and the Indenture Trustee shall be entitled to recover upon the security or
indemnity provided therefor to the extent of any loss, damage, cost or expense
incurred by the Issuer or the Indenture Trustee in connection therewith.
(c) In connection with the issuance of any replacement Note
under this SECTION 2.5, the Issuer may require the payment by the Holder of such
Note of a sum sufficient to cover any tax or other governmental charge that may
be imposed in relation thereto and any other reasonable expenses (including all
fees and expenses of the Indenture Trustee) connected therewith.
(d) Any duplicate Note issued pursuant to this SECTION 2.5
in replacement for any mutilated, destroyed, lost or stolen Note shall
constitute an original additional contractual obligation of the Issuer, whether
or not the mutilated, destroyed, lost or stolen Note shall be found at any time
or be enforced by any Person, and shall be entitled to all the benefits of this
Indenture equally and proportionately with any and all other Notes duly issued
hereunder.
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(e) The provisions of this SECTION 2.5 are exclusive and
shall preclude (to the extent lawful) all other rights and remedies with respect
to the replacement or payment of mutilated, destroyed, lost or stolen Notes.
SECTION 2.6 PERSONS DEEMED NOTEHOLDERS. Prior to due
presentment for registration of transfer of any Note, the Issuer, the Indenture
Trustee and any agent of the Issuer or the Indenture Trustee may treat the
Person in whose name any Note is registered (as of the day of determination) as
the Noteholder for the purpose of receiving payments of principal of and
interest on such Note and for all other purposes whatsoever, whether or not such
Note be overdue, and neither the Issuer, the Indenture Trustee nor any agent of
the Issuer or the Indenture Trustee shall be affected by notice to the contrary.
SECTION 2.7 PAYMENT OF PRINCIPAL AND INTEREST.
(a) Interest on each class of Notes shall accrue in the
manner set forth in EXHIBIT C-1, EXHIBIT C-2, or EXHIBIT C-3, as applicable, at
the applicable Interest Rate for such class and will be due and payable on each
Distribution Date in accordance with the priorities set forth in SECTION 8.2(C).
Any instalment of interest payable on any Note shall be punctually paid or duly
provided for by a deposit by or at the direction of the Issuer into the Note
Distribution Account on the applicable Distribution Date and shall be paid to
the Person in whose name such Note (or one or more Predecessor Notes) is
registered on the applicable Record Date, by check mailed first-class, postage
prepaid to such Person's address as it appears on the Note Register on such
Record Date; PROVIDED, HOWEVER, that, unless and until Definitive Notes have
been issued pursuant to SECTION 2.12, with respect to Notes registered on the
applicable Record Date in the name of the Note Depository (initially, Cede &
Co.), payment shall be made by wire transfer in immediately available funds to
the account designated by the Note Depository; PROVIDED, FURTHER, that with
respect to any Private Notes, upon written request of the Holder thereof,
payment shall be made by wire transfer of immediately available funds to the
account designated by such Holder until further written notice from such Holder.
(b) Prior to the occurrence of an Event of Default and a
declaration in accordance with SECTION 5.2(A) that the Notes have become
immediately due and payable, the principal of each class of Notes shall be
payable in full on the Final Scheduled Distribution Date for such class and, to
the extent of funds available therefor, in instalments on the Distribution Dates
(if any) preceding the Final Scheduled Distribution Date for such class, in the
amounts and in accordance with the priorities set forth in SECTION 8.2(C)(II) OR
(III), as applicable. All principal payments on each class of Notes on any
Distribution Date shall be made pro rata to the Noteholders of such class
entitled thereto. Any instalment of principal payable on any Note shall be
punctually paid or duly provided for by a deposit by or at the direction of the
Issuer into the Note Distribution Account on the applicable Distribution Date
and shall be paid to the Person in whose name such Note (or one or more
Predecessor Notes) is registered on the applicable Record Date, by check mailed
first-class,
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postage prepaid to such Person's address as it appears on the Note Register on
such Record Date; PROVIDED, HOWEVER, that, (A) unless and until Definitive Notes
have been issued pursuant to SECTION 2.12, with respect to Notes registered on
the Record Date in the name of the Note Depository, payment shall be made by
wire transfer in immediately available funds to the account designated by the
Note Depository and (B) with respect to any Private Notes, upon written request
of the Holder thereof, payment shall be made by wire transfer of immediately
available funds to the account designated by such Holder until further written
notice from such Holder, except for, in each case: (i) the final instalment of
principal on any Note; and (ii) the Redemption Price for the Notes redeemed
pursuant to SECTION 10.1, which, in each case, shall be payable as provided
herein. The funds represented by any such checks in respect of interest or
principal returned undelivered shall be held in accordance with SECTION 3.3.
(c) From and after the occurrence of an Event of Default and
a declaration in accordance with SECTION 5.2(a) that the Notes have become
immediately due and payable, until such time as all Events of Default have been
cured or waived as provided in SECTION 5.2(B), all principal payments shall be
allocated pro rata among the Holders of all of the Notes on the basis of the
respective aggregate unpaid principal balances of Notes held by such Holders.
(d) With respect to any Distribution Date on which the final
instalment of principal and interest on a class of Notes is to be paid, the
Indenture Trustee shall notify each Noteholder of such class of record as of the
Record Date for such Distribution Date of the fact that the final instalment of
principal of and interest on such Note is to be paid on such Distribution Date.
With respect to any such class of Notes, such notice shall be sent (i) on such
Record Date by facsimile, if Book-Entry Notes are outstanding; or (ii) not later
than three Business Days after such Record Date in accordance with SECTION
11.5(A) if Definitive Notes are outstanding, and shall specify that such final
instalment shall be payable only upon presentation and surrender of such Note
and shall specify the place where such Note may be presented and surrendered for
payment of such in stalment and the manner in which such payment shall be made.
Notices in connection with redemptions of Notes shall be mailed to Noteholders
as provided in SECTION 10.2. Within sixty days of the surrender pursuant to this
SECTION 2.7(D) or cancellation pursuant to SECTION 2.8 of all of the Notes of a
particular class, the Indenture Trustee if requested shall provide each of the
Rating Agencies with written notice stating that all Notes of such class have
been surrendered or canceled.
SECTION 2.8 CANCELLATION OF NOTES. All Notes surrendered for
payment, redemption, exchange or registration of transfer shall, if surrendered
to any Person other than the Indenture Trustee, be delivered to the Indenture
Trustee and shall be promptly canceled by the Indenture Trustee. The Issuer may
at any time deliver to the Indenture Trustee for cancellation any Notes
previously authenticated and delivered hereunder which the Issuer may have
acquired in any manner whatsoever, and all Notes so delivered shall be promptly
canceled by the Indenture Trustee. No Notes shall be authenticated in lieu of or
in exchange for any Notes canceled as provided in this SECTION 2.8, except as
expressly permitted by this Indenture. All canceled Notes may be held or
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disposed of by the Indenture Trustee in accordance with its standard retention
or disposal policy as in effect at the time unless the Issuer shall direct by an
Issuer Order that they be destroyed or returned to it; PROVIDED, HOWEVER, that
such Issuer Order is timely and the Notes have not been previously disposed of
by the Indenture Trustee. The Indenture Trustee shall certify to the Issuer upon
request that surrendered Notes have been duly canceled and retained or
destroyed, as the case may be.
SECTION 2.9 RELEASE OF COLLATERAL. The Indenture Trustee
shall release property from the lien of this Indenture other than as permitted
by SECTIONS 3.21, 8.2, 8.4 and 11.1, only upon receipt of an Issuer Request
accompanied by an Officer's Certificate, an Opinion of Counsel (to the extent
required by the TIA) and Independent Certificates in accordance with TIA
ss.ss.314(c) and 314(d)(1).
SECTION 2.10 BOOK-ENTRY NOTES. Subject to SECTION 2.15, the
Notes, upon original issuance, shall be issued in the form of a typewritten Note
or Notes representing the Book- Entry Notes, to be delivered to The Depository
Trust Company, as the initial Clearing Agency, or its custodian, by or on behalf
of the Issuer. Such Note or Notes shall be registered on the Note Register in
the name of the Note Depository, and no Note Owner shall receive a Definitive
Note representing such Note Owner's interest in such Note, except as provided in
SECTION 2.12. Unless and until the Definitive Notes have been issued to Note
Owners pursuant to SECTION 2.12:
(a) the provisions of this SECTION 2.10 shall be in full
force and effect;
(b) the Note Registrar and the Indenture Trustee shall be
entitled to deal with the Clearing Agency for all purposes of this Indenture
(including the payment of principal of and interest on such Notes and the giving
of instructions or directions hereunder) as the sole Holder of such Notes and
shall have no obligation to the Note Owners;
(c) to the extent that the provisions of this SECTION 2.10
conflict with any other provisions of this Indenture, the provisions of this
SECTION 2.10 shall control;
(d) the rights of the Note Owners shall be exercised only
through the Clearing Agency and shall be limited to those established by law and
agreements between such Note Owners and the Clearing Agency and/or the Clearing
Agency Participants. Unless and until Definitive Notes are issued pursuant to
SECTION 2.12, the initial Clearing Agency shall make book-entry transfers
between the Clearing Agency Participants and receive and transmit payments of
principal of and interest on such Notes to such Clearing Agency Participants,
pursuant to the Note Depository Agreement; and
(e) whenever this Indenture requires or permits actions to
be taken based upon instructions or directions of Holders of Notes evidencing a
specified percentage of the Outstanding
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Amount of the Notes, the Clearing Agency shall be deemed to represent such
percentage only to the extent that it has (i) received instructions to such
effect from Note Owners and/or Clearing Agency Participants owning or
representing, respectively, such required percentage of the beneficial interest
in the Notes; and (ii) has delivered such instructions to the Indenture Trustee.
SECTION 2.11 NOTICES TO CLEARING AGENCY. Whenever a notice
or other communication to the Noteholders is required under this Indenture,
unless and until Definitive Notes shall have been issued to Note Owners
pursuant to SECTION 2.12, the Indenture Trustee shall give all such
notices and communications specified herein to be given to Noteholders to
the Clearing Agency and shall have no other obligation to the Note Owners.
SECTION 2.12 DEFINITIVE NOTES.
If (i) the Administrator advises the Indenture Trustee in
writing that the Clearing Agency is no longer willing or able to properly
discharge its responsibilities with respect to the Notes (other than the Private
Notes) and the Issuer is unable to locate a qualified successor; (ii) the
Administrator, at its option, advises the Indenture Trustee in writing that it
elects to terminate the book-entry system through the Clearing Agency; or (iii)
after the occurrence of an Event of Default or a Servicer Default, Note Owners
representing beneficial interests aggregating at least a majority of the
Outstanding Amount of such Notes advise the Clearing Agency in writing that the
contin uation of a book-entry system through the Clearing Agency is no longer in
the best interests of the Note Owners, then the Clearing Agency shall notify all
Note Owners and the Indenture Trustee of the occurrence of any such event and of
the availability of Definitive Notes to Note Owners requesting the same. Upon
surrender to the Indenture Trustee of the typewritten Note or Notes representing
the Book-Entry Notes by the Clearing Agency, accompanied by registration
instructions, the Issuer shall execute and the Indenture Trustee shall
authenticate the Definitive Notes in accordance with the instructions of the
Clearing Agency. None of the Issuer, the Note Registrar or the Indenture Trustee
shall be liable for any delay in delivery of such instructions and may
conclusively rely on, and shall be protected in relying on, such instructions.
Upon the issuance of Definitive Notes, the Indenture Trustee shall recognize the
Holders of the Definitive Notes as Noteholders.
SECTION 2.13 SELLER AS NOTEHOLDER. The Seller in its
individual or any other capacity may become the owner or pledgee of Notes of any
class and may otherwise deal with the Issuer or its affiliates with the same
rights it would have if it were not the Seller.
SECTION 2.14 TAX TREATMENT. The Seller and the Indenture
Trustee, by entering into this Indenture, and the Noteholders, by acquiring any
Note or interest therein, (i) express their intention that the Notes qualify
under applicable tax law as indebtedness secured by the Collateral, and (ii)
unless otherwise required by appropriate taxing authorities, agree to treat the
Notes as indebtedness secured by the Collateral for the purpose of federal
income taxes, state and local
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income and franchise taxes, Michigan single business tax, and any other taxes
imposed upon, measured by or based upon gross or net income.
SECTION 2.15 SPECIAL TERMS APPLICABLE TO THE PRIVATE NOTES.
(a) None of the Private Notes have been or will be
registered under the Securities Act of 1933, as amended (the "SECURITIES
ACT"), or the securities laws of any other jurisdiction. Consequently, the
Private Notes are not transferable other than pursuant to an exemption from
the registration requirements of the Securities Act and satisfaction of certain
other provisions specified herein. The Class A-1 Notes and an interest in the
Initial Variable Pay Term Note are being sold in private placements pursuant
to Section 4(2) of the Securities Act on the date hereof. Each additional
Variable Pay Term Note, or an interest therein, will be sold in a private
placement pursuant to Section 4(2) of the Securities Act on or about the date of
issuance thereof. Thereafter, no further sale, pledge or other transfer of
any Private Note (or interest therein) may be made by any person unless either
(i) such sale, pledge or other transfer is made to a "qualified
institutional buyer" that executes a certificate, in the form attached
hereto as EXHIBIT D or otherwise in form and substance satisfactory to the
Indenture Trustee and the Seller, to the effect that (A) it is a "qualified
institutional buyer" as defined under Rule 144A under the Securities Act,
acting for its own account or the accounts of other "qualified institutional
buyers" as defined under Rule 144A under the Securities Act, and (B) it is aware
that the transferor of such Note intends to rely on the exemption from the
registration requirements of the Securities Act provided by Rule 144A under the
Securities Act, or (ii) such sale, pledge or other transfer is otherwise made
in a transaction exempt from the registration requirements of the Securities
Act, in which case (A) the Indenture Trustee shall require that both the
prospective transferor and the prospective transferee certify to the
Indenture Trustee and the Seller in writing the facts surrounding such transfer,
which certification shall be in form and substance satisfactory to the Indenture
Trustee and the Seller, and (B) the Indenture Trustee shall require a written
opinion of counsel (which will not be at the expense of the Seller, the Servicer
or the Indenture Trustee) satisfactory to the Seller and the Indenture Trustee
to the effect that such transfer will not violate the Securities Act. Neither
the Seller nor the Indenture Trustee will register any of the Private Notes
under the Securities Act, qualify any of the Private Notes under the securities
laws of any state or provide registration rights to any purchaser or holder
thereof.
(b) The Private Notes shall be issued in the form of
Definitive Notes and shall be in fully registered form. SECTIONS 2.10, 2.11 AND
2.12 of this Indenture shall not apply to the Private Notes.
(c) Each Private Note shall bear a legend to the effect set
forth in SUBSECTION (A) above.
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ARTICLE III
COVENANTS
SECTION 3.1 PAYMENT OF PRINCIPAL AND INTEREST. The Issuer
shall duly and punctually pay the principal of and interest on the Notes in
accordance with the terms of the Notes and this Indenture. On each Distribution
Date and on the Redemption Date (if applicable), the Issuer shall cause amounts
on deposit in the Note Distribution Account to be distributed to the Noteholders
in accordance with SECTIONS 2.7 AND 8.2, less amounts properly withheld under
the Code by any Person from a payment to any Noteholder of interest and/or
principal. Any amounts so withheld shall be considered as having been paid by
the Issuer to such Noteholder for all purposes of this Indenture.
SECTION 3.2 MAINTENANCE OF AGENCY OFFICE. As long as any of
the Notes remains outstanding, the Issuer shall maintain in the Borough of
Manhattan, the City of New York, an office (the "AGENCY OFFICE"), being an
office or agency where Notes may be surrendered to the Issuer for registration
of transfer or exchange, and where notices and demands to or upon the Issuer in
respect of the Notes and this Indenture may be served. The Issuer hereby
initially appoints the Indenture Trustee to serve as its agent for the foregoing
purposes. The Issuer shall give prompt written notice to the Indenture Trustee
of the location, and of any change in the location, of the Agency Office. If at
any time the Issuer shall fail to maintain any such office or agency or shall
fail to furnish the Indenture Trustee with the address thereof, such surrenders,
notices and demands may be made or served at the Corporate Trust Office of the
Indenture Trustee, and the Issuer hereby appoints the Indenture Trustee as its
agent to receive all such surrenders, notices and demands.
SECTION 3.3 MONEY FOR PAYMENTS TO BE HELD IN TRUST.
(a) As provided in SECTION 8.2(A) AND (B), all payments of
amounts due and payable with respect to any Notes that are to be made from
amounts withdrawn from the Note Distribution Account pursuant to SECTION 8.2(C)
shall be made on behalf of the Issuer by the Indenture Trustee or by another
Paying Agent, and no amounts so withdrawn from the Note Distribution Account for
payments of Notes shall be paid over to the Issuer except as provided in this
SECTION 3.3.
(b) On or before each Distribution Date or the Redemption
Date (if applicable), the Issuer shall deposit or cause to be deposited in the
Note Distribution Account pursuant to SECTION 4.06 of the Trust Sale and
Servicing Agreement an aggregate sum sufficient to pay the amounts then
becoming due with respect to the Notes, such sum to be held in trust for the
benefit of the Persons entitled thereto.
(c) The Issuer shall cause each Paying Agent other than
the Indenture Trustee to execute and deliver to the Indenture Trustee an
instrument in which such Paying Agent shall agree
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with the Indenture Trustee (and if the Indenture Trustee acts as Paying Agent,
it hereby so agrees), subject to the provisions of this SECTION 3.3, that such
Paying Agent shall:
(i) hold all sums held by it for the payment of
amounts due with respect to the Notes in trust for the benefit of the
Persons entitled thereto until such sums shall be paid to such Persons
or otherwise disposed of as herein provided and pay such sums to such
Persons as herein provided;
(ii) give the Indenture Trustee notice of any default
by the Issuer (or any other obligor upon the Notes) of which it has
actual knowledge in the making of any payment required to be made with
respect to the Notes;
(iii) at any time during the continuance of any such
default, upon the written request of the Indenture Trustee, forthwith
pay to the Indenture Trustee all sums so held in trust by such Paying
Agent;
(iv) immediately resign as a Paying Agent and
forthwith pay to the Indenture Trustee all sums held by it in trust for
the payment of Notes if at any time it ceases to meet the standards
required to be met by a Paying Agent in effect at the time of
determination; and
(v) comply with all requirements of the Code with
respect to the withholding from any payments made by it on any Notes of
any applicable withholding taxes imposed thereon and with respect to
any applicable reporting requirements in connection therewith.
(d) The Issuer may at any time, for the purpose of obtaining
the satisfaction and discharge of this Indenture or for any other purpose, by
Issuer Order direct any Paying Agent to pay to the Indenture Trustee all sums
held in trust by such Paying Agent, such sums to be held by the Indenture
Trustee upon the same trusts as those upon which the sums were held by such
Paying Agent; and upon such payment by any Paying Agent to the Indenture
Trustee, such Paying Agent shall be released from all further liability with
respect to such money.
(e) Subject to applicable laws with respect to escheat of
funds, any money held by the Indenture Trustee or any Paying Agent in trust for
the payment of any amount due with respect to any Note and remaining unclaimed
for one year after such amount has become due and payable shall be discharged
from such trust and be paid to the Issuer on Issuer Request; and the Holder of
such Note shall thereafter, as an unsecured general creditor, look only to the
Issuer for payment thereof (but only to the extent of the amounts so paid to the
Issuer), and all liability of the Indenture Trustee or such Paying Agent with
respect to such trust money shall thereupon cease; PROVIDED, HOWEVER, that the
Indenture Trustee or such Paying Agent, before being required to make
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any such payment, may at the expense of the Issuer cause to be published once,
in a newspaper published in the English language, customarily published on each
Business Day and of general circulation in the City of New York, notice that
such money remains unclaimed and that, after a date specified therein, which
shall not be less than 30 days from the date of such publication, any unclaimed
balance of such money then remaining shall be paid to the Issuer. The Indenture
Trustee may also adopt and employ, at the expense of the Issuer, any other
reasonable means of notification of such payment (including, but not limited to,
mailing notice of such payment to Holders whose Notes have been called but have
not been surrendered for redemption or whose right to or interest in monies due
and payable but not claimed is determinable from the records of the Indenture
Trustee or of any Paying Agent, at the last address of record for each such
Holder).
SECTION 3.4 EXISTENCE. The Issuer shall keep in full effect
its existence, rights and franchises as a business trust under the laws of the
State of Delaware (unless it becomes, or any successor Issuer hereunder is or
becomes, organized under the laws of any other State or of the United States of
America, in which case the Issuer shall keep in full effect its existence,
rights and franchises under the laws of such other jurisdiction) and shall
obtain and preserve its qualification to do business in each jurisdiction in
which such qualification is or shall be necessary to protect the validity and
enforceability of this Indenture, the Notes, the Collateral and each other
instrument or agreement included in the Trust Estate.
SECTION 3.5 PROTECTION OF TRUST ESTATE; ACKNOWLEDGMENT OF
PLEDGE.
(a) The Issuer shall from time to time execute and deliver
all such supplements and amendments hereto and all such financing
statements, continuation statements, instruments of further assurance and other
instruments, and shall take such other action necessary or advisable to:
(i) maintain or preserve the lien and security
interest (and the priority thereof) of this Indenture or carry out more
effectively the purposes hereof, including by making the necessary
filings of financing statements or amendments thereto within sixty days
after the occurrence of any of the following: (A) any change in the
Issuer's name, (B) any change in the location of the Issuer's principal
place of business, (C) any merger or consolidation or other change in
the Issuer's identity or organizational structure and by promptly
notifying the Indenture Trustee of any such filings and (D) any other
change or occurrence that would make any financing statement or
amendment seriously misleading within the meaning of Section 9-402(7)
of the UCC.
(ii) perfect, publish notice of or protect the
validity of any Grant made or to be made by this Indenture;
(iii) enforce the rights of the Indenture Trustee and
the Noteholders in any of the Collateral; or
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(iv) preserve and defend title to the Trust Estate
and the rights of the Indenture Trustee and the Secured Parties in such
Trust Estate against the claims of all persons and parties,
and the Issuer hereby designates the Indenture Trustee its agent and
attorney-in-fact to execute any financing statement, continuation statement or
other instrument required by the Indenture Trustee pursuant to this SECTION 3.5.
(b) The Indenture Trustee acknowledges the pledge by the
Seller to the Indenture Trustee pursuant to SECTION 4.07(C) of the Trust Sale
and Servicing Agreement of (i) all of the Seller's right, title and interest in
and to the Reserve Account Property in order to provide for the payment to the
Financial Parties and the Servicer in accordance with SECTIONS 4.06(C) and (D)
of the Trust Sale and Servicing Agreement, to assure availability of the amounts
maintained in the Reserve Account for the benefit of the Financial Parties and
the Servicer and as security for the performance by the Seller of its
obligations under the Trust Sale and Servicing Agreement.
SECTION 3.6 OPINIONS AS TO TRUST ESTATE.
(a) On the Closing Date, the Issuer shall furnish to the
Indenture Trustee an Opinion of Counsel either stating that, in the opinion of
such counsel, such action has been taken with respect to the recording and
filing of this Indenture, any indentures supplemental hereto and any other
requisite documents, and with respect to the execution and filing of any
financing statements and continuation statements as are necessary to perfect and
make effective the lien and security interest of this Indenture and reciting the
details of such action, or stating that, in the opinion of such counsel, no such
action is necessary to make such lien and security interest effective.
(b) On or before August 15 in each calendar year, beginning
August 15, 2001, the Issuer shall furnish to the Indenture Trustee an Opinion of
Counsel either stating that, in the opinion of such counsel, such action has
been taken with respect to the recording, filing, re-recording and refiling of
this Indenture, any indentures supplemental hereto and any other requisite
documents and with respect to the execution and filing of any financing
statements and continuation statements as is necessary to maintain the lien and
security interest created by this Indenture and reciting the details of such
action or stating that in the opinion of such counsel no such action is
necessary to maintain the lien and security interest created by this Indenture.
Such Opinion of Counsel shall also describe the recording, filing, re-recording
and refiling of this Indenture, any indentures supplemental hereto and any other
requisite documents and the execution and filing of any financing statements and
continuation statements that will, in the opinion of such counsel, be required
to maintain the lien and security interest of this Indenture until August 15 in
the following calendar year.
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SECTION 3.7 PERFORMANCE OF OBLIGATIONS; SERVICING OF
RECEIVABLES.
(a) The Issuer shall not take any action and shall use its
reasonable efforts not to permit any action to be taken by others that would
release any Person from any of such Person's material covenants or obligations
under any instrument or agreement included in the Trust Estate or that would
result in the amendment, hypothecation, subordination, termination or discharge
of, or impair the validity or effectiveness of, any such instrument or
agreement, except as otherwise expressly provided in this Indenture, the Trust
Sale and Servicing Agreement, the Pooling and Servicing Agreement, the
Administration Agreement or such other instrument or agreement.
(b) The Issuer may contract with other Persons to assist it
in performing its duties under this Indenture, and any performance of such
duties by a Person identified to the Indenture Trustee in the Basic Documents
or an Officer's Certificate of the Issuer shall be deemed to be action taken
by the Issuer. Initially, the Issuer has contracted with the Servicer
and the Administrator to assist the Issuer in performing its duties
under this Indenture.
(c) The Issuer shall punctually perform and observe all of
its obligations and agreements contained in this Indenture, the Basic Documents
and in the instruments and agreements included in the Trust Estate, including
but not limited to filing or causing to be filed all UCC financ ing statements
and continuation statements required to be filed by the terms of this Indenture,
the Trust Sale and Servicing Agreement and the Pooling and Servicing Agreement
in accordance with and within the time periods provided for herein and therein.
(d) If the Issuer shall have knowledge of the occurrence of
a Servicer Default under the Trust Sale and Servicing Agreement, the Issuer
shall promptly notify the Indenture Trustee and the Rating Agencies thereof, and
shall specify in such notice the response or action, if any, the Issuer has
taken or is taking with respect of such default. If a Servicer Default shall
arise from the failure of the Servicer to perform any of its duties or
obligations under the Trust Sale and Servicing Agreement or the Pooling and
Servicing Agreement with respect to the Receivables, the Issuer and the
Indenture Trustee shall take all reasonable steps available to them pursuant to
the Trust Sale and Servicing Agreement and the Pooling and Servicing Agreement
to remedy such failure.
(e) Without derogating from the absolute nature of the
assignment granted to the Indenture Trustee under this Indenture or the rights
of the Indenture Trustee hereunder, the Issuer agrees that it shall not, without
the prior written consent of the Indenture Trustee or the Holders of at least a
majority in Outstanding Amount of the Notes, as applicable in accordance with
the terms of this Indenture, amend, modify, waive, supplement, terminate or
surrender, or agree to any amend ment, modification, supplement, termination,
waiver or surrender of, the terms of any Collateral or any of the Basic
Documents, or waive timely performance or observance by the Servicer or the
Seller under the Trust Sale and Servicing Agreement or the Pooling and Servicing
Agreement, the
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Administrator under the Administration Agreement or GMAC under the Pooling and
Servicing Agreement.
SECTION 3.8 NEGATIVE COVENANTS. So long as any Notes are
Outstanding, the Issuer shall not:
(a) sell, transfer, exchange or otherwise dispose of any of
the properties or assets of the Issuer, except the Issuer may (i) collect,
liquidate, sell or otherwise dispose of Receivables (including Warranty
Receivables, Administrative Receivables and Liquidating Receivables), (ii) make
cash payments out of the Designated Accounts, Payment Ahead Servicing Account
and the Certificate Distribution Account and (iii) take other actions, in each
case as contemplated by the Basic Documents;
(b) claim any credit on, or make any deduction from the
principal or interest payable in respect of the Notes (other than amounts
properly withheld from such payments under the Code or applicable state law) or
assert any claim against any present or former Noteholder by reason of the
payment of the taxes levied or assessed upon any part of the Trust Estate;
(c) voluntarily commence any insolvency, readjustment of
debt, marshaling of assets and liabilities or other proceeding, or apply for an
order by a court or agency or supervisory authority for the winding-up or
liquidation of its affairs or any other event specified in SECTION 5.1(F); or
(d) either (i) permit the validity or effectiveness of this
Indenture to be impaired, or permit the lien of this Indenture to be amended,
hypothecated, subordinated, terminated or discharged, or permit any Person to be
released from any covenants or obligations with respect to the Notes under this
Indenture except as may be expressly permitted hereby, (ii) permit any lien,
charge, excise, claim, security interest, mortgage or other encumbrance (other
than the lien of this Indenture) to be created on or extend to or otherwise
arise upon or burden the Trust Estate or any part thereof or any interest
therein or the proceeds thereof (other than tax liens, mechanics' liens and
other liens that arise by operation of law, in each case on a Financed Vehicle
and arising solely as a result of an action or omission of the related Obligor),
or (iii) permit the lien of this Indenture not to constitute a valid first
priority security interest in the Trust Estate (other than with respect to any
such tax, mechanics' or other lien).
SECTION 3.9 ANNUAL STATEMENT AS TO COMPLIANCE. The Issuer
shall deliver to the Indenture Trustee on or before August 15 of each year,
beginning August 15, 2001, an Officer's Certificate signed by an Authorized
Officer, dated as of June 30 of such year, stating that:
(a) a review of the activities of the Issuer during the
preceding 12-month period (or, with respect to the first such Officer's
Certificate, such period as shall have elapsed since the
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Closing Date) and of performance under this Indenture has been made under such
Authorized Officer's supervision; and
(b) to the best of such Authorized Officer's knowledge,
based on such review, the Issuer has fulfilled all of its obligations under
this Indenture throughout such period, or, if there has been a default
in the fulfillment of any such obligation, specifying each such default known
to such Authorized Officer and the nature and status thereof. A copy of such
certificate may be obtained by any Noteholder by a request in writing to
the Issuer addressed to the Corporate Trust Office of the Indenture Trustee.
SECTION 3.10 CONSOLIDATION, MERGER, ETC., OF ISSUER;
DISPOSITION OF TRUST ASSETS.
(a) The Issuer shall not consolidate or merge with or into
any other Person, unless:
(i) the Person (if other than the Issuer) formed by
or surviving such consolidation or merger shall be a Person organized
and existing under the laws of the United States of America, or any
State and shall expressly assume, by an indenture supplemental hereto,
executed and delivered to the Indenture Trustee, in form satisfactory
to the Indenture Trustee, the due and timely payment of the principal
of and interest on all Notes and the performance or observance of every
agreement and covenant of this Indenture on the part of the Issuer to
be performed or observed, all as provided herein;
(ii) immediately after giving effect to such merger
or consolidation, no Default or Event of Default shall have occurred
and be continuing;
(iii) the Rating Agency Condition shall have been
satisfied with respect to such transaction and such Person;
(iv) any action as is necessary to maintain the lien
and security interest created by this Indenture shall have been taken;
and
(v) the Issuer shall have delivered to the
Indenture Trustee an Officer's Certificate and an Opinion of Counsel
addressed to the Issuer, each stating:
(A) that such consolidation or merger and
such supplemental indenture comply with this SECTION 3.10;
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(B) that such consolidation or merger and
such supplemental indenture shall have no material adverse tax
consequence to the Issuer or any Financial Party; and
(C) that all conditions precedent herein
provided for in this SECTION 3.10 have been complied with,
which shall include any filing required by the Exchange Act.
(b) Except as otherwise expressly permitted by this
Indenture or the other Basic Documents, the Issuer shall not sell, convey,
exchange, transfer or otherwise dispose of any of its properties or assets,
including those included in the Trust Estate, to any Person, unless:
(i) the Person that acquires such properties or
assets of the Issuer (1) shall be a United States citizen or a Person
organized and existing under the laws of the United States of America
or any State and (2) by an indenture supplemental hereto, executed and
delivered to the Indenture Trustee, in form satisfactory to the
Indenture Trustee:
(A) expressly assumes the due and punctual
payment of the principal of and interest on all Notes and the
performance or observance of every agreement and covenant of
this Indenture on the part of the Issuer to be performed or
observed, all as provided herein;
(B) expressly agrees that all right, title
and interest so sold, conveyed, exchanged, transferred or
otherwise disposed of shall be subject and subordinate to the
rights of the Secured Parties;
(C) unless otherwise provided in such
supplemental indenture, expressly agrees to indemnify, defend
and hold harmless the Issuer against and from any loss,
liability or expense arising under or related to this
Indenture and the Notes; and
(D) expressly agrees that such Person (or if
a group of Persons, then one specified Person) shall make all
filings with the Commission (and any other appropriate Person)
required by the Exchange Act in connection with the Notes;
(ii) immediately after giving effect to such
transaction, no Default or Event of Default shall have occurred and be
continuing;
(iii) the Rating Agency Condition shall have been
satisfied with respect to such transaction and such Person;
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(iv) any action as is necessary to maintain the lien
and security interest created by this Indenture shall have been taken;
and
(v) the Issuer shall have delivered to the
Indenture Trustee an Officer's Certificate and an Opinion of Counsel
addressed to the Issuer, each stating that:
(A) such sale, conveyance, exchange,
transfer or disposition and such supplemental indenture comply
with this SECTION 3.10;
(B) such sale, conveyance, exchange,
transfer or disposition and such supplemental indenture have
no material adverse tax consequence to the Trust or to any
Financial Parties; and
(C) that all conditions precedent herein
provided for in this SECTION 3.10 have been complied with,
which shall include any filing required by the Exchange Act.
SECTION 3.11 SUCCESSOR OR TRANSFEREE.
(a) Upon any consolidation or merger of the Issuer in
accordance with SECTION 3.10(A), the Person formed by or surviving such
consolidation or merger (if other than the Issuer) shall succeed to, and be
substituted for, and may exercise every right and power of, the Issuer under
this Indenture with the same effect as if such Person had been named as the
Issuer herein.
(b)Upon a conveyance or transfer of substantially all the
assets and properties of the Issuer pursuant to SECTION 3.10(B), the Issuer
shall be released from every covenant and agreement of this Indenture to be
observed or performed on the part of the Issuer with respect to the Notes
immediately upon the delivery of written notice to the Indenture Trustee from
the Person acquiring such assets and properties stating that the Issuer is to be
so released.
SECTION 3.12 NO OTHER BUSINESS. The Issuer shall not engage
in any business or activity other than acquiring, holding and managing
the Collateral and the proceeds therefrom in the manner contemplated by the
Basic Documents, issuing the Notes and the Certificates, making payments on the
Notes and the Certificates and such other activities that are necessary,
suitable or convenient to accomplish the foregoing or are incidental thereto,
as set forth in SECTION 2.3 of the Trust Agreement.
SECTION 3.13 NO BORROWING. The Issuer shall not issue,
incur, assume, guarantee or otherwise become liable, directly or indirectly,
for any indebtedness for money borrowed other than indebtedness for money
borrowed in respect of the Notes or otherwise in accordance with the Basic
Documents.
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SECTION 3.14 GUARANTEES, LOANS, ADVANCES AND OTHER
LIABILITIES. Except as contemplated by this Indenture or the other Basic
Documents, the Issuer shall not make any loan or advance or credit to, or
guarantee (directly or indirectly or by an instrument having the effect of
assuring another's payment or performance on any obligation or capability of so
doing or otherwise), endorse or otherwise become contingently liable, directly
or indirectly, in connection with the obligations, stocks or dividends of, or
own, purchase, repurchase or acquire (or agree contingently to do so) any stock,
obligations, assets or securities of, or any other interest in, or make any
capital contribution to, any other Person.
SECTION 3.15 SERVICER'S OBLIGATIONS. The Issuer shall use
its best efforts to cause the Servicer to comply with its obligations under
SECTION 3.10 of the Pooling and Servicing Agreement and SECTIONS 4.01 AND
4.02 of the Trust Sale and Servicing Agreement.
SECTION 3.16 CAPITAL EXPENDITURES. The Issuer shall not
make any expenditure (whether by long-term or operating lease or otherwise)
for capital assets (either real, personal or intangible property) other than
the purchase of the Receivables and other property and rights from the
Seller pursuant to the Trust Sale and Servicing Agreement.
SECTION 3.17 REMOVAL OF ADMINISTRATOR. So long as any Notes
are Outstanding, the Issuer shall not remove the Administrator without cause
unless the Rating Agency Condition shall have been satisfied in connection with
such removal.
SECTION 3.18 RESTRICTED PAYMENTS. Except for payments of
principal or interest on or redemption of the Notes, so long as any Notes are
Outstanding, the Issuer shall not, directly or indirectly:
(a) pay any dividend or make any distribution (by reduction
of capital or other wise), whether in cash, property, securities or a
combination thereof, to the Owner Trustee or any owner of a beneficial
interest in the Issuer or otherwise, in each case with respect to any
ownership or equity interest or similar security in or of the Issuer or to the
Servicer;
(b) redeem, purchase, retire or otherwise acquire for value
any such ownership or equity interest or similar security; or
(c) set aside or otherwise segregate any amounts for any
such purpose;
PROVIDED, HOWEVER, that the Issuer may make, or cause to be made, distributions
to the Servicer, the Seller, the Indenture Trustee, the Owner Trustee, and the
Financial Parties as permitted by, and to the extent funds are available for
such purpose under, the Trust Sale and Servicing Agreement, the Trust Agreement
or the other Basic Documents. The Issuer shall not, directly or indirectly, make
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payments to or distributions from the Collection Account except in accordance
with the Basic Documents.
SECTION 3.19 NOTICE OF EVENTS OF DEFAULT. The Issuer agrees
to give the Indenture Trustee and the Rating Agencies prompt written notice of
each Event of Default hereunder, each Servicer Default, each default on the
part of the Seller of its obligations under the Trust Sale and Servicing
Agreement and each default on the part of GMAC of its obligations under the
Pooling and Servicing Agreement.
SECTION 3.20 FURTHER INSTRUMENTS AND ACTS. Upon request of
the Indenture Trustee, the Issuer shall execute and deliver such further
instruments and do such further acts as may be reasonably necessary or proper
to carry out more effectively the purpose of this Indenture.
SECTION 3.21 INDENTURE TRUSTEE'S ASSIGNMENT OF
ADMINISTRATIVE RECEIVABLES AND WARRANTY RECEIVABLES. Upon receipt of the
Administrative Purchase Payment or the Warranty Payment with respect to an
Administrative Receivable or a Warranty Receivable, as the case may be, the
Indenture Trustee shall assign, without recourse, representation or warranty,
to the Servicer or the Warranty Purchaser, as the case may be, all the
Indenture Trustee's right, title and interest in and to such repurchased
Receivable, all monies due thereon, the security interest in the related
Financed Vehicle, proceeds from any Insurance Policies, proceeds from
recourse against the Dealer on such Receivable and the interests of the
Indenture Trustee in certain rebates of premiums and other amounts relating to
the Insurance Policies and any documents relating thereto, such assignment
being an assignment outright and not for security; and the Servicer or the
Warranty Purchaser, as applicable, shall thereupon own such Receivable, and
all such security and documents, free of any further obligation to the
Indenture Trustee, the Noteholders or the Certificateholders with
respect thereto. If in any enforcement suit or legal proceeding it is held
that the Servicer may not enforce a Receivable on the ground that it is not
a real party in interest or a holder entitled to enforce the Receivable, the
Indenture Trustee shall, at the Servicer's expense, take such steps as the
Servicer deems necessary to enforce the Receivable, including bringing suit in
the Indenture Trustee's name or the names of the Noteholders or the
Certificateholders.
SECTION 3.22 REPRESENTATIONS AND WARRANTIES BY THE ISSUER TO
THE INDENTURE TRUSTEE. The Issuer hereby represents and warrants to the
Indenture Trustee as follows:
(a) GOOD TITLE. No Receivable has been sold, transferred,
assigned or pledged by the Issuer to any Person other than the Indenture
Trustee; immediately prior to the conveyance of the Receivables pursuant to this
Indenture, the Issuer had good and marketable title thereto, free of any Lien;
and, upon execution and delivery of this Indenture by the Issuer, the Indenture
Trustee shall have all of the right, title and interest of the Issuer in, to and
under the Receivables, the unpaid indebtedness evidenced thereby and the
collateral security therefor, free of any Lien; and
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(b) ALL FILINGS MADE. All filings (including, without
limitation, UCC filings) necessary in any jurisdiction to give the Indenture
Trustee a first perfected security interest in the Receivables shall have been
made.
ARTICLE IV
SATISFACTION AND DISCHARGE
SECTION 4.1 SATISFACTION AND DISCHARGE OF INDENTURE. This
Indenture shall cease to be of further effect with respect to the Notes except
as to: (i) rights of registration of transfer and exchange; (ii) substitution of
mutilated, destroyed, lost or stolen Notes; (iii) rights of Noteholders to
receive payments of principal thereof and interest thereon; (iv) SECTIONS 3.3,
3.4, 3.5, 3.8, 3.10, 3.12, 3.13, 3.19 and 3.21; (v) the rights, obligations and
immunities of the Indenture Trustee hereunder (including the rights of the
Indenture Trustee under SECTION 6.7 and the obligations of the Indenture Trustee
under SECTIONS 4.2 and 4.4); and (vi) the rights of Noteholders as beneficiaries
hereof with respect to the property so deposited with the Indenture Trustee
payable to all or any of them, and the Indenture Trustee, on demand of and at
the expense of the Issuer, shall execute proper instruments acknowledging
satisfaction and discharge of this Indenture with respect to the Notes, if:
(a) either:
(i) all Notes theretofore authenticated and delivered
(other than (A) Notes that have been destroyed, lost or stolen and that
have been replaced or paid as provided in SECTION 2.5 and (B) Notes for
whose payment money has theretofore been deposited in trust or
segregated and held in trust by the Issuer and thereafter repaid to the
Issuer or discharged from such trust, as provided in SECTION 3.3) have
been delivered to the Indenture Trustee for cancellation; or
(ii) all Notes not theretofore delivered to the
Indenture Trustee for cancellation:
(A) have become due and payable,
(B) will be due and payable on their
respective Final Scheduled Distribution Dates within one year,
or
(C) are to be called for redemption within
one year under arrangements satisfactory to the Indenture
Trustee for the giving of notice of redemption by the
Indenture Trustee in the name, and at the expense, of the
Issuer,
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and the Issuer, in the case of (A), (B) or (C) of SUBSECTION
4.1(A)(II) above, has irrevocably deposited or caused to be
irrevocably deposited with the Indenture Trustee cash or
direct obligations of or obligations guaranteed by the
United States of America (which will mature prior to the
date such amounts are payable), in trust for such purpose,
in an amount sufficient to pay and discharge the entire
unpaid principal and accrued interest on such Notes not
theretofore delivered to the Indenture Trustee for
cancellation when due on the Final Scheduled Distribution
Date for such Notes or the Redemption Date for such Notes
(if such Notes have been called for redemption pursuant to
SECTION 10.1), as the case may be;
(b) the Issuer has paid or caused to be paid all other sums
payable hereunder or under any Third Party Instrument by the Issuer; and
(c) the Issuer has delivered to the Indenture Trustee an
Officer's Certificate of the Issuer, an Opinion of Counsel and (if required by
the TIA or the Indenture Trustee) an Independent Certificate from a firm of
certified public accountants, each meeting the applicable requirements of
SECTION 11.1(A) and each stating that all conditions precedent herein provided
for relating to the satisfaction and discharge of this Indenture have been
complied with.
SECTION 4.2 APPLICATION OF TRUST MONEY. All monies
deposited with the Indenture Trustee pursuant to SECTION 4.1 shall be held in
trust and applied by it, in accordance with the provisions of the Notes
and this Indenture, to the payment, either directly or through any Paying
Agent, as the Indenture Trustee may determine, to the Holders of the particular
Notes for the payment or redemption of which such monies have been
deposited with the Indenture Trustee, of all sums due and to become due
thereon for principal and interest and to payment of any other Secured Party
or any holder of any Third Party Instrument of all sums, if any, due or to
become due to any other Secured Party or any holder of any Third Party
Instrument under and in accordance with this Indenture; but such monies need
not be segregated from other funds except to the extent required herein or in
the Trust Sale and Servicing Agreement or required by law.
SECTION 4.3 REPAYMENT OF MONIES HELD BY PAYING AGENT. In
connection with the satisfaction and discharge of this Indenture with respect to
the Notes, all monies then held by any Paying Agent other than the Indenture
Trustee under the provisions of this Indenture with respect to such Notes shall,
upon demand of the Issuer, be paid to the Indenture Trustee to be held and
applied according to SECTION 3.3 and thereupon such Paying Agent shall be
released from all further liability with respect to such monies.
SECTION 4.4 DURATION OF POSITION OF INDENTURE TRUSTEE.
Notwithstanding the earlier payment in full of all principal and interest due to
the Noteholders under the terms of the Notes and the cancellation of the Notes
pursuant to SECTION 3.1, the Indenture Trustee shall continue to act in the
capacity as Indenture Trustee hereunder and, for the benefit of the
Certificateholders, shall comply with its obligations under SECTIONS 5.01(A),
7.02 and 7.03 of the Trust Sale and Servicing
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Agreement, as appropriate, until such time as all payments in respect of
Certificate Balance and interest due to the Certificateholders have been paid in
full.
ARTICLE V
DEFAULT AND REMEDIES
SECTION 5.1 EVENTS OF DEFAULT. For the purposes of this
Indenture, "EVENT OF DEFAULT" wherever used herein, means any one of the
following events:
(a) failure to pay the full Noteholders' Interest
Distributable Amount on any class of Notes on any Distribution Date, and such
default shall continue for a period of five (5) days; or
(b) except as set forth in SECTION 5.1(C), failure to pay any
instalment of the principal of any Note as and when the same becomes due and
payable, and such default continues unremedied for a period of thirty (30) days
after there shall have been given, by registered or certified mail, to the
Servicer by the Indenture Trustee or to the Servicer and the Indenture Trustee
by the Holders of not less than 25% of the Outstanding Amount of the Notes, a
written notice specifying such default and demanding that it be remedied and
stating that such notice is a "NOTICE OF DEFAULT" hereunder; or
(c) failure to pay in full the outstanding principal balance
of any class of Notes by the Final Scheduled Distribution Date for such class;
or
(d) default in the observance or performance in any material
respect of any covenant or agreement of the Issuer made in this Indenture (other
than a covenant or agreement, a default in the observance or performance of
which is elsewhere in this specifically dealt with in this SECTION 5.1) which
failure materially and adversely affects the rights of the Noteholders, and such
default shall continue or not be cured, for a period of 30 days after there
shall have been given, by registered or certified mail, to the Issuer and the
Seller (or the Servicer, as applicable) by the Indenture Trustee or to the
Issuer and the Seller (or the Servicer, as applicable) and the Indenture Trustee
by the Holders of at least 25% of the Outstanding Amount of the Notes, a written
notice specifying such default, demanding that it be remedied and stating that
such notice is a "NOTICE OF DEFAULT" hereunder; or
(e) the filing of a decree or order for relief by a court
having jurisdiction in the premises in respect of the Issuer or any substantial
part of the Trust Estate in an involuntary case under any applicable federal or
state bankruptcy, insolvency or other similar law now or hereafter in effect, or
appointing a receiver, liquidator, assignee, custodian, trustee, sequestrator or
similar official of the Issuer or for any substantial part of the Trust Estate,
or ordering the winding-up or
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liquidation of the Issuer's affairs, and such decree or order shall remain
unstayed and in effect for a period of 90 consecutive days; or
(f) the commencement by the Issuer of a voluntary case under
any applicable federal or state bankruptcy, insolvency or other similar law now
or hereafter in effect, or the consent by the Issuer to the entry of an order
for relief in an involuntary case under any such law, or the consent by the
Issuer to the appointment or taking possession by a receiver, liquidator,
assignee, custodian, trustee, sequestrator or similar official of the Issuer or
for any substantial part of the Trust Estate, or the making by the Issuer of any
general assignment for the benefit of creditors, or the failure by the Issuer
generally to pay its debts as such debts become due, or the taking of action by
the Issuer in furtherance of any of the foregoing.
The Issuer shall deliver to the Indenture Trustee within five Business Days
after learning of the occurrence thereof, written notice in the form of an
Officer's Certificate of any event which with the giving of notice and the lapse
of time would become an Event of Default under SECTION 5.1(D), its status and
what action the Issuer is taking or proposes to take with respect thereto.
SECTION 5.2 ACCELERATION OF MATURITY; RESCISSION AND
ANNULMENT.
(a) If an Event of Default should occur and be continuing,
then and in every such case, unless the principal amount of the Notes shall have
already become due and payable, either the Indenture Trustee or the Holders of
Notes representing not less than a majority of the Outstanding Amount of the
Notes may declare all the Notes to be immediately due and payable, by a notice
in writing to the Issuer (and to the Indenture Trustee if given by the
Noteholders) setting forth the Event or Events of Default, and upon any such
declaration the unpaid principal amount of such Notes, together with accrued and
unpaid interest thereon through the date of acceleration, shall become
immediately due and payable.
(b) At any time after such declaration of acceleration of
maturity of the Notes has been made and before a judgment or decree for payment
of the money due thereunder has been obtained by the Indenture Trustee as
hereinafter provided in this ARTICLE V, the Holders of Notes representing a
majority of the Outstanding Amount of the Notes, by written notice to the Issuer
and the Indenture Trustee, may waive all Defaults set forth in the notice
delivered pursuant to SECTION 5.2(A), and rescind and annul such declaration and
its consequences; PROVIDED, that no such rescission and annulment shall extend
to or affect any other Default or impair any right consequent thereto; and
PROVIDED FURTHER, that if the Indenture Trustee shall have proceeded to enforce
any right under this Indenture and such Proceedings shall have been discontinued
or abandoned because of such rescission and annulment or for any other reason,
or such Proceedings shall have been determined adversely to the Indenture
Trustee, then and in every such case, the Indenture Trustee, the Issuer and the
Noteholders, as the case may be, shall be restored respectively to their former
positions and rights hereunder, and all rights, remedies and powers of the
Indenture Trustee, the
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Issuer and the Noteholders, as the case may be, shall continue as though no such
Proceedings had been commenced.
SECTION 5.3 COLLECTION OF INDEBTEDNESS AND SUITS FOR
ENFORCEMENT BY INDENTURE TRUSTEE.
(a) The Issuer covenants that if an Event of Default occurs
and such Event of Default has not been waived pursuant to SECTION 5.12, the
Issuer shall, upon demand of the Indenture Trustee, pay to the Indenture
Trustee, for the ratable benefit of the Noteholders in accordance with their
respective outstanding principal amounts, the whole amount then due and payable
on such Notes for principal and interest, with interest upon the overdue
principal, at the rate borne by the Notes and in addition thereto such further
amount as shall be sufficient to cover the costs and expenses of collection,
including the reasonable compensation, expenses, disbursements and advances of
the Indenture Trustee and its agents and counsel.
(b) If the Issuer shall fail forthwith to pay such amounts
upon such demand, the Indenture Trustee, in its own name and as trustee of an
express trust, may institute a Proceeding for the collection of the sums so due
and unpaid, and may prosecute such Proceeding to judgment or final decree, and
may enforce the same against the Issuer or other obligor upon such Notes and
collect in the manner provided by law out of the property of the Issuer or other
obligor upon such Notes, wherever situated, the monies adjudged or decreed to be
payable.
(c) If an Event of Default occurs and is continuing, the
Indenture Trustee may, as more particularly provided in SECTION 5.4, in its
discretion, proceed to protect and enforce its rights and the rights of the
Noteholders, by such appropriate Proceedings as the Indenture Trustee shall deem
most effective to protect and enforce any such rights, whether for the specific
enforcement of any covenant or agreement in this Indenture or in aid of the
exercise of any power granted herein, or to enforce any other proper remedy or
legal or equitable right vested in the Indenture Trustee by this Indenture or by
applicable law.
(d) If there shall be pending, relative to the Issuer or any
other obligor upon the Notes or any Person having or claiming an ownership
interest in the Trust Estate, Proceedings under Title 11 of the United States
Code or any other applicable federal or state bankruptcy, insolvency or other
similar law, or if a receiver, assignee or trustee in bankruptcy or
reorganization, liquidator, sequestrator or similar official shall have been
appointed for or taken possession of the Issuer or its property or such other
obligor or Person, or in case of any other comparable judicial Proceedings
relative to the Issuer or other obligor upon the Notes, or to the creditors or
property of the Issuer or such other obligor, the Indenture Trustee,
irrespective of whether the principal of any Notes shall then be due and payable
as therein expressed or by declaration or otherwise and irrespective of whether
the Indenture Trustee shall have made any demand pursuant to the provisions of
this SECTION 5.3, shall be entitled and empowered, by intervention in such
Proceedings or otherwise:
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(i) to file and prove a claim or claims for the
whole amount of principal and interest owing and unpaid in respect
of the Notes and to file such other papers or documents as may be
necessary or advisable in order to have the claims of the
Indenture Trustee (including any claim for reasonable compensation
to the Indenture Trustee and each predecessor trustee, and their
respective agents, attorneys and counsel, and for reimbursement
of all expenses and liabilities incurred, and all advances made, by
the Indenture Trustee and each predecessor trustee, except as a result
of negligence or bad faith) and of the Noteholders allowed in such
Proceedings;
(ii) unless prohibited by applicable law and
regulations, to vote on behalf of the Holders of Notes in any election
of a trustee, a standby trustee or Person performing similar functions
in any such Proceedings;
(iii) to collect and receive any monies or other
property payable or deliverable on any such claims and to distribute
all amounts received with respect to the claims of the Noteholders and
of the Indenture Trustee on their behalf; and
(iv) to file such proofs of claim and other papers or
documents as may be necessary or advisable in order to have the claims
of the Indenture Trustee or the Holders of Notes allowed in any
judicial proceedings relative to the Issuer, its creditors and its
property;
and any trustee, receiver, liquidator, custodian or other similar official in
any such Proceeding is hereby authorized by each of such Noteholders to make
payments to the Indenture Trustee for application in accordance with the
priorities set forth in the Basic Documents, and, if the Indenture Trustee shall
consent to the making of payments directly to such Noteholders, to pay to the
Indenture Trustee such amounts as shall be sufficient to cover reasonable
compensation to the Indenture Trustee, each predecessor trustee and their
respective agents, attorneys and counsel, and all other expenses and liabilities
incurred, and all advances made, by the Indenture Trustee and each predecessor
trustee except as a result of negligence or bad faith.
(e) Nothing herein contained shall be deemed to authorize the
Indenture Trustee to authorize or consent to or vote for or accept or adopt on
behalf of any Noteholder any plan of reorganization, arrangement, adjustment or
composition affecting the Notes or the rights of any Holder thereof or to
authorize the Indenture Trustee to vote in respect of the claim of any
Noteholder in any such proceeding except, as aforesaid, to vote for the election
of a trustee in bankruptcy or similar Person.
(f) All rights of action and of asserting claims under this
Indenture, or under any of the Notes, may be enforced by the Indenture Trustee
without the possession of any of the Notes or the production thereof in any
trial or other Proceedings relative thereto, and any such Proceedings instituted
by the Indenture Trustee shall be brought in its own name as trustee of an
express trust,
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and any recovery of judgment, subject to the payment of the expenses,
disbursements and compensation of the Indenture Trustee, each predecessor
Trustee and their respective agents and attorneys, shall be for the benefit of
the Secured Parties in accordance with the priorities set forth in the Basic
Documents.
(g) In any Proceedings brought by the Indenture Trustee (and
also any Proceedings involving the interpretation of any provision of this
Indenture to which the Indenture Trustee shall be a party), the Indenture
Trustee shall be held to represent all the Noteholders, and it shall not be
necessary to make any Noteholder a party to any such Proceedings.
SECTION 5.4 REMEDIES; PRIORITIES.
(a) If an Event of Default shall have occurred and be
continuing and the Notes have been accelerated under SECTION 5.2(A), the
Indenture Trustee may do one or more of the following (subject to SECTION 5.5):
(i) institute Proceedings in its own name and as
trustee of an express trust for the collection of all amounts then due
and payable on the Notes or under this Indenture with respect thereto,
whether by declaration of acceleration or otherwise, enforce any
judgment obtained, and collect from the Issuer and any other obligor
upon such Notes monies adjudged due;
(ii) institute Proceedings from time to time for the
complete or partial foreclosure of this Indenture with respect to the
Trust Estate;
(iii) exercise any remedies of a secured party under
the UCC and take any other appropriate action to protect and enforce
the rights and remedies of the Indenture Trustee and the Noteholders;
and
(iv) sell the Trust Estate or any portion thereof or
rights or interest therein, at one or more public or private sales
called and conducted in any manner permitted by law or elect to have
the Issuer maintain possession of the Receivables and continue to apply
collections on such Receivables as if there had been no declaration of
acceleration; PROVIDED, HOWEVER, that the Indenture Trustee may not
sell or otherwise liquidate the Trust Estate following an Event of
Default and acceleration of the Notes, unless (i) (A) the Holders of
all of the aggregate Outstanding Amount of the Notes consent thereto
(and if such Event of Default results under SECTION 5.1(D) of this
Indenture, the Holders of Certificates representing all of the Voting
Interests also consent thereto) or (B) the proceeds of such sale or
liquidation distributable to the Noteholders and the Certificateholders
are sufficient to discharge in full the principal of and the accrued
interest on the Notes and an amount in respect of the Certificates
equal to (x) the sum of the Certificate Balance and any Noteholders'
Principal
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Carryover Shortfall or Certificateholders' Principal Carryover
Shortfall and (y) the Certificateholders Interest Distributable Amount,
each at the date of such sale or liquidation or (C) (x) there has been
an Event of Default under SECTION 5.1(A), (B) or (C) or otherwise
arising from a failure to make a required payment of principal on any
Notes, (y) the Indenture Trustee determines that the Trust Estate will
not continue to provide sufficient funds for the payment of principal
of and interest on the Notes as and when they would have become due if
the Notes had not been declared due and payable, and (z) the Indenture
Trustee obtains the consent of Holders of a majority of the aggregate
Outstanding Amount of the Notes and (ii) 10 days' prior written notice
of sale or liquidation has been given to the Rating Agencies. In
determining such sufficiency or insufficiency with respect to CLAUSES
(B) and (C), the Indenture Trustee may, but need not, obtain and rely
upon an opinion of an Independent investment banking or accounting firm
of national reputation as to the feasibility of such proposed action
and as to the sufficiency of the Trust Estate for such purpose.
(b) If the Indenture Trustee collects any money or property
pursuant to this ARTICLE V, it shall pay out the money or property in the
following order:
FIRST: to the Indenture Trustee for amounts due under SECTION
6.7 and then to the Owner Trustee for amounts due to the Owner Trustee
(not including amounts due for payments to the Certificateholders)
under the Trust Agreement or the Trust Sale and Servicing Agreement;
and
SECOND: to the Collection Account, for distribution pursuant
to SECTIONS 8.01(B) AND (E) of the Trust Sale and Servicing Agreement.
SECTION 5.5 OPTIONAL PRESERVATION OF THE RECEIVABLES. If
the Notes have been declared to be due and payable under SECTION 5.2 following
an Event of Default and such declaration and its consequences have not
been rescinded and annulled in accordance with Section 5.2(b), the Indenture
Trustee may, but need not, elect to take and maintain possession of the Trust
Estate. It is the desire of the parties hereto and the Secured Parties that
there be at all times sufficient funds for the payment of the Secured
Obligations to the Secured Parties and the Indenture Trustee shall take such
desire into account when determining whether or not to take and maintain
possession of the Trust Estate. In determining whether to take and maintain
possession of the Trust Estate, the Indenture Trustee may, but need not,
obtain and rely upon an opinion of an Independent investment banking or
accounting firm of national reputation as to the feasibility of such proposed
action and as to the sufficiency of the Trust Estate for such purpose.
SECTION 5.6 LIMITATION OF SUITS. No Holder of any Note
shall have any right to institute any Proceeding, judicial or otherwise, with
respect to this Indenture, or for the appointment of a receiver or trustee, or
for any other remedy hereunder, unless:
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(a) such Holder has previously given written notice to the
Indenture Trustee of a continuing Event of Default;
(b) the Holders of not less than 25% of the Outstanding
Amount of the Notes have made written request to the Indenture Trustee to
institute such Proceeding in respect of such Event of Default in its own name as
Indenture Trustee hereunder;
(c) such Holder or Holders have offered to the Indenture
Trustee reasonable indemnity against the costs, expenses and liabilities to be
incurred in complying with such request;
(d) the Indenture Trustee for 60 days after its receipt of
such notice, request and offer of indemnity has failed to institute such
Proceedings; and
(e) no direction inconsistent with such written request has
been given to the Indenture Trustee during such 60-day period by the Holders of
a majority of the Outstanding Amount of the Notes;
it being understood and intended that no one or more Holders of Notes shall have
any right in any manner whatever by virtue of, or by availing of, any provision
of this Indenture to affect, disturb or prejudice the rights of any other
Holders of Notes or to obtain or to seek to obtain priority or preference over
any other Holders of Notes or to enforce any right under this Indenture, except
in the manner herein provided and for the equal, ratable (on the basis of the
respective aggregate amount of principal and interest, respectively, due and
unpaid on the Notes held by each Noteholder) and common benefit of all holders
of Notes. For the protection and enforcement of the provisions of this SECTION
5.6, each and every Noteholder shall be entitled to such relief as can be given
either at law or in equity.
If the Indenture Trustee shall receive conflicting or
inconsistent requests and indemnity from two or more groups of Holders of Notes,
each representing less than a majority of the Outstanding Amount of the Notes,
the Indenture Trustee in its sole discretion may determine what action, if any,
shall be taken, notwithstanding any other provisions of this Indenture.
SECTION 5.7 UNCONDITIONAL RIGHTS OF NOTEHOLDERS TO RECEIVE
PRINCIPAL AND INTEREST. Notwithstanding any other provisions in this Indenture,
the Holder of any Note shall have the right, which is absolute and
unconditional, to receive payment of the principal of and interest, on such Note
on or after the respective due dates thereof expressed in such Note or in this
Indenture (or, in the case of redemption, if applicable, on or after the
Redemption Date) and to institute suit for the enforcement of any such payment,
and such right shall not be impaired without the consent of such Holder.
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SECTION 5.8 RESTORATION OF RIGHTS AND REMEDIES. If the
Indenture Trustee or any Noteholder has instituted any Proceeding to enforce any
right or remedy under this Indenture and such Proceeding has been discontinued
or abandoned for any reason or has been determined adversely to the Indenture
Trustee or to such Noteholder, then and in every such case the Issuer, the
Indenture Trustee and the Noteholders shall, subject to any determination in
such Proceeding, be restored severally to their respective former positions
hereunder, and thereafter all rights and remedies of the Indenture Trustee and
the Noteholders shall continue as though no such Proceeding had been instituted.
SECTION 5.9 RIGHTS AND REMEDIES CUMULATIVE. No right or
remedy herein conferred upon or reserved to the Indenture Trustee or to the
Noteholders is intended to be exclusive of any other right or remedy, and
every right and remedy shall, to the extent permitted by law, be cumulative
and in addition to every other right and remedy given hereunder or now or
hereafter existing at law or in equity or otherwise. The assertion or
employment of any right or remedy hereunder, or otherwise, shall not
prevent the concurrent assertion or employment of any other appropriate
right or remedy.
SECTION 5.10 DELAY OR OMISSION NOT A WAIVER. No delay or
omission of the Indenture Trustee or any Holder of any Note to exercise any
right or remedy accruing upon any Default or Event of Default shall impair any
such right or remedy or constitute a waiver of any such Default or Event of
Default or an acquiescence therein. Every right and remedy given by this ARTICLE
V or by law to the Indenture Trustee or to the Noteholders may be exercised from
time to time, and as often as may be deemed expedient, by the Indenture Trustee
or by the Noteholders, as the case may be.
SECTION 5.11 CONTROL BY NOTEHOLDERS. The Holders of a
majority of the Outstanding Amount of the Notes shall, subject to provision
being made for indemnification against costs, expenses and liabilities
in a form satisfactory to the Indenture Trustee, have the right to direct the
time, method and place of conducting any Proceeding for any remedy available to
the Indenture Trustee with respect to the Notes or exercising any trust or power
conferred on the Indenture Trustee; PROVIDED, HOWEVER, that:
(a) such direction shall not be in conflict with any rule of
law or with this Indenture;
(b) subject to the express terms of SECTION 5.4, any
direction to the Indenture Trustee to sell or liquidate the Trust Estate shall
be by the Holders of Notes representing not less than 100% of the Outstanding
Amount of the Notes;
(c) if the conditions set forth in SECTION 5.5 have been
satisfied and the Indenture Trustee elects to retain the Trust Estate pursuant
to SECTION 5.5, then any direction to the Indenture
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Trustee by Holders of Notes representing less than 100% of the Outstanding
Amount of the Notes to sell or liquidate the Trust Estate shall be of no force
and effect; and
(d) the Indenture Trustee may take any other action deemed
proper by the Indenture Trustee that is not inconsistent with such direction;
PROVIDED, HOWEVER, that, subject to SECTION 6.1, the Indenture Trustee need not
take any action that it determines might cause it to incur any liability or
might materially adversely affect the rights of any Noteholders not consenting
to such action.
SECTION 5.12 WAIVER OF PAST DEFAULTS.
(a) Prior to the declaration of the acceleration of the
maturity of the Notes as provided in SECTION 5.2, the Holders of not less than a
majority of the Outstanding Amount of the Notes may waive any past Default or
Event of Default and its consequences except a Default (i) in the payment of
principal of or interest on any of the Notes or (ii) in respect of a covenant or
provision hereof which cannot be modified or amended without the consent of the
Holder of each Note. In the case of any such waiver, the Issuer, the Indenture
Trustee and the Noteholders shall be restored to their respective former
positions and rights hereunder; but no such waiver shall extend to any
subsequent or other Default or impair any right consequent thereto.
(b) Upon any such waiver, such Default shall cease to exist
and be deemed to have been cured and not to have occurred, and any Event of
Default arising therefrom shall be deemed to have been cured and not to have
occurred, for every purpose of this Indenture; but no such waiver shall extend
to any subsequent or other Default or Event of Default or impair any right
consequent thereto.
SECTION 5.13 UNDERTAKING FOR COSTS. All parties to this
Indenture agree, and each Holder of any Note by such Holder's acceptance thereof
shall be deemed to have agreed, that any court may in its discretion require, in
any Proceeding for the enforcement of any right or remedy under this Indenture,
or in any Proceeding against the Indenture Trustee for any action taken,
suffered or omitted by it as Trustee, the filing by any party litigant in such
Proceeding of an undertaking to pay the costs of such Proceeding, and that such
court may in its discretion assess reasonable costs, including reasonable
attorneys' fees, against any party litigant in such Proceeding, having due
regard to the merits and good faith of the claims or defenses made by such party
litigant; but the provisions of this SECTION 5.13 shall not apply to:
(a) any Proceeding instituted by the Indenture Trustee;
(b) any Proceeding instituted by any Noteholder, or group of
Noteholders, in each case holding in the aggregate more than 10% of the
Outstanding Amount of the Notes; or
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(c) any Proceeding instituted by any Noteholder for the
enforcement of the payment of principal of or interest on any Note on or after
the respective due dates expressed in such Note and in this Indenture (or, in
the case of redemption, on or after the Redemption Date).
SECTION 5.14 WAIVER OF STAY OR EXTENSION LAWS. The Issuer
covenants (to the extent that it may lawfully do so) that it shall not at any
time insist upon, or plead or in any manner whatsoever, claim or take the
benefit or advantage of, any stay or extension law wherever enacted, now or at
any time hereafter in force, that may affect the covenants or the performance of
this Indenture. The Issuer (to the extent that it may lawfully do so) hereby
expressly waives all benefit or advantage of any such law, and covenants that it
shall not hinder, delay or impede the execution of any power herein granted to
the Indenture Trustee, but shall suffer and permit the execution of every such
power as though no such law had been enacted.
SECTION 5.15 ACTION ON NOTES. The Indenture Trustee's right
to seek and recover judgment on the Notes or under this Indenture shall not
be affected by the seeking, obtaining or application of any other relief under
or with respect to this Indenture. Neither the lien of this Indenture nor
any rights or remedies of the Indenture Trustee or the Noteholders shall be
impaired by the recovery of any judgment by the Indenture Trustee against the
Issuer or by the levy of any execution under such judgment upon any portion of
the Trust Estate or upon any of the assets of the Issuer. Any money or property
collected by the Indenture Trustee shall be applied in accordance with SECTION
5.4(B).
SECTION 5.16 PERFORMANCE AND ENFORCEMENT OF CERTAIN
OBLIGATIONS.
(a) Promptly following a request from the Indenture Trustee
to do so and at the Administrator's expense, the Issuer agrees to take all
such lawful action as the Indenture Trustee may request to compel or
secure the performance and observance by the Seller and the Servicer of their
respective obligations to the Issuer under or in connection with the Trust
Sale and Servicing Agreement and the Pooling and Servicing Agreement or by
GMAC of its obligations under or in connection with the Pooling and Servicing
Agreement in accordance with the terms thereof or by any obligor under a
Third Party Instrument of its obligations under or in accordance with the
Third Party Instrument in accordance with the terms thereof, and to exercise
any and all rights, remedies, powers and privileges lawfully available to the
Issuer under or in connection with the Trust Sale and Servicing Agreement, the
Pooling and Servicing Agreement and any Third Party Instrument to the extent
and in the manner directed by the Indenture Trustee, including the transmission
of notices of default on the part of the Seller, the Servicer, or any obligor
under a Third Party Instrument thereunder and the institution of legal or
administrative actions or proceedings to compel or secure performance by
the Seller or the Servicer or any obligor under a Third Party Instrument of
their respective obligations under the Trust Sale and Servicing Agreement,
the Pooling and Servicing Agreement and any Third Party Instrument.
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(b) If an Event of Default has occurred and is continuing,
the Indenture Trustee may, and, at the direction (which direction shall
be in writing or by telephone (confirmed in writing promptly thereafter))
of the Holders of 66-2/3% of the Outstanding Amount of the Notes shall,
exercise all rights, remedies, powers, privileges and claims of the Issuer
against the Seller, the Servicer or any obligor under a Third Party Instrument
under or in connection with the Trust Sale and Servicing Agreement, the
Pooling and Servicing Agreement or a Third Party Instrument, including the
right or power to take any action to compel or secure performance or
observance by the Seller or the Servicer of each of their obligations to the
Issuer thereunder and to give any consent, request, notice, direction, approval,
extension or waiver under the Trust Sale and Servicing Agreement, and any
right of the Issuer to take such action shall be suspended.
(c) If an Event of Default has occurred and is continuing,
the Indenture Trustee may, and, at the direction (which direction shall be
in writing or by telephone (confirmed in writing promptly thereafter)) of
the Holders of 66-2/3% of the Outstanding Amount of the Notes shall, exercise
all rights, remedies, powers, privileges and claims of the Seller against GMAC
under or in connection with the Pooling and Servicing Agreement, including the
right or power to take any action to compel or secure performance or observance
by GMAC of each of its obligations to the Seller thereunder and to give
any consent, request, notice, direction, approval, extension or waiver under
the Pooling and Servicing Agreement, and any right of the Seller to take such
action shall be suspended.
ARTICLE VI
THE INDENTURE TRUSTEE
SECTION 6.1 DUTIES OF INDENTURE TRUSTEE.
(a) If an Event of Default has occurred and is continuing,
the Indenture Trustee shall exercise the rights and powers vested in it by
this Indenture and use the same degree of care and skill in their exercise
as a prudent person would exercise or use under the circumstances in the
conduct of such person's own affairs.
(b) Except during the continuance of an Event of Default:
(i) the Indenture Trustee undertakes to perform
such duties and only such duties as are specifically set forth in
this Indenture and the Trust Sale and Servicing Agreement and no
implied covenants or obligations shall be read into this Indenture,
the Trust Sale and Servicing Agreement or any other Basic Document
against the Indenture Trustee; and
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(ii) in the absence of bad faith on its part, the
Indenture Trustee may conclusively rely, as to the truth of the
statements and the correctness of the opinions ex pressed therein, upon
certificates or opinions furnished to the Indenture Trustee and
conforming to the requirements of this Indenture; PROVIDED, HOWEVER,
that the Indenture Trustee shall examine the certificates and opinions
to determine whether or not they conform to the requirements of this
Indenture.
(c) The Indenture Trustee may not be relieved from liability
for its own negligent action, its own negligent failure to act or its own wilful
misconduct, except that:
(i) this SECTION 6.1(C) does not limit the effect
of SECTION 6.1(B);
(ii) the Indenture Trustee shall not be liable for
any error of judgment made in good faith by a Responsible Officer
unless it is proved that the Indenture Trustee was negligent in
ascertaining the pertinent facts; and
(iii) the Indenture Trustee shall not be liable with
respect to any action it takes or omits to take in good faith in
accordance with a direction received by it pursuant to SECTION 5.11.
(d) The Indenture Trustee shall not be liable for interest on
any money received by it except as the Indenture Trustee may agree in writing
with the Issuer.
(e) Money held in trust by the Indenture Trustee need not be
segregated from other funds except to the extent required by law or the terms of
this Indenture or the Trust Sale and Servicing Agreement or the Trust Agreement.
(f) No provision of this Indenture shall require the
Indenture Trustee to expend or risk its own funds or otherwise incur financial
liability in the performance of any of its duties hereunder or in the exercise
of any of its rights or powers, if it shall have reasonable grounds to
believe that repayments of such funds or adequate indemnity against such risk
or liability is not reasonably assured to it.
(g) Every provision of this Indenture relating to the
Indenture Trustee shall be subject to the provisions of this SECTION 6.1 and to
the provisions of the TIA.
SECTION 6.2 RIGHTS OF INDENTURE TRUSTEE.
(a) The Indenture Trustee may rely on any document believed
by it to be genuine and to have been signed or presented by the proper Person.
The Indenture Trustee need not investigate any fact or matter stated in
the document.
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(b) Before the Indenture Trustee acts or refrains from
acting, it may require an Officer's Certificate or an Opinion of Counsel. The
Indenture Trustee shall not be liable for any action it takes or omits to
take in good faith in reliance on the Officer's Certificate or Opinion of
Counsel.
(c) The Indenture Trustee may execute any of the trusts or
powers hereunder or perform any duties hereunder either directly or by or
through agents or attorneys or a custodian or nominee, and the Indenture Trustee
shall not be responsible for any misconduct or negligence on the part of, or for
the supervision of, any such agent, attorney, custodian or nominee appointed
with due care by it hereunder.
(d) The Indenture Trustee shall not be liable for any action
it takes or omits to take in good faith which it believes to be authorized or
within its rights or powers; PROVIDED, HOWEVER, that the Indenture Trustee's
conduct does not constitute wilful misconduct, negligence or bad faith.
(e) The Indenture Trustee may consult with counsel, and the
advice or opinion of counsel with respect to legal matters relating to this
Indenture and the Notes shall be full and complete authorization and protection
from liability in respect to any action taken, omitted or suffered by it
hereunder in good faith and in accordance with the advice or opinion of such
counsel.
(f) The Indenture Trustee shall be under no obligation to
exercise any of the rights or powers vested in it by this Indenture at the
request or direction of any of the Holders pursuant to this Indenture, unless
such Holders shall have offered to the Indenture Trustee security or indemnity
satisfactory to the Indenture Trustee against the costs, expenses and
liabilities which might be incurred by it in compliance with such request or
direction.
(g) The Indenture Trustee shall not be bound to make any
investigation into the facts or matters stated in any resolution, certificate,
statement, instrument, opinion, report, notice, request direction, consent,
order, bond, debenture, note, other evidence of indebtedness or other paper or
document, but the Indenture Trustee, in its direction, may make such further
inquiry or investigation into such facts or matters as it may see fit.
(h) The Indenture Trustee shall not be deemed to have notice
of any Default or Event of Default unless a Responsible Officer of the Indenture
Trustee has actual knowledge thereof or unless written notice of any event which
is in fact such a default is received by the Indenture Trustee at the Corporate
Trust Office of the Indenture Trustee, and such notice references the Securities
and this Indenture.
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(i) The rights, privileges, protections, immunities and
benefits given to the Indenture Trustee, including, without limitation, its
right to be indemnified, are extended to, and shall be enforceable by, the
Indenture Trustee in each of its capacities hereunder.
SECTION 6.3 INDENTURE TRUSTEE MAY OWN NOTES. The Indenture
Trustee in its individual or any other capacity may become the owner or pledgee
of Notes and may otherwise deal with the Issuer, the Servicer or any of their
respective Affiliates with the same rights it would have if it were not
Indenture Trustee; PROVIDED, HOWEVER, that the Indenture Trustee shall comply
with SECTIONS 6.10 AND 6.11. Any Paying Agent, Note Registrar, co-registrar or
co-paying agent may do the same with like rights.
SECTION 6.4 INDENTURE TRUSTEE'S DISCLAIMER. The Indenture
Trustee shall not be responsible for and makes no representation as to the
validity or adequacy of this Indenture or the Notes, it shall not be accountable
for the Issuer's use of the proceeds from the Notes, and it shall not be
responsible for any statement of the Issuer in the Indenture or in any document
issued in connection with the sale of the Notes or in the Notes other than the
Indenture Trustee's certificate of authentication.
SECTION 6.5 NOTICE OF DEFAULTS. If a Default occurs and is
continuing and if it is known to a Responsible Officer of the Indenture Trustee,
the Indenture Trustee shall mail to each Noteholder notice of the Default within
90 days after it occurs. Except in the case of a Default in payment of principal
of or interest on any Note, the Indenture Trustee may withhold the notice if and
so long as a committee of its Responsible Officers in good faith determines that
withholding the notice is in the interests of Noteholders.
SECTION 6.6 REPORTS BY INDENTURE TRUSTEE TO HOLDERS. The
Indenture Trustee shall deliver to each Noteholder the information and documents
set forth in ARTICLE VII, and, in addition, all such information with respect to
the Notes as may be required to enable such Holder to prepare its federal and
state income tax returns.
SECTION 6.7 COMPENSATION; INDEMNITY.
(a) The Issuer shall cause the Servicer pursuant to SECTION
3.09 of the Pooling and Servicing Agreement to pay to the Indenture Trustee from
time to time reasonable compensation for its services. The Indenture Trustee's
compensation shall not be limited by any law on compensation of a trustee of an
express trust. The Issuer shall cause the Servicer pursuant to SECTION 3.09 of
the Pooling and Servicing Agreement to reimburse the Indenture Trustee for all
reasonable out-of-pocket expenses incurred or made by it, including costs of
collection, in addition to the compensation for its services. Such expenses
shall include the reasonable compensation and expenses, disbursements and
advances of the Indenture Trustee's agents, counsel, accountants and experts.
The Issuer shall
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cause the Servicer to indemnify the Indenture Trustee in accordance with SECTION
6.01 of the Trust Sale and Servicing Agreement.
(b) The Issuer's obligations to the Indenture Trustee
pursuant to this SECTION 6.7 shall survive the discharge of this Indenture.
When the Indenture Trustee incurs expenses after the occurrence of a Default
specified in SECTION 5.1(D) OR (E) with respect to the Issuer, the expenses
are intended to constitute expenses of administration under Title 11 of the
United States Code or any other applicable federal or state bankruptcy,
insolvency or similar law.
SECTION 6.8 REPLACEMENT OF INDENTURE TRUSTEE.
(a) The Indenture Trustee may at any time give notice of its
intent to resign by so notifying the Issuer; PROVIDED, HOWEVER, that no such
resignation shall become effective and the Indenture Trustee shall not resign
prior to the time set forth in SECTION 6.8(C). The Holders of a majority in
Outstanding Amount of the Notes may remove the Indenture Trustee by so notifying
the Indenture Trustee and may appoint a successor Indenture Trustee. Such
resignation or removal shall become effective in accordance with SECTION 6.8(C).
The Issuer shall remove the Indenture Trustee if:
(i) the Indenture Trustee fails to comply with
SECTION 6.11;
(ii) the Indenture Trustee is adjudged bankrupt or
insolvent;
(iii) a receiver or other public officer takes charge
of the Indenture Trustee or its property; or
(iv) the Indenture Trustee otherwise becomes
incapable of acting.
(b) If the Indenture Trustee gives notice of its intent to
resign or is removed or if a vacancy exists in the office of the Indenture
Trustee for any reason (the Indenture Trustee in such event being referred to
herein as the retiring Indenture Trustee), the Issuer shall promptly appoint and
designate a successor Indenture Trustee.
(c) A successor Indenture Trustee shall deliver a written
acceptance of its appointment and designation to the retiring Indenture Trustee
and to the Issuer. Thereupon the resignation or removal of the retiring
Indenture Trustee shall become effective, and the successor Indenture Trustee
shall have all the rights, powers and duties of the Indenture Trustee under this
Indenture. The successor Indenture Trustee shall mail a notice of its succession
to Noteholders. The retiring Indenture Trustee shall promptly transfer all
property held by it as Indenture Trustee to the successor Indenture Trustee.
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(d) If a successor Indenture Trustee does not take office
within 60 days after the Indenture Trustee gives notice of its intent to resign
or is removed, the retiring Trustee, the Issuer or the Holders of a majority of
the Outstanding Amount of the Notes may petition any court of competent
jurisdiction for the appointment and designation of a successor Indenture
Trustee.
(e) If the Indenture Trustee fails to comply with SECTION
6.11, any Noteholder may petition any court of competent jurisdiction for the
removal of the Indenture Trustee and the appointment of a successor Indenture
Trustee.
(f) Notwithstanding the replacement of the Indenture Trustee
pursuant to this SECTION 6.8, the Issuer's obligations under SECTION 6.7 and the
Servicer's corresponding obligations under the Trust Sale and Servicing
Agreement shall continue for the benefit of the retiring Indenture Trustee.
SECTION 6.9 MERGER OR CONSOLIDATION OF INDENTURE TRUSTEE.
(a) Any corporation into which the Indenture Trustee may be
merged or with which it may be consolidated, or any corporation resulting from
any merger or consolidation to which the Indenture Trustee shall be a party, or
any corporation succeeding to the corporate trust business of the Indenture
Trustee, shall be the successor of the Indenture Trustee under this Indenture;
PROVIDED, HOWEVER, that such corporation shall be eligible under the provisions
of SECTION 6.11, without the execution or filing of any instrument or any
further act on the part of any of the parties to this Indenture, anything in
this Indenture to the contrary notwithstanding.
(b) If at the time such successor or successors by merger or
consolidation to the Indenture Trustee shall succeed to the trusts created by
this Indenture, any of the Notes shall have been authenticated but not
delivered, any such successor to the Indenture Trustee may adopt the certificate
of authentication of any predecessor trustee, and deliver such Notes so
authenticated; and in case at that time any of the Notes shall not have been
authenticated, any successor to the Indenture Trustee may authenticate such
Notes either in the name of any predecessor hereunder or in the name of the
successor to the Indenture Trustee. In all such cases such certificate of
authentication shall have the same full force as is provided anywhere in the
Notes or herein with respect to the certificate of authentication of the
Indenture Trustee.
SECTION 6.10 APPOINTMENT OF CO-INDENTURE TRUSTEE OR SEPARATE
INDENTURE TRUSTEE.
(a) Notwithstanding any other provisions of this Indenture,
at any time, for the purpose of meeting any legal requirement of any
jurisdiction in which any part of the Trust Estate or any Financed Vehicle may
at the time be located, the Indenture Trustee shall have the power and may
execute and deliver all instruments to appoint one or more Persons to act as a
co-trustee or co-trustees, or separate trustee or separate trustees, of all
or any part of the Trust Estate, and to vest in such Person or Persons, in
such capacity and for the benefit of the Secured Parties and (only to the
extent expressly provided herein) the Certificateholders, such title to the
Trust Estate, or any part hereof, and, subject to the other provisions of
this SECTION 6.10, such powers, duties, obligations, rights and trusts as the
Indenture Trustee may consider necessary or desirable. No co-trustee or
separate trustee hereunder shall be required to meet the terms of eligibility
as a successor trustee under SECTION 6.11 and no notice to Noteholders of the
appointment of any co-trustee or separate trustee shall be required under
SECTION 6.8.
(b) Every separate trustee and co-trustee shall, to the
extent permitted by law, be appointed and act subject to the following
provisions and conditions:
(i) all rights, powers, duties and obligations
conferred or imposed upon the Indenture Trustee shall be conferred or
imposed upon and exercised or performed by the Indenture Trustee and
such separate trustee or co-trustee jointly (it being understood that
such separate trustee or co-trustee is not authorized to act separately
without the Indenture Trustee joining in such act), except to the
extent that under any law of any jurisdiction in which any particular
act or acts are to be performed the Indenture Trustee shall be
incompetent or unqualified to perform such act or acts, in which event
such rights, powers, duties and obligations (including the holding of
title to the Trust Estate or any portion thereof in any such
jurisdiction) shall be exercised and performed singly by such separate
trustee or co-trustee, but solely at the direction of the Indenture
Trustee;
(ii) no trustee hereunder shall be personally liable
by reason of any act or omission of any other trustee hereunder; and
(iii) the Indenture Trustee may at any time accept
the resignation of or remove any separate trustee or co-trustee.
(c) Any notice, request or other writing given to the
Indenture Trustee shall be deemed to have been given to each of the then
separate trustees and co-trustees, as effectively as if given to each of them.
Every instrument appointing any separate trustee or co-trustee shall refer to
this Indenture and the conditions of this ARTICLE VI. Each separate trustee and
co-trustee, upon its acceptance of the trusts conferred, shall be vested with
the estates or property specified in its instrument of appointment, either
jointly with the Indenture Trustee or separately, as may be provided therein,
subject to all the provisions of this Indenture, specifically including every
provision of this Indenture relating to the conduct of, affecting the liability
of, or affording protection to, the Indenture Trustee. Every such instrument
shall be filed with the Indenture Trustee.
(d) Any separate trustee or co-trustee may at any time
constitute the Indenture Trustee, its agent or attorney-in-fact with full power
and authority, to the extent not prohibited by
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law, to do any lawful act under or in respect of this Indenture on its behalf
and in its name. If any separate trustee or co-trustee shall die, become
incapable of acting, resign or be removed, all of its estates, properties,
rights, remedies and trusts shall vest in and be exercised by the Indenture
Trustee, to the extent permitted by law, without the appointment of a new or
successor trustee.
SECTION 6.11 ELIGIBILITY; DISQUALIFICATION. The Indenture
Trustee shall at all times satisfy the requirements of TIA ss. 310(a). The
Indenture Trustee shall have a combined capital and surplus of at least
$50,000,000 as set forth in its most recent published annual report of condition
and (unless waived by Moody's Investors Service, Inc.) it shall have a long term
unsecured debt rating of Baa3 or better by Moody's Investors Service, Inc. The
Indenture Trustee shall comply with TIA ss. 310(b); PROVIDED, HOWEVER, that
there shall be excluded from the operation of TIA ss. 310(b)(1) any indenture or
indentures under which other securities of the Issuer are outstanding if the
requirements for such exclusion set forth in TIA ss. 310(b)(1) are met.
SECTION 6.12 PREFERENTIAL COLLECTION OF CLAIMS AGAINST
ISSUER. The Indenture Trustee shall comply with TIA ss. 311(a), excluding any
creditor relationship listed in TIA ss. 311(b). A trustee who has resigned
or been removed shall be subject to TIA ss. 311(a) to the extent indicated.
SECTION 6.13 REPRESENTATIONS AND WARRANTIES OF INDENTURE
TRUSTEE. The Indenture Trustee represents and warrants as of the Closing Date
that:
(a) the Indenture Trustee (i) is a national banking
association duly organized, validly existing and in good standing under the laws
of the United States of America and (ii) satisfies the eligibility criteria set
forth in SECTION 6.11;
(b) the Indenture Trustee has full power, authority and legal
right to execute, deliver and perform this Indenture, and has taken all
necessary action to authorize the execution, delivery and performance by it of
this Indenture;
(c) the execution, delivery and performance by the Indenture
Trustee of this Indenture (i) shall not violate any provision of any law or
regulation governing the banking and trust powers of the Indenture Trustee or
any order, writ, judgment or decree of any court, arbitrator, or governmental
authority applicable to the Indenture Trustee or any of its assets, (ii) shall
not violate any provision of the corporate charter or by-laws of the Indenture
Trustee, or (iii) shall not violate any provision of, or constitute, with or
without notice or lapse of time, a default under, or result in the creation or
imposition of any lien on any properties included in the Trust Estate pursuant
to the provisions of any mortgage, indenture, contract, agreement or other
undertaking to which it is a party, which violation, default or lien could
reasonably be expected to have a materially adverse effect on the Indenture
Trustee's performance or ability to perform its duties under this Indenture or
on the transactions contemplated in this Indenture;
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(d) the execution, delivery and performance by the Indenture
Trustee of this Indenture shall not require the authorization, consent or
approval of, the giving of notice to, the filing or registration with, or the
taking of any other action in respect of, any governmental authority or agency
regulating the banking and corporate trust activities of the Indenture Trustee;
and
(e) this Indenture has been duly executed and delivered by
the Indenture Trustee and constitutes the legal, valid and binding agreement of
the Indenture Trustee, enforceable in accordance with its terms.
SECTION 6.14 INDENTURE TRUSTEE MAY ENFORCE CLAIMS WITHOUT
POSSESSION OF NOTES. All rights of action and claims under this Indenture or the
Notes may be prosecuted and enforced by the Indenture Trustee without the
possession of any of the Notes or the production thereof in any proceeding
relating thereto, and any such proceeding instituted by the Indenture Trustee
shall be brought in its own name as Indenture Trustee. Any recovery of judgment
shall, after provision for the payment of the reasonable compensation, expenses,
disbursements and advances of the Indenture Trustee, its agents and counsel, be
for the ratable benefit of the Noteholders and (only to the extent expressly
provided herein) the Certificateholders in respect of which such judgment has
been obtained.
SECTION 6.15 SUIT FOR ENFORCEMENT. If an Event of Default
shall occur and be continuing, the Indenture Trustee, in its discretion may,
subject to the provisions of SECTION 6.1, proceed to protect and enforce its
rights and the rights of the Noteholders under this Indenture by Proceeding
whether for the specific performance of any covenant or agreement contained in
this Indenture or in aid of the execution of any power granted in this Indenture
or for the enforcement of any other legal, equitable or other remedy as the
Indenture Trustee, being advised by counsel, shall deem most effectual to
protect and enforce any of the rights of the Indenture Trustee or the
Noteholders.
SECTION 6.16 RIGHTS OF NOTEHOLDERS TO DIRECT INDENTURE
TRUSTEE. Holders of Notes evidencing not less than a majority of the Outstanding
Amount of the Notes shall have the right to direct the time, method and place of
conducting any Proceeding for any remedy available to the Indenture Trustee or
exercising any trust or power conferred on the Indenture Trustee; PROVIDED,
HOWEVER, that subject to SECTION 6.1, the Indenture Trustee shall have the right
to decline to follow any such direction if the Indenture Trustee being advised
by counsel determines that the action so directed may not lawfully be taken, or
if the Indenture Trustee in good faith shall, by a Responsible Officer,
determine that the proceedings so directed would be illegal or subject it to
personal liability or be unduly prejudicial to the rights of Noteholders not
parties to such direction; and PROVIDED, FURTHER, that nothing in this Indenture
shall impair the right of the Indenture Trustee to take any action deemed proper
by the Indenture Trustee and which is not inconsistent with such direction by
the Noteholders.
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ARTICLE VII
NOTEHOLDERS' LISTS AND REPORTS
SECTION 7.1 ISSUER TO FURNISH INDENTURE TRUSTEE NAMES AND
ADDRESSES OF NOTEHOLDERS. The Issuer shall furnish or cause to be furnished by
the Servicer to the Indenture Trustee (a) not more than five days before each
Distribution Date a list, in such form as the Indenture Trustee may reasonably
require, of the names and addresses of the Holders of Notes as of the close of
business on the related Record Date, and (b) at such other times as the
Indenture Trustee may request in writing, within 14 days after receipt by the
Issuer of any such request, a list of similar form and content as of a date not
more than 10 days prior to the time such list is furnished; PROVIDED, HOWEVER,
that so long as the Indenture Trustee is the Note Registrar, no such list shall
be required to be furnished.
SECTION 7.2 PRESERVATION OF INFORMATION, COMMUNICATIONS TO
NOTEHOLDERS.
(a) The Indenture Trustee shall preserve, in as current a
form as is reasonably practicable, the names and addresses of the Holders of
Notes contained in the most recent list furnished to the Indenture Trustee as
provided in SECTION 7.1 and the names and addresses of Holders of Notes
received by the Indenture Trustee in its capacity as Note Registrar. The
Indenture Trustee may destroy any list furnished to it as provided in such
SECTION 7.1 upon receipt of a new list so fur nished.
(b) Noteholders may communicate pursuant to TIA ss. 312(b)
with other Noteholders with respect to their rights under this Indenture or
under the Notes.
(c) The Issuer, the Indenture Trustee and the Note Registrar
shall have the protection of TIAss. 312(c).
SECTION 7.3 REPORTS BY ISSUER.
(a) The Issuer shall:
(i) file with the Indenture Trustee within 15 days
after the Issuer is required to file the same with the Commission,
copies of the annual reports and of the information, documents and
other reports (or copies of such portions of any of the foregoing as
the Commission may from time to time by rules and regulations
prescribe) which the Issuer may be required to file with the Commission
pursuant to Section 13 or 15(d) of the Exchange Act;
(ii) file with the Indenture Trustee and the
Commission in accordance with rules and regulations prescribed from
time to time by the Commission such additional
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information, documents and reports with respect to compliance by the
Issuer with the conditions and covenants of this Indenture as may be
required from time to time by such rules and regulations; and
(iii) supply to the Indenture Trustee (and the
Indenture Trustee shall transmit by mail to all Noteholders described
in TIA ss. 313(c)) such summaries of any information, documents and
reports required to be filed by the Issuer pursuant to clauses (i) and
(ii) of this SECTION 7.3(A) as may be required by rules and regulations
prescribed from time to time by the Commission.
(b) Unless the Issuer otherwise determines, the fiscal year
of the Issuer shall end on December 31 of such year.
SECTION 7.4 REPORTS BY TRUSTEE.
(a) If required by TIA ss. 313(a), within 60 days after each
May 15, beginning with May 15, 2001, the Indenture Trustee shall mail to each
Noteholder as required by TIA ss. 313(c) a brief report dated as of such date
that complies with TIA ss. 313(a). The Indenture Trustee also shall comply with
TIA ss. 313(b). A copy of any report delivered pursuant to this SECTION 7.4(A)
shall, at the time of its mailing to Noteholders, be filed by the Indenture
Trustee with the Commission and each stock exchange, if any, on which the Notes
are listed. The Issuer shall notify the Indenture Trustee if and when the Notes
are listed on any stock exchange.
(b) On each Distribution Date the Indenture Trustee shall
include with each payment to each Noteholder a copy of the statement for the
related Monthly Period or Periods applicable to such Distribution Date as
required pursuant to SECTION 4.09 of the Trust Sale and Servicing Agreement.
ARTICLE VIII
ACCOUNTS, DISBURSEMENTS AND RELEASES
SECTION 8.1 COLLECTION OF MONEY. Except as otherwise
expressly provided herein, the Indenture Trustee may demand payment or
delivery of, and shall receive and collect, directly and without intervention
or assistance of any fiscal agent or other intermediary, all money and other
property payable to or receivable by the Indenture Trustee pursuant to this
Indenture and the Trust Sale and Servicing Agreement. The Indenture Trustee
shall apply all such money received by it as provided in this Indenture.
Except as otherwise expressly provided in this Indenture, if any default
occurs in the making of any payment or performance under any agreement or
instrument that is part of the Trust Estate, the Indenture Trustee may take
such action as may be appropriate to enforce such payment or performance,
including the institution and prosecution of appropriate Proceedings. Any
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such action shall be without prejudice to any right to claim a Default or Event
of Default under this Indenture and any right to proceed thereafter as provided
in ARTICLE V.
SECTION 8.2 DESIGNATED ACCOUNTS; PAYMENTS.
(a) On or prior to the Closing Date, the Issuer shall cause
the Servicer to establish and maintain, in the name of the Indenture Trustee for
the benefit of the Financial Parties (and with respect to the Reserve Account,
for the benefit of the Servicer) the Designated Accounts as provided in ARTICLES
IV and V of the Trust Sale and Servicing Agreement.
(b) On or before each Distribution Date, (i) amounts shall
be deposited in the Collection Account as provided in SECTION 4.06 of the
Trust Sale and Servicing Agreement and (ii) the Aggregate Noteholders'
Interest Distributable Amount and the Aggregate Noteholders' Principal
Distributable Amount shall be transferred from the Collection Account to the
Note Distribution Account as and to the extent provided in SECTION 4.06 of
the Trust Sale and Servicing Agreement.
(c) On each Distribution Date, the Indenture Trustee shall
apply and, as required, distribute to the Noteholders all amounts on deposit in
the Note Distribution Account (subject to the Servicer's rights under SECTION
5.03 of the Trust Sale and Servicing Agreement to Investment Earnings) in the
following order of priority and in the amounts determined as described below:
(i) The Aggregate Noteholders' Interest Distributable Amount
shall be applied to each class of Notes in an amount equal to the sum
of
(A) the Noteholders' Interest Distributable Amount
for such class of Notes for such Distribution Date plus
(B) if there was any Noteholders' Interest Carryover
Shortfall as of the close of the immediately preceding
Distribution Date, a pro rata portion thereof determined on
the basis of the amount of interest that was to be applied to
such class on such preceding Distribution Date;
PROVIDED, HOWEVER, that if there are not sufficient funds in the Note
Distribution Account to so apply the entire Aggregate Noteholders'
Interest Distributable Amount, the amount available in the Note
Distribution Account for such purpose shall be applied to each class of
Notes pro rata on the basis of the respective amount otherwise to be
applied to such class pursuant to this clause (i). The amount so
applied to each class of Notes shall be paid to the Holders thereof on
such Distribution Date.
(ii) Unless otherwise provided in CLAUSE (III) below, an
amount equal to the Aggregate Noteholders' Principal Distributable
Amount (or such lesser amount as has been
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deposited in the Note Distribution Account pursuant to SECTION
4.06(C)(V) of the Trust Sale and Servicing Agreement) shall be applied
to each class of Notes in the following amounts and in the following
order of priority and any amount so applied shall be paid on such
Distribution Date to the Holders of such class of Notes:
(A) Except during a Sequential Amortization
Period:
(1) On each Distribution Date that is
not a Targeted Final Distribution Date for any class
of Class A Notes,
(x) to the Variable Pay Term Notes as
set forth in CLAUSE (IV) below,
until the Outstanding Amount
attributable to all Variable Pay
Term Notes is reduced to zero, and
(y) the remainder, if any, to the
Accumulation Account.
(2) On each Distribution Date that is
the Targeted Final Distribution Date for a class of
Class A Notes,
(x) first, to such class of Class A
Notes, until the Outstanding Amount
attributable to such class is
reduced to zero;
(y) second, to the Variable Pay Term
Notes as set forth in CLAUSE (IV)
below, until the Outstanding Amount
attributable to all Variable Pay
Term Notes is reduced to zero; and
(z) the remainder, if any, to the
Accumulation Account so long
as any Note is outstanding.
(B) During a Curable Sequential Amortization Period,
to the class of Class A Notes, the Outstanding Amount of which
was not reduced to zero on its Final Targeted Distribution
Date and the Variable Pay Term Notes, pro rata, based upon the
Noteholders' Principal Distributable Amount for such class of
Class A Notes and the Noteholders' Principal Distributable
Amount for all Variable Pay Term Notes, as follows:
(1) Payments allocable to such class of
Class A Notes shall be paid to such class until the
Outstanding Amount attributable to such class is
reduced to zero; and
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(2) Payments allocable to the Variable Pay
Term Notes shall be applied as set forth in CLAUSE
(IV) below.
(C) During an Extended Sequential Amortization
Period, to the Class A Notes and the Variable Pay Term Notes,
pro rata, based upon the aggregate outstanding amount of all
Class A Notes and the aggregate outstanding amount of all
Variable Pay Term Notes as follows:
(1) Payments allocable to the Class A Notes
shall be applied to each class of Class A Notes in
the following amounts and in the following order of
priority:
(v) first, to the Class A-1 Notes, until
the Outstanding Amount of the
Class A-1 Notes is reduced to zero;
(w) second, to the Class A-2 Notes,
until the Outstanding Amount of the
Class A-2 Notes is reduced to zero;
(x) third, to the Class A-3 Notes, until
the Outstanding Amount of the Class
A-3 Notes is reduced to zero;
(y) fourth, to the Class A-4 Notes,
until the Outstanding Amount of the
Class A-4 Notes is reduced to zero;
and
(z) fifth, to the Class A-5 Notes, until
the Outstanding Amount of the Class
A-5 Notes is reduced to zero.
(2) Payments allocable to the Variable Pay
Term Notes shall be applied as set forth in CLAUSE
(IV) below.
(iii) If the Notes have been declared immediately due
and payable following an Event of Default as provided in SECTION 5.2,
until such time as all Events of Default have been cured or waived as
provided in SECTION 5.2(B), any amounts remaining in the Note
Distribution Account or the Accumulation Account after the applications
described in SECTION 8.2(C)(I) and any amounts then on deposit or
deposited into the Note Distribution Account or the Accumulation
Account thereafter shall be applied to the repayment of principal on
each class of the Notes pro rata on the basis of the respective unpaid
principal amount of each such Note and paid to the Holders thereof on
such Distribution Date.
(iv) Payments allocable to the Variable Pay Term
Notes pursuant to CLAUSE (II) above shall be applied to each class of
Variable Pay Term Notes sequentially according
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to date of issuance, such that no payments will be made to any class of
Variable Pay Term Notes until the Outstanding Amounts on all classes of
Variable Pay Term Notes which were issued earlier in time have been
reduced to zero.
SECTION 8.3 GENERAL PROVISIONS REGARDING ACCOUNTS.
(a) So long as no Default or Event of Default shall have
occurred and be continuing, all or a portion of the funds in the Designated
Accounts shall be invested in Eligible Investments and reinvested by the
Indenture Trustee upon Issuer Order, subject to the provisions of SECTION
5.01(B) of the Trust Sale and Servicing Agreement. The Issuer shall not direct
the Indenture Trustee to make any investment of any funds or to sell any
investment held in any of the Designated Accounts unless the security interest
granted and perfected in such account shall continue to be perfected in such
investment or the proceeds of such sale, in either case without any further
action by any Person, and, in connection with any direction to the Indenture
Trustee to make any such investment or sale, if requested by the Indenture
Trustee, the Issuer shall deliver to the Indenture Trustee an Opinion of Counsel
acceptable to the Indenture Trustee, to such effect.
(b) Subject to SECTION 6.1(C), the Indenture Trustee shall
not in any way be held liable by reason of any insufficiency in any of
the Designated Accounts resulting from any loss on any Eligible Investment
included therein except for losses attributable to the Indenture Trustee's
failure to make payments on such Eligible Investments issued by the Indenture
Trustee, in its commercial capacity as principal obligor and not as trustee,
in accordance with their terms.
(c) If (i) the Issuer shall have failed to give investment
directions for any funds on deposit in the Designated Accounts to the Indenture
Trustee by 11:00 a.m., New York City Time (or such other time as may be agreed
by the Issuer and the Indenture Trustee) on any Business Day; or (ii) a Default
or Event of Default shall have occurred and be continuing with respect to the
Notes but the Notes shall not have been declared due and payable pursuant to
SECTION 5.2, or, if such Notes shall have been declared due and payable
following an Event of Default, but amounts collected or receivable from the
Trust Estate are being applied in accordance with SECTION 5.5 as if there had
not been such a declaration; then the Indenture Trustee shall, to the fullest
extent practicable, invest and reinvest funds in the Designated Accounts in one
or more Eligible Investments selected by the Indenture Trustee.
SECTION 8.4 RELEASE OF TRUST ESTATE.
(a) Subject to the payment of its fees and expenses pursuant
to SECTION 6.7, the Indenture Trustee may, and when required by the provisions
of this Indenture shall, execute instruments to release property from the lien
of this Indenture, or convey the Indenture Trustee's interest in the same, in a
manner and under circumstances that are consistent with the provisions of this
Indenture. No party relying upon an instrument executed by the Indenture Trustee
as provided
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in this ARTICLE VIII shall be bound to ascertain the Indenture Trustee's
authority, inquire into the satisfaction of any conditions precedent or see to
the application of any monies.
(b) The Indenture Trustee shall, at such time as there are no
Notes Outstanding and all sums due to the Indenture Trustee pursuant to SECTION
6.7 have been paid and all amounts owing under each Third Party Instrument have
been paid, release any remaining portion of the Trust Estate that secured the
Notes and the other Secured Obligations from the lien of this Indenture and
release to the Issuer or any other Person entitled thereto any funds then on
deposit in the Designated Accounts. The Indenture Trustee shall release property
from the lien of this Indenture pursuant to this SECTION 8.4(B) only upon
receipt by it of an Issuer Request and an Officer's Certificate, an Opinion of
Counsel and (if required by the TIA) Independent Certificates in accordance with
TIA ss.ss. 314(c) and 314(d)(1) meeting the applicable requirements of SECTION
11.1.
SECTION 8.5 OPINION OF COUNSEL. The Indenture Trustee shall
receive at least seven days' notice when requested by the Issuer to take any
action pursuant to SECTION 8.4(A), accompanied by copies of any instruments
involved, and the Indenture Trustee shall also require as a condition to such
action, an Opinion of Counsel and a Materiality Opinion, in form and substance
satisfactory to the Indenture Trustee, stating the legal effect of any such
action, outlining the steps required to complete the same, and concluding that
all conditions precedent to the taking of such action have been complied with
and such action shall not materially and adversely impair the security for the
Secured Obligations or the rights of the Secured Parties in contravention of the
provisions of this Indenture; PROVIDED, HOWEVER, that such Opinion of Counsel
and Materiality Opinion shall not be required to express an opinion as to the
fair value of the Trust Estate. Counsel rendering any such opinion may rely,
without independent investigation, on the accuracy and validity of any
certificate or other instrument delivered to the Indenture Trustee in connection
with any such action.
ARTICLE IX
SUPPLEMENTAL INDENTURES
SECTION 9.1 SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF
NOTEHOLDERS.
(a) Without the consent of the Holders of any Notes but with
prior notice to the Rating Agencies, the Issuer and the Indenture Trustee, when
authorized by an Issuer Order, at any time and from time to time, may enter into
one or more indentures supplemental hereto (which shall conform to the
provisions of the Trust Indenture Act as in force at the date of the execution
thereof), in form satisfactory to the Indenture Trustee, for any of the
following purposes:
(i) to correct or amplify the description of any
property at any time subject to the lien of this Indenture, or better to assure,
convey and confirm unto the
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Indenture Trustee any property subject or required to be subjected to
the lien of this Indenture, or to subject to additional property to the
lien of this Indenture;
(ii) to evidence the succession, in compliance with
SECTION 3.10 and the applicable provisions hereof, of another Person to
the Issuer, and the assumption by any such successor of the covenants
of the Issuer contained herein and in the Notes contained;
(iii) to add to the covenants of the Issuer, for the
benefit of the Securityholders or to surrender any right or power
herein conferred upon the Issuer;
(iv) to convey, transfer, assign, mortgage or pledge
any property to or with the Indenture Trustee;
(v) to cure any ambiguity, to correct or
supplement any provision herein or in any supplemental indenture
which may be inconsistent with any other provision herein or in any
supplemental indenture or in any other Basic Document;
(vi) to evidence and provide for the acceptance of
the appointment hereunder by a successor or additional trustee with
respect to the Notes and to add to or change any of the provisions of
this Indenture as shall be necessary to facilitate the administration
of the trusts hereunder by more than one trustee, pursuant to the
requirements of ARTICLE VI; or
(vii) to modify, eliminate or add to the provisions
of this Indenture to such extent as shall be necessary to effect the
qualification of this Indenture under the TIA or under any similar
federal statute hereafter enacted and to add to this Indenture such
other provisions as may be expressly required by the TIA, and the
Indenture Trustee is hereby authorized to join in the execution of any
such supplemental indenture and to make any further appropriate
agreements and stipulations that may be therein contained.
(b) The Issuer and the Indenture Trustee, when authorized by
an Issuer Order, may, also without the consent of any of the Noteholders but
with prior notice to the Rating Agencies at any time and from time to time enter
into one or more indentures supplemental hereto for the purpose of adding any
provisions to, changing in any manner, or eliminating any of the provisions of,
this Indenture or modifying in any manner the rights of the Noteholders under
this Indenture; PROVIDED, HOWEVER, that such action shall not, as evidenced by
an Opinion of Counsel, adversely affect in any material respect the interests of
any Noteholder.
SECTION 9.2 SUPPLEMENTAL INDENTURES WITH CONSENT OF
NOTEHOLDERS.
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(a) The Issuer and the Indenture Trustee, when authorized by
an Issuer Order, also may, with prior notice to the Rating Agencies and with the
consent of the Holders of not less than a majority of the Outstanding Amount of
the Notes, by Act of such Holders delivered to the Issuer and the Indenture
Trustee, enter into an indenture or indentures supplemental hereto for the
purpose of adding any provisions to, changing in any manner, or eliminating any
of the provisions of, this Indenture or of modifying in any manner the rights of
the Noteholders under this Indenture; PROVIDED, HOWEVER, that no such
supplemental indenture shall, without the consent of the Holder of each
Outstanding Note affected thereby:
(i) change the due date of any instalment of
principal of or interest on any Note, or reduce the principal amount
thereof, the interest rate applicable thereto, or the Redemption Price
with respect thereto, change any place of payment where, or the coin or
currency in which, any Note or any interest thereon is payable, or
impair the right to institute suit for the enforcement of the
provisions of this Indenture requiring the application of funds
available therefor, as provided in ARTICLE V, to the payment of any
such amount due on the Notes on or after the respective due dates
thereof (or, in the case of redemption, on or after the Redemption
Date);
(ii) reduce the percentage of the Outstanding Amount
of the Notes, the consent of the Holders of which is required for any
such supplemental indenture, or the consent of the Holders of which is
required for any waiver of compliance with certain provisions of this
Indenture or certain defaults hereunder and their consequences as
provided for in this Indenture;
(iii) modify or alter the provisions of the proviso
to the definition of the term "Outstanding";
(iv) reduce the percentage of the Outstanding Amount
of the Notes required to direct the Indenture Trustee to sell or
liquidate the Trust Estate pursuant to SECTION 5.4 if the proceeds of
such sale would be insufficient to pay the principal amount of and
accrued but unpaid interest on the Outstanding Notes;
(v) modify any provision of this SECTION 9.2 to
decrease the required minimum percentage necessary to approve any
amendments to any provisions of this Indenture or any of the Basic
Documents;
(vi) modify any of the provisions of this Indenture
in such manner as to affect the calculation of the amount of any
payment of interest or principal due on any Note on any Distribution
Date (including the calculation of any of the individual components of
such calculation), or modify or alter the provisions of the Indenture
regarding the voting of Notes held by the Issuer, the Seller or any
Affiliate of either of them; or
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(vii) permit the creation of any Lien ranking prior
to or on a parity with the lien of this Indenture with respect to any
part of the Trust Estate or, except as otherwise permitted or
contemplated herein, terminate the lien of this Indenture on any
property at any time subject thereto or deprive the Holder of any Note
of the security afforded by the lien of this Indenture.
(b) The Indenture Trustee may in its discretion determine
whether or not any Notes would be affected (such that the consent of each
Noteholder would be required) by any supplemental indenture proposed pursuant to
this SECTION 9.2 and any such determination shall be binding upon the Holders of
all Notes, whether authenticated and delivered thereunder before or after the
date upon which such supplemental indenture becomes effective. The Indenture
Trustee shall not be liable for any such determination made in good faith.
(c) It shall be sufficient if an Act of Noteholders approves
the substance, but not the form, of any proposed supplemental indenture.
(d) Promptly after the execution by the Issuer and the
Indenture Trustee of any supplemental indenture pursuant to this SECTION 9.2,
the Indenture Trustee shall mail to the Noteholders to which such amendment or
supplemental indenture relates a notice setting forth in general terms the
substance of such supplemental indenture. Any failure of the Indenture Trustee
to mail such notice, or any defect therein, shall not, however, in any way
impair or affect the validity of any such supplemental indenture.
SECTION 9.3 EXECUTION OF SUPPLEMENTAL INDENTURES. In
executing, or permitting the additional trusts created by, any supplemental
indenture permitted by this ARTICLE IX or the modifications thereby of the
trusts created by this Indenture, the Indenture Trustee shall be entitled to
receive, and subject to SECTIONS 6.1 AND 6.2, shall be fully protected in
relying upon, an Opinion of Counsel stating that the execution of such
supplemental indenture is authorized or permitted by this Indenture. The
Indenture Trustee may, but shall not be obligated to, enter into any such supple
mental indenture that affects the Indenture Trustee's own rights, duties,
liabilities or immunities under this Indenture or otherwise.
SECTION 9.4 EFFECT OF SUPPLEMENTAL INDENTURE. Upon the
execution of any supplemental indenture pursuant to the provisions hereof, this
Indenture shall be and be deemed to be modified and amended in accordance
therewith with respect to the Notes affected thereby, and the respective rights,
limitations of rights, obligations, duties, liabilities and immunities under
this Indenture of the Indenture Trustee, the Issuer and the Noteholders shall
thereafter be determined, exercised and enforced hereunder subject in all
respects to such modifications and amendments, and all the terms and conditions
of any such supplemental indenture shall be and be deemed to be part of the
terms and conditions of this Indenture for any and all purposes.
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SECTION 9.5 CONFORMITY WITH TRUST INDENTURE ACT. Every
amendment of this Indenture and every supplemental indenture executed pursuant
to this ARTICLE IX shall conform to the requirements of the TIA as then in
effect so long as this Indenture shall then be qualified under the TIA.
SECTION 9.6 REFERENCE IN NOTES TO SUPPLEMENTAL INDENTURES.
Notes authenticated and delivered after the execution of any supplemental
indenture pursuant to this ARTICLE IX may, and if required by the Indenture
Trustee shall, bear a notation in form approved by the Indenture Trustee as to
any matter provided for in such supplemental indenture. If the Issuer or the
Indenture Trustee shall so determine, new Notes so modified as to conform, in
the opinion of the Indenture Trustee and the Issuer, to any such supplemental
indenture may be prepared and executed by the Issuer and authenticated and
delivered by the Indenture Trustee in exchange for Outstanding Notes of the same
class.
ARTICLE X
REDEMPTION OF NOTES
SECTION 10.1 REDEMPTION. The Redeemable Notes are subject to
redemption in whole, but not in part, upon the exercise by the Servicer of its
option to purchase the Receivables pursuant to SECTION 8.01 of the Trust Sale
and Servicing Agreement. The date on which such redemption shall occur is the
Distribution Date following the Optional Purchase Date identified by Servicer in
its notice of exercise of such purchase option (the "REDEMPTION DATE"). The
purchase price for the Redeemable Notes shall be equal to the applicable
Redemption Price, provided the Issuer has available funds sufficient to pay such
amount. The Servicer or the Issuer shall furnish the Rating Agencies notice of
such redemption. If the Redeemable Notes are to be redeemed pursuant to this
SECTION 10.1, the Servicer or the Issuer shall furnish notice thereof to the
Indenture Trustee not later than 25 days prior to the Redemption Date and the
Indenture Trustee (based on such notice) shall withdraw from the Collection
Account and deposit into the Note Distribution Account, on the Redemption Date,
the aggregate Redemption Price of the Redeemable Notes, whereupon all such Notes
shall be due and payable on the Redemption Date.
SECTION 10.2 FORM OF REDEMPTION NOTICE.
(a) Notice of redemption of the Redeemable Notes under
SECTION 10.1 shall be given by the Indenture Trustee by first-class mail,
postage prepaid, mailed not less than five days prior to the applicable
Redemption Date to each Noteholder of Redeemable Notes of record at such
Noteholder's address appearing in the Note Register.
(b) All notices of redemption shall state:
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(i) the Redemption Date;
(ii) the applicable Redemption Price; and
(iii) the place where Redeemable Notes are to be
surrendered for payment of the Redemption Price (which shall be the
Agency Office of the Indenture Trustee to be maintained as provided in
SECTION 3.2).
(c) Notice of redemption of the Redeemable Notes shall be
given by the Indenture Trustee in the name and at the expense of the Issuer.
Failure to give notice of redemption, or any defect therein, to any Holder of
any Redeemable Note shall not impair or affect the validity of the redemption of
any other Redeemable Note.
SECTION 10.3 NOTES PAYABLE ON REDEMPTION DATE.
The Redeemable Notes shall, following notice of redemption as
required by SECTION 10.2, on the Redemption Date cease to be Outstanding for
purposes of this Indenture and shall thereafter represent only the right to
receive the applicable Redemption Price and (unless the Issuer shall default in
the payment of such Redemption Price) no interest shall accrue on such
Redemption Price for any period after the date to which accrued interest is
calculated for purposes of calculating such Redemption Price.
ARTICLE XI
MISCELLANEOUS
SECTION 11.1 COMPLIANCE CERTIFICATES AND OPINIONS, ETC.
(a) Upon any application or request by the Issuer to the
Indenture Trustee to take any action under any provision of this Indenture, the
Issuer shall furnish to the Indenture Trustee: (i) an Officer's Certificate
stating that all conditions precedent, if any, provided for in this Indenture
relating to the proposed action have been complied with, (ii) an Opinion of
Counsel stating that in the opinion of such counsel all such conditions
precedent, if any, have been complied with, and (iii) (if required by the TIA)
an Independent Certificate from a firm of certified public accountants meeting
the applicable requirements of this SECTION 11.1, except that, in the case of
any such application or request as to which the furnishing of such documents is
specifically required by any provision of this Indenture, no additional
certificate or opinion need be furnished. Every certificate or opinion with
respect to compliance with a condition or covenant provided for in this
Indenture shall include:
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(i) a statement that each signatory of such
certificate or opinion has read or has caused to be read such covenant
or condition and the definitions herein relating thereto;
(ii) a brief statement as to the nature and scope of
the examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(iii) a statement that, in the judgment of each such
signatory, such signatory has made such examination or investigation as
is necessary to enable such signatory to express an informed opinion as
to whether or not such covenant or condition has been complied with;
and
(iv) a statement as to whether, in the opinion of
each such signatory, such condition or covenant has been complied with.
(b) (i) Prior to the deposit with the Indenture Trustee of
any Collateral or other property or securities that is to be made the basis for
the release of any property or securities subject to the lien of this Indenture,
the Issuer shall, in addition to any obligation imposed in SECTION
11.1(A) or elsewhere in this Indenture, furnish to the Indenture Trustee an
Officer's Certificate certifying or stating the opinion of each Person
signing such certificate as to the fair value (within 90 days of such deposit)
to the Issuer of the Collateral or other property or securities to be so
deposited.
(ii) Whenever the Issuer is required to furnish to
the Indenture Trustee an Officer's Certificate certifying or stating
the opinion of any signer thereof as to the matters described in clause
(b)(i) above, the Issuer shall also deliver to the Indenture Trustee an
Independent Certificate as to the same matters, if the fair value to
the Issuer of the securities to be so deposited and of all other such
securities made on the basis of any such withdrawal or release since
the commencement of the then current fiscal year of the Issuer, as set
forth in the certificates delivered pursuant to clause (i) above and
this clause (b)(ii), is 10% or more of the Outstanding Amount of the
Notes, but such a certificate need not be furnished with respect to any
securities so deposited, if the fair value thereof to the Issuer as set
forth in the related Officer's Certificate is less than $25,000 or less
than one percent of the Outstanding Amount of the Notes.
(iii) Other than with respect to the release of any
Warranty Receivables, Administrative Receivables or Liquidating
Receivables, whenever any property or securities are to be released
from the lien of this Indenture, the Issuer shall also furnish to the
Indenture Trustee an Officer's Certificate certifying or stating the
opinion of each Person signing such certificate as to the fair value
(within 90 days of such release) of the property or securities
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proposed to be released and stating that in the opinion of such Person
the proposed release will not impair the security under this Indenture
in contravention of the provisions hereof.
(iv) Whenever the Issuer is required to furnish to
the Indenture Trustee an Officer's Certificate certifying or stating
the opinion of any signatory thereof as to the matters described in
clause (b)(iii) above, the Issuer shall also furnish to the Indenture
Trustee an Independent Certificate as to the same matters if the fair
value of the property or securities and of all other property, other
than Warranty Receivables, Administrative Receivables and Liquidating
Receivables, or securities released from the lien of this Indenture
since the commencement of the then current calendar year, as set forth
in the certificates required by clause (b)(iii) above and this clause
(b)(iv), equals 10% or more of the Outstanding Amount of the Notes, but
such certificate need not be furnished in the case of any release of
property or securities if the fair value thereof as set forth in the
related Officer's Certificate is less than $25,000 or less than one
percent of the then Outstanding Amount of the Notes.
(v) Notwithstanding SECTION 2.9 or any other
provision of this SECTION 11.1, the Issuer may (A) collect, liquidate,
sell or otherwise dispose of Receivables as and to the extent permitted
or required by the Basic Documents, (B) make cash payments out of the
Designated Accounts and the Certificate Distribution Account as and to
the extent permitted or required by the Basic Documents and (C) take
any other action not inconsistent with the TIA.
SECTION 11.2 FORM OF DOCUMENTS DELIVERED TO INDENTURE
TRUSTEE.
(a) In any case where several matters are required to be
certified by, or covered by an opinion of, any specified Person, it is not
necessary that all such matters be certified by, or covered by the opinion of,
only one such Person, or that they be so certified or covered by only one
document, but one such Person may certify or give an opinion with respect to
some matters and one or more other such Persons as to other matters, and any
such Person may certify or give an opinion as to such matters in one or several
documents.
(b) Any certificate or opinion of an Authorized Officer of
the Issuer may be based, insofar as it relates to legal matters, upon a
certificate or opinion of, or representations by, counsel, unless such officer
knows, or in the exercise of reasonable care should know, that any certificate,
opinion or representation with respect to the matters upon which his certificate
or opinion is based is erroneous. Any such certificate of an Authorized Officer
or Opinion of Counsel may be based, insofar as it relates to factual
matters, upon a certificate or opinion of, or representations by, an officer
or officers of the Servicer, the Seller, the Issuer or the Administrator,
stating that the information with respect to such factual matters is in the
possession of the Servicer, the Seller, the Issuer or the Administrator,
unless such counsel knows, or in the exercise of
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reasonable care should know, that the certificate or opinion or representations
with respect to such matters are erroneous.
(c) Where any Person is required to make, give or execute two
or more applications, requests, consents, certificates, statements, opinions or
other instruments under this Indenture, they may, but need not, be consolidated
and form one instrument.
(d) Whenever in this Indenture, in connection with any
application or certificate or report to the Indenture Trustee, it is provided
that the Issuer shall deliver any document as a condition of the granting of
such application, or as evidence of the Issuer's compliance with any term
hereof, it is intended that the truth and accuracy, at the time of the granting
of such application or at the effective date of such certificate or report (as
the case may be), of the facts and opinions stated in such document shall in
such case be conditions precedent to the right of the Issuer to have such
application granted or to the sufficiency of such certificate or report. The
foregoing shall not, however, be construed to affect the Indenture Trustee's
right to rely upon the truth and accuracy of any statement or opinion contained
in any such document as provided in ARTICLE VI.
SECTION 11.3 ACTS OF NOTEHOLDERS.
(a) Any request, demand, authorization, direction, notice,
consent, waiver or other action provided by this Indenture to be given or taken
by Noteholders or a class of Noteholders may be embodied in and evidenced by one
or more instruments of substantially similar tenor signed by such Noteholders in
person or by agents duly appointed in writing; and except as herein otherwise
expressly provided such action shall become effective when such instrument or
instruments are delivered to the Indenture Trustee, and, where it is hereby
expressly required, to the Issuer. Such instrument or instruments (and the
action embodied therein and evidenced thereby) are herein sometimes referred to
as the "ACT" of the Noteholders signing such instrument or instruments. Proof of
execution of any such instrument or of a writing appointing any such agent shall
be sufficient for any purpose of this Indenture and (subject to SECTION 6.1)
conclusive in favor of the Indenture Trustee and the Issuer, if made in the
manner provided in this SECTION 11.3.
(b) The fact and date of the execution by any person of any
such instrument or writing may be proved in any manner that the Indenture
Trustee deems sufficient.
(c) The ownership of Notes shall be proved by the Note
Register.
(d) Any request, demand, authorization, direction, notice,
consent, waiver or other action by the Holder of any Notes (or any one or more
Predecessor Notes) shall bind the Holder of every Note issued upon the
registration thereof or in exchange therefor or in lieu thereof, in respect of
anything done, omitted or suffered to be done by the Indenture Trustee or the
Issuer in reliance thereon, whether or not notation of such action is made upon
such Note.
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SECTION 11.4 NOTICES, ETC., TO INDENTURE TRUSTEE, ISSUER AND
RATING AGENCIES. Any request, demand, authorization, direction, notice, consent,
waiver or Act of Noteholders or other documents provided or permitted by this
Indenture to be made upon, given or furnished to or filed with:
(a) the Indenture Trustee by any Noteholder or by the Issuer
shall be sufficient for every purpose hereunder if made, given, furnished or
filed in writing to or with the Indenture Trustee at its Corporate Trust Office,
or
(b) the Issuer by the Indenture Trustee or by any Noteholder
shall be sufficient for every purpose hereunder if in writing and either sent by
electronic facsimile transmission (with hard copy to follow via first class
mail) or mailed, by certified mail, return receipt requested to the Issuer and
the Owner Trustee each at the address specified in APPENDIX B to the Trust Sale
and Servicing Agreement.
The Issuer shall promptly transmit any notice received by it
from the Noteholders to the Indenture Trustee. The Indenture Trustee shall
likewise promptly transmit any notice received by it from the Noteholders to the
Issuer.
(c) Notices required to be given to the Rating Agencies by
the Issuer and the Indenture Trustee or the Owner Trustee shall be
delivered as specified in APPENDIX B to the Trust Sale and Servicing Agreement.
SECTION 11.5 NOTICES TO NOTEHOLDERS; WAIVER.
(a) Where this Indenture provides for notice to Noteholders
of any event, such notice shall be sufficiently given (unless otherwise
herein expressly provided) if it is in writing and mailed, first-class, postage
prepaid to each Noteholder affected by such event, at such Person's
address as it appears on the Note Register, not later than the latest date,
and not earlier than the earliest date, prescribed for the giving of such
notice. If notice to Noteholders is given by mail, neither the failure to
mail such notice nor any defect in any notice so mailed to any particular Note
holder shall affect the sufficiency of such notice with respect to other
Noteholders, and any notice that is mailed in the manner herein provided shall
conclusively be presumed to have been duly given regardless of whether such
notice is in fact actually received.
(b) Where this Indenture provides for notice in any manner,
such notice may be waived in writing by any Person entitled to receive such
notice, either before or after the event, and such waiver shall be the
equivalent of such notice. Waivers of notice by Noteholders shall be filed with
the Indenture Trustee but such filing shall not be a condition precedent to the
validity of any action taken in reliance upon such a waiver.
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(c) In case, by reason of the suspension of regular mail
service as a result of a strike, work stoppage or similar activity, it shall be
impractical to mail notice of any event of Noteholders when such notice is
required to be given pursuant to any provision of this Indenture, then any
manner of giving such notice as shall be satisfactory to the Indenture Trustee
shall be deemed to be a sufficient giving of such notice.
(d) Where this Indenture provides for notice to the Rating
Agencies, failure to give such notice shall not affect any other rights or
obligations created hereunder, and shall not under any circumstance constitute
an Event of Default.
SECTION 11.6 ALTERNATE PAYMENT AND NOTICE PROVISIONS.
Notwithstanding any provision of this Indenture or any of the Notes to the
contrary, the Issuer may enter into any agreement with any Holder of a Note
providing for a method of payment, or notice by the Indenture Trustee or any
Paying Agent to such Holder, that is different from the methods provided for in
this Indenture for such payments or notices. The Issuer shall furnish to the
Indenture Trustee a copy of each such agreement and the Indenture Trustee shall
cause payments to be made and notices to be given in accordance with such
agreements.
SECTION 11.7 CONFLICT WITH TRUST INDENTURE ACT.
(a) If any provision hereof limits, qualifies or conflicts
with another provision hereof that is required to be included in this Indenture
by any of the provisions of the TIA, such required provision shall control.
(b) The provisions of TIA ss.ss. 310 through 317 that impose
duties on any Person (including the provisions automatically deemed included
herein unless expressly excluded by this Indenture) are a part of and govern
this Indenture, whether or not physically contained herein.
SECTION 11.8 EFFECT OF HEADINGS AND TABLE OF CONTENTS. The
Article and Section headings herein and the Table of Contents are for
convenience only and shall not affect the construction hereof.
SECTION 11.9 SUCCESSORS AND ASSIGNS.
(a) All covenants and agreements in this Indenture and the
Notes by the Issuer shall bind its successors and assigns, whether so expressed
or not.
(b) All covenants and agreements of the Indenture Trustee in
this Indenture shall bind its successors and assigns, whether so expressed or
not.
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SECTION 11.10 SEVERABILITY.
In case any provision in this Indenture or in the Notes shall
be invalid, illegal or unenforceable, the validity, legality, and enforceability
of the remaining provisions shall not in any way be affected or impaired
thereby.
SECTION 11.11 BENEFITS OF INDENTURE.
Nothing in this Indenture or in the Notes, express or implied,
shall give to any Person, other than the parties hereto and their successors
hereunder, and to the extent expressly provided herein, the Noteholders, the
Certificateholders, any other party secured hereunder, any other Person with an
ownership interest in any part of the Trust Estate and any holder of a Third
Party Instrument, any benefit or any legal or equitable right, remedy or claim
under this Indenture. The holder of a Third Party Instrument shall be a
third-party beneficiary to this Agreement only to the extent that it has any
rights specified herein or rights with respect to this Indenture specified under
the Swap Counterparty Rights Agreement.
SECTION 11.12 LEGAL HOLIDAYS.
If the date on which any payment is due shall not be a
Business Day, then (notwithstanding any other provision of the Notes or this
Indenture) payment need not be made on such date, but may be made on the next
succeeding Business Day with the same force and effect as if made on the date on
which nominally due, and no interest shall accrue for the period from and after
any such nominal date.
SECTION 11.13 GOVERNING LAW.
THIS INDENTURE SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS
OF THE STATE OF NEW YORK, WITHOUT REFERENCE TO ITS CONFLICT OF LAW PROVISIONS,
AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE
DETERMINED IN ACCORDANCE WITH SUCH LAWS.
SECTION 11.14 COUNTERPARTS.
This Indenture may be executed in any number of counterparts,
each of which so executed shall be deemed to be an original, but all such
counterparts shall together constitute but one and the same instrument.
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SECTION 11.15 RECORDING OF INDENTURE.
If this Indenture is subject to recording in any appropriate
public recording offices, such recording is to be effected by the Issuer and at
its expense accompanied by an Opinion of Counsel (which may be counsel to the
Indenture Trustee or any other counsel reasonably acceptable to the Indenture
Trustee) to the effect that such recording is necessary either for the
protection of the Noteholders or any other Person secured hereunder or for the
enforcement of any right or remedy granted to the Indenture Trustee under this
Indenture.
SECTION 11.16 NO RECOURSE.
No recourse may be taken, directly or indirectly, with respect
to the obligations of the Issuer, the Owner Trustee or the Indenture Trustee on
the Notes or under this Indenture or any certificate or other writing delivered
in connection herewith or therewith, against:
(a) the Indenture Trustee or the Owner Trustee in its
individual capacity;
(b) any owner of a beneficial interest in the Issuer; or
(c) any partner, owner, beneficiary, agent, officer,
director, employee or agent of the Indenture Trustee or the Owner
Trustee in its individual capacity, any holder of a beneficial interest in
the Issuer, the Owner Trustee or the Indenture Trustee or of any successor
or assign of the Indenture Trustee or the Owner Trustee in its individual
capacity (or any of their successors or assigns), except as any such Person
may have expressly agreed (it being understood that the Indenture Trustee
and the Owner Trustee have no such obligations in their individual capacity)
and except that any such partner, owner or beneficiary shall be fully liable,
to the extent provided by applicable law, for any unpaid consideration
for stock, unpaid capital contribution or failure to pay any instalment or
call owing to such entity. For all purposes of this Indenture, in the
performance of any duties or obligations of the Issuer hereunder, the Owner
Trustee shall be subject to, and entitled to the benefits of, the terms and
provisions of ARTICLES VI, VII AND VIII of the Trust Agreement.
SECTION 11.17 NO PETITION.
The Indenture Trustee, by entering into this Indenture, and
each Noteholder and Note Owner, by accepting a Note (or interest therein) issued
hereunder, hereby covenant and agree that they shall not, prior to the date
which is one year and one day after the termination of this Indenture with
respect to the Issuer pursuant to SECTION 4.1, acquiesce, petition or otherwise
invoke or cause the Seller or the Issuer to invoke the process of any court or
government authority for the purpose of commencing or sustaining a case against
the Seller or the Issuer under any federal or state bankruptcy, insolvency or
similar law or appointing a receiver, liquidator, assignee, trustee,
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custodian, sequestrator or other similar official of the Seller or the Issuer or
any substantial part of its property, or ordering the winding up or liquidation
of the affairs of the Seller or the Issuer.
SECTION 11.18 INSPECTION.
The Issuer agrees that, on reasonable prior notice, it shall
permit any representative of the Indenture Trustee, during the Issuer's normal
business hours, to examine all the books of account, records, reports, and other
papers of the Issuer, to make copies and extracts therefrom, to cause such books
to be audited by Independent certified public accountants, and to discuss the
Issuer's affairs, finances and accounts with the Issuer's officers, employees
and Independent certified public accountants, all at such reasonable times and
as often as may be reasonably requested. The Indenture Trustee shall and shall
cause its representatives to hold in confidence all such information except to
the extent disclosure may be required by law (and all reasonable applications
for confidential treatment are unavailing) and except to the extent that the
Indenture Trustee may reasonably determine that such disclosure is consistent
with its obligations hereunder.
SECTION 11.19 INDEMNIFICATION BY AND REIMBURSEMENT OF THE
SERVICER.
The Indenture Trustee acknowledges and agrees to reimburse (i)
the Servicer and its directors, officers, employees and agents in accordance
with SECTION 6.03(B) of the Trust Sale and Servicing Agreement and (ii) the
Seller and its directors, officers, employees and agents in accordance with
SECTION 3.04 of the Trust Sale and Servicing Agreement. The Indenture Trustee
further acknowledges and accepts the conditions and limitations with respect to
the Servicer's obligation to indemnify, defend and hold the Indenture Trustee
harmless as set forth in SECTION 6.01(A)(IV) of the Trust Sale and Servicing
Agreement.
* * * * *
63
<PAGE>
IN WITNESS WHEREOF, the Issuer and the Indenture Trustee have
caused this Indenture to be duly executed by their respective officers,
thereunto duly authorized, all as of the day and year first above written.
CAPITAL AUTO RECEIVABLES
ASSET TRUST 2000-1
By: BANKERS TRUST (DELAWARE),
not in its individual
capacity but solely as
Owner Trustee,
By: /S/ RAYMOND DELLICOLLI
---------------------------
Name: Raymond DelliColli
Title: Attorney In Fact
BANK ONE, NATIONAL ASSOCIATION,
not in its individual capacity but solely as
Indenture Trustee,
By: /S/ STEVEN M. WAGNER
----------------------------
Name: Steven M. Wagner
Title: First Vice President
64
<PAGE>
STATE OF ILLINOIS )
) ss.:
COUNTY OF COOK )
BEFORE ME, the undersigned authority, a Notary Public in and
for said county and state, on this day personally appeared
_____________________________, known to me to be the person and officer whose
name is subscribed to the foregoing instrument and acknowledged to me that the
same was the act of the said Capital Auto Receivables Asset Trust 2000-1, a
Delaware business trust, and that he executed the same as the act of said
business trust for the purpose and consideration therein expressed, and in the
capacities therein stated.
GIVEN UNDER MY HAND AND SEAL OF OFFICE, this the 19th day of
April, 2000.
-------------------------------------------------
Notary Public in and for the State of Illinois.
My commission expires:
- ----------------------------
65
<PAGE>
STATE OF ILLINOIS )
) ss.:
COUNTY OF COOK )
BEFORE ME, the undersigned authority, a Notary Public in and
for said county and state, on this day personally appeared Steven M. Wagner,
known to me to be the person and officer whose name is subscribed to the
foregoing instrument and acknowledged to me that the same was the act of the
said Bank One, National Association, and that he executed the same as the act of
said national banking association for the purpose and consideration therein
stated.
GIVEN UNDER MY HAND AND SEAL OF OFFICE, this the 19th day of
April, 2000.
--------------------------------------------------
Notary Public in and for the State of Illinois.
My commission expires:
- ----------------------------
66
<PAGE>
EXHIBIT A
LOCATION OF
SCHEDULE OF RECEIVABLES
The SCHEDULE OF RECEIVABLES is on file at the offices of:
1. The Indenture Trustee
2. The Owner Trustee
3. General Motors Acceptance Corporation
4. Capital Auto Receivables, Inc.
67
<PAGE>
EXHIBIT B
FORM OF NOTE DEPOSITORY AGREEMENT
68
<PAGE>
EXHIBIT C-1
FORM OF OFFERED NOTES
REGISTERED $____________
No. R-
SEE REVERSE FOR CERTAIN DEFINITIONS
CUSIP NO. __________
Unless this Note is presented by an authorized
representative of The Depository Trust Company, a New York corporation
("DTC"), to the Issuer or its agent for registration of transfer,
exchange or payment, and any Note issued is registered in the name of
Cede & Co. or in such other name as is requested by an authorized
representative of DTC (and any payment is made to Cede & Co. or to such
other entity as is requested by an authorized representative of DTC),
ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR
TO ANY PERSON IS WRONGFUL inasmuch as the registered owner hereof, Cede
& Co., has an interest herein.
THE PRINCIPAL OF THIS NOTE IS PAYABLE AS SET FORTH
HEREIN. ACCORDINGLY, THE OUTSTANDING PRINCIPAL AMOUNT OF THIS NOTE AT
ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ON THE FACE HEREOF.
CAPITAL AUTO RECEIVABLES ASSET TRUST 2000-1
CLASS A-__% ASSET BACKED NOTES
CAPITAL AUTO RECEIVABLES ASSET TRUST 2000-1, a business trust
organized and existing under the laws of the State of Delaware (herein referred
to as the "ISSUER"), for value received, hereby promises to pay to
_______________, or registered assigns, the principal sum of _______________
DOLLARS ($_________) payable in accordance with the Indenture (as defined on the
reverse side of this Note), on each Distribution Date in an amount equal to the
result obtained by multiplying (i) a fraction, the numerator of which is the
initial principal amount hereof and the denominator of which is aggregate
principal amount for such Class A-__ Notes by (ii) the aggregate amount, if any,
payable on such Distribution Date from the Note Distribution Account in
1
<PAGE>
respect of principal on the Class A-__ Notes pursuant to SECTIONS 2.7, 3.1 and
8.2(C) of the Indenture; PROVIDED, HOWEVER, that the entire unpaid principal
amount of this Note shall be due and payable on the earlier of ___________ (the
"FINAL SCHEDULED DISTRIBUTION DATE") and the Redemption Date, if any, pursuant
to SECTION 10.1 of the Indenture. The Issuer shall pay interest on this Note at
the rate per annum shown above on each Distribution Date until the principal of
this Note is paid or made available for payment on the principal amount of this
Note outstanding on the preceding Distribution Date (after giving effect to all
payments of principal made on the preceding Distribution Date (or, for the
initial Distribution Date, the outstanding principal balance on the Closing
Date)). Interest on this Note will accrue from and including the Closing Date,
and will be payable on each Distribution Date in an amount equal to the
Noteholders' Interest Distributable Amount for such Distribution Date. Interest
will be computed on the basis of a 360-day year of twelve 30-day months (or, in
the case of the initial Distribution Date, 36/360). Such principal of and
interest on this Note shall be paid in the manner specified on the reverse
hereof. All interest payments on each class of Notes on any Distribution Date
shall be made pro rata to the Noteholders of such class entitled thereto.
The principal of and interest on this Note are payable in such
coin or currency of the United States of America which, at the time of payment,
is legal tender for payment of public and private debts. All payments made by
the Issuer with respect to this Note shall be applied first to interest due and
payable on this Note as provided above and then to the unpaid principal of this
Note.
Reference is made to the further provisions of this Note set
forth on the reverse hereof, which shall have the same effect as though fully
set forth on the face of this Note.
Unless the certificate of authentication hereon has been
executed by the Indenture Trustee whose name appears below by manual signature,
this Note shall not be entitled to any benefit under the Indenture referred to
on the reverse hereof or be valid or obligatory for any purpose.
2
<PAGE>
IN WITNESS WHEREOF, the Issuer has caused this instrument to be signed, manually
or in facsimile, by its Authorized Officer.
Date:
CAPITAL AUTO RECEIVABLES ASSET
TRUST 2000-1,
By: BANKERS TRUST (DELAWARE),
not in its individual capacity but solely as
Owner Trustee under the Trust Agreement
By: /S/RAYMOND DELLICOILLI
-----------------------------------------
Name: Raymond DelliCoilli
Title: Attorney In Fact
INDENTURE TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Notes designated above and referred to in
the within-mentioned Indenture.
BANK ONE, NATIONAL ASSOCIATION, not in its
individual capacity but solely as Indenture Trustee
By: /S/ STEVEN M. WAGNER
---------------------------------------------
Name: Steven M. Wagner
Title: First Vice President
3
<PAGE>
REVERSE OF NOTE
This Note is one of a duly authorized issue of Notes of the
Issuer, designated as its Class A-__ Asset Backed Notes (herein called the
"CLASS A- NOTES"), all issued under an Indenture, dated as of April 19, 2000
(such Indenture, as supplemented or amended, is herein called the "INDENTURE"),
between the Issuer and Bank One, National Association, as trustee (the
"INDENTURE TRUSTEE", which term includes any successor trustee under the
Indenture), to which Indenture and all indentures supplemental thereto reference
is hereby made for a statement of the respective rights and obligations
thereunder of the Issuer, the Indenture Trustee and the Noteholders. The Class
A- ___ Notes are one of several duly authorized classes of Notes of the Issuer
issued pursuant to the Indenture (collectively, as to all Notes of all such
classes, the "NOTES"). The Notes are governed by and subject to all terms of the
Indenture (which terms are incorporated herein and made a part hereof), to which
Indenture the Holder of this Note by virtue of acceptance hereof assents and by
which such Holder is bound. All capitalized terms used and not otherwise defined
in this Note that are defined in the Indenture, as supplemented or amended,
shall have the meanings assigned to them in or pursuant to the Indenture.
The Class A-__ Notes and all other Notes issued pursuant to
the Indenture are and will be equally and ratably secured by the Collateral
pledged as security therefor as provided in the Indenture.
Each Noteholder or Note Owner, by acceptance of a Note or, in
the case of a Note Owner, a beneficial interest in a Note, covenants and agrees
that no recourse may be taken, directly or indirectly, with respect to the
obligations of the Issuer, the Owner Trustee or the Indenture Trustee on the
Notes or under the Indenture or any certificate or other writing delivered in
connection therewith, against (i) the Indenture Trustee or the Owner Trustee in
their individual capacities, (ii) any owner of a beneficial interest in the
Issuer or (iii) any partner, owner, beneficiary, agent, officer, director or
employee of the Indenture Trustee or the Owner Trustee in their individual
capacities, any holder of a beneficial interest in the Issuer, the Owner Trustee
or the Indenture Trustee or of any successor or assign of the Indenture Trustee
or the Owner Trustee in their individual capacities, except as any such Person
may have expressly agreed and except that any such partner, owner or beneficiary
shall be fully liable, to the extent provided by applicable law, for any unpaid
consideration for stock, unpaid capital contribution or failure to pay any
instalment or call owing to such entity.
Each Noteholder or Note Owner, by acceptance of a Note or, in
the case of a Note Owner, a beneficial interest in a Note, covenants and agrees
that by accepting the benefits of the Indenture such Noteholder will not, prior
to the date which is one year and one day after the termination of this
Indenture with respect to the Issuer, acquiesce, petition or otherwise invoke or
cause the Seller or the Issuer to invoke the process of any court or government
authority for the
4
<PAGE>
purpose of commencing or sustaining a case against the Seller or the Issuer
under any federal or state bankruptcy, insolvency or similar law or appointing a
receiver, liquidator, assignee, trustee, custodian, sequestrator or other
similar official of the Seller or the Issuer or any substantial part of its
property, or ordering the winding up or liquidation of the affairs of the Seller
or the Issuer.
Each Noteholder, by acceptance of a Note or, in the case of a
Note Owner, a beneficial interest in a Note, expresses its intention that this
Note qualifies under applicable tax law as indebtedness secured by the
Collateral and, unless otherwise required by appropriate taxing authorities,
agrees to treat the Notes as indebtedness secured by the Collateral for the
purpose of federal income taxes, state and local income and franchise taxes,
Michigan single business tax, and any other taxes imposed upon, measured by or
based upon gross or net income.
Prior to the due presentment for registration of transfer of
this Note, the Issuer, the Indenture Trustee and any agent of the Issuer or the
Indenture Trustee may treat the Person in whose name this Note (as of the day of
determination or as of such other date as may be specified in the Indenture) is
registered as the owner hereof for all purposes, whether or not this Note shall
be overdue, and neither the Issuer, the Indenture Trustee nor any such agent
shall be affected by notice to the contrary.
The Indenture permits, with certain exceptions as therein
provided, the amendment thereof and the modification of the rights and
obligations of the Issuer and the rights of the Noteholders under the Indenture
at any time by the Issuer with the consent of the Holders of Notes representing
a majority of the Outstanding Amount of all the Notes. The Indenture also
contains provisions permitting the Holders of Notes representing specified
percentages of the Outstanding Amount of the Notes, on behalf of the Holders of
all the Notes, to waive compliance by the Issuer with certain provisions of the
Indenture and certain past defaults under the Indenture and their consequences.
Any such consent or waiver by the Holder of this Note (or any one of more
Predecessor Notes) shall be conclusive and binding upon such Holder and upon all
future Holders of this Note and of any Note issued upon the registration of
transfer hereof or in exchange hereof or in lieu hereof whether or not notation
of such consent or waiver is made upon this Note. The Indenture also permits the
Indenture Trustee to amend or waive certain terms and conditions set forth in
the Indenture without the consent of the Noteholders.
The term "ISSUER" as used in this Note includes any successor
to the Issuer under the Indenture.
The Issuer is permitted by the Indenture, under certain
circumstances, to merge or consolidate, subject to the rights of the Indenture
Trustee and the Holders of Notes under the Indenture.
5
<PAGE>
The Notes are issuable only in registered form in
denominations as provided in the Indenture, subject to certain limitations
therein set forth.
This Note and the Indenture shall be construed in accordance
with the laws of the State of New York, without reference to its conflict of law
provisions, and the obligations, rights and remedies of the parties hereunder
and thereunder shall be determined in accordance with such laws.
No reference herein to the Indenture and no provision of this
Note or of the Indenture shall alter or impair the obligation of the Issuer,
which is absolute and unconditional, to pay the principal of and interest on
this Note at the times, place and rate, and in the coin or currency herein
prescribed.
Anything herein to the contrary notwithstanding, except as
expressly provided in the Basic Documents, neither the Seller, the Servicer, the
Indenture Trustee nor the Owner Trustee in their respective individual
capacities, any owner of a beneficial interest in the Issuer, nor any of their
respective partners, beneficiaries, agents, officers, directors, employees or
successors or assigns, shall be personally liable for, nor shall recourse be had
to any of them for, the payment of principal of or interest on, or performance
of, or omission to perform, any of the covenants, obligations or
indemnifications contained in this Note or the Indenture, it being expressly
understood that said covenants, obligations and indemnifications have been made
by the Owner Trustee solely as the Owner Trustee in the assets of the Issuer.
The Holder of this Note by the acceptance hereof agrees that, except as
expressly provided in the Basic Documents, in the case of an Event of Default
under the Indenture, the Holder shall have no claim against any of the foregoing
for any deficiency, loss or claim therefrom; PROVIDED, HOWEVER, that nothing
contained herein shall be taken to prevent recourse to, and enforcement against,
the assets of the Issuer for any and all liabilities, obligations and
undertakings contained in the Indenture or in this Note.
6
<PAGE>
ASSIGNMENT
Social Security or taxpayer I.D. or other identifying number of assignee
- ---------------------------------
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto
- -----------------------------------------------
- ------------------------------------------------------------------
(name and address of assignee)
the within Note and all rights thereunder, and hereby irrevocably constitutes
and appoints ____________________________________, as attorney, to transfer said
Note on the books kept for registration thereof, with full power of substitution
in the premises.
Dated:__________________ __________________________________1
Signature Guaranteed:
- ------------------------- ----------------------------------
- --------
1 NOTE: The signature to this assignment must correspond with the name of the
registered owner as it appears on the face of the within Note in every
particular, without alteration, enlargement or any change whatsoever.
7
<PAGE>
EXHIBIT C-2
FORM OF VARIABLE PAY TERM NOTES
REGISTERED $____________
No. R-
SEE REVERSE FOR CERTAIN DEFINITIONS
CUSIP NO. N/A
THE SECURITIES REPRESENTED BY THIS NOTE WERE
ORIGINALLY ISSUED ON APRIL 19, 2000, HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), OR APPLICABLE STATE
SECURITIES LAWS AND MAY NOT BE SOLD OR TRANSFERRED IN THE ABSENCE OF AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE ACT OR APPLICABLE STATE
SECURITIES LAWS OR AN EXEMPTION FROM REGISTRATION THEREUNDER.
THIS NOTE (AND INTERESTS THEREIN) ARE ALSO SUBJECT TO
THE RESTRICTIONS SET FORTH IN THE INDENTURE REFERENCED BELOW.
THE PRINCIPAL OF THIS NOTE IS PAYABLE AS SET FORTH
HEREIN. ACCORDINGLY, THE OUTSTANDING PRINCIPAL AMOUNT OF THIS NOTE AT
ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ON THE FACE HEREOF.
CAPITAL AUTO RECEIVABLES ASSET TRUST 2000-1
FLOATING RATE VARIABLE PAY ASSET BACKED TERM NOTES, CLASS ___
CAPITAL AUTO RECEIVABLES ASSET TRUST 2000-1, a business trust
organized and existing under the laws of the State of Delaware (herein referred
to as the "ISSUER"), for value received, hereby promises to pay to
_______________, or registered assigns, the principal sum of _______________
DOLLARS ($_________) payable in accordance with the Indenture (as defined on the
reverse side of this Note), on each Distribution Date in an amount equal to the
result obtained by multiplying (i) a fraction, the numerator of which is the
initial principal amount hereof
1
<PAGE>
and the denominator of which is aggregate principal amount for such Variable Pay
Term Notes, Class ___, by (ii) the aggregate amount, if any, payable on such
Distribution Date from the Note Distribution Account in respect of principal on
the Variable Pay Term Notes, Class ___, pursuant to SECTIONS 2.7, 3.1 and 8.2(C)
of the Indenture; PROVIDED, HOWEVER, that the entire unpaid principal amount of
this Note shall be due and payable on the earlier of the ___________ (the "FINAL
SCHEDULED DISTRIBUTION DATE") and the Redemption Date, if any, pursuant to
SECTION 10.1 of the Indenture. The Issuer shall pay interest on this Note on
each Distribution Date until the principal of this Note is paid or made
available for payment on the principal amount of this Note outstanding on the
preceding Distribution Date (after giving effect to all payments of principal
made on the preceding Distribution Date (or, for the initial Distribution Date,
the outstanding principal balance on the Closing Date)). Interest on this Note
will accrue from and including the Closing Date, and will be payable on each
Distribution Date in an amount equal to the Noteholders' Interest Distributable
Amount for such Distribution Date. Interest will be computed on the basis of the
actual number of days elapsed from and including the prior Distribution Date
(or, in the case of the first Distribution Date, from and including the Closing
Date) and a 360-day year. Such principal of and interest on this Note shall be
paid in the manner specified on the reverse hereof. All interest payments on
each class of Notes on any Distribution Date shall be made pro rata to the
Noteholders of such class entitled thereto.
The principal of and interest on this Note are payable in such
coin or currency of the United States of America which, at the time of payment,
is legal tender for payment of public and private debts. All payments made by
the Issuer with respect to this Note shall be applied first to interest due and
payable on this Note as provided above and then to the unpaid principal of this
Note.
Reference is made to the further provisions of this Note set
forth on the reverse hereof, which shall have the same effect as though fully
set forth on the face of this Note.
Unless the certificate of authentication hereon has been
executed by the Indenture Trustee whose name appears below by manual signature,
this Note shall not be entitled to any benefit under the Indenture referred to
on the reverse hereof or be valid or obligatory for any purpose.
2
<PAGE>
IN WITNESS WHEREOF, the Issuer has caused this instrument to
be signed, manually or in facsimile, by its Authorized Officer.
Date:
CAPITAL AUTO RECEIVABLES ASSET
TRUST 2000-1,
By: BANKERS TRUST (DELAWARE),
not in its individual capacity but solely as
Owner Trustee under the Trust Agreement
By: /S/ RAYMOND DELLICOLLI
----------------------------------
Name: Raymond DelliColli
Title: Attorney In Fact
INDENTURE TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Notes designated above and referred to in
the within-mentioned Indenture.
BANK ONE, NATIONAL ASSOCIATION, not in its
individual capacity but solely as Indenture Trustee
By: /S/ STEVEN M. WAGNER
--------------------------------
Name: Steven M. Wagner
Title: First Vice President
3
<PAGE>
REVERSE OF NOTE
This Note is one of a duly authorized issue of Notes of the
Issuer, designated as its Floating Rate Variable Pay Asset Backed Term Notes,
Class ___ (herein called the "CLASS ___ VARIABLE PAY TERM NOTES"), all issued
under an Indenture, dated as of April 19, 2000 (such Indenture, as supplemented
or amended, is herein called the "INDENTURE"), between the Issuer and Bank One,
National Association, as trustee (the "INDENTURE TRUSTEE", which term includes
any successor trustee under the Indenture), to which Indenture and all
indentures supplemental thereto reference is hereby made for a statement of the
respective rights and obligations thereunder of the Issuer, the Indenture
Trustee and the Noteholders. The Class ___ Variable Pay Term Notes are one of
multiple duly authorized classes of Notes of the Issuer issued pursuant to the
Indenture (collectively, as to all Notes of all such classes, the "NOTES"). The
Notes are governed by and subject to all terms of the Indenture (which terms are
incorporated herein and made a part hereof), to which Indenture the Holder of
this Note by virtue of acceptance hereof assents and by which such Holder is
bound. All capitalized terms used and not otherwise defined in this Note that
are defined in the Indenture, as supplemented or amended, shall have the
meanings assigned to them in or pursuant to the Indenture.
The Class ___ Variable Pay Term Notes and all other Notes
issued pursuant to the Indenture are and will be equally and ratably secured by
the Collateral pledged as security therefor as provided in the Indenture.
Each Noteholder or Note Owner, by acceptance of a Note or, in
the case of a Note Owner, a beneficial interest in a Note, covenants and agrees
that no recourse may be taken, directly or indirectly, with respect to the
obligations of the Issuer, the Owner Trustee or the Indenture Trustee on the
Notes or under the Indenture or any certificate or other writing delivered in
connection therewith, against (i) the Indenture Trustee or the Owner Trustee in
their individual capacities, (ii) any owner of a beneficial interest in the
Issuer or (iii) any partner, owner, beneficiary, agent, officer, director or
employee of the Indenture Trustee or the Owner Trustee in their individual
capacities, any holder of a beneficial interest in the Issuer, the Owner Trustee
or the Indenture Trustee or of any successor or assign of the Indenture Trustee
or the Owner Trustee in their individual capacities, except as any such Person
may have expressly agreed and except that any such partner, owner or beneficiary
shall be fully liable, to the extent provided by applicable law, for any unpaid
consideration for stock, unpaid capital contribution or failure to pay any
instalment or call owing to such entity.
Each Noteholder or Note Owner, by acceptance of a Note or, in
the case of a Note Owner, a beneficial interest in a Note, covenants and agrees
that by accepting the benefits of the Indenture such Noteholder will not, prior
to the date which is one year and one day after the termination of this
Indenture with respect to the Issuer, acquiesce, petition or otherwise invoke or
4
<PAGE>
cause the Seller or the Issuer to invoke the process of any court or government
authority for the purpose of commencing or sustaining a case against the Seller
or the Issuer under any federal or state bankruptcy, insolvency or similar law
or appointing a receiver, liquidator, assignee, trustee, custodian, sequestrator
or other similar official of the Seller or the Issuer or any substantial part of
its property, or ordering the winding up or liquidation of the affairs of the
Seller or the Issuer.
Each Noteholder, by acceptance of a Note or, in the case of a
Note Owner, a beneficial interest in a Note, expresses its intention that this
Note qualifies under applicable tax law as indebtedness secured by the
Collateral and, unless otherwise required by appropriate taxing authorities,
agrees to treat the Notes as indebtedness secured by the Collateral for the
purpose of federal income taxes, state and local income and franchise taxes,
Michigan single business tax, and any other taxes imposed upon, measured by or
based upon gross or net income.
Prior to the due presentment for registration of transfer of
this Note, the Issuer, the Indenture Trustee and any agent of the Issuer or the
Indenture Trustee may treat the Person in whose name this Note (as of the day of
determination or as of such other date as may be specified in the Indenture) is
registered as the owner hereof for all purposes, whether or not this Note shall
be overdue, and neither the Issuer, the Indenture Trustee nor any such agent
shall be affected by notice to the contrary.
The Indenture permits, with certain exceptions as therein
provided, the amendment thereof and the modification of the rights and
obligations of the Issuer and the rights of the Noteholders under the Indenture
at any time by the Issuer with the consent of the Holders of Notes representing
a majority of the Outstanding Amount of all the Notes. The Indenture also
contains provisions permitting the Holders of Notes representing specified
percentages of the Outstanding Amount of the Notes, on behalf of the Holders of
all the Notes, to waive compliance by the Issuer with certain provisions of the
Indenture and certain past defaults under the Indenture and their consequences.
Any such consent or waiver by the Holder of this Note (or any one of more
Predecessor Notes) shall be conclusive and binding upon such Holder and upon all
future Holders of this Note and of any Note issued upon the registration of
transfer hereof or in exchange hereof or in lieu hereof whether or not notation
of such consent or waiver is made upon this Note. The Indenture also permits the
Indenture Trustee to amend or waive certain terms and conditions set forth in
the Indenture without the consent of the Noteholders.
The term "ISSUER" as used in this Note includes any successor
to the Issuer under the Indenture.
The Issuer is permitted by the Indenture, under certain
circumstances, to merge or consolidate, subject to the rights of the Indenture
Trustee and the Holders of Notes under the Indenture.
5
<PAGE>
The Notes are issuable only in registered form in
denominations as provided in the Indenture, subject to certain limitations
therein set forth.
This Note and the Indenture shall be construed in accordance
with the laws of the State of New York, without reference to its conflict of law
provisions, and the obligations, rights and remedies of the parties hereunder
and thereunder shall be determined in accordance with such laws.
No reference herein to the Indenture and no provision of this
Note or of the Indenture shall alter or impair the obligation of the Issuer,
which is absolute and unconditional, to pay the principal of and interest on
this Note at the times, place and rate, and in the coin or currency herein
prescribed.
Anything herein to the contrary notwithstanding, except as
expressly provided in the Basic Documents, neither the Seller, the Servicer, the
Indenture Trustee nor the Owner Trustee in their respective individual
capacities, any owner of a beneficial interest in the Issuer, nor any of their
respective partners, beneficiaries, agents, officers, directors, employees or
successors or assigns, shall be personally liable for, nor shall recourse be had
to any of them for, the payment of principal of or interest on, or performance
of, or omission to perform, any of the covenants, obligations or
indemnifications contained in this Note or the Indenture, it being expressly
understood that said covenants, obligations and indemnifications have been made
by the Owner Trustee solely as the Owner Trustee in the assets of the Issuer.
The Holder of this Note by the acceptance hereof agrees that, except as
expressly provided in the Basic Documents, in the case of an Event of Default
under the Indenture, the Holder shall have no claim against any of the foregoing
for any deficiency, loss or claim therefrom; PROVIDED, HOWEVER, that nothing
contained herein shall be taken to prevent recourse to, and enforcement against,
the assets of the Issuer for any and all liabilities, obligations and
undertakings contained in the Indenture or in this Note.
6
<PAGE>
ASSIGNMENT
Social Security or taxpayer I.D. or other identifying number of assignee
- ---------------------------------
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
- -----------------------------------------------
- ------------------------------------------------------------------
(name and address of assignee)
the within Note and all rights thereunder, and hereby irrevocably constitutes
and appoints ____________________________________, as attorney, to transfer said
Note on the books kept for registration thereof, with full power of substitution
in the premises.
Dated:__________________ __________________________________2
Signature Guaranteed:
- ------------------------- ----------------------------------
- --------
2 NOTE: The signature to this assignment must correspond with the name of the
registered owner as it appears on the face of the within Note in every
particular, without alteration, enlargement or any change whatsoever.
7
<PAGE>
EXHIBIT C-3
FORM OF CLASS A-1 NOTE
REGISTERED $____________
No. R-
SEE REVERSE FOR CERTAIN DEFINITIONS
CUSIP NO. N/A
THE SECURITIES REPRESENTED BY THIS NOTE WERE
ORIGINALLY ISSUED ON APRIL 19, 2000, HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), OR APPLICABLE STATE
SECURITIES LAWS AND MAY NOT BE SOLD OR TRANSFERRED IN THE ABSENCE OF AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE ACT OR APPLICABLE STATE
SECURITIES LAWS OR AN EXEMPTION FROM REGISTRATION THEREUNDER.
THIS NOTE (AND INTERESTS THEREIN) ARE ALSO SUBJECT TO
THE RESTRICTIONS SET FORTH IN THE INDENTURE REFERENCED BELOW.
THE PRINCIPAL OF THIS NOTE IS PAYABLE AS SET FORTH
HEREIN. ACCORDINGLY, THE OUTSTANDING PRINCIPAL AMOUNT OF THIS NOTE AT
ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ON THE FACE HEREOF.
CAPITAL AUTO RECEIVABLES ASSET TRUST 2000-1
CLASS A-1 ____%ASSET BACKED TERM NOTES
CAPITAL AUTO RECEIVABLES ASSET TRUST 2000-1, a business trust
organized and existing under the laws of the State of Delaware (herein referred
to as the "ISSUER"), for value received, hereby promises to pay to
_______________, or registered assigns, the principal sum of _______________
DOLLARS ($_________) payable in accordance with the Indenture (as defined on the
reverse side of this Note), on each Distribution Date in an amount equal to the
result obtained by multiplying (i) a fraction, the numerator of which is the
initial principal amount hereof and the denominator of which is aggregate
principal amount for such Class A-1 Note, by (ii) the aggregate amount, if any,
payable on such Distribution Date from the Note Distribution Account in respect
of principal on the Class A-1 Note pursuant to SECTIONS 2.7, 3.1 AND 8.2(C) of
the Indenture; PROVIDED, HOWEVER, that the entire unpaid principal amount of
this Note shall be due and payable on
1
<PAGE>
the earlier of the _______________ (the "FINAL SCHEDULED DISTRIBUTION DATE") and
the Redemption Date, if any, pursuant to Section 10-1 of the Indenture. The
Issuer shall pay interest on this Note at the rate per annum shown above on each
Distribution Date until the principal of this Note is paid or made available for
payment on the principal amount of this Note outstanding on the preceding
Distribution Date (after giving effect to all payments of principal made on the
preceding Distribution Date (or, for the initial Distribution Date, the
outstanding principal balance on the Closing Date)). Interest on this Note will
accrue from and including the Closing Date, and will be payable on each
Distribution Date in an amount equal to the Noteholders' Interest Distributable
Amount for such Distribution Date. Interest will be computed on the basis of the
actual number of days elapsed from and including the prior Distribution Date
(or, in the case of the first Distribution Date, from and including the Closing
Date) and a 360-day year. Such principal of and interest on this Note shall be
paid in the manner specified on the reverse hereof. All interest payments on
each class of Notes on any Distribution Date shall be made pro rata to the
Noteholders of such class entitled thereto.
The principal of and interest on this Note are payable in such
coin or currency of the United States of America which, at the time of payment,
is legal tender for payment of public and private debts. All payments made by
the Issuer with respect to this Note shall be applied first to interest due and
payable on this Note as provided above and then to the unpaid principal of this
Note.
Reference is made to the further provisions of this Note set
forth on the reverse hereof, which shall have the same effect as though fully
set forth on the face of this Note.
Unless the certificate of authentication hereon has been
executed by the Indenture Trustee whose name appears below by manual signature,
this Note shall not be entitled to any benefit under the Indenture referred to
on the reverse hereof or be valid or obligatory for any purpose.
2
<PAGE>
IN WITNESS WHEREOF, the Issuer has caused this instrument to
be signed, manually or in facsimile, by its Authorized Officer.
Date:
CAPITAL AUTO RECEIVABLES ASSET
TRUST 2000-1,
By: BANKERS TRUST (DELAWARE),
not in its individual capacity but solely as
Owner Trustee under the Trust Agreement
By: /S/ RAYMOND DELLICOILLI
--------------------------------------
Name: Raymond DelliColli
Title: Attorney In Fact
INDENTURE TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Notes designated above and referred to in
the within-mentioned Indenture.
BANK ONE, NATIONAL ASSOCIATION, not in its
individual capacity but solely as Indenture Trustee
By: /S/ STEVEN M. WAGNER
-------------------------------
Name: Steven M. Wagner
Title: First Vice President
3
<PAGE>
REVERSE OF NOTE
This Note is one of a duly authorized issue of Notes of the
Issuer, designated as its Class A-1 Asset Backed Notes (herein called the "CLASS
A-1 NOTES"), all issued under an Indenture, dated as of April 19, 2000 (such
Indenture, as supplemented or amended, is herein called the "INDENTURE"),
between the Issuer and Bank One, National Association, as trustee (the
"INDENTURE TRUSTEE", which term includes any successor trustee under the
Indenture), to which Indenture and all indentures supplemental thereto reference
is hereby made for a statement of the respective rights and obligations
thereunder of the Issuer, the Indenture Trustee and the Noteholders. The Class
A-1 Notes are one of multiple duly authorized classes of Notes of the Issuer
issued pursuant to the Indenture (collectively, as to all Notes of all such
classes, the "NOTES"). The Notes are governed by and subject to all terms of the
Indenture (which terms are incorporated herein and made a part hereof), to which
Indenture the Holder of this Note by virtue of acceptance hereof assents and by
which such Holder is bound. All capitalized terms used and not otherwise defined
in this Note that are defined in the Indenture, as supplemented or amended,
shall have the meanings assigned to them in or pursuant to the Indenture.
The Class A-1 Notes and all other Notes issued pursuant to the
Indenture are and will be equally and ratably secured by the Collateral pledged
as security therefor as provided in the Indenture.
Each Noteholder or Note Owner, by acceptance of a Note or, in
the case of a Note Owner, a beneficial interest in a Note, covenants and agrees
that no recourse may be taken, directly or indirectly, with respect to the
obligations of the Issuer, the Owner Trustee or the Indenture Trustee on the
Notes or under the Indenture or any certificate or other writing delivered in
connection therewith, against (i) the Indenture Trustee or the Owner Trustee in
their individual capacities, (ii) any owner of a beneficial interest in the
Issuer or (iii) any partner, owner, beneficiary, agent, officer, director or
employee of the Indenture Trustee or the Owner Trustee in their individual
capacities, any holder of a beneficial interest in the Issuer, the Owner Trustee
or the Indenture Trustee or of any successor or assign of the Indenture Trustee
or the Owner Trustee in their individual capacities, except as any such Person
may have expressly agreed and except that any such partner, owner or beneficiary
shall be fully liable, to the extent provided by applicable law, for any unpaid
consideration for stock, unpaid capital contribution or failure to pay any
instalment or call owing to such entity.
Each Noteholder or Note Owner, by acceptance of a Note or, in
the case of a Note Owner, a beneficial interest in a Note, covenants and agrees
that by accepting the benefits of the Indenture such Noteholder will not, prior
to the date which is one year and one day after the termination of this
Indenture with respect to the Issuer, acquiesce, petition or otherwise invoke or
cause the Seller or the Issuer to invoke the process of any court or government
authority for the
4
<PAGE>
purpose of commencing or sustaining a case against the Seller or the Issuer
under any federal or state bankruptcy, insolvency or similar law or appointing a
receiver, liquidator, assignee, trustee, custodian, sequestrator or other
similar official of the Seller or the Issuer or any substantial part of its
property, or ordering the winding up or liquidation of the affairs of the Seller
or the Issuer.
Each Noteholder, by acceptance of a Note or, in the case of a
Note Owner, a beneficial interest in a Note, expresses its intention that this
Note qualifies under applicable tax law as indebtedness secured by the
Collateral and, unless otherwise required by appropriate taxing authorities,
agrees to treat the Notes as indebtedness secured by the Collateral for the
purpose of federal income taxes, state and local income and franchise taxes,
Michigan single business tax, and any other taxes imposed upon, measured by or
based upon gross or net income.
Prior to the due presentment for registration of transfer of
this Note, the Issuer, the Indenture Trustee and any agent of the Issuer or the
Indenture Trustee may treat the Person in whose name this Note (as of the day of
determination or as of such other date as may be specified in the Indenture) is
registered as the owner hereof for all purposes, whether or not this Note shall
be overdue, and neither the Issuer, the Indenture Trustee nor any such agent
shall be affected by notice to the contrary.
The Indenture permits, with certain exceptions as therein
provided, the amendment thereof and the modification of the rights and
obligations of the Issuer and the rights of the Noteholders under the Indenture
at any time by the Issuer with the consent of the Holders of Notes representing
a majority of the Outstanding Amount of all the Notes. The Indenture also
contains provisions permitting the Holders of Notes representing specified
percentages of the Outstanding Amount of the Notes, on behalf of the Holders of
all the Notes, to waive compliance by the Issuer with certain provisions of the
Indenture and certain past defaults under the Indenture and their consequences.
Any such consent or waiver by the Holder of this Note (or any one of more
Predecessor Notes) shall be conclusive and binding upon such Holder and upon all
future Holders of this Note and of any Note issued upon the registration of
transfer hereof or in exchange hereof or in lieu hereof whether or not notation
of such consent or waiver is made upon this Note. The Indenture also permits the
Indenture Trustee to amend or waive certain terms and conditions set forth in
the Indenture without the consent of the Noteholders.
The term "ISSUER" as used in this Note includes any successor
to the Issuer under the Indenture.
The Issuer is permitted by the Indenture, under certain
circumstances, to merge or consolidate, subject to the rights of the Indenture
Trustee and the Holders of Notes under the Indenture.
5
<PAGE>
The Notes are issuable only in registered form in
denominations as provided in the Indenture, subject to certain limitations
therein set forth.
This Note and the Indenture shall be construed in accordance
with the laws of the State of New York, without reference to its conflict of law
provisions, and the obligations, rights and remedies of the parties hereunder
and thereunder shall be determined in accordance with such laws.
No reference herein to the Indenture and no provision of this
Note or of the Indenture shall alter or impair the obligation of the Issuer,
which is absolute and unconditional, to pay the principal of and interest on
this Note at the times, place and rate, and in the coin or currency herein
prescribed.
Anything herein to the contrary notwithstanding, except as
expressly provided in the Basic Documents, neither the Seller, the Servicer, the
Indenture Trustee nor the Owner Trustee in their respective individual
capacities, any owner of a beneficial interest in the Issuer, nor any of their
respective partners, beneficiaries, agents, officers, directors, employees or
successors or assigns, shall be personally liable for, nor shall recourse be had
to any of them for, the payment of principal of or interest on, or performance
of, or omission to perform, any of the covenants, obligations or
indemnifications contained in this Note or the Indenture, it being expressly
understood that said covenants, obligations and indemnifications have been made
by the Owner Trustee solely as the Owner Trustee in the assets of the Issuer.
The Holder of this Note by the acceptance hereof agrees that, except as
expressly provided in the Basic Documents, in the case of an Event of Default
under the Indenture, the Holder shall have no claim against any of the foregoing
for any deficiency, loss or claim therefrom; PROVIDED, HOWEVER, that nothing
contained herein shall be taken to prevent recourse to, and enforcement against,
the assets of the Issuer for any and all liabilities, obligations and
undertakings contained in the Indenture or in this Note.
6
<PAGE>
ASSIGNMENT
Social Security or taxpayer I.D. or other identifying number of assignee
- ---------------------------------
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
- -----------------------------------------------
- ------------------------------------------------------------------
(name and address of assignee)
the within Note and all rights thereunder, and hereby irrevocably constitutes
and appoints ____________________________________, as attorney, to transfer said
Note on the books kept for registration thereof, with full power of substitution
in the premises.
Dated:__________________ __________________________________3
Signature Guaranteed:
- ------------------------- ----------------------------------
- --------
3 NOTE: The signature to this assignment must correspond with the name of the
registered owner as it appears on the face of the within Note in every
particular, without alteration, enlargement or any change whatsoever.
7
<PAGE>
EXHIBIT D
RULE 144A CERTIFICATE
Capital Auto Receivables, Inc.
Corporation Trust Center
1209 Orange Street
Wilmington, DE 19801
Bank One, National Association,
as Indenture Trustee
1 BANK ONE PLAZA, MAIL CODE 1-0126
CHICAGO, IL 60670 - 0126
Ladies and Gentlemen:
In connection with the purchase of a Class A-1 Asset Backed
Note ( the "CLASS A-1 NOTE") or a Floating Rate Variable Pay Asset Backed Term
Note, Class ___ (the "VARIABLE PAY TERM NOTE,"and together with the Class A-1
Notes, the "PRIVATE NOTES") of the Capital Auto Receivables Asset Trust 2000-1,
the undersigned buyer ("BUYER") hereby acknowledges, represents and agrees that:
(a) Buyer is a "qualified institutional buyer" as defined
under Rule 144A under the Securities Act of 1933, as amended (the "SECURITIES
ACT"), acting for its own account or for the accounts of other "qualified
institutional buyers" as defined under Rule 144A under the Securities Act. Buyer
is familiar with Rule 144A under the Securities Act and Buyer is aware that the
seller of the applicable Private Note, as applicable, to the Buyer and other
parties intend to rely on the statements made herein and the exemption from the
registration requirements of the Securities Act provided by Rule 144A.
(b) Buyer is purchasing the applicable Private Note for its
own account (or the accounts of other "qualified institutional buyers"), not
with a view to, or for offer or sale in connection with, any distribution
thereof, subject to the disposition of Buyer's property (or property held in the
accounts of other "qualified institutional buyers") being at all times within
Buyer's control and subject to Buyer's ability to resell such Private Note
pursuant to Rule 144A under the Securities Act. Buyer agrees to offer, sell or
otherwise transfer the Private Note only in conformity with the restrictions on
transfer set forth in the Indenture dated as of April 19, 2000 pursuant to which
the Private Note were issued and the legend set forth on the definitive physical
certificate evidencing the Private Note.
8
<PAGE>
(c) Buyer acknowledges that you and others will rely upon our
confirmations, acknowledgments and agreements set forth herein, and Buyer agrees
to notify you promptly in writing if any of the information herein ceases to be
accurate and complete.
---------------------------------------------
Print Name of Buyer
By: _________________________________________
Name:
Title:
Date: ________________________________________
9
EXHIBIT 4.2
TRUST AGREEMENT
BETWEEN
CAPITAL AUTO RECEIVABLES, INC.
SELLER
AND
BANKERS TRUST (DELAWARE)
OWNER TRUSTEE
DATED AS OF APRIL 19, 2000
<PAGE>
<TABLE>
<CAPTION>
TABLE OF CONTENTS
Page
ARTICLE I
<S> <C> <C>
DEFINITIONS AND INCORPORATION BY REFERENCE...............................................................1
Section 1.1 Definitions...................................................................1
ARTICLE II
ORGANIZATION.............................................................................................1
Section 2.1 Name..........................................................................1
Section 2.2 Office........................................................................1
Section 2.3 Purposes and Powers...........................................................1
Section 2.4 Appointment of Owner Trustee..................................................2
Section 2.5 Initial Capital Contribution of Owner Trust Estate............................2
Section 2.6 Declaration of Trust..........................................................2
Section 2.7 Liability of the Certificateholders...........................................3
Section 2.8 Title to Trust Property.......................................................3
Section 2.9 Situs of Trust................................................................3
Section 2.10 Representations and Warranties of the Seller..................................3
Section 2.11 Tax Treatment.................................................................4
ARTICLE III
THE CERTIFICATES.........................................................................................4
Section 3.1 Initial Certificate Ownership.................................................4
Section 3.2 Form of the Certificates......................................................4
Section 3.3 Execution, Authentication and Delivery........................................5
Section 3.4 Registration; Registration of Transfer and
Exchange of Certificates......................................................5
Section 3.5 Mutilated, Destroyed, Lost or Stolen Certificates.............................6
Section 3.6 Persons Deemed Certificateholders.............................................7
Section 3.7 Access to List of Certificateholders' Names and Addresses.....................7
Section 3.8 Maintenance of Corporate Trust Office.........................................7
Section 3.9 Appointment of Paying Agent...................................................7
Section 3.10 [Reserved]....................................................................8
Section 3.11 Book-Entry Certificates.......................................................8
Section 3.12 Notices to Clearing Agency....................................................9
Section 3.13 Definitive Certificates.......................................................9
Section 3.14 Seller as Certificateholder..................................................10
</TABLE>
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<TABLE>
<CAPTION>
ARTICLE IV
<S> <C>
ACTIONS BY OWNER TRUSTEE................................................................................10
Section 4.1 Prior Notice to Certificateholders with Respect to
Certain Matters..............................................................10
Section 4.2 Action by Certificateholders with Respect to
Certain Matters..............................................................10
Section 4.3 Action by Certificateholders with Respect to Bankruptcy......................11
Section 4.4 Restrictions on Certificateholders' Power....................................11
Section 4.5 Majority Control.............................................................11
ARTICLE V
APPLICATION OF TRUST FUNDS; CERTAIN DUTIES..............................................................11
Section 5.1 Establishment of Certificate Distribution Account............................11
Section 5.2 Application of Trust Funds...................................................12
Section 5.3 Method of Payment............................................................13
Section 5.4 Accounting and Reports to the Certificateholders,
the Internal Revenue Service and Others......................................13
Section 5.5 Signature on Returns; Other Tax Matters......................................13
ARTICLE VI
THE OWNER TRUSTEE.......................................................................................14
Section 6.1 Duties of Owner Trustee......................................................14
Section 6.2 Rights of Owner Trustee......................................................15
Section 6.3 Acceptance of Trusts and Duties..............................................15
Section 6.4 Action upon Instruction by Certificateholders................................17
Section 6.5 Furnishing of Documents......................................................17
Section 6.6 Representations and Warranties of Owner Trustee..............................17
Section 6.7 Reliance; Advice of Counsel..................................................18
Section 6.8 Owner Trustee May Own Certificates and Notes.................................19
Section 6.9 Compensation and Indemnity...................................................19
Section 6.10 Replacement of Owner Trustee.................................................19
Section 6.11 Merger or Consolidation of Owner Trustee.....................................20
Section 6.12 Appointment of Co-Trustee or Separate Trustee................................20
Section 6.13 Eligibility Requirements for Owner Trustee...................................21
ARTICLE VII
TERMINATION OF TRUST AGREEMENT..........................................................................22
Section 7.1 Termination of Trust Agreement...............................................22
</TABLE>
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<PAGE>
<TABLE>
<CAPTION>
ARTICLE VIII
<S> <C>
AMENDMENTS..............................................................................................23
Section 8.1 Amendments Without Consent of Certificateholders or
Noteholders..................................................................23
Section 8.2 Amendments With Consent of Certificateholders and
Noteholders..................................................................23
Section 8.3 Form of Amendments...........................................................24
ARTICLE IX
MISCELLANEOUS...........................................................................................25
Section 9.1 No Legal Title to Owner Trust Estate.........................................25
Section 9.2 Limitations on Rights of Others..............................................25
Section 9.3 Derivative Actions...........................................................25
Section 9.4 Notices......................................................................25
Section 9.5 Severability.................................................................25
Section 9.6 Counterparts.................................................................25
Section 9.7 Successors and Assigns.......................................................26
Section 9.8 No Petition..................................................................26
Section 9.9 No Recourse..................................................................26
Section 9.10 Headings.....................................................................26
Section 9.11 Governing Law................................................................26
Section 9.12 Certificate Transfer Restrictions............................................26
Section 9.13 Indemnification by and Reimbursement of the Servicer.........................27
EXHIBITS
Exhibit A Form of Certificate
Exhibit B Form of Certificate of Trust
Exhibit C Form of Certificate Depositary Agreement
Exhibit D Undertaking Letter
-iii-
</TABLE>
<PAGE>
TRUST AGREEMENT, dated as of April 19, 2000, between CAPITAL
AUTO RECEIVABLES, INC., a Delaware corporation, as Seller, and BANKERS TRUST
(DELAWARE), a Delaware banking corporation, as Owner Trustee.
The Seller and the Owner Trustee hereby agree as follows:
ARTICLE I
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.1 DEFINITIONS. Certain capitalized terms used in this
Agreement shall have the respective meanings assigned to them in PART I of
APPENDIX A to the Trust Sale and Servicing Agreement of even date herewith,
among the Seller, the Servicer and the Trust (the "TRUST SALE AND SERVICING
AGREEMENT"). All references herein to "THE AGREEMENT" or "THIS AGREEMENT" are to
this Trust Agreement, and all references herein to Articles, Sections and
subsections are to Articles, Sections and subsections of this Agreement unless
otherwise specified. The rules of construction set forth in PART II of such
APPENDIX shall be applicable to this Agreement.
ARTICLE II
ORGANIZATION
SECTION 2.1 NAME. The Trust created hereby shall be known as "Capital
Auto Receivables Asset Trust 2000-1" in which name the Owner Trustee may conduct
the business of the Trust, make and execute contracts and other instruments on
behalf of the Trust and sue and be sued on behalf of the Trust.
SECTION 2.2 OFFICE. The office of the Trust shall be in care of the
Owner Trustee at the Corporate Trust Office or at such other address in Delaware
as the Owner Trustee may designate by written notice to the Certificateholders
and the Seller.
SECTION 2.3 PURPOSES AND POWERS. The purpose of the Trust is,
and the Trust shall have the power and authority, to engage in the following
activities:
(i) to acquire, manage and hold the Receivables;
(ii) to issue the Notes pursuant to the Indenture and the
Certificates pursuant to this Agreement, and to sell, transfer or
exchange the Notes and the Certificates;
(iii) to acquire certain property and assets from the Seller
pursuant to the Trust Sale and Servicing Agreement, to make payments to
the Noteholders and the Certificateholders, to make deposits into and
withdrawals from the Reserve Account and to pay the organizational,
start-up and transactional expenses of the Trust;
-1-
<PAGE>
(iv) to assign, grant, transfer, pledge, mortgage and convey
the Trust Estate pursuant to the terms of the Indenture and to hold,
manage and distribute to the Certificateholders pursuant to the terms
of this Agreement and the Trust Sale and Servicing Agreement any
portion of the Trust Estate released from the lien of, and remitted to
the Trust pursuant to, the Indenture;
(v) to enter into and perform its obligations and exercise
its rights under the Basic Documents to which it is to be a party;
(vi) to engage in those activities, including entering into
agreements, that are necessary, suitable or convenient to accomplish
the foregoing or are incidental thereto or connected therewith,
including entering into interest rate swaps and caps and other
derivative instruments; and
(vii) subject to compliance with the Basic Documents, to
engage in such other activities as may be required in connection with
conservation of the Owner Trust Estate and the making of distributions
to the Certificateholders and the Noteholders.
The Trust shall not engage in any activity other than in connection with the
foregoing or other than as required or authorized by the terms of this Agreement
or the Basic Documents.
SECTION 2.4 APPOINTMENT OF OWNER TRUSTEE. The Seller hereby appoints
the Owner Trustee as trustee of the Trust effective as of the date hereof, to
have all the rights, powers and duties set forth herein.
SECTION 2.5 INITIAL CAPITAL CONTRIBUTION OF OWNER TRUST ESTATE. The
Seller hereby sells, assigns, transfers, conveys and sets over to the Owner
Trustee, as of the date hereof, the sum of $1. The Owner Trustee hereby
acknowledges receipt in trust from the Seller, as of the date hereof, of the
foregoing contribution, which shall constitute the initial Owner Trust Estate
and shall be deposited in the Certificate Distribution Account. The Seller shall
pay organizational expenses of the Trust as they may arise or shall, upon the
request of the Owner Trustee, promptly reimburse the Owner Trustee for any such
expenses paid by the Owner Trustee.
SECTION 2.6 DECLARATION OF TRUST. The Owner Trustee hereby declares
that it shall hold the Owner Trust Estate in trust upon and subject to the
conditions set forth herein for the use and benefit of the Certificate Owners,
subject to the obligations of the Trust under the Basic Documents. It is the
intention of the parties hereto that the Trust constitute a business trust under
the Business Trust Statute, that this Agreement constitute the governing
instrument of such business trust and that the Certificates represent the
beneficial interests therein. The rights of the Certificateholders shall be
determined as set forth herein and in the Business Trust Statute and the
relationship between the parties hereto created by this Agreement shall not
constitute indebtedness for any purpose. Effective as of the date hereof, the
Owner Trustee shall have all rights, powers and duties set forth herein and in
the Business Trust Statute with respect to accomplishing the purposes of the
Trust.
-2-
<PAGE>
SECTION 2.7 LIABILITY OF THE CERTIFICATEHOLDERS. Certificateholders
and holders of beneficial interests therein shall be entitled to the same
limitation of personal liability extended to stockholders of private
corporations for profit organized under the Delaware General Corporation Law.
SECTION 2.8 TITLE TO TRUST PROPERTY. Legal title to all the Owner
Trust Estate shall be vested at all times in the Trust as a separate legal
entity except where applicable law in any jurisdiction requires title to any
part of the Owner Trust Estate to be vested in a trustee or trustees, in
which case title shall be deemed to be vested in the Owner Trustee, a
co-trustee and/or a separate trustee, as the case may be.
SECTION 2.9 SITUS OF TRUST. The Trust shall be located and
administered in the States of Delaware or New York. All bank accounts maintained
by the Owner Trustee on behalf of the Trust shall be located in the State of
Delaware or the State of New York. The Trust shall not have any employees in
any state other than Delaware; PROVIDED, HOWEVER, that nothing herein shall
restrict or prohibit the Owner Trustee from having employees within or without
the State of Delaware. Payments shall be received by the Trust only in
Delaware or New York, and payments will be made by the Trust only from
Delaware or New York. The only office of the Trust shall be the Corporate
Trust Office in Delaware.
SECTION 2.10 REPRESENTATIONS AND WARRANTIES OF THE SELLER. The Seller
hereby represents and warrants to the Owner Trustee that:
(a) The Seller has been duly organized and is validly existing
as a corporation in good standing under the laws of the State of
Delaware, with power and authority to own its properties and to conduct
its business as such properties are presently owned and such business
is presently conducted and had at all relevant times, and now has,
power, authority and legal right to acquire and own the Receivables.
(b) The Seller is duly qualified to do business as a foreign
corporation in good standing, and has obtained all necessary licenses
and approvals in all jurisdictions in which the ownership or lease of
property or the conduct of its business requires such qualifications.
(c) The Seller has the power and authority to execute and
deliver this Agreement and to carry out its terms, the Seller has full
power and authority to sell and assign the property to be sold and
assigned to and deposited with the Issuer as part of the Trust and the
Seller has duly authorized such sale and assignment to the Issuer by
all necessary corporate action; and the execution, delivery and
performance of this Agreement have been duly authorized by the Seller
by all necessary corporate action.
(d) The consummation of the transactions contemplated by this
Agreement and the fulfillment of the terms of this Agreement do not
conflict with, result in any breach of any of the terms and provisions
of or constitute (with or without notice or lapse of time) a default
under, the certificate of incorporation or by-laws of the Seller, or
any indenture, agreement or other instrument to which the Seller is a
party or by which it is bound, or result
-3-
<PAGE>
in the creation or imposition of any Lien upon any of its properties
pursuant to the terms of any such indenture, agreement or other
instrument (other than pursuant to the Basic Documents), or violate any
law or, to the best of the Seller's knowledge, any order, rule or
regulation applicable to the Seller of any court or of any federal or
state regulatory body, administrative agency or other governmental
instrumentality having jurisdiction over the Seller or any of its
properties.
SECTION 2.11 TAX TREATMENT. The Seller and the Owner Trustee, by
entering into this Agreement, and the Certificateholders, by acquiring any
Certificates or interest therein, (i) express their intention that the
Certificates will qualify as equity interests in a grantor trust for federal
income tax purposes or, if the Internal Revenue Service were to contend
successfully that the Trust is not a grantor trust, as a partnership for federal
income tax purposes and (ii) unless otherwise required by the appropriate taxing
authorities, agree to treat the Certificates as equity interests in an entity as
described in CLAUSE (I) of this SECTION 2.11 for the purposes of federal income
taxes, state and local income and franchise taxes, Michigan single business tax,
and any other taxes imposed upon, measured by, or based upon gross or net
income. The parties agree that, unless otherwise required by appropriate tax
authorities, the Trust shall file or cause to be filed annual or other necessary
returns, reports and other forms consistent with such characterization of the
Trust for such tax purposes.
ARTICLE III
THE CERTIFICATES
SECTION 3.1 INITIAL CERTIFICATE OWNERSHIP. Upon the formation of the
Trust by the contribution by the Seller pursuant to SECTION 2.5 and until the
issuance of the Certificates, the Seller shall be the sole Certificateholder.
SECTION 3.2 FORM OF THE CERTIFICATES.
(a) The Certificates shall be substantially in the form set forth in
EXHIBIT A and shall be issued in minimum denominations of $20,000 and integral
multiples of $1,000 in excess thereof; provided, however, that one Certificate
may be issued in a denomination that includes any residual amount. The
Certificates shall represent the entire beneficial interest in the Trust. The
Certificates shall be executed on behalf of the Trust by manual or facsimile
signature of a Responsible Officer of the Owner Trustee. Certificates bearing
the manual or facsimile signatures of individuals who were, at the time when
such signatures shall have been affixed, authorized to sign on behalf of the
Trust, shall be duly issued, fully paid and non-assessable beneficial interests
in the Trust, notwithstanding that such individuals or any of them shall have
ceased to be so authorized prior to the authentication and delivery of such
Certificates or did not hold such offices at the date of authentication and
delivery of such Certificates.
(b) The Definitive Certificates shall be typewritten, printed,
lithographed or engraved or produced by any combination of these methods (with
or without steel engraved borders) all as
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determined by the officers executing such Certificates, as evidenced by their
execution of such Certificates.
(c) The Certificates shall be issued in fully-registered form. The
terms of the Certificates set forth in EXHIBIT A shall form part of this
Agreement.
SECTION 3.3 EXECUTION, AUTHENTICATION AND DELIVERY. Concurrently with
the sale of the Receivables to the Trust pursuant to the Trust Sale and
Servicing Agreement, the Owner Trustee shall cause the Certificates in an
aggregate principal amount equal to the initial Certificate Balance to be
executed on behalf of the Trust, authenticated and delivered to or upon the
written order of the Seller, signed by its chairman of the board, its president
or any vice president, without further corporate action by the Seller, in
authorized denominations. No Certificate shall entitle its holder to any benefit
under this Agreement, or shall be valid for any purpose, unless there shall
appear on such Certificate a certificate of authentication substantially in the
form set forth in EXHIBIT A, executed by the Owner Trustee or Bankers Trust
Company, as the Owner Trustee's authenticating agent, by manual signature. Such
authentication shall constitute conclusive evidence that such Certificate shall
have been duly authenticated and delivered hereunder. All Certificates shall be
dated the date of their authentication.
SECTION 3.4 REGISTRATION; REGISTRATION OF TRANSFER AND EXCHANGE OF
CERTIFICATES.
(a) The Certificate Registrar shall keep or cause to be kept, at the
office or agency maintained pursuant to SECTION 3.8, a Certificate Register in
which, subject to such reasonable regulations as it may prescribe, the Owner
Trustee shall provide for the registration of Certificates and of transfers and
exchanges of Certificates as provided herein; PROVIDED, HOWEVER, that no
Certificate may be subdivided upon transfer or exchange such that the
denomination of any resulting Certificate is less than $20,000. Bankers Trust
Company shall be the initial Certificate Registrar. Upon any resignation of a
Certificate Registrar, the Owner Trustee shall promptly appoint a successor or,
if it elects not to make such an appointment, assume the duties of Certificate
Registrar.
(b) Upon surrender for registration of transfer of any Certificate at
the office or agency maintained pursuant to SECTION 3.8, the Owner Trustee shall
execute on behalf of the Trust, authenticate and deliver (or shall cause Bankers
Trust Company as its authenticating agent to authenticate and deliver), in the
name of the designated transferee or transferees, one or more new Certificates
in authorized denominations of a like aggregate amount dated the date of
authentication by the Owner Trustee or any authenticating agent. Notwithstanding
the foregoing, if the Seller shall have advised the Owner Trustee in writing
that an Undertaking Letter shall be required with respect to any transfer, such
transfer shall not be effective unless the requirements of Section 9.12, with
respect to the delivery of an Undertaking Letter, shall have been complied with.
(c) At the option of a Holder, Certificates may be exchanged for other
Certificates of authorized denominations of a like aggregate principal amount
upon surrender of the Certificates to be exchanged at the Corporate Trust Office
maintained pursuant to SECTION 3.8. Whenever any Certificates are so surrendered
for exchange, the Owner Trustee shall execute on behalf of the Trust,
authenticate and deliver (or shall cause Bankers Trust Company as its
authenticating agent to
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authenticate and deliver) one or more Certificates dated the date of
authentication by the Owner Trustee or any authenticating agent. Such
Certificates shall be delivered to the Holder making the exchange.
(d) Every Certificate presented or surrendered for registration of
transfer or exchange shall be accompanied by a written instrument of transfer in
form satisfactory to the Owner Trustee and the Certificate Registrar duly
executed by the Holder or his attorney duly authorized in writing and such other
documents and instruments as may be required by SECTION 3.4(B). Each Certificate
surrendered for registration of transfer or exchange shall be canceled and
subsequently destroyed or otherwise disposed of by the Owner Trustee or
Certificate Registrar in accordance with its customary practice.
(e) The Owner Trustee or the Certificate Registrar may require payment
of a sum sufficient to cover any tax or governmental charge that may be imposed
and any other expenses of the Owner Trustee in connection with any transfer or
exchange of Certificates.
SECTION 3.5 MUTILATED, DESTROYED, LOST OR STOLEN CERTIFICATES.
(a) If (i) any mutilated Certificate is surrendered to the Certificate
Registrar, or the Certificate Registrar receives evidence to its satisfaction of
the destruction, loss or theft of any Certificate, and (ii) there is delivered
to the Certificate Registrar, the Owner Trustee and the Trust such security or
indemnity as may be required by them to hold each of them harmless, then, in the
absence of notice to the Certificate Registrar or the Owner Trustee that such
Certificate has been acquired by a protected purchaser, the Owner Trustee shall
execute on behalf of the Trust and the Owner Trustee shall authenticate and
deliver (or shall cause Bankers Trust Company as its authenticating agent to
authenticate and deliver), in exchange for or in lieu of any such mutilated,
destroyed, lost or stolen Certificate, a replacement Certificate in authorized
denominations of a like aggregate principal amount; PROVIDED, HOWEVER, that if
any such destroyed, lost or stolen Certificate, but not a mutilated Certificate,
shall have become or within seven days shall be due and payable, then instead of
issuing a replacement Certificate the Owner Trustee may pay such destroyed, lost
or stolen Certificate when so due or payable.
(b) If, after the delivery of a replacement Certificate or payment in
respect of a destroyed, lost or stolen Certificate pursuant to SECTION 3.5(A), a
protected purchaser of the original Certificate in lieu of which such
replacement Certificate was issued presents for payment such original
Certificate, the Owner Trustee shall be entitled to recover such replacement
Certificate (and any distributions or payments made with respect thereto) or
such payment from the Person to whom it was delivered or any Person taking such
replacement Certificate from such Person to whom such replacement Certificate
was delivered or any assignee of such Person, except a protected purchaser, and
shall be entitled to recover upon the security or indemnity provided therefor to
the extent of any loss, damage, cost or expense incurred by the Owner Trustee in
connection therewith.
(c) In connection with the issuance of any replacement Certificate
under this SECTION 3.5, the Owner Trustee may require the payment by the Holder
of such Certificate of a sum sufficient to cover any tax or other governmental
charge that may be imposed in relation thereto and any other
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reasonable expenses (including the fees and expenses of the Owner Trustee and
the Certificate Registrar) connected therewith.
(d) Any duplicate Certificate issued pursuant to this SECTION 3.5 in
replacement of any mutilated, destroyed, lost or stolen Certificate shall
constitute an original additional beneficial interest in the Trust, whether or
not the mutilated, destroyed, lost or stolen Certificate shall be found at any
time or be enforced by anyone, and shall be entitled to all the benefits of this
Agreement equally and proportionately with any and all other Certificates duly
issued hereunder.
(e) The provisions of this SECTION 3.5 are exclusive and shall
preclude (to the extent lawful) all other rights and remedies with
respect to the replacement or payment of mutilated, destroyed, lost or stolen
Certificates.
SECTION 3.6 PERSONS DEEMED CERTIFICATEHOLDERS. Prior to due
presentation of a Certificate for registration of transfer, the Owner Trustee or
the Certificate Registrar may treat the Person in whose name any Certificate
shall be registered in the Certificate Register as the Certificateholder of such
Certificate for the purpose of receiving distributions pursuant to ARTICLE V and
for all other purposes whatsoever, and neither the Owner Trustee nor the
Certificate Registrar shall be affected by any notice to the contrary.
SECTION 3.7 ACCESS TO LIST OF CERTIFICATEHOLDERS' NAMES AND ADDRESSES.
The Owner Trustee shall furnish or cause to be furnished to the Servicer and the
Seller, within 15 days after receipt by the Owner Trustee of a request therefor
from the Servicer or the Seller in writing, a list of the names and addresses of
the Certificateholders as of the most recent Record Date. Each Holder, by
receiving and holding a Certificate, shall be deemed to have agreed not to hold
any of the Servicer, the Seller or the Owner Trustee accountable by reason of
the disclosure of its name and address, regardless of the source from which such
information was derived.
SECTION 3.8 MAINTENANCE OF CORPORATE TRUST OFFICE. The Owner Trustee
shall maintain in the Borough of Manhattan, the City of New York, an office or
offices or agency or agencies where Certificates may be surrendered for
registration of transfer or exchange and where notices and demands to or upon
the Owner Trustee in respect of the Certificates and the Basic Documents may be
served. The Owner Trustee initially designates the offices of Bankers Trust
Company, Four Albany Street, New York, New York 10006, as its principal office
for such purposes. The Owner Trustee shall give prompt written notice to the
Seller and to the Certificateholders of any change in the location of the
Certificate Register or any such office or agency.
SECTION 3.9 APPOINTMENT OF PAYING AGENT. Except as otherwise provided
in SECTION 5.2, the Paying Agent shall make distributions to Certificateholders
from the Certificate Distribution Account pursuant to SECTION 5.2 and shall
report the amounts of such distributions to the Owner Trustee and the Servicer;
PROVIDED that no such reports shall be required so long as the Seller is the
sole Certificateholder. Any Paying Agent shall have the revocable power to
withdraw funds from the Certificate Distribution Account for the purpose of
making the distributions referred to above. The Owner Trustee may revoke such
power and remove the Paying Agent if the Owner Trustee determines in its sole
discretion that the Paying Agent shall have failed to perform its obligations
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under this Agreement in any material respect. The Paying Agent shall initially
be Bankers Trust Company, and any co-paying agent chosen by Bankers Trust
Company, and acceptable to the Owner Trustee. Bankers Trust Company shall be
permitted to resign as Paying Agent upon 30 days' written notice to the Owner
Trustee. If Bankers Trust Company shall no longer be the Paying Agent, the Owner
Trustee shall appoint a successor to act as Paying Agent (which shall be a bank
or trust company). The Owner Trustee shall cause such successor Paying Agent or
any additional Paying Agent appointed by the Owner Trustee to execute and
deliver to the Owner Trustee an instrument in which such successor Paying Agent
or additional Paying Agent shall agree with the Owner Trustee that as Paying
Agent, such successor Paying Agent or additional Paying Agent shall hold all
sums, if any, held by it for payment to the Certificateholders in trust for the
benefit of the Certificateholders entitled thereto until such sums shall be paid
to such Certificateholders. The Paying Agent shall return all unclaimed funds to
the Owner Trustee and upon removal of a Paying Agent such Paying Agent shall
also return all funds in its possession to the Owner Trustee. The provisions of
SECTIONS 6.3, 6.6, 6.7 AND 6.9 shall apply to the Owner Trustee also in its role
as Paying Agent, for so long as the Owner Trustee shall act as Paying Agent and,
to the extent applicable, to any other paying agent, certificate registrar or
authenticating agent appointed hereunder. Any reference in this Agreement to the
Paying Agent shall include any co-paying agent unless the context requires
otherwise.
SECTION 3.10 [RESERVED].
SECTION 3.11 BOOK-ENTRY CERTIFICATES. Except for the Certificates
issued to the Seller, the Certificates, upon original issuance, shall be issued
in the form of a printed Certificate or Certificates representing Book-Entry
Certificates, to be delivered to The Depository Trust Company, the initial
Clearing Agency by or on behalf of the Trust. Such Certificate or Certificates
shall initially be regis tered on the Certificate Register in the name of Cede &
Co., the nominee of the initial Clearing Agency and no Certificate Owner shall
receive a definitive Certificate representing such Certificate Owner's interest
in such Certificate, except as provided in Section 3.13. Unless and until
definitive fully registered Certificates (the "Definitive Certificates") shall
have been issued to Certificate Owners pursuant to Section 3.13:
(a) the provisions of this Section 3.11 shall be in full
force and effect;
(b) the Certificate Registrar and the Owner Trustee shall be
entitled to deal with the Clearing Agency for all purposes of this
Agreement (including the payment of principal of and interest on the
Certificates and the giving of instructions or directions hereunder) as
the sole Holder of the Certificate, and shall have no obligation to the
Certificate Owners;
(c) to the extent that the provisions of this Section 3.11
conflict with any other provisions of this Agreement, the provisions of
this Section 3.11 shall control;
(d) the rights of the Certificate Owners shall be exercised
only through the Clearing Agency and shall be limited to those
established by law and agreements between such Certificate Owners and
the Clearing Agency and/or the Clearing Agency Participants and
pursuant to the Certificate Depository Agreement in the form attached
as EXHIBIT C,
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unless and until Definitive Certificates are issued pursuant to Section
3.13, the initial Clearing Agency will make book-entry transfers among
the Clearing Agency Participants and receive and transmit payments of
principal of and interest on the Certificates to such Clearing Agency
Participants;
(e) whenever this Agreement requires or permits actions to be
taken based upon instructions or directions of Holders of Certificates
evidencing a specified percentage of the Voting Interests, the Clearing
Agency shall be deemed to represent such percentage only to the extent
that it has received instructions to such effect from Certificate
Owners and/or Clearing Agency Participants owning or representing,
respectively, such required percentage of Voting Interests and has
delivered such instructions to the Owner Trustee;
PROVIDED, HOWEVER, that the provisions of this Section 3.11 shall not be
applicable in respect of Certificates issued to the Seller. The Seller or the
Owner Trustee may set a record date for the purpose of determining the identity
of Holders of Certificates entitled to vote or to consent to any action by vote
as provided in this Agreement.
SECTION 3.12 NOTICES TO CLEARING AGENCY. Whenever a notice or other
communication to the Certificateholders is required under this Agreement, unless
and until Definitive Certificates shall have been issued to Certificate Owners
pursuant to Section 3.13, the Owner Trustee shall give all such notices and
communications specified herein to be given to Certificateholders to the
Clearing Agency and shall have no further obligation to the Certificate Owners.
SECTION 3.13 DEFINITIVE CERTIFICATES. If (a) the Administrator advises
the Owner Trustee in writing that the Clearing Agency is no longer willing or
able to properly discharge its responsibilities with respect to the Certificates
and the Administrator is unable to locate a qualified successor, (b) the
Administrator at its option advises the Owner Trustee in writing that it elects
to terminate the book-entry system through the Clearing Agency, or (c) after the
occurrence of an Event of Default or a Servicer Default, Certificate Owners
representing beneficial interests aggregating at least a majority of the Voting
Interests advise the Clearing Agency in writing that the continuation of a
book-entry system through the Clearing Agency is no longer in the best interest
of the Certificate Owners, then the Clearing Agency shall notify all Certificate
Owners and the Owner Trustee of the occurrence of any such event and of the
availability of Definitive Certificates to Certificate Owners requesting the
same. Upon surrender to the Owner Trustee of the printed Certificate or
Certificates representing the Book-Entry Certificates by the Clearing Agency,
accompanied by registration instructions, the Owner Trustee shall execute and
authenticate the Definitive Certificates in accordance with the instructions of
the Clearing Agency. Neither the Certificate Registrar nor the Owner Trustee
shall be liable for any delay in delivery of such instruc tions and may
conclusively rely on, and shall be protected in relying on, such instructions.
Upon the issuance of Definitive Certificates, the Owner Trustee shall recognize
the Holders of the Defini tive Certificates as Certificateholders.
SECTION 3.14 SELLER AS CERTIFICATEHOLDER. The Seller in its individual
or any other capacity may become the owner or pledgee of Certificates and may
otherwise deal with the Owner Trustee or its Affiliates as if it were not the
Seller.
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ARTICLE IV
ACTIONS BY OWNER TRUSTEE
SECTION 4.1 PRIOR NOTICE TO CERTIFICATEHOLDERS WITH RESPECT TO CERTAIN
MATTERS. The Owner Trustee shall not take action with respect to the following
matters, unless (i) the Owner Trustee shall have notified the Certificateholders
in writing of the proposed action at least 30 days before the taking of such
action, and (ii) the Certificateholders shall not have notified the Owner
Trustee in writing prior to the 30th day after such notice is given that such
Certificateholders have withheld consent or provided alternative direction:
(a) the initiation of any claim or lawsuit by the Trust
(other than an action to collect on a Receivable or an action by the
Indenture Trustee pursuant to the Indenture) and the compromise of
any action, claim or lawsuit brought by or against the Trust (other
than an action to collect on a Receivable or an action by the
Indenture Trustee pursuant to the Indenture);
(b) the election by the Trust to file an amendment to the
Certificate of Trust, a conformed copy of which is attached hereto as
EXHIBIT B;
(c) the amendment of the Indenture by a supplemental
indenture in circumstances where the consent of any Noteholder is
required;
(d) the amendment of the Indenture by a supplemental
indenture in circumstances where the consent of any Noteholder is not
required and such amendment materially adversely affects the interests
of the Certificateholders;
(e) the amendment, change or modification of the
Administration Agreement, except to cure any ambiguity or to amend or
supplement any provision in a manner that would not materially
adversely affect the interests of the Certificateholders; or
(f) the appointment pursuant to the Indenture of a successor
Note Registrar, Paying Agent or Indenture Trustee or pursuant to this
Agreement of a successor Certificate Registrar, or the consent to the
assignment by the Note Registrar, Paying Agent or Indenture Trustee or
Certificate Registrar of its obligations under the Indenture or this
Agreement, as applicable.
SECTION 4.2 ACTION BY CERTIFICATEHOLDERS WITH RESPECT TO CERTAIN
MATTERS. The Owner Trustee shall not have the power, except upon the written
direction of the Certificateholders, to remove the Administrator under the
Administration Agreement pursuant to SECTION 10 thereof, appoint a successor
Administrator pursuant to SECTION 10 of the Administration Agreement, remove the
Servicer under the Trust Sale and Servicing Agreement pursuant to SECTION 7.02
thereof or except as expressly provided in the Basic Documents, sell the
Receivables or any interest therein
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after the termination of the Indenture. The Owner Trustee shall take the actions
referred to in the preceding sentence only upon written instructions signed by
the Certificateholders.
SECTION 4.3 ACTION BY CERTIFICATEHOLDERS WITH RESPECT TO BANKRUPTCY.
The Owner Trustee shall not have the power to commence a voluntary proceeding in
bankruptcy relating to the Trust without the unanimous prior approval of all
Certificateholders (including the Seller) and the delivery to the Owner Trustee
by each such Certificateholder of a certificate certifying that such
Certificateholder reasonably believes that the Trust is insolvent; PROVIDED,
HOWEVER, that under no circumstances shall the Owner Trustee commence or join in
commencing any such proceeding prior to the date that is one year and one day
after the termination of the Trust.
SECTION 4.4 RESTRICTIONS ON CERTIFICATEHOLDERS' POWER. The
Certificateholders shall not direct the Owner Trustee to take or refrain from
taking any action if such action or inaction would be contrary to any obligation
of the Trust or the Owner Trustee under this Agreement or any of the Basic
Documents or would be contrary to SECTION 2.3, nor shall the Owner Trustee be
obligated to follow any such direction, if given. The Certificateholders shall
not and shall not direct the Owner Trustee to take action that would violate the
provisions of SECTION 6.1 and, if given, the Owner Trustee shall not be
obligated to follow any such direction.
SECTION 4.5 MAJORITY CONTROL. Except as expressly provided herein, any
action that may be taken or consent that may be given or withheld by the
Certificateholders under this Agreement shall be effective if such action is
taken or such consent is given or withheld by the Holders of Certificates
evidencing not less than a majority of the Voting Interests as of the close of
the preceding Distribution Date. Except as expressly provided herein, any
written notice, instruction, direction or other document of the
Certificateholders delivered pursuant to this Agreement shall be effective if
signed by Holders of Certificates evidencing not less than a majority of the
Voting Interests at the time of the delivery of such notice.
ARTICLE V
APPLICATION OF TRUST FUNDS; CERTAIN DUTIES
SECTION 5.1 ESTABLISHMENT OF CERTIFICATE DISTRIBUTION ACCOUNT.
(a) Except as otherwise provided in SECTION 5.2, the Servicer, for the
benefit of the Certificateholders, shall establish and maintain in the name of
the Trust an Eligible Deposit Account known as the Capital Auto Receivables
Asset Trust 2000-1 Certificate Distribution Account (the "CERTIFICATE
DISTRIBUTION ACCOUNT"), bearing an additional designation clearly indicating
that the funds deposited therein are held for the benefit of the
Certificateholders.
(b) The Trust shall possess all right, title and interest in and to
all funds on deposit from time to time in the Certificate Distribution Account
and in all proceeds thereof. Except as otherwise provided herein or in the
Trust Sale and Servicing Agreement, the Certificate Distribution Account
shall be under the sole dominion and control of the Owner Trustee for the
benefit of the
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Certificateholders. If, at any time, the Certificate Distribution Account ceases
to be an Eligible Deposit Account, the Owner Trustee (or the Servicer on behalf
of the Owner Trustee, if the Certificate Distribution Account is not then held
by the Owner Trustee or an Affiliate thereof) shall within 10 Business Days (or
such longer period, not to exceed 30 calendar days, as to which each Rating
Agency may consent) establish a new Certificate Distribution Account as an
Eligible Deposit Account and shall transfer any cash and/or any investments to
such new Certificate Distribution Account.
SECTION 5.2 APPLICATION OF TRUST FUNDS.
(a) On each Distribution Date, the Owner Trustee shall distribute to
the Certificate holders, on a pro rata basis, amounts equal to the amounts
deposited in the Certificate Distribution Account pursuant to SECTIONS 4.06 AND
4.07 of the Trust Sale and Servicing Agreement on or prior to such Distribution
Date. Notwithstanding the foregoing or anything else to the contrary in this
Agreement or the other Basic Documents, if and for so long as Certificates
representing in the aggregate a 100% beneficial interest in the Trust are held
by the Seller, (i) no Certificate Distribution Account shall be required to be
established or maintained and (ii) all distributions and payments on the
Certificates (including the final distribution as contemplated by SECTION 7.1(C)
hereof) required hereunder or under the Trust Sale and Servicing Agreement shall
be made directly to the Seller by the Indenture Trustee (whether or not the
Trust Sale and Servicing Agreement otherwise contemplates deposit into the
Certificate Distribution Account) and the Owner Trustee shall have no duty or
liability to see to such distribution.
(b) On each Distribution Date, the Owner Trustee shall send to each
Certificateholder the statement provided to the Owner Trustee by the Servicer
pursuant to SECTION 4.09(A) of the Trust Sale and Servicing Agreement on such
Distribution Date setting forth, among other things, the amount of the
distribution allocable to Certificate Balance and to interest, the Certificate
Balance after giving effect to such distribution, the balance of the Reserve
Account (and amounts, if any, distributed from the Reserve Account) and the
Total Servicing Fee with respect to such Distribution Date or Monthly Period, as
applicable; PROVIDED that no such statement shall be required to be sent by the
Owner Trustee if and for so long as the Seller is the sole Certificateholder.
(c) If any withholding tax is imposed on the Trust's payment (or
allocations of income) to a Certificateholder, such tax shall reduce the amount
otherwise distributable to the Certificate holder in accordance with this
SECTION 5.2; PROVIDED that the Owner Trustee shall not have an obligation to
withhold any such amount if and for so long as the Seller is the sole
Certificateholder. The Owner Trustee is hereby authorized and directed to retain
from amounts otherwise distributable to the Certificateholders sufficient funds
for the payment of any tax that is legally owed by the Trust (but such
authorization shall not prevent the Owner Trustee from contesting any such tax
in appropriate proceedings and withholding payment of such tax, if permitted by
law, pending the outcome of such proceedings). The amount of any withholding tax
imposed with respect to a Certificateholder shall be treated as cash distributed
to such Certificateholder at the time it is withheld by the Trust and remitted
to the appropriate taxing authority. If there is a possibility that withholding
tax is payable with respect to a distribution (such as a distribution to a
non-U.S. Certificateholder), the Owner Trustee may in its sole discretion
withhold such amounts in
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accordance with this SECTION 5.2(C). If a Certificateholder wishes to apply for
a refund of any such withholding tax, the Owner Trustee shall reasonably
cooperate with such Certificateholder in making such claim so long as such
Certificateholder agrees to reimburse the Owner Trustee for any out-of- pocket
expenses incurred.
(d) If the Indenture Trustee holds escheated funds for payment to the
Trust pursuant to SECTION 3.3(E) of the Indenture, the Owner Trustee shall, upon
notice from the Indenture Trustee that such funds exist, submit on behalf of the
Trust an Issuer Order to the Indenture Trustee pursuant to SECTION 3.3(E) of the
Indenture instructing the Indenture Trustee to pay such funds to or at the order
of the Seller.
SECTION 5.3 METHOD OF PAYMENT. Subject to SECTION 7.1(C),
distributions required to be made to Certificateholders on any Distribution Date
shall be made to each Certificateholder of record on the related Record
Date (i) by wire transfer, in immediately available funds, to the account of
such Holder at a bank or other entity having appropriate facilities
therefor, if (x) the Certificates are Definitive Certificates, and such
Certificateholder shall have provided to the Certificate Registrar appropriate
written instructions at least five Business Days prior to such Record Date and
the distribution required to be made to such Holder on such Distribution Date
exceeds $100,000 or (y) the Certificates are Book-Entry Certificates, or, (ii)
if neither clause (i)(x) nor clause (i)(y) is applicable, by check mailed to
such Certificateholder at the address of such Certificateholder appearing in
the Certificate Register.
SECTION 5.4 ACCOUNTING AND REPORTS TO THE CERTIFICATEHOLDERS, THE
INTERNAL REVENUE SERVICE AND OTHERS. The Owner Trustee shall maintain (or cause
to be maintained) the books of the Trust on a calendar year basis on the accrual
method of accounting, deliver to each Certificateholder, as may be required by
the Code and applicable Treasury Regulations or otherwise, such information as
may be required to enable each Certificateholder to prepare its federal income
tax return, file such tax returns relating to the Trust and make such elections
as may from time to time be required or appropriate under any applicable state
or federal statute or rule or regulation thereunder so as to maintain the
Trust's characterization as an entity described in clause (i) of SECTION 2.11
for federal income tax purposes, cause such tax returns to be signed in the
manner required by law and collect or cause to be collected any withholding tax
as described in and in accordance with SECTION 5.2(C) with respect to income or
distributions to Certificateholders. In the event that the Internal Revenue
Service were to contend successfully that the Trust is not a grantor trust but
is rather a partnership for federal income tax purposes, the Trust shall
allocate items of income, gain, deduction and loss to the partners of the Trust
in accordance with their economic interests in the Trust. With respect to
interest expense of the Trust, the Trust shall allocate to the
Certificateholders their share of the entire amount of such interest expense.
SECTION 5.5 SIGNATURE ON RETURNS; OTHER TAX MATTERS. The Owner Trustee
shall sign on behalf of the Trust any and all tax returns of the Trust, unless
applicable law requires a Certificateholder to sign such documents, in which
case such documents shall be signed by the Seller. To the extent one may be
required, the Seller shall be the "tax matters partner" of the Trust pursuant to
the Code.
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ARTICLE VI
THE OWNER TRUSTEE
SECTION 6.1 DUTIES OF OWNER TRUSTEE.
(a) The Owner Trustee undertakes to perform such duties, and only such
duties, as are specifically set forth in this Agreement and the other Basic
Documents, including the administration of the Trust in the interest of the
Certificateholders, subject to the Basic Documents and in accordance with the
provisions of this Agreement. No implied covenants or obligations shall be read
into this Agreement.
(b) Notwithstanding the foregoing, the Owner Trustee shall be deemed
to have discharged its duties and responsibilities hereunder and under the Basic
Documents to the extent the Administrator has agreed in the Administration
Agreement to perform any act or to discharge any duty of the Owner Trustee
hereunder or under any Basic Document, and the Owner Trustee shall not be liable
for the default or failure of the Administrator to carry out its obligations
under the Administration Agreement.
(c) In the absence of bad faith on its part, the Owner Trustee may
conclusively rely upon certificates or opinions furnished to the Owner Trustee
and conforming to the requirements of this Agreement in determining the truth of
the statements and the correctness of the opinions contained therein; PROVIDED,
HOWEVER, that the Owner Trustee shall have examined such certificates or
opinions so as to determine compliance of the same with the requirements of this
Agreement.
(d) The Owner Trustee may not be relieved from liability for its own
negligent action, its own negligent failure to act or its own willful
misconduct, except that:
(i) this SECTION 6.1(D) shall not limit the effect of
SECTION 6.1(A) OR (B);
(ii) the Owner Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer unless it is
proved that the Owner Trustee was negligent in ascertaining the
pertinent facts; and
(iii) the Owner Trustee shall not be liable with respect to
any action it takes or omits to take in good faith in accordance with a
direction received by it pursuant to SECTION 4.1, 4.2 OR 6.4.
(e) Subject to SECTIONS 5.1 AND 5.2, monies received by the Owner
Trustee hereunder need not be segregated in any manner except to the extent
required by law or the Trust Sale and Servicing Agreement and may be deposited
under such general conditions as may be prescribed by law, and the Owner Trustee
shall not be liable for any interest thereon.
(f) The Owner Trustee shall not take any action that (i) is
inconsistent with the purposes of the Trust set forth in SECTION 2.3 or (ii)
would, to the actual knowledge of a Responsible Officer
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of the Owner Trustee, result in the Trust's becoming taxable as a corporation
for federal income tax purposes. The Certificateholders shall not direct the
Owner Trustee to take action that would violate the provisions of this SECTION
6.1.
SECTION 6.2 RIGHTS OF OWNER TRUSTEE. The Owner Trustee is authorized
and directed to execute and deliver the Basic Documents and each certificate or
other document attached as an exhibit to or contemplated by the Basic Documents
to which the Trust is to be a party, in such form as the Seller shall approve as
evidenced conclusively by the Owner Trustee's execution thereof. In addition to
the foregoing, the Owner Trustee is authorized, but shall not be obligated, to
take all actions required of the Trust pursuant to the Basic Documents. The
Owner Trustee is further authorized from time to time to take such action as the
Administrator recommends and directs in writing with respect to the Basic
Documents.
SECTION 6.3 ACCEPTANCE OF TRUSTS AND DUTIES. Except as otherwise
provided in this ARTICLE VI, in accepting the trusts hereby created, Bankers
Trust (Delaware) acts solely as Owner Trustee hereunder and not in its
individual capacity and all Persons having any claim against the Owner Trustee
by reason of the transactions contemplated by this Agreement or any Basic
Document shall look only to the Owner Trust Estate for payment or satisfaction
thereof. The Owner Trustee accepts the trusts hereby created and agrees to
perform its duties hereunder with respect to such trusts but only upon the terms
of this Agreement. The Owner Trustee also agrees to disburse all monies actually
received by it constituting part of the Owner Trust Estate upon the terms of the
Basic Documents and this Agreement. The Owner Trustee shall not be liable or
accountable hereunder or under any Basic Document under any circumstances,
except for its own negligent action, its own negligent failure to act or its own
willful misconduct or in the case of the inaccuracy of any representation or
warranty contained in SECTION 6.6 and expressly made by the Owner Trustee. In
particular, but not by way of limitation (and subject to the exceptions set
forth in the preceding sentence):
(a) the Owner Trustee shall at no time have any
responsibility or liability for or with respect to the legality,
validity and enforceability of any Receivable, or the perfection and
priority of any security interest created by any Receivable in any
Financed Vehicle or the maintenance of any such perfection and
priority, or for or with respect to the sufficiency of the Owner Trust
Estate or its ability to generate the payments to be distributed to
Certificateholders under this Agreement or to Noteholders under
the Indenture, including, without limitation: the existence,
condition and ownership of any Financed Vehicle; the exis tence and
enforceability of any insurance thereon; the existence and contents of
any Receiv able on any computer or other record thereof; the
validity of the assignment of any Receivable to the Trust or of
any intervening assignment; the completeness of any Receivable;
the performance or enforcement of any Receivable; the compliance by
the Seller or the Servicer with any warranty or representation
made under any Basic Document or in any related document or the
accuracy of any such warranty or representation or any action of the
Administrator, the Trustee or the Servicer or any subservicer taken in
the name of the Owner Trustee.
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(b) the Owner Trustee shall not be liable with respect to any
action taken or omitted to be taken by it in accordance with the
instructions of the Administrator or any Certificateholder;
(c) no provision of this Agreement or any Basic Document
shall require the Owner Trustee to expend or risk funds or otherwise
incur any financial liability in the performance of any of its
rights or powers hereunder or under any Basic Document, if the
Owner Trustee shall have reasonable grounds for believing that
repayment of such funds or adequate indemnity against such risk or
liability is not reasonably assured or provided to it;
(d) under no circumstances shall the Owner Trustee be liable
for indebtedness evidenced by or arising under any of the Basic
Documents, including the principal of and interest on the Notes or the
Certificate Balance of and interest on the Certificates;
(e) the Owner Trustee shall not be responsible for or in
respect of and makes no representation as to the validity or
sufficiency of any provision of this Agreement or for the due execution
hereof by the Seller or for the form, character, genuineness,
sufficiency, value or validity of any of the Owner Trust Estate or for
or in respect of the validity or sufficiency of the Basic Documents,
the Notes, the Certificates (other than the certificate of
authentication on the Certificates) or of any Receivables or any
related documents, and the Owner Trustee shall in no event assume or
incur any liability, duty or obligation to any Noteholder or to any
Certificateholder, other than as expressly provided for herein and in
the Basic Documents;
(f) the Owner Trustee shall not be liable for the default or
misconduct of the Administrator, the Indenture Trustee, the Seller or
the Servicer under any of the Basic Documents or otherwise and the
Owner Trustee shall have no obligation or liability to perform the
obligations of the Trust under this Agreement or the Basic Documents
that are required to be performed by the Administrator under the
Administration Agreement, the Indenture Trustee under the Indenture or
the Servicer under the Pooling and Servicing Agreement or the Trust
Sale and Servicing Agreement; and
(g) the Owner Trustee shall be under no obligation to
exercise any of the rights or powers vested in it by this Agreement,
or to institute, conduct or defend any litigation under this Agreement
or otherwise or in relation to this Agreement or any Basic Document,
at the request, order or direction of any of the Certificateholders,
unless such Certificateholders have offered to the Owner Trustee
security or indemnity satisfactory to it against the costs, expenses
and liabilities that may be incurred by the Owner Trustee therein or
thereby. The right of the Owner Trustee to perform any discretionary
act enumerated in this Agreement or in any Basic Document shall not be
construed as a duty, and the Owner Trustee shall not be answerable for
other than its negligence or willful misconduct in the performance of
any such act.
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SECTION 6.4 ACTION UPON INSTRUCTION BY CERTIFICATEHOLDERS.
(a) Subject to SECTION 4.4, the Certificateholders may by written
instruction direct the Owner Trustee in the management of the Trust. Such
direction may be exercised at any time by written instruction of the
Certificateholders pursuant to SECTION 4.5.
(b) Notwithstanding the foregoing, the Owner Trustee shall not be
required to take any action hereunder or under any Basic Document if the Owner
Trustee shall have reasonably determined, or shall have been advised by counsel,
that such action is likely to result in liability on the part of the Owner
Trustee or is contrary to the terms hereof or of any Basic Document or is
otherwise contrary to law.
(c) Whenever the Owner Trustee is unable to decide between alternative
courses of action permitted or required by the terms of this Agreement or any
Basic Document, or is unsure as to the application, intent, interpretation or
meaning of any provision of this Agreement or the Basic Documents, the Owner
Trustee shall promptly give notice (in such form as shall be appropriate under
the circumstances) to the Certificateholders requesting instruction as to the
course of action to be adopted, and, to the extent the Owner Trustee acts in
good faith in accordance with any such instruction received, the Owner Trustee
shall not be liable on account of such action to any Person. If the Owner
Trustee shall not have received appropriate instructions within ten days of such
notice (or within such shorter period of time as reasonably may be specified in
such notice or may be necessary under the circumstances) it may, but shall be
under no duty to, take or refrain from taking such action which is consistent,
in its view, with this Agreement or the Basic Documents, and as it shall deem to
be in the best interests of the Certificateholders, and the Owner Trustee shall
have no liability to any Person for any such action or inaction.
SECTION 6.5 FURNISHING OF DOCUMENTS. The Owner Trustee shall furnish
to the Certificateholders, promptly upon receipt of a written request therefor,
duplicates or copies of all reports, notices, requests, demands, certificates,
financial statements and any other instruments furnished to the Owner Trustee
under the Basic Documents.
SECTION 6.6 REPRESENTATIONS AND WARRANTIES OF OWNER TRUSTEE. The
Owner Trustee hereby represents and warrants to the Seller, for the benefit of
the Certificateholders, that:
(a) It is a banking corporation duly organized, validly
existing and in good standing under the laws of the state of its
incorporation. It has satisfied the eligibility requirements set forth
in SECTION 6.13.
(b) It has full power, authority and legal right to execute,
deliver and perform this Agreement, and has taken all necessary action
to authorize the execution, delivery and per formance by it of this
Agreement.
(c) The execution, delivery and performance by it of this
Agreement (i) shall not violate any provision of any law or regulation
governing the banking and trust powers of the Owner Trustee or any
order, writ, judgment or decree of any court, arbitrator or
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governmental authority applicable to the Owner Trustee or any of its
assets, (ii) shall not violate any provision of the corporate charter
or by-laws of the Owner Trustee or (iii) shall not violate any
provision of, or constitute, with or without notice or lapse of time, a
default under, or result in the creation or imposition of any lien on
any properties included in the Trust pursuant to the provisions of any
mortgage, indenture, contract, agreement or other undertaking to which
it is a party, which violation, default or lien could reasonably be
expected to have a materially adverse effect on the Owner Trustee's
performance or ability to perform its duties as Owner Trustee under
this Agreement or on the transactions contemplated in this Agreement.
(d) This Agreement has been duly executed and delivered by
the Owner Trustee and constitutes the legal, valid and binding
agreement of the Owner Trustee, enforceable in accordance with its
terms, except as enforceability may be limited by bankruptcy,
insolvency, reorganization, or other similar laws affecting the
enforcement of creditors' rights in general and by general
principles of equity, regardless of whether such enforceability is
considered in a proceeding in equity or at law.
SECTION 6.7 RELIANCE; ADVICE OF COUNSEL.
(a) The Owner Trustee shall incur no liability to anyone in acting
upon any signature, instrument, notice, resolution, request, consent, order,
certificate, report, opinion, bond or other document or paper believed by it to
be genuine and believed by it to be signed by the proper party or parties and
need not investigate any fact or matter in any such document. The Owner Trustee
may accept a certified copy of a resolution of the board of directors or other
governing body of any corporate party as conclusive evidence that such
resolution has been duly adopted by such body and that the same is in full force
and effect. As to any fact or matter the method of the determination of which is
not specifically prescribed herein, the Owner Trustee may for all purposes
hereof rely on a certificate, signed by the president or any vice president or
by the treasurer or other authorized officers of the relevant party, as to such
fact or matter, and such certificate shall constitute full protection to the
Owner Trustee for any action taken or omitted to be taken by it in good faith in
reliance thereon.
(b) In the exercise or administration of the trusts hereunder and in
the performance of its duties and obligations under this Agreement or the Basic
Documents, the Owner Trustee: may act directly or through its agents, attorneys,
custodians or nominees (including the granting of a power of attorney to
officers of Bankers Trust Company to execute and deliver any Basic Documents,
Certificate, Note or other documents related thereto on behalf of the Owner
Trustee) pursuant to agreements entered into with any of them, and the Owner
Trustee shall not be liable for the conduct or misconduct of such agents,
attorneys, custodians or nominees if such agents, attorneys, custodians or
nominees shall have been selected by the Owner Trustee with reasonable care; and
may consult with counsel, accountants and other skilled professionals to be
selected with reasonable care and employed by it. The Owner Trustee shall not be
liable for anything done, suffered or omitted in good faith by it in accordance
with the opinion or advice of any such counsel, accountants or other such
Persons and not contrary to this Agreement or any Basic Document.
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SECTION 6.8 OWNER TRUSTEE MAY OWN CERTIFICATES AND NOTES. The Owner
Trustee in its individual or any other capacity may become the owner or pledgee
of Certificates or Notes and may deal with the Seller, the Administrator, the
Indenture Trustee and the Servicer in transactions in the same manner as it
would have if it were not the Owner Trustee.
SECTION 6.9 COMPENSATION AND INDEMNITY. The Owner Trustee shall
receive as compensation for its services hereunder such fees as have been
separately agreed upon before the date hereof between the Servicer and the Owner
Trustee, and the Owner Trustee, any paying agent, registrar, authenticating
agent or co-trustee shall be entitled to be reimbursed by the Servicer for
its other reasonable expenses hereunder, including the reasonable compensation,
expenses and disbursements of such agents, custodians, nominees,
representatives, experts and counsel as the Owner Trustee may employ in
connection with the exercise and performance of its rights and its duties
hereunder. The Servicer shall indemnify the Owner Trustee, any paying agent,
registrar, authenticating agent or co-trustee and its successors, assigns,
agents and servants in accordance with the provisions of SECTION 6.01 of the
Trust Sale and Servicing Agreement. The indemnities contained in this
SECTION 6.9 shall survive the resignation or termination of the Owner
Trustee or the termination of this Agreement. Any amounts paid to the Owner
Trustee pursuant to this ARTICLE VI shall be deemed not to be a part of the
Owner Trust Estate immediately after such payment.
SECTION 6.10 REPLACEMENT OF OWNER TRUSTEE.
(a) The Owner Trustee may give notice of its intent to resign and be
discharged from the trusts hereby created by giving notice thereof to the
Administrator PROVIDED that no such resignation shall become effective, and the
Owner Trustee shall not resign, prior to the time set forth in SECTION 6.10(C).
If no successor Owner Trustee shall have been appointed pursuant to SECTION
6.10(B) and have accepted such appointment within 30 days after the giving of
such notice, the Owner Trustee giving such notice may petition any court of
competent jurisdiction for the appointment of a successor Owner Trustee. The
Administrator shall remove the Owner Trustee if:
(i) the Owner Trustee shall cease to be eligible in
accordance with the provisions of SECTION 6.13 and shall fail to
resign after written request therefor by the Administrator;
(ii) the Owner Trustee shall be adjudged bankrupt or
insolvent;
(iii) a receiver or other public officer shall be appointed or
take charge or control of the Owner Trustee or of its property or
affairs for the purpose of rehabilitation, conservation or liquidation;
or
(iv) the Owner Trustee shall otherwise be incapable of
acting.
(b) If the Owner Trustee gives notice of its intent to resign or is
removed or if a vacancy exists in the office of Owner Trustee for any reason the
Administrator shall promptly appoint a successor Owner Trustee by written
instrument, in duplicate (one copy of which instrument shall be delivered to the
outgoing Owner Trustee so removed and one copy to the successor Owner Trustee)
and shall pay all fees owed to the outgoing Owner Trustee.
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(c) Any resignation or removal of the Owner Trustee and appointment of
a successor Owner Trustee pursuant to any of the provisions of this SECTION 6.10
shall not become effective and no such resignation shall be deemed to have
occurred until a written acceptance of appointment is delivered by the successor
Owner Trustee to the outgoing Owner Trustee and the Administrator and all fees
and expenses due to the outgoing Owner Trustee are paid. Any successor Owner
Trustee appointed pursuant to this SECTION 6.10 shall be eligible to act in such
capacity in accordance with SECTION 6.13 and, following compliance with the
preceding sentence, shall become fully vested with all the rights, powers,
duties and obligations of its predecessor under this Agreement, with like effect
as if originally named as Owner Trustee. The Administrator shall provide notice
of such resignation or removal of the Owner Trustee to each of the Rating
Agencies.
(d) The predecessor Owner Trustee shall upon payment of its fees and
expenses deliver to the successor Owner Trustee all documents and statements and
monies held by it under this Agreement. The Administrator and the predecessor
Owner Trustee shall execute and deliver such instruments and do such other
things as may reasonably be required for fully and certainly vesting and
confirming in the successor Owner Trustee all such rights, powers, duties and
obligations.
(e) Upon acceptance of appointment by a successor Owner Trustee
pursuant to this SECTION 6.10, the Administrator shall mail notice of the
successor of such Owner Trustee to all Certificateholders, the Indenture
Trustee, the Noteholders and the Rating Agencies.
SECTION 6.11 MERGER OR CONSOLIDATION OF OWNER TRUSTEE. Any Person into
which the Owner Trustee may be merged or converted or with which it may be
consolidated, or any Person resulting from any merger, conversion or
consolidation to which the Owner Trustee shall be a party, or any Person
succeeding to all or substantially all of the corporate trust business of the
Owner Trustee, shall be the successor of the Owner Trustee hereunder, provided
such Person shall be eligible pursuant to SECTION 6.13, and without the
execution or filing of any instrument or any further act on the part of any of
the parties hereto; PROVIDED, HOWEVER, that the Owner Trustee shall mail notice
of such merger or consolidation to the Rating Agencies.
SECTION 6.12 APPOINTMENT OF CO-TRUSTEE OR SEPARATE TRUSTEE.
(a) Notwithstanding any other provisions of this Agreement, at any
time, for the purpose of meeting any legal requirement of any jurisdiction in
which any part of the Owner Trust Estate or any Financed Vehicle may at the time
be located, the Administrator and the Owner Trustee acting jointly shall, at the
expense of the Servicer, have the power and shall, at the expense of the
Servicer, execute and deliver all instruments to appoint one or more Persons
approved by the Owner Trustee to act as co-trustee, jointly with the Owner
Trustee, or as separate trustee or trustees, of all or any part of the Owner
Trust Estate, and to vest in such Person, in such capacity, such title to the
Trust, or any part thereof, and, subject to the other provisions of this SECTION
6.12, such powers, duties, obligations, rights and trusts as the Administrator
and the Owner Trustee may consider necessary or desirable. If the Administrator
shall not have joined in such appointment within 15 days after the receipt by it
of a request so to do, the Owner Trustee alone shall have the power to make such
appointment. No co-trustee or separate trustee under this Agreement shall be
required to meet the
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terms of eligibility as a successor trustee pursuant to SECTION 6.13 and no
notice of the appointment of any co-trustee or separate trustee shall be
required pursuant to SECTION 6.10.
(b) Each separate trustee and co-trustee shall, to the extent
permitted by law, be appointed and act subject to the following provisions and
conditions:
(i) all rights, powers, duties and obligations conferred or
imposed upon the Owner Trustee shall be conferred upon and exercised or
performed by the Owner Trustee and such separate trustee or co-trustee
jointly (it being understood that such separate trustee or co-trustee
is not authorized to act separately without the Owner Trustee joining
in such act), except to the extent that under any law of any
jurisdiction in which any particular act or acts are to be performed,
the Owner Trustee shall be incompetent or unqualified to perform such
act or acts, in which event such rights, powers, duties and obligations
(including the holding of title to the Trust or any portion thereof in
any such jurisdiction) shall be exercised and performed singly by such
separate trustee or co-trustee, but solely at the direction of the
Owner Trustee;
(ii) no trustee under this Agreement shall be personally
liable by reason of any act or omission of any other trustee under this
Agreement; and
(iii) the Administrator and the Owner Trustee acting jointly
may at any time accept the resignation of or remove any separate
trustee or co-trustee.
(c) Any notice, request or other writing given to the Owner Trustee
shall be deemed to have been given to each of the then separate trustees and
co-trustees, as effectively as if given to each of them. Every instrument
appointing any separate trustee or co-trustee shall refer to this Agreement and
the conditions of this Article. Each separate trustee and co-trustee, upon its
acceptance of the trusts conferred, shall be vested with the estates or property
specified in its instrument of appointment, either jointly with the Owner
Trustee or separately, as may be provided therein, subject to all the provisions
of this Agreement, specifically including every provision of this Agreement
relating to the conduct of, affecting the liability of, or affording protection
to, the Owner Trustee. Each such instrument shall be filed with the Owner
Trustee and a copy thereof given to the Administrator.
(d) Any separate trustee or co-trustee may at any time appoint the
Owner Trustee as its agent or attorney-in-fact with full power and authority, to
the extent not prohibited by law, to do any lawful act under or in respect of
this Agreement on its behalf and in its name. If any separate trustee or
co-trustee shall die, become incapable of acting, resign or be removed, all of
its estates, properties, rights, remedies and trusts shall vest in and be
exercised by the Owner Trustee, to the extent permitted by law, without the
appointment of a new or successor trustee.
SECTION 6.13 ELIGIBILITY REQUIREMENTS FOR OWNER TRUSTEE. The Owner
Trustee shall at all times satisfy the requirement of Section 26(a)(1) of the
Investment Company Act. The Owner Trustee shall at all times: (a) be a
corporation satisfying the provisions of Section 3807(a) of the Business Trust
Statute; (b) be authorized to exercise corporate trust powers; (c) have a
combined
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capital and surplus of at least $50,000,000 and be subject to supervision or
examination by federal or state authorities; and (d) have (or have a parent
which has) a long-term unsecured debt rating of at least BBB- by Standard &
Poor's Ratings Services and at least Baa3 by Moody's Investors Service, Inc. If
such corporation shall publish reports of condition at least annually, pursuant
to law or to the requirements of the aforesaid supervising or examining
authority, then for the purpose of this SECTION 6.13, the combined capital and
surplus of such corporation shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so published. If at
any time the Owner Trustee shall cease to be eligible in accordance with the
provisions of this SECTION 6.13, the Owner Trustee shall resign immediately in
the manner and with the effect specified in SECTION 6.10.
ARTICLE VII
TERMINATION OF TRUST AGREEMENT
SECTION 7.1 TERMINATION OF TRUST AGREEMENT.
(a) This Agreement (other than SECTION 6.9) and the Trust shall
terminate in accordance with Section 3808 of the Business Trust Statute and be
of no further force or effect on the final distribution by the Owner Trustee of
all monies or other property or proceeds of the Owner Trust Estate in accordance
with the terms of the Indenture, the Trust Sale and Servicing Agreement
(including the exercise by the Servicer of its option to purchase the
Receivables pursuant to SECTION 8.01(A) of the Trust Sale and Servicing
Agreement), the Interest Rate Swap and ARTICLE V. The bankruptcy, liquidation,
dissolution, death or incapacity of any Certificateholder shall not (x) operate
to terminate this Agreement or the Trust, (y) entitle such Certificateholder's
legal representatives or heirs to claim an accounting or to take any action or
proceeding in any court for a partition or winding up of all or any part of the
Trust or the Owner Trust Estate or (z) otherwise affect the rights, obligations
and liabilities of the parties hereto.
(b) Neither the Seller nor any Certificateholder shall be entitled to
revoke or terminate the Trust or this Agreement.
(c) Subject to SECTION 5.2(A), notice of any termination of the Trust,
specifying the Distribution Date upon which the Certificateholders shall
surrender their Certificates to the Paying Agent for payment of the final
distribution and cancellation, shall be given by the Owner Trustee by letter to
Certificateholders mailed within five Business Days of receipt of notice of such
termination from the Servicer given pursuant to SECTION 8.01(C) of the Trust
Sale and Servicing Agreement, stating: (i) the Distribution Date upon or with
respect to which final payment of the Certificates shall be made upon
presentation and surrender of the Certificates at the office of the Paying Agent
therein designated; (ii) the amount of any such final payment; and (iii) that
the Record Date otherwise applicable to such Distribution Date is not
applicable, payments being made only upon presentation and surrender of the
Certificates at the office of the Paying Agent therein specified. The Owner
Trustee shall give such notice to the Certificate Registrar (if other than the
Owner Trustee) and the Paying Agent at the time such notice is given to
Certificateholders. Upon presentation and surrender
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of the Certificates, the Paying Agent shall cause to be distributed to
Certificateholders amounts distributable on such Distribution Date pursuant to
SECTION 5.2.
(d) If all of the Certificateholders shall not surrender their
Certificates for cancellation within six months after the date specified in the
written notice referred to in SECTION 7.1(C), the Owner Trustee shall give a
second written notice to the remaining Certificateholders to surrender their
Certificates for cancellation and receive the final distribution with respect
thereto. If within one year after the second notice all the Certificates shall
not have been surrendered for cancellation, the Owner Trustee may take
appropriate steps, or may appoint an agent to take appropriate steps, to contact
the remaining Certificateholders concerning surrender of their Certificates, and
the cost thereof shall be paid out of the funds and other assets that shall
remain subject to this Agreement. Subject to applicable laws with respect to
escheat of funds, any funds remaining in the Trust after exhaustion of such
remedies in the preceding sentence shall be deemed property of the Seller and
distributed by the Owner Trustee to the Seller, and the Owner Trustee shall have
no further liability to the Certificateholders with respect thereto.
(e) Upon the winding up of the Trust and its termination, the Owner
Trustee shall cause the Certificate of Trust to be canceled by filing a
certificate of cancellation with the Secretary of State in accordance with the
provisions of Section 3810 of the Business Trust Statute.
ARTICLE VIII
AMENDMENTS
SECTION 8.1 AMENDMENTS WITHOUT CONSENT OF CERTIFICATEHOLDERS OR
NOTEHOLDERS. This Agreement may be amended by the Seller and the Owner Trustee
without the consent of any of the Noteholders or the Certificateholders (but
with prior notice to each of the Rating Agencies), to (i) cure any ambiguity,
(ii) correct or supplement any provision in this Agreement that may be defective
or inconsistent with any other provision in this Agreement or any other Basic
Document, (iii) add or supplement any credit enhancement for the benefit of the
Noteholders or the Certificateholders (provided that if any such addition shall
affect any class of Noteholders or Certificateholders differently than any other
class of Noteholders or Certificateholders, then such addition shall not, as
evidenced by an Opinion of Counsel, adversely affect in any material respect the
interests of any class of the Noteholders or the Certificateholders), (iv) add
to the covenants, restrictions or obligations of the Seller or the Owner
Trustee, (v) evidence and provide for the acceptance of the appointment of a
successor trustee with respect to the Owner Trust Estate and add to or change
any provisions as shall be necessary to facilitate the administration of the
trusts hereunder by more than one trustee pursuant to ARTICLE VI, and (vi) add,
change or eliminate any other provision of this Agreement in any manner that
shall not, as evidenced by an Opinion of Counsel, adversely affect in any
material respect the interests of the Noteholders or the Certificateholders.
SECTION 8.2 AMENDMENTS WITH CONSENT OF CERTIFICATEHOLDERS AND
NOTEHOLDERS. This Agreement may be amended from time to time by the Seller and
the Owner Trustee with the consent of Noteholders whose Notes evidence not less
than a majority of the Outstanding Amount of the Notes as of the close of the
preceding Distribution Date and the consent of Certificateholders whose
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Certificates evidence not less than a majority of the Voting Interests as of the
close of the preceding Distribution Date (which consent, whether given pursuant
to this SECTION 8.2 or pursuant to any other provision of this Agreement, shall
be conclusive and binding on such Person and on all future holders of such Notes
or Certificates and of any Notes or Certificates issued upon the transfer
thereof or in exchange thereof or in lieu thereof whether or not notation of
such consent is made upon the Notes or Certificates) for the purpose of adding
any provisions to or changing in any manner or eliminating any of the provisions
of this Agreement, or of modifying in any manner the rights of the Noteholders
or the Certificateholders; PROVIDED, HOWEVER, that no such amendment shall (a)
increase or reduce in any manner the amount of, or accelerate or delay the
timing of, collections of payments on Receivables or distributions that shall be
required to be made on any Note or Certificate, the Pass Through Rate or the
Specified Reserve Account Balance or (b) reduce the aforesaid percentage
required to consent to any such amendment, without the consent of the holders of
all Notes and all of the Voting Interests with respect to Certificates then
outstanding. The Owner Trustee shall furnish notice to each of the Rating
Agencies prior to obtaining consent to any proposed amendment under this SECTION
8.2.
SECTION 8.3 FORM OF AMENDMENTS.
(a) Promptly after the execution of any amendment, supplement or
consent pursuant to SECTION 8.1 OR 8.2, the Owner Trustee shall furnish written
notification of the substance of such amendment or consent to each
Certificateholder and the Indenture Trustee.
(b) It shall not be necessary for the consent of Certificateholders,
the Noteholders or the Indenture Trustee pursuant to SECTION 8.2 to approve the
particular form of any proposed amendment or consent, but it shall be sufficient
if such consent shall approve the substance thereof. The manner of obtaining
such consents (and any other consents of Certificateholders provided for in this
Agreement or in any other Basic Document) and of evidencing the authorization of
the execution thereof by Certificateholders shall be subject to such reasonable
requirements as the Owner Trustee may prescribe.
(c) Promptly after the execution of any amendment to the Certificate
of Trust, the Owner Trustee shall cause the filing of such amendment with
the Secretary of State.
(d) Prior to the execution of any amendment to this Agreement or the
Certificate of Trust, the Owner Trustee shall be entitled to receive and
conclusively rely upon an Opinion of Counsel stating that the execution of such
amendment is authorized or permitted by this Agreement. The Owner Trustee may,
but shall not be obligated to, enter into any such amendment which affects the
Owner Trustee's own rights, duties or immunities under this Agreement or
otherwise.
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ARTICLE IX
MISCELLANEOUS
SECTION 9.1 NO LEGAL TITLE TO OWNER TRUST ESTATE. The
Certificateholders shall not have legal title to any part of the Owner Trust
Estate. The Certificateholders shall be entitled to receive distributions with
respect to their undivided ownership interest therein only in accordance with
ARTICLES V AND VII. No transfer, by operation of law or otherwise, of any right,
title, and interest of the Certificateholders to and in their ownership interest
in the Owner Trust Estate shall operate to terminate this Agreement or the
trusts hereunder or entitle any transferee to an accounting or to the transfer
to it of legal title to any part of the Owner Trust Estate.
SECTION 9.2 LIMITATIONS ON RIGHTS OF OTHERS. Except for SECTION 9.13,
the provisions of this Agreement are solely for the benefit of the Owner
Trustee, the Seller, the Certificateholders, the Administrator and, to the
extent expressly provided herein, the Indenture Trustee and the Noteholders, and
nothing in this Agreement, whether express or implied, shall be construed to
give to any other Person any legal or equitable right, remedy or claim in the
Owner Trust Estate or under or in respect of this Agreement or any covenants,
conditions or provisions contained herein.
SECTION 9.3 DERIVATIVE ACTIONS. Any provision contained herein to the
contrary notwithstanding, the right of any Certificate Owner to bring a
derivative action in the right of the Trust is hereby made expressly subject to
the following limitations and requirements:
(a) such Certificate Owner must meet all requirements set forth in the
Business Trust Statute; and
(b) no Certificate Owner may bring a derivative action in the right of
the Trust without the prior written consent of Certificate Owners owning, in the
aggregate, a beneficial interest in Certificates representing 50% of the then
outstanding Certificate Balance.
SECTION 9.4 NOTICES. All demands, notices and communications upon or
to the Seller, the Servicer, the Administrator, the Indenture Trustee, the
Owner Trustee or the Rating Agencies under this Agreement shall be
delivered as specified in APPENDIX B to the Trust Sale and Servicing Agreement.
SECTION 9.5 SEVERABILITY. If any one or more of the covenants,
agreements, provisions or terms of this Agreement shall be for any reason
whatsoever held invalid, then such covenants, agreements, provisions or terms
shall be deemed severable from the remaining covenants, agreements, provisions
or terms of this Agreement and shall in no way affect the validity or
enforceability of the other provisions of this Agreement or of the Certificates
or the rights of the holders thereof.
SECTION 9.6 COUNTERPARTS. This Agreement may be executed by the
parties hereto in separate counterparts, each of which when so executed and
delivered shall be an original, but all such counterparts shall together
constitute one and the same instrument.
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<PAGE>
SECTION 9.7 SUCCESSORS AND ASSIGNS. All covenants and agreements
contained herein shall be binding upon, and inure to the benefit of, the Seller,
the Owner Trustee and each Certificateholder and their respective successors and
permitted assigns, all as herein provided. Any request, notice, direction,
consent, waiver or other instrument or action by a Certificateholder shall bind
the successors and assigns of such Certificateholder.
SECTION 9.8 NO PETITION. The Owner Trustee by entering this Trust
Agreement and each Certificateholder or Certificate Owner, by accepting a
Certificate (or interest therein) issued hereunder, hereby covenant and agree
that they shall not, prior to the day that is one year and one day after the
termination of the Trust, acquiesce, petition or otherwise invoke or cause the
Seller or the Trust to invoke in any court or government authority for the
purpose of commencing or sustaining a case against the Seller or the Trust under
any federal or state bankruptcy, insolvency or similar law or appointing a
receiver, liquidator, assignee, trustee, custodian, sequestrator or other
similar official of the Seller or the Trust or any substantial part of its
property, or ordering the winding up or liquidation of the affairs of the Seller
or the Trust.
SECTION 9.9 NO RECOURSE. Each Certificateholder by accepting a
Certificate (or any interest therein) acknowledges that such Person's
Certificate (or interest therein) represents beneficial interests in the Trust
only and does not represent interests in or obligations of the Seller, the
Servicer, the Administrator, the Owner Trustee, the Indenture Trustee or any
Affiliate thereof and no recourse, either directly or indirectly, may be had
against such parties or their assets, except as may be expressly set forth or
contemplated in this Agreement, the Certificates or the Basic Documents. Except
as expressly provided in the Basic Documents, none of the Seller, the Servicer
or the Owner Trustee in their respective individual capacities, or any of their
respective partners, beneficiaries, agents, officers, directors, employees or
successors or assigns, shall be personally liable for, or shall recourse be had
to any of them for the distribution of any amount with respect to the
Certificates or the Trust's performance of, or omission to perform, any
obligations or indemnifications contained in the Certificates, this Agreement or
the Basic Documents, it being expressly understood that such Certificateholder
obligations have been made solely by the Trust. Each Certificateholder by the
acceptance of a Certificate (or beneficial interest therein) agrees except as
expressly provided in the Basic Documents, in the event of nonpayment of any
amounts with respect to the Certificates, it shall have no claim against any of
the foregoing Persons for any deficiency, loss or claim therefrom.
SECTION 9.10 HEADINGS. The headings of the various Articles and
Sections herein are for convenience of reference only and shall not define or
limit any of the terms or provisions hereof.
SECTION 9.11 GOVERNING LAW. THIS AGREEMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE, WITHOUT REFERENCE TO ITS
CONFLICT OF LAW PROVISIONS, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE
PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
SECTION 9.12 CERTIFICATE TRANSFER RESTRICTIONS. The Certificates may
not be acquired by or for the account of a Benefit Plan. By accepting and
holding a Certificate, the Holder thereof and
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<PAGE>
the Certificate Owner shall each be deemed to have represented and warranted
that it is not a Benefit Plan and, if requested to do so by the Seller, the
Certificateholder and the Certificate Owner shall execute and deliver to the
Owner Trustee an Undertaking Letter in the form set forth in EXHIBIT D. The
Certificates are also subject to the minimum denomination specified in Section
3.4(a).
SECTION 9.13 INDEMNIFICATION BY AND REIMBURSEMENT OF THE SERVICER. The
Owner Trustee acknowledges and agrees to reimburse (i) the Servicer and its
directors, officers, employees and agents in accordance with SECTION 6.03(B) of
the Trust Sale and Servicing Agreement and (ii) the Seller and its directors,
officers, employees and agents in accordance with SECTION 3.04 of the Trust Sale
and Servicing Agreement. The Owner Trustee further acknowledges and accepts the
conditions and limitations with respect to the Servicer's obligation to
indemnify, defend and hold the Owner Trustee harmless as set forth in SECTION
6.01(A)(IV) of the Trust Sale and Servicing Agreement.
* * * * *
-27-
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Trust
Agreement to be duly executed by their respective officers hereunto duly
authorized, as of the day and year first above written.
BANKERS TRUST (DELAWARE),
as Owner Trustee
By: /S/ RAYMOND DELLICOLLI
---------------------------
Name: Raymond DelliColli
Title: Attorney In Fact
CAPITAL AUTO RECEIVABLES, INC.
By: /S/ C. A. ONDRICK
---------------------------
Name: C. A. Ondrick
Title: Manager - Securitization
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<PAGE>
EXHIBIT A
NUMBER R- $_____________
CUSIP NO.____
SEE REVERSE FOR CERTAIN DEFINITIONS
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION
("DTC"), TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER,
EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO.
OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE
OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THIS CERTIFICATE MAY NOT BE ACQUIRED BY OR FOR THE ACCOUNT OF
(i) AN "EMPLOYEE BENEFIT PLAN" (AS DEFINED IN SECTION 3(3) OF THE
EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED, ("ERISA"))
THAT IS SUBJECT TO THE PROVISIONS OF TITLE I OF ERISA, (ii) A PLAN
DESCRIBED IN SECTION 4975(e)(1) OF THE INTERNAL REVENUE CODE OF 1986,
AS AMENDED, OR (iii) ANY ENTITY WHOSE UNDERLYING ASSETS INCLUDE PLAN
ASSETS BY REASON OF A PLAN'S INVESTMENT IN THE ENTITY. BY ACCEPTING AND
HOLDING THIS CERTIFICATE, THE HOLDER HEREOF AND THE CERTIFICATE OWNER
SHALL EACH BE DEEMED TO HAVE REPRESENTED AND WARRANTED THAT IT IS NOT A
BENEFIT PLAN.
CAPITAL AUTO RECEIVABLES ASSET TRUST 2000-1
7.28% ASSET BACKED CERTIFICATE
evidencing a fractional undivided interest in the Trust, as defined
below, the property of which includes a pool of retail instalment sale
contracts secured by new and used automobiles and light trucks and sold
to the Trust by Capital Auto Receivables, Inc.
-1-
<PAGE>
(This Certificate does not represent an interest in or obligation of
Capital Auto Receivables, Inc., General Motors Acceptance Corporation
or General Motors Corpo ration or any of their respective affiliates,
except to the extent described in the Basic Documents.)
THIS CERTIFIES THAT Capital Auto Receivables, Inc. is the
registered owner of a nonassessable, fully-paid, fractional undivided interest
in Capital Auto Receivables Asset Trust 2000-1 (the "TRUST") formed by Capital
Auto Receivables, Inc., a Delaware corporation.
The Trust was created pursuant to a Trust Agreement, dated as
of April 19, 2000 (as amended and supplemented from time to time, the "TRUST
AGREEMENT"), between the Seller and Bankers Trust (Delaware), as owner trustee
(the "OWNER TRUSTEE"), a summary of certain of the pertinent provisions of which
is set forth below. To the extent not otherwise defined herein, the capitalized
terms used herein have the meanings assigned to them in the Trust Agreement.
This Certificate is one of the duly authorized Certificates
designated as "7.28% Asset Backed Certificates" (the "CERTIFICATES"). This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Trust Agreement, the terms of which are incorporated herein by
reference and made a part hereof, to which Trust Agreement the holder of this
Certificate by virtue of the acceptance hereof assents and by which such holder
is bound.
Under the Trust Agreement, there shall be distributed on the
15th day of each month or, if such 15th day is not a Business Day, the next
Business Day, commencing on May 15, 2000 (each, a "DISTRIBUTION DATE"), to the
person in whose name this Certificate is registered on the related Record Date
(as defined below), such Certificateholder's fractional undivided interest in
the amount of interest on and distributions in respect of Certificate Balance to
be distributed to Certificateholders on such Distribution Date; PROVIDED,
HOWEVER, Certificateholders shall not receive payments in respect of the
Certificate Balance until all the Notes have been paid (or provided for) in
full. The "RECORD DATE," with respect to any Distribution Date, means the last
day of the preceding Monthly Period.
The distributions in respect of Certificate Balance and
interest on this Certificate are payable in such coin or currency of the United
States of America as at the time of payment is legal tender for payment of
public and private debts. All payments made by the Trust with respect to this
Certificate shall be applied first to interest due and payable on this
Certificate as provided above and then to the unpaid distributions in respect of
Certificate Balance of this Certificate.
The holder of this Certificate acknowledges and agrees that
its rights to receive distributions in respect of this Certificate are
subordinated to the rights of the Noteholders as and to the extent described in
the Trust Sale and Servicing Agreement.
It is the intent of the Seller, the Owner Trustee and the
Certificateholders that, for purposes of federal income, state and local income
and franchise taxes, Michigan single business tax and any other taxes imposed
upon, measured by or based upon gross or net income, the Trust shall be treated
as a grantor trust or, if the Internal Revenue Service were to contend
successfully that the
-2-
<PAGE>
Trust is not a grantor trust, a partnership. Except as otherwise required by
appropriate taxing authorities, the Seller and the other Certificateholders by
acceptance of a Certificate agree to treat, and to take no action inconsistent
with the treatment of, the Certificates for such tax purposes as interests in
such a grantor trust as described in the previous sentence.
Each Certificateholder or Certificate Owner by its acceptance
of a Certificate (or an interest therein) covenants and agrees that such
Certificateholder shall not, prior to the date which is one year and one day
after the termination of the Trust, acquiesce, petition or otherwise invoke or
cause the Seller or the Trustee to invoke the process of any court or
governmental authority for the purpose of commencing or sustaining a case
against the Seller or the Trustee under any federal or state bankruptcy,
insolvency, reorganization or similar law or appointing a receiver, liquidator,
assignee, trustee, custodian, sequestrator or other similar official of the
Seller or the Trustee or any substantial part of its property, or ordering the
winding up or liquidation of the affairs of the Seller or the Trustee.
Except as otherwise provided in the Trust Agreement,
distributions on this Certificate shall be made as provided in the Trust
Agreement by the Owner Trustee by wire transfer or check mailed to the
Certificateholder of record in the Certificate Register without the presentation
or surrender of this Certificate or the making of any notation hereon, except
that with respect to Certificates registered on the Record Date in the name of
the nominee of the Clearing Agency (initially, such nominee to be Cede & Co.),
payments shall be made by wire transfer in immediately available funds to the
account designated by such nominee. Except as otherwise provided in the Trust
Agreement and notwithstanding the above, the final distribution on this
Certificate shall be made after due notice by the Owner Trustee of the pendency
of such distribution and only upon presentation and surrender of this
Certificate at the office maintained for such purpose by the Owner Trustee in
the Borough of Manhattan, the City of New York.
Reference is hereby made to the further provisions of this
Certificate set forth on the reverse hereof, which further provisions shall for
all purposes have the same effect as if set forth at this place.
Unless the certificate of authentication hereon shall have
been executed by an authorized officer of the Owner Trustee by manual signature,
this Certificate shall not entitle the holder hereof to any benefit under the
Trust Agreement or the Trust Sale and Servicing Agreement or be valid for any
purpose.
THIS CERTIFICATE SHALL BE CONSTRUED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF DELAWARE, WITHOUT REFERENCE TO ITS CONFLICT OF LAW
PROVISIONS, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER
SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
-3-
<PAGE>
IN WITNESS WHEREOF, the Owner Trustee, on behalf of the Trust
and not in its individual capacity, has caused this Certificate to be duly
executed.
Dated: April 19, 2000
CAPITAL AUTO RECEIVABLES ASSET
TRUST 2000-1
BANKERS TRUST (DELAWARE),
not in its individual capacity but solely as
Owner Trustee
By: _________________________
Name:
Title:
OWNER TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Certificates referred to in the within-mentioned
Trust Agreement.
BANKERS TRUST (DELAWARE), BANKERS TRUST (DELAWARE),
not in its individual not in its individual
capacity but solely OR capacity but solely
as Owner Trustee as Owner Trustee
By:_________________________
as Authenticating Agent
By:_________________________ By:_________________________
Name: Name:
Title: Title:
-4-
<PAGE>
REVERSE OF CERTIFICATE
The Certificates do not represent an obligation of, or an
interest in, the Seller, the Servicer, General Motors Corporation, the Indenture
Trustee, the Owner Trustee or any affiliates of any of them and no recourse may
be had against such parties or their assets, except as may be expressly set
forth or contemplated herein or in the Trust Agreement or the Basic Documents.
In addition, this Certificate is not guaranteed by any governmental agency or
instrumentality and is limited in right of payment to certain collections and
recoveries with respect to the Receivables (and certain other amounts), all as
more specifically set forth herein and in the Trust Agreement and the Trust Sale
and Servicing Agreement. A copy of each of the Trust Sale and Servicing
Agreement and the Trust Agreement may be examined during normal business hours
at the principal office of the Seller, and at such other places, if any,
designated by the Seller, by any Certificateholder upon written request.
The Trust Agreement permits, with certain exceptions therein
provided, the amendment thereof and the modification of the rights and
obligations of the Seller and the rights of the Certificateholders under the
Trust Agreement at any time by the Seller and the Owner Trustee with the consent
of the Holders of the Notes evidencing not less than a majority of the
Outstanding Amount of the Notes as of the close of the preceding Distribution
Date and the consent of Certificateholders whose Certificates evidence not less
than a majority of the Voting Interests as of the close of the preceding
Distribution Date. Any such consent by the Holder of this Certificate shall be
conclusive and binding on such holder and on all future Holders of this
Certificate and of any Certificate issued upon the transfer hereof or in
exchange herefor or in lieu hereof whether or not notation of such consent is
made upon this Certificate. The Trust Agreement also permits the amendment
thereof, in certain circumstances, without the consent of the Holders of any of
the Certificates or the Notes.
As provided in the Trust Agreement and subject to certain
limitations therein set forth, the transfer of this Certificate is registerable
in the Certificate Register upon surrender of this Certificate for registration
of transfer at the offices or agencies of the Certificate Registrar maintained
by the Owner Trustee in the City of New York, accompanied by (i) a written
instrument of transfer in form satisfactory to the Owner Trustee and the
Certificate Registrar duly executed by the Holder hereof or such Holder's
attorney duly authorized in writing and (ii) if requested by the Seller, the
Undertaking Letter required by Section 9.12 of the Trust Agreement, and
thereupon one or more new Certificates of authorized denominations evidencing
the same aggregate interest in the Trust will be issued to the designated
transferee. The initial Certificate Registrar appointed under the Trust
Agreement is Bankers Trust Company, New York, New York.
The Certificates are issuable only as registered Certificates
without coupons in denominations of $20,000 or integral multiples of $1,000 in
excess thereof; provided, however, that one Certificate may be issued in a
denomination that includes any residual amount. As provided in the Trust
Agreement and subject to certain limitations therein set forth, Certificates are
exchangeable for new Certificates of authorized denominations evidencing the
same aggregate denomination, as requested by the Holder surrendering the same;
PROVIDED, HOWEVER, that no Certificate may be subdivided such that the
denomination of any resulting Certificate is less than $20,000. No service
charge shall be made for any such registration of transfer or exchange, but the
Owner Trustee or the
-1-
<PAGE>
Certificate Registrar may require payment of a sum sufficient to cover any tax
or governmental charge payable in connection therewith.
The Owner Trustee, the Certificate Registrar and any agent of
the Owner Trustee or the Certificate Registrar may treat the Person in whose
name this Certificate is registered as the owner hereof for all purposes, and
none of the Owner Trustee, the Certificate Registrar or any such agent shall be
affected by any notice to the contrary.
The obligations and responsibilities created by the Trust
Agreement and the Trust created thereby shall terminate in accordance with
Article VII of Trust Agreement.
-2-
<PAGE>
<TABLE>
<CAPTION>
ASSIGNMENT
FOR VALUE RECEIVED the undersigned hereby sells,
assigns and transfers unto
PLEASE INSERT SOCIAL SECURITY
OR OTHER IDENTIFYING NUMBER
OF ASSIGNEE
- ------------------------------------------------------------------------------
(Please print or type name and address, including postal zip code, of assignee)
<S> <C> <C> <C> <C> <C> <C>
- -------------------------------------------------------------------------------------------------
the within Certificate, and all rights thereunder, hereby irrevocably constituting and appointing
_________________________________________________________ Attorney to transfer
said Certificate on the books of the Certificate Registrar, with full power of
substitution in the premises.
Date: _____________________________*
Signature Guaranteed:
_____________________________*
* NOTICE: The signature to this assignment must correspond with the name as it
appears upon the face of the within Certificate in every particular, without
alteration, enlargement or any change whatever. Such signature must be
guaranteed by a member firm of the New York Stock Exchange or a commercial bank
or trust company.
</TABLE>
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<PAGE>
EXHIBIT B
CERTIFICATE OF TRUST OF
CAPITAL AUTO RECEIVABLES ASSET TRUST 2000-1
THIS Certificate of Trust of Capital Auto Receivables Asset
Trust 2000-1 (the "TRUST") is being duly executed and filed by the undersigned,
as trustee, to form a business trust under the Delaware Business Trust Act (12
DEL. C. ss.3801 ET SEQ.) (the "Act").
1. NAME. The name of the business trust formed hereby is
Capital Auto Receivables Asset Trust 2000-1.
2. DELAWARE TRUSTEE. The name and business address of the
trustee of the Trust in the State of Delaware are Bankers Trust (Delaware), E.A.
Delle Donne Corporate Center, Montgomery Building, 1011 Centre Road, Wilmington,
Delaware 19805-1266.
3. This Certificate of Trust shall be effective on
April 19, 2000.
IN WITNESS WHEREOF, the undersigned has executed this
Certificate of Trust in accordance with Section 3811(a)(1) of the Act.
BANKERS TRUST (DELAWARE), not in its
individual capacity but solely as Owner Trustee
By: _______________________________
Name:
Title:
-1-
<PAGE>
EXHIBIT C
FORM OF CERTIFICATE DEPOSITORY AGREEMENT
-2-
<PAGE>
EXHIBIT D
UNDERTAKING LETTER
Capital Auto Receivables, Inc.
Corporation Trust Center
1209 Orange Street
Wilmington, DE 19801
Bankers Trust (Delaware),
as Owner Trustee of Capital Auto Receivables Asset Trust 2000-1
E.A. Delle Donne Corporate Center
Montgomery Building
1011 Centre Road, Suite 200
Wilmington, DE 19805-1266
Ladies and Gentlemen:
In connection with our purchase or record or beneficial
ownership of the 7.28% Asset Backed Certificate (the "Certificate") of the
Capital Auto Receivables Asset Trust 2000-1, the undersigned purchaser, record
owner or beneficial owner hereby acknowledges, represents and warrants that such
purchaser, record owner or beneficial owner:
(1) is not, and has not acquired the Certificate by or for the
benefit of, (i) an employee benefit plan (as defined in Section 3(3) of the
Employee Retirement Income Security Act of 1974, as amended ("ERISA")) that is
subject to the provisions of Title I of ERISA, (ii) a plan described in Section
4975(e)(1) of the Internal Revenue Code of 1986, as amended, or (iii) any entity
whose underlying assets include plan assets by reason of a plan's investment in
the entity whose underlying assets include plan assets by reason of a plan's
investment in the entity; and
(2) acknowledges that you and others will rely on our
acknowledgments, representations and warranties, and agrees to notify you
promptly in writing if any of our representations or warranties herein cease to
be accurate and complete.
------------------------------
Name of Certificate Owner
By:___________________________
Name:
Title:
Date: _________________________
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<PAGE>
EXHIBIT 99.1
TRUST SALE AND SERVICING AGREEMENT
AMONG
GENERAL MOTORS ACCEPTANCE CORPORATION
SERVICER
CAPITAL AUTO RECEIVABLES, INC.
SELLER
AND
CAPITAL AUTO RECEIVABLES ASSET TRUST 2000-1
ISSUER
DATED AS OF APRIL 19, 2000
<PAGE>
<TABLE>
<CAPTION>
TABLE OF CONTENTS
PAGE
ARTICLE I
CERTAIN DEFINITIONS
<S> <C> <C>
Section 1.01 Definitions............................................................................1
-----------
ARTICLE II
CONVEYANCE OF RECEIVABLES; ISSUANCE OF SECURITIES
Section 2.01 Conveyance of Receivables..............................................................1
-------------------------
Section 2.02 Custody of Receivable Files............................................................2
---------------------------
Section 2.03 Acceptance by Issuer...................................................................3
--------------------
Section 2.04 Representations and Warranties as to the Receivables...................................3
----------------------------------------------------
Section 2.05 Repurchase of Receivables Upon Breach of Warranty......................................3
-------------------------------------------------
Section 2.06 Issuance of Additional Variable Pay Term Notes.........................................4
----------------------------------------------
ARTICLE III
THE SELLER
Section 3.01 Representations of Seller..............................................................5
-------------------------
Section 3.02 Liability of Seller....................................................................6
-------------------
Section 3.03 Merger or Consolidation of, or Assumption of the Obligations of Seller; Amendment of
------------------------------------------------------------------------------------
Certificate of Incorporation...........................................................6
----------------------------
Section 3.04 Limitation on Liability of Seller and Others...........................................7
--------------------------------------------
Section 3.05 Seller May Own Notes or Certificates...................................................7
------------------------------------
ARTICLE IV
SERVICER'S COVENANTS; DISTRIBUTIONS; RESERVE ACCOUNT;
STATEMENTS TO NOTEHOLDERS AND CERTIFICATEHOLDERS
Section 4.01 Annual Statement as to Compliance; Notice of Servicer Default..........................8
-------------------------------------------------------------
Section 4.02 Annual Independent Accountants' Report.................................................8
--------------------------------------
Section 4.03 Access to Certain Documentation and Information Regarding Receivables..................9
---------------------------------------------------------------------
Section 4.04 Amendments to Schedule of Receivables..................................................9
-------------------------------------
Section 4.05 Assignment of Administrative Receivables and Warranty Receivables......................9
-----------------------------------------------------------------
Section 4.06 Distributions.........................................................................10
-------------
Section 4.07 Reserve Account.......................................................................13
---------------
Section 4.08 Net Deposits..........................................................................14
------------
Section 4.09 Statements to Securityholders.........................................................14
-----------------------------
ARTICLE V
CERTIFICATEHOLDER AND NOTEHOLDER STATEMENTS AND ACCOUNTS;
COLLECTIONS, DEPOSITS AND INVESTMENTS; ADVANCES
Section 5.01 Establishment of Accounts.............................................................16
-------------------------
Section 5.02 Collections...........................................................................20
-----------
- ii -
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
<S> <C> <C>
Section 5.03 Investment Earnings and Supplemental Servicing Fees...................................21
---------------------------------------------------
Section 5.04 Monthly Advances......................................................................21
----------------
Section 5.05 Servicer Liquidity Advance............................................................22
--------------------------
Section 5.06 Additional Deposits...................................................................22
-------------------
SECTION VI
LIABILITIES OF SERVICER AND OTHERS
Section 6.01 Liability of Servicer; Indemnities....................................................23
----------------------------------
Section 6.02 Merger or Consolidation of, or Assumption of the Obligations of the Servicer
----------------------------------------------------------------------------
........................................................................................................24
Section 6.03 Limitation on Liability of Servicer and Others........................................24
----------------------------------------------
Section 6.04 Delegation of Duties..................................................................25
--------------------
Section 6.05 Servicer Not to Resign................................................................26
----------------------
ARTICLE VII
DEFAULT
Section 7.01 Servicer Defaults.....................................................................26
-----------------
Section 7.02 Consequences of a Servicer Default....................................................27
----------------------------------
Section 7.03 Indenture Trustee to Act; Appointment of Successor....................................27
--------------------------------------------------
Section 7.04 Notification to Noteholders and Certificateholders....................................28
------------------------------- ------------------
Section 7.05 Waiver of Past Defaults..............................................................28
------------------------
Section 7.06 Repayment of Advances.................................................................28
---------------------
ARTICLE VIII
TERMINATION
Section 8.01 Optional Purchase of All Receivables; Insolvency of Seller; Termination of Trust
--------------------------------------------------------------------------------
........................................................................................................29
ARTICLE IX
MISCELLANEOUS PROVISIONS
Section 9.01 Amendment.............................................................................31
---------
Section 9.02 Protection of Title to Trust..........................................................32
----------------------------
Section 9.03 Notices...............................................................................34
-------
Section 9.04 GOVERNING LAW.........................................................................34
-------------
Section 9.05 Severability of Provisions............................................................34
--------------------------
Section 9.06 Assignment............................................................................34
----------
Section 9.07 Third-Party Beneficiaries.............................................................35
-------------------------
Section 9.08 Separate Counterparts.................................................................35
---------------------
Section 9.09 Headings and Cross-References.........................................................35
-----------------------------
Section 9.10 Assignment to Indenture Trustee.......................................................35
-------------------------------
Section 9.11 No Petition Covenants.................................................................35
---------------------
Section 9.12 Limitation of Liability of Indenture Trustee and Owner Trustee........................35
--------------------------------------------------------------
Section 9.13 Tax Treatment.........................................................................36
-------------
- iii -
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
<S> <C> <C>
Section 9.14 Furnishing Documents..................................................................36
--------------------
EXHIBIT A Locations of Schedule of Receivables
APPENDIX A Definitions and Rules of Construction
APPENDIX B Notices Addresses and Procedures
- iv -
</TABLE>
<PAGE>
THIS TRUST SALE AND SERVICING AGREEMENT is made as of April 19, 2000 by
and among General Motors Acceptance Corporation, a Delaware corporation and in
its capacity as Servicer under the Pooling and Servicing Agreement described
below (the "Servicer"), Capital Auto Receivables, Inc., a Delaware corporation
(the "Seller"), and Capital Auto Receivables Asset Trust 2000-1, a Delaware
business trust (the "Issuer").
WHEREAS, General Motors Acceptance Corporation has sold the Receivables
to the Seller and, as Servicer, has agreed to service the Receivables pursuant
to the Pooling and Servicing Agreement.
WHEREAS, Seller desires to sell the Receivables to the Issuer in
exchange for the Notes and Certificates pursuant to the terms of this Agreement,
and the Servicer desires to perform the servicing obligations set forth herein
for and in consideration of the fees and other benefits set forth in this
Agreement and in the Pooling and Servicing Agreement.
WHEREAS, Seller and the Issuer wish to set forth the terms pursuant to
which the Receivables are to be sold by the Seller to the Issuer and serviced by
the Servicer.
NOW, THEREFORE, in consideration of the foregoing, the other good and
valuable consideration and the mutual terms and covenants contained herein, the
parties hereto agree as follows:
ARTICLE I
CERTAIN DEFINITIONS
Section 1.01 Definitions. Certain capitalized terms used in the above
recitals and in this Agreement are defined in and shall have the respective
meanings assigned to them in Part I of Appendix A to this Agreement. All
references herein to "the Agreement" or "this Agreement" are to this Trust Sale
and Servicing Agreement as it may be amended, supplemented or modified from time
to time, the exhibits hereto and the capitalized terms used herein which are
defined in such Appendix A, and all references herein to Articles, Sections and
subsections are to Articles, Sections or subsections of this Agreement unless
otherwise specified. The rules of construction set forth in Part II of such
Appendix A shall be applicable to this Agreement.
ARTICLE II
CONVEYANCE OF RECEIVABLES; ISSUANCE OF SECURITIES
Section 2.01 Conveyance of Receivables. In consideration of the
Issuer's delivery of the Notes and the Certificates to, or upon the order of,
the Seller, the Seller does hereby enter into this Agreement and agree to
fulfill all of its obligations hereunder and to sell, transfer, assign and
otherwise convey to the Issuer, without recourse:
(a) all right, title and interest of the Seller in, to and under the
Receivables listed on the Schedule of Receivables which is on file at the
locations listed on Exhibit A hereto and (i) in the case of
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Scheduled Interest Receivables, all monies due thereunder on and after the
Cutoff Date and (ii) in the case of Simple Interest Receivables, all monies
received thereon on and after the Cutoff Date, in each case exclusive of any
amounts allocable to the premium for physical damage insurance force-placed by
the Servicer covering any related Financed Vehicle;
(b) the interest of the Seller in the security interests in the
Financed Vehicles granted by Obligors pursuant to the Receivables and, to the
extent permitted by law, any accessions thereto;
(c) except for those Receivables originated in Wisconsin, the interest
of the Seller in any proceeds from claims on any physical damage, credit life,
credit disability or other insurance policies covering Financed Vehicles or
Obligors;
(d) the interest of the Seller in any proceeds from recourse against
Dealers on Receivables;
(e) all right, title and interest of the Seller in, to and under the
Pooling and Servicing Agreement and the Custodian Agreement, including the right
of the Seller to cause GMAC to repurchase Receivables under certain
circumstances; and
(f) the interest of the Seller in any proceeds of the property
described in clauses (a), (b) and (e) above.
It is the intention of the Seller and the Issuer that the transfer and
assignment contemplated by this Agreement shall constitute a sale of the
Receivables from the Seller to the Issuer and the beneficial interest in and
title to the Receivables shall not be part of the Seller's estate in the event
of the filing of a bankruptcy petition by or against the Seller under any
bankruptcy law. The foregoing sale does not constitute and is not intended to
result in any assumption by the Issuer of any obligation of the Seller to the
Obligors, Dealers, insurers or any other Person in connection with the
Receivables, any Dealer Agreements, any insurance policies or any agreement or
instrument relating to any of them. Within two Business Days after the Closing
Date, GMAC shall cause to be deposited into the Collection Account the
collections on the Receivables described in Section 5.07 of the Pooling and
Servicing Agreement; provided, that so long as the Monthly Remittance Conditions
are satisfied, such collections need not be deposited until the first
Distribution Date.
Section 2.02 Custody of Receivable Files. In connection with the sale,
transfer and assignment of the Receivables to the Issuer pursuant to this
Agreement, GMAC, as Custodian under the Custodian Agreement, agrees to act as
Custodian thereunder for the benefit of the Issuer. The Issuer hereby accepts
and agrees to the terms and provisions of the Custodian Agreement and designates
GMAC as custodian with respect to the Receivables Files.
Section 2.03 Acceptance by Issuer. The Issuer does hereby accept all
consideration conveyed by the Seller pursuant to Section 2.01, and declares that
the Issuer shall hold such consideration upon the trust set forth in the Trust
Agreement for the benefit of Certificateholders, subject to the terms and
conditions of the Indenture and this Agreement. The Issuer hereby agrees and
accepts the appointment
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and authorization of General Motors Acceptance Corporation as Servicer under
Section 3.01 of the Pooling and Servicing Agreement. The parties agree that this
Agreement, the Indenture and the Trust Agreement constitute the Further Transfer
and Servicing Agreements for purposes of the Pooling and Servicing Agreement and
that the rights, duties and obligations of GMAC as Servicer under the Pooling
and Servicing Agreement are subject to the provisions of Sections 6.02, 6.04,
6.05, 9.01 and Article VII hereof.
Section 2.04 Representations and Warranties as to the Receivables.
Pursuant to Section 2.01(e), the Seller assigns to the Issuer all of its right,
title and interest in, to and under the Pooling and Servicing Agreement. Such
assigned right, title and interest includes the representations and warranties
of GMAC made to the Seller pursuant to Section 4.01 of the Pooling and
Servicing Agreement. The Seller hereby represents and warrants to the Issuer
that the Seller has taken no action which would cause such representations and
warranties of GMAC to be false in any material respect as of the Closing Date.
The Seller further acknowledges that the Issuer relies on the representations
and warranties of the Seller under this Agreement and of GMAC under the Pooling
and Servicing Agreement in accepting the Receivables in trust and executing
and delivering the Notes and the Certificates. The foregoing representation
and warranty speaks as of the Closing Date, but shall survive the sale, transfer
and assignment of the Receivables to the Issuer and the pledge thereof to
the Indenture Trustee pursuant to the Indenture.
Section 2.05 Repurchase of Receivables Upon Breach of Warranty. Upon
discovery by the Seller, the Servicer, the Owner Trustee or the Indenture
Trustee of a breach of any of the representations and warranties in Section 4.01
of the Pooling and Servicing Agreement or in Section 2.04 or Section 3.01 of
this Agreement that materially and adversely affects the interests of the
Noteholders or the Certificateholders in any Receivable, the party discovering
such breach shall give prompt written notice thereof to the others. As of the
last day of the second Monthly Period following its discovery or its receipt of
notice of breach (or, at the Seller's election, the last day of the first
Monthly Period following such discovery), unless such breach shall have been
cured in all material respects, in the event of a breach of the representations
and warranties made by the Seller in Section 2.04 or Section 3.01, the Seller
shall repurchase, or in the event of a breach of a representation and warranty
under Section 4.01 of the Pooling and Servicing Agreement the Seller and the
Servicer shall use reasonable efforts to enforce the obligation of GMAC under
Section 5.04 of the Pooling and Servicing Agreement to repurchase, such
Receivable from the Issuer on the related Distribution Date. The repurchase
price to be paid by the breaching party (the "Warranty Purchaser") shall be an
amount equal to the Warranty Payment. Upon repurchase, the Warranty Purchaser
shall be entitled to receive the Released Warranty Amount, if any. It is
understood and agreed that the obligation of the Warranty Purchaser to
repurchase any Receivable as to which a breach has occurred and is continuing,
and the obligation of the Seller and the Servicer to enforce GMAC's obligation
to repurchase such Receivables pursuant to the Pooling and Servicing Agreement
shall, if such obligations are fulfilled, constitute the sole remedy against the
Seller, the Servicer or GMAC for such breach available to the Issuer, the
Financial Parties, the Owner Trustee or the Indenture Trustee. The Servicer also
acknowledges its obligations to repurchase Administrative Receivables from the
Issuer pursuant to Section 3.08 of the Pooling and Servicing Agreement.
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Section 2.06 Issuance of Additional Variable Pay Term Notes.
(a) Subject to the terms and conditions of this Section 2.06, on the
Targeted Final Distribution Date for each class of Class A Notes, the Seller may
cause the Issuer to issue additional Variable Pay Term Notes. At the time of
issuance, the Seller shall determine, in its sole discretion, the Interest Rate
for each class of Variable Pay Term Notes, which shall equal, for each
Distribution Date, LIBOR plus a fixed percentage spread which will be determined
at the time of issuance based on market conditions but which will not exceed
2.5%, subject to the last sentence of the definition of Interest Rate. The
Seller shall also determine, in its sole discretion, the terms of any sale of an
interest in any Variable Pay Term Notes, provided that the proceeds to the Trust
in connection with the issuance of any Variable Pay Term Notes shall be fair
value based on market conditions. At the time of issuance of any additional
Variable Pay Term Notes, Standard and Poor's Ratings Services may re-affirm or
change its original ratings on the Offered Notes and the Offered Certificates.
(b) Subject to Section 2.06(c), the Seller agrees to offer the right to
purchase a 100% participation interest in each Variable Pay Term Note that may
be issued on the Targeted Final Distribution Date for a class of Class A Notes
to a commercial paper facility administered by GMAC, if any, such that the Total
Note Principal Payment Amount will be sufficient to pay such class of Class A
Notes in full on such Targeted Final Distribution Date. Neither the Seller nor
the Servicer shall be obligated to identify any other prospective purchasers for
interests in any Variable Pay Term Notes.
(c) No Variable Pay Term Notes may be issued on a Targeted Final
Distribution Date unless the following conditions are satisfied:
(i) after giving effect to the issuance of such Variable Pay
Term Notes and all payments of principal on the Notes and payments with
respect to the Certificate Balance on that Targeted Final Distribution
Date, the sum of the outstanding principal balance of the Notes plus
the Certificate Balance shall not exceed the Aggregate Principal
Balance of the Receivables on the last day of the month immediately
preceding that Targeted Final Distribution Date;
(ii) the Interest Rate Swap shall be in full force and effect; and
(iii) no Event of Default shall have occurred and be continuing.
ARTICLE III
THE SELLER
Section 3.01 Representations of Seller. The Seller makes the following
representations on which the Issuer is relying in acquiring the Receivables and
issuing the Notes and the Certificates. The following representations speak as
of the Closing Date but shall survive the sale, transfer and assignment of the
Receivables to the Issuer.
(a) Representations and Warranties as to the Seller.
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(i) Organization and Good Standing. The Seller has been duly
organized and is validly existing as a corporation in good standing
under the laws of the State of Delaware, with power and authority to
own its properties and to conduct its business as such properties are
presently owned and such business is presently conducted, and had at
all relevant times, and now has, power, authority and legal right to
acquire and own the Receivables;
(ii) Due Qualification. The Seller is duly qualified to do
business as a foreign corporation in good standing, and has obtained
all necessary licenses and approvals in all jurisdictions in which the
ownership or lease of property or the conduct of its business requires
such qualification;
(iii) Power and Authority. The Seller has the power and
authority to execute and deliver this Agreement and to carry out its
terms, the Seller has full power and authority to sell and assign the
property to be sold and assigned to and deposited with the Issuer as
part of the Trust and has duly authorized such sale and assignment to
the Issuer by all necessary corporate action; and the execution,
delivery and performance of this Agreement have been duly authorized by
the Seller by all necessary corporate action;
(iv) Valid Sale; Binding Obligations. This Agreement, when
duly executed and delivered, shall constitute a valid sale, transfer
and assignment of the Receivables, enforceable against creditors of and
purchasers from the Seller; and this Agreement when duly executed and
delivered, shall constitute a legal, valid and binding obligation of
the Seller enforceable in accordance with its terms, except as
enforceability may be limited by bankruptcy, insolvency, reorganization
or other similar laws affecting the enforcement of creditors' rights in
general and by general principles of equity, regardless of whether such
enforceability is considered in a proceeding in equity or at law;
(v) No Violation. The consummation of the transactions
contemplated by this Agreement by the Seller and the fulfillment of the
terms of this Agreement by the Seller shall not conflict with, result
in any breach of any of the terms and provisions of or constitute (with
or without notice or lapse of time) a default under, the certificate of
incorporation or by-laws of the Seller, or any indenture, agreement or
other instrument to which the Seller is a party or by which it is
bound, or result in the creation or imposition of any Lien upon any of
its properties pursuant to the terms of any such indenture, agreement
or other instrument, other than this Agreement, or violate any law or,
to the best of the Seller's knowledge, any order, rule or regulation
applicable to the Seller of any court or of any federal or state
regulatory body, administrative agency or other governmental
instrumentality having jurisdiction over the Seller or any of its
properties; and
(vi) No Proceedings. To the Seller's knowledge, there are no
proceedings or investigations pending, or threatened, before any court,
regulatory body, administrative agency or other tribunal or
governmental instrumentality having jurisdiction over the Seller or its
properties (i) asserting the invalidity of this Agreement, the Notes,
the Certificates, the Indenture, the Trust
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Agreement, the Custodian Agreement, the Administration Agreement or the
Interest Rate Swap, (ii) seeking to prevent the issuance of the Notes
or the Certificates or the consummation of any of the transactions
contemplated by this Agreement, the Pooling and Servicing Agreement,
the Indenture, the Trust Agreement, the Custodian Agreement, the
Administration Agreement or the Interest Rate Swap, (iii) seeking any
determination or ruling that might materially and adversely affect the
performance by the Seller of its obligations under, or the validity or
enforceability of, this Agreement, the Pooling and Servicing Agreement,
the Notes, the Certificates, the Indenture, the Trust Agreement, the
Custodian Agreement, the Administration Agreement or the Interest Rate
Swap, or (iv) seeking to adversely affect the federal income tax
attributes of the Notes or the Certificates.
(b) Representations and Warranties as to the Receivables.
(i) Good Title. No Receivable has been sold, transferred,
assigned or pledged by the Seller to any Person other than the Issuer;
immediately prior to the conveyance of the Receivables pursuant to this
Agreement the Seller had good and marketable title thereto, free of any
Lien; and, upon execution and delivery of this Agreement by the Seller,
the Issuer shall have all of the right, title and interest of the
Seller in, to and under the Receivables, the unpaid indebtedness
evidenced thereby and the collateral security therefor, free of any
Lien.
(ii) All Filings Made. All filings (including, without
limitation, UCC filings) necessary in any jurisdiction to give the
Issuer a first priority perfected ownership interest in the Receivables
shall have been made.
Section 3.02 Liability of Seller. The Seller shall be liable in
accordance with this Agreement only to the extent of the obligations in this
Agreement specifically undertaken by the Seller.
Section 3.03 Merger or Consolidation of, or Assumption of the
Obligations of Seller; Amendment of Certificate of Incorporation.
(a) Any corporation or other entity (i) into which the Seller may be
merged or consolidated, (ii) resulting from any merger or consolidation to which
the Seller shall be a party, (iii) succeeding to the business of the Seller, or
(iv) more than 50% of the voting stock (or, if not a corporation, other voting
interests) of which is owned directly or indirectly by General Motors, which
corporation in any of the foregoing cases executes an agreement of assumption to
perform every obligation of the Seller under this Agreement, shall be the
successor to the Seller under this Agreement without the execution or filing of
any document or any further act on the part of any of the parties to this
Agreement. The Seller shall provide 10 days prior notice of any merger,
consolidation or succession pursuant to this Section 3.03 to the Rating
Agencies.
(b) The Seller hereby agrees that during the term of this Agreement it
shall not (i) take any action prohibited by Article Fourth of its certificate of
incorporation, (ii) without the prior written consent of the Indenture Trustee
and the Owner Trustee and without giving prior written notice to the Rating
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Agencies, amend Article Third or Fourth of its certificate of incorporation or
(iii) incur any indebtedness, or assume or guaranty indebtedness of any other
entity, other than pursuant to the Revolving Note and the Intercompany Advance
Agreement (without giving effect to any amendment to such Note or Agreement
after the date hereof, unless the Rating Agency Condition was satisfied in
connection therewith), if such action would result in a downgrading of the then
current rating of any class of the Notes.
Section 3.04 Limitation on Liability of Seller and Others. The Seller
and any director or officer or employee or agent of the Seller may rely in good
faith on the advice of counsel or on any document of any kind prima facie
properly executed and submitted by any Person respecting any matters arising
under this Agreement. The Seller and any director or officer or employee or
agent of the Seller shall be reimbursed by the Indenture Trustee or Owner
Trustee, as applicable, for any contractual damages, liability or expense
incurred by reason of such trustee's willful misfeasance, bad faith or gross
negligence (except errors in judgment) in the performance of its duties under
this Agreement, the Indenture or the Trust Agreement, or by reason of reckless
disregard of its obligations and duties under this Agreement, the Indenture or
the Trust Agreement. The Seller shall not be under any obligation to appear in,
prosecute or defend any legal action that is not incidental to its obligations
as Seller of the Receivables under this Agreement and that in its opinion may
involve it in any expense or liability.
Section 3.05 Seller May Own Notes or Certificates. Each of the Seller
and any Person controlling, controlled by or under common control with the
Seller may in its individual or any other capacity become the owner or pledgee
of Notes or Certificates with the same rights as it would have if it were not
the Seller or an affiliate thereof except as otherwise specifically provided
herein. Except as otherwise provided herein, Notes or Certificates so owned by
or pledged to the Seller or such controlling or commonly controlled Person shall
have an equal and proportionate benefit under the provisions of this Agreement,
without preference, priority or distinction as among all of such Notes or
Certificates, respectively.
ARTICLE IV
SERVICER'S COVENANTS; DISTRIBUTIONS; RESERVE ACCOUNT;
STATEMENTS TO NOTEHOLDERS AND CERTIFICATEHOLDERS
Section 4.01 Annual Statement as to Compliance; Notice of Servicer
Default.
(a) The Servicer shall deliver to the Indenture Trustee and the Owner
Trustee, on or before August 15 of each year, beginning August 15, 2001, an
officer's certificate signed by the President or any Vice President of the
Servicer, dated as of June 30 of such year, stating that (i) a review of the
activities of the Servicer during the preceding 12-month period (or, with
respect to the first such certificate, such period as shall have elapsed from
the Closing Date to the date of such certificate) and of its performance under
this Agreement and under the Pooling and Servicing Agreement has been made under
such officer's supervision, and (ii) to such officer's knowledge, based on such
review, the Servicer has fulfilled all its obligations under such agreements
throughout such period, or, if there has been a default in the fulfillment of
any such obligation, specifying each such default known to such officer and the
nature and status thereof.
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A copy of such certificate may be obtained by any Noteholder or
Certificateholder by a request in writing to the Issuer addressed to the
Corporate Trust Office of the Indenture Trustee or the Owner Trustee, as
applicable.
(b) The Servicer shall deliver to the Indenture Trustee, the Owner
Trustee and to the Rating Agencies, promptly after having obtained knowledge
thereof, but in no event later than five Business Days thereafter, written
notice in an officer's certificate of any event which with the giving of notice
or lapse of time, or both, would become a Servicer Default under Section 7.01.
The Seller shall deliver to the Indenture Trustee, the Owner Trustee, the
Servicer and the Rating Agencies, promptly after having obtained knowledge
thereof, but in no event later than five Business Days thereafter, written
notice in an officer's certificate of any event which with the giving of notice
or lapse of time, or both, would become a Servicer Default under clause (b) of
Section 7.01.
Section 4.02 Annual Independent Accountants' Report.
(a) The Servicer shall cause a firm of independent accountants, who may
also render other services to the Servicer or the Seller, to deliver to the
Issuer, and the Rating Agencies, on or before August 15 of each year, beginning
August 15, 2001 with respect to the twelve months ended on the immediately
preceding June 30 (or, with respect to the first such report, such period as
shall have elapsed from the Closing Date to the date of such certificate), a
report (the "Accountants' Report") addressed and delivered to the Board of
Directors of the Servicer and to the Indenture Trustee and the Owner Trustee, to
the effect that such firm has audited the financial statements of the Servicer
and issued its report thereon and that such audit (i) was made in accordance
with generally accepted auditing standards, (ii) included tests relating to
automotive loans serviced for others in accordance with the requirements of the
Uniform Single Audit Program for Mortgage Bankers (the "Program"), to the extent
the procedures in the Program are applicable to the servicing obligations set
forth in this Agreement and the Pooling and Servicing Agreement, and (iii)
except as described in the report, disclosed no exceptions or errors in the
records relating to automobile and light truck loans serviced for others that,
in the firm's opinion, paragraph four of the Program requires such firm to
report. In the event that such firm requires the Owner Trustee to agree to the
procedures performed by such firm, the Servicer shall direct the Owner Trustee
in writing to so agree; it being understood and agreed that the Owner Trustee
will deliver such letter of agreement in conclusive reliance upon the direction
of the Servicer and the Owner Trustee makes no independent inquiry or
investigation as to, and shall have no obligation or liability in respect of,
the sufficiency, validity or correctness of such procedures.
(b) The Accountants' Report shall also indicate that the firm is
independent of the Seller and the Servicer within the meaning of the Code of
Professional Ethics of the American Institute of Certified Public Accountants.
(c) A copy of the Accountants' Report may be obtained by any Noteholder
or Certificateholder by a request in writing to the Issuer addressed to the
Corporate Trust Office of the Indenture Trustee or the Owner Trustee.
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Section 4.03 Access to Certain Documentation and Information Regarding
Receivables. The Servicer shall provide to the Indenture Trustee and the Owner
Trustee reasonable access to the documentation regarding the Receivables. The
Servicer shall provide such access to any Noteholder or Certificateholder only
in such cases where a Noteholder or a Certificateholder is required by
applicable statutes or regulations to review such documentation. In each case,
such access shall be afforded without charge but only upon reasonable request
and during normal business hours at offices of the Servicer designated by the
Servicer. Nothing in this Section 4.03 shall derogate from the obligation of the
Servicer to observe any applicable law prohibiting disclosure of information
regarding Obligors, and the failure of the Servicer to provide access as
provided in this Section 4.03 as a result of such obligation shall not
constitute a breach of this Section 4.03.
Section 4.04 Amendments to Schedule of Receivables. If the Servicer,
during a Monthly Period, assigns to a Receivable an account number that differs
from the account number previously identifying such Receivable on the Schedule
of Receivables, the Servicer shall deliver to the Seller, the Indenture Trustee
and the Owner Trustee on or before the Distribution Date related to such Monthly
Period an amendment to the Schedule of Receivables to report the newly assigned
account number. Each such amendment shall list all new account numbers assigned
to Receivables during such Monthly Period and shall show by cross reference the
prior account numbers identifying such Receivables on the Schedule of
Receivables.
Section 4.05 Assignment of Administrative Receivables and Warranty
Receivables. Upon receipt of the Administrative Purchase Payment or the Warranty
Payment with respect to an Administrative Receivable or a Warranty Receivable,
respectively, each of the Indenture Trustee and the Owner Trustee shall assign,
without recourse, representation or warranty, to the Servicer or the Warranty
Purchaser, as applicable, all of such Person's right, title and interest in, to
and under such Administrative Receivable or Warranty Receivable, all monies due
thereon, the security interests in the related Financed Vehicle, proceeds from
any Insurance Policies, proceeds from recourse against a Dealer on such
Receivable and the interests of such Person or the Trust, as applicable, in
certain rebates of premiums and other amounts relating to the Insurance Policies
and any document relating thereto, such assignment being an assignment outright
and not for security; and the Servicer or the Warranty Purchaser, as applicable,
shall thereupon own such Receivable, and all such security and documents, free
of any further obligations to the Indenture Trustee, the Owner Trustee, the
Noteholders or the Certificateholders with respect thereto. If in any Proceeding
it is held that the Servicer may not enforce a Receivable on the ground that it
is not a real party in interest or a holder entitled to enforce the Receivable,
the Indenture Trustee or the Owner Trustee, as applicable, shall, at the
Servicer's expense, take such steps as the Servicer deems necessary to enforce
the Receivable, including bringing suit in the name of such Person or the names
of the Noteholders or the Certificateholders.
Section 4.06 Distributions.
(a) On or before each Determination Date, the Servicer shall calculate
the Total Available Amount, the Available Interest, the Available Principal, the
expected Variable Pay Term Notes Issuance Proceeds, if any, the Accumulation
Amount, the Total Servicing Fee, the Total Note Principal Payment Amount, the
Aggregate Noteholders' Interest Distributable Amount, the Aggregate Noteholders'
Principal
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Distributable Amount, the Certificateholders' Interest Distributable Amount, the
Certificateholders' Principal Distributable Amount, the net amount, if any,
payable by the Trust under the Interest Rate Swap and all other amounts required
to determine the amounts, if any, to be deposited in or paid from each of the
Collection Account, the Note Distribution Account, the Certificate Distribution
Account, the Reserve Account, the Accumulation Account and, if applicable, the
Payment Ahead Servicing Account on or before the related Distribution Date (or,
in the case of payments due under the Interest Rate Swap, if any, on the
Business Day preceding the Distribution Date).
(b) (i) On or before each Distribution Date, the Indenture Trustee
shall cause collections made during the related Monthly Period which constitute
Payments Ahead to be transferred from the Collection Account to the Servicer, or
to the Payment Ahead Servicing Account, if required pursuant to Section 5.01(e).
(ii) On or before each Distribution Date (or, with respect to
funds necessary to make payments due, if any, under the Interest Rate
Swap for the related Monthly Period, on the Business Day preceding the
Distribution Date), the Indenture Trustee shall transfer from the
Payment Ahead Servicing Account (or, if the Servicer is not required to
make deposits to the Payment Ahead Servicing Account on a daily basis
pursuant to Section 5.01(e), the Servicer shall deposit) to the
Collection Account the aggregate Applied Payments Ahead and, as
applicable, Applied Payments Ahead necessary to make payments under the
Interest Rate Swap pursuant to Section 4.06(c)(ii)).
(iii) On or before each Distribution Date, the Indenture
Trustee shall transfer from the Collection Account to the Servicer, in
immediately available funds, reimbursement of Outstanding Monthly
Advances pursuant to Section 5.04, payment of Excess Simple Interest
Collections, if any, pursuant to Section 3.11(b) of the Pooling and
Servicing Agreement, and payments of Liquidation Expenses (and any
unpaid Liquidation Expenses from prior periods) with respect to
Receivables which became Liquidating Receivables during the related
Monthly Period pursuant to Section 3.04 of the Pooling and Servicing
Agreement.
(iv) On or before each Distribution Date (or, with respect to
funds necessary to make payments due, if any, under the Interest Rate
Swap for the related payment period thereunder, on or before the
Business Day preceding the Distribution Date), the Indenture Trustee
shall withdraw from the Reserve Account and deposit in the Collection
Account the lesser of (A) the amount of cash or other immediately
available funds deposited therein and (B) the amount, if any, by which
(x) the sum of the Total Servicing Fee, the Aggregate Noteholders'
Interest Distributable Amount, the Certificateholders' Interest
Distributable Amount, the Aggregate Noteholders' Principal
Distributable Amount, the net amount, if any, payable by the Trust
under the Interest Rate Swap and the Certificateholders' Principal
Distributable Amount for such Distribution Date exceeds (y) the sum of
the Available Interest and Available Principal for such Distribution
Date.
(v) On or before each Distribution Date that is a Targeted
Final Distribution Date for a class of Class A Notes, the Indenture
Trustee shall withdraw from the Accumulation Account and deposit in the
Collection Account the Accumulation Amount, if any, for such
Distribution Date
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and, as applicable, the Accumulation Amount necessary to make payments
under the Interest Rate Swap pursuant to Section 4.06(c)(ii).
(vi) On or before the first Distribution Date during a
Sequential Amortization Period caused by the termination of the
Interest Rate Swap, the Indenture Trustee shall withdraw from the
Accumulation Account and deposit in the Collection Account the
Accumulation Amount, if any, for such Distribution Date.
(vii) On or before the first Distribution Date after the Notes
have been declared due and payable following an Event of Default (or,
with respect to funds necessary to make payments due, if any, under the
Interest Rate Swap for the related Monthly Period, on the Business Day
preceding the Distribution Date), the Indenture Trustee shall withdraw
from the Accumulation Account and deposit in the Collection Account the
Accumulation Amount, if any, for such Distribution Date or, as
applicable, the Accumulation Amount necessary to make payments under
the Interest Rate Swap pursuant to Section 4.06(c)(ii).
(c) Except as otherwise provided in Section 4.06(d), on each
Distribution Date (or in the case of payments to the Swap Counterparty pursuant
to clause (ii) below, if any, on the Business Day preceding the Distribution
Date) the Indenture Trustee (based on the information contained in the
Servicer's Accounting delivered on the related Determination Date pursuant to
Section 3.10 of the Pooling and Servicing Agreement) shall make the following
distributions from the Collection Account (after the withdrawals, deposits and
transfers specified in Section 4.06(b) have been made) in the following order of
priority:
(i) first, to the Servicer, to the extent of the Total Available
Amount, the Total Servicing Fee;
(ii) second, to the Swap Counterparty, to the extent of the
Total Available Amount (as such amount has been reduced by the
distributions described in clause (i) above), the net amount, if any,
due under the Interest Rate Swap (exclusive of payments due in respect
of an Early Termination Date of the Interest Rate Swap);
(iii) third, to the extent of the Total Available Amount (as
such amount has been reduced by the distributions described in clauses
(i) and (ii) above) (a) to the Note Distribution Account in respect of
the Aggregate Noteholders' Interest Distributable Amount, and (b) to
the Swap Counterparty in respect of any payments due to the Swap
Counterparty in connection with any Early Termination Date of the
Interest Rate Swap, allocated between the Note Distribution Account and
the Swap Counterparty in proportion to the amounts owing to the Swap
Counterparty in connection with such Early Termination Date and in
respect of the Aggregate Noteholders' Interest Distributable Amount;
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(iv) fourth, to the Certificate Distribution Account, to the
extent of the Total Available Amount (as such amount has been reduced
by the distributions described in clauses (i), (ii) and (iii) above),
the Certificateholders' Interest Distributable Amount;
(v) fifth, to the Note Distribution Account, to the extent of
the Total Available Amount (as such amount has been reduced by the
distributions described in clauses (i) through (iv) above), the
Aggregate Noteholders' Principal Distributable Amount;
(vi) sixth, to the Accumulation Account, to the extent of the
Total Available Amount (as such amount has been reduced by the
distributions described in clauses (i) through (v) above), the
Undistributed Principal Amount, if any;
(vii) seventh, to the Certificate Distribution Account, to the
extent of the Total Available Amount (as such amount has been reduced
by the distributions described in clauses (i) through (vi) above), the
Certificateholders' Principal Distributable Amount; and
(viii) eighth, to the Reserve Account, any portion of the
Total Available Amount remaining after the distributions described in
clauses (i) through (vii) above.
(d) Notwithstanding the foregoing, at any time that the Notes have not
been paid in full and the principal balance of the Notes has been declared
immediately due and payable following the occurrence of an Event of Default
under Sections 5.1(a), 5.1 (b), 5.1(c), 5.1(e) or 5.1(f) of the Indenture, then
until such time as the Notes have been paid in full and the Indenture has been
discharged or the foregoing Events of Default have been cured or waived as
provided in Section 5.2(b) of the Indenture, no amounts shall be deposited in or
distributed to the Certificate Distribution Account. Any such amounts otherwise
distributable to the Certificate Distribution Account shall be deposited instead
into the Note Distribution Account for payment of principal on the Notes.
Section 4.07 Reserve Account.
(a) There shall be established in the name of and maintained with the
Indenture Trustee an Eligible Deposit Account known as the Capital Auto
Receivables Asset Trust 2000-1 Reserve Account (the "Reserve Account") to
include the money and other property deposited and held therein pursuant to this
Section 4.07(a), Section 4.07(e) and Section 4.06(c). On the Closing Date, the
Seller shall deposit the Reserve Account Initial Deposit into the Reserve
Account. The Reserve Account shall not under any circumstances be deemed to be
part of or otherwise included in the Trust.
(b) If the amount on deposit in the Reserve Account on any Distribution
Date (after giving effect to all deposits therein or withdrawals therefrom on
such Distribution Date) exceeds the Specified Reserve Account Balance for such
Distribution Date, the Servicer shall instruct the Indenture Trustee to
distribute an amount equal to any such excess to the Seller; it being understood
that no such distribution from the Reserve Account shall be made to the Seller
unless the amount so on deposit in the Reserve Account exceeds such Specified
Reserve Account Balance.
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(c) In order to provide for the payment to the Noteholders, the
Certificateholders and the Servicer in accordance with Sections 4.06(c) and
4.06(d), to assure availability of the amounts maintained in the Reserve Account
for the benefit of the Noteholders, the Certificateholders and the Servicer, and
as security for the performance by the Seller of its obligations hereunder, the
Seller on behalf of itself and its successors and assigns, hereby pledges to the
Indenture Trustee and its successors and assigns, all its rights, title and
interest in and to the Reserve Account Property, to have and to hold all such
property, rights and privileges unto the Indenture Trustee its successors and
assigns, in trust for the uses and purposes, and subject to the terms and
provisions, set forth in this Section 4.07. The Indenture Trustee hereby
acknowledges such transfer and accepts the trust hereunder and shall hold and
distribute the Reserve Account Property in accordance with the terms and
provisions of this Agreement.
(d) Each of the Seller and Servicer agree to take or cause to be taken
such further actions, to execute, deliver and file or cause to be executed,
delivered and filed such further documents and instruments (including, without
limitation, any UCC financing statements or this Agreement) as may be determined
to be necessary, in an Opinion of Counsel to the Seller delivered to the
Indenture Trustee, in order to perfect the interests created by this Section
4.07 and otherwise fully to effectuate the purposes, terms and conditions of
this Section 4.07. The Seller shall:
(i) promptly execute, deliver and file any financing
statements, amendments, continuation statements, assignments,
certificates and other documents with respect to such interests and
perform all such other acts as may be necessary in order to perfect or
to maintain the perfection of the Indenture Trustee's security
interest; and
(ii) make the necessary filings of financing statements or
amendments thereto within thirty days after the occurrence of any of
the following: (A) any change in their respective corporate names or
any trade names, (B) any change in the location of their respective
chief executive offices or principal places of business and (C) any
merger or consolidation or other change in their respective identities
or corporate structures; and shall promptly notify the Indenture
Trustee of any such filings.
(e) If the Servicer pursuant to Section 5.04 determines on any
Determination Date that it is required to make a Monthly Advance and does not do
so from its own funds, the Servicer shall instruct the Indenture Trustee to
withdraw funds from the Reserve Account and deposit them in the Collection
Account to cover any shortfall. Such payment shall be deemed to have been made
by the Servicer pursuant to Section 5.04 for purposes of making distributions
pursuant to this Agreement, but shall not otherwise satisfy the Servicer's
obligation to deliver the amount of the Monthly Advances, and the Servicer shall
within two Business Days replace any funds in the Reserve Account so used. The
Servicer shall not be entitled to reimbursement for any such deemed Monthly
Advances unless and until the Servicer shall have replaced such funds in the
Reserve Account.
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Section 4.08 Net Deposits. At any time that (i) GMAC shall be the
Servicer, (ii) the Servicer shall be permitted by Section 5.02 to remit
collections on a basis other than a daily basis, and (iii) the Servicer shall be
permitted by Section 5.01(e) to remit Payments Ahead on a basis other than on a
daily basis, the Servicer, the Seller, the Indenture Trustee and the Owner
Trustee may make any remittances pursuant to this Article IV net of amounts to
be distributed by the applicable recipient to such remitting party. Nonetheless,
each such party shall account for all of the above described remittances and
distributions as if the amounts were deposited and/or transferred separately.
Section 4.09 Statements to Securityholders.
(a) On each Distribution Date, the Owner Trustee shall (except as
otherwise provided in the Trust Agreement) deliver to each Certificateholder,
and the Indenture Trustee shall include with each distribution to each
Noteholder, a statement (which statement shall also be provided to the Rating
Agencies) prepared by the Servicer based on information in the Servicer's
Accounting furnished pursuant to Section 3.10 of the Pooling and Servicing
Agreement. Each such statement to be delivered to Certificateholders and
Noteholders, respectively, shall set forth the following information concerning
the Certificates or the Notes, as appropriate, with respect to such Distribution
Date or the preceding Monthly Period:
(i) the amount of such distribution allocable to principal of
each class of the Notes and to the Certificate Balance;
(ii) the amount of the distribution, if any, allocable to interest
on or with respect to each class of securities;
(iii) the Aggregate Principal Balance as of the close of
business on the last day of such Monthly Period (or, for the first
Distribution Date, the Initial Aggregate Principal Balance) and the
Principal Distributable Amount for such Distribution Date;
(iv) the Note Principal Balance for each class of Notes, the
Aggregate Note Principal Balance, the Certificate Balance, the Note
Pool Factor for each class of Notes and the Certificate Pool Factor,
each as of such Distribution Date after giving effect to all payments
described under clause (i) above;
(v) the amount of the Noteholders' Interest Carryover
Shortfall, the Noteholders' Principal Carryover Shortfall, the
Certificateholders' Interest Carryover Shortfall, and the
Certificateholders' Principal Carryover Shortfall, if any, and the
change in each of such amounts from the preceding Distribution Date;
(vi) the aggregate amount in the Payment Ahead Servicing
Account or on deposit with the Servicer as Payments Ahead and the
change in such amount from the previous Distribution Date;
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(vii) the amount of Outstanding Monthly Advances on such
Distribution Date;
(viii) the amount of the Total Servicing Fee paid to the Servicer
with respect to the related Monthly Period;
(ix) the amount, if any, distributed to Noteholders and
Certificateholders from amounts on deposit in the Reserve Account;
(x) the balance of the Reserve Account and the Accumulation
Account on such Distribution Date (after giving effect to changes
therein on such Distribution Date); and
(xi) LIBOR for such Distribution Date.
Each amount set forth pursuant to clauses (i), (ii), (v), (viii) and (ix) above
shall be expressed as a dollar amount per $1,000 of initial principal amount of
the Notes or of the Certificate Balance, as applicable.
(b) Within the prescribed period of time for tax reporting purposes
after the end of each calendar year during the term of this Agreement, the
Indenture Trustee and the Owner Trustee shall mail, to each Person who at any
time during such calendar year shall have been a holder of Notes or
Certificates, respectively, and received any payments thereon, a statement
containing such information as may be required by the Code and applicable
Treasury Regulations to enable such securityholder to prepare its federal income
tax returns.
ARTICLE V
CERTIFICATEHOLDER AND NOTEHOLDER STATEMENTS AND ACCOUNTS;
COLLECTIONS, DEPOSITS AND INVESTMENTS; ADVANCES
Section 5.01 Establishment of Accounts.
(a) (i) The Servicer, for the benefit of the Financial Parties, shall
establish and maintain in the name of the Indenture Trustee an Eligible Deposit
Account known as the Capital Auto Receivables Asset Trust 2000-1 Collection
Account (the "Collection Account"), bearing an additional designation clearly
indicating that the funds deposited therein are held for the benefit of the
Financial Parties.
(ii) The Servicer, for the benefit of the Noteholders, shall
establish and maintain in the name of the Indenture Trustee an Eligible
Deposit Account known as the Capital Auto Receivables Asset Trust
2000-1 Note Distribution Account (the "Note Distribution Account"),
bearing an additional designation clearly indicating that the funds
deposited therein are held for the benefit of the Noteholders.
(iii) If and as required pursuant to the Trust Agreement, the
Servicer, for the benefit of the Certificateholders, shall establish
and maintain in the name of the Issuer an Eligible Deposit
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Account known as the Capital Auto Receivables Asset Trust 2000-1
Certificate Distribution Account (the "Certificate Distribution
Account") bearing an additional designation clearly indicating that the
funds deposited therein are held for the benefit of the
Certificateholders.
(iv) The Servicer, for the benefit of the Obligors, shall
establish and maintain in the name of the Indenture Trustee an account
known as the Capital Auto Receivables Asset Trust 2000-1 Payment Ahead
Servicing Account (the "Payment Ahead Servicing Account"). The Payment
Ahead Servicing Account shall not be property of the Issuer.
(v) The Servicer, for the benefit of the Noteholders and the
Certificateholders, shall establish and maintain in the name of the
Indenture Trustee an Eligible Deposit Account known as the Capital Auto
Receivables Asset Trust 2000-1 Accumulation Account (the "Accumulation
Account"), bearing an additional designation clearly indicating that
the funds deposited therein are held for the benefit of the Noteholders
and the Certificateholders.
(b) (i) Each of the Designated Accounts and the Payment Ahead
Servicing Account shall be initially established with the Indenture Trustee
and shall be maintained with the Indenture Trustee so long as (A) the
short-term unsecured debt obligations of the Indenture Trustee have the
Required Deposit Rating or (B) each of the Designated Accounts are
maintained in the corporate trust department of the Indenture Trustee.
All amounts held in such accounts (including amounts, if any, which the
Servicer is required to remit daily to the Collection Account pursuant to
Section 5.02) shall, to the extent permitted by applicable laws, rules and
regulations, be invested, at the written direction of the Servicer, by such
bank or trust company in Eligible Investments. Such written direction
shall constitute certification by the Servicer that any such investment is
authorized by this Section 5.01. Funds deposited in the Reserve
Account shall be invested in Eligible Investments which mature prior to the next
Distribution Date, and then only to the extent, as shall be otherwise permitted
by the Rating Agencies. Investments in Eligible Investments shall be made in the
name of the Indenture Trustee or its nominee, and such investments shall not be
sold or disposed of prior to their maturity; provided, however, that Notes held
in the Reserve Account may be sold or disposed of prior to their maturity so
long as (x) the Servicer directs the Indenture Trustee to make such sale or
disposition, (y) the Indenture Trustee gives reasonable prior notice of such
disposition to the Administrator and (z) such Notes are sold at a price equal to
or greater than the unpaid principal balance thereof if, following such sale,
the amount on deposit in the Reserve Account would be less than the Specified
Reserve Account Balance. Should the short-term unsecured debt obligations of the
Indenture Trustee (or any other bank or trust company with which the Designated
Accounts or Payment Ahead Servicing Account are maintained) no longer have the
Required Deposit Rating, then the Servicer shall within 10 Business Days (or
such longer period, not to exceed 30 calendar days, as to which each Rating
Agency shall consent), with the Indenture Trustee's assistance as necessary,
cause the Designated Accounts and the Payment Ahead Servicing Account (A) to be
moved to a bank or trust company, the short-term unsecured debt obligations of
which shall have the Required Deposit Rating, or (B) with respect to the
Designated Accounts, to be moved to the corporate trust department of the
Indenture Trustee. Investment Earnings on funds deposited in the Designated
Accounts and the Payment Ahead Servicing Account shall be payable to the
Servicer. The Indenture Trustee or the other Person holding the Designated
Accounts as provided in this Section 5.01(b)(i) shall be the "Securities
Intermediary." If the Securities Intermediary
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shall be a Person other than the Indenture Trustee, the Servicer shall obtain
the express agreement of such Person to the obligations of the Securities
Intermediary set forth in this Section 5.01 and an Opinion of Counsel that such
Person can perform such Obligations.
(ii) With respect to the Designated Account Property, the
Indenture Trustee agrees, by its acceptance hereof, that:
(A) Any Designated Account Property that is held in
deposit accounts shall be held solely in Eligible Deposit
Accounts. The Designated Accounts are accounts to which
Financial Assets will be credited.
(B) All securities or other property underlying any
Financial Assets credited to the Designated Accounts shall be
registered in the name of the Securities Intermediary,
indorsed to the Securities Intermediary or in blank or
credited to another securities account maintained in the name
of the Securities Intermediary and in no case will any
Financial Asset credited to any of the Designated Accounts be
registered in the name of the Issuer, the Servicer or the
Seller, payable to the order of the Issuer, the Servicer or
the Seller or specially indorsed to the Issuer, the Servicer
or the Seller except to the extent the foregoing have been
specially indorsed to the Securities Intermediary or in blank.
(C) All property delivered to the Securities
Intermediary pursuant to this Agreement will be credited upon
receipt of such property to the appropriate Designated
Account.
(D) Each item of property (whether investments,
investment property, Financial Asset, security, instrument or
cash) credited to a Designated Account shall be treated as a
"financial asset" within the meaning of Section 8-102(a)(9) of
the New York UCC.
(E) If at any time the Securities Intermediary shall
receive any order from the Indenture Trustee directing
transfer or redemption of any Financial Asset relating to the
Designated Accounts, the Securities Intermediary shall comply
with such order without further consent by the Trust, the
Servicer, the Seller or any other Person.
(F) The Designated Accounts shall be governed by the
laws of the State of New York, regardless of any provision in
any other agreement. For purposes of the UCC, New York shall
be deemed to be the Securities Intermediary's jurisdiction and
the Designated Accounts (as well as the Security Entitlements
related thereto) shall be governed by the laws of the State of
New York.
(G) The Securities Intermediary has not entered into,
and until the termination of this Agreement will not enter
into, any agreement with any other Person relating to the
Designated Accounts and/or any Financial Assets or other
property credited thereto pursuant to which it has agreed to
comply with entitlement orders (as defined in Section
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8-102(a)(8) of the New York UCC) of such other Person and the
Securities Intermediary has not entered into, and until the
termination of this Agreement will not enter into, any
agreement with the Issuer, the Seller, the Servicer or the
Indenture Trustee purporting to limit or condition the
obligation of the Securities Intermediary to comply with
entitlement orders as set forth in Section 5.01(b)(ii)(E)
hereof.
(H) Except for the claims and interest of the
Indenture Trustee in the Designated Accounts, the Securities
Intermediary has no knowledge of claims to, or interests in,
the Designated Accounts or in any Financial Asset credited
thereto. If any other Person asserts any Lien, encumbrance or
adverse claim (including any writ, garnishment, judgment,
warrant of attachment, execution or similar process) against
the Designated Accounts or in any Financial Asset carried
therein, the Securities Intermediary will promptly notify the
Indenture Trustee, the Servicer and the Issuer thereof.
(I) The Securities Intermediary will promptly send
copies of all statements, confirmations and other
correspondence concerning the Designated Accounts and/or any
Designated Account Property simultaneously to each of the
Servicer and the Indenture Trustee, at the addresses set forth
in Appendix B to this Agreement.
(J) The Indenture Trustee shall maintain each item of
Designated Account Property in the particular Designated
Account to which such item originated and shall not commingle
items from different Designated Accounts.
(iii) The Servicer shall have the power, revocable by the
Indenture Trustee (or by the Owner Trustee with the consent of the
Indenture Trustee) to instruct the Indenture Trustee to make
withdrawals and payments from the Designated Accounts for the purpose
of permitting the Servicer or the Owner Trustee to carry out its
respective duties hereunder or permitting the Indenture Trustee to
carry out its duties under the Indenture.
(iv) The Indenture Trustee shall possess all right, title and
interest in and to all funds on deposit from time to time in the
Designated Accounts and in all proceeds thereof (except Investment
Earnings). Except as otherwise provided herein or in the Indenture, the
Designated Accounts shall be under the exclusive dominion and control
of the Indenture Trustee for the benefit of the Securityholders and the
Indenture Trustee shall have sole signature power and authority with
respect thereto.
(v) The Servicer shall not direct the Indenture Trustee to
make any investment of any funds or to sell any investment held in any
of the Designated Accounts unless the security interest granted and
perfected in such account shall continue to be perfected in such
investment or the proceeds of such sale, in either case without any
further action by any Person, and, in connection with any direction to
the Indenture Trustee to make any such investment or sale, if requested
by the Indenture Trustee, the Servicer shall deliver to the Indenture
Trustee an Opinion of Counsel, acceptable to the Indenture Trustee, to
such effect.
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(c) Pursuant to the Trust Agreement, the Issuer shall possess all
right, title and interest in and to all funds on deposit from time to time in
the Certificate Distribution Account and in all proceeds thereof (except
Investment Earnings). Except as otherwise provided herein or in the Trust
Agreement, the Certificate Distribution Account shall be under the sole dominion
and control of the Owner Trustee for the benefit of the Certificateholders. If,
at any time, the Certificate Distribution Account ceases to be an Eligible
Deposit Account, the Owner Trustee (or the Seller on behalf of the Owner
Trustee, if the Certificate Distribution Account is not then held by the Owner
Trustee or an Affiliate thereof) shall within 10 Business Days (or such longer
period, not to exceed 30 calendar days, as to which each Rating Agency may
consent) establish a new Certificate Distribution Account as an Eligible Deposit
Account and shall transfer any cash and/or any investments to such new
Certificate Distribution Account.
(d) The Indenture Trustee, the Owner Trustee, the Securities
Intermediary and each other Eligible Deposit Institution with whom a Designated
Account or the Certificate Distribution Account is maintained waives any right
of set-off, counterclaim, security interest or bankers' lien to which it might
otherwise be entitled.
(e) At any time that each Monthly Remittance Condition is satisfied,
then (x) Payments Ahead need not be remitted to and deposited in the Payment
Ahead Servicing Account but instead may be remitted to and held by the Servicer
and (y) the Servicer shall not be required to segregate or otherwise hold
separate any Payments Ahead, but the Servicer shall be required to remit Applied
Payments Ahead to the Collection Account in accordance with Section 4.06(b)(ii).
The Servicer shall promptly notify the Indenture Trustee if any Monthly
Remittance Condition ceases to be satisfied such that the Payments Ahead will
not be remitted in accordance with the prior sentence. Commencing with the first
day of the first Monthly Period that begins at least two Business Days after the
day on which any Monthly Remittance Condition ceases to be satisfied, the
Servicer shall deposit in the Payment Ahead Servicing Account the amount of any
Payments Ahead then held by it, and thereafter, for so long as a Monthly
Remittance Condition continues to be unsatisfied, the Servicer shall deposit any
additional Payments Ahead in the Payments Ahead Servicing Account within two
Business Days after receipt thereof. Notwithstanding the foregoing, if a Monthly
Remittance Condition is unsatisfied the Servicer may utilize, with respect to
the Payments Ahead, an alternative remittance schedule (which may include a
remittance schedule utilized by the Servicer at a time when the Monthly
Remittance Conditions were satisfied), if the Servicer provides to the Indenture
Trustee written confirmation from the Rating Agencies that such alternative
remittance schedule will not result in the downgrading or withdrawal by the
Rating Agencies of the ratings then assigned to the Notes and the Certificates.
Neither the Indenture Trustee nor the Owner Trustee shall be deemed to have
knowledge of any Servicer Default unless such trustee has received notice of
such event or circumstance from the other trustee, the Seller or the Servicer in
an officer's certificate or from Certificateholders whose Certificates evidence
not less than 25% of the Voting Interests as of the close of the preceding
Distribution Date or from Noteholders whose Notes evidence not less than 25% of
the Outstanding Amount of the Notes as of the close of the preceding
Distribution Date or unless a Responsible Officer in the Corporate Trust Office
of the Indenture Trustee with knowledge hereof and familiarity herewith has
actual knowledge of such event or circumstance.
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Section 5.02 Collections. If a Monthly Remittance Condition is not
satisfied, commencing with the first day of the first Monthly Period that begins
at least two Business Days after the day on which any Monthly Remittance
Condition ceases to be satisfied, the Servicer shall remit to the Collection
Account all payments by or on behalf of the Obligors (including Payments Ahead
in accordance with Section 5.01(e)) on the Receivables and all Liquidation
Proceeds within two Business Days after receipt thereof. Notwithstanding the
foregoing, if a Monthly Remittance Condition is unsatisfied, the Servicer may
utilize an alternative remittance schedule (which may include a remittance
schedule utilized by the Servicer at a time when the Monthly Remittance
Conditions were satisfied), if the Servicer provides to the Indenture Trustee
written confirmation from the Rating Agencies that such alternative remittance
schedule will not result in the downgrading or withdrawal by the Rating Agencies
of the ratings then assigned to the Notes or the Certificates. At all times when
all Monthly Remittance Conditions are satisfied, the Servicer (i) shall not be
required to segregate or otherwise hold separate any Payments Ahead remitted to
the Servicer and (ii) shall remit collections received during a Monthly Period
to the Collection Account in immediately available funds on or before the
related Distribution Date (or in the case of amounts payable to the Swap
Counterparty pursuant to Section 4.06(c)(ii), if any, on or before the Business
Day preceding the Distribution Date).
Section 5.03 Investment Earnings and Supplemental Servicing Fees. The
Servicer shall be entitled to receive all Investment Earnings and Supplemental
Servicing Fees when and as paid without any obligation to the Owner Trustee, the
Indenture Trustee or the Seller in respect thereof. The Servicer will have no
obligation to deposit any such amount in any account established hereunder. To
the extent that any such amount shall be held in any account held by the
Indenture Trustee or the Owner Trustee, or otherwise established hereunder, such
amount will be withdrawn therefrom and paid to the Servicer upon presentation of
a certificate signed by a Responsible Officer of the Servicer setting forth, in
reasonable detail, the amount of such Investment Earnings or Supplemental
Servicing Fees.
Section 5.04 Monthly Advances.
(a) Subject to the following sentence, as of the last day of each
Monthly Period, with respect to each Scheduled Interest Receivable (other than
an Administrative Receivable or a Warranty Receivable), if there is a shortfall
in the Scheduled Payment remaining after application of the Deferred Prepayment
pursuant to the last sentence of Section 3.11(a) of the Pooling and Servicing
Agreement, the Servicer shall advance an amount equal to such shortfall (such
amount, a "Scheduled Interest Advance"). The Servicer shall be obligated to make
a Scheduled Interest Advance in respect of a Scheduled Interest Receivable only
to the extent that the Servicer, in its sole discretion, shall determine that
such advance shall be recoverable from subsequent collections or recoveries on
any Receivable. The Servicer shall be reimbursed for Outstanding Scheduled
Interest Advances with respect to a Receivable from the following sources with
respect to such Receivable, in each case as set forth in the Pooling and
Servicing Agreement: (i) subsequent payments by or on behalf of the Obligor,
(ii) collections of Liquidation Proceeds, and (iii) the Warranty Payment. At
such time as the Servicer shall determine that any Outstanding Scheduled
Interest Advances with respect to any Scheduled Interest Receivable shall not be
recoverable from payments with respect to such Receivable, the Servicer shall be
reimbursed from any collections made on other Receivables held by the Issuer.
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(b) As of the last day of each Monthly Period, the Servicer shall
advance an amount equal to the excess, if any, of (i) the amount of interest
that would be due during such Monthly Period on all Simple Interest Receivables
held by the Issuer (assuming that the payment on each such Receivable was
received on its respective due date) over (ii) all payments received during such
Monthly Period on all Simple Interest Receivables held by the Issuer to the
extent allocable to interest (such excess, a "Simple Interest Advance"). In
addition, Liquidation Proceeds with respect to a Simple Interest Receivable
allocable to accrued and unpaid interest thereon (but not including interest for
the then current Monthly Period) shall be paid to the Servicer but only to the
extent of any Outstanding Simple Interest Advances. The Servicer shall not make
any advance with respect to principal of any Simple Interest Receivable. Excess
Simple Interest Collections shall be paid to the Servicer as provided in Section
3.11(b) of the Pooling and Servicing Agreement.
Section 5.05 Servicer Liquidity Advance. If, on a Targeted Final
Distribution Date for any class of Class A Notes, there is a binding agreement
for the sale of an interest in the Variable Pay Term Notes to be issued on such
Targeted Final Distribution Date and the Servicer determines that the proceeds
from such sale will not be received by the Trust on that Targeted Final
Distribution Date in time to make payments on the Notes on or before such
Targeted Final Distribution Date, the Servicer may, in its sole discretion, make
a liquidity advance in an amount equal to the expected proceeds if it
determines, in its sole discretion, that it has received reasonable assurances
from the purchaser of an interest in the Variable Pay Term Notes to the effect
that the full amount of the expected proceeds will be delivered within two
Business Days after such Targeted Final Distribution Date (such advance, a
"Servicer Liquidity Advance"). If the Servicer makes a Servicer Liquidity
Advance, it will be immediately reimbursed for the advance upon receipt of the
purchase price for the related Variable Pay Term Notes or an interest therein.
If such purchase price for such Variable Pay Term Notes, or an interest therein,
is not paid within two Business Days after the applicable Targeted Final
Distribution Date, the Servicer will have the right to be reimbursed out of
collections on the Receivables as and when received by the Servicer and such
Variable Pay Term Notes, if issued, will be canceled.
Section 5.06 Additional Deposits. The Servicer shall deposit in the
Collection Account the aggregate Monthly Advances pursuant to Sections 5.04(a)
and (b) and the aggregate amounts to be paid to the Issuer pursuant to Section
3.03 of the Pooling and Servicing Agreement. The Servicer and the Seller shall
deposit in the Collection Account the aggregate Administrative Purchase Payments
and Warranty Payments with respect to Administrative Receivables and Warranty
Receivables, respectively. All such deposits with respect to a Monthly Period
shall be made in immediately available funds on or before the Distribution Date
related to such Monthly Period (or, to the extent such funds are necessary to
make payments due, if any, under the Interest Rate Swap for the related Monthly
Period, on or before the Business Day preceding the Distribution Date).
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SECTION VI
LIABILITIES OF SERVICER AND OTHERS
Section 6.01 Liability of Servicer; Indemnities.
(a) The Servicer shall be liable in accordance with this Agreement only
to the extent of the obligations in this Agreement and the Pooling and Servicing
Agreement specifically undertaken by the Servicer. Such obligations shall
include the following:
(i) The Servicer shall defend, indemnify and hold harmless the
Indenture Trustee, the Owner Trustee, the Issuer, the Noteholders and
the Certificateholders from and against any and all costs, expenses,
losses, damages, claims and liabilities arising out of or resulting
from the use, ownership or operation by the Servicer or any affiliate
thereof of any Financed Vehicle;
(ii) The Servicer shall indemnify, defend and hold harmless
the Indenture Trustee, the Owner Trustee and the Issuer from and
against any taxes that may at any time be asserted against any such
Person with respect to the transactions contemplated in this Agreement,
including, without limitation, any sales, gross receipts, general
corporation, tangible personal property, privilege or license taxes
(but not including any taxes asserted with respect to, and as of the
date of, the sale of the Receivables to the Issuer or the issuance and
original sale of the Notes and the Certificates, or asserted with
respect to ownership of the Receivables, or federal or other income
taxes arising out of distributions on the Notes or the Certificates, or
any fees or other compensation payable to any such Person) and costs
and expenses in defending against the same;
(iii) The Servicer shall indemnify, defend and hold harmless
the Indenture Trustee, the Owner Trustee, the Issuer, the Noteholders
and the Certificateholders from and against any and all costs,
expenses, losses, claims, damages, and liabilities to the extent that
such cost, expense, loss, claim, damage, or liability arose out of, or
was imposed upon the Indenture Trustee, the Owner Trustee, the Issuer,
the Noteholders or the Certificateholders through the negligence,
willful misfeasance or bad faith of the Servicer in the performance of
its duties under this Agreement, the Pooling and Servicing Agreement,
the Indenture or the Trust Agreement or any other Basic Document or by
reason of reckless disregard of its obligations and duties under this
Agreement, the Pooling and Servicing Agreement, the Indenture or the
Trust Agreement; and
(iv) The Servicer shall indemnify, defend and hold harmless
the Indenture Trustee and the Owner Trustee, and their respective
agents and servants, from and against all costs, expenses, losses,
claims, damages and liabilities arising out of or incurred in
connection with (x) in the case of the Owner Trustee, the Indenture
Trustee's performance of its duties under the Indenture or any other
Basic Document, (y) in the case of the Indenture Trustee, the Owner
Trustee's performance of its duties under the Trust Agreement or (z)
the acceptance, administration or performance by, or action or inaction
of, the Indenture Trustee or the Owner Trustee, as applicable, of the
trusts and duties contained in this Agreement, the Basic Documents, the
Indenture (in the case of the Indenture Trustee), including the
administration of the Trust Estate, and the Trust Agreement (in
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case of the Owner Trustee), including the administration of the Owner
Trust Estate, except in each case to the extent that such cost,
expense, loss, claim, damage or liability: (A) is due to the willful
misfeasance, bad faith or negligence (except for errors in judgment) of
the Person indemnified, (B) to the extent otherwise payable to the
Indenture Trustee, arises from the Indenture Trustee's breach of any of
its representations or warranties in Section 6.13 of the Indenture, (C)
to the extent otherwise payable to the Owner Trustee, arises from the
Owner Trustee's breach of any of its representations or warranties set
forth in Section 6.6 of the Trust Agreement, or (D) shall arise out of
or be incurred in connection with the performance by the Indenture
Trustee of the duties of successor Servicer hereunder.
(b) Indemnification under this Section 6.01 shall include, without
limitation, reasonable fees and expenses of counsel and expenses of litigation.
If the Servicer has made any indemnity payments pursuant to this Section 6.01
and the recipient thereafter collects any of such amounts from others, the
recipient shall promptly repay such amounts collected to the Servicer, without
interest.
Section 6.02 Merger or Consolidation of, or Assumption of the
Obligations of the Servicer. Any corporation or other entity (a) into which the
Servicer may be merged or consolidated, (b) resulting from any merger,
conversion or consolidation to which the Servicer shall be a party, (c)
succeeding to the business of the Servicer, or (d) more than 50% of the voting
stock (or, if not a corporation, other voting interests) of which is owned
directly or indirectly by General Motors and which is otherwise servicing the
Seller's receivables, which corporation in any of the foregoing cases executes
an agreement of assumption to perform every obligation of the Servicer under
this Agreement and the Pooling and Servicing Agreement, shall be the successor
to the Servicer under this Agreement and the Pooling and Servicing Agreement
without the execution or filing of any paper or any further act on the part of
any of the parties to this Agreement, anything in this Agreement or in the
Pooling and Servicing Agreement to the contrary notwithstanding. The Servicer
shall provide notice of any merger, consolidation or succession pursuant to this
Section 6.02 to the Rating Agencies.
Section 6.03 Limitation on Liability of Servicer and Others.
(a) Neither the Servicer nor any of the directors or officers or
employees or agents of the Servicer shall be under any liability to the Issuer,
the Noteholders or the Certificateholders, except as specifically provided in
this Agreement and in the Pooling and Servicing Agreement, for any action taken
or for refraining from the taking of any action pursuant to this Agreement, the
Pooling and Servicing Agreement, the Indenture or the Trust Agreement or for
errors in judgment; provided, however, that this provision shall not protect the
Servicer or any such Person against any liability that would otherwise be
imposed by reason of willful misfeasance, bad faith or negligence (except errors
in judgment) in the performance of duties or by reason of reckless disregard of
obligations and duties under this Agreement, the Pooling and Servicing
Agreement, the Indenture or the Trust Agreement. The Servicer and any director,
officer or employee or agent of the Servicer may rely in good faith on the
advice of counsel or on any document of any kind prima facie properly executed
and submitted by any Person respecting any matters arising under this Agreement
or the Pooling and Servicing Agreement.
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(b) The Servicer and any director or officer or employee or agent of
the Servicer shall be reimbursed by the Indenture Trustee or the Owner Trustee,
as applicable, for any contractual damages, liability or expense (including,
without limitation, any obligation of the Servicer to the Indenture Trustee or
the Owner Trustee, as applicable, pursuant to Section 6.01(a)(iv)(x) or (y))
incurred by reason of such trustee's willful misfeasance, bad faith or gross
negligence (except errors in judgment) in the performance of such trustee's
duties under this Agreement, the Indenture or the Trust Agreement or by reason
of reckless disregard of its obligations and duties under this Agreement.
(c) Except as provided in this Agreement or in the Pooling and
Servicing Agreement, the Servicer shall not be under any obligation to appear
in, prosecute or defend any legal action that is not incidental to its duties to
service the Receivables in accordance with this Agreement and the Pooling and
Servicing Agreement and that in its opinion may involve it in any expense or
liability; provided, however, that the Servicer may undertake any reasonable
action that it may deem necessary or desirable in respect of this Agreement or
the Pooling and Servicing Agreement and the rights and duties of the parties to
this Agreement or the Pooling and Servicing Agreement and the interests of the
Noteholders and the Certificateholders under this Agreement and the Pooling and
Servicing Agreement, the interests of the Noteholders under the Indenture and
the interests of the Certificateholders under the Trust Agreement. In such
event, the legal expenses and costs for such action and any liability resulting
therefrom shall be expenses, costs and liabilities of the Trust and the Servicer
shall be entitled to be reimbursed therefor.
(d) The Applicable Trustee shall distribute out of the Collection
Account on a Distribution Date any amounts permitted for reimbursement pursuant
to Section 6.03(c) not therefor reimbursed; provided, however, that the
Applicable Trustee shall not distribute such amounts if the amount on deposit in
the Reserve Account (after giving effect to all deposits and withdrawals
pursuant to Sections 4.06(b) and (c) and Section 4.07(e), on such Distribution
Date) is greater than zero but less than the Specified Reserve Account Balance
for such Distribution Date.
Section 6.04 Delegation of Duties. So long as GMAC acts as Servicer,
the Servicer may, at any time without notice or consent, delegate any duties
under this Agreement or under the Pooling and Servicing Agreement to any
corporation or other Person more than 50% of the voting stock (or, if not a
corporation, other voting interests) of which is owned, directly or indirectly,
by General Motors. The Servicer may at any time perform specific duties as
Servicer through sub-contractors who are in the business of servicing automotive
receivables; provided, however, that no such delegation shall relieve the
Servicer of its responsibility with respect to such duties.
Section 6.05 Servicer Not to Resign. Subject to the provisions of
Section 7.02, the Servicer shall not resign from the obligations and duties
imposed on it by this Agreement and the Pooling and Servicing Agreement as
Servicer except upon determination that the performance of its duties under this
Agreement or under the Pooling and Servicing Agreement, as the case may be, is
no longer permissible under applicable law. Any such determination permitting
the resignation of the Servicer shall be evidenced by an Opinion of Counsel to
such effect delivered to the Indenture Trustee and the Owner Trustee. No such
resignation shall become effective until the Indenture Trustee or a successor
Servicer shall have assumed the responsibilities and obligations of the Servicer
in accordance with Section 7.02.
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ARTICLE VII
DEFAULT
Section 7.01 Servicer Defaults. Each of the following shall
constitute a "Servicer Default":
(a) any failure by the Servicer to deliver to the Indenture Trustee for
deposit in any of the Designated Accounts or to the Owner Trustee for deposit in
the Certificate Distribution Account any required payment or to direct the
Indenture Trustee to make any required distributions therefrom, which failure
continues unremedied for a period of five Business Days after written notice is
received by the Servicer from the Indenture Trustee or the Owner Trustee or
after discovery of such failure by an officer of the Servicer;
(b) failure on the part of the Seller or the Servicer to duly observe
or perform in any material respect any other covenants or agreements of the
Seller or the Servicer set forth in this Agreement, the Pooling and Servicing
Agreement, the Indenture or the Trust Agreement which failure (i) materially and
adversely affects the rights of Noteholders or Certificateholders, and (ii)
continues unremedied for a period of 90 days after the date on which written
notice of such failure, requiring the same to be remedied, shall have been given
to the Seller or the Servicer, as applicable, by the Indenture Trustee or the
Owner Trustee, or to the Seller or the Servicer, as applicable, and to the
Indenture Trustee or the Owner Trustee by Noteholders whose Notes evidence not
less than 25% of the Outstanding Amount of the Notes as of the close of the
preceding Distribution Date or by Certificateholders whose Certificates evidence
not less than 25% of the Voting Interests as of the close of the preceding
Distribution Date;
(c) the entry of a decree or order by a court or agency or supervisory
authority having jurisdiction in the premises for the appointment of a
conservator, receiver or liquidator for the Seller or the Servicer, in any
insolvency, readjustment of debt, marshalling of assets and liabilities or
similar proceedings, or for the winding up or liquidation of their respective
affairs, and the continuance of any such decree or order unstayed and in effect
for a period of 90 consecutive days; or
(d) the consent by the Seller or the Servicer to the appointment of a
conservator or receiver or liquidator in any insolvency, readjustment of debt,
marshalling of assets and liabilities, or similar proceedings of or relating to
the Seller or the Servicer or of or relating to substantially all of their
respective property; or the Seller or the Servicer shall admit in writing its
inability to pay its debts generally as they become due, file a petition to take
advantage of any applicable insolvency or reorganization statute, make an
assignment for the benefit of its creditors or voluntarily suspend payment of
its obligations.
Section 7.02 Consequences of a Servicer Default. If a Servicer Default
shall occur and be continuing, either the Indenture Trustee or the Noteholders
whose Notes evidence not less than a majority of the Outstanding Amount of the
Notes as of the close of the preceding Distribution Date (or, if the Notes have
been paid in full and the Indenture has been discharged in accordance with its
terms, by the Owner Trustee or Certificateholders whose Certificates evidence
not less than a majority of the Voting Interests
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as of the close of the preceding Distribution Date) by notice then given in
writing to the Servicer and the Owner Trustee (and to the Indenture Trustee if
given by the Noteholders or the Certificateholders) may terminate all of the
rights and obligations of the Servicer under this Agreement and the Pooling and
Servicing Agreement. On or after the receipt by the Servicer of such written
notice, all authority and power of the Servicer under this Agreement and the
Pooling and Servicing Agreement, whether with respect to the Notes, the
Certificates or the Receivables or otherwise, shall pass to and be vested in the
Indenture Trustee pursuant to and under this Section 7.02. The Indenture Trustee
is hereby authorized and empowered to execute and deliver, on behalf of the
Servicer, as attorney-in-fact or otherwise, any and all documents and other
instruments, and to do or accomplish all other acts or things necessary or
appropriate to effect the purposes of such notice of termination, whether to
complete the transfer and endorsement of the Receivables and related documents,
or otherwise. The Servicer agrees to cooperate with the Indenture Trustee and
the Owner Trustee in effecting the termination of the responsibilities and
rights of the Servicer under this Agreement and the Pooling and Servicing
Agreement, including, without limitation, the transfer to the Indenture Trustee
or the Owner Trustee for administration by it of all cash amounts that shall at
the time be held by the Servicer for deposit, or that shall have been deposited
by the Servicer in the Collection Account, the Note Distribution Account, the
Certificate Distribution Account or the Payment Ahead Servicing Account or
thereafter received with respect to the Receivables and all Payments Ahead that
shall at that time be held by the Servicer. In addition to any other amounts
that are then payable to the Servicer under this Agreement, the Servicer shall
be entitled to receive from the successor Servicer reimbursements for any
Outstanding Monthly Advances made during the period prior to the notice pursuant
to this Section 7.02 which terminates the obligation and rights of the Servicer
under this Agreement.
Section 7.03 Indenture Trustee to Act; Appointment of Successor. On and
after the time the Servicer receives a notice of termination pursuant to Section
7.02, the Indenture Trustee shall be the successor in all respects to the
Servicer in its capacity as servicer under this Agreement and the Pooling and
Servicing Agreement and the transactions set forth or provided for in this
Agreement and the Pooling and Servicing Agreement, and shall be subject to all
the responsibilities, restrictions, duties and liabilities relating thereto
placed on the Servicer by the terms and provisions of this Agreement and the
Pooling and Servicing Agreement. As compensation therefor, the Indenture Trustee
shall be entitled to such compensation (whether payable out of the Collection
Account or otherwise) as the Servicer would have been entitled to under this
Agreement if no such notice of termination had been given including, but not
limited to, the Total Servicing Fee, Investment Earnings and Supplemental
Servicing Fees. Notwithstanding the above, the Indenture Trustee may, if it
shall be unwilling so to act, or shall, if it is legally unable so to act,
appoint, or petition a court of competent jurisdiction to appoint, a successor
(i) having a net worth of not less than $100,000,000, (ii) a long-term unsecured
debt rating from Moody's Investors Service, Inc. of at least Baa3 (unless such
requirement is expressly waived by Moody's Investors Service, Inc.) and (iii)
whose regular business includes the servicing of automotive receivables, as the
successor to the Servicer under this Agreement and the Pooling and Servicing
Agreement in the assumption of all or any part of the responsibilities, duties
or liabilities of the Servicer under this Agreement and the Pooling and
Servicing Agreement. In connection with such appointment and assumption, the
Indenture Trustee may make such arrangements for the compensation of such
successor out of payments on Receivables as it and such successor shall agree;
provided, however, that no such compensation shall be in excess of that
permitted the Servicer under this Agreement and the Pooling and Servicing
Agreement. The Indenture Trustee and
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such successor shall take such action, consistent with this Agreement and the
Pooling and Servicing Agreement, as shall be necessary to effectuate any such
succession.
Section 7.04 Notification to Noteholders and Certificateholders. Upon
any termination of, or appointment of a successor to, the Servicer pursuant to
this Article VII, the Indenture Trustee shall give prompt written notice thereof
to the Noteholders and the Rating Agencies and the Owner Trustee shall give
prompt written notice thereof to the Certificateholders.
Section 7.05 Waiver of Past Defaults. Noteholders whose Notes evidence
not less than a majority of the Outstanding Amount of the Notes as of the close
of the preceding Distribution Date (or, if all of the Notes have been paid in
full and the Indenture has been discharged in accordance with its terms,
Certificateholders whose Certificates evidence not less than a majority of the
Voting Interests as of the close of the preceding Distribution Date) may, on
behalf of all Noteholders and Certificateholders, waive any default by the
Servicer in the performance of its obligations hereunder and its consequences,
except a default in making any required deposits to or payments from any of the
accounts in accordance with this Agreement. Upon any such waiver of a past
default, such default shall cease to exist, and any Servicer Default arising
therefrom shall be deemed to have been remedied for every purpose of this
Agreement and the Pooling and Servicing Agreement. No such waiver shall extend
to any subsequent or other default or impair any right consequent thereon.
Section 7.06 Repayment of Advances. If the identity of the Servicer
shall change, the predecessor Servicer shall be entitled to receive, to the
extent of available funds, reimbursement for Outstanding Monthly Advances
pursuant to Section 5.04 in the manner specified in Section 4.06 with respect to
all Monthly Advances made by such predecessor Servicer and reimbursement for
Servicer Liquidity Advances pursuant to Section 5.05 in the manner specified in
Section 5.05 with respect to all Servicer Liquidity Advances made by such
predecessor Servicer.
ARTICLE VIII
TERMINATION
Section 8.01 Optional Purchase of All Receivables; Insolvency of
Seller; Termination of Trust.
(a) The Servicer shall have the option to purchase the assets of the
Trust (other than the Designated Accounts and the Certificate Account) as of any
date (the "Optional Purchase Date") which is the last day of any Monthly Period
as of which the Aggregate Principal Balance is 10% or less of the Aggregate
Amount Financed. To exercise such option, the Servicer shall (i) furnish to the
Issuer and the Indenture Trustee notice of its intention to exercise such option
and of the Optional Purchase Date (such notice to be furnished not later than 25
days prior to the Distribution Date related to such Optional Purchase Date) and
(ii) deposit in the Collection Account an amount equal to the aggregate
Administrative Purchase Payments for the Receivables (including Liquidating
Receivables), plus the appraised value of any other property held by the Trust
(less the Liquidation Expenses to be incurred in connection with the recovery
thereof), provided, that such amount (when added to any funds then on deposit in
the Designated
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Accounts and the Certificate Distribution Account) must be at least equal to the
aggregate Redemption Price of the outstanding Notes to be redeemed and the
Certificate Balance plus accrued and unpaid interest on all Certificates to be
retired early with such proceeds on the Distribution Date related to the Monthly
Period in which such option is exercised plus any amount payable to the Swap
Counterparty on such Distribution Date. Such appraised value shall be determined
by an appraiser mutually satisfactory to the Servicer, the Owner Trustee and the
Indenture Trustee. The Servicer shall make such deposit in immediately available
funds on the Distribution Date related to the Optional Purchase Date, except
that if any Monthly Remittance Condition is not satisfied on the Optional
Purchase Date, such deposit shall instead be made on the Optional Purchase Date.
Upon the making of such deposit, the Servicer shall succeed to all interests in
and to the Trust (other than the Designated Accounts and the Certificate
Account).
(b) Upon any sale or other disposition of the assets of the Trust
pursuant to Article V of the Indenture (an "Event of Default Sale"), the
Servicer shall instruct the Applicable Trustee to deposit into the Collection
Account from the proceeds of such disposition the amount specified in clause
SECOND of Section 5.4(b) of the Indenture (the "Event of Default Proceeds"). On
the Distribution Date on which the Event of Default Proceeds are deposited in
the Collection Account (or, if such proceeds are not so deposited on a
Distribution Date, on the Distribution Date immediately following such deposit),
the Servicer shall instruct the Applicable Trustee to make the following
deposits (after the application on such Distribution Date of the Available
Principal and the Available Interest and funds on deposit in the Reserve Account
pursuant to Sections 4.06 and 4.07) from the Event of Default Proceeds and any
funds remaining on deposit in the Reserve Account (including the proceeds of any
sale of investments therein as described in the following sentence) in the
following priority:
(i) to the Swap Counterparty, the net amount, if any, then due
to the Swap Counterparty under the Interest Rate Swap (exclusive of
payments due to the Swap Counterparty in respect of an Early
Termination Date under the Interest Rate Swap);
(ii) second, to (a) the Note Distribution Account in respect
of the Aggregate Noteholders' Interest Distributable Amount and (b) to
the Swap Counterparty in respect of any payments due to the Swap
Counterparty in connection with any Early Termination Date of the
Interest Rate Swap, allocated between the Note Distribution Account and
the Swap Counterparty in proportion to the amounts owing to the Swap
Counterparty in connection with such Early Termination Date and in
respect of the Aggregate Noteholders' Interest Distributable Amount;
(iii) to the Note Distribution Account, any portion of the
Aggregate Noteholders' Interest Distributable Amount not otherwise
deposited into the Note Distribution Account on such Distribution Date
for payment of interest on the Notes;
(iv) to the Note Distribution Account, an amount equal to the
Note Principal Balance of the Notes (after giving effect to the
reduction in the Aggregate Note Principal Balance to result from the
deposits made in the Note Distribution Account on such Distribution
Date and on each prior Distribution Date) for payment of principal of
the Notes;
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(v) to the Certificate Distribution Account, any portion of
the Certificateholders' Interest Distributable Amount not otherwise
deposited into the Certificate Distribution Account on such
Distribution Date for payment of interest on the Certificates; and
(vi) to the Certificate Distribution Account, an amount equal
to the Certificate Balance of the Certificates (after giving effect to
the reduction therein to result from the deposits made in the
Certificate Distribution Account on such Distribution Date and on each
prior Distribution Date) for payment of the Certificate Balance on the
Certificates.
Subject to Section 5.01(b), any investments on deposit in the Reserve Account
which shall not mature on or before such Distribution Date shall be sold by the
Indenture Trustee at such time as shall result in the Indenture Trustee
receiving the proceeds from such sale not later than such Distribution Date. Any
Event of Default Proceeds remaining after the deposits described above shall be
paid to the Seller.
(c) Notice of any termination of the Trust shall be given by the
Servicer to the Owner Trustee and the Indenture Trustee as soon as practicable
after the Servicer has received notice thereof.
(d) Following the satisfaction and discharge of the Indenture with
respect to the Notes, and the payment in full of the principal and interest on
the Notes, the Certificateholders shall succeed to the rights of the Noteholders
hereunder and the Owner Trustee shall succeed to the rights of, and assume the
obligations (other than those under Section 7.03 which shall remain obligations
of the Indenture Trustee) of, the Indenture Trustee pursuant to this Agreement
(subject to the continuing obligations of the Indenture Trustee set forth in
Section 4.4 of the Indenture).
(e) After indefeasible payment in full to the Indenture Trustee, the
Owner Trustee, the Swap Counterparty, the Noteholders, the Certificateholders
and the Servicer of all amounts required to be paid under this Agreement, the
Indenture, the Interest Rate Swap and the Trust Agreement (including as
contemplated by this Section 8.01), (i) any amounts on deposit in the Reserve
Account, the Payment Ahead Servicing Account and the Collection Account (after
all other distributions required to be made from such accounts have been made
and provision for the payment of all liabilities of the Trust as required by
Section 3808 of the Business Trust Statute) shall be paid to the Seller and (ii)
any other assets remaining in the Trust shall be distributed to the Seller.
ARTICLE IX
MISCELLANEOUS PROVISIONS
Section 9.01 Amendment.
(a) This Agreement may be amended by the Seller, the Servicer and the
Owner Trustee with the consent of the Indenture Trustee, but without the consent
of any of the Financial Parties, (i) to cure any ambiguity, (ii) to correct or
supplement any provision in this Agreement that may be defective or inconsistent
with any other provision in this Agreement or any other Basic Documents, (iii)
to add or
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supplement any credit enhancement for the benefit of the Noteholders of any
class or the Certificateholders ( provided that if any such addition shall
affect any class of Noteholders or Certificateholders differently than any other
class of Noteholders or Certificateholders, then such addition shall not, as
evidenced by an Opinion of Counsel, adversely affect in any material respect the
interests of any class of Noteholders or the Certificateholders), (iv) add to
the covenants, restrictions or obligations of the Seller, the Servicer, the
Owner Trustee or the Indenture Trustee or (v) add, change or eliminate any other
provision of this Agreement in any manner that shall not, as evidenced by an
Opinion of Counsel, adversely affect in any material respect the interests of
the Financial Parties.
(b) This Agreement may also be amended from time to time by the Seller,
the Servicer and the Owner Trustee with the consent of the Indenture Trustee,
the consent of Noteholders whose Notes evidence not less than a majority of the
Outstanding Amount of the Notes as of the close of the preceding Distribution
Date, the consent of Certificateholders whose Certificates evidence not less
than a majority of the Voting Interests as of the close of the preceding
Distribution Date, (which consent, whether given pursuant to this Section 9.01
or pursuant to any other provision of this Agreement, shall be conclusive and
binding on such Person and on all future holders of such Note or Certificate and
of any Note or Certificate issued upon the transfer thereof or in exchange
thereof or in lieu thereof whether or not notation of such consent is made upon
the Note or Certificate) for the purpose of adding any provisions to or changing
in any manner or eliminating any of the provisions of this Agreement, or of
modifying in any manner the rights of the Noteholders or the Certificateholders;
provided, however, that no such amendment shall (i) increase or reduce in any
manner the amount of, or accelerate or delay the timing of, collections of
payments on Receivables or distributions that shall be required to be made on
any Note or Certificate, the Interest Rate for any class of Notes, the Pass
Through Rate or the Specified Reserve Account Balance or (ii) reduce the
aforesaid percentage required to consent to any such amendment, without the
consent of the holders of all Notes and Certificates then outstanding.
(c) Prior to the execution of any such amendment or consent, the
Indenture Trustee shall furnish written notification of the substance of such
amendment or consent to the Rating Agencies.
(d) Promptly after the execution of any such amendment or consent, the
Owner Trustee shall furnish written notification of the substance of such
amendment or consent to each Financial Party.
(e) It shall not be necessary for the consent of Noteholders or
Certificateholders pursuant to Section 9.01(b) to approve the particular form of
any proposed amendment or consent, but it shall be sufficient if such consent
shall approve the substance thereof. The manner of obtaining such consents (and
any other consents of Noteholders or Certificateholders provided for in this
Agreement) and of evidencing the authorization of the execution thereof by
Noteholders and Certificateholders shall be subject to such reasonable
requirements as the Indenture Trustee or the Owner Trustee may prescribe,
including the establishment of record dates pursuant to paragraph number 2 of
the Depository Agreements.
(f) Prior to the execution of any amendment to this Agreement, the
Indenture Trustee and the Owner Trustee shall be entitled to receive and
conclusively rely upon an Opinion of Counsel stating that the execution of such
amendment is authorized or permitted by this Agreement and the Opinion of
Counsel
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referred to in Section 9.02(i). The Indenture Trustee and the Owner Trustee may,
but shall not be obligated to, enter into any such amendment which affects such
trustee's own rights, duties or immunities under this Agreement or otherwise.
(g) Each of GMAC and the Seller agrees that such Person shall not amend
or agree to any amendment of the Pooling and Servicing Agreement unless such
amendment would be permissible under the terms of this Section 9.01 as if this
Section 9.01 were contained in the Pooling and Servicing Agreement.
Section 9.02 Protection of Title to Trust.
(a) The Seller or the Servicer or both shall execute and file such
financing statements and cause to be executed and filed such continuation and
other statements, all in such manner and in such places as may be required by
law fully to preserve, maintain and protect the interest of the Noteholders, the
Certificateholders, the Indenture Trustee and the Owner Trustee under this
Agreement in the Receivables and in the proceeds thereof. The Seller or the
Servicer or both shall deliver (or cause to be delivered) to the Indenture
Trustee and the Owner Trustee file-stamped copies of, or filing receipts for,
any document filed as provided above, as soon as available following such
filing.
(b) Neither the Seller nor the Servicer shall change its name, identity
or corporate structure in any manner that would, could or might make any
financing statement or continuation statement filed in accordance with paragraph
(a) above seriously misleading within the meaning of Section 9-402(7) of the
UCC, unless it shall have given the Indenture Trustee and the Owner Trustee at
least 60 days prior written notice thereof.
(c) Each of the Seller and the Servicer shall give the Indenture
Trustee and the Owner Trustee at least 60 days prior written notice of any
relocation of its principal executive office if, as a result of such relocation,
the applicable provisions of the UCC would require the filing of any amendment
of any previously filed financing or continuation statement or of any new
financing statement. The Servicer shall at all times maintain each office from
which it services Receivables and its principal executive office within the
United States of America.
(d) The Servicer shall maintain accounts and records as to each
Receivable accurately and in sufficient detail to permit (i) the reader thereof
to know at any time the status of such Receivable, including payments and
recoveries made and payments owing (and the nature of each), and (ii)
reconciliation between payments or recoveries on (or with respect to) each
Receivable and the amounts from time to time deposited in the Collection
Account, Note Distribution Account, Certificate Distribution Account,
Accumulation Account, and Payment Ahead Servicing Account and any Payments Ahead
held by the Servicer in respect of such Receivable.
(e) The Servicer shall maintain its computer systems so that, from and
after the time of sale under this Agreement of the Receivables, the Servicer's
master computer records (including any back-up archives) that refer to any
Receivable indicate clearly that the Receivable is owned by the Issuer.
Indication
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of the Issuer's ownership of a Receivable shall be deleted from or modified on
the Servicer's computer systems when, and only when, the Receivable has been
paid in full or repurchased by the Seller or purchased by the Servicer.
(f) If at any time the Seller or the Servicer proposes to sell, grant a
security interest in, or otherwise transfer any interest in automotive
receivables to any prospective purchaser, lender or other transferee, the
Servicer shall give to such prospective purchaser, lender or other transferee
computer tapes, records or print-outs (including any restored from back-up
archives) that, if they refer in any manner whatsoever to any Receivable,
indicate clearly that such Receivable has been sold and is owned by the Issuer
unless such Receivable has been paid in full or repurchased by the Seller or
purchased by the Servicer.
(g) The Servicer shall permit the Indenture Trustee and the Owner
Trustee and their respective agents at any time to inspect, audit and make
copies of and abstracts from the Servicer's records regarding any Receivables
then or previously included in the Owner Trust Estate.
(h) The Servicer shall furnish to the Indenture Trustee and the Owner
Trustee at any time upon request a list of all Receivables then held as part of
the Trust, together with a reconciliation of such list to the Schedule of
Receivables and to each of the Servicer's Accountings furnished before such
request indicating removal of Receivables from the Trust. Upon request, the
Servicer shall furnish a copy of any such list to the Seller. The Indenture
Trustee, the Owner Trustee and the Seller shall hold any such list and the
Schedule of Receivables for examination by interested parties during normal
business hours at their respective offices located at the addresses specified in
Section 9.03.
(i) The Servicer shall deliver to the Indenture Trustee and the Owner
Trustee promptly after the execution and delivery of this Agreement and of each
amendment thereto, an Opinion of Counsel either (a) stating that, in the opinion
of such counsel, all financing statements and continuation statements have been
executed and filed that are necessary fully to preserve and protect the interest
of the Indenture Trustee and the Owner Trustee in the Receivables, and reciting
the details of such filings or referring to prior Opinions of Counsel in which
such details are given, or (b) stating that, in the opinion of such counsel, no
such action is necessary to preserve and protect such interest.
(j) To the extent required by law, the Seller shall cause the Notes and
the Certificates to be registered with the Securities and Exchange Commission
pursuant to Section 12(b) or Section 12(g) of the Securities Exchange Act of
1934 within the time periods specified in such sections.
Section 9.03 Notices. All demands, notices and communications upon or
to the Seller, the Servicer, the Indenture Trustee, the Owner Trustee or the
Rating Agencies under this Agreement shall be delivered as specified in Appendix
B hereto.
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Section 9.04 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK, WITHOUT
REFERENCE TO ITS CONFLICT OF LAWS PROVISIONS AND THE OBLIGATIONS, RIGHTS AND
REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH
LAWS.
Section 9.05 Severability of Provisions. If any one or more of the
covenants, agreements, provisions or terms of this Agreement shall be for any
reason whatsoever held invalid, then such covenants, agreements, provisions or
terms shall be deemed severable from the remaining covenants, agreements,
provisions or terms of this Agreement and shall in no way affect the validity or
enforceability of the other provisions of this Agreement or of the Certificates
or the rights of the holders thereof.
Section 9.06 Assignment. Notwithstanding anything to the contrary
contained in this Agreement, this Agreement may not be assigned by the Seller
without the prior written consent of Noteholders whose Notes evidence not less
than 66% of the Outstanding Amount of the Notes as of the close of the preceding
Distribution Date and of Certificateholders whose Certificates evidence not less
than 66% of the Voting Interests as of the close of the preceding Distribution
Date. The Seller shall provide notice of any such assignment to the Rating
Agencies.
Section 9.07 Third-Party Beneficiaries. This Agreement shall inure to
the benefit of and be binding upon the parties hereto and, to the extent
expressly provided herein, the Noteholders, the Certificateholders, the Swap
Counterparty and their respective successors and permitted assigns. The Swap
Counterparty shall be a third-party beneficiary to this Agreement only to the
extent that it has any rights specified herein or rights with respect to this
Trust Sale and Servicing Agreement specified under the Swap Counterparty Rights
Agreement. Except as otherwise provided in Section 6.01, the Swap Counterparty
Rights Agreement, or in this Article IX, no other person shall have any right or
obligation hereunder.
Section 9.08 Separate Counterparts. This Agreement may be executed by
the parties hereto in separate counterparts, each of which when so executed and
delivered shall be an original, but all such counterparts shall together
constitute but one and the same instrument.
Section 9.09 Headings and Cross-References. The various headings in
this Agreement are included for convenience only and shall not affect the
meaning or interpretation of any provision of this Agreement.
Section 9.10 Assignment to Indenture Trustee. The Seller hereby
acknowledges and consents to any mortgage, pledge, assignment and grant of a
security interest by the Issuer pursuant to the Indenture for the benefit of the
Noteholders and (only to the extent expressly provided in the Indenture) the
Certificateholders of all right, title and interest of the Issuer in, to and
under the Receivables and/or the assignment of any or all of the Issuer's rights
and obligations hereunder to the Indenture Trustee.
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Section 9.11 No Petition Covenants. Notwithstanding any prior
termination of this Agreement, the Servicer and the Seller shall not, prior to
the date which is one year and one day after the final distribution with respect
to the Notes and the Certificates to the Note Distribution Account or the
Certificate Distribution Account, as applicable, acquiesce, petition or
otherwise invoke or cause the Issuer to invoke the process of any court or
government authority for the purpose of commencing or sustaining a case against
the Issuer under any federal or state bankruptcy, insolvency or similar law or
appointing a receiver, liquidator, assignee, trustee, custodian, sequestrator or
other similar official of the Issuer or any substantial part of its property, or
ordering the winding up or liquidation of the affairs of the Issuer.
Section 9.12 Limitation of Liability of Indenture Trustee and
Owner Trustee.
(a) Notwithstanding anything contained herein to the contrary, this
Agreement has been acknowledged and accepted by The First National Bank of
Chicago not in its individual capacity but solely as Indenture Trustee and in no
event shall The First National Bank of Chicago have any liability for the
representations, warranties, covenants, agreements or other obligations of the
Issuer hereunder or in any of the certificates, notices or agreements delivered
pursuant hereto, as to all of which recourse shall be had solely to the assets
of the Issuer.
(b) Notwithstanding anything contained herein to the contrary, this
Agreement has been executed by Bankers Trust (Delaware) not in its individual
capacity but solely in its capacity as Owner Trustee of the Issuer and in no
event shall Bankers Trust (Delaware) in its individual capacity or, except as
expressly provided in the Trust Agreement, as Owner Trustee of the Issuer have
any liability for the representations, warranties, covenants, agreements or
other obligations of the Issuer hereunder or in any of the certificates, notices
or agreements delivered pursuant hereto, as to all of which recourse shall be
had solely to the assets of the Issuer. For all purposes of this Agreement, in
the performance of its duties or obligations hereunder or in the performance of
any duties or obligations of the Issuer hereunder, the Owner Trustee shall be
subject to, and entitled to the benefits of, the terms and provisions of Article
VI of the Trust Agreement.
Section 9.13 Tax Treatment. The Servicer covenants that for all tax
purposes the Servicer shall regard and treat the Notes and the Certificates in a
manner consistent with the agreements (i) among the Seller, the Owner Trustee
and the Certificateholders in Section 2.11 of the Trust Agreement and (ii) among
the Seller, the Indenture Trustee and the Noteholders in Section 2.14 of the
Indenture.
Section 9.14 Furnishing Documents. The Indenture Trustee shall furnish
to Noteholders, promptly upon receipt of a written request therefor, copies of
the Pooling and Servicing Agreement, the Administration Agreement, the Custodian
Agreement, the Trust Agreement, the Indenture and this Agreement.
* * * * *
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their respective officers as of the day and year first above
written.
CAPITAL AUTO RECEIVABLES
ASSET TRUST 2000-1
By: BANKERS TRUST (DELAWARE), not in its
individual capacity but solely as
Owner Trustee on behalf of the
Trust,
By: /S/ RAYMOND DELLICOLLI
--------------------------------------
Name: Raymond DelliColli
Attorney-in-Fact
CAPITAL AUTO RECEIVABLES, INC.,
Seller
By: /S/ C. A. ONDRICK
--------------------------------------
Name: C. A. Ondrick
Title: Manager - Securitization
GENERAL MOTORS ACCEPTANCE CORPORATION
By: /S/ KAREN A. SABATOWSKI
--------------------------------------
Name: Karen A. Sabatowski
Title: Director - Securitization and Cash
Management
Acknowledged and Accepted:
BANK ONE, NATIONAL ASSOCIATION,
not in its individual capacity but solely as Indenture Trustee,
By: /S/ STEVEN M. WAGNER
------------------------------
Name: Steven M. Wagner
Title:
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EXHIBIT A
LOCATIONS OF SCHEDULE OF RECEIVABLES
The Schedule of Receivables is on file
at the offices of:
1. The Indenture Trustee
2. The Owner Trustee
3. General Motors Acceptance Corporation
4. Capital Auto Receivables, Inc.
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EXHIBIT 99.1
APPENDIX A
PART I - DEFINITIONS
All terms defined in this Appendix shall have the defined meanings when
used in the Basic Documents, unless otherwise defined therein.
ACCOUNTANTS' REPORT: The report described in SECTION 4.02 of the Trust
Sale and Servicing Agreement.
ACCUMULATION ACCOUNT: The account designated as such, established and
maintained pursuant to SECTION 5.01(A)(V) of the Trust Sale and Servicing
Agreement.
ACCUMULATION AMOUNT: With respect to any Distribution Date, the
aggregate amount of Undistributed Principal Amount deposited into the
Accumulation Account prior to such Distribution Date and not previously applied
to make payments on the Notes. On any Distribution Date which is a Targeted
Final Distribution Date for a class of Class A Notes, except during a Sequential
Amortization Period or after the Notes have been declared due and payable
following an Event of Default, until all Events of Default have been cured or
waived as provided in the Indenture, the Accumulation Amount, together with the
Noteholders' Percentage of the Principal Distributable Amount for such
Distribution Date and the expected Variable Pay Term Notes Issuance Proceeds,
may not exceed the outstanding principal balance of that class of Class A Notes
and the Variable Pay Term Notes as of the opening of business on that
Distribution Date.
ACT: An Act as specified in SECTION 11.3(A) of the Indenture.
ACTUAL PAYMENT: With respect to a Distribution Date and to a Scheduled
Interest Receivable, all payments received by the Servicer from or for the
account of the Obligor during the related Monthly Period (and, in the case of
the first Monthly Period, all payments received by the Servicer from or for the
account of the Obligor on or after the Cutoff Date) except for any Overdue
Payments or Supplemental Servicing Fees. Actual Payments do not include Applied
Payments Ahead.
ADDITIONAL SERVICING: With respect to any Distribution Date, an amount
(not less than zero) equal to the LESSER OF:
(i) the amount, if any, by which:
(A) the amount equal to the aggregate amount of the Basic
Servicing Fee for such Distribution Date and all prior
Distribution Dates EXCEEDS
(B) the aggregate amount of Additional Servicing paid to the
Servicer on all prior Distribution Dates; AND
(ii) the amount, if any, by which the amount on deposit in the Reserve
Account on such Distribution Date (after giving effect to all deposits,
withdrawals and payments affecting the
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Reserve Account other than Additional Servicing and payments to the
Seller) EXCEEDS the Specified Reserve Account Balance.
For purposes of this definition, it is understood that Additional Servicing
equals zero on any Distribution Date unless all payments described in SECTIONS
4.06(C)(II) through (VIII) of the Trust Sale and Servicing Agreement have been
paid or provided for.
ADMINISTRATION AGREEMENT: That certain Administration Agreement, dated
as of the Closing Date, among GMAC, as Administrator, the Trust and the
Indenture Trustee, as amended and supplemented from time to time.
ADMINISTRATIVE PURCHASE PAYMENT: With respect to a Distribution Date
and to an Administrative Receivable purchased as of the last day of a Monthly
Period:
(i) in the case of a Scheduled Interest Receivable, a release of all
claims for reimbursement of Scheduled Interest Advances made on such
Receivable PLUS a payment equal to the SUM OF:
(A) the Scheduled Payments on such Receivable due after the
last day of the related Monthly Period minus the Rebate,
(B) any reimbursement made pursuant to the last sentence of
SECTION 5.04(A) of the Trust Sale and Servicing Agreement with
respect to such Receivable; AND
(C) all past due Scheduled Payments with respect to which a
Scheduled Interest Advance has not been made OR
(ii) in the case of a Simple Interest Receivable, a payment equal to
the Amount Financed MINUS that portion of all payments made by or on
behalf of the related Obligor on or prior to the last day of the
related Monthly Period allocable to principal.
ADMINISTRATIVE RECEIVABLE: A Receivable which the Servicer is required
to purchase pursuant to SECTION 3.08 of the Pooling and Servicing Agreement or
which the Servicer has elected to repurchase pursuant to SECTION 8.01(A) of the
Trust Sale and Servicing Agreement.
ADMINISTRATOR: GMAC or any successor Administrator under the
Administration Agreement.
AFFILIATE: With respect to any specified Person, any other Person
controlling, controlled by or under common control with such specified Person.
For the purposes of this definition, "control" when used with respect to any
specified Person means the power to direct the management and policies of such
Person, directly or indirectly, whether through the ownership of voting
securities, by contract or otherwise; and the terms "controlling" and
"controlled" have meanings correlative to the foregoing.
AGENCY OFFICE: The office of the Issuer maintained pursuant
SECTION 3.2 of the Indenture.
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AGGREGATE AMOUNT FINANCED: $2,193,832,649.58, which represents the
aggregate of the Amount Financed under all of the Receivables.
AGGREGATE NOTEHOLDERS' INTEREST DISTRIBUTABLE AMOUNT: With respect to
any Distribution Date, the sum of (i) the Noteholders' Interest Distributable
Amounts for all classes of Notes and (ii) the Noteholders' Interest Carryover
Shortfall as of the close of the preceding Distribution Date.
AGGREGATE NOTEHOLDERS' PRINCIPAL DISTRIBUTABLE AMOUNT: With respect to
any Distribution Date, the sum of (i) the Noteholders' Principal Distributable
Amounts for all classes of Notes and (ii) the Noteholders' Principal Carryover
Shortfall as of the close of the preceding Distribution Date.
AGGREGATE NOTE PRINCIPAL BALANCE: With respect to the close of a
Distribution Date, the sum of the Note Principal Balances for all classes of
Notes.
AGGREGATE PRINCIPAL BALANCE: As of any date, the sum of the Principal
Balances of all outstanding Receivables (other than Liquidating Receivables)
held by the Trust on such date.
AMOUNT FINANCED: With respect to a Receivable, the aggregate amount
advanced under such Receivable toward the purchase price of the Financed
Vehicle, including accessories, insurance premiums, service and warranty
contracts and other items customarily financed as part of retail automobile
instalment sale contracts and related costs, LESS:
(i) (A) in the case of a Scheduled Interest Receivable, payments due
from the related Obligor prior to the Cutoff Date allocable to
principal and (B) in the case of a Simple Interest Receivable, payments
received from the related Obligor prior to the Cutoff Date allocable to
principal AND
(ii) any amount allocable to the premium for physical damage insurance
covering the Financed Vehicle force-placed by the Servicer.
ANNUAL PERCENTAGE RATE: With respect to a Receivable, the annual rate
of finance charges stated in such Receivable.
APPLICABLE TRUSTEE: So long as the Aggregate Note Principal Balance is
greater than zero and the Indenture has not been discharged in accordance with
its terms, the Indenture Trustee, and thereafter, the Owner Trustee.
APPLIED PAYMENT AHEAD: With respect to a Distribution Date and to a
Scheduled Interest Receivable on which the Actual Payment is less than the
Scheduled Payment, the Deferred Prepayment to the extent the Scheduled Payment
exceeds the Actual Payment.
AUTHORIZED OFFICER: With respect to the Issuer, any officer or agent
acting under power of attorney of the Owner Trustee who is authorized to act for
the Owner Trustee in matters relating to the Issuer and who is identified on the
list of Authorized Officers delivered by the Owner Trustee to the Indenture
Trustee on the Closing Date (as such list may be modified or supplemented from
time to time thereafter) or the power of attorney and, so long as the
Administration Agreement is in effect, any Vice President or more senior officer
of the Administrator who is authorized to act for
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the Administrator in matters relating to the Issuer and to be acted upon by the
Administrator pursuant to the Administration Agreement and who is identified on
the list of Authorized Officers delivered by the Administrator to the Indenture
Trustee on the Closing Date (as such list may be modified or supplemented from
time to time thereafter).
AVAILABLE INTEREST: With respect to any Distribution Date, the SUM of
the following amounts with respect to the related Monthly Period:
(i) that portion of all collections on Receivables held by the Trust
(other than Liquidating Receivables) allocable to interest or
Prepayment Surplus (including, in the case of Scheduled Interest
Receivables, the interest portion of Applied Payments Ahead but
excluding Excess Payments made during such Monthly Period that are
treated as Payments Ahead),
(ii) Liquidation Proceeds to the extent allocable to interest in
accordance with the Servicer's customary servicing procedures;
(iii) all Simple Interest Advances;
(iv) all Scheduled Interest Advances to the extent allocable to
interest;
(v) the net amount, if any, paid by the Swap Counterparty to the
Trust pursuant to the Interest Rate Swap; and
(vi) the Warranty Payment or the Administrative Purchase Payment for
each Receivable that the Seller repurchased or the Servicer purchased
during such Monthly Period to the extent allocable to accrued interest
or Prepayment Surplus;
LESS an amount equal to the SUM of the following amounts with respect
to the related Monthly Period:
(i) all amounts received on any Scheduled Interest Receivable (other
than a Liquidating Receivable) to the extent of the Outstanding
Scheduled Interest Advances allocable to interest with respect to such
Receivable;
(ii) all Liquidation Proceeds with respect to Scheduled Interest
Receivables to the extent of the Outstanding Scheduled Interest
Advances thereon allocable to interest;
(iii) any Excess Simple Interest Collections; and
(iv) Liquidation Proceeds with respect to Simple Interest Receivables
allocable to accrued and unpaid interest thereon (but not including
interest for the then current Monthly Period), but only to the extent
of any Outstanding Simple Interest Advances.
AVAILABLE PRINCIPAL: With respect to any Distribution Date, the SUM of
the following amounts with respect to the related Monthly Period:
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(i) that portion of all collections on Receivables held by the Trust
(other than Liquidating Receivables) allocable to principal (including,
in the case of Scheduled Interest Receivables, the principal portion of
Applied Payments Ahead but excluding Excess Payments made during such
Monthly Period that are treated as Payments Ahead);
(ii) Liquidation Proceeds to the extent allocable to principal in
accordance with the Servicer's customary servicing procedures;
(iii) all Scheduled Interest Advances to the extent allocable to
principal;
(iv) to the extent allocable to principal, the Warranty Payment or the
Administrative Purchase Payment for each Receivable that the Seller
repurchased or the Servicer purchased during such Monthly Period; and
(v) all Prepayments to the extent allocable to principal;
LESS an amount equal to the SUM of the following amounts with respect
to the related Monthly Period:
(i) all amounts received on any Scheduled Interest Receivable (other
than a Liquidating Receivable) to the extent of the Outstanding
Scheduled Interest Advances allocable to principal with respect to such
Receivable;
(ii) all Liquidation Proceeds with respect to Scheduled Interest
Receivables to the extent of the Outstanding Scheduled Interest
Advances allocable to principal; and
(iii) amounts representing reimbursement for Liquidation Expenses
pursuant to SECTION 3.04 of the Pooling and Servicing Agreement.
BASIC DOCUMENTS: The Certificate of Trust, the Certificate Depository
Agreement, the Trust Agreement, the Pooling and Servicing Agreement, the Trust
Sale and Servicing Agreement, the Triparty Agreement, the Custodian Agreement,
the Administration Agreement, the Indenture, the Interest Rate Swap, the Swap
Counterparty Rights Agreement and the Note Depository Agreement and the other
documents and certificates delivered in connection therewith.
BASIC SERVICING FEE: With respect to a Distribution Date, the basic fee
payable to the Servicer for services rendered during the related Monthly Period,
which shall be equal to one-twelfth (1/12th) of the Basic Servicing Fee Rate
multiplied by the Aggregate Principal Balance of all Receivables held by the
Trust as of the first day of such Monthly Period (or, for the first Distribution
Date, the Aggregate Principal Balance as of the Closing Date).
BASIC SERVICING FEE RATE: 1.0% per annum.
BENEFIT PLAN: Any of (i) an employee benefit plan (as defined in
Section 3(3) of ERISA) that is subject to the provisions of Title I of ERISA,
(ii) a plan described in Section 4975 (e)(1) of the Code or (iii) any entity
whose underlying assets include plan assets by reason of a plan's investment in
the Trust.
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BOOK-ENTRY CERTIFICATES: A beneficial interest in the Certificates,
ownership and transfer of which shall be made through book entries by a Clearing
Agency as described in SECTION 3.11 of the Trust Agreement.
BOOK-ENTRY NOTES: A beneficial interest in the Notes, ownership and
transfers of which shall be made through book entries by a Clearing Agency as
described in SECTION 2.10 of the Indenture.
BUSINESS DAY: Any day other than a Saturday, a Sunday or any other day
on which banks in New York, New York; Detroit, Michigan; or Chicago, Illinois
may, or are required to, remain closed.
BUSINESS TRUST STATUTE: Chapter 38 of Title 12 of the Delaware Code,
12 DEL. CODEss. 3801 ET SEQ., as the same may be amended from time to time.
CARI: Capital Auto Receivables, Inc., a Delaware corporation.
CERTIFICATE: Any one of the 7.28% Asset Backed Certificates executed by
the Owner Trustee and authenticated by the Owner Trustee in substantially the
form set forth in EXHIBIT A to the Trust Agreement.
CERTIFICATE BALANCE: Initially, as of the Closing Date, $65,814,649.58
and, on any Distribution Date thereafter, will equal the initial Certificate
Balance reduced by (i) all distributions in respect of the Certificate Balance
actually made on or prior to such date to Certificateholders, (ii) the
Noteholders' Principal Carryover Shortfall as of the close of the preceding
Distribution Date, and (iii) the Certificateholders' Principal Carryover
Shortfall as of the close of the preceding Distribution Date.
CERTIFICATE DEPOSITORY AGREEMENT: The Certificate Depository Agreement,
dated as of the Closing Date, among the Trust, the Administrator and The
Depository Trust Company (as the initial Clearing Agency), relating to the
Certificates and substantially in the form set forth in Exhibit C to the Trust
Agreement, as the same may be amended and supplemented from time to time.
CERTIFICATE DISTRIBUTION ACCOUNT: The account, if any, designated as
such, established and maintained pursuant to SECTION 5.1(A) of the Trust
Agreement and SECTION 5.01(A)(III) of the Trust Sale and Servicing Agreement.
CERTIFICATEHOLDER: A Person in whose name a Certificate is registered
pursuant to the terms of the Trust Agreement.
CERTIFICATEHOLDERS' INTEREST CARRYOVER SHORTFALL: As of the close of
any Distribution Date, the excess of (i) the Certificateholders' Interest
Distributable Amount for such Distribution Date over (ii) the amount that was
actually deposited in the Certificate Distribution Account on such current
Distribution Date in respect of interest on the Certificates.
CERTIFICATEHOLDERS' INTEREST DISTRIBUTABLE AMOUNT: With respect to any
Distribution Date, the sum of (i) the Certificateholders' Monthly Interest
Distributable Amount for such Distribution Date, (ii) the Certificateholders'
Interest Carryover Shortfall as of the close of the preceding Distribution
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Date and (iii) one month's interest at the Pass Through Rate on the sum of (a)
any outstanding Noteholder's Principal Carryover Shortfall and (b) any
outstanding Certificateholder's Principal Carryover Shortfall as of the close of
business on the preceding Distribution Date.
CERTIFICATEHOLDERS' MONTHLY INTEREST DISTRIBUTABLE AMOUNT: With respect
to any Distribution Date, interest equal to one-twelfth of the Pass Through Rate
multiplied by the Certificate Balance as of the close of the preceding
Distribution Date (or, in the case of the first Distribution Date, interest at
the Pass Through Rate multiplied by a fraction, the numerator of which is 26 and
the denominator of which is 360 multiplied by the initial Certificate Balance).
CERTIFICATEHOLDERS' MONTHLY PRINCIPAL DISTRIBUTABLE AMOUNT: With
respect to any Distribution Date, the lesser of (i) the Certificateholders'
Percentage of the Principal Distributable Amount for such Distribution Date and
(ii) the Certificate Balance as of the close of the preceding Distribution Date.
CERTIFICATEHOLDERS' PERCENTAGE: With respect to any Distribution Date,
100% MINUS the Noteholders' Percentage.
CERTIFICATEHOLDERS' PRINCIPAL CARRYOVER SHORTFALL: As of the close of
any Distribution Date, the excess of (i) the Certificateholders' Principal
Distributable Amount for such Distribution Date OVER (ii) the amount that was
actually deposited in the Certificate Distribution Account on such current
Distribution Date in respect of the Certificate Balance.
CERTIFICATEHOLDERS' PRINCIPAL DISTRIBUTABLE AMOUNT: With respect to
any Distribution Date, the SUM of:
(i) the LESSER of
(A) the Certificateholders' Percentage of the Principal
Distributable Amount and
(B) the Certificate Balance
PLUS
(ii) any outstanding Certificateholders' Principal Carryover Shortfall
as of the close of the preceding Distribution Date.
CERTIFICATE OF TRUST: The certificate of trust of the Issuer
substantially in the form of EXHIBIT B to the Trust Agreement to be filed for
the Trust pursuant to Section 3810(a) of the Business Trust Statute.
CERTIFICATE OWNER: With respect to a Book-Entry Certificate, the Person
who is the beneficial owner of such Book-Entry Certificate, as reflected on the
books of the Clearing Agency, or on the books of a Person maintaining an account
with such Clearing Agency (directly as a Clearing Agency Participant or as an
indirect participant, in each case in accordance with the rules of such Clearing
Agency).
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CERTIFICATE POOL FACTOR: With respect to any Distribution Date, a
seven-digit decimal figure computed by the Servicer equal to the remaining
Certificate Balance as of the close of such Distribution Date divided by the
initial Certificate Balance.
CERTIFICATE REGISTER: The register of Certificates specified in
SECTION 3.4 of the Trust Agreement.
CERTIFICATE REGISTRAR: The registrar at any time of the Certificate
Register, appointed pursuant to SECTION 3.4(A) of the Trust Agreement.
CLASS A NOTES: Together, the Class A-1 Notes, the Class A-2 Notes, the
Class A-3 Notes, the Class A-4 Notes, and the Class A-5 Notes.
CLASS A PERCENTAGE: With respect to a Distribution Date, the percentage
equal to a fraction, the numerator of which is the outstanding principal balance
of the Class A Notes and the denominator of which is the sum of the outstanding
principal balance of the Class A Notes plus the outstanding principal balance of
the Variable Pay Term Notes, in each case at the close of the immediately
preceding Distribution Date (or, in the case of the first Distribution Date, the
Closing Date).
CLASS A-1 NOTES: The Class A-1 6.52% Asset Backed Notes in the
aggregate principal amount of $455,000,000 issued pursuant to the Indenture.
CLASS A-2 NOTES: The Class A-2 6.81% Asset Backed Notes in the
aggregate principal amount of $390,000,000 issued pursuant to the Indenture.
CLASS A-3 NOTES: The Class A-3 6.96% Asset Backed Notes in the
aggregate principal amount of $319,000,000 issued pursuant to the Indenture.
CLASS A-4 NOTES: The Class A-4 7.00% Asset Backed Notes in the
aggregate principal amount of $390,000,000 issued pursuant to the Indenture.
CLASS A-5 NOTES: The Class A-5 7.07% Asset Backed Notes in the
aggregate principal amount of $58,880,000 issued pursuant to the Indenture.
CLEARING AGENCY: An organization registered as a "clearing agency"
pursuant to Section 17A of the Exchange Act. The initial Clearing Agency shall
be The Depository Trust Company.
CLEARING AGENCY PARTICIPANT: A securities broker, dealer, bank, trust
company, clearing corporation or other financial institution or other Person for
whom from time to time a Clearing Agency effects book entry transfers and
pledges of securities deposited with the Clearing Agency.
CLOSING DATE: April 19, 2000.
CODE: The Internal Revenue Code of 1986, as amended from time to time,
and the Treasury Regulations promulgated thereunder.
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COLLATERAL: The collateral specified in the Granting Clause of the
Indenture.
COLLECTION ACCOUNT: The account designated as such, established and
maintained pursuant to SECTION 5.01(A)(I) of the Trust Sale and Servicing
Agreement.
CONTINGENT INTEREST RATE SWAP: The interest rate swap agreement,
including all schedules and confirmations related thereto, between GMAC and the
Trust, as executed and delivered on the Closing Date, as the same may become
effective as provided in the Triparty Agreement or be amended, supplemented,
renewed, extended or replaced from time to time.
CORPORATE TRUST OFFICE: With respect to the Indenture Trustee or the
Owner Trustee, the principal office at which at any particular time the
corporate trust business of the Indenture Trustee or Owner Trustee,
respectively, shall be administered, which offices at the Closing Date are
located, in the case of the Indenture Trustee, at 1 Bank One Plaza, Suite
IL1-0126, Chicago, Illinois, 60670-0126, Attn: Corporate Trust Division, and in
the case of the Owner Trustee, at Montgomery Building, 1011 Centre Road, Suite
200, Wilmington, Delaware 19805, Attn: Corporate Trust Department.
CURABLE SEQUENTIAL AMORTIZATION PERIOD: A Sequential Amortization
Period which is not, or has not become, an Extended Sequential Amortization
Period.
CUSTODIAN: GMAC, as Servicer, or another custodian named from time to
time in the Custodian Agreement.
CUSTODIAN AGREEMENT: The Custodian Agreement, dated as of the Closing
Date, between the Custodian and CARI, as amended or supplemented from time to
time.
CUTOFF DATE: April 1, 2000.
DEALER: The seller of automobiles or light trucks that originated one
or more of the Receivables and assigned the respective Receivable, directly or
indirectly, to GMAC under an existing agreement between such seller and GMAC or
between such seller and General Motors, as applicable.
DEALER AGREEMENT: An existing agreement between GMAC and a Dealer with
respect to a Receivable.
DEFAULT: Any occurrence that is, or with notice or the lapse of time
or both would become, an Event of Default.
DEFERRED PREPAYMENT: With respect to the opening of business on a
Distribution Date and to a Scheduled Interest Receivable, the amount, if any,
held by the Servicer pursuant to SECTION 5.01(E) of the Trust Sale and Servicing
Agreement or in the Payment Ahead Servicing Account with respect to such
Receivable.
DEFINITIVE CERTIFICATES: As defined in SECTION 3.11 of the Trust
Agreement.
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DEFINITIVE NOTES: The Notes issued in the form of definitive notes
pursuant to SECTION 2.12 or SECTION 2.15 of the Indenture.
DEPOSITORY AGREEMENTS: Together, the Certificate Depository Agreement
and the Note Depository Agreement.
DESIGNATED ACCOUNT PROPERTY: The Designated Accounts, all cash,
investments, Financial Assets, securities and investment property held from time
to time in any Designated Account (whether in the form of deposit accounts,
Physical Property, book-entry securities, Uncertificated Securities or
otherwise), including the Reserve Account Initial Deposit, and all proceeds of
the foregoing but excluding all Investment Earnings thereon.
DESIGNATED ACCOUNTS: The Collection Account, the Note Distribution
Account, the Accumulation Account and the Reserve Account, collectively.
DETERMINATION DATE: The tenth day of each calendar month, or if such
tenth day is not a Business Day, the next succeeding Business Day.
DISTRIBUTION DATE: With respect to a Monthly Period, the 15th day of
the next succeeding calendar month or, if such 15th day is not a Business Day,
the next succeeding Business Day, commencing May 15, 2000.
EARLY TERMINATION DATE: As defined in the Interest Rate Swap.
ELIGIBLE DEPOSIT ACCOUNT: Either (i) a segregated account with an
Eligible Institution or (ii) a segregated trust account with the corporate trust
department of a depository institution organized under the laws of the United
States of America or any one of the states thereof or the District of Columbia
(or any domestic branch of a foreign bank), having corporate trust powers and
acting as trustee for funds deposited in such account, so long as any of the
securities of such depository institution have a credit rating from each Rating
Agency in one of its generic rating categories which signifies investment grade.
ELIGIBLE INSTITUTION: Either (i) the corporate trust department of the
Indenture Trustee or the Owner Trustee or (ii) a depository institution
organized under the laws of the United States of America or any one of the
states thereof or the District of Columbia (or any domestic branch of a foreign
bank), (A) which has either (1) a long-term unsecured debt rating acceptable to
the Rating Agencies or (2) a short-term unsecured debt rating or certificate of
deposit rating acceptable to the Rating Agencies and (B) whose deposits are
insured by the FDIC.
ELIGIBLE INVESTMENTS: Book-entry securities, negotiable instruments or
securities represented by instruments in bearer or registered form which
evidence:
(i) direct obligations of, and obligations fully guaranteed as to
timely payment of principal and interest by, the United States of
America;
(ii) demand deposits, time deposits or certificates of deposit of any
depository institution or trust company incorporated under the laws of
the United States of America or any state
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thereof (or any domestic branch of a foreign bank) and subject to
supervision and examination by Federal or State banking or depository
institution authorities; PROVIDED, HOWEVER, that at the time of the
investment or contractual commitment to invest therein, the commercial
paper or other short-term unsecured debt obligations (other than such
obligations the rating of which is based on the credit of a Person
other than such depository institution or trust company) thereof shall
have a credit rating from each of the Rating Agencies in the highest
investment category for short-term unsecured debt obligations or
certificates of deposit granted thereby;
(iii) commercial paper having, at the time of the investment or
contractual commitment to invest therein, a rating from each of the
Rating Agencies in the highest investment category for short-term
unsecured debt obligations or certificates of deposit granted thereby;
(iv) investments in money market or common trust funds having a rating
from each of the Rating Agencies in the highest investment category for
short-term unsecured debt obligations or certificates of deposit
granted thereby (including funds for which the Indenture Trustee or the
Owner Trustee or any of their respective affiliates is investment
manager or advisor, so long as such fund shall have such rating);
(v) bankers' acceptances issued by any depository institution or
trust company referred to in clause (ii) above;
(vi) repurchase obligations with respect to any security that is a
direct obligation of, or fully guaranteed by, the United States of
America or any agency or instrumentality thereof the obligations of
which are backed by the full faith and credit of the United States of
America, in either case entered into with (A) a depository institution
or trust company (acting as principal) described in clause (ii) or (B)
a depository institution or trust company (x) the deposits of which are
insured by FDIC or (y) the counterparty for which has a rating from
each of the Rating Agencies in the highest investment category for
short-term unsecured debt obligations, the collateral for which is held
by a custodial bank for the benefit of the Trust or the Indenture
Trustee, is marked to market daily and is maintained in an amount that
exceeds the amount of such repurchase obligation, and which requires
liquidation of the collateral immediately upon the amount of such
collateral being less than the amount of such repurchase obligation
(unless the counterparty immediately satisfies the repurchase
obligation upon being notified of such shortfall);
(vii) commercial paper master notes having, at the time of the
investment or contractual commitment to invest therein, a rating from
each of the Rating Agencies in the highest investment category for
short-term unsecured debt obligations;
(viii)(solely in the case of the Reserve Account) the Notes; and
(ix) any other investment permitted by each of the Rating Agencies,
in each case, other than as permitted by the Rating Agencies, maturing not later
than the Business Day immediately preceding the next Distribution Date or (B) on
such next Distribution Date if either (x) such investment is in the institution
with which the Note Distribution Account or the Certificate
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Distribution Account, as the case may be, is then maintained or (y) the
Indenture Trustee (so long as the short-term unsecured debt obligations of the
Indenture Trustee are rated at least P-1 by Moody's Investors Service, Inc. and
A-1 by Standard & Poor's Ratings Services on the date such investment is made)
shall advance funds on such Distribution Date to the Note Distribution Account
or the Certificate Distribution Account, as the case may be, in the amount
payable on such investment on such Distribution Date pending receipt thereof to
the extent necessary to make distributions on the Notes or the Certificates, as
the case may be, on such Distribution Date. The provisions in clauses (ii),
(iii), (iv), (vi) and (vii) above requiring that certain investments be rated in
the highest investment category granted by each Rating Agency require (a) such
rating from Fitch IBCA, Inc. only if Fitch IBCA, Inc. is then rating such
investment and (b) such rating from Duff & Phelps Credit Rating Co. only if Duff
& Phelps Credit Rating Co. is then rating such investment. For purposes of the
foregoing, unless the Indenture Trustee objects at the time an investment is
made, the Indenture Trustee shall be deemed to have agreed to make such advance
with respect to such investment.
ERISA: The Employee Retirement Income Security Act of 1974, as
amended.
EVENT OF DEFAULT: An event described in SECTION 5.1 of the Indenture.
EVENT OF DEFAULT PROCEEDS: As defined in SECTION 8.01(B) of the Trust
Sale and Servicing Agreement.
EVENT OF DEFAULT SALE: As defined in SECTION 8.01(B) of the Trust Sale
and Servicing Agreement.
EXCESS PAYMENT: With respect to a Distribution Date and a Scheduled
Interest Receivable, the portion of an Actual Payment on such Receivable in
excess of the Scheduled Payment thereon.
EXCESS SIMPLE INTEREST COLLECTIONS: With respect to a Distribution
Date, the excess, if any, of (i) all payments received during the related
Monthly Period on all Simple Interest Receivables to the extent allocable to
interest over (ii) the amount of interest that would be due during the related
Monthly Period on all Simple Interest Receivables assuming that the payment on
each such Receivable was received on its respective due date.
EXCHANGE ACT: The Securities Exchange Act of 1934, as amended.
EXECUTIVE OFFICER: With respect to any corporation, the Chief Executive
Officer, Chief Operating Officer, Chief Financial Officer, President, Executive
Vice President, any Vice President, the Secretary or the Treasurer of such
corporation; and with respect to any partnership, any general partner thereof.
EXPENSES: The expenses described in SECTION 6.9 of the Trust
Agreement.
EXTENDED SEQUENTIAL AMORTIZATION PERIOD: A Sequential Amortization
Period (i) which commenced as a result of the termination of the Interest Rate
Swap or (ii) which commenced as a result of a failure to pay the principal
amount of a class of Class A Notes in full on its Targeted Final
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Distribution Date and which has continued beyond the Targeted Final Distribution
Date for a class of Class A Notes with the next highest numerical designation.
FDIC: Federal Deposit Insurance Corporation or any successor agency.
FINAL SCHEDULED DISTRIBUTION DATE:
(i) With respect to a class of Class A Notes, the Distribution Date
in the month and year set forth below opposite such Notes:
Class A-1 Notes: March 2002
Class A-2 Notes: February 2003
Class A-3 Notes: November 2003
Class A-4 Notes: January 2005
Class A-5 Notes: September 2005
(ii) with respect to all classes of Variable Pay Term Notes, the
Distribution Date in September 2005; and
(iii) with respect to the Certificates, the Distribution Date in
September 2005.
FINANCED VEHICLE: An automobile or light truck, together with all
accessories thereto, securing an Obligor's indebtedness under a Receivable.
FINANCIAL ASSET: Has the meaning given such term in Article 8 of the
New York UCC. As used herein, the Financial Asset "related to" a Security
Entitlement is the Financial Asset in which the entitlement holder (as defined
in Article 8 of the New York UCC) holding such Security Entitlement has the
rights and property interest specified in Article 8 of the New York UCC.
FINANCIAL PARTIES: The Noteholders, the Certificateholders and, so
long as the Interest Rate Swap is in effect, the Swap Counterparty.
FURTHER TRANSFER AND SERVICING AGREEMENT: As defined in the recitals to
the Pooling and Servicing Agreement.
GENERAL MOTORS: General Motors Corporation, a Delaware corporation.
GMAC: General Motors Acceptance Corporation, a Delaware corporation.
GMAC INTEREST RATE SWAP: The interest rate swap agreement, including
all schedules and confirmations related thereto, between GMAC and the Swap
Counterparty in effect on the Closing Date, as the same may be amended,
supplemented, renewed, extended or replaced from time to time.
GRANT: To mortgage, pledge, bargain, sell, warrant, alienate, remise,
release, convey, assign, transfer, create, and grant a lien upon, a security
interest in and right of set-off against, deposit, set over and confirm pursuant
to the Indenture. A Grant of the Collateral or of any other agreement or
instrument shall include all rights, powers and options (but none of the
obligations) of the Granting
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party thereunder, including the immediate and continuing right to claim for,
collect, receive and give receipt for principal and interest payments in respect
of, the Collateral and all other moneys payable thereunder, to give and receive
notices and other communications, to make waivers or other agreements, to
exercise all rights and options, to bring Proceedings in the name of the
Granting party or otherwise and generally to do and receive anything that the
Granting party is or may be entitled to do or receive thereunder or with respect
thereto.
HOLDER: The Person in whose name a Note or Certificate is registered
on the Note Register or the Certificate Register, as applicable.
INDEMNIFIED PARTIES: The Persons specified in SECTION 6.9 of the Trust
Agreement.
INDENTURE: The Indenture, dated as of the Closing Date, between the
Issuer and the Indenture Trustee, as amended and supplemented from time to time.
INDENTURE TRUSTEE: Bank One, National Association, not in its
individual capacity but solely as trustee under the Indenture, or any successor
trustee under the Indenture.
INDEPENDENT: When used with respect to any specified Person, that the
Person (i) is in fact independent of the Issuer, any other obligor upon the
Notes, the Seller and any Affiliate of any of the foregoing Persons, (ii) does
not have any direct financial interest or any material indirect financial
interest in the Issuer, any such other obligor, the Seller or any Affiliate of
any of the foregoing Persons and (iii) is not connected with the Issuer, any
such other obligor, the Seller or any Affiliate of any of the foregoing Persons
as an officer, employee, promoter, underwriter, trustee, partner, director or
person performing similar functions.
INDEPENDENT CERTIFICATE: A certificate or opinion to be delivered to
the Indenture Trustee under the circumstances described in, and otherwise
complying with, the applicable requirements of SECTION 11.1 of the Indenture,
made by an Independent appraiser or other expert appointed by an Issuer Order
and approved by the Indenture Trustee in the exercise of reasonable care, and
such opinion or certificate shall state that the signer has read the definition
of "Independent" in the Indenture and that the signer is Independent within the
meaning thereof.
INDIRECT PARTICIPANT: A securities broker, dealer, bank, trust company
or other Person that clears through or maintains a custodial relationship with a
Clearing Agency Participant, either directly or indirectly.
INITIAL AGGREGATE PRINCIPAL BALANCE: $2,193,832,649.58.
INITIAL VARIABLE PAY TERM NOTE: The Variable Pay Term Note, Class 1, in
the initial aggregate principal amount of $515,138,000, issued on the Closing
Date.
INSURANCE POLICY: With respect to a Receivable, an insurance policy
covering physical damage, credit life, credit disability, theft, mechanical
breakdown or similar event with respect to the related Financed Vehicle.
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INTERCOMPANY ADVANCE AGREEMENT: The Amended and Restated Intercompany
Advance Agreement dated as of February 22, 1996 between CARI and GMAC, as
amended and supplemented from time to time.
INTEREST RATE:
(i) With respect to each class of Class A Notes, the rate set forth
below:
Class A-1 Notes: 6.52%
Class A-2 Notes: 6.81%
Class A-3 Notes: 6.96%
Class A-4 Notes: 7.00%
Class A-5 Notes: 7.07%
(ii) With respect to the Initial Variable Pay Term Note, the rate
equal to LIBOR plus 0.07%.
(iii) With respect to each other class of Variable Pay Term Notes, on
any Distribution Date, the rate equal to LIBOR plus the fixed
percentage spread determined at the time of issuance based on market
conditions but such spread will not exceed 2.5% as contemplated in
SECTION 2.06(A) of the Trust Sale and Servicing Agreement.
Notwithstanding the above, on each Distribution Date after the termination of
the Interest Rate Swap, the Interest Rate for all classes of Variable Pay Term
Notes shall be 7.085%.
INTEREST RATE SWAP: Collectively, the interest rate swap agreement,
including all schedules and confirmations related thereto, between the Trust and
the Swap Counterparty, in effect on the Closing Date, as the same may be
amended, supplemented, renewed, extended or replaced from time to time. From and
after the date, if any, on which the Contingent Interest Rate Swap becomes
effective as provided in the Triparty Agreement, it shall constitute the
"Interest Rate Swap" for all purposes under the Basic Documents.
INVESTMENT COMPANY ACT: The Investment Company Act of 1940, as the
same may be amended from time to time.
INVESTMENT EARNINGS: Investment earnings on funds deposited in the
Designated Accounts, the Payment Ahead Servicing Account and Certificate
Distribution Account, net of losses and investment expenses.
ISSUER: The party named as such in the Trust Sale and Servicing
Agreement and in the Indenture until a successor replaces it and, thereafter,
means the successor and, for purposes of any provision contained herein and
required by the TIA, each other obligor on the Notes.
ISSUER ORDER and ISSUER REQUEST: A written order or request signed in
the name of the Issuer by any one of its Authorized Officers and delivered to
the Indenture Trustee.
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LIBOR: With respect to each Distribution Date other than the initial
Distribution Date, the rate for deposits in U.S. Dollars for a period of one
month which appears on Telerate Service Page 3750 as of 11:00 a.m., London time,
on the day that is two LIBOR Business Days prior to the preceding Distribution
Date. If the rate does not appear on that date on Telerate Service Page 3750 (or
any other page as may replace that page on that service, or if that service is
no longer offered, any other service for displaying LIBOR or comparable rates as
may be selected by the Indenture Trustee after consultation with the Seller),
then LIBOR will be the Reference Bank Rate.
LIBOR BUSINESS DAY: Any day other than a Saturday, Sunday or any other
day on which banks in London are required or authorized to be closed.
LIEN: Any security interest, lien, charge, pledge, equity, encumbrance
or adverse claim of any kind other than tax liens, mechanics' liens and any
liens that attach by operation of law.
LIQUIDATING RECEIVABLE: A Receivable as to which the Servicer (i) has
reasonably determined, in accordance with its customary servicing procedures,
that eventual payment of amounts owing on such Receivable is unlikely, or (ii)
has repossessed and disposed of the Financed Vehicle.
LIQUIDATION EXPENSES: With respect to a Liquidating Receivable without
recourse to a Dealer, $300.00 (or such greater amount as the Servicer determines
necessary in accordance with its customary procedures to refurbish and dispense
of a repurchased Financed Vehicle) as an allowance for amounts charged to the
account of the Obligor, in keeping with the Servicer's customary procedures, for
refurbishing and disposition of the Financed Vehicle and other out-of-pocket
costs related to the liquidation; with respect to a Liquidating Receivable with
recourse to a Dealer, $0.
LIQUIDATION PROCEEDS: With respect to a Liquidating Receivable, all
amounts realized with respect to such Receivable net of amounts that are
required to be refunded to the Obligor on such Receivable.
MATERIALITY OPINION: A written opinion of Kirkland & Ellis, Mayer,
Brown & Platt or another nationally recognized law firm experienced in
securitization matters reasonably acceptable to the Swap Counterparty, addressed
to the Swap Counterparty and in form and substance reasonably satisfactory to
the Swap Counterparty.
MONTHLY ADVANCE: As of a Distribution Date, either a Scheduled Interest
Advance or a Simple Interest Advance, or both, as applicable, in respect of the
related Monthly Period.
MONTHLY PERIOD: With respect to a Distribution Date, the calendar
month preceding the month in which such Distribution Date occurs.
MONTHLY REMITTANCE CONDITION: Each of the following conditions:
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(i) GMAC is the Servicer,
(ii) the rating of GMAC's short-term unsecured debt is at least A-1 by
Standard & Poor's Ratings Services and P-1 by Moody's Investors
Service, Inc., and
(iii) a Servicer Default shall not have occurred and be continuing.
NEW YORK UCC: The UCC as in effect in the State of New York.
NOTE DEPOSITORY: The depository from time to time selected by the
Indenture Trustee on behalf of the Trust in whose name the Notes are registered
prior to the issue of Definitive Notes. The first Note Depository shall be Cede
& Co., the nominee of the initial Clearing Agency.
NOTE DEPOSITORY AGREEMENT: The agreement, dated as of the Closing Date,
among the Issuer, the Indenture Trustee and The Depository Trust Company, as the
initial Clearing Agency relating to the Notes, substantially in the form of
EXHIBIT B to the Indenture, as the same may be amended and supplemented from
time to time.
NOTE DISTRIBUTION ACCOUNT: The account designated as such, established
and maintained pursuant to SECTION 5.01(A)(II) of the Trust Sale and Servicing
Agreement.
NOTEHOLDERS: Holders of record of the Notes pursuant to the Indenture
and, with respect to any class of Notes, holders of record of such class of
Notes pursuant to the Indenture.
NOTEHOLDERS' INTEREST CARRYOVER SHORTFALL: As of the close of any
Distribution Date, the excess of (i) the Aggregate Noteholders' Interest
Distributable Amount for such Distribution Date over (ii) the amount that was
actually deposited in the Note Distribution Account on such current Distribution
Date in respect of interest.
NOTEHOLDERS' INTEREST DISTRIBUTABLE AMOUNT: With respect to any class
of Notes and any Distribution Date, the product of (i) the outstanding principal
balance of such class of Notes as of the close of the preceding Distribution
Date (or, in the case of the first Distribution Date, the outstanding principal
balance on the Closing Date) and (ii) in the case of (a) the Class A-2 Notes,
the Class A-3 Notes, the Class A-4 Notes and the Class A-5 Notes, one-twelfth of
the Interest Rate for such class (or, in the case of the first Distribution
Date, the Interest Rate for such class multiplied by a fraction, the numerator
of which is 26 and the denominator of which is 360) and (b) the Class A-1 Notes
and each class of the Variable Pay Term Notes, the product of the Interest Rate
for such class for such Distribution Date and a fraction, the numerator of which
is the number of days elapsed from and including the prior Distribution Date
(or, in the case of the first Distribution Date, from and including the Closing
Date), to but excluding that Distribution Date and the denominator of which is
360.
NOTEHOLDERS' PERCENTAGE: With respect to any Distribution Date, the
percentage equivalent of a fraction, the numerator of which is the outstanding
principal balance of the Notes and the denominator of which is the sum of the
outstanding principal balance of the Notes and the Certificate Balance, in each
case as of the close of the preceding Distribution Date.
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NOTEHOLDERS' PRINCIPAL CARRYOVER SHORTFALL: As of the close of any
Distribution Date, the excess of (i) Aggregate Noteholders' Principal
Distributable Amount for such Distribution Date OVER (ii) the amount that was
actually deposited in the Note Distribution Account on such current Distribution
Date in respect of principal.
NOTEHOLDERS' PRINCIPAL DISTRIBUTABLE AMOUNT: With respect to the
following and any Distribution Date:
For the Class A Notes,
(i) Except during a Sequential Amortization Period:
(A) For a class of Class A Notes on its Targeted Final
Distribution Date, the Noteholders' Principal Distributable
Amount for that class of Class A Notes is the lesser of
(1) the outstanding principal balance of that class
as of the close of the immediately preceding Distribution
Date and
(2) the Total Note Principal Payment Amount.
(B) If the Distribution Date is not a Targeted Final
Distribution Date for any class of Class A Notes, the
Noteholders' Principal Distributable Amount for a class of
Class A Notes is zero.
(ii) During a Sequential Amortization Period, the Noteholders'
Principal Distributable Amount for a Distribution Date for a class of
Class A Notes is the lesser of
(A) the outstanding principal balance of that class as of
the close of the immediately preceding Distribution Date and
(B) the remainder of
(1) the Class A Percentage of the Noteholders'
Percentage of the Principal Distributable Amount
minus
(2) the outstanding principal balance for each
class of Class A Notes with a lower numerical
designation as of the close of the immediately
preceding Distribution Date.
For the Variable Pay Term Notes,
(i) Except during a Sequential Amortization Period:
(A) If the Distribution Date is a Targeted Final
Distribution Date for a class of Class A Notes, the
Noteholders' Principal Distributable Amount for the Variable
Pay Term Notes is the remainder of
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(1) the Total Note Principal Payment Amount minus
(2) the Noteholder's Principal Distributable Amount
for that class of Class A Notes on that Distribution
Date determined as described above,
but in no event more than the outstanding principal balance of
the Variable Pay Term Notes as of the close of the immediately
preceding Distribution Date.
(B) If the Distribution Date is not a Targeted Final
Distribution Date for a class of Class A Notes, the
Noteholders' Principal Distributable Amount for the Variable
Pay Term Notes is the lesser of
(1) the outstanding principal balance of the
Variable Pay Term Notes as of the close of the
immediately preceding Distribution Date and
(2) the Noteholders' Percentage of the Principal
Distributable Amount for that Distribution Date.
(ii) During a Sequential Amortization Period, the Noteholders'
Principal Distributable Amount for the Variable Pay Term Notes on a
Distribution Date is the lesser of
(A) the outstanding principal balance of the Variable Pay
Term Notes as of the close of the immediately preceding
Distribution Date and
(B) the Variable Pay Term Percentage of the Noteholders'
Percentage of the Principal Distributable Amount.
Notwithstanding the foregoing, on the Final Scheduled Distribution Date for any
class of Class A Notes or the Variable Pay Term Notes, the Noteholders'
Principal Distributable Amount for that class will equal the outstanding
principal balance of that class as of the close of the immediately preceding
Distribution Date.
NOTE OWNER: With respect to a Book-Entry Note, the Person who is the
beneficial owner of such Book-Entry Note, as reflected on the books of the
Clearing Agency, or on the books of a Person maintaining an account with such
Clearing Agency (directly as a Clearing Agency Participant or as an Indirect
Participant, in each case in accordance with the rules of such Clearing Agency).
NOTE POOL FACTOR: With respect to any class of Notes and any
Distribution Date, a seven-digit decimal figure computed by the Servicer which
is equal to the Note Principal Balance for such class as of the close of such
Distribution Date divided by the initial Note Principal Balance for such class.
NOTE PRINCIPAL BALANCE: With respect to any class of Notes and any
Distribution Date, the initial aggregate principal balance of such class of
Notes, reduced by all previous payments to the Noteholders of such class in
respect of principal of such Notes.
NOTE REGISTER: With respect to any class of Notes, the register of
such Notes specified in SECTION 2.4 of the Indenture.
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NOTE REGISTRAR: The registrar at any time of the Note Register,
appointed pursuant to SECTION 2.4 of the Indenture.
NOTES: The Class A-1 Notes, the Class A-2 Notes, the Class A-3 Notes,
the Class A-4 Notes, the Class A-5 Notes and all classes of the Variable Pay
Term Notes.
OBLIGOR: The purchaser or the co-purchasers of the Financed Vehicle or
other person who owes payments under a Receivable.
OFFERED CERTIFICATES: Certificates issued pursuant to a Trust Agreement
with the exception of the Certificates retained by the Seller.
OFFERED NOTES: Together, the Class A-2 Notes, the Class A-3 Notes, the
Class A-4 Notes, and the Class A-5 Notes.
OFFICER'S CERTIFICATE: A certificate signed by any Authorized Officer
of the Issuer, under the circumstances described in, and otherwise complying
with, the applicable requirements of SECTION 11.1 of the Indenture, and
delivered to the Indenture Trustee. Unless otherwise specified, any reference in
the Indenture to an officer's certificate shall be to an Officer's Certificate
of any Authorized Officer of the Issuer.
OPINION OF COUNSEL: A written opinion of counsel, who may, except as
otherwise expressly provided, be an employee of the Seller or the Servicer. In
addition, for purposes of the Indenture: (i) such counsel shall be satisfactory
to the Indenture Trustee; (ii) the opinion shall be addressed to the Indenture
Trustee as Trustee and (iii) the opinion shall comply with any applicable
requirements of SECTION 11.1 of the Indenture and shall be in form and substance
satisfactory to the Indenture Trustee.
OPTIONAL PURCHASE DATE: As defined in SECTION 8.01(A) of the Trust
Sale and Servicing Agreement.
OPTIONAL PURCHASE PERCENTAGE: 10%.
OUTSTANDING: With respect to the Notes, as of the date of
determination, all Notes theretofore authenticated and delivered under the
Indenture except:
(i) Notes theretofore cancelled by the Indenture Trustee or delivered
to the Indenture Trustee for cancellation;
(ii) Notes or portions thereof the payment for which money in the
necessary amount has been theretofore deposited with the Indenture
Trustee or any Paying Agent in trust for the Holders of such Notes;
PROVIDED, HOWEVER, that if such Notes are to be redeemed, notice of
such redemption has been duly given pursuant to the Indenture or
provision therefor, satisfactory to the Indenture Trustee, has been
made; and
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(iii) Notes in exchange for or in lieu of other Notes which have been
authenticated and delivered pursuant to this Indenture unless proof
satisfactory to the Indenture Trustee is presented that any such Notes
are held by a bona fide purchaser;
PROVIDED, HOWEVER, that in determining whether the Holders of the requisite
Outstanding Amount of the Notes have given any request, demand, authorization,
direction, notice, consent or waiver hereunder or under any Basic Document,
Notes both legally and beneficially owned by the Issuer, any other obligor upon
the Notes, the Seller or any Affiliate of any of the foregoing Persons shall be
disregarded and deemed not to be Outstanding, except that, in determining
whether the Indenture Trustee shall be protected in relying upon any such
request, demand, authorization, direction, notice, consent or waiver, only Notes
that the Indenture Trustee knows to be so owned shall be so disregarded. Notes
so owned that have been pledged in good faith may be regarded as Outstanding if
the pledgee establishes to the satisfaction of the Indenture Trustee the
pledgor's right so to act with respect to such Notes and that the pledgee is not
the Issuer, any other obligor upon the Notes, the Seller or any Affiliate of any
of the foregoing Persons.
OUTSTANDING AMOUNT: As of any date, the aggregate principal amount of
all Notes, or a class of Notes, as applicable, Outstanding at such date.
OUTSTANDING MONTHLY ADVANCES: Outstanding Scheduled Interest Advances
and Outstanding Simple Interest Advances, collectively.
OUTSTANDING SCHEDULED INTEREST ADVANCES: As of the last day of a
Monthly Period and with respect to a Scheduled Interest Receivable, the sum of
all Scheduled Interest Advances made as of or prior to such date minus all
payments or collections as of or prior to such date which are specified in
SECTION 5.04(A) of the Trust Sale and Servicing Agreement as reducing
Outstanding Scheduled Interest Advances with respect to such Receivable.
OUTSTANDING SIMPLE INTEREST ADVANCES: As of the last day of a Monthly
Period, the sum of all Simple Interest Advances made as of or prior to such date
minus the sum of (i) all payments to the Servicer as of or prior to such date
pursuant to SECTION 5.04(B) of the Trust Sale and Servicing Agreement and (ii)
all Excess Simple Interest Collections paid to the Servicer as of or prior to
such date; PROVIDED, HOWEVER, that Outstanding Simple Interest Advances shall
never be deemed to be less than zero.
OVERDUE PAYMENT: With respect to a Distribution Date and to a Scheduled
Interest Receivable, all payments received by the Servicer from or for the
account of the related Obligor during the related Monthly Period in excess of
any Supplemental Servicing Fees (excluding any Investment Earnings during the
related Monthly Period), to the extent of the Outstanding Scheduled Interest
Advances relating to such Receivable.
OWNER TRUST ESTATE: All right, title and interest of the Trust in and
to the property and rights assigned to the Trust pursuant to ARTICLE II of the
Trust Sale and Servicing Agreement, all funds on deposit from time to time in
the Collection Account and the Certificate Distribution Account and all other
property of the Trust from time to time, including any rights of the Owner
Trustee and the Trust pursuant to the Trust Sale and Servicing Agreement and the
Administration Agreement.
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OWNER TRUSTEE: Bankers Trust (Delaware), a Delaware banking
corporation, or any successor trustee under the Trust Agreement, not in its
individual capacity but solely as trustee.
PASS THROUGH RATE: 7.28% per annum.
PAYING AGENT: With respect to the Indenture, the Indenture Trustee or
any other Person that meets the eligibility standards for the Indenture Trustee
specified in SECTION 6.11 of the Indenture and is authorized by the Issuer to
make the payments to and distributions from the Collection Account and the Note
Distribution Account, including payment of principal of or interest on the Notes
on behalf of the Issuer. With respect to the Trust Agreement, any paying agent
or co-paying agent appointed pursuant to SECTION 3.9 of the Trust Agreement that
meets the eligibility standards for the Owner Trustee specified in SECTION 6.13
of the Trust Agreement, and initially Bankers Trust Company.
PAYMENT AHEAD: With respect to a Distribution Date and to a Scheduled
Interest Receivable, any Excess Payment (not representing prepayment in full of
such Receivable) that is of an amount such that the sum of such Excess Payment
and the Deferred Prepayment is equal to or less than three times the Scheduled
Payment.
PAYMENT AHEAD SERVICING ACCOUNT: The account designated as such,
established and maintained pursuant to SECTION 5.01(A)(IV) of the Trust Sale and
Servicing Agreement.
PERSON: Any legal person, including any individual, corporation,
partnership, joint venture, association, joint stock company, trust,
unincorporated organization or government or any agency or political subdivision
thereof.
PHYSICAL PROPERTY: (i) bankers' acceptances, commercial paper,
negotiable certificates of deposit and other obligations that constitute
"instruments" within the meaning of Section 9-105(1)(i) of the New York UCC and
are susceptible of physical delivery and (ii) Security Certificates.
POOLING AND SERVICING AGREEMENT: The Pooling and Servicing Agreement,
dated as of the Closing Date, between GMAC and the Seller, as amended and
supplemented from time to time.
PREDECESSOR NOTE: With respect to any particular Note, every previous
Note evidencing all or a portion of the same debt as that evidenced by such
particular Note; and, for the purpose of this definition, any Note authenticated
and delivered under SECTION 2.5 of the Indenture in lieu of a mutilated, lost,
destroyed or stolen Note shall be deemed to evidence the same debt as the
mutilated, lost, destroyed or stolen Note.
PREPAYMENT: Any Excess Payment other than a Payment Ahead.
PREPAYMENT SURPLUS: With respect to any Distribution Date on which a
Prepayment is to be applied with respect to a Scheduled Interest Receivable,
that portion of such Prepayment, net of any Rebate.
PRINCIPAL BALANCE: With respect to any Scheduled Interest Receivable,
as of any date, the Amount Financed MINUS the SUM of the following amounts:
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(i) that portion of all Scheduled Payments due on or after the Cutoff
Date and on or prior to such date allocable to principal,
(ii) any Warranty Payment or Administrative Purchase Payment to the
extent allocable to principal, and
(iii) any Prepayments applied by the Servicer to reduce the Principal
Balance of such Receivable.
With respect to any Simple Interest Receivable, as of any date, the Amount
Financed MINUS the SUM of the following amounts:
(i) that portion of all payments received from the related Obligor on
or prior to such date allocable to principal and
(ii) any Warranty Payment or Administrative Purchase Payment to the
extent allocable to principal.
PRINCIPAL DISTRIBUTABLE AMOUNT: With respect to any Distribution Date,
the sum of (1) the principal portion of all Scheduled Payments due with respect
to the related Monthly Period on Scheduled Interest Receivables held by the
Trust (other than Liquidating Receivables) and the principal portion of all
payments received by the Trust during the related Monthly Period on Simple
Interest Receivables held by the Trust (other than Liquidating Receivables), (2)
the principal portion of all Prepayments received during the related Monthly
Period (except to the extent included in (1) above) and (3) the Principal
Balance of each Receivable that the Servicer became obligated or elected to
purchase, the Seller became obligated to repurchase or that became a Liquidating
Receivable during the related Monthly Period (except to the extent included in
(1) or (2) above).
PRIVATE NOTES: The Class A-1 Notes and any of the Variable Pay Term
Notes.
PROCEEDING: Any suit in equity, action at law or other judicial or
administrative proceeding.
PURCHASED PROPERTY: The property described in SECTION 2.01 of the
Pooling and Servicing Agreement.
RATING AGENCIES: As of any date, the nationally recognized statistical
rating organizations requested by the Seller to provide ratings on the Notes or
the Certificates which are rating the Notes or the Certificates on such date.
RATING AGENCY CONDITION: With respect to any action, the condition that
each Rating Agency shall have been given at least 10 days prior notice thereof
and that each of the Rating Agencies shall have notified the Seller, the
Servicer and the Issuer in writing that such action shall not result in a
downgrade or withdrawal of the then current rating of the Notes or the
Certificates.
REBATE: With respect to a given date and to a Scheduled Interest
Receivable, the rebate under such Receivable that is or would be payable to the
Obligor for unearned finance charges or any other
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charges rebatable to the Obligor upon the payment on such date of all remaining
Scheduled Payments.
RECEIVABLE: A retail instalment sale contract for a Financed Vehicle
that is included in the Schedule of Receivables and all rights and obligations
thereunder.
RECEIVABLE FILE: The documents listed in SECTION 2.04 of the Pooling
and Servicing Agreement pertaining to a particular Receivable.
RECEIVABLES PURCHASE PRICE: The amount described in SECTION 2.02 of
the Pooling and Servicing Agreement.
RECORD DATE: (i) with respect to the Notes and with respect to any
Distribution Date, the close of business on the day immediately preceding such
Distribution Date, or if Definitive Notes are issued for any class of Notes,
with respect to such class of Notes the last day of the preceding Monthly
Period; and (ii) with respect to the Certificates and with respect to any
Distribution Date, the close of business on the date immediately preceding such
Distribution Date, or if Definitive Certificates are issued, the last day of the
preceding Monthly Period.
REDEEMABLE NOTES: The Class A-5 Notes and the Variable Pay Term Notes.
REDEMPTION DATE: As defined in SECTION 10.1 of the Indenture.
REDEMPTION PRICE: With respect to the Redeemable Notes, the unpaid
principal amount of such Notes, plus accrued and unpaid interest thereon.
REFERENCE BANK RATE: For any Distribution Date, the per annum rate
determined on the basis of the rates at which deposits in U.S. Dollars are
offered by the reference banks (which will be four major banks that are engaged
in transactions in the London interbank market, selected by the Indenture
Trustee after consultation with the Seller) as of 11:00 a.m., London time, on
the day that is two LIBOR Business Days prior to the immediately preceding
Distribution Date to prime banks in the London interbank market for a period of
one month, in amounts approximately equal to the principal amount of the
Variable Pay Term Notes then outstanding. The Indenture Trustee will request the
principal London office of each of the reference banks to provide a quotation of
its rate. If at least two quotations are provided, the rate will be the
arithmetic mean of the quotations, rounded upwards to the nearest one-sixteenth
of one percent. If on that date fewer than two quotations are provided as
requested, the rate will be the arithmetic mean, rounded upwards to the nearest
one- sixteenth of one percent, of the rates quoted by one or more major banks in
New York City, selected by the Indenture Trustee after consultation with the
Seller, as of 11:00 a.m., New York City time, on that date to leading European
banks for United States dollar deposits for a period of one month in amounts
approximately equal to the principal amount of any class of Variable Pay Term
Notes then outstanding. If no quotation can be obtained, then LIBOR will be the
rate for the prior Distribution Date.
REGISTERED HOLDER: The Person in whose name a Note is registered on
the Note Register on the applicable Record Date.
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RELEASED ADMINISTRATIVE AMOUNT: With respect to a Distribution Date
and to a purchased Administrative Receivable, the Deferred Prepayment on such
Receivable.
RELEASED WARRANTY AMOUNT: With respect to a Distribution Date and to a
repurchased Warranty Receivable, the Deferred Prepayment on such Receivable.
REQUIRED DEPOSIT RATING: A rating on short-term unsecured debt
obligations of P-1 by Moody's Investors Service, Inc.; A-1+ by Standard & Poor's
Ratings Services; if rated by Fitch Investors Service, Inc., F-1+ by Fitch IBCA,
Inc.; and, if rated by Duff & Phelps Credit Rating Co., D-1+ by Duff & Phelps
Credit Rating Co. Any requirement that short-term unsecured debt obligations
have the "Required Deposit Rating" shall mean that such short-term unsecured
debt obligations have the foregoing required ratings from each of such rating
agencies.
RESERVE ACCOUNT: The account designated as such, established and
maintained pursuant to SECTION 4.07(A) of the Trust Sale and Servicing
Agreement.
RESERVE ACCOUNT INITIAL DEPOSIT: Cash or Eligible Investments having a
value of at least $75,687,226.45.
RESERVE ACCOUNT PROPERTY: (i) the Reserve Account and all proceeds
thereof (other than the Investment Earnings thereon) including all cash,
investments, investment property and other amounts held from time to time in the
Reserve Account (whether in the form of deposit accounts, Physical Property,
book-entry securities, uncertificated securities, Financial Assets or otherwise)
and (ii) the Reserve Account Initial Deposit and all proceeds thereof (other
than the Investment Earnings thereon).
RESPONSIBLE OFFICER: With respect to the Indenture Trustee or the Owner
Trustee, any officer within the Corporate Trust Office of such trustee or agent
of the Owner Trustee acting under a power of attorney, and, with respect to the
Servicer, the President, any Vice President, Assistant Vice President,
Secretary, Assistant Secretary or any other officer or assistant officer of such
Person customarily performing functions similar to those performed by any of the
above designated officers and also, with respect to a particular matter, any
other officer to whom such matter is referred because of such officer's
knowledge of and familiarity with the particular subject.
RETAINED CERTIFICATES: The Certificates retained by the Seller pursuant
to SECTION 3.10 of the Trust Agreement, with an initial Certificate Balance of
$658,649.58.
REVOLVING NOTE: The Revolving Note issued by CARI to GMAC under the
Intercompany Advance Agreement.
SCHEDULED INTEREST ADVANCE: With respect to a Scheduled Interest
Receivable, the amount, as of the last day of the related Monthly Period, which
the Servicer is required to advance pursuant to SUBSECTION 5.04(A) of the Trust
Sale and Servicing Agreement.
SCHEDULED INTEREST RECEIVABLE: Any Receivable that is not a Simple
Interest Receivable. For purposes hereof, all payments with respect to a
Scheduled Interest Receivable shall be allocated to principal and interest in
accordance with the actuarial method.
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SCHEDULED PAYMENT: With respect to a Distribution Date and to a
Scheduled Interest Receivable, the payment set forth in such Receivable due from
the Obligor in the related Monthly Period.
SCHEDULE OF RECEIVABLES: The schedule of all Receivables originally
held as part of the Trust and on file at the locations listed on EXHIBIT A of
the Trust Sale and Servicing Agreement, as it may be amended from time to time.
SECRETARY OF STATE: The Secretary of State of the State of Delaware.
SECURED OBLIGATIONS: Obligations consisting of the principal of and
interest on, and any other amounts owing in respect of, the Notes, equally and
ratably without prejudice, priority or distinction.
SECURED PARTIES: Each Holder of a Note.
SECURITIES ACT: As defined in Section 2.15(a) of the Indenture.
SECURITY CERTIFICATE: Has the meaning given such term in Section
8-102(a)(16) of the New York UCC.
SECURITY ENTITLEMENT: Has the meaning given such term in Section
8-102(a)(17) of the New York UCC.
SECURITYHOLDER: A Holder of a Note or a Certificate.
SELLER: The Person executing the Trust Sale and Servicing Agreement as
the Seller, or its successor in interest pursuant to SECTION 3.03 of the Trust
Sale and Servicing Agreement.
SEQUENTIAL AMORTIZATION COMMENCEMENT DATE: (i) The Targeted Final
Distribution Date for a class of Class A Notes if the principal amount of that
class is not paid in full on that Targeted Final Distribution Date, unless that
Targeted Final Distribution Date occurs during a Sequential Amortization Period,
or (ii) the first Distribution Date following the date on which the Interest
Rate Swap is terminated.
SEQUENTIAL AMORTIZATION PERIOD: The period commencing on a Sequential
Amortization Commencement Date and, if such Sequential Amortization Commencement
Date occurred as a result of the failure to pay a class of Class A Notes in full
on its Targeted Final Distribution Date, ending on the Distribution Date on
which such class of Class A Notes is paid in full so long as such Distribution
Date occurs prior to the Targeted Final Distribution Date for the class of Class
A Notes with the next highest numerical designation; provided that a Sequential
Amortization Period shall not so terminate if the failure to so pay a class of
Class A Notes in full on its Targeted Final Distribution Date follows a failure
to pay the class of Class A Notes with the next lowest numerical designation on
its Targeted Final Distribution Date.
SERVICER: The Person executing the Trust Sale and Servicing Agreement
as the Servicer, or its successor in interest pursuant to SECTION 6.02 of the
Trust Sale and Servicing Agreement.
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SERVICER DEFAULT: An event described in SECTION 7.01 of the Trust Sale
and Servicing Agreement.
SERVICER LIQUIDITY ADVANCE: An advance made by the Servicer to the
Trust pursuant to SECTION 5.05 of the Trust Sale and Servicing Agreement.
SERVICER'S ACCOUNTING: A certificate, completed by and executed on
behalf of the Servicer, in accordance with SECTION 3.10 of the Pooling and
Servicing Agreement.
SIMPLE INTEREST ADVANCE: The amount, as of the last day of the related
Monthly Period, which the Servicer is required to advance pursuant to SECTION
5.04(B) of the Trust Sale and Servicing Agreement.
SIMPLE INTEREST METHOD: The method of allocating each monthly payment
on a Simple Interest Receivable to principal and interest pursuant to which the
portion of such payment that is allocated to interest is equal to the product of
the outstanding principal balance thereon multiplied by the fixed rate of
interest applicable to such Receivable multiplied by the period of time elapsed
(expressed as a fraction of a calendar year) since the preceding payment of
interest with respect to such principal balance was made.
SIMPLE INTEREST RECEIVABLE: Any Receivable under which the portion of
each monthly payment allocable to earned interest and the portion allocable to
the Amount Financed is determined in accordance with the Simple Interest Method.
For purposes hereof, all payments with respect to a Simple Interest Receivable
shall be allocated to principal and interest in accordance with the Simple
Interest Method.
SPECIFIED RESERVE ACCOUNT BALANCE: With respect to any Distribution
Date, the sum of
(i) the GREATER of
(A) 3.45% of the outstanding principal balance of the
Notes and the Certificates as of the close of
business on such Distribution Date (after giving
effect to all payments and distributions to be made
on such Distribution Date); and
(B) $16,453,744.87
but in no event more than the outstanding principal balance of
the Notes and the Certificates as of the close of business on
such Distribution Date (after giving effect to all payments
and distributions to be made on such Distribution Date);
PLUS
(ii) in each case, if a deposit is to be made into the Accumulation
Account on such Distribution Date or was made on any prior Distribution
Date, an amount equal to the product of
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(A) the Accumulation Amount on such Distribution Date (after
giving effect to all deposits and withdrawals from the
Accumulation Account on such Distribution Date)
MULTIPLIED BY
(B) the number of Distribution Dates after such Distribution
Date through and including the next Distribution Date that is
a Targeted Final Distribution Date for any class of Class A
Notes DIVIDED BY 12
MULTIPLIED BY
(C) LIBOR for such Distribution Date MINUS 2.5%.
STATE: Any one of the 50 States of the United States of America or the
District of Columbia.
SUPPLEMENTAL SERVICING FEES: With respect to a Distribution Date, all
late fees, prepayment charges and other administrative fees and expenses or
similar charges allowed by applicable law with respect to Receivables, collected
(from whatever source) on the Receivables held by the Trust during the related
Monthly Period.
SWAP COUNTERPARTY: Morgan Stanley Capital Services Inc., as swap
counterparty under the Interest Rate Swap, or any successor or replacement Swap
Counterparty from time to time under the
Interest Rate Swap.
SWAP COUNTERPARTY GUARANTOR: Morgan Stanley Dean Witter & Co., as swap
counterparty guarantor under the Interest Rate Swap, or any successor or
replacement Swap Counterparty Guarantor, from time to time under the Interest
Rate Swap.
SWAP COUNTERPARTY RIGHTS AGREEMENT: The Swap Counterparty Rights
Agreement, dated as of the Closing Date, among the Swap Counterparty, the
Issuer, GMAC, as Servicer, Custodian, and Administrator, the Seller, the
Indenture Trustee, and the Owner Trustee, as amended and supplemented from time
to time.
TARGETED FINAL DISTRIBUTION DATE: With respect to a class of Class A
Notes, the Distribution Date in the month and year set forth below opposite such
Notes:
Class A-1 Notes: October 2000
Class A-2 Notes: April 2001
Class A-3 Notes: October 2001
Class A-4 Notes: April 2002
Class A-5 Notes: April 2003
TEMPORARY NOTES: The Notes specified in SECTION 2.3 of the Indenture.
THIRD PARTY INSTRUMENT: Each of the Interest Rate Swap, the Contingent
Interest Rate Swap and the Triparty Agreement.
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TOTAL AVAILABLE AMOUNT: With respect to any Distribution Date, the sum
of the Available Interest and the Available Principal for such Distribution Date
and the amount of all cash or other immediately available funds on deposit in
the Reserve Account immediately prior to such Distribution Date plus
(i) on the Targeted Final Distribution Date for any class of Class
A Notes, any Variable Pay Term Notes Issuance Proceeds and the
Accumulation Amount, if any, for such Distribution Date and
(ii) on the first Distribution Date after the Notes have been
declared due and payable following the occurrence of an Event
of Default and on the first Distribution Date after the
termination of the Interest Rate Swap, the Accumulation
Amount, if any, for such Distribution Date.
TOTAL NOTE PRINCIPAL PAYMENT AMOUNT: With respect to any Distribution
Date, the sum of
(i) the Noteholders' Percentage of the Principal Distributable Amount
plus
(ii) the Variable Pay Term Notes Issuance Proceeds, if any, plus
(iii) the Accumulation Amount, if any.
TOTAL SERVICING FEE: With respect to a Distribution Date, the sum of
the Basic Servicing Fee for such Distribution Date, any unpaid Basic Servicing
Fee for all prior Distribution Dates and Additional Servicing for such
Distribution Date.
TREASURY REGULATIONS: The regulations, including proposed or temporary
regulations, promulgated under the Code. References herein to specific
provisions of proposed or temporary regulations shall include analogous
provisions of final Treasury Regulations or other successor Treasury
Regulations.
TRIPARTY AGREEMENT: The Triparty Contingent Assignment Agreement, dated
as of the Closing Date, including all schedules, and confirmations thereto,
among the Trust, the Swap Counterparty and GMAC, as the same may be amended,
supplemented, renewed, extended or replaced from time to time.
TRUST: Capital Auto Receivables Asset Trust 2000-1, a Delaware
business trust created by the Trust Agreement.
TRUST AGREEMENT: The Trust Agreement, dated as of the Closing Date,
between the Seller and the Owner Trustee, as amended and supplemented from time
to time.
TRUST ESTATE: All money, instruments, rights and other property that
are subject or intended to be subject to the lien and security interest of the
Indenture for the benefit of the Secured Parties (including, without limitation,
all property and interests Granted to the Indenture Trustee), including all
proceeds thereof, and the Reserve Account and the Reserve Account Property
pledged to the Indenture Trustee pursuant to the Trust Sale and Servicing
Agreement.
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TRUST INDENTURE ACT or TIA: The Trust Indenture Act of 1939 as in force
on the date hereof, unless otherwise specifically provided.
TRUST SALE AND SERVICING AGREEMENT: The Trust Sale and Servicing
Agreement, dated as of the Closing Date, between the Seller, the Servicer and
the Trust, as amended and supplemented from time to time.
UCC: The Uniform Commercial Code as in effect in the relevant
jurisdiction.
UNCERTIFICATED SECURITY: Has the meaning given to such term in Section
8-102(a)(18) of the New York UCC.
UNDERTAKING LETTER: The Letter referred to in SECTIONS 3.4 and 9.12 of
the Trust Agreement.
UNDISTRIBUTED PRINCIPAL AMOUNT: For any Distribution Date that is not a
Targeted Final Distribution Date for a class of Class A Notes, except as
described in the following sentence, the excess, if any, of (x) the Noteholders'
Percentage of the Principal Distributable Amount over (y) the outstanding
principal balance of the Variable Pay Term Notes as of the close of business on
the immediately preceding Distribution Date. The Undistributed Principal Amount
for (a) each Distribution Date that is a Targeted Final Distribution Date for a
class of Class A Notes, (b) each Distribution Date during a Sequential
Amortization Period and (c) each Distribution Date following a declaration that
the Notes are immediately due and payable following the occurrence of an Event
of Default, until all Events of Default have been cured or waived as provided in
SECTION 5.2(B) of the Indenture, shall be zero.
VARIABLE PAY TERM NOTE PERCENTAGE: With respect to a Distribution Date,
100% minus the Class A Percentage for that Distribution Date.
VARIABLE PAY TERM NOTES: The Floating Rate Variable Pay Asset Backed
Term Notes issued from time to time pursuant to the Indenture including the
Initial Variable Pay Term Note.
VARIABLE PAY TERM NOTES ISSUANCE PROCEEDS: With respect to a
Distribution Date, the proceeds to the Trust from the issuance of Variable Pay
Term Notes on that Distribution Date.
VOTING INTERESTS: As of any date, the aggregate Certificate Balance of
all Certificates outstanding; PROVIDED, HOWEVER, that Certificates owned by the
Issuer, the Seller or any Affiliate of any of the foregoing Persons (each, an
"INSIDER") shall be disregarded and deemed not to be outstanding (unless all
Certificates are owned by insiders), except that, in determining whether the
Owner Trustee shall be protected in relying upon any such request, demand,
authorization, direction, notice, consent or waiver, only Certificates that the
Owner Trustee knows to be so owned shall be so disregarded. Certificates so
owned that have been pledged in good faith may be regarded as outstanding if the
pledgee establishes to the satisfaction of the Owner Trustee the pledgor's right
so to act with respect to such Certificates and that the pledgee is not the
Issuer, the Seller or any Affiliate of any of the foregoing Persons (unless all
Certificates are owned by insiders).
WARRANTY PAYMENT: With respect to a Distribution Date and to a
Warranty Receivable repurchased as of the last day of a Monthly Period,
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(i) in the case of a Scheduled Interest Receivable, a payment equal
to the SUM of:
(A) the sum of all remaining Scheduled Payments on such
Receivable minus the Rebate,
(B) all past due Scheduled Payments with respect to which a
Scheduled Interest Advance has not been made,
(C) any reimbursement made pursuant to the last sentence of
SUBSECTION 5.04(A) of the Trust Sale and Servicing Agreement
with respect to such Receivable, and
(D) all Outstanding Scheduled Interest Advances with respect
to such Receivable, minus any Liquidation Proceeds (to the
extent applied to reduce the Principal Balance of such
Receivable) previously received with respect to such
Receivable, or
(ii) in the case of a Simple Interest Receivable, a payment equal
to the Amount Financed minus that portion of all payments
received from the related Obligor on or prior to the last day
of the related Monthly Period allocable to principal and minus
any Liquidation Proceeds (to the extent applied to reduce the
Principal Balance of such Receivable) previously received with
respect to such Receivable.
WARRANTY PURCHASER: The Person described in SECTION 2.05 of the Trust
Sale and Servicing Agreement.
WARRANTY RECEIVABLE: A Receivable which the Warranty Purchaser has
become obligated to repurchase pursuant to SECTION 2.05 of the Trust Sale and
Servicing Agreement.
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PART II - RULES OF CONSTRUCTION
(b) ACCOUNTING TERMS. As used in this Appendix or the Basic Documents,
accounting terms which are not defined, and accounting terms partly
defined, herein or therein shall have the respective meanings given to
them under generally accepted accounting principles. To the extent that
the definitions of accounting terms in this Appendix or the Basic
Documents are inconsistent with the meanings of such terms under
generally accepted accounting principles, the definitions contained in
this Appendix or the Basic Documents will control.
(c) "HEREOF," ETC. The words "hereof," "herein" and "hereunder" and words
of similar import when used in this Appendix or any Basic Document will
refer to this Appendix or such Basic Document as a whole and not to any
particular provision of this Appendix or such Basic Document; and
Section, Schedule and Exhibit references contained in this Appendix or
any Basic Document are references to Sections, Schedules and Exhibits
in or to this Appendix or such Basic Document unless otherwise
specified. The word "or" is not exclusive.
(d) REFERENCE TO DISTRIBUTION DATES. With respect to any Distribution Date,
the "related Monthly Period," and the "related Record Date," will mean
the Monthly Period and Record Date, respectively, immediately preceding
such Distribution Date, and the relationships among Monthly Periods and
Record Dates will be correlative to the foregoing relationships.
(e) NUMBER AND GENDER. Each defined term used in this Appendix or the Basic
Documents has a comparable meaning when used in its plural or singular
form. Each gender-specific term used in this Appendix or the Basic
Documents has a comparable meaning whether used in a masculine,
feminine or gender-neutral form.
(f) INCLUDING. Whenever the term "including" (whether or not that term is
followed by the phrase "but not limited to" or "without limitation" or
words of similar effect) is used in this Appendix or the Basic
Documents in connection with a listing of items within a particular
classification, that listing will be interpreted to be illustrative
only and will not be interpreted as a limitation on, or exclusive
listing of, the items within that classification.
- 32 -
<PAGE>
APPENDIX B
NOTICE ADDRESSES AND PROCEDURES
All requests, demands, directions, consents, waivers, notices,
authorizations and communications provided or permitted under any Basic Document
to be made upon, given or furnished to or filed with the Seller, the Servicer,
the Administrator, the Indenture Trustee, the Issuer, the Owner Trustee, the
Custodian or the Rating Agencies shall be in writing, personally delivered, sent
by facsimile with a copy to follow via first class mail or mailed by certified
mail-return receipt requested, and shall be deemed to have been duly given upon
receipt:
(a) in the case of the Seller, at the following address:
Capital Auto Receivables, Inc.,
Corporation Trust Center,
1209 Orange Street,
Wilmington, Delaware 19801
with a copy to:
Manager - Securitization,
General Motors Acceptance Corporation
3031 West Grand Boulevard,
Detroit, Michigan 48202,
(b) in the case of the Servicer, the Administrator or the
Custodian, at the following address:
Director - Securitization and Cash Management
General Motors Acceptance Corporation,
3031 West Grand Boulevard,
Detroit, Michigan 48202,
(c) in the case of the Indenture Trustee, at its
Corporate Trust Office,
(d) in the case of the Issuer or the Owner Trustee, to
the Owner Trustee at its Corporate Trust Office, with
a copy to
Bankers Trust Company,
Four Albany Street, 10th Floor
New York, New York 10006,
Attention: Corporate Trust and Agency Group,
and with a copy to:
Capital Auto Receivables, Inc.,
Attention: Karen A. Sabatowski, Vice President
3031 West Grand Boulevard,
Detroit, Michigan 48202
- 1 -
<PAGE>
The Issuer shall promptly transmit any notice received by it from the
Noteholders to the Indenture Trustee and the Indenture Trustee shall likewise
promptly transmit any notice received by it from the Noteholders to the Issuer.
(e) in the case of Moody's Investors Service, Inc., to
Moody's Investors Service, Inc.,
ABS Monitoring Department,
99 Church Street,
New York, New York 10007,
(f) in the case of Standard & Poor's Ratings Services, to
Standard & Poor's Ratings Services,
55 Water Street
40th Floor
New York, New York 10041
Attention: Asset Backed Surveillance Department,
(g) in the case of Fitch IBCA, Inc., to
Fitch IBCA, Inc.,
One State Street Plaza,
New York, New York 10004,
Attention: Asset-Backed Surveillance, and
(h) in the case of Duff & Phelps Credit Rating Co., to
Duff & Phelps Credit Rating Co.,
55 E. Monroe Street,
Chicago, Illinois 60603,
Attention: Structured Finance Research & Monitoring,
(i) in the case of Swap Counterparty, to
Morgan Stanley Capital Services Inc.
1585 Broadway, 3rd Floor
New York, New York 10036
Attention: DPG Transaction Management
or at such other address as shall be designated by such Person in a written
notice to the other parties to this Agreement.
Where any Basic Document provides for notice to Noteholders or
Certificateholders of any condition or event, such notice shall be sufficiently
given (unless otherwise herein expressly provided) if it is in writing and
mailed, first-class, postage prepaid to each Noteholder or Certificateholder
affected by such condition or event, at such Person's address as it appears on
the
- 2 -
<PAGE>
Note Register or Certificate Register, as applicable, not later than the latest
date, and not earlier than the earliest date, prescribed in such Basic Document
for the giving of such notice. If notice to Noteholders or Certificateholders is
given by mail, neither the failure to mail such notice nor any defect in any
notice so mailed to any particular Noteholders or Certificateholders shall
affect the sufficiency of such notice with respect to other Noteholders or
Certificateholders, and any notice that is mailed in the manner herein provided
shall conclusively be presumed to have been duly given regardless of whether
such notice is in fact actually received.
- 3 -
<PAGE>
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939
OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY
OF A TRUSTEE PURSUANT TO SECTION 305(B)(2) X
--------------------------
BANK ONE, NATIONAL ASSOCIATION
(EXACT NAME OF TRUSTEE AS SPECIFIED IN ITS CHARTER)
A NATIONAL BANKING ASSOCIATION 36-0899825
(I.R.S. EMPLOYER
IDENTIFICATION NUMBER)
1 BANK ONE PLAZA, CHICAGO, ILLINOIS 60670-0126
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES) (ZIP CODE)
BANK ONE, NATIONAL ASSOCIATION
1 BANK ONE PLAZA, SUITE IL1-0126
CHICAGO, ILLINOIS 60670-0126
ATTN: STEVEN M. WAGNER, (312) 407-1819
(NAME, ADDRESS AND TELEPHONE NUMBER OF AGENT FOR SERVICE)
CAPITAL AUTO RECEIVABLES ASSET TRUST 2000-1
(EXACT NAME OF OBLIGOR AS SPECIFIED IN ITS CHARTER)
DELAWARE PENDING
(STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) IDENTIFICATION NUMBER)
C/O BANKERS TRUST (DELAWARE), AS OWNER TRUSTEE
1011 CENTRE ROAD
SUITE 200
WILMINGTON, DELAWARE 19805
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES) (ZIP CODE)
CAPITAL AUTO RECEIVABLES ASSET TRUST 2000-1 ASSET BACKED NOTES, CLASS A
(TITLE OF INDENTURE SECURITIES)
<PAGE>
ITEM 1. GENERAL INFORMATION. FURNISH THE FOLLOWING
INFORMATION AS TO THE TRUSTEE:
(A) NAME AND ADDRESS OF EACH EXAMINING OR
SUPERVISING AUTHORITY TO WHICH IT IS SUBJECT.
Comptroller of Currency, Washington, D.C.;
Federal Deposit Insurance Corporation,
Washington, D.C.; The Board of Governors of
the Federal Reserve System, Washington D.C..
(B) WHETHER IT IS AUTHORIZED TO EXERCISE
CORPORATE TRUST POWERS.
The trustee is authorized to exercise corporate trust powers.
ITEM 2. AFFILIATIONS WITH THE OBLIGOR. IF THE OBLIGOR
IS AN AFFILIATE OF THE TRUSTEE, DESCRIBE EACH
SUCH AFFILIATION.
No such affiliation exists with the trustee.
ITEM 16. LIST OF EXHIBITS. LIST BELOW ALL EXHIBITS FILED AS A PART
OF THIS STATEMENT OF ELIGIBILITY.
1. A copy of the articles of association of the
trustee now in effect.*
2. A copy of the certificates of authority of the
trustee to commence business.*
3. A copy of the authorization of the trustee to
exercise corporate trust powers.*
4. A copy of the existing by-laws of the trustee.*
5. Not Applicable.
6. The consent of the trustee required by
Section 321(b) of the Act.
<PAGE>
7. A copy of the latest report of condition of the
trustee published pursuant to law or the
requirements of its supervising or examining
authority.
8. Not Applicable.
9. Not Applicable.
Pursuant to the requirements of the Trust Indenture Act of 1939, as
amended, the trustee, Bank One, National Association, a national
banking association organized and existing under the laws of the United
States of America, has duly caused this Statement of Eligibility to be
signed on its behalf by the undersigned, thereunto duly authorized, all
in the City of Chicago and State of Illinois, on the 14th day of April,
2000.
BANK ONE, NATIONAL ASSOCIATION,
TRUSTEE
BY /S/ STEVEN M. WAGNER
STEVEN M. WAGNER
FIRST VICE PRESIDENT
* EXHIBITS 1, 2, 3, AND 4 ARE HEREIN INCORPORATED BY REFERENCE TO EXHIBITS
BEARING IDENTICAL NUMBERS IN ITEM 16 OF THE FORM T-1 OF BANK ONE, NATIONAL
ASSOCIATION, FILED AS EXHIBIT 25 TO THE REGISTRATION STATEMENT ON FORM S-3 OF
HOUSEHOLD FINANCE CORPORATION FILED WITH THE SECURITIES AND EXCHANGE COMMISSION
ON MARCH 24, 2000 (REGISTRATION NO. 333-33240).
<PAGE>
EXHIBIT 6
THE CONSENT OF THE TRUSTEE REQUIRED
BY SECTION 321(b) OF THE ACT
April 14, 2000
Securities and Exchange Commission
Washington, D.C. 20549
Gentlemen:
In connection with the qualification of an indenture between Capital Auto
Receivables Asset Trust 2000-1 and Bank One, National Association, as Trustee,
the undersigned, in accordance with Section 321(b) of the Trust Indenture Act of
1939, as amended, hereby consents that the reports of examinations of the
undersigned, made by Federal or State authorities authorized to make such
examinations, may be furnished by such authorities to the Securities and
Exchange Commission upon its request therefor.
Very truly yours,
BANK ONE, NATIONAL ASSOCIATION
BY: /S/ STEVEN M. WAGNER
--------------------
STEVEN M. WAGNER
FIRST VICE PRESIDENT
<PAGE>
<TABLE>
<CAPTION>
EXHIBIT 7
<S> <C> <C> <C> <C> <C> <C>
Legal Title of Bank: Bank One, NA Call Date: 12/31/99 ST-BK: 17-1630 FFIEC 031
Address: 1 Bank One Plaza, Ste 0303 Page RC-1
City, State Zip: Chicago, IL 60670
FDIC Certificate No.: 0/3/6/1/8
---------
CONSOLIDATED REPORT OF CONDITION FOR INSURED COMMERCIAL
AND STATE-CHARTERED SAVINGS BANKS FOR DECEMBER 31, 1999
All schedules are to be reported in thousands of dollars. Unless otherwise
indicated, report the amount outstanding of the last business day of the
quarter.
SCHEDULE RC--BALANCE SHEET
DOLLAR AMOUNTS IN THOUSANDS C400
RCFD BIL MIL THOU
ASSETS
1. Cash and balances due from depository institutions (from Schedule
RC-A): RCFD
a. Noninterest-bearing balances and currency and coin(1) 0081 5,055,227 1.a
b. Interest-bearing balances(2).................. 0071 6,267,008 1.b
2. Securities
a. Held-to-maturity securities(from Schedule RC-B, column A) 1754 0 2.a
b. Available-for-sale securities (from Schedule RC-B, column D)............ 1773 10,171,065 2.b
3. Federal funds sold and securities purchased under agreements to
resell 1350 9,133,306 3.
4. Loans and lease financing receivables:
a. Loans and leases, net of unearned income (from Schedule RCFD
RC-C)............................................ 2122 54,113,895 4.a
b. LESS: Allowance for loan and lease losses..... 3123 485,672 4.b
c. LESS: Allocated transfer risk reserve......... 3128 0 4.c
d. Loans and leases, net of unearned income, allowance, and RCFD
reserve (item 4.a minus 4.b and 4.c).......... 2125 53,628,223 4.d
5. Trading assets (from Schedule RD-D)......... 3545 5,625,628 5.
6. Premises and fixed assets (including capitalized leases) 2145 728,892 6.
7. Other real estate owned (from Schedule RC-M) 2150 2,661 7.
8. Investments in unconsolidated subsidiaries and associated
companies (from Schedule RC-M)................... 2130 225,055 8.
9. Customers' liability to this bank on acceptances outstanding 2155 318,645 9.
10. Intangible assets (from Schedule RC-M)...... 2143 222,903 10.
11. Other assets (from Schedule RC-F)........... 2160 2,515,075 11.
12. Total assets (sum of items 1 through 11).... 2170 93,893,688 12.
____________________
(1) Includes cash items in process of collection and unposted debits.
(2) Includes time certificates of deposit not held for trading.
Legal Title of Bank: Bank One, NA Call Date: 12/31/99 ST-BK: 17-1630 FFIEC 031
Address: 1 Bank One Plaza, Ste 0303 Page RC-2
City, State Zip: Chicago, IL 60670
FDIC Certificate No.: 0/3/6/1/8
---------
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
SCHEDULE RC-CONTINUED
DOLLAR AMOUNTS IN
THOUSANDS
<S> <C>
LIABILITIES
13. Deposits:
a. In domestic offices (sum of totals of columns A and C RCON
from Schedule RC-E, part 1)................... 2200 26,310,375 13.a
(1) Noninterest-bearing(1).................... 6631 11,553,564 13.a1
(2) Interest-bearing.......................... 6636 14,756,811 13.a2
b. In foreign offices, Edge and Agreement subsidiaries, and RCFN
IBFs (from Schedule RC-E, part II)... 2200 28,917,958 13.b
(1) Noninterest bearing....................... 6631 623,837 13.b1
(2) Interest-bearing.......................... 6636 28,294,121 13.b2
14. Federal funds purchased and securities sold under agreements
to repurchase: RCFD 2800 9,453,894 14
15. a. Demand notes issued to the U.S. Treasury RCON 2840 1,263,434 15.a
b. Trading Liabilities(from Schedule RC-D)....... RCFD 3548 3,262,946 15.b
16. Other borrowed money: RCFD
a. With original maturity of one year or less.... 2332 12,462,976 16.a
b. With original maturity of more than one year. A547 1,049,525 16.b
c. With original maturity of more than three years....... A548 477,923 16.c
17. Not applicable
18. Bank's liability on acceptance executed and outstanding 2920 318,645 18.
19. Subordinated notes and debentures................ 3200 3,250,000 19.
20. Other liabilities (from Schedule RC-G)........... 2930 1,377,838 20.
21. Total liabilities (sum of items 13 through 20)... 2948 88,145,514 21.
22. Not applicable
EQUITY CAPITAL
23. Perpetual preferred stock and related surplus.... 3838 0 23.
24. Common stock..................................... 3230 200,858 24.
25. Surplus (exclude all surplus related to preferred stock) 3839 3,660,673 25.
26. a. Undivided profits and capital reserves........ 3632 2,057,661 26.a
b. Net unrealized holding gains (losses) on available-for-sale
securities.................................... 8434 (170,996) 26.b
c. ACCUMULATED NET GAINS (LOSSES) ON CASH FLOW HEDGES....... 4336 0 26.c
27. Cumulative foreign currency translation adjustments 3284 ( 22) 27.
28. Total equity capital (sum of items 23 through 27) 3210 5,748,174 28.
29. Total liabilities, limited-life preferred stock, and equity
capital (sum of items 21, 22, and 28)............ 3300 93,893,688 29.
Memorandum
To be reported only with the March Report of Condition.
1. Indicate in the box at the right the number of the statement below that best describes the most
comprehensive level of auditing work performed for the bank by independent external
Number
auditors as of any date during 1996 ............RCFD 6724 ..................N/A M.1.
1 = Independent audit of the bank conducted in accordance 4. = Directors' examination of the bank performed by other
with generally accepted auditing standards by a certified external auditors (may be required by state chartering
public accounting firm which submits a report on the bank authority)
2 = Independent audit of the bank's parent holding company 5 = Review of the bank's financial statements by external
conducted in accordance with generally accepted auditing auditors
standards by a certified public accounting firm which 6 = Compilation of the bank's financial statements by external
submits a report on the consolidated holding company auditors
(but not on the bank separately) 7 = Other audit procedures (excluding tax preparation work)
3 = Directors' examination of the bank conducted in 8 = No external audit work
accordance with generally accepted auditing standards
by a certified public accounting firm (may be required by
state chartering authority)
________________
(1) Includes total demand deposits and noninterest-bearing time and savings deposits.
</TABLE>
EXHIBIT 99.3
================================================================================
POOLING AND SERVICING AGREEMENT
BETWEEN
CAPITAL AUTO RECEIVABLES, INC.
AND
GENERAL MOTORS ACCEPTANCE CORPORATION
DATED AS OF APRIL 19, 2000
================================================================================
<PAGE>
<TABLE>
<CAPTION>
TABLE OF CONTENTS
PAGE
ARTICLE I
DEFINITIONS
<S> <C> <C>
SECTION 1.01 Definitions......................................................................2
SECTION 1.02 Owner of a Receivable............................................................2
ARTICLE II
PURCHASE AND SALE OF RECEIVABLES
SECTION 2.01 Purchase and Sale of Receivables.................................................2
SECTION 2.02 Receivables Purchase Price.......................................................3
SECTION 2.03 The Closing......................................................................3
SECTION 2.04 Custody of Receivable Files......................................................3
ARTICLE III
ADMINISTRATION AND SERVICING OF RECEIVABLES
SECTION 3.01 Duties of the Servicer...........................................................4
SECTION 3.02 Collection of Receivable Payments................................................5
SECTION 3.03 Rebates on Full Prepayments on Scheduled Interest
Receivables...............................................................5
SECTION 3.04 Realization Upon Liquidating Receivables.........................................5
SECTION 3.05 Maintenance of Insurance Policies................................................5
SECTION 3.06 Maintenance of Security Interests in Vehicles....................................6
SECTION 3.07 Covenants, Representations and Warranties of the Servicer........................6
SECTION 3.08 Purchase of Receivables Upon Breach of Covenant..................................7
SECTION 3.09 Total Servicing Fee; Payment of Certain Expenses by Servicer.....................8
SECTION 3.10 Servicer's Accounting............................................................8
SECTION 3.11 Application of Collections.......................................................8
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.01 Representations and Warranties as to the Receivables.............................9
SECTION 4.02 Additional Representations and Warranties of GMAC...............................12
SECTION 4.03 Representations and Warranties of CARI..........................................13
ARTICLE V
ADDITIONAL AGREEMENTS
SECTION 5.01 Conflicts With Further Transfer and Servicing Agreements........................14
i
<PAGE>
SECTION 5.02 Protection of Title.............................................................14
SECTION 5.03 Other Liens or Interests........................................................14
SECTION 5.04 Repurchase Events...............................................................14
SECTION 5.05 Indemnification.................................................................15
SECTION 5.06 Further Assignments.............................................................15
SECTION 5.07 Pre-Closing Collections.........................................................15
ARTICLE VI
CONDITIONS
SECTION 6.01 Conditions to Obligation of CARI................................................15
SECTION 6.02 Conditions To Obligation of GMAC................................................16
ARTICLE VII
MISCELLANEOUS PROVISIONS
SECTION 7.01 Amendment.......................................................................17
SECTION 7.02 Survival........................................................................17
SECTION 7.03 Notices.........................................................................17
SECTION 7.04 GOVERNING LAW...................................................................17
SECTION 7.05 Waivers.........................................................................17
SECTION 7.06 Costs and Expenses..............................................................17
SECTION 7.07 Confidential Information........................................................17
SECTION 7.08 Headings........................................................................17
SECTION 7.09 Counterparts....................................................................17
SECTION 7.10 No Petition Covenant............................................................18
EXHIBIT A - Form of Assignment
APPENDIX A - Definitions, Rules of Construction and Notices
ii
</TABLE>
<PAGE>
POOLING AND SERVICING AGREEMENT, dated as of April 19, 2000, between
CAPITAL AUTO RECEIVABLES, INC., a Delaware corporation ("CARI"), and GENERAL
MOTORS ACCEPTANCE CORPORATION, a Delaware corporation (herein referred to as
"GMAC" in its capacity as seller of the Receivables and as the "Servicer" in its
capacity as servicer of the Receivables).
WHEREAS, CARI desires to purchase a portfolio of automobile and light
truck retail instalment sale contracts and related rights owned by GMAC;
WHEREAS, GMAC is willing to sell such contracts and related rights to
CARI;
WHEREAS, CARI may wish to sell or otherwise transfer such contracts and
related rights, or interests therein, to a trust, corporation, partnership or
other entity (any such entity being the "Issuer");
WHEREAS, the Issuer may issue debentures, notes, participations,
certificates of beneficial interest, partnership interests or other interests or
securities (collectively, any such issued interests or securities being
"Securities") to fund its acquisition of such contracts and related rights;
WHEREAS, the Issuer may wish to provide in the agreements pursuant to
which it acquires its interest in such contracts and related rights and issues
the Securities (all such agreements being collectively the "Further Transfer and
Servicing Agreements") that GMAC shall service such contracts;
WHEREAS, the Servicer is willing to service such contracts in
accordance with the terms hereof for the benefit of CARI and, by its execution
of the Further Transfer and Servicing Agreements, will be willing to service
such contracts in accordance with the terms of such Further Transfer and
Servicing Agreements for the benefit of the Issuer and each other party
identified or described herein or in the Further Transfer and Servicing
Agreements as having an interest as owner, trustee, secured party, or holder of
Securities (the Issuer and all such parties under the Further Transfer and
Servicing Agreements being "Interested Parties") with respect to such contracts,
and the proceeds thereof, as the interests of such parties may appear from time
to time.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants herein contained, the parties hereto agree as follows:
1
<PAGE>
ARTICLE I
DEFINITIONS
SECTION 1.01 Definitions. Certain capitalized terms used in this
Agreement are defined in and shall have the respective meanings assigned them in
Part I of Appendix A to this Agreement. All references herein to "the Agreement"
or "this Agreement" are to this Pooling and Servicing Agreement as it may be
amended, supplemented or modified from time to time, and all references herein
to Articles and Sections are to Articles or Sections of this Agreement unless
otherwise specified. The rules of construction set forth in Part II of such
Appendix A shall be applicable to this Agreement.
SECTION 1.02 Owner of a Receivable. For purposes of this Agreement, the
"Owner" of a Receivable shall mean CARI until the execution and delivery of the
Further Transfer and Servicing Agreements and thereafter shall mean the Issuer;
provided, that GMAC or CARI, as applicable, shall be the "Owner" of any
Receivable from and after the time that such Person shall acquire such
Receivable, whether pursuant to Section 3.08 or 5.04 of this Agreement, any
provision of the Further Transfer and Servicing Agreements or otherwise.
ARTICLE II
PURCHASE AND SALE OF RECEIVABLES
SECTION 2.01 Purchase and Sale of Receivables. On such date as is
acceptable to CARI and GMAC by which the conditions specified in Article VI have
been satisfied (and in any event immediately prior to consummation of the
transactions contemplated by the Further Transfer and Servicing Agreements, if
any), GMAC shall sell, transfer, assign and otherwise convey to CARI, without
recourse:
(a) all right, title and interest of GMAC in, to and under the
Receivables listed on the Schedule of Receivables and (i) in the case of
Scheduled Interest Receivables, all monies due thereunder on and after the
Cutoff Date and (ii) in the case of Simple Interest Receivables, all monies
received thereon on and after the Cutoff Date, in each case exclusive of any
amounts allocable to the premium for physical damage insurance force-placed by
GMAC covering any related Financed Vehicle;
(b) the interest of GMAC in the security interests in the Financed
Vehicles granted by Obligors pursuant to the Receivables and, to the extent
permitted by law, any accessions thereto;
(c) except for those Receivables originated in Wisconsin, the interest
of GMAC in any proceeds from claims on any physical damage, credit life, credit
disability or other insurance policies covering Financed Vehicles or Obligors;
(d) the interest of GMAC in any proceeds from recourse against Dealers
on Receivables; and
2
<PAGE>
(e) the interest of GMAC in any proceeds of the property described in
clauses (a) and (b) above.
The property described in clauses (a) through (e) above is referred to
herein collectively as the "Purchased Property."
It is the intention of GMAC and CARI that the transfer and assignment
contemplated by this Agreement shall constitute a sale of the Receivables from
GMAC to CARI and the beneficial interest in and title to the Receivables shall
not be part of GMAC's estate in the event of the filing of a bankruptcy petition
by or against GMAC under any bankruptcy law.
The foregoing sale does not constitute and is not intended to result in
any assumption by CARI of any obligation of GMAC to the Obligors, Dealers,
insurers or any other Person in connection with the Receivables, any Dealer
Agreements, any insurance policies or any agreement or instrument relating to
any of them.
SECTION 2.02 Receivables Purchase Price. In consideration for the
Purchased Property, CARI shall, at the closing hereunder, pay to GMAC an amount
equal to the Initial Aggregate Principal Balance in respect of the Receivables
(the "Receivables Purchase Price") and GMAC shall execute and deliver to CARI an
assignment in the form attached hereto as Exhibit A. A portion of the
Receivables Purchase Price equal to $2,191,091,966.19 shall be paid to GMAC in
immediately available funds, and the balance of the Receivables Purchase Price
shall be recorded as an advance from GMAC to CARI pursuant to the Intercompany
Advance Agreement.
SECTION 2.03 The Closing. The sale and purchase of the Receivables
shall take place at the offices of Kirkland & Ellis, 200 East Randolph Drive,
56th Floor, Chicago, Illinois 60601, at a date and time mutually agreeable to
GMAC and CARI, and may occur simultaneously with the closing of transactions
contemplated by the Further Transfer and Servicing Agreements.
SECTION 2.04 Custody of Receivable Files. In connection with the sale,
transfer and assignment of the Receivables to CARI pursuant to this Agreement,
CARI, simultaneously with the execution and delivery of this Agreement, shall
enter into the Custodian Agreement with the Custodian, pursuant to which CARI
shall revocably appoint the Custodian, and the Custodian shall accept such
appointment, to act as the agent of CARI as Custodian of the following documents
or instruments which shall be constructively delivered to CARI with respect to
each Receivable:
(a) the fully executed original of the instalment sale contract for
such Receivable;
(b) documents evidencing or related to any Insurance Policy;
3
<PAGE>
(c) the original credit application of each Obligor, fully executed by
each such Obligor on GMAC's customary form, or on a form approved by GMAC, for
such application;
(d) where permitted by law, the original certificate of title (when
received) and otherwise such documents, if any, that GMAC keeps on file in
accordance with its customary procedures indicating that the Financed Vehicle is
owned by the Obligor and subject to the interest of GMAC as first lienholder or
secured party; and
(e) any and all other documents that GMAC keeps on file in accordance
with its customary procedures relating to the individual Receivable, Obligor or
Financed Vehicle.
ARTICLE III
ADMINISTRATION AND SERVICING OF RECEIVABLES
SECTION 3.01 Duties of the Servicer. The Servicer is hereby appointed
and authorized to act as agent for the Owner of the Receivables and in such
capacity shall manage, service, administer and make collections on the
Receivables with reasonable care, using that degree of skill and attention that
the Servicer exercises with respect to comparable automotive receivables that it
services for itself or others. The Servicer hereby accepts such appointment and
authorization and agrees to perform the duties of Servicer with respect to the
Receivables set forth herein and in the Further Transfer and Servicing
Agreements. The Servicer's duties shall include collection and posting of all
payments, responding to inquiries of Obligors, investigating delinquencies,
sending payment coupons to Obligors, reporting tax information to Obligors,
policing the collateral, accounting for collections and furnishing monthly and
annual statements to the Owner of any Receivables with respect to distributions,
generating federal income tax information and performing the other duties
specified herein. Subject to the provisions of Section 3.02, the Servicer shall
follow its customary standards, policies and procedures and shall have full
power and authority, acting alone, to do any and all things in connection with
such managing, servicing, administration and collection that it may deem
necessary or desirable. Without limiting the generality of the foregoing, the
Servicer is hereby authorized and empowered by the Owner of the Receivables,
pursuant to this Section 3.01, to execute and deliver, on behalf of all
Interested Parties, or any of them, any and all instruments of satisfaction or
cancellation, or of partial or full release or discharge, and all other
comparable instruments, with respect to the Receivables and the Financed
Vehicles. The Servicer is hereby authorized to commence, in its own name or in
the name of the Owner of such Receivable a legal proceeding to enforce a
Liquidating Receivable as contemplated by Section 3.04, to enforce all
obligations of GMAC and CARI under this Agreement and under the Further Transfer
and Servicing Agreements or to commence or participate in a legal proceeding
(including without limitation a bankruptcy proceeding) relating to or involving
a Receivable or a Liquidating Receivable. If the Servicer commences or
participates in such a legal proceeding in its own name, the Owner of such
Receivable shall thereupon be deemed to have automatically assigned such
Receivable to the Servicer for purposes of commencing or participating in any
such proceeding as a party or claimant, and the Servicer is hereby authorized
and empowered by the Owner of a Receivable to
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execute and deliver in the Servicer's name any notices, demands, claims,
complaints, responses, affidavits or other documents or instruments in
connection with any such proceeding. Any Owner of Receivables shall furnish the
Servicer with any powers of attorney and other documents and take any other
steps which the Servicer may deem necessary or appropriate to enable the
Servicer to carry out its servicing and administrative duties under this
Agreement and the Further Transfer and Servicing Agreements. Except to the
extent required by the preceding two sentences, the authority and rights granted
to the Servicer in this Section 3.01 shall be nonexclusive and shall not be
construed to be in derogation of the retention by the Owner of a Receivable of
equivalent authority and rights.
SECTION 3.02 Collection of Receivable Payments. The Servicer shall make
reasonable efforts to collect all payments called for under the terms and
provisions of the Receivables as and when the same shall become due, and shall
follow such collection practices, policies and procedures as it follows with
respect to comparable automotive receivables that it services for itself or
others. Except as provided in Section 3.07(a)(iii), the Servicer is hereby
authorized to grant extensions, rebates or adjustments on a Receivable without
the prior consent of the Owner of such Receivable. The Servicer is authorized in
its discretion to waive any prepayment charge, late payment charge or any other
fees that may be collected in the ordinary course of servicing such Receivable.
SECTION 3.03 Rebates on Full Prepayments on Scheduled Interest
Receivables. If the amount of a full Prepayment by an Obligor under a Scheduled
Interest Receivable, after adjustment for the Rebate, is less than the amount
that would be payable under the actuarial method if a full Prepayment were made
at the end of the billing month under such Scheduled Interest Receivable, either
because the Rebate calculated under the terms of such Receivable is greater than
the amount calculable under the actuarial method or because the Servicer's
customary servicing procedure is to credit a greater Rebate, the Servicer, as
part of its servicing duties, shall remit such difference to the Owner of such
Receivable.
SECTION 3.04 Realization Upon Liquidating Receivables. The Servicer
shall use reasonable efforts, consistent with its customary servicing
procedures, to repossess or otherwise comparably convert the ownership of any
Financed Vehicle that it has reasonably determined should be repossessed or
otherwise converted following a default under the Receivable secured by the
Financed Vehicle. The Servicer is authorized to follow such practices, policies
and procedures as it follows with respect to comparable automotive receivables
that it services for itself or others, which practices, policies and procedures
may include reasonable efforts to realize upon any recourse to Dealers, selling
the related Financed Vehicle at public or private sale and other actions by the
Servicer in order to realize upon such a Receivable. The foregoing is subject to
the provision that, in any case in which the Financed Vehicle shall have
suffered damage, the Servicer shall not expend funds in connection with any
repair or towards the repossession of such Financed Vehicle unless it shall
determine in its discretion that such repair and/or repossession shall increase
the proceeds of liquidation of the related Receivable by an amount greater than
the amount of such expenses. The Servicer shall be entitled to receive
Liquidation Expenses with respect to each Liquidating Receivable at such time as
the Receivable becomes a Liquidating Receivable (or as may otherwise be provided
in the Further Transfer and Servicing Agreements).
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SECTION 3.05 Maintenance of Insurance Policies. The Servicer shall, in
accordance with its customary servicing procedures, require that each Obligor
shall have obtained physical damage insurance covering the Financed Vehicle as
of the execution of the related Receivable. The Servicer shall, in accordance
with its customary servicing procedures, monitor such physical damage insurance
with respect to each Receivable.
SECTION 3.06 Maintenance of Security Interests in Vehicles. The
Servicer shall, in accordance with its customary servicing procedures and at its
own expense, take such steps as are necessary to maintain perfection of the
security interest created by each Receivable in the related Financed Vehicle.
The Owner of each Receivable hereby authorizes the Servicer to re-perfect such
security interest on behalf of such Owner, as necessary because of the
relocation of a Financed Vehicle, or for any other reason.
SECTION 3.07 Covenants, Representations and Warranties of the Servicer.
As of the closing hereunder, the Servicer hereby makes the following
representations, warranties and covenants on which CARI relies in accepting the
Receivables hereunder and on which the Issuer shall rely in accepting the
Receivables and executing and delivering the Securities under the Further
Transfer and Servicing Agreements.
(a) The Servicer covenants that from and after the closing hereunder:
(i) Liens in Force. Except as contemplated in this Agreement or
the Further Transfer and Servicing Agreements, the Servicer shall not
release in whole or in part any Financed Vehicle from the security
interest securing the related Receivable;
(ii) No Impairment. The Servicer shall do nothing to impair the
rights of CARI or any Interested Party in and to the Receivables; and
(iii) No Modifications. The Servicer shall not amend or
otherwise modify any Receivable such that the Amount Financed, the
Annual Percentage Rate, the total number of Scheduled Payments (in the
case of a Scheduled Interest Receivable) or the number of originally
scheduled due dates (in the case of a Simple Interest Receivable), is
altered or such that the last Scheduled Payment (in the case of a
Scheduled Interest Receivable) or the last scheduled due date (in the
case of a Simple Interest Receivable) occurs after the final scheduled
payment date that is specified in Section 4.01(r).
(b) Upon the execution of the Further Transfer and Servicing
Agreements, the Servicer represents and warrants to the Issuer and CARI that in
addition to the representations and warranties in Sections 4.01 and 4.02 being
true as of the date of the closing thereunder that as of such closing:
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(i) Organization and Good Standing. The Servicer had at all
relevant times, and now has, power, authority and legal right to
service the Receivables as provided herein and in the Further Transfer
and Servicing Agreements;
(ii) Power and Authority. The Servicer has the power and
authority to execute and deliver the Further Transfer and Servicing
Agreements and to carry out the terms of such agreements; and the
Servicer's execution, delivery and performance of the Further Transfer
and Servicing Agreements have been duly authorized by the Servicer by
all necessary corporate action;
(iii) Binding Obligation. The Further Transfer and Servicing
Agreements, when duly executed and delivered, shall constitute the
legal, valid and binding obligations of the Servicer enforceable in
accordance with their respective terms, except as enforceability may be
limited by bankruptcy, insolvency, reorganization, or other similar
laws affecting the enforcement of creditors' rights in general and by
general principles of equity, regardless of whether such enforceability
is considered in a proceeding in equity or at law;
(iv) No Violation. The consummation by the Servicer of the
transactions contemplated by the Further Transfer and Servicing
Agreements, and the fulfillment by the Servicer of the terms of the
Further Transfer and Servicing Agreements, shall not conflict with,
result in any breach of any of the terms and provisions of, or
constitute (with or without notice or lapse of time) a default under,
the articles of incorporation or by-laws of the Servicer, or any
indenture, agreement, mortgage, deed of trust or other instrument to
which the Servicer is a party or by which it is bound, or result in the
creation or imposition of any Lien upon any of its properties pursuant
to the terms of any such indenture, agreement, mortgage, deed of trust
or other instrument, other than the Further Transfer and Servicing
Agreements, or violate any law or, to the best of the Servicer's
knowledge, any order, rule or regulation applicable to the Servicer of
any court or of any federal or state regulatory body, administrative
agency or other governmental instrumentality having jurisdiction over
the Servicer or any of its properties;
(v) No Proceedings. To the Servicer's knowledge, there are no
proceedings or investigations pending, or threatened, before any court,
regulatory body, administrative agency or other tribunal or
governmental instrumentality having jurisdiction over the Servicer or
its properties (A) asserting the invalidity of the Further Transfer and
Servicing Agreements or any Securities issued thereunder, (B) seeking
to prevent the issuance of such Securities or the consummation of any
of the transactions contemplated by the Further Transfer and Servicing
Agreements, or (C) seeking any determination or ruling that might
materially and adversely affect the performance by the Servicer of its
obligations under, or the validity or enforceability of, the Further
Transfer and Servicing Agreements; and
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(vi) Reasonable Liquidation Expenses. The amounts defined as
"Liquidation Expenses" are a reasonable estimate of such expenses,
reasonably related to the Servicer's experience for such expenses
in servicing comparable automotive receivables.
SECTION 3.08 Purchase of Receivables Upon Breach of Covenant. Upon
discovery by any of the Servicer, CARI or any party under the Further Transfer
and Servicing Agreements of a breach of any of the covenants set forth in
Sections 3.06 and 3.07(a), the party discovering such breach shall give prompt
written notice thereof to the others. As of the last day of the second Monthly
Period following its discovering or receiving notice of such breach (or, at the
Servicer's election, the last day of the first Monthly Period so following), the
Servicer shall, unless it shall have cured such breach in all material respects,
purchase from the Owner thereof any Receivable materially and adversely affected
by such breach as determined by such Owner and, on the related Distribution
Date, the Servicer shall pay the Administrative Purchase Payment, and shall be
entitled to receive the Released Administrative Amount, if any. It is understood
and agreed that the obligation of the Servicer to purchase any Receivable with
respect to which such a breach has occurred and is continuing shall, if such
obligation is fulfilled, constitute the sole remedy against the Servicer for
such breach available to CARI or any Interested Party.
SECTION 3.09 Total Servicing Fee; Payment of Certain Expenses by
Servicer. The Servicer is entitled to receive the Total Servicing Fee and
Supplemental Servicing Fees out of collections in respect of the Receivables.
The Servicer shall also be entitled to Investment Earnings as set forth in the
Further Transfer and Servicing Agreements. Subject to any limitations on the
Servicer's liability under the Further Transfer and Servicing Agreements, the
Servicer shall be required to pay all expenses incurred by it in connection with
its activities under this Agreement and under the Further Transfer and Servicing
Agreements (including fees and disbursements of the Issuer, any trustees and
independent accountants, taxes imposed on the Servicer, expenses incurred in
connection with distributions and reports to holders of Securities and all other
fees and expenses not expressly stated under this Agreement or the Further
Transfer and Servicing Agreements to be for the account of the holders of
Securities).
SECTION 3.10 Servicer's Accounting. On each Determination Date under a
Further Transfer and Servicing Agreement, the Servicer shall deliver to each of
the trustees and other applicable parties under the Further Transfer and
Servicing Agreements and to CARI and the Rating Agencies a Servicer's Accounting
with respect to the immediately preceding Monthly Period executed by the
President or any Vice President of the Servicer containing all information
necessary to each such party for making any distributions required by the
Further Transfer and Servicing Agreements, and all information necessary to each
such party for sending any statements required under the Further Transfer and
Servicing Agreements. Receivables to be purchased by the Servicer under Sections
3.08 or 5.04 or to be repurchased by CARI or GMAC under the Further Transfer and
Servicing Agreements as of the last day of any Monthly Period shall be
identified by Receivable number (as set forth in the Schedule of Receivables).
With respect to any Receivables for which CARI is the Owner, the Servicer shall
deliver to CARI such accountings relating to such Receivables and the actions of
the Servicer with respect thereto as CARI may reasonably request.
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SECTION 3.11 Application of Collections. For the purposes of this
Agreement and the Further Transfer and Servicing Agreements, no later than each
Distribution Date all collections for the related Monthly Period shall be
applied by the Servicer as follows:
(a) With respect to each Scheduled Interest Receivable (other than an
Administrative Receivable or a Warranty Receivable), payments by or on behalf of
the Obligor which are not Supplemental Servicing Fees shall be applied first to
reduce outstanding advances of shortfalls in collections, if any, made pursuant
to the Further Transfer and Servicing Agreements with respect to such
Receivable. Next, the amount of any such payments in excess of Supplemental
Servicing Fees and any such advances with respect to such Receivable shall be
applied to the Scheduled Payment with respect to such Receivable. Any amount of
such payments remaining after the applications described in the preceding two
sentences constitutes an Excess Payment with respect to such Receivable, and
such Excess Payment (to the extent it does not constitute a Payment Ahead) shall
be applied to prepay such Receivable. If the amounts applied under the first two
sentences of this Section 3.11(a) shall be less than the Scheduled Payment,
whether as a result of any extension granted to the Obligor or otherwise, then
the Deferred Prepayment, if any, with respect to such Receivable shall be
applied by the Servicer to the extent of the shortfall, and such Deferred
Prepayment shall be reduced accordingly.
(b) With respect to all Simple Interest Receivables (other than
Administrative Receivables and Warranty Receivables), payments by or on behalf
of the Obligors which are not Supplemental Servicing Fees shall be applied first
to the payment to the Servicer of Excess Simple Interest Collections, if any,
and next to principal and interest on all such Simple Interest Receivables.
(c) With respect to each Administrative Receivable and Warranty
Receivable, payments by or on behalf of the Obligor shall be applied in the same
manner, except that any Released Administrative Amount or Released Warranty
Amount shall be remitted to the Servicer or CARI, as applicable. In the case of
a Scheduled Interest Receivable, a Warranty Payment shall be applied to reduce
any advances described in Section 3.11(a) and such Warranty Payment or an
Administrative Purchase Payment, as applicable, shall be applied to the
Scheduled Payment, in each case to the extent that the payments by or on behalf
of the Obligor shall be insufficient, and then to prepay such Receivable in
full. In the case of a Simple Interest Receivable, a Warranty Payment or an
Administrative Payment, as applicable, shall be applied to principal and
interest on such Receivable.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.01 Representations and Warranties as to the Receivables. GMAC
makes the following representations and warranties as to the Receivables on
which CARI relies in accepting the Receivables. Such representations and
warranties speak as of the date hereof, as of the closing hereunder and as of
the closing under the Further Transfer and Servicing Agreements, and shall
survive the sale,
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transfer and assignment of the Receivables to CARI and the subsequent assignment
and transfer pursuant to the Further Transfer and Servicing Agreements:
(a) Characteristics of Receivables. Each Receivable (i) was originated
by a Dealer for the retail sale of a Financed Vehicle in the ordinary course of
such Dealer's business, was fully and properly executed by the parties thereto,
was purchased by GMAC from such Dealer under an existing Dealer Agreement, and
was validly assigned by such Dealer to GMAC in accordance with its terms, (ii)
has created or shall create a valid, binding and enforceable first priority
security interest in favor of GMAC in the Financed Vehicle, which security
interest is assignable by GMAC to CARI, (iii) contains customary and enforceable
provisions such as to render the rights and remedies of the holder thereof
adequate for realization against the collateral of the benefits of the security,
and (iv) provides for level monthly payments (provided that the payment in the
first month and the final month of the life of the Receivable may be different
from the level payment) that shall amortize the Amount Financed by maturity and
shall yield interest at the Annual Percentage Rate. Scheduled Interest
Receivables represent (based on Principal Balances) 25% of the Initial Aggregate
Principal Balance, with the balance of the Receivables being Simple Interest
Receivables;
(b) Schedule of Receivables. The information set forth in the Schedule
of Receivables is true and correct in all material respects, and no selection
procedures believed to be adverse to CARI or to holders of the Securities issued
under the Further Transfer and Servicing Agreements were utilized in selecting
the Receivables from those receivables of GMAC which meet the selection criteria
under this Agreement;
(c) Compliance With Law. All requirements of applicable federal, state
and local laws, and regulations thereunder, including, without limitation, usury
laws, the Federal Truth-in-Lending Act, the Equal Credit Opportunity Act, the
Fair Credit Billing Act, the Fair Credit Reporting Act, the Fair Debt Collection
Practices Act, the Federal Trade Commission Act, the Magnuson-Moss Warranty Act,
the Federal Reserve Board's Regulations "B" and "Z", the Soldiers' and Sailors'
Civil Relief Act of 1940, the Texas Consumer Credit Code, and state adaptations
of the National Consumer Act and of the Uniform Consumer Credit Code and other
consumer credit laws and equal credit opportunity and disclosure laws, in
respect of any of the Receivables, have been complied with in all material
respects, and each Receivable and the sale of the Financed Vehicle evidenced
thereby complied at the time it was originated or made and now complies in all
material respects with all legal requirements of the jurisdiction in which it
was originated or made;
(d) Binding Obligation. Each Receivable represents the genuine, legal,
valid and binding payment obligation in writing of the Obligor thereon,
enforceable by the holder thereof in accordance with its terms, except as
enforceability may be limited by bankruptcy, insolvency, reorganization or
similar laws affecting the enforcement of creditors' rights in general and by
equity, regardless of whether such enforceability is considered in a proceeding
in equity or at law;
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(e) Security Interest in Financed Vehicle. Immediately prior to the
sale, transfer and assignment thereof pursuant hereto, each Receivable was
secured by a validly perfected first priority security interest in the Financed
Vehicle in favor of GMAC as secured party or all necessary and appropriate
action had been commenced that would result in the valid perfection of a first
priority security interest in the Financed Vehicle in favor of GMAC as secured
party;
(f) Receivables In Force. No Receivable has been satisfied,
subordinated or rescinded, and the Financed Vehicle securing each such
Receivable has not been released from the lien of the related Receivable in
whole or in part;
(g) No Waiver. Since the Cutoff Date, no provision of a Receivable has
been waived, altered or modified in any respect;
(h) No Defenses. No right of rescission, setoff, counterclaim or
defense has been asserted or threatened with respect to any Receivable;
(i) No Liens. There are, to the best of GMAC's knowledge, no liens or
claims that have been filed for work, labor or materials affecting any Financed
Vehicle securing any Receivable that are or may be liens prior to, or equal or
coordinate with, the security interest in the Financed Vehicle granted by the
Receivable;
(j) Insurance. Each Obligor is required to maintain a physical damage
insurance policy of the type that GMAC requires in accordance with its customary
underwriting standards for the purchase of automotive receivables;
(k) Good Title. No Receivable has been sold, transferred, assigned or
pledged by GMAC to any Person other than CARI; immediately prior to the
conveyance of the Receivables pursuant to this Agreement GMAC had good and
marketable title thereto, free of any Lien; and, upon execution and delivery of
this Agreement by GMAC, CARI shall have all of the right, title and interest of
GMAC in and to the Receivables, the unpaid indebtedness evidenced thereby and
the collateral security therefor, free of any Lien;
(l) Lawful Assignment. No Receivable was originated in, or is subject
to the laws of, any jurisdiction the laws of which would make unlawful the sale,
transfer and assignment of such Receivable under this Agreement;
(m) All Filings Made. All filings (including, without limitation, UCC
filings) necessary in any jurisdiction to give CARI a first priority perfected
ownership interest in the Receivables shall have been made;
(n) One Original. There is only one original executed copy of each
Receivable;
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(o) No Documents or Instruments. No Receivable, or constituent part
thereof, constitutes a "negotiable instrument" or "negotiable document of title"
(as such terms are used in the UCC);
(p) Maturity of Receivables. Each Receivable has an original maturity
of not less than 9 months and not greater than 60 months;
(q) Lowest Annual Percentage Rate. The lowest Annual Percentage Rate
of any Receivable is 6.00%;
(r) Scheduled Payments; Delinquency. Each Receivable was originated on
or after April 1, 1998, has a first scheduled payment that is due on or after
June 1, 1998, has a final scheduled payment that is due no later than March 31,
2005, and has neither a payment that is more than 29 days overdue as of the
Cutoff Date nor been charged-off by GMAC;
(s) Vehicles. Each Financed Vehicle shall be a new or used automobile
or light truck;
(t) Origin. Each Receivable shall have been originated in the United
States; and
(u) No Amendment. No Receivable has been amended or otherwise modified
such that the total number of the Obligor's Scheduled Payments (in the case of a
Scheduled Interest Receivable) or the number of originally scheduled due dates
(in the case of a Simple Interest Receivable) is increased or such that the
Amount Financed is increased.
SECTION 4.02 Additional Representations and Warranties of GMAC. GMAC
hereby represents and warrants to CARI as of the date hereof, as of the closing
hereunder and as of the closing under the Further Transfer and Servicing
Agreements, both in its capacity as the seller of the Receivables hereunder and
in its capacity as Servicer, that:
(a) Organization and Good Standing. GMAC has been duly organized and
is validly existing as a corporation in good standing under the laws of the
State of Delaware, with power and authority to own its properties and to conduct
its business as such properties are presently owned and such business is
presently conducted;
(b) Due Qualification. GMAC is duly qualified to do business as a
foreign corporation in good standing, and has obtained all necessary licenses
and approvals, in all jurisdictions in which the ownership or lease of property
or the conduct of its business (including the servicing of the Receivables)
requires or shall require such qualification;
(c) Power and Authority. GMAC has the power and authority to execute
and deliver this Agreement and to carry out its terms; GMAC has full power and
authority to sell and assign the property
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to be sold and assigned to CARI and to service the Receivables as provided
herein and in the Further Transfer and Servicing Agreements, has duly authorized
such sale and assignment to CARI by all necessary corporate action; and the
execution, delivery and performance of this Agreement have been duly authorized
by GMAC by all necessary corporate action;
(d) Valid Sale; Binding Obligation. This Agreement, when duly executed
and delivered, shall constitute a valid sale, transfer and assignment of the
Receivables, enforceable against creditors of and purchasers from GMAC; and this
Agreement, when duly executed and delivered, shall constitute a legal, valid and
binding obligation of GMAC enforceable in accordance with its terms, except as
enforceability may be limited by bankruptcy, insolvency, reorganization or other
similar laws affecting the enforcement of creditors' rights in general and by
general principles of equity, regardless of whether such enforceability is
considered in a proceeding in equity or at law;
(e) No Violation. The consummation of the transactions contemplated by
this Agreement and the fulfillment of the terms of this Agreement shall not
conflict with, result in any breach of any of the terms and provisions of, or
constitute (with or without notice or lapse of time) a default under, the
articles of incorporation or by-laws of GMAC, or any indenture, agreement,
mortgage, deed of trust or other instrument to which GMAC is a party or by which
it is bound, or result in the creation or imposition of any Lien upon any of its
properties pursuant to the terms of any such indenture, agreement, mortgage,
deed of trust or other instrument, other than this Agreement or violate any law
or, to the best of GMAC's knowledge, any order, rule or regulation applicable to
GMAC of any court or of any federal or state regulatory body, administrative
agency or other governmental instrumentality having jurisdiction over GMAC or
any of its properties; and
(f) No Proceedings. To GMAC's knowledge, there are no proceedings or
investigations pending, or threatened, before any court, regulatory body,
administrative agency or other tribunal or governmental instrumentality having
jurisdiction over GMAC or its properties (A) asserting the invalidity of this
Agreement, (B) seeking to prevent the consummation of any of the transactions
contemplated by this Agreement, or (C) seeking any determination or ruling that
might materially and adversely affect the performance by GMAC of its obligations
under, or the validity or enforceability of, this Agreement.
SECTION 4.03 Representations and Warranties of CARI. CARI hereby
represents and warrants to GMAC as of the date hereof and as of the closing
hereunder:
(a) Organization and Good Standing. CARI has been duly organized and is
validly existing as a corporation in good standing under the laws of the State
of Delaware, with power and authority to own its properties and to conduct its
business as such properties are presently owned and such business is presently
conducted, and had at all relevant times, and now has, power, authority and
legal right to acquire and own the Receivables;
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(b) Due Qualification. CARI is duly qualified to do business as a
foreign corporation in good standing, and has obtained all necessary licenses
and approvals in all jurisdictions in which the ownership or lease of property
or the conduct of its business requires such qualification;
(c) Power and Authority. CARI has the power and authority to execute
and deliver this Agreement and to carry out its terms and the execution,
delivery and performance of this Agreement have been duly authorized by CARI by
all necessary corporate action;
(d) No Violation. The consummation of the transactions contemplated by
this Agreement and the fulfillment of the terms of this Agreement shall not
conflict with, result in any breach of any of the terms and provisions of or
constitute (with or without notice or lapse of time) a default under, the
certificate of incorporation or by-laws of CARI, or any indenture, agreement,
mortgage, deed of trust or other instrument to which CARI is a party or by which
it is bound, or result in the creation or imposition of any Lien upon any of its
properties pursuant to the terms of any such indenture, agreement or other
instrument, other than any Further Transfer and Servicing Agreement or violate
any law or, to the best of CARI's knowledge, any order, rule or regulation
applicable to CARI of any court or of any federal or state regulatory body,
administrative agency or other governmental instrumentality having jurisdiction
over CARI or any of its properties; and
(e) No Proceedings. To CARI's knowledge, there are no proceedings or
investigations pending, or threatened, before any court, regulatory body,
administrative agency or other tribunal or governmental instrumentality having
jurisdiction over CARI or its properties (i) asserting the invalidity of this
Agreement, or (ii) seeking any determination or ruling that might materially and
adversely affect the performance by CARI of its obligations under, or the
validity or enforceability of, this Agreement.
ARTICLE V
ADDITIONAL AGREEMENTS
The Servicer agrees with CARI as follows:
SECTION 5.01 Conflicts With Further Transfer and Servicing Agreements.
To the extent that any provision of Sections 5.02 through 5.04 of this Agreement
conflicts with any provision of the Further Transfer and Servicing Agreements,
the Further Transfer and Servicing Agreements shall govern.
SECTION 5.02 Protection of Title.
(a) Filings. GMAC shall execute and file such financing statements and
cause to be executed and filed such continuation and other statements, all in
such manner and in such places as may be required by law fully to preserve,
maintain and protect the interest of CARI under this Agreement in the
Receivables and the other Purchased Property and in the proceeds thereof. GMAC
shall deliver (or cause to be
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delivered) to CARI file-stamped copies of, or filing receipts for, any document
filed as provided above, as soon as available following such filing.
(b) Name Change. GMAC shall not change its name, identity or corporate
structure in any manner that would, could or might make any financing statement
or continuation statement filed by GMAC in accordance with Section 5.02(a)
seriously misleading within the meaning of Section 9-402(7) of the UCC, unless
it shall have given CARI at least 60 days prior written notice thereof.
(c) Executive Office; Maintenance of Offices. GMAC shall give CARI at
least 60 days prior written notice of any relocation of its principal executive
office if, as a result of such relocation, the applicable provisions of the UCC
would require the filing of any amendment of any previously filed financing or
continuation statement or of any new financing statement. GMAC shall at all
times maintain each office from which it services Receivables and its principal
executive office within the United States of America.
SECTION 5.03 Other Liens or Interests. Except for the conveyances
hereunder and as contemplated by the Further Transfer and Servicing Agreements,
GMAC shall not sell, pledge, assign or transfer the Receivables to any other
Person, or grant, create, incur, assume or suffer to exist any Lien on any
interest therein, and GMAC shall defend the right, title and interest of CARI
in, to and under such Receivables against all claims of third parties claiming
through or under GMAC.
SECTION 5.04 Repurchase Events. By its execution of the Further
Transfer and Servicing Agreements to which it is a party, GMAC shall acknowledge
the assignment by CARI of such of its right, title and interest in, to and under
this Agreement to the Issuer as shall be provided in the Further Transfer and
Servicing Agreements. GMAC hereby covenants and agrees with CARI for the benefit
of CARI and the Interested Parties that in the event of a breach of any of
GMAC's representations and warranties contained in Section 4.01 hereof with
respect to any Receivable (a "Repurchase Event"), GMAC will repurchase such
Receivable from the Issuer (if the Issuer is then the Owner of such Receivable)
on the date and for the amount specified in the Further Transfer and Servicing
Agreements, without further notice from CARI hereunder. Upon the occurrence of a
Repurchase Event with respect to a Receivable for which CARI is the Owner, GMAC
agrees to repurchase such Receivable from CARI for an amount and upon the same
terms as GMAC would be obligated to repurchase such Receivable from the Issuer
if the Issuer was then the Owner thereof, and upon payment of such amount, GMAC
shall have such rights with respect to such Receivable as if GMAC had purchased
such Receivable from the Issuer as the Owner thereof. It is understood and
agreed that the obligation of GMAC to repurchase any Receivable as to which a
breach has occurred and is continuing shall, if such obligation is fulfilled,
constitute the sole remedy against GMAC for such breach available to CARI or any
Interested Party.
SECTION 5.05 Indemnification. GMAC shall indemnify CARI for any
liability as a result of the failure of a Receivable to be originated in
compliance with all requirements of law. This indemnity obligation shall be in
addition to any obligation that GMAC may otherwise have.
15
<PAGE>
SECTION 5.06 Further Assignments. GMAC acknowledges that CARI may,
pursuant to the Further Transfer and Servicing Agreements, sell the Receivables
to the Issuer and assign its rights hereunder to the Issuer, subject to the
terms and conditions of the Further Transfer and Servicing Agreements, and that
the Issuer may in turn further pledge, assign or transfer its rights in the
Receivables and this Agreement. GMAC further acknowledges that CARI may assign
its rights under the Custodian Agreement to the Issuer.
SECTION 5.07 Pre-Closing Collections. Within two Business Days after
the closing hereunder, GMAC shall transfer to the account or accounts designated
by CARI (or by the Issuer under the Further Transfer and Servicing Agreements)
all collections on the Receivables held by GMAC at the time of such closing and
conveyed to CARI pursuant to Section 2.01(a); provided that so long as the
Monthly Remittance Conditions are satisfied, such collections need not be
transferred until the first Distribution Date.
ARTICLE VI
CONDITIONS
SECTION 6.01 Conditions to Obligation of CARI. The obligation of CARI
to purchase the Receivables hereunder is subject to the satisfaction of the
following conditions:
(a) Representations and Warranties True. The representations and
warranties of GMAC hereunder shall be true and correct at the time of the
closing hereunder with the same effect as if then made, and GMAC shall have
performed all obligations to be performed by it hereunder on or prior to the
closing hereunder.
(b) No Repurchase Event. No Repurchase Event shall have occurred on or
prior to the closing hereunder.
(c) Computer Files Marked. GMAC shall, at its own expense, on or prior
to the closing hereunder, indicate in its computer files created in connection
with the Receivables that the Receivables have been sold to CARI pursuant to
this Agreement and deliver to CARI the Schedule of Receivables certified by an
officer of GMAC to be true, correct and complete.
(d) Documents to be Delivered By GMAC at the Closing.
(i) The Assignment. At the Closing, GMAC shall execute and
deliver an assignment in the form attached hereto as Exhibit A.
(ii) Evidence of UCC Filing. On or prior to the closing
hereunder, GMAC shall record and file, at its own expense, a UCC-1
financing statement in each jurisdiction in which required by
applicable law, executed by GMAC as seller or debtor, naming CARI as
purchaser
16
<PAGE>
or secured party, naming the Receivables and the other Purchased
Property as collateral, meeting the requirements of the laws of each
such jurisdiction and in such manner as is necessary to perfect the
sale, transfer, assignment and conveyance of such Receivables to CARI.
GMAC shall deliver a file-stamped copy, or other evidence satisfactory
to CARI of such filing, to CARI on or prior to the closing hereunder.
(iii) Other Documents. At the closing hereunder, GMAC shall
provide such other documents as CARI may reasonably request.
(e) Other Transactions. The transactions contemplated by the Further
Transfer and Servicing Agreements shall be consummated to the extent that such
transactions are intended to be substantially contemporaneous with the
transactions hereunder.
SECTION 6.02 Conditions To Obligation of GMAC. The obligation of GMAC
to sell the Receivables to CARI hereunder is subject to the satisfaction of the
following conditions:
(a) Representations and Warranties True. The representations and
warranties of CARI hereunder shall be true and correct at the time of the
closing hereunder with the same effect as if then made, and CARI shall have
performed all obligations to be performed by it hereunder on or prior to the
closing hereunder.
(b) Receivables Purchase Price. At the closing hereunder, CARI shall
pay to GMAC the Receivables Purchase Price as provided in Section 2.02.
ARTICLE VII
MISCELLANEOUS PROVISIONS
SECTION 7.01 Amendment. This Agreement may be amended from time to time
(subject to any expressly applicable amendment provision of the Further Transfer
and Servicing Agreements) by a written amendment duly executed and delivered by
GMAC and CARI.
SECTION 7.02 Survival. The representations and warranties of GMAC set
forth in Articles IV and V of this Agreement and of Servicer set forth in
Section 3.07 of this Agreement shall remain in full force and effect and shall
survive the closing under Section 2.03 hereof and the closing under the Further
Transfer and Servicing Agreements.
SECTION 7.03 Notices. All demands, notices and communications upon or
to GMAC or CARI under this Agreement shall be delivered as specified in Part III
of Appendix A to this Agreement.
17
<PAGE>
SECTION 7.04 GOVERNING LAW. THIS AGREEMENT AND THE ASSIGNMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH THE DOMESTIC LAWS OF THE STATE OF NEW YORK, WITHOUT
REGARD TO THE PRINCIPLES OF CONFLICTS OF LAWS THEREOF OR OF ANY OTHER
JURISDICTION, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES UNDER THIS
AGREEMENT SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
SECTION 7.05 Waivers. No failure or delay on the part of CARI in
exercising any power, right or remedy under this Agreement or the Assignment
shall operate as a waiver thereof, nor shall any single or partial exercise of
any such power, right or remedy preclude any other or further exercise thereof
or the exercise of any other power, right or remedy.
SECTION 7.06 Costs and Expenses. GMAC agrees to pay all reasonable
out-of-pocket costs and expenses of CARI, including fees and expenses of
counsel, in connection with the perfection as against third parties of CARI's
right, title and interest in, to and under the Receivables and the enforcement
of any obligation of GMAC hereunder.
SECTION 7.07 Confidential Information. CARI agrees that it shall
neither use nor disclose to any person the names and addresses of the Obligors,
except in connection with the enforcement of CARI's rights hereunder, under the
Receivables, under the Further Transfer and Servicing Agreements or as required
by law.
SECTION 7.08 Headings. The headings of the various Articles and
Sections herein are for convenience of reference only and shall not define or
limit any of the terms or provisions hereof.
SECTION 7.09 Counterparts. This Agreement may be executed in two or
more counterparts and by different parties on separate counterparts, each of
which shall be an original, but all of which together shall constitute one and
the same instrument.
SECTION 7.10 No Petition Covenant. Notwithstanding any prior
termination of this Agreement, GMAC shall not, prior to the date which is one
year and one day after the final distribution with respect to the Notes and the
Certificates to the Note Distribution Account or the Certificate Distribution
Account, as applicable, acquiesce, petition or otherwise invoke or cause CARI to
invoke the process of any court or government authority for the purpose of
commencing or sustaining a case against CARI under any federal or state
bankruptcy, insolvency or similar law or appointing a receiver, liquidator,
assignee, trustee, custodian, sequestrator or other similar official of CARI or
any substantial part of its property, or ordering the winding up or liquidation
of the affairs of CARI.
SECTION 7.11 Limitations on Rights of Others. The provisions of this
Agreement are solely for the benefit of GMAC and CARI and, to the extent
expressly provided herein, the Interested Parties, and nothing in this
Agreement, whether express or implied, shall be construed to give to any other
Person any
18
<PAGE>
legal or equitable right, remedy or claim in, under, or in respect of this
Agreement or any covenants, conditions or provisions contained herein.
* * * * *
19
<PAGE>
IN WITNESS WHEREOF, the parties hereby have caused this Agreement to be
executed by their respective officers thereunto duly authorized as of the date
and year first above written.
GENERAL MOTORS ACCEPTANCE CORPORATION
By: /S/ KAREN A. SABATOWSKI
--------------------------------------------
Name: Karen A. Sabatowski
Title: Director - Securitization and Cash
Management
CAPITAL AUTO RECEIVABLES, INC.
By: /S/ C. A. ONDRICK
---------------------------------------------
Name: C. A. Ondrick
Title: Manager - Securitization
20
<PAGE>
EXHIBIT A
ASSIGNMENT PURSUANT TO POOLING AND SERVICING AGREEMENT
For value received, in accordance with the Pooling and
Servicing Agreement, dated as of April 19, 2000 (the "Pooling and Servicing
Agreement"), between General Motors Acceptance Corpora tion, a Delaware
corporation ("GMAC"), and Capital Auto Receivables, Inc., a Delaware corporation
("CARI"), GMAC does hereby sell, assign, transfer and otherwise convey unto
CARI, without recourse, (i) all right, title and interest of GMAC in, to and
under the Receivables listed on the Schedule of Receivables and (a) in the case
of Scheduled Interest Receivables, all monies due thereunder on and after the
Cutoff Date and (b) in the case of Simple Interest Receivables, and all monies
received thereon on and after the Cutoff Date, in each case exclusive of any
amounts allocable to the premium for physical damage insurance force-placed by
GMAC covering any related Financed Vehicle; (ii) the interest of GMAC in the
security interests in the Financed Vehicles granted by Obligors pursuant to the
Receivables and, to the extent permitted by law, any accessions thereto; (iii)
except for those Receivables originated in Wisconsin, the interest of GMAC in
any proceeds from claims on any physical damage, credit life, credit disability
or other insurance policies covering Financed Vehicles or Obligors; (iv) the
interest of GMAC in any proceeds from recourse against Dealers on Receivables;
and (v) the interest of GMAC in any proceeds of the property described in
clauses (i) and (ii) above.
It is the intention of GMAC and CARI that the transfer and assignment
contemplated by this Agreement shall constitute a sale of the Receivables from
GMAC to CARI and the beneficial interest in and title to the Receivables shall
not be part of GMAC's estate in the event of the filing of a bankruptcy petition
by or against GMAC under any bankruptcy law.
The foregoing sale does not constitute and is not intended to result in
any assumption by CARI of any obligation of the undersigned to the Obligors,
Dealers, insurers or any other Person in connection with the Receivables, the
Dealer Agreements, any insurance policies or any agreement or instrument
relating to any of them.
This Assignment is made pursuant to and upon the representations,
warranties and agreements on the part of the undersigned contained in the
Pooling and Servicing Agreement and is to be governed by the Pooling and
Servicing Agreement.
Capitalized terms used herein and not otherwise defined shall have the
meaning assigned to them in the Pooling and Servicing Agreement.
* * * * *
<PAGE>
IN WITNESS WHEREOF, the undersigned has caused this Assignment to be
duly executed as of April 19, 2000.
GENERAL MOTORS ACCEPTANCE CORPORATION
By: /S/ KAREN A. SABATOWSKI
------------------------------------------------
Karen A. Sabatowski
Title: Director - Securitization and Cash
Management
22
<PAGE>
APPENDIX A
PART I
For ease of reference, capitalized terms defined herein have
been consolidated with and are contained in Appendix A to the Trust Sale and
Servicing Agreement of even date herewith among GMAC, CARI and Capital Auto
Receivables Asset Trust 2000-1.
PART II
For ease of reference, the rules of construction have been
consolidated with and are contained in Part II of Appendix A to the Trust Sale
and Servicing Agreement of even date herewith among GMAC, CARI and Capital Auto
Receivables Asset Trust 2000-1.
PART III
For ease of reference, the notice addresses and procedures
have been consolidated with and are contained in Appendix B to the Trust Sale
and Servicing Agreement of even date herewith among GMAC, CARI and Capital Auto
Receivables Asset Trust 2000-1.
23
<PAGE>
EXHIBIT 99.4
SCHEDULE
TO THE
MASTER AGREEMENT
(this "AGREEMENT")
---------
dated as of April 19, 2000
between
CAPITAL AUTO RECEIVABLES ASSET TRUST 2000-1
(the "TRUST")
and
MORGAN STANLEY CAPITAL SERVICES INC.
(the "COUNTERPARTY")
PART 1. TERMINATION PROVISIONS
(a) "SPECIFIED ENTITY" means in relation to the Counterparty for
the purpose of:
Section 5(a)(v), Morgan Stanley Dean Witter & Co.
Section 5(a)(vi), Morgan Stanley Dean Witter & Co.
Section 5(a)(vii), Morgan Stanley Dean Witter & Co.
Section 5(b), Morgan Stanley Dean Witter & Co.
and in relation to the Trust for the purpose of:
Section 5(a)(v), none
Section 5(a)(vi), none
Section 5(a)(vii), none
Section 5(b), none
(b) "SPECIFIED SWAP" has the meaning specified in Section 14.
(c) All references to "POTENTIAL EVENTS OF DEFAULT" in this
Agreement shall be deleted.
(d) EVENTS OF DEFAULT.
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<PAGE>
(i) The following Events of Default will not apply to the
Trust and the definition of "EVENT OF DEFAULT" in Section 14 is deemed
to be modified accordingly:
Section 5(a)(ii), (Breach of Agreement)
Section 5(a)(iii), (Credit Support Default)
Section 5(a)(iv), (Misrepresentation)
Section 5(a)(v), (Default Under Specified Transaction)
Section 5(a)(vi), (Cross Default)
(ii) The following Events of Default will not apply to the
Counterparty and the definition of "EVENT OF DEFAULT" in Section 14 is
deemed to be modified accordingly:
Section 5(a)(iii), (Credit Support Default)
Section 5(a)(v), (Default Under Specified Transaction)
Section 5(a)(vi), (Cross Default)
(iii) It shall be an additional Event of Default under Section
5(a), and the Trust shall be deemed to be the Defaulting Party with
respect thereto, if (x) there occurs an Indenture "Event of Default"
under Sections 5.1(a), (b), (c) or (d) of the Indenture and (y) after
such Indenture "Event of Default", remedies are commenced with respect
to the Collateral under Section 5.4(a)(iv) of the Indenture or any
other sale or liquidation of the Collateral occurs under Article V of
the Indenture.
(iv) It shall be an additional Event of Default under Section
5(a), and the Trust shall be deemed to be the Defaulting Party with
respect thereto, if any Trust Document is amended, modified or
supplemented, with the consent of the holders of not less than a
majority of the outstanding principal balance of the Notes and not less
than a majority of the Certificate Balance, in a manner that materially
and adversely affects any interest of the Counterparty without the
prior written consent of the Counterparty. The procedures for amending
the Trust Documents are set forth in Section 9.01 of the Trust Sale and
Servicing Agreement, Article IX of the Indenture, Section 7.01 of the
Pooling and Servicing Agreement, Section 13 of the Administration
Agreement, Article VIII of the Trust Agreement and Section 8 of the
Custodian Agreement.
(e) TERMINATION EVENTS.
(i) The "CREDIT EVENT UPON MERGER" provisions of Section
5(b)(iv) will not apply to the Counterparty or the Trust.
(ii) Section 5(b)(ii) shall hereby be deleted and the
following provision shall be inserted in its place:
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<PAGE>
Due to (x) any action taken by a taxing authority, or brought
in a court of competent jurisdiction, on or after the date on
which a Swap Transaction is entered into (regardless of
whether such action is taken or brought with respect to a
party to this Agreement) or (y) a Change in Tax Law, a party
will on the next succeeding Scheduled Payment Date receive a
payment from which an amount is required to be deducted or
withheld for or on account of a Tax (except in respect of
interest under Section 2(e), 6(d)(ii) or 6(e)). In such
circumstances, (a) if such Tax would constitute an
Indemnifiable Tax, then the party making such payment shall be
the "Affected Party" or (b) if such Tax would not constitute
an Indemnifiable Tax, then the party receiving such payment
shall be the "Affected Party."
(iii) Section 5(b)(iii) shall hereby be deleted and the
following provision shall be inserted in its place.
The party (the "recipient") on the next succeeding Scheduled
Payment Date will receive a payment from which an amount has
been deducted or withheld for or on account of any Tax as a
result of either party consolidating or amalgamating with, or
merging with or into, or transferring all or substantially all
its assets to, another entity where such action does not
constitute an event described in Section 5(a)(viii). In such
circumstances, (a) the party other than the recipient will be
the "Burdened Party" and the "Affected Party" if such Tax
would constitute an Indemnifiable Tax or (b) the recipient
will be the "Burdened Party" and the "Affected Party" if such
Tax would not constitute an Indemnifiable Tax.
(f) "EARLY TERMINATION."
(i) In the event that the Counterparty fails to make, when
due, any payment under this Agreement or delivery under Section 2(a)(i)
or 2(e) required to be made by the Counterparty, the Trust shall
immediately notify General Motors Acceptance Corporation ("GMAC") of
such failure to pay or deliver.
(ii) Notwithstanding any other provision to the contrary in
this Agreement, upon (A) the occurrence of a Designated Event (as
defined in the Triparty Contingent Assignment Agreement among the
Trust, the Counterparty and GMAC dated as of the date hereof (the
"TRIPARTY AGREEMENT"), GMAC shall accede to rights and obligations
equivalent to those set out herein in accordance with the terms of the
Fallback Swap Agreement (as defined in the Triparty Agreement). If such
a Designated Event has occurred, then upon (A) the effectiveness of the
Fallback Swap Agreement (as defined in the Triparty Agreement) and (B)
the payment by GMAC in a timely fashion of all Delinquent Payments (as
defined in the Triparty Agreement), if any, (x) the Event of Default or
Termination Event, if any, constituting such Designated Event shall be
deemed to be cured on and as of the date of
- 3 -
<PAGE>
assignment and (y) no Early Termination Date may be designated as a
result of such Designated Event. As of the Assignment Date (as defined
in the Triparty Agreement) the Counterparty shall have no further
liability hereunder (including in respect of rights, liabilities and
duties accrued prior to the Assignment Date). Furthermore, any and all
collateral posted by the Counterparty shall be returned to it within
three Business Days of the Assignment Date and the Credit Support
Document of the Counterparty's Credit Support Provider and any other
form of collateral arrangement (including letters of credit, surety
bond or other guarantee) provided by or on behalf of the Counterparty
shall terminate as of the Assignment Date.
(iii) Section 6(b) is hereby amended by deleting the heading
to such section and replacing it with the following words: "Early
Termination Following Termination Event."
(iv) Section 6(b)(ii) is hereby deleted and the following
shall be inserted in its place:
"(1) If an Illegality, a Tax Event or a Tax Event Upon Merger
occurs, if the Counterparty is the Affected Party it will, and
if the Trust is the Affected Party it may request the
Counterparty to (and the Counterparty upon notice thereof
will), use its best efforts (provided that using its best
efforts will not require the Counterparty to incur any loss,
excluding immaterial, incidental expenses) to transfer prior
to the 20th day following the occurrence of such event (the
"TRANSFER CUT-OFF DATE"), all of its rights and obligations
under this Agreement in respect of Affected Transactions to
another of its offices or affiliates or third party so that
such Termination Event ceases to exist.
If the Counterparty is not able to make such a transfer it
will give notice to the Trust to that effect prior to the
Transfer Cut-Off Date.
Any such transfer under this Section 6(b)(ii) will be subject
to and conditional upon the prior written consent of the
Trust, which consent will not be withheld if the Trust's
policies in effect at such time would permit it to enter into
transactions with the transferee on the terms proposed and may
not be refused if it is pursuant to the Triparty Agreement.
(2) No transfer or substitution pursuant to this Section
6(b)(ii) shall occur if (x) then the current ratings of the
Class A Notes by Moody's or Standard & Poor's would be reduced
or adversely affected or (y) the position of the Trust would
otherwise materially be prejudiced under this Agreement or any
Confirmation (it being understood that it shall be the
responsibility of the
- 4 -
<PAGE>
Trust to verify such matters prior to the occurrence of such
transfer or substitution)"
(v) Section 6(b)(iii) shall hereby be amended by replacing the
words "within 30 days" with the words "by the Transfer Cut-Off Date (as
defined above)."
(vi) Section 6(b)(iv) is hereby deleted and the following
shall be inserted in its place:
"Early Termination.
If a Termination Event has occurred and a transfer under
Section 6(b)(ii) or an agreement under Section 6(b)(iii), as
the case may be, has not been effected with respect to all
Affected Transactions by the Transfer Cut-Off Date, an Early
Termination Date in respect of all outstanding Swap
Transactions will occur immediately."
(g) PAYMENTS ON EARLY TERMINATION.
(i) "Market Quotation" and "Second Method" will apply for
purposes of Section 6(e).
(ii) The Trust will be obligated to pay interest to the
Counterparty on any amounts due and unpaid under Section 6(e) at a rate
equal to the USD Floating Rate Option under the Confirmation.
(h) "TERMINATION CURRENCY" means United States Dollars.
PART 2. TAX REPRESENTATIONS
(a) PAYER TAX REPRESENTATIONS. For the purpose of Section 3(e),
each of the Counterparty and the Trust makes the following representation:
It is not required by any applicable law, as modified by the
practice, of any Relevant Jurisdiction to make any deduction
or withholding for or on account of any Tax from any payment
(other than interest under Section 2(e), 6(d)(ii) or 6(e)) to
be made by it to the other party under this Agreement. In
making this representation, it may rely on (i) the accuracy of
any representation made by the other party pursuant to Section
3(f); (ii) the satisfaction of the agreement of the other
party contained in Section 4(a)(i) or 4(a)(iii) and the
accuracy
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<PAGE>
and effectiveness of any document provided by the other party
pursuant to Section 4(a)(i) or 4(a)(iii) and (iii) the
satisfaction of the agreement of the other party contained in
Section 4(d), provided that it shall not be a breach of this
representation where reliance is placed on clause (ii) and the
other party does not deliver a form or document under Section
4(a)(iii) by reason of material prejudice to its legal or
commercial position.
(b) PAYEE TAX REPRESENTATIONS.
(i) Trust Representation. For the purpose of Section 3(f)
of this Agreement, the Trust makes the following representations:
It is a business trust organized or formed under the laws of
the State of Delaware.
It is (A) a "United States person" as defined in Section
7701(a)(30) of the Internal Revenue Code of 1986, as amended,
or (B) wholly- owned by a "United States person" and
disregarded as an entity separate from its owner for U.S.
federal tax purposes.
(ii) Counterparty Representation. For the purpose of Section
3(f), the Counterparty makes the following representations:
It is a corporation duly organized under the laws of the State
of Delaware.
PART 3. AGREEMENT TO DELIVER DOCUMENTS
For the purpose of Sections 4(a)(i) and (ii), each party agrees to deliver the
following documents, as applicable:
(a) Tax forms, documents or certificates to be delivered are:
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<PAGE>
<TABLE>
<CAPTION>
PARTY REQUIRED TO DELIVER FORUM/DOCUMENT/CERTIFICATE DATE BY WHICH TO BE DELIVERED
- ------------------------------------------------------------------------------- -----------------------------------
<S> <C> <C> <C> <C> <C> <C>
Counterparty and Trust Any document required or reason Promptly upon the earlier of (i) rea
ably requested to allow the other sonable demand by the other party
party to make payments under this and (ii) learning that the form or
Agreement without any deduction or document is required.
withholding for or on account of any
Tax or with such deduction or
withholding at a reduced rate.
(b) Other documents to be delivered are:
PARTY REQUIRED TO FORM/DOCUMENT/ DATE BY WHICH TO BE COVERED BY SECTION 3(D)
- --------------------------------------------------------------------------------------------------------------------
Counterparty and Trust Certificate or other docu At or promptly following Yes
ments evidencing the the execution of this
authority of the party to Agreement, and, if a
enter into this Agreement Confirmation so requires
and the persons acting on it, on or before the date set
behalf of such party. forth therein.
Counterparty and Trust A legal opinion, in the At or promptly following No
form reasonably the execution of this
acceptable to the other Agreement.
party.
Trust The Trust Sale and At or promptly following Yes
Servicing Agreement and the execution of this
all other documents to be Agreement.
executed by the Trust as
contemplated thereby.
</TABLE>
- 7 -
<PAGE>
<TABLE>
<CAPTION>
PART 4. MISCELLANEOUS
<S> <C> <C> <C> <C> <C> <C>
(a) ADDRESSES FOR NOTICES. For purpose of Section 12(a):
(i) Address for notices or communications to the Trust:
Address: Bankers Trust Company
4 Albany Street, 10th Floor
New York, NY 10006
Attention: Corporate Trust Department
Facsimile No.: (212) 250-8360
Telephone No.: (212) 250-6439
with a copy to: General Motors Acceptance Corporation
Address: 3031 West Grand Boulevard
Suite 695
Detroit, Michigan 48202
Attention: Director - Securitization and Cash Management
Facsimile No.: (313) 974-0533
Telephone No.: (313) 974-1955
Telex No.: 425543
Answerback: GM COMM DET
(ii) Address for notices or communications to the Counterparty:
Address: Morgan Stanley Capital Services Inc.
1585 Broadway, 3rd Floor
New York, New York 10036
Attention: DPG Transaction Management
Facsimile No.: (212) 761-0162
Telephone No.: (212) 761-2566
Telex: [___________]
Answerback: [___________]
(b) NOTICES.
(i) Section 12(a) is amended by adding in the fourth line
thereof after the phrase "Part 4 of the Schedule" the
words, "; provided, however, any such notice or other
communication may be given by facsimile transmission
if telex is
</TABLE>
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<PAGE>
unavailable, no telex number is supplied to the party
providing notice, or if answer back confirmation is
not received from the party to whom the telex is
sent."
(ii) Section 12(a)(iv) of this Agreement shall be deleted
in its entirety and replaced with the following:
"(iv) if sent by certified or registered mail
(airmail, if overseas) or the equivalent (return
receipt requested), on the date that mail is
delivered or its delivery is attempted, provided,
however, it is understood that, if feasible, a party
shall first attempt to send notice by overnight
couriers, telex or facsimile before attempting to
send notice by certified or registered mail; or,"
(c) PROCESS AGENT. For the purpose of Section 13(c) of this
Agreement:
The Counterparty appoints as its Process Agent: Not
Applicable.
The Trust appoints as its Process Agent: Not Applicable.
(d) MULTIBRANCH PARTY. For the purpose of Section 10:
The Counterparty is not a Multibranch Party.
The Trust is not a Multibranch Party.
(e) "CALCULATION AGENT" means, unless otherwise designated by a
Confirmation for a particular Swap Transaction, General Motors Acceptance
Corporation. All calculations by the Calculation Agent shall be made in good
faith and through the exercise of the Calculation Agent's commercially
reasonable judgment. All such calculations shall be final and binding upon the
Counterparty and the Trust absent manifest error. Upon the request of the
Counterparty, the Trust shall provide the Counterparty with such information as
is reasonably necessary to enable the Counterparty to confirm the accuracy of
such calculations.
(f) CREDIT SUPPORT DOCUMENT. Details of any Credit Support
Document:
The Counterparty: Guarantee of Morgan Stanley Dean Witter &
Co., a copy of which is annexed hereto as Exhibit A.
The Trust: Not applicable.
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<PAGE>
(G) GOVERNING LAW; JURISDICTION. THIS AGREEMENT AND EACH
CONFIRMATION WILL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REFERENCE TO ITS
CHOICE OF LAW DOCTRINE.
(h) WAIVER OF JURY TRIAL. Each party waives, to the fullest extent
permitted by applicable law, any right it may have to a trial by jury in
respect of any Proceedings relating to this Agreement.
(i) NETTING OF PAYMENTS. Section 2(c) will apply to any amounts
payable with respect to Swap Transactions from the date of this Agreement.
PART 5. OTHER PROVISIONS
(a) ISDA DEFINITIONS: Except as otherwise defined in this Schedule
or a Confirmation, this Agreement and each Swap Transaction are subject to the
1991 ISDA Definitions as supplemented by the 1998 Supplement (as published
by the International Swap and Derivatives Association, Inc., the "DEFINITIONS"),
and will be governed in all relevant respects by the provisions set forth in
the Definitions, without regard to any amendments to the Definitions subsequent
to the date hereof. The provisions of the Definitions are incorporated by
reference in, and shall be deemed a part of, this Agreement and each
Confirmation, as if set forth in full in this Agreement or that Confirmation.
In the event of any inconsistency between the provisions of this Agreement and
the Definitions, this Agreement will prevail. In the event of any inconsistency
between the provisions of any Confirmation and this Agreement, such
Confirmation will prevail for the purpose of the relevant Swap Transaction.
(b) OTHER SWAPS. The Trust agrees that it has not and will not
enter into any other swap transactions which provide for payments upon
termination that are senior to or pari passu with any payment due under any
Confirmation.
(c) LITIGATION REPRESENTATION. Each instance of the words "or any
of its Affiliates" shall be deleted from Section 3(c).
(d) GROSS-UP; LIABILITY. Neither the Counterparty nor the Trust
will in any circumstance be required to pay additional amounts in respect
of any Indemnifiable Tax or be under any obligation to pay to the other any
amount in respect of any liability of such other for or on account of any
Tax and, accordingly, Section 2(d)(i)(4) and Section 2(d)(ii) of this Agreement
shall not apply.
(e) TRANSFER. Section 7 is hereby amended by adding the following
provision: "PROVIDED HOWEVER, that, the Counterparty may make such a transfer
to another of its affiliates, offices, or branches, on ten Business Days' prior
written notice to the Trust, provided that:
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<PAGE>
(i) the Counterparty delivers an opinion of independent
counsel of recognized standing, in form and substance
reasonably satisfactory to the Indenture Trustee and the
Servicer, confirming that as of the date of such transfer the
transferee will not, as a result of such transfer, be required
to withhold or deduct on account of Tax under this Agreement;
and
(ii) such transfer will not cause the occurrence of an Event
of Default or a Termination Event under this Agreement.
Notwithstanding the foregoing, prior written notice of
transfer shall not be required with respect to a transfer under Section
6(b)(ii).
(f) ADDITIONAL REPRESENTATIONS. Section 3 is hereby amended by
adding at the end thereof the following Subparagraphs:
(g) It is an "eligible swap participant" under, and
as defined in, 17 C.F.R.ss.35.1(b)(2) and was not
formed solely for the purposes of constituting an
"eligible swap participant."
(h) It has entered into this Agreement (including
each Swap Transaction evidenced hereby) in
conjunction with its line of business (including
financial intermediation services) or the financing
of its business.
(i) It is entering into this Agreement, each Swap
Transac tion and any other documentation relating to
this Agreement or any Swap Transaction as principal
(and not as agent or in any other capacity, fiduciary
or otherwise).
(g) AMENDMENTS. Section 9(b) of this Agreement is hereby amended
by adding the following:
; provided, however, that all such amendments,
modifications or waivers shall require the written
affirmation of each of Standard & Poor's Ratings
Services and Moody's Investors Service, Inc., who are
then rating any securities issued by the Trust that
such amendments, modifications or waivers shall not
adversely affect the then-current ratings of the
Class A Notes or the Variable Pay Term Notes.
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<PAGE>
(h) CONFIRMATIONS. Each Confirmation supplements, forms part of,
and will be read and construed as one with this Agreement.
(i) RELATIONSHIP BETWEEN PARTIES. Each party will be deemed to
represent to the other party on the date on which it enters into a Swap
Transaction that (absent a written agreement between the parties that expressly
imposes affirmative obligations to the contrary for that Swap Transaction):
(i) Non-Reliance. It is acting for its own account, and it
has made its own independent decisions to enter into that Swap
Transaction and as to whether that Swap Transaction is appropriate or
proper for it based upon its own judgment and upon advice from such
advisers as it has deemed necessary. It is not relying on any
communication (written or oral) of the Counterparty's investment
advice or as a recommendation to enter into that Swap Transaction;
it being understood that information and explanations related to
the terms and conditions of a Swap Transaction shall not be
considered investment advice or a recommendation to enter into that
Swap Transaction. No communication (written or oral) received from
the other party shall be deemed to be an assurance or guarantee as
to the expected results of that Swap Transaction.
(ii) Assessment and Understanding. It is capable of assessing
the merits of and understanding (on its own behalf or through
independent professional advice), and understands and accepts, the
terms, conditions and risks of that Swap Transaction.
(iii) Status of Parties. The other party is not acting as a
fiduciary for or an adviser to it in respect of that Swap Transaction.
(j) CAPITALIZED TERMS. Each capitalized term used in this
Agreement and not defined in this Agreement, the Confirmation or the
Definitions shall have the meaning given such term in Appendix A to the
Trust Sale and Servicing Agreement, dated as of April 19, 2000, among
General Motors Acceptance Corporation, as Servicer, Capital Auto Receivables,
Inc., as Seller, and Capital Auto Receivables Asset Trust 2000-1, as Issuer
(as amended, modified or supplemented from time to time in accordance with
its terms). To the extent that a capitalized term in this Agreement is
defined by reference to a related definition contained in the Trust Sale and
Servicing Agreement, the Indenture, the Pooling and Servicing Agreement, the
Swap Counterparty Rights Agreement, the Administration Agreement, the Trust
Agreement and the Custodian Agreement (the "TRUST DOCUMENTS"), for purposes of
this Agreement only, such capitalized term shall be deemed to be amended
only if the amendment of the term in a Trust Document relating to such
capitalized term occurs with the prior written consent of the Counterparty.
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<PAGE>
(k) NO SET-OFF. Without affecting the provisions of this
Agreement requiring the calculation of certain net payment amounts, all
payments under this Agreement will be made without set-off or counterclaims.
(l) LIABILITY TO TRUSTEE. It is understood that the Trustee is
executing this Agreement solely in its capacity as Trustee of the Trust as set
forth in the Trust Agreement and that under this agreement there shall be no
claims against or liability of the Trustee in any other capacity or claims
against the assets of the Trustee held by it in its personal capacity. All
duties, obligations and liabilities of the Trust, including but not limited to
all representations, warranties and covenants of the Trust, shall apply to the
Trust and not to the Trustee in its individual capacity.
(m) DEFAULT INTEREST; OTHER AMOUNTS. Section 2(e) is hereby
amended by adding the following at the end of the first sentence thereof:
"PROVIDED, HOWEVER, that this Section 2(e) shall not apply to
Counter party or Trust if and to the extent failure to pay is
caused solely by such party being required to withhold or
deduct an amount of any Tax as set out in Section 2(d)(i)."
(n) SEVERABILITY. In the event that any one or more of the
provisions contained in this Agreement should be held invalid, illegal or
unenforceable in any respect, the validity, legality and enforceability
of the remaining provisions in the Agreement shall not in any way be
affected or impaired. In thee event that any one or more of the provisions
contained in this Agreement should be held invalid, illegal or unenforceable,
the parties will negotiate in good faith to replace the invalid, illegal or
unenforceable provisions with valid provisions which will, as nearly as
possible, give the originally intended legal and economic effect of the invalid,
illegal or unenforceable provisions.
* * * * * * * * * *
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<PAGE>
IN WITNESS WHEREOF, the parties have executed this Schedule by their
duly authorized officers as of the date hereof.
MORGAN STANLEY CAPITAL
SERVICES INC.
By: __________________________________
Name:
Title:
CAPITAL AUTO RECEIVABLES ASSET
TRUST 2000-1
By: BANKERS TRUST
(DELAWARE), not in its individual
capacity but solely as Owner Trustee
on behalf of the Trust,
By: /S/ RAYMOND DELLICOLLI
-----------------------------------
Name: Raymond DelliColli
Title: Attorney-in-Fact
- 14 -
<PAGE>
EXHIBIT 99.5
April 19, 2000
Morgan Stanley Capital Services Inc.
1585 Broadway, 3rd Floor
New York, New York 10036
Dear Ladies and Gentlemen:
The purpose of this letter agreement is to confirm the terms and conditions of
the Swap Transaction (the "Trust Swap") entered into between Morgan Stanley
Capital Services Inc. (the "Counterparty") and Capital Auto Receivables Asset
Trust 2000-1 (the "Trust") on the Trade Date listed below (the "Transaction").
This letter constitutes a "Confirmation" as referred to in the Trust ISDA
Agreement specified below.
1. The definitions and provisions contained in the 1991 ISDA Definitions
as supplemented by the 1998 Supplement (the "Definitions"), as
published by the International Swaps and Derivatives Association, Inc.
("ISDA"), are incorporated into this Confirmation. In the event of any
inconsistency between those definitions and provisions and this
Confirmation, this Confirmation will govern. The parties agree that
this transaction is a Transaction under the ISDA Master Agreement of
the parties dated April 19, 2000. The agreement is comprised of the
printed form of such agreement as published by ISDA, as supplemented
and modified by a Schedule ("Trust ISDA Agreement").
This Confirmation constitutes a binding agreement between you and us
and will supplement, form a part of, and be subject to the Trust ISDA
Agreement described above as amended and supplemented from time to
time.
The Counterparty and the Trust acknowledge that this Transaction
relates to the Floating Rate Variable Pay Asset Backed Term Notes (the
"Reference Notes") issued by the Trust for value pursuant to and
subject to the Indenture.
Capitalized terms used herein and not otherwise defined herein, in the
Trust ISDA Agreement or in the Definitions shall have the meanings
assigned to them in Exhibit A hereto.
All references to "dollars" or to "$" shall be references to amounts in
United States Dollars.
2. The terms of the particular Transaction to which this Confirmation
relates are as follows:
Type of Transaction: Interest Rate Swap Transaction
Notional Amount: $515,138,000 with respect to the initial Calculation
Period. The Notional Amount with respect to each Calculation Period
thereafter shall be equal to the Reference Note Balance as of the close
of business on the Distribution Date at the beginning of the relevant
Calculation Period (as set forth in the Calculation Statement (defined
below) delivered by the Trust to the Counterparty on or prior to the
Determination Date relating to such Calculation Period pursuant to
Section 3 below).
Trade Date: April 11, 2000
Effective Date: April 19, 2000
-1-
<PAGE>
Termination Date: The earlier of the close of business on (i) September
15, 2005, (ii) the Fixed Rate Payer Payment Date after April 15, 2003
on which the Notional Amount is reduced to zero and (iii) the date on
which the Servicer effects its option to repurchase the receivables
pursuant to Section 8.01 of the Trust Sale and Servicing Agreement.
Fixed Amounts:
Fixed Rate Payer: The Trust
Fixed Rate Payer Period End Dates: The 15th calendar day of
each month, commencing May 15, 2000 to and including September
15, 2005 with, in each case, No Adjustment.
Fixed Rate Payer Payment Date: One Business Day prior to each
Distribution Date
Fixed Rate: 7.085%
Fixed Rate Day Count Fraction: 30/360
Floating Amounts:
Floating Rate Payer: The Counterparty
Floating Rate Payer Period End Dates: Each Fixed Rate Payer
Period End Date.
Floating Rate Payer Payment Dates: One Business Day prior to
each Distribution Date
Reset Dates: Each Distribution Date
Floating Rate: LIBOR (as defined in Exhibit A)
Spread: +7 Basis Points
Floating Rate Day Count Fraction: Actual/360
Compounding: Inapplicable
Business Days for Payment: New York (New York), Detroit (Michigan) and
Chicago (Illinois)
Calculation Agent: The Trust, or General Motors Acceptance Corporation,
as agent for and on behalf of the Trust.
Default Rate: For any United States Dollar payments, the rate
determined under the option entitled "USD Federal Funds - H.15" plus 1%
using daily Reset Dates. The Default Rate will be applied on the basis
of Compounding as if the overdue amount were a Notional Amount and
using daily Compounding Dates, and interest will accrue and be payable
before as well as after judgment.
3. Calculations and Notifications: On or before each Determination Date,
the Calculation Agent shall determine the Fixed Amount due to the
Counterparty on the next succeeding Fixed Rate Payer Payment Date and
the Floating Amount due to the Trust on the next succeeding Floating
Rate Payer Payment Date and the Calculation Agent shall notify the
Counterparty in writing of both (i) the Floating Rate and (ii) the
amount of such payment.
-2-
<PAGE>
In addition, on each Determination Date the Trust shall deliver to the
Counterparty (by facsimile with hard copy to follow) a statement (the
"Calculation Statement") setting forth with respect to the close of
business on the immediately preceding Distribution Date the Reference
Note Balance as of such Distribution Date.
The Trust will give the Counterparty prompt written notice of any
Default under the Indenture.
4. Credit Downgrade: In the event that the Joint Rating (as defined below)
of the Counterparty and the Offsetting Counterparty (as defined below)
is reduced below AA- by Standard & Poor's Rating Services and its
successors ("S&P") then the Counterparty shall promptly notify the
Trust (and any permitted assignee or transferee of the Trust) of such
event and (unless, within 30 days after such reduction, S&P has
reconfirmed the rating of the Reference Notes or the Other Notes which
was in effect immediately prior to such reduction) the Counterparty,
shall within thirty (30) days of the date of such reduction, with the
prior written confirmation of S&P that such arrangement will not result
in the reduction of the then-current rating of any of the Reference
Notes or the Other Notes as a direct result of the reduction, either:
(1) (x) obtain a substitute swap provider acceptable to the
Trust (such acceptance not to be unreasonably withheld) and
replace this Transaction with a swap transaction on
substantially similar terms or with such other amendments as
consented to in writing by the Trust (which consent shall not
be unreasonably withheld) provided such replacement would
result in a Joint Rating of at least AA-, except that such
substitute swap provider shall thenceforth be the
"Counterparty" hereunder; or (y) replace, with the consent of
the then current Offsetting Counterparty, the swap transaction
with the then current Offsetting Counterparty with a swap
transaction with a replacement Offsetting Counterparty on
terms approved by S&P or enter into a swap transaction with
another party such that such party shall be acting as an
intermediary between the Counterparty and the then current
Offsetting Counterparty; or
(2) enter into an ISDA Credit Support Annex with the Trust in
substantially the form attached as Exhibit B hereto; or
(3) enter into such other credit support arrangements to
assure performance by the Counterparty of its obligations
under this Transaction.
Notwithstanding the foregoing, in the event that the Joint Rating of
the Counterparty and the Offsetting Counterparty is reduced below A-,
then the Counterparty shall promptly notify the Trust (and any
permitted assignee or transferee of the Trust) of such event and
(unless, within 30 days after such reduction, S&P has reconfirmed the
rating of the Reference Notes or the Other Notes which was in effect
immediately prior to such reduction) the Counterparty shall within
thirty (30) days of the date of such reduction, with the prior written
confirmation of S&P that such arrangement will not result in the
reduction of the then-current rating of any of the Reference Notes or
the Other Notes as a direct result of the reduction, must obtain a
substitute swap provider acceptable to the Trust (such acceptance not
to be unreasonably withheld) and replace this Transaction with a swap
transaction on substantially similar terms or with such other
amendments as consented to in writing by the Trust (which consent shall
not be unreasonably withheld) provided such replacement would result in
a Joint Rating of at least AA-, except that such substitute swap
provider shall thenceforth be the "Counterparty" hereunder.
Upon any replacement of the Transaction with a swap transaction with a
substitute swap provider, this Transaction shall terminate without any
payment by either party hereto and any and all collateral posted by the
Counterparty shall be returned to it within three (3) Business Days and
any other form of collateral
-3-
<PAGE>
arrangement (including letters of credit, surety bond or other
guarantee) provided by or on behalf of the Counterparty shall
terminate.
"Offsetting Counterparty"means General Motors Acceptance Corporation
("GMAC") or any successor thereto under the swap transaction entered
into between (x) the Counterparty and (y) GMAC or any successor thereto
or any intermediary between the Counterparty and GMAC.
"Joint Rating" means the joint rating by S&P of the long-term
likelihood of payment under the interest rate swap determined by
locating the intersection of the Counterparty's long term senior
unsecured debt rating and the Offsetting Counterparty's long-term
senior unsecured debt rating in the following table:
<TABLE>
<CAPTION>
OFFSETTING COUNTERPARTY'S RATING VS. COUNTERPARTY'S RATING
<S> <C> <C> <C> <C> <C> <C>
O AAA AA+ AA AA- A+ A A- BBB+ BBB BBB-
F AAA AAA AAA AAA AAA AAA AAA AAA AAA AAA AAA
F AA+ AAA AAA AAA AAA AAA AAA AAA AAA AAA AAA
S AA AAA AAA AAA AAA AAA AAA AAA AA+ AA+ AA+
E AA- AAA AAA AAA AA+ AA+ AA+ AA+ AA+ AA+ AA
T A+ AAA AAA AAA AA+ AA+ AA+ AA+ AA AA AA-
T A AAA AAA AAA AA+ AA+ AA AA AA- AA- A+
I A- AAA AAA AAA AA+ AA+ AA AA- A+ A+ A
N BBB AAA AAA AA+ AA+ AA AA- A+ A A A-
G +
BBB AAA AAA AA+ AA+ AA AA- A+ A A- BBB+
C BBB- AAA AAA AA+ AA AA- A+ A A- BBB+ BBB
O
U
N
T
E
R
P
A
R
T
Y
</TABLE>
Notwithstanding the foregoing, in the event that the long term senior
unsecured debt rating of either the Counterparty or the Offsetting
Counterparty is rated below BBB- by S&P, then the Joint Rating shall be
the higher of the then current long term senior unsecured debt rating
of the Counterparty and the Offsetting Counterparty.
-4-
<PAGE>
In the event that the Counterparty fails to satisfy its obligations set
forth above in this Section 4, the Trust or any permitted assignee or
transferee of the Trust shall have the option, exercisable in its
discretion and with regard to the interests of the Noteholders, within
ten (10) Business Days following the date of expiry of the thirty (30)
day period after the date of the reduction, to designate (in writing)
an Early Termination Date on the basis that such failure shall be
treated as a Termination Event with the Counterparty as the Affected
Party. For the avoidance of doubt, the Counterparty and the Trust
acknowledge and agree that any such failure shall not constitute an
Event of Default.
5. Account Details:
Payments to Fixed Rate Payer:
Bank One, National Association
ABA No.: 071000013
A/C: No.: 4811-5377 further credit to
CARAT 2000-1 Collection Account No. 204902-000
Attn: K. Richardson
Payments to Floating Rate Payer:
Citibank - New York
Account No.: 4072-4601
ABA No.: 021-000-089
6. Limited Recourse: Notwithstanding anything to the contrary contained
herein but without limiting the Counterparty's rights under Section
5(a)(i), all of the obligations of the Trust shall be payable by the
Trust only at the times and to the extent of funds available therefor
under the Trust Sale and Servicing Agreement and, to the extent such
funds are not available or are insufficient for the payment thereof,
shall not constitute a claim against the Trust to the extent of such
unavailability or insufficiency until such time as, and then to the
extent that, the Trust has assets sufficient to pay such prior
deficiency. This paragraph shall survive the termination of this
Agreement but in all cases shall expire one year and one day after the
final payment with respect to all notes and certificates issued by the
Trust.
7. Limitation of Liability: It is expressly understood and agreed by the
parties hereto that (a) this Agreement is executed and delivered by
Bankers Trust (Delaware), not individually or personally but solely as
Owner Trustee of Capital Auto Receivables Asset Trust 2000-1 in the
exercise of the powers and authority conferred and vested in it, (b)
each of the representations, undertakings and agreements herein made on
the part of the Trust is made and intended not as personal
representations, undertakings and agreements by Bankers Trust
(Delaware) but is made and intended for the purpose for binding only
the Trust, (c) nothing herein contained shall be construed as creating
any liability on Bankers Trust (Delaware), individually or personally,
to perform any covenant either expressed or implied contained herein,
all such liability, if any, being expressly waived by the parties
hereto and by any Person claiming by, through or under the parties
hereto and (d) under no circumstances shall Bankers Trust (Delaware) be
personally liable for the payment of any indebtedness or expenses of
the Trust or be liable for the breach or failure of any obligation,
representation, warranty or covenant made or undertaken by the Trust
under this Agreement or any other related documents.
8. To the extent that a capitalized term in this Transaction is defined by
reference to a related definition contained in any Trust Document, for
purposes of this Transaction only, such capitalized term shall be
deemed to be amended only if the amendment of the term in a Trust
Document relating to such capitalized term occurs with the prior
written consent of the Counterparty.
-5-
<PAGE>
Please confirm that the foregoing correctly sets forth the terms of our
agreement by executing the copy of this Confirmation enclosed for that purpose
and returning it to us.
CAPITAL AUTO RECEIVABLES ASSET
TRUST 2000-1
By: BANKERS TRUST (DELAWARE),
not in its individual capacity
but solely as Owner Trustee
By: /S/ RAYMOND DELLICOLLI
-------------------------------
Name: Raymond DelliColli
Title: Attorney-in-Fact
Accepted and confirmed as of the date first above written:
Morgan Stanley Capital Services Inc.
By: __________________________
Name: __________________________
Title: __________________________
Acknowledged and agreed as of the date first above written:
General Motors Acceptance Corporation, solely as Calculation Agent
By:__________________________
Name:
Title:
-6-
<PAGE>
EXHIBIT A
The following terms shall have the following meanings in this Confirmation:
"Determination Date": the tenth (10th) day of each calendar month, or
if such tenth (10th) day is not a Business Day, the next succeeding Business
Day.
"Distribution Date": the fifteenth (15th) day of each succeeding
calendar month following the Effective Date or, if such fifteenth (15th) day is
not a Business Day, the next such succeeding Business Day, commencing May 15,
2000.
"Guarantor": Morgan Stanley Dean Witter & Co. .
"Indenture": the Indenture, dated as of April 19, 2000 between the
Trust and the Indenture Trustee, as amended and supplemented from time to time
in accordance with its terms.
"Indenture Trustee": Bank One, National Association, a national banking
association not in its individual capacity but solely as trustee under the
Indenture, or any successor trustee under the Indenture.
"LIBOR": with respect to each Floating Rate Payer Payment Date other
than the initial Floating Rate Payer Payment Date, the rate for deposits in U.S.
Dollars for a period of one month which appears on the Telerate Service Page
3750 as of 11:00 a.m., London time, on the day that is two LIBOR Business Days
prior to the Distribution Date preceding such Floating Rate Payer Payment Date.
If the rate does not appear on that date on the 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. For the initial Floating Rate Payer
Payment Date, LIBOR shall be 6.13%.
"LIBOR Business Day": any day other than a Saturday, Sunday or any
other day on which banks in London are required or authorized to be closed.
"Other Notes": The Class A Asset-Backed Notes issued by the Trust.
"Reference Bank Rate": for any Floating Rate Payer Payment Date, the
per annum rate determined on the basis of the rates at which deposits in U.S.
Dollars are offered by the reference banks (which will be four major banks that
are engaged in transactions in the London interbank market, selected by the
Indenture Trustee after consultation with the Seller) as of 11:00 a.m., London
time, on the day that is two LIBOR Business Days prior to the Distribution Date
preceding such Floating Rate Payer Payment 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 Reference 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 and all
classes of Reference Notes then outstanding. If no quotation can be obtained,
then LIBOR will be the rate for the prior Floating Rate Payer Payment Date.
-7-
<PAGE>
"Reference Note Balance": as of the Effective Date, $515,138,000 and,
with respect to each Distribution Date thereafter, the aggregate principal
balance of any and all outstanding Reference Notes.
"Seller": Capital Auto Receivables, Inc., which has executed the Trust
Sale and Servicing Agreement as the Seller, or its successor in interest
pursuant to Section 3.03 of the Trust Sale and Servicing Agreement.
"Trust Sale and Servicing Agreement": the Trust Sale and Servicing
Agreement, dated as of April 19, 2000 between the Seller, General Motors
Acceptance Corporation (as Servicer) and the Trust, as amended, modified and
supplemented from time to time in accordance with its terms.
-8-
<PAGE>
EXHIBIT 99.6
TRIPARTY CONTINGENT ASSIGNMENT AGREEMENT dated as of April 19, 2000
(the "AGREEMENT"), among Capital Auto Receivables Asset Trust 2000-1 (the
"TRUST"), General Motors Acceptance Corporation ("GMAC") and MORGAN STANLEY
CAPITAL SERVICES INC. ("MSCS").
WHEREAS, the Trust and MSCS have entered into the Primary Swap
Agreement;
WHEREAS, GMAC and MSCS have entered into the Secondary Swap Agreement;
NOW, THEREFORE, the parties hereto hereby agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01 The following terms shall have the meanings set forth
below:
"ADDITIONAL CONTINGENT COUNTERPARTY" means a Person with the Requisite
Rating entering into an agreement substantially similar to this Agreement
pursuant to Section 2.02.
"ASSIGNMENT DATE" means the date upon which GMAC receives notice from
the Trust of the occurrence of a Designated Event, or if such date is not a
Business Day, the next succeeding Business Day.
"DELINQUENT PAYMENTS" means any payments owed to the Trust as a result
of liabilities, obligations and duties of MSCS pursuant to the Primary Swap
Agreement accruing prior to the Assignment Date that have not been made by MSCS.
A "DESIGNATED EVENT" shall occur if (a) one or more Events of Default
occurs under the Primary Swap Agreement with MSCS as the Defaulting Party, (b)
the occurrence of any applicable Termination Event under the Primary Swap
Agreement in which MSCS is an Affected Party, if no transfer is effected under
Part 1(f)(iv) of the Schedule to the Primary Swap Agreement (or in the case of a
credit downgrade, no appropriate arrangements pursuant to the Primary Swap
Confirmation's credit downgrade provisions are made within 30 days) with respect
to such event and an assignment pursuant to Section 2.01 would result in the
non-occurrence of such event as it pertains to MSCS or (c) the Trust receives a
notice from MSCS pursuant to the provisions of Section 2.03 herein.
"FALLBACK SWAP AGREEMENT" means the ISDA Master Agreement, together
with a Schedule and Confirmation, dated as of the date hereof, between the Trust
and GMAC.
"GMAC" means General Motors Acceptance Corporation.
<PAGE>
"OPERATIVE SWAP AGREEMENT" means (i) prior to the Assignment Date, the
Primary Swap Agreement and (ii) on and after the Assignment Date, the Fallback
Swap Agreement.
"OPERATIVE SWAP TRANSACTION" means (i) prior to the Assignment Date,
the Primary Swap Transaction and (ii) on and after the Assignment Date, the
transaction described in the confirmation contained in the Fallback Swap
Agreement.
"PRIMARY SWAP AGREEMENT" means the ISDA Master Agreement (including the
Schedule) dated as of the date hereof between MSCS and the Trust, and the
Primary Swap Confirmation.
"PRIMARY SWAP CONFIRMATION" means the confirmation related to the ISDA
Master Agreement, dated as of the date hereof, between MSCS and the Trust.
"PRIMARY SWAP TRANSACTION" means the transaction described in the
Primary Swap Confirmation.
"REQUISITE RATING" means a long-term, unsecured and unsubordinated debt
rating from S&P which, when considered together with the long-term, unsecured
debt rating of GMAC, would result in a Joint Rating of at least AA-.
"SECONDARY SWAP AGREEMENT" means the ISDA Master Agreement (including
the Schedule thereto), dated as of January 15, 1998, between MSCS and GMAC and
the Secondary Swap Confirmation.
"SECONDARY SWAP CONFIRMATION" means the confirmation dated as of the
date hereof between GMAC and MSCS, Transaction Ref. No. ______.
"SECONDARY SWAP TRANSACTION" means the transaction described in the
Secondary Swap Confirmation.
"SERVICER" means GMAC or its successor as servicer pursuant to the
Trust Sale and Servicing Agreement.
"S&P" means Standard and Poor's Ratings Services, a Division of the
McGraw-Hill Companies and any successor.
SECTION 1.02 DEFINITIONS. Capitalized terms used in this Agreement and
not otherwise defined herein shall have the meanings specified for such terms
(i) in the Primary Swap Agreement or the Secondary Swap Agreement, as dictated
by its context or (ii) if not defined therein, in Appendix A to the Trust Sale
and Servicing Agreement, dated as of April 19, 2000 between the Trust, the
Seller and the Servicer (the "TRUST SALE AND SERVICING AGREEMENT").
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ARTICLE II
ASSIGNMENT UPON DESIGNATED EVENT
SECTION 2.01 ASSIGNMENT. In the event that a Designated Event shall
have occurred and is then continuing and the Trust has notified GMAC in writing
of such occurrence and continuance and has provided evidence reasonably
satisfactory to GMAC that a Designated Event has occurred and is then
continuing, each of the following shall automatically occur on the Assignment
Date:
(a) GMAC shall accede to rights and obligations equivalent to
those of MSCS under the Primary Swap Transaction in accordance with the
terms of the Fallback Swap Agreement (including rights, title and
interests and liabilities, obligations and duties accruing prior to the
Assignment Date). In connection with the foregoing, in the event that
there are Delinquent Payments, GMAC shall promptly (and in any event no
later than the next Business Day) make the full amount of such
Delinquent Payments to the Trust (but only to the extent that GMAC has
not made a corresponding payment under the Fallback Swap Agreement). In
the event that MSCS has been paid an amount corresponding to the
Delinquent Payments under the Secondary Swap Agreement, MSCS agrees to
reimburse GMAC in an amount equal to the full amount of any such
payments. In the event that MSCS has made payments to the Trust as a
result of liabilities, obligations and duties of MSCS accruing prior to
the Assignment Date in circumstances where GMAC has not made the
corresponding payments to MSCS under the Secondary Swap Agreement, GMAC
agrees to reimburse MSCS in an amount equal to the full amount of any
such payments. Except as expressly provided in the third sentence of
this paragraph (a), on and at all times following the Assignment Date,
MSCS shall have no liabilities, obligations and duties, including
payment obligations of any kind, under the Primary Swap Agreement. As
of the Assignment Date, the Primary Swap Transaction shall be governed
by the terms of the Fallback Swap Agreement, and the Primary Swap
Agreement shall no longer govern the Primary Swap Transaction (except
with respect to rights, liabilities, obligations and duties accrued
prior to the Assignment Date).
For the avoidance of doubt, on and with effect from the
Assignment Date, the Guarantee of Morgan Stanley Dean Witter & Co. in
favor of the Trust under the Primary Swap Agreement shall be terminated
and cease to be in effect (except in respect of liabilities,
obligations and duties which may have accrued under such guarantee
prior to the Assignment Date).
(b) The Secondary Swap Transaction shall be terminated on and
as of the Assignment Date without further liability or obligation of
either party thereto, without prejudice to those rights, liabilities,
obligations and duties accruing prior to the Assignment Date.
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<PAGE>
(c) Upon (i) the effectiveness of the Fallback Swap Agreement
and (ii) the payment by GMAC to the Trust in a timely fashion of all
Delinquent Payments, if any, (x) the Event of Default or Termination
Event under the Primary Swap Agreement constituting such Designated
Event, if any, shall be deemed to be cured on and as of the Assignment
Date, and (y) no Early Termination Date (as defined in the Primary Swap
Agreement) may be designated as a result of such Designated Event.
There shall be no breakage fees or other termination costs or expenses
payable by the Trust to MSCS or by MSCS to GMAC in connection with an assignment
of the Primary Swap Agreement to GMAC in accordance with this Section 2.01 and
the termination of the Secondary Swap Transaction as a result of the occurrence
and continuance of a Designated Event.
SECTION 2.02 ADDITIONAL CONTINGENT COUNTERPARTY. If GMAC has acceded to
the rights and obligations of MSCS under the Primary Swap Agreement in
accordance with the provisions of this Article II, GMAC shall have the option to
find a Person with the Requisite Rating that will either (i) enter into an
assignment agreement that is substantially similar to this Agreement pursuant to
which such Person will become the Additional Contingent Counterparty or (ii)
enter into a swap transaction substantially similar to the Primary Swap
Transaction and a contingent assignment agreement that is substantially similar
to this Agreement under which such Person would accede to the rights and
obligations of GMAC under the Primary Swap Agreement and GMAC will become the
Additional Contingent Counterparty. MSCS shall reimburse GMAC for any costs
associated with finding a party to serve as the Additional Contingent
Counterparty. Any delay or inability in finding a party to serve as the
Additional Contingent Counterparty will not result in the occurrence of a
Termination Event, an Event of Default or otherwise lead to the designation of
an Early Termination Date under the Operative Swap Agreement.
SECTION 2.03 NOTICE. MSCS agrees that, to the extent that it has actual
knowledge that it will be unable to make a payment or delivery on a scheduled
payment date under the Primary Swap Agreement, it shall provide notice to the
Trust of such inability at least two Business Days prior to such scheduled
payment date. This Section 2.03 shall not be construed to obligate MSCS to
undertake any affirmative action or inquiry to ascertain whether it will be able
to make any such payment or delivery. Any failure by MSCS to provide notice to
the Trust of such inability shall be without prejudice to MSCS's rights under
this Agreement and the Primary Swap Agreement.
ARTICLE III
MISCELLANEOUS
SECTION 3.01 MISCELLANEOUS. (a) ENTIRE AGREEMENT. This Agreement, the
Primary Swap Agreement and the Secondary Swap Agreement constitute the entire
agreement and understanding of the parties with respect to the subject matter
thereof and supersede all oral communications and prior writings (except as
otherwise provided therein) with respect thereto.
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<PAGE>
(b) COUNTERPARTS. This Agreement may be executed and delivered in
counterparts (including by facsimile transmission) each of which will be deemed
an original.
(c) HEADINGS. The headings used in this agreement are for
convenience of reference only and are not to affect the construction of or to
be taken into consideration in interpreting this Agreement.
(d) GOVERNING LAW. This Agreement will be governed by and
construed in accordance with the laws of the State of New York (without
reference to choice of law doctrine).
(e) NOTICES. All demands, specifications and notices to a party
hereto under this Agreement will be made pursuant to the provisions of the
Primary Swap Agreement or the Secondary Swap Agreement, as applicable.
(f) NO WAIVER. Notwithstanding any other provision in this
Agreement to the contrary, no full or partial failure to exercise and no delay
in exercising, on the part of any party hereto, any right, remedy, power or
privilege under this Agreement, regardless of the frequency or constancy
of such failure or delay, shall operate in any way as a waiver thereof by such
party.
(g) INCONSISTENCIES. Except as expressly provided herein, the
Primary Swap Agreement shall not be deemed to be amended hereby in any respect.
In the event of any inconsistencies between the provisions of this Agreement
and those of the Primary Swap Agreement or the Secondary Swap Agreement, the
provisions hereof shall prevail.
(h) AMENDMENTS. This Agreement may not be amended except by the
execution of a written instrument by all parties hereto.
(i) LIMITATION OF LIABILITY. It is expressly understood and agreed
by the parties hereto that (a) this Agreement is executed and delivered by
Bankers Trust (Delaware), not individually or personally but solely as Owner
Trustee of Capital Auto Receivables Asset Trust 2000-1 in the exercise of the
powers and authority conferred and vested in it, (b) each of the
representations, undertakings and agreements herein made on the part of the
Trust is made and intended not as personal representations, undertakings and
agreements by Bankers Trust (Delaware) but is made and intended for the
purpose for binding only the Trust, (c) nothing herein contained shall be
construed as creating any liability on Bankers Trust (Delaware), individually or
personally, to perform any covenant either expressed or implied contained
herein, all such liability, if any, being expressly waived by the parties
hereto and by any Person claiming by, through or under the parties hereto and
(d) under no circumstances shall Bankers Trust (Delaware) be personally
liable for the payment of any indebtedness or expenses of the Trust or be
liable for the breach or failure of any obligation, representation,
warranty or covenant made or undertaken by the Trust under this Agreement or any
other related documents.
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IN WITNESS WHEREOF, the parties have executed this agreement
by their duly authorized officers as of the date hereof.
CAPITAL AUTO RECEIVABLES ASSET TRUST
2000-1
By BANKERS TRUST (DELAWARE) not in
its individual capacity, but solely as trustee
By: /S/ RAYMOND DELLICOLLI
-----------------------------------------
Name: Raymond DelliColli
Title: Attorney-in-Fact
GENERAL MOTORS ACCEPTANCE CORPORATION
By:
-----------------------------------------
Name:
Title:
MORGAN STANLEY CAPITAL SERVICES INC.
By:
------------------------------------------
Name:
Title:
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