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 2001-1
ISSUER
DATED AS OF JANUARY 17, 2001
TABLE OF CONTENTS
Page
ARTICLE I
CERTAIN DEFINITIONS
Section 1.01 Definitions...................................................................................1
ARTICLE II
CONVEYANCE OF RECEIVABLES; ISSUANCE OF SECURITIES
Section 2.01 Conveyance of Receivables.....................................................................2
Section 2.02 Custody of Receivable Files...................................................................3
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 Incremental Advances and Issuance of Additional Variable Pay Revolving Notes..................4
ARTICLE III
THE SELLER
Section 3.01 Representations of Seller.....................................................................5
Section 3.02 Liability of Seller...........................................................................7
Section 3.03 Merger or Consolidation of, or Assumption of the Obligations of Seller; Amendment
of Certificate of Incorporation...............................................................7
Section 3.04 Limitation on Liability of Seller and Others..................................................8
Section 3.05 Seller May Own Notes or Certificates..........................................................8
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........................................................9
Section 4.03 Access to Certain Documentation and Information Regarding Receivables........................10
Section 4.04 Amendments to Schedule of Receivables........................................................10
Section 4.05 Assignment of Administrative Receivables and Warranty Receivables............................10
Section 4.06 Distributions................................................................................11
Section 4.07 Reserve Account..............................................................................14
Section 4.08 Net Deposits.................................................................................15
Section 4.09 Statements to Securityholders................................................................15
ARTICLE V
CERTIFICATEHOLDER AND NOTEHOLDER STATEMENTS AND ACCOUNTS;
COLLECTIONS, DEPOSITS AND INVESTMENTS; ADVANCES
Section 5.01 Establishment of Accounts....................................................................17
Section 5.02 Collections..................................................................................22
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Section 5.03 Investment Earnings and Supplemental Servicing Fees..........................................22
Section 5.04 Monthly Advances.............................................................................22
Section 5.05 Servicer Liquidity Advance...................................................................23
Section 5.06 Additional Deposits..........................................................................24
ARTICLE VI
LIABILITIES OF SERVICER AND OTHERS
Section 6.01 Liability of Servicer; Indemnities...........................................................24
Section 6.02 Merger or Consolidation of, or Assumption of the Obligations of the Servicer.................25
Section 6.03 Limitation on Liability of Servicer and Others...............................................26
Section 6.04 Delegation of Duties.........................................................................27
Section 6.05 Servicer Not to Resign.......................................................................27
ARTICLE VII
DEFAULT
Section 7.01 Servicer Defaults............................................................................27
Section 7.02 Consequences of a Servicer Default...........................................................28
Section 7.03 Indenture Trustee to Act; Appointment of Successor...........................................29
Section 7.04 Notification to Noteholders and Certificateholders...........................................30
Section 7.05 Waiver of Past Defaults.....................................................................30
Section 7.06 Repayment of Advances........................................................................30
ARTICLE VIII
TERMINATION
Section 8.01 Optional Purchase of All Receivables; Insolvency of Seller; Termination of Trust.............30
ARTICLE IX
MISCELLANEOUS PROVISIONS
Section 9.01 Amendment....................................................................................33
Section 9.02 Protection of Title to Trust.................................................................34
Section 9.03 Notices......................................................................................36
Section 9.04 GOVERNING LAW................................................................................36
Section 9.05 Severability of Provisions...................................................................36
Section 9.06 Assignment...................................................................................37
Section 9.07 Third-Party Beneficiaries....................................................................37
Section 9.08 Separate Counterparts........................................................................37
Section 9.09 Headings and Cross-References................................................................37
Section 9.10 Assignment to Indenture Trustee..............................................................37
Section 9.11 No Petition Covenants........................................................................37
Section 9.12 Limitation of Liability of Indenture Trustee and Owner Trustee...............................38
Section 9.13 Tax Treatment................................................................................38
Section 9.14 Furnishing Documents.........................................................................38
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EXHIBIT A Locations of Schedule of Receivables
APPENDIX A Definitions and Rules of Construction
APPENDIX B Notices Addresses and Procedures
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THIS TRUST SALE AND SERVICING AGREEMENT is made as of January 17, 2001 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 2001-1, 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
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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.
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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
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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
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to this Agreement.
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ARTICLE II
CONVEYANCE OF RECEIVABLES; ISSUANCE OF SECURITIES
Section 2.01 Conveyance of Receivables. In consideration of the
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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
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locations listed on Exhibit A hereto and (i) in the case of Scheduled Interest
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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
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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,
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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
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consideration conveyed by the Seller pursuant to Section 2.01, and declares that
the Issuer shall hold such consideration upon the trust set forth in the Trust
Agreement for the benefit of Certificateholders, subject to the terms and
conditions of the Indenture and this Agreement. The Issuer hereby agrees and
accepts the appointment and authorization of General Motors Acceptance
Corporation as Servicer under Section 3.01 of the Pooling and 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
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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
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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
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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.
Section 2.06 Incremental Advances and Issuance of Additional Variable Pay
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Revolving Notes.
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(a) Subject to the terms and conditions of this Section 2.06, on the
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Targeted Final Distribution Date for each class of Class A Notes, the Seller
shall request an advance of funds under the Initial Variable Pay Revolving Note
in an amount sufficient to permit the repayment in full of such class of Class A
Notes (after taking into account the other sources of the Total Note Principal
Payment Amount for such Distribution Date). If the holder of the Initial
Variable Revolving Note (or of a 100% participation interest therein) elects not
to make such advance, then the Seller shall use reasonable efforts to sell one
or more additional Variable Pay Revolving Notes of another class to additional
purchasers in order to obtain an advance of such amount thereunder. The Seller
shall cause the Issuer to issue any such additional Variable Pay Revolving
Notes. At the time of issuance of the Initial Variable Pay Revolving Note or of
any other class of additional Variable Pay Revolving Notes, the Seller shall
determine, in its sole discretion, the Interest Rate for each such class of
Variable Pay Revolving Notes, which shall equal, for each Distribution Date,
LIBOR plus a fixed percentage spread (which spread may be different for each
such class) which will be determined at the time of issuance based on market
conditions but which will not exceed 2.50%, 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 class of Variable Pay
Revolving Notes, provided that the proceeds to the Trust in connection with the
issuance of the Initial Variable Pay Revolving Note or any other class of
additional Variable Pay Revolving Notes shall be fair value based on market
conditions. At the time of issuance of any additional Variable Pay Revolving
Notes, Standard & Poor's Ratings Services may re-affirm or change its original
ratings on the Offered Notes and the Offered Certificates.
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(b) [ Reserved ].
(c) No Incremental Advances under the Initial Variable Pay Revolving Note
or under an additional class of Variable Pay Revolving Note, and no additional
class of Variable Pay Revolving Notes may be issued on a Targeted Final
Distribution Date unless the following conditions are satisfied:
(i) the aggregate amount of the Incremental Advance plus the amount of
available funds from the other sources of the Total Note Principal Payment
Amount is sufficient to pay in full the outstanding principal balance of
the targeted class of Class A Notes on such Targeted Final Distribution
Date;
(ii) after giving effect to such Incremental Advance or issuance of an
additional class of Variable Pay Revolving 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;
(iii) the Interest Rate Swaps shall be in full force and effect; and
(iv) 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
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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
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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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(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 instrumen tality 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 Agreement, the
Custodian Agreement, the Administration Agreement or the Interest Rate
Swaps, (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
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Custodian Agreement, the Administration Agreement or the Interest
Rate Swaps, (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 Swaps,
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.
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(i) Good Title. No Receivable has been sold, transferred,
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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
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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
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of Seller; Amendment of Certificate of Incorporation.
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(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, consoli
dation or succession pursuant to this Section 3.03 to the Rating Agencies.
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(b) The Seller hereby agrees that during the term of this Agreement it
shall not (i) take any action prohibited by Article Fourth of its certificate of
incorporation, (ii) without the prior written consent of the Indenture Trustee
and the Owner Trustee and without giving prior written
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notice to the Rating Agencies, amend Article Third or Fourth of its certificate
of incorporation or (iii) incur any indebtedness, or assume or guaranty
indebtedness of any other entity, other than pursuant to the Revolving Note and
the Intercompany Advance Agreement (without giving effect to any amendment to
such Note or Agreement after the date hereof, unless the Rating Agency Condition
was satisfied in connection therewith), if such action would result in a
downgrading of the then current rating of any class of the Notes.
Section 3.04 Limitation on Liability of Seller and Others. The Seller and
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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
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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.
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(a) The Servicer shall deliver to the Indenture Trustee and the Owner
Trustee, on or before August 15 of each year, beginning August 15, 2002, 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
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certificate) and of its performance under this Agreement and under the Pooling
and Servicing Agreement has been made under such officer's supervision, and (ii)
to such officer's knowledge, based on such review, the Servicer has fulfilled
all its obligations under such agreements throughout such period, or, if there
has been a default in the fulfillment of any such obligation, specifying each
such default known to such officer and the nature and status thereof. A copy of
such certificate may be obtained by any Noteholder or Certificateholder by a
request in writing to the Issuer addressed to the Corporate Trust Office of the
Indenture Trustee or the Owner Trustee, as applicable.
(b) The Servicer shall deliver to the Indenture Trustee, the Owner Trustee
and to the Rating Agencies, promptly after having obtained knowledge thereof,
but in no event later than five Business Days thereafter, written notice in an
officer's certificate of any event which with the giving of notice or lapse of
time, or both, would become a Servicer Default under Section 7.01. The Seller
shall deliver to the Indenture Trustee, the Owner Trustee, the Servicer and the
Rating Agencies, promptly after having obtained knowledge thereof, but in no
event later than five Business Days thereafter, written notice in an officer's
certificate of any event which with the giving of notice or lapse of time, or
both, would become a Servicer Default under clause (b) of Section 7.01.
Section 4.02 Annual Independent Accountants' Report.
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(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, 2002 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
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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
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the procedures in the Program are applicable to the servicing obligations set
forth in this Agreement and the Pooling and Servicing Agreement, and (iii)
except as described in the report, disclosed no exceptions or errors in the
records relating to automobile and light truck loans serviced for others that,
in the firm's opinion, paragraph four of the Program requires such firm to
report. In the event that such firm requires the Owner Trustee to agree to the
procedures performed by such firm, the Servicer shall direct the Owner Trustee
in writing to so agree; it being understood and agreed that the Owner Trustee
will deliver such letter of agreement in conclusive reliance upon the direction
of the Servicer and the Owner Trustee makes no independent inquiry or
investigation as to, and shall have no obligation or liability in respect of,
the sufficiency, validity or correctness of such procedures.
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(b) The Accountants' Report shall also indicate that the firm is
independent of the Seller and the Servicer within the meaning of the Code of
Professional Ethics of the American Institute of Certified Public Accountants.
(c) A copy of the Accountants' Report may be obtained by any Noteholder or
Certificateholder by a request in writing to the Issuer addressed to the
Corporate Trust Office of the Indenture Trustee or the Owner Trustee.
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Section 4.03 Access to Certain Documentation and Information Regarding
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Receivables. The Servicer shall provide to the Indenture Trustee and the Owner
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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
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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.
- 11 -
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 Revolving Notes Advance Amount, if any, the Accumulation
Amount, the Total Servicing Fee, the Total Note Principal Payment Amount, the
Aggregate Noteholders' Interest Distributable Amount, the Aggregate Noteholders'
Principal Distributable Amount, the Certificateholders' Interest Distributable
Amount, the Certificateholders' Principal Distributable Amount, the net amount,
if any, payable by the Trust under the Interest Rate Swaps 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
Swaps, 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 trans ferred 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 Swaps 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 Swaps 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 Swaps 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
- 12 -
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 Swaps 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 and, as
applicable, the Accumulation Amount necessary to make payments under the
Interest Rate Swaps 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 Swaps,
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 Swaps 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
Swaps 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 Swaps (exclusive of payments due in respect of an Early
Termination Date of the Interest Rate Swaps);
- 13 -
(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 Swaps,
allocated between the Note Distribution Account and the Swap Counterparty
in proportion to the amounts owing to the Swap Counterparty in connection
with such Early Termination Date and in respect of the Aggregate
Noteholders' Interest Distributable Amount;
(iv) fourth, to the Certificate Distribution Account, to the extent of
the Total Available Amount (as such amount has been reduced by the
distributions described in clauses (i), (ii) and (iii) above), the
------------ ---- -----
Certificateholders' Interest Distributable Amount;
(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 2001-1 Reserve Account (the "Reserve Account") to
----------------
include the money and other property deposited and held therein
- 14 -
pursuant to this Section 4.07(a), Section 4.07(e) and Section 4.06(c). On the
--------------- --------------- ----------------
Closing Date, the Seller shall deposit the Reserve Account Initial Deposit into
the Reserve Account. The Reserve Account shall not under any circumstances be
deemed to be part of or otherwise included in the Trust.
(b) If the amount on deposit in the Reserve Account on any Distribution
Date (after giving effect to all deposits therein or withdrawals therefrom on
such Distribution Date) exceeds the Specified Reserve Account Balance for such
Distribution Date, the Servicer shall instruct the Indenture Trustee to
distribute an amount equal to any such excess to the Seller; it being understood
that no such distribution from the Reserve Account shall be made to the Seller
unless the amount so on deposit in the Reserve Account exceeds such Specified
Reserve Account Balance.
(c) In order to provide for the payment to the Noteholders, the
Certificateholders and the Servicer in accordance with Sections 4.06(c) and
-----------------
4.06(d), to assure availability of the amounts maintained in the Reserve Account
- -------
for the benefit of the Noteholders, the Certificateholders and the Servicer, and
as security for the performance by the Seller of its obligations hereunder, the
Seller on 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.
- 15 -
(e) If the Servicer pursuant to Section 5.04 determines on any
-------------
Determination Date that it is required to make a Monthly Advance and does not do
so from its own funds, the Servicer shall instruct the Indenture Trustee to
withdraw funds from the Reserve Account and deposit them in the Collection
Account to cover any shortfall. Such payment shall be deemed to have been made
by the Servicer pursuant to Section 5.04 for purposes of making distributions
-------------
pursuant to this Agreement, but shall not otherwise satisfy the Servicer's
obligation to deliver the amount of the Monthly Advances, and the Servicer shall
within two Business Days replace any funds in the Reserve Account so used. The
Servicer shall not be entitled to reimbursement for any such deemed Monthly
Advances unless and until the Servicer shall have replaced such funds in the
Reserve Account.
Section 4.08 Net Deposits. At any time that (i) GMAC shall be the Servicer,
------------
(ii) the Servicer shall be permitted by Section 5.02 to remit collections on a
------------
basis other than a daily basis, and (iii) the Servicer shall be permitted by
Section 5.01(e) to remit Payments Ahead on a basis other than on a daily basis,
- ----------------
the Servicer, the Seller, the Indenture Trustee and the Owner Trustee may make
any remittances pursuant to this Article IV net of amounts to be distributed by
the applicable recipient to such remitting party. Nonetheless, each such party
shall account for all of the above described remittances and distributions as if
the amounts were deposited and/or transferred separately.
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 Discounted Principal Balance as of the close of
business on the last day of such Monthly Period, the Aggregate Discounted
Principal Balance as of the close of business on the last day of the second
monthly period preceding such Distribution Date (or, for the first
Distribution Date, the Initial Aggregate Discounted Principal Balance) and
the Principal Distributable Amount for such Distribution Date;
- 16 -
(iv) the Note Principal Balance for each class of Notes, the Aggregate
Note Principal Balance, the Certificate Balance, the Note Pool Factor for
each class of Notes and the Certificate Pool Factor, each as of such
Distribution Date after giving effect to all payments described under
clause (i) above;
(v) the amount of the Noteholders' Interest Carryover Shortfall, the
Noteholders' Principal Carryover Shortfall, the Certificateholders'
Interest Carryover Shortfall, and the Certificateholders' Principal
Carryover Shortfall, if any, and the change in each of such amounts from
the preceding Distribution Date;
(vi) the aggregate amount in the Payment Ahead Servicing Account or on
deposit with the Servicer as Payments Ahead and the change in such amount
from the previous Distribution Date;
(vii) the amount of Outstanding Monthly Advances on such Distribution
Date;
(viii) the amount of the Total Servicing Fee paid to the Servicer with
respect to the related Monthly Period;
(ix) the amount, if any, distributed to Noteholders and
Certificateholders from amounts on deposit in the Reserve Account;
(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.
- 17 -
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 2001-1 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 2001-1 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 Account known as the
Capital Auto Receivables Asset Trust 2001-1 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 2001-1 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 2001-1 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
------------
- 18 -
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 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
- 19 -
to the extent the foregoing have been specially indorsed to the
Securities Intermediary or in blank.
(C) All property delivered to the Securities Intermediary
pursuant to this Agreement will be credited upon receipt of such
property to the appropriate Designated Account.
(D) Each item of property (whether investments, investment
property, Financial Asset, security, instrument or cash) credited to a
Designated Account shall be treated as a "financial asset" within the
meaning of Section 8-102(a)(9) of the New York UCC.
(E) If at any time the Securities Intermediary shall receive any
order from the Indenture Trustee directing transfer or redemption of
any Financial Asset relating to the Designated Accounts, the
Securities Intermediary shall comply with such order without further
consent by the Trust, the Servicer, the Seller or any other Person.
(F) The Designated Accounts shall be governed by the laws of the
State of New York, regardless of any provision in any other agreement.
For purposes of the UCC, New York shall be deemed to be the Securities
Intermediary's jurisdiction and the Designated Accounts (as well as
the Security Entitlements related thereto) shall be governed by the
laws of the State of New York.
(G) The Securities Intermediary has not entered into, and until
the termination of this Agreement will not enter into, any agreement
with any other Person relating to the Designated Accounts and/or any
Financial Assets or other property credited thereto pursuant to which
it has agreed to comply with entitlement orders (as defined in Section
8-102(a)(8) of the New York UCC) of such other Person and the
Securities Intermediary has not entered into, and until the
termination of this Agreement will not enter into, any agreement with
the Issuer, the Seller, the 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.
- 20 -
(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.
(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
- 21 -
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.
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
- 22 -
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.
(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
- 23 -
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 an Incremental Advance under any Variable Pay Revolving Note (including as a
result of the sale of an additional class of Variable Pay Revolving Notes to be
issued on such Targeted Final Distribution Date), and the Servicer determines
that the proceeds from such Incremental Advance or 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 Person making such Incremental Advance or
purchase 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 or Incremental Advance. If such Incremental
Advance is not made 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 any such
Incremental Advance (including any newly issued class of Variable Pay Revolving
Notes), will be rescinded, canceled and deemed without any effect.
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 Swaps for the related Monthly
Period, on or before the Business Day preceding the Distribution Date).
- 24 -
ARTICLE 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
- 25 -
Owner Trustee's performance of its duties under the Trust Agreement or (z)
the acceptance, administration or performance by, or action or inaction of,
the Indenture Trustee or the Owner Trustee, as applicable, of the trusts
and duties contained in this Agreement, the Basic Documents, the Indenture
(in the case of the Indenture Trustee), including the administration of the
Trust Estate, and the Trust Agreement (in case of the Owner Trustee),
including the administration of the Owner Trust Estate, except in each case
to the extent that such cost, expense, loss, claim, damage or liability:
(A) is due to the willful misfeasance, bad faith or negligence (except for
errors in judgment) of the Person indemnified, (B) to the extent otherwise
payable to the Indenture Trustee, arises from the Indenture Trustee's
breach of any of its representations or warranties in Section 6.13 of the
------------
Indenture, (C) to the extent otherwise payable to the Owner Trustee, arises
from the Owner Trustee's breach of any of its representations or warranties
set forth in Section 6.6 of the Trust Agreement, or (D) shall arise out of
-----------
or be incurred in connection with the performance by the Indenture Trustee
of the duties of successor Servicer hereunder.
(b) Indemnification under this Section 6.01 shall include, without
-------------
limitation, reasonable fees and expenses of external 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
-------- -------
- 26 -
the Servicer or any such Person against any liability that would otherwise be
imposed by reason of willful misfeasance, bad faith or negligence (except errors
in judgment) in the performance of duties or by reason of reckless disregard of
obligations and duties under this Agreement, the Pooling and Servicing
Agreement, the Indenture or the Trust Agreement. The Servicer and any director,
officer or employee or agent of the Servicer may rely in good faith on the
advice of counsel or on any document of any kind prima facie properly executed
and submitted by any Person respecting any matters arising under this Agreement
or the Pooling and Servicing Agreement.
(b) The Servicer and any director or officer or employee or agent of the
Servicer shall be reimbursed by the Indenture Trustee or the Owner Trustee, as
applicable, for any contractual damages, liability or expense (including,
without limitation, any obligation of the Servicer to the Indenture Trustee or
the Owner Trustee, as applicable, pursuant to Section 6.01(a)(iv)(x) or (y))
-------------------------------
incurred by reason of such trustee's willful misfeasance, bad faith or
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
- 27 -
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.
------------
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
- 28 -
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 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.
- 29 -
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 of at least Baa3 (unless such
requirement is expressly waived by Moody's Investors Service) and (iii) whose
regular business includes the servicing of automotive receivables, as the
successor to the Servicer under this Agreement and the Pooling and Servicing
Agreement in the assumption of all or any part of the responsibilities, duties
or liabilities of the Servicer under this Agreement and the Pooling and
Servicing Agreement. In connection with such appointment and assumption, the
Indenture Trustee may make such arrangements for the compensation of such
successor out of payments on Receivables as it and such successor shall agree;
provided, however, that no such compensation shall be in excess of that
- -------- -------
permitted the Servicer under this Agreement and the Pooling and Servicing
Agreement. The Indenture Trustee and such successor shall take such action,
consistent with this Agreement and the Pooling and Servicing Agreement, as shall
be necessary to effectuate any such succession.
Section 7.04 Notification to Noteholders and Certificateholders. Upon any
---------------------------------------------------
termination of, or appointment of a successor to, the Servicer pursuant to this
Article VII, the Indenture Trustee shall give prompt written notice thereof to
- -----------
the Noteholders and the Rating Agencies and the Owner Trustee shall give prompt
written notice thereof to the Certificateholders.
Section 7.05 Waiver of Past Defaults. Noteholders whose Notes evidence not
-----------------------
less than a majority of the Outstanding Amount of the Notes as of the close of
the preceding Distribution Date (or, if all of the Notes have been paid in full
and the Indenture has been discharged in accordance with its terms,
Certificateholders whose Certificates evidence not less than a majority of the
Voting Interests as of the close of the preceding Distribution Date) may, on
behalf of all Noteholders and Certificateholders, waive any default by the
Servicer in the performance of its obligations hereunder and its consequences,
except a default in making any required deposits to or payments from any of the
accounts in accordance with this Agreement. Upon any such waiver of a past
default, such default shall cease to exist, and any Servicer Default arising
therefrom shall be deemed to have been remedied for every purpose of this
Agreement and the Pooling and Servicing Agreement. No such waiver shall extend
to any subsequent or other default or impair any right consequent thereon.
- 30 -
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 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,
- 31 -
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 Swaps (exclusive of payments due
to the Swap Counterparty in respect of an Early Termination Date under the
Interest Rate Swaps);
(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 Swaps,
allocated between the Note Distribution Account and the Swap Counterparty
in proportion to the amounts owing to the Swap Counterparty in connection
with such Early Termination Date and in respect of the Aggregate
Noteholders' Interest Distributable Amount;
(iii) to the Note Distribution Account, any portion of the Aggregate
Noteholders' Interest Distributable Amount not otherwise deposited into the
Note Distribution Account on such Distribution Date for payment of interest
on the Notes;
(iv) to the Note Distribution Account, an amount equal to the Note
Principal Balance of the Notes (after giving effect to the reduction in the
Aggregate Note Principal Balance to result from the deposits made in the
Note Distribution Account on such Distribution Date and on each prior
Distribution Date) for payment of principal of the Notes;
(v) to the Certificate Distribution Account, any portion of the
Certificateholders' Interest Distributable Amount not otherwise deposited
into the Certificate Distribution Account on such Distribution Date for
payment of interest on the Certificates; and
(vi) to the Certificate Distribution Account, an amount equal to the
Certificate Balance of the Certificates (after giving effect to the
reduction therein to result from the deposits made in the Certificate
Distribution Account on such Distribution Date and on each prior
Distribution Date) for payment of the Certificate Balance on the
Certificates.
Subject to Section 5.01(b), any investments on deposit in the Reserve Accoun
----------------
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.
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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 Swaps 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 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.
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(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 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.
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(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 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
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has been paid in full or repurchased by the Seller or purchased by the Servicer.
(f) In the event that GMAC shall change the jurisdiction in which it is
incorporated or otherwise enter into any transaction which would result in a
"new debtor" (as defined in the UCC) succeeding to the obligations of GMAC
hereunder, GMAC shall comply fully with the obligations of Section 9.02(a).
--------------
(g) 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.
(h) 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.
(i) 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.
- ------------
(j) 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.
(k) 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.
- 36 -
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.
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.
- 37 -
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.
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 Bank One, National Association,
not in its individual capacity but solely as Indenture Trustee and in no event
shall Bank One, National Association 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.
- 38 -
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.
* * * * *
- 39 -
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 2001-1
By: BANKERS TRUST (DELAWARE), not in its
individual capacity but solely as Owner Trustee on
behalf of the Trust,
By: CHARLES C. GREITER
______________________________
Name: Charles C. Greiter
Title: Attorney-in-fact
CAPITAL AUTO RECEIVABLES, INC.,
Seller
By: R. L. STRAUB
___________________________________
Name: R. L. Straub
Title: Manager - Securitization
GENERAL MOTORS ACCEPTANCE CORPORATION
By: 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: STEVEN M. WAGNER
----------------------
Name: Steven M. Wagner
Title: First Vice President
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.