EXHIBIT 4.1
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CAPITAL AUTO RECEIVABLES ASSET TRUST 2002-1
Class A-1 1.71% Asset Backed Notes
Class A-2 Floating Rate Asset Backed Notes
Class A-3 Floating Rate Asset Backed Notes
Class A-4 4.16% Asset Backed Notes
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INDENTURE
Dated as of January 24, 2002
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BANK ONE, NATIONAL ASSOCIATION
Indenture Trustee
TABLE OF CONTENTS
ARTICLE I DEFINITIONS AND INCORPORATION BY REFERENCE.......................................................2
SECTION 1.1 DEFINITIONS..........................................................................2
SECTION 1.2 INCORPORATION BY REFERENCE OF TRUST INDENTURE ACT....................................2
ARTICLE II THE NOTES.......................................................................................3
SECTION 2.1 FORM.................................................................................3
SECTION 2.2 EXECUTION, AUTHENTICATION AND DELIVERY...............................................3
SECTION 2.3 TEMPORARY NOTES......................................................................4
SECTION 2.4 REGISTRATION; REGISTRATION OF TRANSFER AND EXCHANGE OF NOTES.........................4
SECTION 2.5 MUTILATED, DESTROYED, LOST OR STOLEN NOTES...........................................5
SECTION 2.6 PERSONS DEEMED NOTEHOLDERS...........................................................6
SECTION 2.7 PAYMENT OF PRINCIPAL AND INTEREST....................................................6
SECTION 2.8 CANCELLATION OF NOTES................................................................8
SECTION 2.9 RELEASE OF COLLATERAL................................................................8
SECTION 2.10 BOOK-ENTRY NOTES.....................................................................8
SECTION 2.11 NOTICES TO CLEARING AGENCY...........................................................9
SECTION 2.12 DEFINITIVE NOTES.....................................................................9
SECTION 2.13 SELLER AS NOTEHOLDER................................................................10
SECTION 2.14 TAX TREATMENT.......................................................................10
SECTION 2.15 SPECIAL TERMS APPLICABLE TO THE PRIVATE NOTES.......................................10
ARTICLE III COVENANTS.....................................................................................11
SECTION 3.1 PAYMENT OF PRINCIPAL AND INTEREST...................................................11
SECTION 3.2 MAINTENANCE OF AGENCY OFFICE........................................................11
SECTION 3.3 MONEY FOR PAYMENTS TO BE HELD IN TRUST..............................................11
SECTION 3.4 EXISTENCE...........................................................................12
SECTION 3.5 PROTECTION OF TRUST ESTATE; ACKNOWLEDGMENT OF PLEDGE................................13
SECTION 3.6 OPINIONS AS TO TRUST ESTATE.........................................................14
SECTION 3.7 PERFORMANCE OF OBLIGATIONS; SERVICING OF RECEIVABLES................................14
SECTION 3.8 NEGATIVE COVENANTS..................................................................15
SECTION 3.9 ANNUAL STATEMENT AS TO COMPLIANCE...................................................16
SECTION 3.10 CONSOLIDATION, MERGER, ETC., OF ISSUER; DISPOSITION OF TRUST ASSETS.................16
SECTION 3.11 SUCCESSOR OR TRANSFEREE.............................................................18
SECTION 3.12 NO OTHER BUSINESS...................................................................18
SECTION 3.13 NO BORROWING........................................................................18
SECTION 3.14 GUARANTEES, LOANS, ADVANCES AND OTHER LIABILITIES...................................18
SECTION 3.15 SERVICER'S OBLIGATIONS..............................................................19
SECTION 3.16 CAPITAL EXPENDITURES................................................................19
SECTION 3.17 REMOVAL OF ADMINISTRATOR............................................................19
SECTION 3.18 RESTRICTED PAYMENTS.................................................................19
SECTION 3.19 NOTICE OF EVENTS OF DEFAULT.........................................................19
SECTION 3.20 FURTHER INSTRUMENTS AND ACTS........................................................19
SECTION 3.21 INDENTURE TRUSTEE'S ASSIGNMENT OF ADMINISTRATIVE RECEIVABLES
AND WARRANTY RECEIVABLES............................................................19
SECTION 3.22 REPRESENTATIONS AND WARRANTIES BY THE ISSUER TO THE INDENTURE TRUSTEE...............20
ARTICLE IV SATISFACTION AND DISCHARGE.....................................................................21
SECTION 4.1 SATISFACTION AND DISCHARGE OF INDENTURE.............................................21
SECTION 4.2 APPLICATION OF TRUST MONEY..........................................................22
SECTION 4.3 REPAYMENT OF MONIES HELD BY PAYING AGENT............................................22
SECTION 4.4 DURATION OF POSITION OF INDENTURE TRUSTEE...........................................22
ARTICLE V DEFAULT AND REMEDIES............................................................................22
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SECTION 5.1 EVENTS OF DEFAULT...................................................................22
SECTION 5.2 ACCELERATION OF MATURITY; RESCISSION AND ANNULMENT..................................24
SECTION 5.3 COLLECTION OF INDEBTEDNESS AND SUITS FOR ENFORCEMENT BY INDENTURE TRUSTEE...........24
SECTION 5.4 REMEDIES; PRIORITIES................................................................26
SECTION 5.5 OPTIONAL PRESERVATION OF THE RECEIVABLES............................................27
SECTION 5.6 LIMITATION OF SUITS.................................................................27
SECTION 5.7 UNCONDITIONAL RIGHTS OF NOTEHOLDERS TO RECEIVE PRINCIPAL AND INTEREST...............28
SECTION 5.8 RESTORATION OF RIGHTS AND REMEDIES..................................................28
SECTION 5.9 RIGHTS AND REMEDIES CUMULATIVE......................................................29
SECTION 5.10 DELAY OR OMISSION NOT A WAIVER......................................................29
SECTION 5.11 CONTROL BY NOTEHOLDERS..............................................................29
SECTION 5.12 WAIVER OF PAST DEFAULTS.............................................................29
SECTION 5.13 UNDERTAKING FOR COSTS...............................................................30
SECTION 5.14 WAIVER OF STAY OR EXTENSION LAWS....................................................30
SECTION 5.15 ACTION ON NOTES.....................................................................30
SECTION 5.16 PERFORMANCE AND ENFORCEMENT OF CERTAIN OBLIGATIONS..................................31
ARTICLE VI THE INDENTURE TRUSTEE..........................................................................31
SECTION 6.1 DUTIES OF INDENTURE TRUSTEE.........................................................31
SECTION 6.2 RIGHTS OF INDENTURE TRUSTEE.........................................................33
SECTION 6.3 INDENTURE TRUSTEE MAY OWN NOTES.....................................................34
SECTION 6.4 INDENTURE TRUSTEE'S DISCLAIMER......................................................34
SECTION 6.5 NOTICE OF DEFAULTS..................................................................34
SECTION 6.6 REPORTS BY INDENTURE TRUSTEE TO HOLDERS.............................................34
SECTION 6.7 COMPENSATION; INDEMNITY.............................................................34
SECTION 6.8 REPLACEMENT OF INDENTURE TRUSTEE....................................................34
SECTION 6.9 MERGER OR CONSOLIDATION OF INDENTURE TRUSTEE........................................35
SECTION 6.10 APPOINTMENT OF CO-INDENTURE TRUSTEE OR SEPARATE INDENTURE TRUSTEE...................36
SECTION 6.11 ELIGIBILITY; DISQUALIFICATION.......................................................37
SECTION 6.12 PREFERENTIAL COLLECTION OF CLAIMS AGAINST ISSUER....................................37
SECTION 6.13 REPRESENTATIONS AND WARRANTIES OF INDENTURE TRUSTEE.................................37
SECTION 6.14 INDENTURE TRUSTEE MAY ENFORCE CLAIMS WITHOUT POSSESSION OF NOTES....................38
SECTION 6.15 SUIT FOR ENFORCEMENT................................................................38
SECTION 6.16 RIGHTS OF NOTEHOLDERS TO DIRECT INDENTURE TRUSTEE...................................38
ARTICLE VII NOTEHOLDERS' LISTS AND REPORTS................................................................39
SECTION 7.1 ISSUER TO FURNISH INDENTURE TRUSTEE NAMES AND ADDRESSES OF NOTEHOLDERS..............39
SECTION 7.2 PRESERVATION OF INFORMATION, COMMUNICATIONS TO NOTEHOLDERS..........................39
SECTION 7.3 REPORTS BY ISSUER...................................................................39
SECTION 7.4 REPORTS BY TRUSTEE..................................................................40
ARTICLE VIII ACCOUNTS, DISBURSEMENTS AND RELEASES.........................................................40
SECTION 8.1 COLLECTION OF MONEY.................................................................40
SECTION 8.2 DESIGNATED ACCOUNTS; PAYMENTS.......................................................40
SECTION 8.3 GENERAL PROVISIONS REGARDING ACCOUNTS...............................................42
SECTION 8.4 RELEASE OF TRUST ESTATE.............................................................42
SECTION 8.5 OPINION OF COUNSEL..................................................................43
ARTICLE IX SUPPLEMENTAL INDENTURES........................................................................43
SECTION 9.1 SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF NOTEHOLDERS.>>...........................43
SECTION 9.2 SUPPLEMENTAL INDENTURES WITH CONSENT OF NOTEHOLDERS.................................44
SECTION 9.3 EXECUTION OF SUPPLEMENTAL INDENTURES................................................45
SECTION 9.4 EFFECT OF SUPPLEMENTAL INDENTURE....................................................46
SECTION 9.5 CONFORMITY WITH TRUST INDENTURE ACT.................................................46
SECTION 9.6 REFERENCE IN NOTES TO SUPPLEMENTAL INDENTURES.......................................46
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ARTICLE X REDEMPTION OF NOTES.............................................................................46
SECTION 10.1 REDEMPTION..........................................................................46
SECTION 10.2 FORM OF REDEMPTION NOTICE...........................................................46
SECTION 10.3 NOTES PAYABLE ON REDEMPTION DATE....................................................47
ARTICLE XI MISCELLANEOUS..................................................................................47
SECTION 11.1 COMPLIANCE CERTIFICATES AND OPINIONS, ETC...........................................47
SECTION 11.2 FORM OF DOCUMENTS DELIVERED TO INDENTURE TRUSTEE....................................49
SECTION 11.3 ACTS OF NOTEHOLDERS.................................................................49
SECTION 11.4 NOTICES, ETC., TO INDENTURE TRUSTEE, ISSUER AND RATING AGENCIES.....................50
SECTION 11.5 NOTICES TO NOTEHOLDERS; WAIVER......................................................50
SECTION 11.6 ALTERNATE PAYMENT AND NOTICE PROVISIONS.............................................51
SECTION 11.7 CONFLICT WITH TRUST INDENTURE ACT...................................................51
SECTION 11.8 EFFECT OF HEADINGS AND TABLE OF CONTENTS............................................51
SECTION 11.9 SUCCESSORS AND ASSIGNS..............................................................51
SECTION 11.10 SEVERABILITY..................................................................51
SECTION 11.11 BENEFITS OF INDENTURE.........................................................52
SECTION 11.12 LEGAL HOLIDAYS................................................................52
SECTION 11.13 GOVERNING LAW.................................................................52
SECTION 11.14 COUNTERPARTS..................................................................52
SECTION 11.15 RECORDING OF INDENTURE........................................................52
SECTION 11.16 NO RECOURSE...................................................................52
SECTION 11.17 NO PETITION...................................................................53
SECTION 11.18 INSPECTION....................................................................53
SECTION 11.19 INDEMNIFICATION BY AND REIMBURSEMENT OF THE SERVICER..........................53
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Exhibit A - Location of Schedule of Receivables
Exhibit B - Form of Note Depository Agreement
Exhibit C-1 - Form of Floating Rate Offered Class A Asset Backed Note
Exhibit C-2 - Form of Fixed Rate Offered Class A Asset Backed Note
Exhibit C-3 - Form of Class A-1 Note
Exhibit D - Rule 144A Certificate
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INDENTURE, dated as of January 24, 2002, between CAPITAL AUTO RECEIVABLES
ASSET TRUST 2002-1, a Delaware business trust (the "Issuer"), and BANK ONE,
NATIONAL ASSOCIATION, as trustee and not in its individual capacity (the
"Indenture Trustee").
Each party agrees as follows for the benefit of the other party and for the
equal and ratable benefit of the Secured Parties and the Holders of the
Certificates (only to the extent expressly provided herein):
GRANTING CLAUSE
The Issuer hereby Grants to the Indenture Trustee at the Closing Date, as
trustee for the benefit of the Secured Parties (only to the extent expressly
provided herein), (a) all of the Issuer's right, title and interest in, to and
under the Receivables listed on the Schedule of Receivables which is on file at
the locations listed on Exhibit A hereto and (i) in the case of Scheduled
Interest Receivables, all monies due thereon on and after the Cutoff Date and
(ii) in the case of Simple Interest Receivables, all monies received thereon on
and after the Cutoff Date, in each case exclusive of any amounts allocable to
the premium for physical damage insurance force-placed by the Servicer and
covering any related Financed Vehicle; (b) the interest of the Issuer in the
security interests in the Financed Vehicles granted by Obligors pursuant to the
Receivables and, where permitted by law, any accessions thereto; (c) the
interest of the Issuer in any proceeds with respect to the Receivables from
claims on any physical damage, credit life, credit disability or other insurance
policies covering Financed Vehicles or Obligors (except for those Receivables
originated in Wisconsin); (d) the interest of the Issuer in any proceeds with
respect to the Receivables from recourse against dealers thereon; (e) all right,
title and interest in all funds on deposit from time to time in the Collection
Account, the Note Distribution Account, and the Certificate Distribution
Account; (f) all right, title and interest of the Issuer in, to and under the
Trust Sale and Servicing Agreement (including all rights of Capital Auto
Receivables, Inc. ("CARI" or the "Seller") under the Pooling and Servicing
Agreement and the Custodian Agreement assigned to the Issuer pursuant to the
Trust Sale and Servicing Agreement); (g) all right, title and interest of the
Issuer in, to and under any Third Party Instrument; and (h) all present and
future claims, demands, causes and choses in action in respect of any or all of
the foregoing and all payments on or under and all proceeds of every kind and
nature whatsoever in respect of any or all of the foregoing, including all
proceeds of the conversion, voluntary or involuntary, into cash or other liquid
property, all cash proceeds, accounts, accounts receivable, notes, drafts,
acceptances, chattel paper, checks, deposit accounts, insurance proceeds,
investment property, general intangibles, condemnation awards, rights to payment
of any and every kind and other forms of obligations and receivables,
instruments and other property which at any time constitute all or part of or
are included in the proceeds of any of the foregoing (collectively, the
"Collateral").
The foregoing Grant is made in trust to secure the Secured Obligations and
the payment of the Certificate Balance and interest on, and any other amounts
owing in respect of, the Certificates, equally and ratably without prejudice,
priority or distinction, and to secure compliance with the provisions of this
Indenture, all as provided in this Indenture. This Indenture constitutes a
security agreement under the UCC.
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The foregoing Grant includes all rights, powers and options (but none of
the obligations, if any) of the Issuer under any agreement or instrument
included in the Collateral, including the immediate and continuing right to
claim for, collect, receive and give receipt for principal and interest payments
in respect of the Receivables included in the Collateral and all other monies
payable under the Collateral, to give and receive notices and other
communications, to make waivers or other agreements, to exercise all rights and
options, to bring Proceedings in the name of the Issuer or otherwise and
generally to do and receive anything that the Issuer is or may be entitled to do
or receive under or with respect to the Collateral.
The Indenture Trustee, as trustee on behalf of the Secured Parties and
(only to the extent expressly provided herein) the Certificateholders,
acknowledges such Grant and accepts the trusts under this Indenture in
accordance with the provisions of this Indenture.
ARTICLE I
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.1 Definitions. Certain capitalized terms used in this Indenture
shall have the respective meanings assigned them in Part I of Appendix A to the
Trust Sale and Servicing Agreement (as amended from time to time, the "Trust
Sale and Servicing Agreement") dated as of the date hereof, among the Issuer,
CARI and General Motors Acceptance Corporation ("GMAC"). All references in this
Indenture to Articles, Sections, subsections and exhibits are to the same
contained in or attached to this Indenture unless otherwise specified. All terms
defined in this Indenture shall have the defined meanings when used in any
certificate, notice, Note or other document made or delivered pursuant hereto
unless otherwise defined therein. The rules of construction set forth in Part II
of such Appendix A shall be applicable to this Indenture.
SECTION 1.2 Incorporation by Reference of Trust Indenture Act. Whenever
this Indenture refers to a provision of the TIA, such provision is incorporated
by reference in and made a part of this Indenture. The following TIA terms used
in this Indenture have the following meanings:
"Commission" means the Securities and Exchange Commission.
"indenture securities" means the Notes.
"indenture security holder" means a Noteholder.
"indenture to be qualified" means this Indenture.
"indenture trustee" means the Indenture Trustee.
"obligor" on the indenture securities means the Issuer and any other
obligor on the indenture securities.
All other TIA terms used in this Indenture that are defined by the TIA,
defined by reference to another statute or defined by a Commission rule have the
respective meanings assigned to them by such definitions.
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ARTICLE II
THE NOTES
SECTION 2.1 Form.
(a) Each of the Class A-2 Notes and the Class A-3 Notes, together, in each
case with the Indenture Trustee's certificate of authentication, shall be
substantially in the form set forth in Exhibit C-1, each of the Class A-4 Notes,
together, with the Indenture Trustee's certificate of authentication, shall be
substantially in the form set forth in Exhibit C-2, and each of the Class A-1
Notes, together with the Indenture Trustee's certificate of authentication,
shall be substantially in the form set forth in Exhibit C-3, in each case with
such appropriate insertions, omissions, substitutions and other variations as
are required or permitted by this Indenture, and each such Note may have such
letters, numbers or other marks of identification and such legends or
endorsements placed thereon as may, consistently herewith, be determined by the
officers executing such Notes, as evidenced by their execution of the Notes. Any
portion of the text of any Note may be set forth on the reverse thereof, with an
appropriate reference thereto on the face of the Note.
(b) The Definitive Notes shall be typewritten, printed, lithographed or
engraved or produced by any combination of these methods (with or without steel
engraved borders), all as determined by the officers executing such Notes, as
evidenced by their execution of such Notes.
(c) The terms of each class of Notes as provided for in Exhibits C-1, C-2
and C-3 hereto are part of the terms of this Indenture.
SECTION 2.2 Execution, Authentication and Delivery.
(a) Each Note shall be dated the date of its authentication and shall be
issuable as a registered Note in the minimum denomination of $1,000 and in
integral multiples thereof (except, if applicable, for one Note representing a
residual portion of each class which may be issued in a different denomination).
(b) The Notes shall be executed on behalf of the Issuer by any of its
Authorized Officers. The signature of any such Authorized Officer on the Notes
may be manual or facsimile.
(c) Notes bearing the manual or facsimile signature of individuals who were
at any time Authorized Officers of the Issuer shall bind the Issuer,
notwithstanding that such individuals or any of them have ceased to hold such
office prior to the authentication and delivery of such Notes or did not hold
such office at the date of such Notes.
(d) The Indenture Trustee, in exchange for the Grant of the Receivables and
the other components of the Trust, simultaneously with the Grant to the
Indenture Trustee of the Receivables, and the constructive delivery to the
Indenture Trustee of the Receivables Files and the other components and assets
of the Trust, shall cause to be authenticated and delivered to or upon the order
of the Issuer, Notes for original issue in aggregate principal amount of
$2,175,374,000, comprised of (i) Class A-1 Notes in the aggregate principal
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amount of $475,000,000, (ii) Class A-2 Notes in the aggregate principal amount
of $579,000,000, (iii) Class A-3 Notes in the aggregate principal amount of
$652,000,000 and (iv) Class A-4 Notes in the aggregate principal amount of
$469,374,000. The aggregate principal amount of all Notes outstanding at any
time may not exceed $2,175,374,000, except as provided in Section 2.5.
(e) No Notes shall be entitled to any benefit under this Indenture or be
valid or obligatory for any purpose, unless there appears on such Note a
certificate of authentication substantially in the form set forth in Exhibit
C-1, Exhibit C-2, or Exhibit C-3, as applicable, executed by the Indenture
Trustee by the manual signature of one of its Authorized Officers, and such
certificate upon any Note shall be conclusive evidence, and the only evidence,
that such Note has been duly authenticated and delivered hereunder.
SECTION 2.3 Temporary Notes.
(a) Pending the preparation of Definitive Notes, if any, the Issuer may
execute, and upon receipt of an Issuer Order the Indenture Trustee shall
authenticate and deliver, such Temporary Notes which are printed, lithographed,
typewritten, mimeographed or otherwise produced, of the tenor of the Definitive
Notes in lieu of which they are issued and with such variations as are
consistent with the terms of this Indenture as the officers executing such Notes
may determine, as evidenced by their execution of such Notes.
(b) If Temporary Notes are issued, the Issuer shall cause Definitive Notes
to be prepared without unreasonable delay. After the preparation of Definitive
Notes, the Temporary Notes shall be exchangeable for Definitive Notes upon
surrender of the Temporary Notes at the Agency Office of the Issuer to be
maintained as provided in Section 3.2, without charge to the Noteholder. Upon
surrender for cancellation of any one or more Temporary Notes, the Issuer shall
execute and the Indenture Trustee shall authenticate and deliver in exchange
therefor a like principal amount of Definitive Notes of authorized
denominations. Until so delivered in exchange, the Temporary Notes shall in all
respects be entitled to the same benefits under this Indenture as Definitive
Notes.
SECTION 2.4 Registration; Registration of Transfer and Exchange of Notes.
(a) The Issuer shall cause to be kept the Note Register, comprising
separate registers for each class of Notes, in which, subject to such reasonable
regulations as the Issuer may prescribe, the Issuer shall provide for the
registration of the Notes and the registration of transfers and exchanges of the
Notes. The Indenture Trustee shall initially be the Note Registrar for the
purpose of registering the Notes and transfers of the Notes as herein provided.
Upon any resignation of any Note Registrar, the Issuer shall promptly appoint a
successor Note Registrar or, if it elects not to make such an appointment,
assume the duties of the Note Registrar.
(b) If a Person other than the Indenture Trustee is appointed by the Issuer
as Note Registrar, the Issuer will give the Indenture Trustee prompt written
notice of the appointment of such Note Registrar and of the location, and any
change in the location, of the Note Register. The Indenture Trustee shall have
the right to inspect the Note Register at all reasonable times and to obtain
copies thereof. The Indenture Trustee shall have the right to rely upon a
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certificate executed on behalf of the Note Registrar by an Executive Officer
thereof as to the names and addresses of the Noteholders and the principal
amounts and number of such Notes.
(c) Upon surrender for registration of transfer of any Note at the
Corporate Trust Office of the Indenture Trustee or the Agency Office of the
Issuer (and following the delivery, in the former case, of such Notes to the
Issuer by the Indenture Trustee), the Issuer shall execute, the Indenture
Trustee shall authenticate and the Noteholder shall obtain from the Indenture
Trustee, in the name of the designated transferee or transferees, one or more
new Notes in any authorized denominations, of a like aggregate principal amount.
(d) At the option of the Noteholder, Notes may be exchanged for other Notes
of the same class in any authorized denominations, of a like aggregate principal
amount, upon surrender of such Notes to be exchanged at the Corporate Trust
Office of the Indenture Trustee or the Agency Office of the Issuer (and
following the delivery, in the former case, of such Notes to the Issuer by the
Indenture Trustee), the Issuer shall execute, and the Indenture Trustee shall
authenticate and the Noteholder shall obtain from the Indenture Trustee, such
Notes which the Noteholder making the exchange is entitled to receive.
(e) All Notes issued upon any registration of transfer or exchange of other
Notes shall be the valid obligations of the Issuer, evidencing the same debt,
and entitled to the same benefits under this Indenture, as the Notes surrendered
upon such registration of transfer or exchange.
(f) Every Note presented or surrendered for registration of transfer or
exchange shall be duly endorsed by, or be accompanied by a written instrument of
transfer in form satisfactory to the Indenture Trustee and the Note Registrar,
duly executed by the Holder thereof or such Holder's attorney duly authorized in
writing, with such signature guaranteed by a commercial bank or trust company
located, or having a correspondent located, in the City of New York or the city
in which the Corporate Trust Office of the Indenture Trustee is located, or by a
member firm of a national securities exchange, and such other documents as the
Indenture Trustee may require.
(g) No service charge shall be made to a Holder for any registration of
transfer or exchange of Notes, but the Issuer or Indenture Trustee may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection with any registration of transfer or exchange of
Notes, other than exchanges pursuant to Sections 2.3 or 9.6 not involving any
transfer.
(h) The preceding provisions of this Section 2.4 notwithstanding, the
Issuer shall not be required to transfer or make exchanges, and the Note
Registrar need not register transfers or exchanges, of Notes that: (i) have been
selected for redemption pursuant to Article X, if applicable; or (ii) are due
for repayment within 15 days of submission to the Corporate Trust Office or the
Agency Office.
SECTION 2.5 Mutilated, Destroyed, Lost or Stolen Notes.If (i) any mutilated
Note is surrendered to the Indenture Trustee, or the Indenture Trustee receives
evidence to its satisfaction of the destruction, loss or theft of any Note, and
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(ii) there is delivered to the Indenture Trustee such security or indemnity as
may be required by it to hold the Issuer and the Indenture Trustee harmless,
then, in the absence of notice to the Issuer, the Note Registrar or the
Indenture Trustee that such Note has been acquired by a bona fide purchaser, the
Issuer shall execute and upon the Issuer's request the Indenture Trustee shall
authenticate and deliver, in exchange for or in lieu of any such mutilated,
destroyed, lost or stolen Note, a replacement Note of a like class and aggregate
principal amount; provided, however, that if any such destroyed, lost or stolen
Note, but not a mutilated Note, shall have become or within seven days shall be
due and payable, or shall have been called for redemption, instead of issuing a
replacement Note, the Issuer may make payment to the Holder of such destroyed,
lost or stolen Note when so due or payable or upon the Redemption Date, if
applicable, without surrender thereof.
(b) If, after the delivery of a replacement Note or payment in respect of a
destroyed, lost or stolen Note pursuant to subsection (a), a bona fide purchaser
of the original Note in lieu of which such replacement Note was issued presents
for payment such original Note, the Issuer and the Indenture Trustee shall be
entitled to recover such replacement Note (or such payment) from (i) any Person
to whom it was delivered, (ii) the Person taking such replacement Note from the
Person to whom such replacement Note was delivered; or (iii) any assignee of
such Person, except a bona fide purchaser, and the Issuer and the Indenture
Trustee shall be entitled to recover upon the security or indemnity provided
therefor to the extent of any loss, damage, cost or expense incurred by the
Issuer or the Indenture Trustee in connection therewith.
(c) In connection with the issuance of any replacement Note under this
Section 2.5, the Issuer may require the payment by the Holder of such Note of a
sum sufficient to cover any tax or other governmental charge that may be imposed
in relation thereto and any other reasonable expenses (including all fees and
expenses of the Indenture Trustee) connected therewith.
(d) Any duplicate Note issued pursuant to this Section 2.5 in replacement
for any mutilated, destroyed, lost or stolen Note shall constitute an original
additional contractual obligation of the Issuer, whether or not the mutilated,
destroyed, lost or stolen Note shall be found at any time or be enforced by any
Person, and shall be entitled to all the benefits of this Indenture equally and
proportionately with any and all other Notes duly issued hereunder.
(e) The provisions of this Section 2.5 are exclusive and shall preclude (to
the extent lawful) all other rights and remedies with respect to the replacement
or payment of mutilated, destroyed, lost or stolen Notes.
SECTION 2.6 Persons Deemed Noteholders. Prior to due presentment for
registration of transfer of any Note, the Issuer, the Indenture Trustee and any
agent of the Issuer or the Indenture Trustee may treat the Person in whose name
any Note is registered (as of the day of determination) as the Noteholder for
the purpose of receiving payments of principal of and interest on such Note and
for all other purposes whatsoever, whether or not such Note be overdue, and
neither the Issuer, the Indenture Trustee nor any agent of the Issuer or the
Indenture Trustee shall be affected by notice to the contrary.
SECTION 2.7 Payment of Principal and Interest.
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(a) Interest on each class of Notes shall accrue in the manner set forth in
Exhibit C-1, Exhibit C-2, or Exhibit C-3, as applicable for such class, at the
applicable Interest Rate for such class and will be due and payable on each
Distribution Date in accordance with the priorities set forth in Section 8.2(c).
Any instalment of interest payable on any Note shall be punctually paid or duly
provided for by a deposit by or at the direction of the Issuer into the Note
Distribution Account on the applicable Distribution Date and shall be paid to
the Person in whose name such Note (or one or more Predecessor Notes) is
registered on the applicable Record Date, by check mailed first-class, postage
prepaid to such Person's address as it appears on the Note Register on such
Record Date; provided, however, that, unless and until Definitive Notes have
been issued pursuant to Section 2.12, with respect to Notes registered on the
applicable Record Date in the name of the Note Depository (initially, Cede &
Co.), payment shall be made by wire transfer in immediately available funds to
the account designated by the Note Depository; provided, further, that with
respect to any Private Notes, upon written request of the Holder thereof,
payment shall be made by wire transfer of immediately available funds to the
account designated by such Holder until further written notice from such Holder.
(b) Prior to the occurrence of an Event of Default and a declaration in
accordance with Section 5.2(a) that the Notes have become immediately due and
payable, the principal of each class of Notes shall be payable in full on the
Final Scheduled Distribution Date for such class and, to the extent of funds
available therefor, in instalments on the Distribution Dates (if any) preceding
the Final Scheduled Distribution Date for such class, in the amounts and in
accordance with the priorities set forth in Section 8.2(c)(ii) or (iii), as
applicable. All principal payments on each class of Notes on any Distribution
Date shall be made pro rata to the Noteholders of such class entitled thereto.
Any instalment of principal payable on any Note shall be punctually paid or duly
provided for by a deposit by or at the direction of the Issuer into the Note
Distribution Account on the applicable Distribution Date and shall be paid to
the Person in whose name such Note (or one or more Predecessor Notes) is
registered on the applicable Record Date, by check mailed first-class, postage
prepaid to such Person's address as it appears on the Note Register on such
Record Date; provided, however, that, (A) unless and until Definitive Notes have
been issued pursuant to Section 2.12, with respect to Notes registered on the
Record Date in the name of the Note Depository, payment shall be made by wire
transfer in immediately available funds to the account designated by the Note
Depository and (B) with respect to any Private Notes, upon written request of
the Holder thereof, payment shall be made by wire transfer of immediately
available funds to the account designated by such Holder until further written
notice from such Holder, except for, in each case: (i) the final instalment of
principal on any Note; and (ii) the Redemption Price for the Notes redeemed
pursuant to Section 10.1, which, in each case, shall be payable as provided
herein. The funds represented by any such checks in respect of interest or
principal returned undelivered shall be held in accordance with Section 3.3.
(c) From and after the occurrence of an Event of Default and a declaration in
accordance with Section 5.2(a) that the Notes have become immediately due and
payable, until such time as all Events of Default have been cured or waived as
provided in Section 5.2(b), all principal payments shall be allocated pro rata
among the Holders of all of the Notes on the basis of the respective aggregate
unpaid principal balances of Notes held by such Holders.
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(d) With respect to any Distribution Date on which the final instalment of
principal and interest on a class of Notes is to be paid, the Indenture Trustee
shall notify each Noteholder of record of such class as of the Record Date for
such Distribution Date of the fact that the final instalment of principal of and
interest on such Note is to be paid on such Distribution Date. With respect to
any such class of Notes, such notice shall be sent (i) on such Record Date by
facsimile, if Book-Entry Notes are outstanding; or (ii) not later than three
Business Days after such Record Date in accordance with Section 11.5(a) if
Definitive Notes are outstanding, and shall specify that such final instalment
shall be payable only upon presentation and surrender of such Note and shall
specify the place where such Note may be presented and surrendered for payment
of such instalment and the manner in which such payment shall be made. Notices
in connection with redemptions of Notes shall be mailed to Noteholders as
provided in Section 10.2. Within sixty days of the surrender pursuant to this
Section 2.7(d) or cancellation pursuant to Section 2.8 of all of the Notes of a
particular class, the Indenture Trustee if requested shall provide each of the
Rating Agencies with written notice stating that all Notes of such class have
been surrendered or canceled.
SECTION 2.8 Cancellation of Notes. All Notes surrendered for payment,
redemption, exchange or registration of transfer shall, if surrendered to any
Person other than the Indenture Trustee, be delivered to the Indenture Trustee
and shall be promptly canceled by the Indenture Trustee. The Issuer may at any
time deliver to the Indenture Trustee for cancellation any Notes previously
authenticated and delivered hereunder which the Issuer may have acquired in any
manner whatsoever, and all Notes so delivered shall be promptly canceled by the
Indenture Trustee. No Notes shall be authenticated in lieu of or in exchange for
any Notes canceled as provided in this Section 2.8, except as expressly
permitted by this Indenture. All canceled Notes may be held or disposed of by
the Indenture Trustee in accordance with its standard retention or disposal
policy as in effect at the time unless the Issuer shall direct by an Issuer
Order that they be destroyed or returned to it; provided, however, that such
Issuer Order is timely and the Notes have not been previously disposed of by the
Indenture Trustee. The Indenture Trustee shall certify to the Issuer upon
request that surrendered Notes have been duly canceled and retained or
destroyed, as the case may be.
SECTION 2.9 Release of Collateral. The Indenture Trustee shall release
property from the lien of this Indenture other than as permitted by Sections
3.21, 8.2, 8.4 and 11.1, only upon receipt of an Issuer Request accompanied by
an Officer's Certificate, an Opinion of Counsel (to the extent required by the
TIA) and Independent Certificates in accordance with TIA ss.ss.314(c) and
314(d)(1).
SECTION 2.10 Book-Entry Notes. Subject to Section 2.15, the Notes, upon
original issuance, shall be issued in the form of a typewritten Note or Notes
representing the Book-Entry Notes, to be delivered to The Depository Trust
Company, as the initial Clearing Agency, or its custodian, by or on behalf of
the Issuer. Such Note or Notes shall be registered on the Note Register in the
name of the Note Depository, and no Note Owner shall receive a Definitive Note
representing such Note Owner's interest in such Note, except as provided in
Section 2.12. Unless and until the Definitive Notes have been issued to Note
Owners pursuant to Section 2.12:
(a) the provisions of this Section 2.10 shall be in full force and effect;
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(b) the Note Registrar and the Indenture Trustee shall be entitled to deal
with the Clearing Agency for all purposes of this Indenture (including the
payment of principal of and interest on such Notes and the giving of
instructions or directions hereunder) as the sole Holder of such Notes and shall
have no obligation to the Note Owners;
(c) to the extent that the provisions of this Section 2.10 conflict with
any other provisions of this Indenture, the provisions of this Section 2.10
shall control;
(d) the rights of the Note Owners shall be exercised only through the
Clearing Agency and shall be limited to those established by law and agreements
between such Note Owners and the Clearing Agency and/or the Clearing Agency
Participants. Unless and until Definitive Notes are issued pursuant to Section
2.12, the initial Clearing Agency shall make book-entry transfers between the
Clearing Agency Participants and receive and transmit payments of principal of
and interest on such Notes to such Clearing Agency Participants, pursuant to the
Note Depository Agreement; and
(e) whenever this Indenture requires or permits actions to be taken based
upon instructions or directions of Holders of Notes evidencing a specified
percentage of the Outstanding Amount of the Notes, the Clearing Agency shall be
deemed to represent such percentage only to the extent that it has (i) received
instructions to such effect from Note Owners and/or Clearing Agency Participants
owning or representing, respectively, such required percentage of the beneficial
interest in the Notes; and (ii) has delivered such instructions to the Indenture
Trustee.
SECTION 2.11 Notices to Clearing Agency. Whenever a notice or other
communication to the Noteholders is required under this Indenture, unless and
until Definitive Notes shall have been issued to Note Owners pursuant to Section
2.12, the Indenture Trustee shall give all such notices and communications
specified herein to be given to Noteholders to the Clearing Agency and shall
have no other obligation to the Note Owners.
SECTION 2.12 Definitive Notes. If (i) the Administrator advises the
Indenture Trustee in writing that the Clearing Agency is no longer willing or
able to properly discharge its responsibilities with respect to the Notes (other
than the Private Notes) and the Issuer is unable to locate a qualified
successor; (ii) the Administrator, at its option, advises the Indenture Trustee
in writing that it elects to terminate the book-entry system through the
Clearing Agency; or (iii) after the occurrence of an Event of Default or a
Servicer Default, Note Owners representing beneficial interests aggregating at
least a majority of the Outstanding Amount of such Notes advise the Clearing
Agency in writing that the continuation of a book-entry system through the
Clearing Agency is no longer in the best interests of the Note Owners, then the
Clearing Agency shall notify all Note Owners and the Indenture Trustee of the
occurrence of any such event and of the availability of Definitive Notes to Note
Owners requesting the same. Upon surrender to the Indenture Trustee of the
typewritten Note or Notes representing the Book-Entry Notes by the Clearing
Agency, accompanied by registration instructions, the Issuer shall execute and
the Indenture Trustee shall authenticate the Definitive Notes in accordance with
the instructions of the Clearing Agency. None of the Issuer, the Note Registrar
or the Indenture Trustee shall be liable for any delay in delivery of such
instructions and may conclusively rely on, and shall be protected in relying on,
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such instructions. Upon the issuance of Definitive Notes, the Indenture Trustee
shall recognize the Holders of the Definitive Notes as Noteholders.
SECTION 2.13 Seller as Noteholder. The Seller in its individual or any
other capacity may become the owner or pledgee of Notes of any class and may
otherwise deal with the Issuer or its affiliates with the same rights it would
have if it were not the Seller.
SECTION 2.14 Tax Treatment. The Seller and the Indenture Trustee, by
entering into this Indenture, and the Noteholders, by acquiring any Note or
interest therein, (i) express their intention that the Notes qualify under
applicable tax law as indebtedness secured by the Collateral, and (ii) unless
otherwise required by appropriate taxing authorities, agree to treat the Notes
as indebtedness secured by the Collateral for the purpose of federal income
taxes, state and local income and franchise taxes, Michigan single business tax,
and any other taxes imposed upon, measured by or based upon gross or net income.
SECTION 2.15 Special Terms Applicable to the Private Notes. None of the
Private Notes have been or will be registered under the Securities Act of 1933,
as amended (the "Securities Act"), or the securities laws of any other
jurisdiction. Consequently, the Private Notes are not transferable other than
pursuant to an exemption from the registration requirements of the Securities
Act and satisfaction of certain other provisions specified herein. The Class A-1
Notes or an interest in the Class A-1 Notes are being sold in a private
placement pursuant to Section 4(2) of the Securities Act on the date hereof.
Thereafter, no further sale, pledge or other transfer of any Private Note (or
interest therein) may be made by any person unless either (i) such sale, pledge
or other transfer is made to a "qualified institutional buyer" that executes a
certificate, in the form attached hereto as Exhibit D or otherwise in form and
substance satisfactory to the Indenture Trustee and the Seller, to the effect
that (A) it is a "qualified institutional buyer" as defined under Rule 144A
under the Securities Act, acting for its own account or the accounts of other
"qualified institutional buyers" as defined under Rule 144A under the Securities
Act, and (B) it is aware that the transferor of such Note intends to rely on the
exemption from the registration requirements of the Securities Act provided by
Rule 144A under the Securities Act, or (ii) such sale, pledge or other transfer
is otherwise made in a transaction exempt from the registration requirements of
the Securities Act, in which case (A) the Indenture Trustee shall require that
both the prospective transferor and the prospective transferee certify to the
Indenture Trustee and the Seller in writing the facts surrounding such transfer,
which certification shall be in form and substance satisfactory to the Indenture
Trustee and the Seller, and (B) the Indenture Trustee shall require a written
opinion of counsel (which will not be at the expense of the Seller, the Servicer
or the Indenture Trustee) satisfactory to the Seller and the Indenture Trustee
to the effect that such transfer will not violate the Securities Act. Neither
the Seller nor the Indenture Trustee will register any of the Private Notes
under the Securities Act, qualify any of the Private Notes under the securities
laws of any state or provide registration rights to any purchaser or holder
thereof.
(b) The Private Notes shall be issued in the form of Definitive Notes and
shall be in fully registered form. Sections 2.10, 2.11 and 2.12 of this
Indenture shall not apply to the Private Notes.
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(c) Each Private Note shall bear a legend to the effect set forth in
subsection (a) above.
ARTICLE III
COVENANTS
SECTION 3.1 Payment of Principal and Interest. The Issuer shall duly and
punctually pay the principal of and interest on the Notes in accordance with the
terms of the Notes and this Indenture. On each Distribution Date and on the
Redemption Date (if applicable), the Issuer shall cause amounts on deposit in
the Note Distribution Account to be distributed to the Noteholders in accordance
with Sections 2.7 and 8.2, less amounts properly withheld under the Code by any
Person from a payment to any Noteholder of interest and/or principal. Any
amounts so withheld shall be considered as having been paid by the Issuer to
such Noteholder for all purposes of this Indenture.
SECTION 3.2 Maintenance of Agency Office. As long as any of the Notes
remains outstanding, the Issuer shall maintain in the Borough of Manhattan, the
City of New York, an office (the "Agency Office"), being an office or agency
where Notes may be surrendered to the Issuer for registration of transfer or
exchange, and where notices and demands to or upon the Issuer in respect of the
Notes and this Indenture may be served. The Issuer hereby initially appoints the
Indenture Trustee to serve as its agent for the foregoing purposes. The Issuer
shall give prompt written notice to the Indenture Trustee of the location, and
of any change in the location, of the Agency Office. If at any time the Issuer
shall fail to maintain any such office or agency or shall fail to furnish the
Indenture Trustee with the address thereof, such surrenders, notices and demands
may be made or served at the Corporate Trust Office of the Indenture Trustee,
and the Issuer hereby appoints the Indenture Trustee as its agent to receive all
such surrenders, notices and demands.
SECTION 3.3 Money for Payments To Be Held in Trust.As provided in Section
8.2(a) and (b), all payments of amounts due and payable with respect to any
Notes that are to be made from amounts withdrawn from the Note Distribution
Account pursuant to Section 8.2(c) shall be made on behalf of the Issuer by the
Indenture Trustee or by another Paying Agent, and no amounts so withdrawn from
the Note Distribution Account for payments of Notes shall be paid over to the
Issuer except as provided in this Section 3.3.
(b) On or before each Distribution Date or the Redemption Date (if
applicable), the Issuer shall deposit or cause to be deposited in the Note
Distribution Account pursuant to Section 4.06 of the Trust Sale and Servicing
Agreement an aggregate sum sufficient to pay the amounts then becoming due with
respect to the Notes, such sum to be held in trust for the benefit of the
Persons entitled thereto.
(c) The Issuer shall cause each Paying Agent other than the Indenture
Trustee to execute and deliver to the Indenture Trustee an instrument in which
such Paying Agent shall agree with the Indenture Trustee (and if the Indenture
Trustee acts as Paying Agent, it hereby so agrees), subject to the provisions of
this Section 3.3, that such Paying Agent shall:
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(i) hold all sums held by it for the payment of amounts due with
respect to the Notes in trust for the benefit of the Persons entitled
thereto until such sums shall be paid to such Persons or otherwise disposed
of as herein provided and pay such sums to such Persons as herein provided;
(ii) give the Indenture Trustee notice of any default by the Issuer
(or any other obligor upon the Notes) of which it has actual knowledge in
the making of any payment required to be made with respect to the Notes;
(iii) at any time during the continuance of any such default, upon the
written request of the Indenture Trustee, forthwith pay to the Indenture
Trustee all sums so held in trust by such Paying Agent;
(iv) immediately resign as a Paying Agent and forthwith pay to the
Indenture Trustee all sums held by it in trust for the payment of Notes if
at any time it ceases to meet the standards required to be met by a Paying
Agent in effect at the time of determination; and
(v) comply with all requirements of the Code with respect to the
withholding from any payments made by it on any Notes of any applicable
withholding taxes imposed thereon and with respect to any applicable
reporting requirements in connection therewith.
(d) The Issuer may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, by Issuer
Order direct any Paying Agent to pay to the Indenture Trustee all sums held in
trust by such Paying Agent, such sums to be held by the Indenture Trustee upon
the same trusts as those upon which the sums were held by such Paying Agent; and
upon such payment by any Paying Agent to the Indenture Trustee, such Paying
Agent shall be released from all further liability with respect to such money.
(e) Subject to applicable laws with respect to escheat of funds, any money
held by the Indenture Trustee or any Paying Agent in trust for the payment of
any amount due with respect to any Note and remaining unclaimed for one year
after such amount has become due and payable shall be discharged from such trust
and be paid to the Issuer on Issuer Request; and the Holder of such Note shall
thereafter, as an unsecured general creditor, look only to the Issuer for
payment thereof (but only to the extent of the amounts so paid to the Issuer),
and all liability of the Indenture Trustee or such Paying Agent with respect to
such trust money shall thereupon cease; provided, however, that the Indenture
Trustee or such Paying Agent, before being required to make any such payment,
may at the expense of the Issuer cause to be published once, in a newspaper
published in the English language, customarily published on each Business Day
and of general circulation in the City of New York, notice that such money
remains unclaimed and that, after a date specified therein, which shall not be
less than 30 days from the date of such publication, any unclaimed balance of
such money then remaining shall be paid to the Issuer. The Indenture Trustee may
also adopt and employ, at the expense of the Issuer, any other reasonable means
of notification of such payment (including, but not limited to, mailing notice
of such payment to Holders whose Notes have been called but have not been
surrendered for redemption or whose right to or interest in monies due and
payable but not claimed is determinable from the records of the Indenture
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Trustee or of any Paying Agent, at the last address of record for each such
Holder).
SECTION 3.4 Existence. The Issuer shall keep in full effect its existence,
rights and franchises as a business trust under the laws of the State of
Delaware (unless it becomes, or any successor Issuer hereunder is or becomes,
organized under the laws of any other State or of the United States of America,
in which case the Issuer shall keep in full effect its existence, rights and
franchises under the laws of such other jurisdiction) and shall obtain and
preserve its qualification to do business in each jurisdiction in which such
qualification is or shall be necessary to protect the validity and
enforceability of this Indenture, the Notes, the Collateral and each other
instrument or agreement included in the Trust Estate.
SECTION 3.5 Protection of Trust Estate; Acknowledgment of Pledge.The Issuer
shall from time to time execute and deliver all such supplements and amendments
hereto and authorize or execute, as applicable, and deliver all such financing
statements, continuation statements, instruments of further assurance and other
instruments, and shall take such other action necessary or advisable to:
(i) maintain or preserve the lien and security interest (and the
priority thereof) of this Indenture or carry out more effectively the
purposes hereof, including by making the necessary filings of financing
statements or amendments thereto within sixty days after the occurrence of
any of the following and by promptly notifying the Indenture Trustee of any
such filings: (A) any change in the Issuer's true legal name or any of its
trade names, (B) any change in the location of the Issuer's principal place
of business, (C) any merger or consolidation or other change in the
Issuer's identity or organizational structure or jurisdiction of
organization or in which the Issuer is located for purposes of the UCC and
(D) any other change or occurrence that would make any financing statement
or amendment thereto seriously misleading within the meaning of the UCC.
(ii) perfect, publish notice of or protect the validity of any Grant
made or to be made by this Indenture;
(iii) enforce the rights of the Indenture Trustee and the Noteholders
in any of the Collateral; or
(iv) preserve and defend title to the Trust Estate and the rights of
the Indenture Trustee and the Secured Parties in such Trust Estate against
the claims of all persons and parties,
and the Issuer hereby designates the Indenture Trustee its agent and
attorney-in-fact to authorize and/or execute any financing statement,
continuation statement or other instrument required by the Indenture Trustee
pursuant to this Section 3.5.
(b) The Indenture Trustee acknowledges the pledge by the Seller to the
Indenture Trustee pursuant to Section 4.07(c) of the Trust Sale and Servicing
Agreement of (i) all of the Seller's right, title and interest in and to the
Reserve Account Property in order to provide for the payment to the Financial
Parties and the Servicer in accordance with Sections 4.06(c) and (d) of the
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Trust Sale and Servicing Agreement, to assure availability of the amounts
maintained in the Reserve Account for the benefit of the Financial Parties and
the Servicer and as security for the performance by the Seller of its
obligations under the Trust Sale and Servicing Agreement.
(c) The Issuer hereby authorizes the Indenture Trustee to file all
financing statements naming the Issuer as debtor that are necessary or advisable
to perfect, make effective or continue the lien and security interest of this
Indenture, and authorizes the Indenture Trustee to take any such action without
its signature.
SECTION 3.6 Opinions as to Trust Estate.On the Closing Date, the Issuer
shall furnish to the Indenture Trustee an Opinion of Counsel either stating
that, in the opinion of such counsel, such action has been taken with respect to
the recording and filing of this Indenture, any indentures supplemental hereto
and any other requisite documents, and with respect to the authorization,
execution and filing of any financing statements and continuation statements as
are necessary to perfect and make effective the lien and security interest of
this Indenture and reciting the details of such action, or stating that, in the
opinion of such counsel, no such action is necessary to make such lien and
security interest effective.
(b) On or before August 15 in each calendar year, beginning August 15,
2003, the Issuer shall furnish to the Indenture Trustee an Opinion of Counsel
either stating that, in the opinion of such counsel, such action has been taken
with respect to the recording, filing, re-recording and refiling of this
Indenture, any indentures supplemental hereto and any other requisite documents
and with respect to the authorization, execution and filing of any financing
statements and continuation statements as is necessary to maintain the lien and
security interest created by this Indenture and reciting the details of such
action or stating that in the opinion of such counsel no such action is
necessary to maintain the lien and security interest created by this Indenture.
Such Opinion of Counsel shall also describe the recording, filing, re-recording
and refiling of this Indenture, any indentures supplemental hereto and any other
requisite documents and the authorization, execution and filing of any financing
statements and continuation statements that will, in the opinion of such
counsel, be required to maintain the lien and security interest of this
Indenture until August 15 in the following calendar year.
SECTION 3.7 Performance of Obligations; Servicing of Receivables.The Issuer
shall not take any action and shall use its reasonable efforts not to permit any
action to be taken by others that would release any Person from any of such
Person's material covenants or obligations under any instrument or agreement
included in the Trust Estate or that would result in the amendment,
hypothecation, subordination, termination or discharge of, or impair the
validity or effectiveness of, any such instrument or agreement, except as
otherwise expressly provided in this Indenture, the Trust Sale and Servicing
Agreement, the Pooling and Servicing Agreement, the Administration Agreement or
such other instrument or agreement.
(b) The Issuer may contract with other Persons to assist it in performing
its duties under this Indenture, and any performance of such duties by a Person
identified to the Indenture Trustee in the Basic Documents or an Officer's
Certificate of the Issuer shall be deemed to be action taken by the Issuer.
Initially, the Issuer has contracted with the Servicer and the Administrator to
assist the Issuer in performing its duties under this Indenture.
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(c) The Issuer shall punctually perform and observe all of its obligations
and agreements contained in this Indenture, the Basic Documents and in the
instruments and agreements included in the Trust Estate, including but not
limited to filing or causing to be filed all UCC financing statements and
continuation statements required to be filed by the terms of this Indenture, the
Trust Sale and Servicing Agreement and the Pooling and Servicing Agreement in
accordance with and within the time periods provided for herein and therein.
(d) If the Issuer shall have knowledge of the occurrence of a Servicer
Default under the Trust Sale and Servicing Agreement, the Issuer shall promptly
notify the Indenture Trustee and the Rating Agencies thereof, and shall specify
in such notice the response or action, if any, the Issuer has taken or is taking
with respect of such default. If a Servicer Default shall arise from the failure
of the Servicer to perform any of its duties or obligations under the Trust Sale
and Servicing Agreement or the Pooling and Servicing Agreement with respect to
the Receivables, the Issuer and the Indenture Trustee shall take all reasonable
steps available to them pursuant to the Trust Sale and Servicing Agreement and
the Pooling and Servicing Agreement to remedy such failure.
(e) Without derogating from the absolute nature of the assignment granted
to the Indenture Trustee under this Indenture or the rights of the Indenture
Trustee hereunder, the Issuer agrees that it shall not, without the prior
written consent of the Indenture Trustee or the Holders of at least a majority
in Outstanding Amount of the Notes, as applicable in accordance with the terms
of this Indenture, amend, modify, waive, supplement, terminate or surrender, or
agree to any amendment, modification, supplement, termination, waiver or
surrender of, the terms of any Collateral or any of the Basic Documents, or
waive timely performance or observance by the Servicer or the Seller under the
Trust Sale and Servicing Agreement or the Pooling and Servicing Agreement, the
Administrator under the Administration Agreement or GMAC under the Pooling and
Servicing Agreement.
SECTION 3.8 Negative Covenants. So long as any Notes are Outstanding, the
Issuer shall not:
(a) sell, transfer, exchange or otherwise dispose of any of the properties
or assets of the Issuer, except the Issuer may (i) collect, liquidate, sell or
otherwise dispose of Receivables (including Warranty Receivables, Administrative
Receivables and Liquidating Receivables), (ii) make cash payments out of the
Designated Accounts, Payment Ahead Servicing Account and the Certificate
Distribution Account and (iii) take other actions, in each case as contemplated
by the Basic Documents;
(b) claim any credit on, or make any deduction from the principal or
interest payable in respect of the Notes (other than amounts properly withheld
from such payments under the Code or applicable state law) or assert any claim
against any present or former Noteholder by reason of the payment of the taxes
levied or assessed upon any part of the Trust Estate;
(c) voluntarily commence any insolvency, readjustment of debt, marshaling
of assets and liabilities or other proceeding, or apply for an order by a court
or agency or supervisory authority for the winding-up or liquidation of its
affairs or any other event specified in Section 5.1(f); or
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(d) either (i) permit the validity or effectiveness of this Indenture to be
impaired, or permit the lien of this Indenture to be amended, hypothecated,
subordinated, terminated or discharged, or permit any Person to be released from
any covenants or obligations with respect to the Notes under this Indenture
except as may be expressly permitted hereby, (ii) permit any lien, charge,
excise, claim, security interest, mortgage or other encumbrance (other than the
lien of this Indenture) to be created on or extend to or otherwise arise upon or
burden the Trust Estate or any part thereof or any interest therein or the
proceeds thereof (other than tax liens, mechanics' liens and other liens that
arise by operation of law, in each case on a Financed Vehicle and arising solely
as a result of an action or omission of the related Obligor), or (iii) permit
the lien of this Indenture not to constitute a valid first priority security
interest in the Trust Estate (other than with respect to any such tax,
mechanics' or other lien).
SECTION 3.9 Annual Statement as to Compliance. The Issuer shall deliver to
the Indenture Trustee on or before August 15 of each year, beginning August 15,
2003, an Officer's Certificate signed by an Authorized Officer, dated as of June
30 of such year, stating that:
(a) a review of the activities of the Issuer during the preceding 12-month
period (or, with respect to the first such Officer's Certificate, such period as
shall have elapsed since the Closing Date) and of performance under this
Indenture has been made under such Authorized Officer's supervision; and
(b) to the best of such Authorized Officer's knowledge, based on such
review, the Issuer has fulfilled all of its obligations under this Indenture
throughout such period, or, if there has been a default in the fulfillment of
any such obligation, specifying each such default known to such Authorized
Officer and the nature and status thereof. A copy of such certificate may be
obtained by any Noteholder by a request in writing to the Issuer addressed to
the Corporate Trust Office of the Indenture Trustee.
SECTION 3.10 Consolidation, Merger, etc., of Issuer; Disposition of Trust
Assets.The Issuer shall not consolidate or merge with or into any other Person,
unless:
(i) the Person (if other than the Issuer) formed by or surviving such
consolidation or merger shall be a Person organized and existing under the
laws of the United States of America, or any State and shall expressly
assume, by an indenture supplemental hereto, executed and delivered to the
Indenture Trustee, in form satisfactory to the Indenture Trustee, the due
and timely payment of the principal of and interest on all Notes and the
performance or observance of every agreement and covenant of this Indenture
on the part of the Issuer to be performed or observed, all as provided
herein;
(ii) immediately after giving effect to such merger or consolidation,
no Default or Event of Default shall have occurred and be continuing;
(iii) the Rating Agency Condition shall have been satisfied with
respect to such transaction and such Person;
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(iv) any action as is necessary to maintain the lien and security
interest created by this Indenture shall have been taken; and
(v) the Issuer shall have delivered to the Indenture Trustee an
Officer's Certificate and an Opinion of Counsel addressed to the Issuer,
each stating:
(A) that such consolidation or merger and such supplemental
indenture comply with this Section 3.10;
(B) that such consolidation or merger and such supplemental
indenture shall have no material adverse tax consequence to the Issuer
or any Financial Party; and
(C) that all conditions precedent herein provided for in this
Section 3.10 have been complied with, which shall include any filing
required by the Exchange Act.
(b) Except as otherwise expressly permitted by this Indenture or the other
Basic Documents, the Issuer shall not sell, convey, exchange, transfer or
otherwise dispose of any of its properties or assets, including those included
in the Trust Estate, to any Person, unless:
(i) the Person that acquires such properties or assets of the Issuer (1)
shall be a United States citizen or a Person organized and existing under the
laws of the United States of America or any State and (2) by an indenture
supplemental hereto, executed and delivered to the Indenture Trustee, in form
satisfactory to the Indenture Trustee:
(A) expressly assumes the due and punctual payment of the principal of
and interest on all Notes and the performance or observance of every
agreement and covenant of this Indenture on the part of the Issuer to be
performed or observed, all as provided herein;
(B) expressly agrees that all right, title and interest so sold,
conveyed, exchanged, transferred or otherwise disposed of shall be subject
and subordinate to the rights of the Secured Parties;
(C) unless otherwise provided in such supplemental indenture,
expressly agrees to indemnify, defend and hold harmless the Issuer against
and from any loss, liability or expense arising under or related to this
Indenture and the Notes; and
(D) expressly agrees that such Person (or if a group of Persons, then
one specified Person) shall make all filings with the Commission (and any
other appropriate Person) required by the Exchange Act in connection with
the Notes;
(ii) immediately after giving effect to such transaction, no Default or
Event of Default shall have occurred and be continuing;
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(iii) the Rating Agency Condition shall have been satisfied with respect to
such transaction and such Person;
(iv) any action as is necessary to maintain the lien and security interest
created by this Indenture shall have been taken; and
(v) the Issuer shall have delivered to the Indenture Trustee an Officer's
Certificate and an Opinion of Counsel addressed to the Issuer, each stating
that:
(A) such sale, conveyance, exchange, transfer or disposition and such
supplemental indenture comply with this Section 3.10;
(B) such sale, conveyance, exchange, transfer or disposition and such
supplemental indenture have no material adverse tax consequence to the
Trust or to any Financial Parties; and
(C) that all conditions precedent herein provided for in this Section
3.10 have been complied with, which shall include any filing required by
the Exchange Act.
SECTION 3.11 Successor or Transferee.Upon any consolidation or merger of
the Issuer in accordance with Section 3.10(a), the Person formed by or surviving
such consolidation or merger (if other than the Issuer) shall succeed to, and be
substituted for, and may exercise every right and power of, the Issuer under
this Indenture with the same effect as if such Person had been named as the
Issuer herein.
(b) Upon a conveyance or transfer of substantially all the assets and
properties of the Issuer pursuant to Section 3.10(b), the Issuer shall be
released from every covenant and agreement of this Indenture to be observed or
performed on the part of the Issuer with respect to the Notes immediately upon
the delivery of written notice to the Indenture Trustee from the Person
acquiring such assets and properties stating that the Issuer is to be so
released.
SECTION 3.12 No Other Business. The Issuer shall not engage in any business
or activity other than acquiring, holding and managing the Collateral and the
proceeds therefrom in the manner contemplated by the Basic Documents, issuing
the Notes and the Certificates, making payments on the Notes and the
Certificates and such other activities that are necessary, suitable or
convenient to accomplish the foregoing or are incidental thereto, as set forth
in Section 2.3 of the Trust Agreement.
SECTION 3.13 No Borrowing. The Issuer shall not issue, incur, assume,
guarantee or otherwise become liable, directly or indirectly, for any
indebtedness for money borrowed other than indebtedness for money borrowed in
respect of the Notes or otherwise in accordance with the Basic Documents.
SECTION 3.14 Guarantees, Loans, Advances and Other Liabilities. Except as
contemplated by this Indenture or the other Basic Documents, the Issuer shall
not make any loan or advance or credit to, or guarantee (directly or indirectly
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or by an instrument having the effect of assuring another's payment or
performance on any obligation or capability of so doing or otherwise), endorse
or otherwise become contingently liable, directly or indirectly, in connection
with the obligations, stocks or dividends of, or own, purchase, repurchase or
acquire (or agree contingently to do so) any stock, obligations, assets or
securities of, or any other interest in, or make any capital contribution to,
any other Person.
SECTION 3.15 Servicer's Obligations. The Issuer shall use its best efforts
to cause the Servicer to comply with its obligations under Section 3.10 of the
Pooling and Servicing Agreement and Sections 4.01 and 4.02 of the Trust Sale and
Servicing Agreement.
SECTION 3.16 Capital Expenditures. The Issuer shall not make any
expenditure (whether by long-term or operating lease or otherwise) for capital
assets (either real, personal or intangible property) other than the purchase of
the Receivables and other property and rights from the Seller pursuant to the
Trust Sale and Servicing Agreement.
SECTION 3.17 Removal of Administrator. So long as any Notes are
Outstanding, the Issuer shall not remove the Administrator without cause unless
the Rating Agency Condition shall have been satisfied in connection with such
removal.
SECTION 3.18 Restricted Payments. Except for payments of principal or
interest on or redemption of the Notes, so long as any Notes are Outstanding,
the Issuer shall not, directly or indirectly:
(a) pay any dividend or make any distribution (by reduction of capital or
otherwise), whether in cash, property, securities or a combination thereof, to
the Owner Trustee or any owner of a beneficial interest in the Issuer or
otherwise, in each case with respect to any ownership or equity interest or
similar security in or of the Issuer or to the Servicer;
(b) redeem, purchase, retire or otherwise acquire for value any such
ownership or equity interest or similar security; or
(c) set aside or otherwise segregate any amounts for any such purpose;
provided, however, that the Issuer may make, or cause to be made, distributions
to the Servicer, the Seller, the Indenture Trustee, the Owner Trustee, and the
Financial Parties as permitted by, and to the extent funds are available for
such purpose under, the Trust Sale and Servicing Agreement, the Trust Agreement
or the other Basic Documents. The Issuer shall not, directly or indirectly, make
payments to or distributions from the Collection Account except in accordance
with the Basic Documents.
SECTION 3.19 Notice of Events of Default. The Issuer agrees to give the
Indenture Trustee and the Rating Agencies prompt written notice of each Event of
Default hereunder, each Servicer Default, each default on the part of the Seller
of its obligations under the Trust Sale and Servicing Agreement and each default
on the part of GMAC of its obligations under the Pooling and Servicing
Agreement.
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SECTION 3.20 Further Instruments and Acts. Upon request of the Indenture
Trustee, the Issuer shall execute and deliver such further instruments and do
such further acts as may be reasonably necessary or proper to carry out more
effectively the purpose of this Indenture.
SECTION 3.21 Indenture Trustee's Assignment of Administrative Receivables
and Warranty Receivables. Upon receipt of the Administrative Purchase Payment or
the Warranty Payment with respect to an Administrative Receivable or a Warranty
Receivable, as the case may be, the Indenture Trustee shall assign, without
recourse, representation or warranty, to the Servicer or the Warranty Purchaser,
as the case may be, all the Indenture Trustee's right, title and interest in and
to such repurchased Receivable, all monies due thereon, the security interest in
the related Financed Vehicle, proceeds from any Insurance Policies, proceeds
from recourse against the Dealer on such Receivable and the interests of the
Indenture Trustee in certain rebates of premiums and other amounts relating to
the Insurance Policies and any documents relating thereto, such assignment being
an assignment outright and not for security; and the Servicer or the Warranty
Purchaser, as applicable, shall thereupon own such Receivable, and all such
security and documents, free of any further obligation to the Indenture Trustee,
the Noteholders or the Certificateholders with respect thereto. If in any
enforcement suit or legal proceeding it is held that the Servicer may not
enforce a Receivable on the ground that it is not a real party in interest or a
holder entitled to enforce the Receivable, the Indenture Trustee shall, at the
Servicer's expense, take such steps as the Servicer deems necessary to enforce
the Receivable, including bringing suit in the Indenture Trustee's name or the
names of the Noteholders or the Certificateholders.
SECTION 3.22 Representations and Warranties by the Issuer to the Indenture
Trustee. The Issuer hereby represents and warrants to the Indenture Trustee as
follows:
(a) Good Title. No Receivable has been sold, transferred, assigned or
pledged by the Issuer to any Person other than the Indenture Trustee;
immediately prior to the conveyance of the Receivables pursuant to this
Indenture, the Issuer had good and marketable title thereto, free of any Lien;
and, upon execution and delivery of this Indenture by the Issuer, the Indenture
Trustee shall have all of the right, title and interest of the Issuer in, to and
under the Receivables, the unpaid indebtedness evidenced thereby and the
collateral security therefor, free of any Lien; and
(b) All Filings Made. All filings (including, without limitation, UCC
filings) necessary in any jurisdiction to give the Indenture Trustee a first
perfected security interest in the Receivables shall have been made.
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ARTICLE IV
SATISFACTION AND DISCHARGESatisfaction and Discharge of Indenture. This
Indenture shall cease to be of further effect with respect to the Notes except
as to: (i) rights of registration of transfer and exchange; (ii) substitution of
mutilated, destroyed, lost or stolen Notes; (iii) rights of Noteholders to
receive payments of principal thereof and interest thereon; (iv) Sections 3.3,
3.4, 3.5, 3.8, 3.10, 3.12, 3.13, 3.19 and 3.21; (v) the rights, obligations and
immunities of the Indenture Trustee hereunder (including the rights of the
Indenture Trustee under Section 6.7 and the obligations of the Indenture Trustee
under Sections 4.2 and 4.4); and (vi) the rights of Noteholders as beneficiaries
hereof with respect to the property so deposited with the Indenture Trustee
payable to all or any of them, and the Indenture Trustee, on demand of and at
the expense of the Issuer, shall execute proper instruments acknowledging
satisfaction and discharge of this Indenture with respect to the Notes, if:
(a) either:
(i) all Notes theretofore authenticated and delivered (other than (A)
Notes that have been destroyed, lost or stolen and that have been replaced
or paid as provided in Section 2.5 and (B) Notes for whose payment money
has theretofore been deposited in trust or segregated and held in trust by
the Issuer and thereafter repaid to the Issuer or discharged from such
trust, as provided in Section 3.3) have been delivered to the Indenture
Trustee for cancellation; or
(ii) all Notes not theretofore delivered to the Indenture Trustee for
cancellation:
(A) have become due and payable,
(B) will be due and payable on their respective Final Scheduled
Distribution Dates within one year, or
(C) are to be called for redemption within one year under
arrangements satisfactory to the Indenture Trustee for the giving of
notice of redemption by the Indenture Trustee in the name, and at the
expense, of the Issuer,
and the Issuer, in the case of (A), (B) or (C) of subsection 4.1(a)(ii) above,
has irrevocably deposited or caused to be irrevocably deposited with the
Indenture Trustee cash or direct obligations of or obligations guaranteed by the
United States of America (which will mature prior to the date such amounts are
payable), in trust for such purpose, in an amount sufficient to pay and
discharge the entire unpaid principal and accrued interest on such Notes not
theretofore delivered to the Indenture Trustee for cancellation when due on the
Final Scheduled Distribution Date for such Notes or the Redemption Date for such
Notes (if such Notes have been called for redemption pursuant to Section 10.1),
as the case may be;
(b) the Issuer has paid or caused to be paid all other sums payable
hereunder or under any Third Party Instrument by the Issuer; and
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(c) the Issuer has delivered to the Indenture Trustee an Officer's
Certificate of the Issuer, an Opinion of Counsel and (if required by the TIA or
the Indenture Trustee) an Independent Certificate from a firm of certified
public accountants, each meeting the applicable requirements of Section 11.1(a)
and each stating that all conditions precedent herein provided for relating to
the satisfaction and discharge of this Indenture have been complied with.
SECTION 4.2 Application of Trust Money. All monies deposited with the
Indenture Trustee pursuant to Section 4.1 shall be held in trust and applied by
it, in accordance with the provisions of the Notes and this Indenture, to the
payment, either directly or through any Paying Agent, as the Indenture Trustee
may determine, to the Holders of the particular Notes for the payment or
redemption of which such monies have been deposited with the Indenture Trustee,
of all sums due and to become due thereon for principal and interest and to
payment of any other Secured Party or any holder of any Third Party Instrument
of all sums, if any, due or to become due to any other Secured Party or any
holder of any Third Party Instrument under and in accordance with this
Indenture; but such monies need not be segregated from other funds except to the
extent required herein, in the Trust Sale and Servicing Agreement, or as
required by law.
SECTION 4.3 Repayment of Monies Held by Paying Agent. In connection with
the satisfaction and discharge of this Indenture with respect to the Notes, all
monies then held by any Paying Agent other than the Indenture Trustee under the
provisions of this Indenture with respect to such Notes shall, upon demand of
the Issuer, be paid to the Indenture Trustee to be held and applied according to
Section 3.3 and thereupon such Paying Agent shall be released from all further
liability with respect to such monies.
SECTION 4.4 Duration of Position of Indenture Trustee. Notwithstanding the
earlier payment in full of all principal and interest due to the Noteholders
under the terms of the Notes and the cancellation of the Notes pursuant to
Section 3.1, the Indenture Trustee shall continue to act in the capacity as
Indenture Trustee hereunder and, for the benefit of the Certificateholders,
shall comply with its obligations under Sections 5.01(a), 7.02 and 7.03 of the
Trust Sale and Servicing Agreement, as appropriate, until such time as all
payments in respect of Certificate Balance and interest due to the
Certificateholders have been paid in full.
ARTICLE V
DEFAULT AND REMEDIESEvents of Default. For the purposes of this Indenture,
"Event of Default" wherever used herein, means any one of the following events:
(a) failure to pay the full Noteholders' Interest Distributable Amount on
any class of Notes on any Distribution Date, and such default shall continue for
a period of five (5) days; or
(b) except as set forth in Section 5.1(c), failure to pay any instalment of
the principal of any Note as and when the same becomes due and payable, and such
default continues unremedied for a period of thirty (30) days after there shall
have been given, by registered or certified mail, to the Servicer by the
Indenture Trustee or to the Servicer and the Indenture Trustee by the Holders of
not less than 25% of the Outstanding Amount of the Notes, a written notice
specifying such default and demanding that it be remedied and stating that such
notice is a "Notice of Default" hereunder; or
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(c) failure to pay in full the outstanding principal balance of any class
of Notes by the Final Scheduled Distribution Date for such class; or
(d) default in the observance or performance in any material respect of any
covenant or agreement of the Issuer made in this Indenture (other than a
covenant or agreement, a default in the observance or performance of which is
elsewhere in this specifically dealt with in this Section 5.1) which failure
materially and adversely affects the rights of the Noteholders, and such default
shall continue or not be cured, for a period of 30 days after there shall have
been given, by registered or certified mail, to the Issuer and the Seller (or
the Servicer, as applicable) by the Indenture Trustee or to the Issuer and the
Seller (or the Servicer, as applicable) and the Indenture Trustee by the Holders
of at least 25% of the Outstanding Amount of the Notes, a written notice
specifying such default, demanding that it be remedied and stating that such
notice is a "Notice of Default" hereunder; or
(e) the filing of a decree or order for relief by a court having
jurisdiction in the premises in respect of the Issuer or any substantial part of
the Trust Estate in an involuntary case under any applicable federal or state
bankruptcy, insolvency or other similar law now or hereafter in effect, or
appointing a receiver, liquidator, assignee, custodian, trustee, sequestrator or
similar official of the Issuer or for any substantial part of the Trust Estate,
or ordering the winding-up or liquidation of the Issuer's affairs, and such
decree or order shall remain unstayed and in effect for a period of 90
consecutive days; or
(f) the commencement by the Issuer of a voluntary case under any applicable
federal or state bankruptcy, insolvency or other similar law now or hereafter in
effect, or the consent by the Issuer to the entry of an order for relief in an
involuntary case under any such law, or the consent by the Issuer to the
appointment or taking possession by a receiver, liquidator, assignee, custodian,
trustee, sequestrator or similar official of the Issuer or for any substantial
part of the Trust Estate, or the making by the Issuer of any general assignment
for the benefit of creditors, or the failure by the Issuer generally to pay its
debts as such debts become due, or the taking of action by the Issuer in
furtherance of any of the foregoing.
The Issuer shall deliver to the Indenture Trustee within five Business Days
after learning of the occurrence thereof, written notice in the form of an
Officer's Certificate of any event which with the giving of notice and the lapse
of time would become an Event of Default under Section 5.1(d), its status and
what action the Issuer is taking or proposes to take with respect thereto.
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SECTION 5.2 Acceleration of Maturity; Rescission and Annulment.If an Event
of Default should occur and be continuing, then and in every such case, unless
the principal amount of the Notes shall have already become due and payable,
either the Indenture Trustee or the Holders of Notes representing not less than
a majority of the Outstanding Amount of the Notes may declare all the Notes to
be immediately due and payable, by a notice in writing to the Issuer (and to the
Indenture Trustee if given by the Noteholders) setting forth the Event or Events
of Default, and upon any such declaration the unpaid principal amount of such
Notes, together with accrued and unpaid interest thereon through the date of
acceleration, shall become immediately due and payable.
(b) At any time after such declaration of acceleration of maturity of the
Notes has been made and before a judgment or decree for payment of the money due
thereunder has been obtained by the Indenture Trustee as hereinafter provided in
this Article V, the Holders of Notes representing a majority of the Outstanding
Amount of the Notes, by written notice to the Issuer and the Indenture Trustee,
may waive all Defaults set forth in the notice delivered pursuant to Section
5.2(a), and rescind and annul such declaration and its consequences; provided,
that no such rescission and annulment shall extend to or affect any other
Default or impair any right consequent thereto; and provided further, that if
the Indenture Trustee shall have proceeded to enforce any right under this
Indenture and such Proceedings shall have been discontinued or abandoned because
of such rescission and annulment or for any other reason, or such Proceedings
shall have been determined adversely to the Indenture Trustee, then and in every
such case, the Indenture Trustee, the Issuer and the Noteholders, as the case
may be, shall be restored respectively to their former positions and rights
hereunder, and all rights, remedies and powers of the Indenture Trustee, the
Issuer and the Noteholders, as the case may be, shall continue as though no such
Proceedings had been commenced.
SECTION 5.3 Collection of Indebtedness and Suits for Enforcement by
Indenture Trustee.The Issuer covenants that if an Event of Default occurs and
such Event of Default has not been waived pursuant to Section 5.12, the Issuer
shall, upon demand of the Indenture Trustee, pay to the Indenture Trustee, for
the ratable benefit of the Noteholders in accordance with their respective
outstanding principal amounts, the whole amount then due and payable on such
Notes for principal and interest, with interest upon the overdue principal, at
the rate borne by the Notes and in addition thereto such further amount as shall
be sufficient to cover the costs and expenses of collection, including the
reasonable compensation, expenses, disbursements and advances of the Indenture
Trustee and its agents and counsel.
(b) If the Issuer shall fail forthwith to pay such amounts upon such
demand, the Indenture Trustee, in its own name and as trustee of an express
trust, may institute a Proceeding for the collection of the sums so due and
unpaid, and may prosecute such Proceeding to judgment or final decree, and may
enforce the same against the Issuer or other obligor upon such Notes and collect
in the manner provided by law out of the property of the Issuer or other obligor
upon such Notes, wherever situated, the monies adjudged or decreed to be
payable.
(c) If an Event of Default occurs and is continuing, the Indenture Trustee may,
as more particularly provided in Section 5.4, in its discretion, proceed to
protect and enforce its rights and the rights of the Noteholders, by such
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appropriate Proceedings as the Indenture Trustee shall deem most effective to
protect and enforce any such rights, whether for the specific enforcement of any
covenant or agreement in this Indenture or in aid of the exercise of any power
granted herein, or to enforce any other proper remedy or legal or equitable
right vested in the Indenture Trustee by this Indenture or by applicable law.
(d) If there shall be pending, relative to the Issuer or any other obligor
upon the Notes or any Person having or claiming an ownership interest in the
Trust Estate, Proceedings under Title 11 of the United States Code or any other
applicable federal or state bankruptcy, insolvency or other similar law, or if a
receiver, assignee or trustee in bankruptcy or reorganization, liquidator,
sequestrator or similar official shall have been appointed for or taken
possession of the Issuer or its property or such other obligor or Person, or in
case of any other comparable judicial Proceedings relative to the Issuer or
other obligor upon the Notes, or to the creditors or property of the Issuer or
such other obligor, the Indenture Trustee, irrespective of whether the principal
of any Notes shall then be due and payable as therein expressed or by
declaration or otherwise and irrespective of whether the Indenture Trustee shall
have made any demand pursuant to the provisions of this Section 5.3, shall be
entitled and empowered, by intervention in such Proceedings or otherwise:
(i) to file and prove a claim or claims for the whole amount of
principal and interest owing and unpaid in respect of the Notes and to file
such other papers or documents as may be necessary or advisable in order to
have the claims of the Indenture Trustee (including any claim for
reasonable compensation to the Indenture Trustee and each predecessor
trustee, and their respective agents, attorneys and counsel, and for
reimbursement of all expenses and liabilities incurred, and all advances
made, by the Indenture Trustee and each predecessor trustee, except as a
result of negligence or bad faith) and of the Noteholders allowed in such
Proceedings;
(ii) unless prohibited by applicable law and regulations, to vote on
behalf of the Holders of Notes in any election of a trustee, a standby
trustee or Person performing similar functions in any such Proceedings;
(iii) to collect and receive any monies or other property payable or
deliverable on any such claims and to distribute all amounts received with
respect to the claims of the Noteholders and of the Indenture Trustee on
their behalf; and
(iv) to file such proofs of claim and other papers or documents as may
be necessary or advisable in order to have the claims of the Indenture
Trustee or the Holders of Notes allowed in any judicial proceedings
relative to the Issuer, its creditors and its property;
and any trustee, receiver, liquidator, custodian or other similar official in
any such Proceeding is hereby authorized by each of such Noteholders to make
payments to the Indenture Trustee for application in accordance with the
priorities set forth in the Basic Documents, and, if the Indenture Trustee shall
consent to the making of payments directly to such Noteholders, to pay to the
Indenture Trustee such amounts as shall be sufficient to cover reasonable
compensation to the Indenture Trustee, each predecessor trustee and their
respective agents, attorneys and counsel, and all other expenses and liabilities
incurred, and all advances made, by the Indenture Trustee and each predecessor
trustee except as a result of negligence or bad faith.
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(e) Nothing herein contained shall be deemed to authorize the Indenture
Trustee to authorize or consent to or vote for or accept or adopt on behalf of
any Noteholder any plan of reorganization, arrangement, adjustment or
composition affecting the Notes or the rights of any Holder thereof or to
authorize the Indenture Trustee to vote in respect of the claim of any
Noteholder in any such proceeding except, as aforesaid, to vote for the election
of a trustee in bankruptcy or similar Person.
(f) All rights of action and of asserting claims under this Indenture, or
under any of the Notes, may be enforced by the Indenture Trustee without the
possession of any of the Notes or the production thereof in any trial or other
Proceedings relative thereto, and any such Proceedings instituted by the
Indenture Trustee shall be brought in its own name as trustee of an express
trust, and any recovery of judgment, subject to the payment of the expenses,
disbursements and compensation of the Indenture Trustee, each predecessor
Trustee and their respective agents and attorneys, shall be for the benefit of
the Secured Parties in accordance with the priorities set forth in the Basic
Documents.
(g) In any Proceedings brought by the Indenture Trustee (and also any
Proceedings involving the interpretation of any provision of this Indenture to
which the Indenture Trustee shall be a party), the Indenture Trustee shall be
held to represent all the Noteholders, and it shall not be necessary to make any
Noteholder a party to any such Proceedings.
SECTION 5.4 Remedies; Priorities.If an Event of Default shall have occurred
and be continuing and the Notes have been accelerated under Section 5.2(a), the
Indenture Trustee may do one or more of the following (subject to Section 5.5):
(i) institute Proceedings in its own name and as trustee of an express
trust for the collection of all amounts then due and payable on the Notes or
under this Indenture with respect thereto, whether by declaration of
acceleration or otherwise, enforce any judgment obtained, and collect from the
Issuer and any other obligor upon such Notes monies adjudged due;
(ii) institute Proceedings from time to time for the complete or partial
foreclosure of this Indenture with respect to the Trust Estate;
(iii) exercise any remedies of a secured party under the UCC and take any
other appropriate action to protect and enforce the rights and remedies of the
Indenture Trustee and the Noteholders; and
(iv) sell the Trust Estate or any portion thereof or rights or interest therein,
at one or more public or private sales called and conducted in any manner
permitted by law or elect to have the Issuer maintain possession of the
Receivables and continue to apply collections on such Receivables as if there
had been no declaration of acceleration; provided, however, that the Indenture
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Trustee may not sell or otherwise liquidate the Trust Estate following an Event
of Default and acceleration of the Notes, unless (i) (A) the Holders of all of
the aggregate Outstanding Amount of the Notes consent thereto (and if such Event
of Default results under Section 5.1(d) of this Indenture, the Holders of
Certificates representing all of the Voting Interests also consent thereto) or
(B) the proceeds of such sale or liquidation distributable to the Noteholders
and the Certificateholders are sufficient to discharge in full the principal of
and the accrued interest on the Notes and an amount in respect of the
Certificates equal to (x) the sum of the Certificate Balance and any
Noteholders' Principal Carryover Shortfall or Certificateholders' Principal
Carryover Shortfall and (y) the Certificateholders Interest Distributable
Amount, each at the date of such sale or liquidation or (C) (x) there has been
an Event of Default under Section 5.1(a), (b) or (c) or otherwise arising from a
failure to make a required payment of principal on any Notes, (y) the Indenture
Trustee determines that the Trust Estate will not continue to provide sufficient
funds for the payment of principal of and interest on the Notes as and when they
would have become due if the Notes had not been declared due and payable, and
(z) the Indenture Trustee obtains the consent of Holders of a majority of the
aggregate Outstanding Amount of the Notes and (ii) 10 days' prior written notice
of sale or liquidation has been given to the Rating Agencies. In determining
such sufficiency or insufficiency with respect to clauses (B) and (C), the
Indenture Trustee may, but need not, obtain and rely upon an opinion of an
Independent investment banking or accounting firm of national reputation as to
the feasibility of such proposed action and as to the sufficiency of the Trust
Estate for such purpose.
(b) If the Indenture Trustee collects any money or property pursuant to
this Article V, it shall pay out the money or property in the following order:
FIRST: to the Indenture Trustee for amounts due under Section 6.7
and then to the Owner Trustee for amounts due to the Owner Trustee
(not including amounts due for payments to the Certificateholders)
under the Trust Agreement or the Trust Sale and Servicing Agreement;
and
SECOND: to the Collection Account, for distribution pursuant to
Sections 8.01(b) and (e) of the Trust Sale and Servicing Agreement.
SECTION 5.5 Optional Preservation of the Receivables. If the Notes have
been declared to be due and payable under Section 5.2 following an Event of
Default and such declaration and its consequences have not been rescinded and
annulled in accordance with Section 5.2(b), the Indenture Trustee may, but need
not, elect to take and maintain possession of the Trust Estate. It is the desire
of the parties hereto and the Secured Parties that there be at all times
sufficient funds for the payment of the Secured Obligations to the Secured
Parties and the Indenture Trustee shall take such desire into account when
determining whether or not to take and maintain possession of the Trust Estate.
In determining whether to take and maintain possession of the Trust Estate, the
Indenture Trustee may, but need not, obtain and rely upon an opinion of an
Independent investment banking or accounting firm of national reputation as to
the feasibility of such proposed action and as to the sufficiency of the Trust
Estate for such purpose.
SECTION 5.6 Limitation of Suits. No Holder of any Note shall have any right
to institute any Proceeding, judicial or otherwise, with respect to this
Indenture, or for the appointment of a receiver or trustee, or for any other
remedy hereunder, unless:
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(a) such Holder has previously given written notice to the Indenture
Trustee of a continuing Event of Default;
(b) the Holders of not less than 25% of the Outstanding Amount of the Notes
have made written request to the Indenture Trustee to institute such Proceeding
in respect of such Event of Default in its own name as Indenture Trustee
hereunder;
(c) such Holder or Holders have offered to the Indenture Trustee reasonable
indemnity against the costs, expenses and liabilities to be incurred in
complying with such request;
(d) the Indenture Trustee for 60 days after its receipt of such notice,
request and offer of indemnity has failed to institute such Proceedings; and
(e) no direction inconsistent with such written request has been given to
the Indenture Trustee during such 60-day period by the Holders of a majority of
the Outstanding Amount of the Notes;
it being understood and intended that no one or more Holders of Notes shall have
any right in any manner whatever by virtue of, or by availing of, any provision
of this Indenture to affect, disturb or prejudice the rights of any other
Holders of Notes or to obtain or to seek to obtain priority or preference over
any other Holders of Notes or to enforce any right under this Indenture, except
in the manner herein provided and for the equal, ratable (on the basis of the
respective aggregate amount of principal and interest, respectively, due and
unpaid on the Notes held by each Noteholder) and common benefit of all holders
of Notes. For the protection and enforcement of the provisions of this Section
5.6, each and every Noteholder shall be entitled to such relief as can be given
either at law or in equity.
If the Indenture Trustee shall receive conflicting or inconsistent requests
and indemnity from two or more groups of Holders of Notes, each representing
less than a majority of the Outstanding Amount of the Notes, the Indenture
Trustee in its sole discretion may determine what action, if any, shall be
taken, notwithstanding any other provisions of this Indenture.
SECTION 5.7 Unconditional Rights of Noteholders To Receive Principal and
Interest. Notwithstanding any other provisions in this Indenture, the Holder of
any Note shall have the right, which is absolute and unconditional, to receive
payment of the principal of and interest, on such Note on or after the
respective due dates thereof expressed in such Note or in this Indenture (or, in
the case of redemption, if applicable, on or after the Redemption Date) and to
institute suit for the enforcement of any such payment, and such right shall not
be impaired without the consent of such Holder.
SECTION 5.8 Restoration of Rights and Remedies. If the Indenture Trustee or
any Noteholder has instituted any Proceeding to enforce any right or remedy
under this Indenture and such Proceeding has been discontinued or abandoned for
any reason or has been determined adversely to the Indenture Trustee or to such
Noteholder, then and in every such case the Issuer, the Indenture Trustee and
the Noteholders shall, subject to any determination in such Proceeding, be
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restored severally to their respective former positions hereunder, and
thereafter all rights and remedies of the Indenture Trustee and the Noteholders
shall continue as though no such Proceeding had been instituted.
SECTION 5.9 Rights and Remedies Cumulative. No right or remedy herein
conferred upon or reserved to the Indenture Trustee or to the Noteholders is
intended to be exclusive of any other right or remedy, and every right and
remedy shall, to the extent permitted by law, be cumulative and in addition to
every other right and remedy given hereunder or now or hereafter existing at law
or in equity or otherwise. The assertion or employment of any right or remedy
hereunder, or otherwise, shall not prevent the concurrent assertion or
employment of any other appropriate right or remedy.
SECTION 5.10 Delay or Omission Not a Waiver. No delay or omission of the
Indenture Trustee or any Holder of any Note to exercise any right or remedy
accruing upon any Default or Event of Default shall impair any such right or
remedy or constitute a waiver of any such Default or Event of Default or an
acquiescence therein. Every right and remedy given by this Article V or by law
to the Indenture Trustee or to the Noteholders may be exercised from time to
time, and as often as may be deemed expedient, by the Indenture Trustee or by
the Noteholders, as the case may be.
SECTION 5.11 Control by Noteholders. The Holders of a majority of the
Outstanding Amount of the Notes shall, subject to provision being made for
indemnification against costs, expenses and liabilities in a form satisfactory
to the Indenture Trustee, have the right to direct the time, method and place of
conducting any Proceeding for any remedy available to the Indenture Trustee with
respect to the Notes or exercising any trust or power conferred on the Indenture
Trustee; provided, however, that:
(a) such direction shall not be in conflict with any rule of law or with
this Indenture;
(b) subject to the express terms of Section 5.4, any direction to the
Indenture Trustee to sell or liquidate the Trust Estate shall be by the Holders
of Notes representing not less than 100% of the Outstanding Amount of the Notes;
(c) if the conditions set forth in Section 5.5 have been satisfied and the
Indenture Trustee elects to retain the Trust Estate pursuant to Section 5.5,
then any direction to the Indenture Trustee by Holders of Notes representing
less than 100% of the Outstanding Amount of the Notes to sell or liquidate the
Trust Estate shall be of no force and effect; and
(d) the Indenture Trustee may take any other action deemed proper by the
Indenture Trustee that is not inconsistent with such direction;
provided, however, that, subject to Section 6.1, the Indenture Trustee need not
take any action that it determines might cause it to incur any liability or
might materially adversely affect the rights of any Noteholders not consenting
to such action.
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SECTION 5.12 Waiver of Past Defaults.Prior to the declaration of the
acceleration of the maturity of the Notes as provided in Section 5.2, the
Holders of not less than a majority of the Outstanding Amount of the Notes may
waive any past Default or Event of Default and its consequences except a Default
(i) in the payment of principal of or interest on any of the Notes or (ii) in
respect of a covenant or provision hereof which cannot be modified or amended
without the consent of the Holder of each Note. In the case of any such waiver,
the Issuer, the Indenture Trustee and the Noteholders shall be restored to their
respective former positions and rights hereunder; but no such waiver shall
extend to any subsequent or other Default or impair any right consequent
thereto.
(b) Upon any such waiver, such Default shall cease to exist and be deemed
to have been cured and not to have occurred, and any Event of Default arising
therefrom shall be deemed to have been cured and not to have occurred, for every
purpose of this Indenture; but no such waiver shall extend to any subsequent or
other Default or Event of Default or impair any right consequent thereto.
SECTION 5.13 Undertaking for Costs. All parties to this Indenture agree,
and each Holder of any Note by such Holder's acceptance thereof shall be deemed
to have agreed, that any court may in its discretion require, in any Proceeding
for the enforcement of any right or remedy under this Indenture, or in any
Proceeding against the Indenture Trustee for any action taken, suffered or
omitted by it as Trustee, the filing by any party litigant in such Proceeding of
an undertaking to pay the costs of such Proceeding, and that such court may in
its discretion assess reasonable costs, including reasonable attorneys' fees,
against any party litigant in such Proceeding, having due regard to the merits
and good faith of the claims or defenses made by such party litigant; but the
provisions of this Section 5.13 shall not apply to:
(a) any Proceeding instituted by the Indenture Trustee;
(b) any Proceeding instituted by any Noteholder, or group of Noteholders,
in each case holding in the aggregate more than 10% of the Outstanding Amount of
the Notes; or
(c) any Proceeding instituted by any Noteholder for the enforcement of the
payment of principal of or interest on any Note on or after the respective due
dates expressed in such Note and in this Indenture (or, in the case of
redemption, on or after the Redemption Date).
SECTION 5.14 Waiver of Stay or Extension Laws. The Issuer covenants (to the
extent that it may lawfully do so) that it shall not at any time insist upon, or
plead or in any manner whatsoever, claim or take the benefit or advantage of,
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any stay or extension law wherever enacted, now or at any time hereafter in
force, that may affect the covenants or the performance of this Indenture. The
Issuer (to the extent that it may lawfully do so) hereby expressly waives all
benefit or advantage of any such law, and covenants that it shall not hinder,
delay or impede the execution of any power herein granted to the Indenture
Trustee, but shall suffer and permit the execution of every such power as though
no such law had been enacted.
SECTION 5.15 Action on Notes. The Indenture Trustee's right to seek and
recover judgment on the Notes or under this Indenture shall not be affected by
the seeking, obtaining or application of any other relief under or with respect
to this Indenture. Neither the lien of this Indenture nor any rights or remedies
of the Indenture Trustee or the Noteholders shall be impaired by the recovery of
any judgment by the Indenture Trustee against the Issuer or by the levy of any
execution under such judgment upon any portion of the Trust Estate or upon any
of the assets of the Issuer. Any money or property collected by the Indenture
Trustee shall be applied in accordance with Section 5.4(b).
SECTION 5.16 Performance and Enforcement of Certain Obligations.Promptly
following a request from the Indenture Trustee to do so and at the
Administrator's expense, the Issuer agrees to take all such lawful action as the
Indenture Trustee may request to compel or secure the performance and observance
by the Seller and the Servicer of their respective obligations to the Issuer
under or in connection with the Trust Sale and Servicing Agreement and the
Pooling and Servicing Agreement or by GMAC of its obligations under or in
connection with the Pooling and Servicing Agreement in accordance with the terms
thereof or by any obligor under a Third Party Instrument of its obligations
under or in accordance with the Third Party Instrument in accordance with the
terms thereof, and to exercise any and all rights, remedies, powers and
privileges lawfully available to the Issuer under or in connection with the
Trust Sale and Servicing Agreement, the Pooling and Servicing Agreement and any
Third Party Instrument to the extent and in the manner directed by the Indenture
Trustee, including the transmission of notices of default on the part of the
Seller, the Servicer, or any obligor under a Third Party Instrument thereunder
and the institution of legal or administrative actions or proceedings to compel
or secure performance by the Seller or the Servicer or any obligor under a Third
Party Instrument of their respective obligations under the Trust Sale and
Servicing Agreement, the Pooling and Servicing Agreement and any Third Party
Instrument.
(b) If an Event of Default has occurred and is continuing, the Indenture
Trustee may, and, at the direction (which direction shall be in writing or by
telephone (confirmed in writing promptly thereafter)) of the Holders of 66-2/3%
of the Outstanding Amount of the Notes shall, exercise all rights, remedies,
powers, privileges and claims of the Issuer against the Seller, the Servicer or
any obligor under a Third Party Instrument under or in connection with the Trust
Sale and Servicing Agreement, the Pooling and Servicing Agreement or a Third
Party Instrument, including the right or power to take any action to compel or
secure performance or observance by the Seller or the Servicer of each of their
obligations to the Issuer thereunder and to give any consent, request, notice,
direction, approval, extension or waiver under the Trust Sale and Servicing
Agreement, and any right of the Issuer to take such action shall be suspended.
(c) If an Event of Default has occurred and is continuing, the Indenture
Trustee may, and, at the direction (which direction shall be in writing or by
telephone (confirmed in writing promptly thereafter)) of the Holders of 66-2/3%
of the Outstanding Amount of the Notes shall, exercise all rights, remedies,
powers, privileges and claims of the Seller against GMAC under or in connection
with the Pooling and Servicing Agreement, including the right or power to take
any action to compel or secure performance or observance by GMAC of each of its
obligations to the Seller thereunder and to give any consent, request, notice,
direction, approval, extension or waiver under the Pooling and Servicing
Agreement, and any right of the Seller to take such action shall be suspended.
ARTICLE VI
THE INDENTURE TRUSTEEDuties of Indenture Trustee.If an Event of Default has
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occurred and is continuing, the Indenture Trustee shall exercise the rights and
powers vested in it by this Indenture and use the same degree of care and skill
in their exercise as a prudent person would exercise or use under the
circumstances in the conduct of such person's own affairs.
(b) Except during the continuance of an Event of Default:
(i) the Indenture Trustee undertakes to perform such duties and only
such duties as are specifically set forth in this Indenture and the Trust
Sale and Servicing Agreement and no implied covenants or obligations shall
be read into this Indenture, the Trust Sale and Servicing Agreement or any
other Basic Document against the Indenture Trustee; and
(ii) in the absence of bad faith on its part, the Indenture Trustee
may conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon certificates or
opinions furnished to the Indenture Trustee and conforming to the
requirements of this Indenture; provided, however, that the Indenture
Trustee shall examine the certificates and opinions to determine whether or
not they conform to the requirements of this Indenture.
(c) The Indenture Trustee may not be relieved from liability for its own
negligent action, its own negligent failure to act or its own willful
misconduct, except that:
(i) this Section 6.1(c) does not limit the effect of Section 6.1(b);
(ii) the Indenture Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer unless it is proved
that the Indenture Trustee was negligent in ascertaining the pertinent
facts; and
(iii) the Indenture Trustee shall not be liable with respect to any
action it takes or omits to take in good faith in accordance with a
direction received by it pursuant to Section 5.11.
(d) The Indenture Trustee shall not be liable for interest on any money
received by it except as the Indenture Trustee may agree in writing with the
Issuer.
(e) Money held in trust by the Indenture Trustee need not be segregated
from other funds except to the extent required by law or the terms of this
Indenture or the Trust Sale and Servicing Agreement or the Trust Agreement. (f)
No provision of this Indenture shall require the Indenture Trustee to expend or
risk its own funds or otherwise incur financial liability in the performance of
any of its duties hereunder or in the exercise of any of its rights or powers,
if it shall have reasonable grounds to believe that repayments of such funds or
adequate indemnity against such risk or liability is not reasonably assured to
it.
(g) Every provision of this Indenture relating to the Indenture Trustee
shall be subject to the provisions of this Section 6.1 and to the provisions of
the TIA.
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SECTION 6.2 Rights of Indenture Trustee.The Indenture Trustee may rely on
any document believed by it to be genuine and to have been signed or presented
by the proper Person. The Indenture Trustee need not investigate any fact or
matter stated in the document.
(b) Before the Indenture Trustee acts or refrains from acting, it may
require an Officer's Certificate or an Opinion of Counsel. The Indenture Trustee
shall not be liable for any action it takes or omits to take in good faith in
reliance on the Officer's Certificate or Opinion of Counsel.
(c) The Indenture Trustee may execute any of the trusts or powers hereunder
or perform any duties hereunder either directly or by or through agents or
attorneys or a custodian or nominee, and the Indenture Trustee shall not be
responsible for any misconduct or negligence on the part of, or for the
supervision of, any such agent, attorney, custodian or nominee appointed with
due care by it hereunder.
(d) The Indenture Trustee shall not be liable for any action it takes or
omits to take in good faith which it believes to be authorized or within its
rights or powers; provided, however, that the Indenture Trustee's conduct does
not constitute willful misconduct, negligence or bad faith.
(e) The Indenture Trustee may consult with counsel, and the advice or
opinion of counsel with respect to legal matters relating to this Indenture and
the Notes shall be full and complete authorization and protection from liability
in respect to any action taken, omitted or suffered by it hereunder in good
faith and in accordance with the advice or opinion of such counsel.
(f) The Indenture Trustee shall be under no obligation to exercise any of
the rights or powers vested in it by this Indenture at the request or direction
of any of the Holders pursuant to this Indenture, unless such Holders shall have
offered to the Indenture Trustee security or indemnity satisfactory to the
Indenture Trustee against the costs, expenses and liabilities which might be
incurred by it in compliance with such request or direction.
(g) The Indenture Trustee shall not be bound to make any investigation into
the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request direction, consent, order, bond,
debenture, note, other evidence of indebtedness or other paper or document, but
the Indenture Trustee, in its direction, may make such further inquiry or
investigation into such facts or matters as it may see fit.
(h) The Indenture Trustee shall not be deemed to have notice of any Default
or Event of Default unless a Responsible Officer of the Indenture Trustee has
actual knowledge thereof or unless written notice of any event which is in fact
such a default is received by the Indenture Trustee at the Corporate Trust
Office of the Indenture Trustee, and such notice references the Securities and
this Indenture.
(i) The rights, privileges, protections, immunities and benefits given to
the Indenture Trustee, including, without limitation, its right to be
indemnified, are extended to, and shall be enforceable by, the Indenture Trustee
in each of its capacities hereunder.
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SECTION 6.3 Indenture Trustee May Own Notes. The Indenture Trustee in its
individual or any other capacity may become the owner or pledgee of Notes and
may otherwise deal with the Issuer, the Servicer or any of their respective
Affiliates with the same rights it would have if it were not Indenture Trustee;
provided, however, that the Indenture Trustee shall comply with Sections 6.10
and 6.11. Any Paying Agent, Note Registrar, co-registrar or co-paying agent may
do the same with like rights.
SECTION 6.4 Indenture Trustee's Disclaimer. The Indenture Trustee shall not
be responsible for and makes no representation as to the validity or adequacy of
this Indenture or the Notes, it shall not be accountable for the Issuer's use of
the proceeds from the Notes, and it shall not be responsible for any statement
of the Issuer in the Indenture or in any document issued in connection with the
sale of the Notes or in the Notes other than the Indenture Trustee's certificate
of authentication.
SECTION 6.5 Notice of Defaults. If a Default occurs and is continuing and
if it is known to a Responsible Officer of the Indenture Trustee, the Indenture
Trustee shall mail to each Noteholder notice of the Default within 90 days after
it occurs. Except in the case of a Default in payment of principal of or
interest on any Note, the Indenture Trustee may withhold the notice if and so
long as a committee of its Responsible Officers in good faith determines that
withholding the notice is in the interests of Noteholders.
SECTION 6.6 Reports by Indenture Trustee to Holders. The Indenture Trustee
shall deliver to each Noteholder the information and documents set forth in
Article VII, and, in addition, all such information with respect to the Notes as
may be required to enable such Holder to prepare its federal and state income
tax returns.
SECTION 6.7 Compensation; Indemnity.The Issuer shall cause the Servicer
pursuant to Section 3.09 of the Pooling and Servicing Agreement to pay to the
Indenture Trustee from time to time reasonable compensation for its services.
The Indenture Trustee's compensation shall not be limited by any law on
compensation of a trustee of an express trust. The Issuer shall cause the
Servicer pursuant to Section 3.09 of the Pooling and Servicing Agreement to
reimburse the Indenture Trustee for all reasonable out-of-pocket expenses
incurred or made by it, including costs of collection, in addition to the
compensation for its services. Such expenses shall include the reasonable
compensation and expenses, disbursements and advances of the Indenture Trustee's
agents, external counsel, accountants and experts. The Issuer shall cause the
Servicer to indemnify the Indenture Trustee in accordance with Section 6.01 of
the Trust Sale and Servicing Agreement.
(b) The Issuer's obligations to the Indenture Trustee pursuant to this
Section 6.7 shall survive the discharge of this Indenture. When the Indenture
Trustee incurs expenses after the occurrence of a Default specified in Section
5.1(d) or (e) with respect to the Issuer, the expenses are intended to
constitute expenses of administration under Title 11 of the United States Code
or any other applicable federal or state bankruptcy, insolvency or similar law.
SECTION 6.8 Replacement of Indenture Trustee.The Indenture Trustee may at
any time give notice of its intent to resign by so notifying the Issuer;
provided, however, that no such resignation shall become effective and the
34
Indenture Trustee shall not resign prior to the time set forth in Section
6.8(c). The Holders of a majority in Outstanding Amount of the Notes may remove
the Indenture Trustee by so notifying the Indenture Trustee and may appoint a
successor Indenture Trustee. Such resignation or removal shall become effective
in accordance with Section 6.8(c). The Issuer shall remove the Indenture Trustee
if:
(i) the Indenture Trustee fails to comply with Section 6.11;
(ii) the Indenture Trustee is adjudged bankrupt or insolvent;
(iii) a receiver or other public officer takes charge of the Indenture
Trustee or its property; or
(iv) the Indenture Trustee otherwise becomes incapable of acting.
(b) If the Indenture Trustee gives notice of its intent to resign or is
removed or if a vacancy exists in the office of the Indenture Trustee for any
reason (the Indenture Trustee in such event being referred to herein as the
retiring Indenture Trustee), the Issuer shall promptly appoint and designate a
successor Indenture Trustee.
(c) A successor Indenture Trustee shall deliver a written acceptance of its
appointment and designation to the retiring Indenture Trustee and to the Issuer.
Thereupon the resignation or removal of the retiring Indenture Trustee shall
become effective, and the successor Indenture Trustee shall have all the rights,
powers and duties of the Indenture Trustee under this Indenture. The successor
Indenture Trustee shall mail a notice of its succession to Noteholders. The
retiring Indenture Trustee shall promptly transfer all property held by it as
Indenture Trustee to the successor Indenture Trustee.
(d) If a successor Indenture Trustee does not take office within 60 days
after the Indenture Trustee gives notice of its intent to resign or is removed,
the retiring Trustee, the Issuer or the Holders of a majority of the Outstanding
Amount of the Notes may petition any court of competent jurisdiction for the
appointment and designation of a successor Indenture Trustee.
(e) If the Indenture Trustee fails to comply with Section 6.11, any
Noteholder may petition any court of competent jurisdiction for the removal of
the Indenture Trustee and the appointment of a successor Indenture Trustee.
(f) Notwithstanding the replacement of the Indenture Trustee pursuant to
this Section 6.8, the Issuer's obligations under Section 6.7 and the Servicer's
corresponding obligations under the Trust Sale and Servicing Agreement shall
continue for the benefit of the retiring Indenture Trustee.
SECTION 6.9 Merger or Consolidation of Indenture Trustee.Any corporation
into which the Indenture Trustee may be merged or with which it may be
consolidated, or any corporation resulting from any merger or consolidation to
which the Indenture Trustee shall be a party, or any corporation succeeding to
the corporate trust business of the Indenture Trustee, shall be the successor of
the Indenture Trustee under this Indenture; provided, however, that such
corporation shall be eligible under the provisions of Section 6.11, without the
35
execution or filing of any instrument or any further act on the part of any of
the parties to this Indenture, anything in this Indenture to the contrary
notwithstanding.
(b) If at the time such successor or successors by merger or consolidation
to the Indenture Trustee shall succeed to the trusts created by this Indenture,
any of the Notes shall have been authenticated but not delivered, any such
successor to the Indenture Trustee may adopt the certificate of authentication
of any predecessor trustee, and deliver such Notes so authenticated; and in case
at that time any of the Notes shall not have been authenticated, any successor
to the Indenture Trustee may authenticate such Notes either in the name of any
predecessor hereunder or in the name of the successor to the Indenture Trustee.
In all such cases such certificate of authentication shall have the same full
force as is provided anywhere in the Notes or herein with respect to the
certificate of authentication of the Indenture Trustee.
SECTION 6.10 Appointment of Co-Indenture Trustee or Separate Indenture
Trustee.Notwithstanding any other provisions of this Indenture, at any time, for
the purpose of meeting any legal requirement of any jurisdiction in which any
part of the Trust Estate or any Financed Vehicle may at the time be located, the
Indenture Trustee shall have the power and may execute and deliver all
instruments to appoint one or more Persons to act as a co-trustee or
co-trustees, or separate trustee or separate trustees, of all or any part of the
Trust Estate, and to vest in such Person or Persons, in such capacity and for
the benefit of the Secured Parties and (only to the extent expressly provided
herein) the Certificateholders, such title to the Trust Estate, or any part
hereof, and, subject to the other provisions of this Section 6.10, such powers,
duties, obligations, rights and trusts as the Indenture Trustee may consider
necessary or desirable. No co-trustee or separate trustee hereunder shall be
required to meet the terms of eligibility as a successor trustee under Section
6.11 and no notice to Noteholders of the appointment of any co-trustee or
separate trustee shall be required under Section 6.8.
(b) Every separate trustee and co-trustee shall, to the extent permitted by
law, be appointed and act subject to the following provisions and conditions:
(i) all rights, powers, duties and obligations conferred or imposed
upon the Indenture Trustee shall be conferred or imposed upon and exercised
or performed by the Indenture Trustee and such separate trustee or
co-trustee jointly (it being understood that such separate trustee or
co-trustee is not authorized to act separately without the Indenture
Trustee joining in such act), except to the extent that under any law of
any jurisdiction in which any particular act or acts are to be performed
the Indenture Trustee shall be incompetent or unqualified to perform such
act or acts, in which event such rights, powers, duties and obligations
(including the holding of title to the Trust Estate or any portion thereof
in any such jurisdiction) shall be exercised and performed singly by such
separate trustee or co-trustee, but solely at the direction of the
Indenture Trustee;
(ii) no trustee hereunder shall be personally liable by reason of any
act or omission of any other trustee hereunder; and
(iii) the Indenture Trustee may at any time accept the resignation of
or remove any separate trustee or co-trustee.
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(c) Any notice, request or other writing given to the Indenture Trustee
shall be deemed to have been given to each of the then separate trustees and
co-trustees, as effectively as if given to each of them. Every instrument
appointing any separate trustee or co-trustee shall refer to this Indenture and
the conditions of this Article VI. Each separate trustee and co-trustee, upon
its acceptance of the trusts conferred, shall be vested with the estates or
property specified in its instrument of appointment, either jointly with the
Indenture Trustee or separately, as may be provided therein, subject to all the
provisions of this Indenture, specifically including every provision of this
Indenture relating to the conduct of, affecting the liability of, or affording
protection to, the Indenture Trustee. Every such instrument shall be filed with
the Indenture Trustee.
(d) Any separate trustee or co-trustee may at any time constitute the
Indenture Trustee, its agent or attorney-in-fact with full power and authority,
to the extent not prohibited by law, to do any lawful act under or in respect of
this Indenture on its behalf and in its name. If any separate trustee or
co-trustee shall die, become incapable of acting, resign or be removed, all of
its estates, properties, rights, remedies and trusts shall vest in and be
exercised by the Indenture Trustee, to the extent permitted by law, without the
appointment of a new or successor trustee.
SECTION 6.11 Eligibility; Disqualification. The Indenture Trustee shall at
all times satisfy the requirements of TIA ss. 310(a). The Indenture Trustee
shall have a combined capital and surplus of at least $50,000,000 as set forth
in its most recent published annual report of condition and (unless waived by
Moody's Investors Service, Inc.) it shall have a long term unsecured debt rating
of Baa3 or better by Moody's Investors Service, Inc. The Indenture Trustee shall
comply with TIA ss. 310(b); provided, however, that there shall be excluded from
the operation of TIA ss. 310(b)(1) any indenture or indentures under which other
securities of the Issuer are outstanding if the requirements for such exclusion
set forth in TIA ss. 310(b)(1) are met.
SECTION 6.12 Preferential Collection of Claims Against Issuer. The
Indenture Trustee shall comply with TIAss.311(a), excluding any creditor
relationship listed in TIAss.311(b). A trustee who has resigned or been removed
shall be subject to TIAss.311(a) to the extent indicated.
SECTION 6.13 Representations and Warranties of Indenture Trustee. The
Indenture Trustee represents and warrants as of the Closing Date that:
(a) the Indenture Trustee (i) is a national banking association duly
organized, validly existing and in good standing under the laws of the United
States of America and (ii) satisfies the eligibility criteria set forth in
Section 6.11;
(b) the Indenture Trustee has full power, authority and legal right to
execute, deliver and perform this Indenture, and has taken all necessary action
to authorize the execution, delivery and performance by it of this Indenture;
(c) the execution, delivery and performance by the Indenture Trustee of
this Indenture (i) shall not violate any provision of any law or regulation
governing the banking and trust powers of the Indenture Trustee or any order,
37
writ, judgment or decree of any court, arbitrator, or governmental authority
applicable to the Indenture Trustee or any of its assets, (ii) shall not violate
any provision of the corporate charter or by-laws of the Indenture Trustee, or
(iii) shall not violate any provision of, or constitute, with or without notice
or lapse of time, a default under, or result in the creation or imposition of
any lien on any properties included in the Trust Estate pursuant to the
provisions of any mortgage, indenture, contract, agreement or other undertaking
to which it is a party, which violation, default or lien could reasonably be
expected to have a materially adverse effect on the Indenture Trustee's
performance or ability to perform its duties under this Indenture or on the
transactions contemplated in this Indenture;
(d) the execution, delivery and performance by the Indenture Trustee of
this Indenture shall not require the authorization, consent or approval of, the
giving of notice to, the filing or registration with, or the taking of any other
action in respect of, any governmental authority or agency regulating the
banking and corporate trust activities of the Indenture Trustee; and
(e) this Indenture has been duly executed and delivered by the Indenture
Trustee and constitutes the legal, valid and binding agreement of the Indenture
Trustee, enforceable in accordance with its terms.
SECTION 6.14 Indenture Trustee May Enforce Claims Without Possession of
Notes. All rights of action and claims under this Indenture or the Notes may be
prosecuted and enforced by the Indenture Trustee without the possession of any
of the Notes or the production thereof in any proceeding relating thereto, and
any such proceeding instituted by the Indenture Trustee shall be brought in its
own name as Indenture Trustee. Any recovery of judgment shall, after provision
for the payment of the reasonable compensation, expenses, disbursements and
advances of the Indenture Trustee, its agents and counsel, be for the ratable
benefit of the Noteholders and (only to the extent expressly provided herein)
the Certificateholders in respect of which such judgment has been obtained.
SECTION 6.15 Suit for Enforcement. If an Event of Default shall occur and
be continuing, the Indenture Trustee, in its discretion may, subject to the
provisions of Section 6.1, proceed to protect and enforce its rights and the
rights of the Noteholders under this Indenture by Proceeding whether for the
specific performance of any covenant or agreement contained in this Indenture or
in aid of the execution of any power granted in this Indenture or for the
enforcement of any other legal, equitable or other remedy as the Indenture
Trustee, being advised by counsel, shall deem most effectual to protect and
enforce any of the rights of the Indenture Trustee or the Noteholders.
SECTION 6.16 Rights of Noteholders to Direct Indenture Trustee. Holders of
Notes evidencing not less than a majority of the Outstanding Amount of the Notes
shall have the right to direct the time, method and place of conducting any
Proceeding for any remedy available to the Indenture Trustee or exercising any
trust or power conferred on the Indenture Trustee; provided, however, that
subject to Section 6.1, the Indenture Trustee shall have the right to decline to
follow any such direction if the Indenture Trustee being advised by counsel
determines that the action so directed may not lawfully be taken, or if the
Indenture Trustee in good faith shall, by a Responsible Officer, determine that
the proceedings so directed would be illegal or subject it to personal liability
or be unduly prejudicial to the rights of Noteholders not parties to such
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direction; and provided, further, that nothing in this Indenture shall impair
the right of the Indenture Trustee to take any action deemed proper by the
Indenture Trustee and which is not inconsistent with such direction by the
Noteholders.
ARTICLE VII
NOTEHOLDERS' LISTS AND REPORTSIssuer To Furnish Indenture Trustee Names and
Addresses of Noteholders. The Issuer shall furnish or cause to be furnished by
the Servicer to the Indenture Trustee (a) not more than five days before each
Distribution Date a list, in such form as the Indenture Trustee may reasonably
require, of the names and addresses of the Holders of Notes as of the close of
business on the related Record Date, and (b) at such other times as the
Indenture Trustee may request in writing, within 14 days after receipt by the
Issuer of any such request, a list of similar form and content as of a date not
more than 10 days prior to the time such list is furnished; provided, however,
that so long as the Indenture Trustee is the Note Registrar, no such list shall
be required to be furnished.
SECTION 7.2 Preservation of Information, Communications to Noteholders.The
Indenture Trustee shall preserve, in as current a form as is reasonably
practicable, the names and addresses of the Holders of Notes contained in the
most recent list furnished to the Indenture Trustee as provided in Section 7.1
and the names and addresses of Holders of Notes received by the Indenture
Trustee in its capacity as Note Registrar. The Indenture Trustee may destroy any
list furnished to it as provided in such Section 7.1 upon receipt of a new list
so furnished.
(b) Noteholders may communicate pursuant to TIAss.312(b) with other
Noteholders with respect to their rights under this Indenture or under the
Notes.
(c) The Issuer, the Indenture Trustee and the Note Registrar shall have the
protection of TIAss.312(c).
SECTION 7.3 Reports by Issuer.The Issuer shall:
(i) file with the Indenture Trustee within 15 days after the Issuer is
required to file the same with the Commission, copies of the annual reports
and of the information, documents and other reports (or copies of such
portions of any of the foregoing as the Commission may from time to time by
rules and regulations prescribe) which the Issuer may be required to file
with the Commission pursuant to Section 13 or 15(d) of the Exchange Act;
(ii) file with the Indenture Trustee and the Commission in accordance
with rules and regulations prescribed from time to time by the Commission
such additional information, documents and reports with respect to
compliance by the Issuer with the conditions and covenants of this
Indenture as may be required from time to time by such rules and
regulations; and
(iii) supply to the Indenture Trustee (and the Indenture Trustee shall
transmit by mail to all Noteholders described in TIA ss. 313(c)) such
summaries of any information, documents and reports required to be filed by
the Issuer pursuant to clauses (i) and (ii) of this Section 7.3(a) as may
be required by rules and regulations prescribed from time to time by the
Commission.
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(b) Unless the Issuer otherwise determines, the fiscal year of the Issuer
shall end on December 31 of such year.
SECTION 7.4 Reports by Trustee.If required by TIA ss. 313(a),within 60 days
after each May 15, beginning with May 15, 2002, the Indenture Trustee shall mail
to each Noteholder as required by TIA ss. 313(c) a brief report dated as of such
date that complies with TIA ss. 313(a). The Indenture Trustee also shall comply
with TIA ss. 313(b). A copy of any report delivered pursuant to this Section
7.4(a) shall, at the time of its mailing to Noteholders, be filed by the
Indenture Trustee with the Commission and each stock exchange, if any, on which
the Notes are listed. The Issuer shall notify the Indenture Trustee if and when
the Notes are listed on any stock exchange.
(b) On each Distribution Date the Indenture Trustee shall include with each
payment to each Noteholder a copy of the statement for the related Monthly
Period or Periods applicable to such Distribution Date as required pursuant to
Section 4.09 of the Trust Sale and Servicing Agreement.
ARTICLE VIII
ACCOUNTS, DISBURSEMENTS AND RELEASESCollection of Money. Except as otherwise
expressly provided herein, the Indenture Trustee may demand payment or delivery
of, and shall receive and collect, directly and without intervention or
assistance of any fiscal agent or other intermediary, all money and other
property payable to or receivable by the Indenture Trustee pursuant to this
Indenture and the Trust Sale and Servicing Agreement. The Indenture Trustee
shall apply all such money received by it as provided in this Indenture. Except
as otherwise expressly provided in this Indenture, if any default occurs in the
making of any payment or performance under any agreement or instrument that is
part of the Trust Estate, the Indenture Trustee may take such action as may be
appropriate to enforce such payment or performance, including the institution
and prosecution of appropriate Proceedings. Any such action shall be without
prejudice to any right to claim a Default or Event of Default under this
Indenture and any right to proceed thereafter as provided in Article V.
SECTION 8.2 Designated Accounts; Payments.On or prior to the Closing Date,
the Issuer shall cause the Servicer to establish and maintain, in the name of
the Indenture Trustee for the benefit of the Financial Parties (and with respect
to the Reserve Account, for the benefit of the Servicer) the Designated Accounts
as provided in Articles IV and V of the Trust Sale and Servicing Agreement.
(b) On or before each Distribution Date, (i) amounts shall be deposited in
the Collection Account as provided in Section 4.06 of the Trust Sale and
Servicing Agreement and (ii) the Aggregate Noteholders' Interest Distributable
Amount and the Aggregate Noteholders' Principal Distributable Amount shall be
transferred from the Collection Account to the Note Distribution Account as and
to the extent provided in Section 4.06 of the Trust Sale and Servicing
Agreement.
(c) On each Distribution Date, the Indenture Trustee shall apply and, as
required, distribute to the Noteholders all amounts on deposit in the Note
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Distribution Account (subject to the Servicer's rights under Section 5.03 of the
Trust Sale and Servicing Agreement to Investment Earnings) in the following
order of priority and in the amounts determined as described below:
(i) The Aggregate Noteholders' Interest Distributable Amount shall be
applied to each class of Notes in an amount equal to the sum of
(A) the Noteholders' Interest Distributable Amount for such class
of Notes for such Distribution Date plus
(B) if there was any Noteholders' Interest Carryover Shortfall as
of the close of the immediately preceding Distribution Date, a pro
rata portion thereof determined on the basis of the amount of interest
that was to be applied to such class on such preceding Distribution
Date;
provided, however, that if there are not sufficient funds in the Note
Distribution Account to so apply the entire Aggregate Noteholders' Interest
Distributable Amount, the amount available in the Note Distribution Account for
such purpose shall be applied to each class of Notes pro rata on the basis of
the respective amount otherwise to be applied to such class pursuant to this
clause (i). The amount so applied to each class of Notes shall be paid to the
Holders thereof on such Distribution Date.
(ii) Unless otherwise provided in clause (iii) below, an amount equal
to the Aggregate Noteholders' Principal Distributable Amount (or such
lesser amount as has been deposited in the Note Distribution Account
pursuant to Section 4.06(c)(iv) of the Trust Sale and Servicing Agreement)
shall be applied to each class of Notes in the following amounts and in the
following order of priority and any amount so applied shall be paid on such
Distribution Date to the Holders of such class of Notes:
(1) first, to the Class A-1 Notes, until the Outstanding Amount
of the Class A-1 Notes is reduced to zero;
(2) second, to the Class A-2 Notes, until the Outstanding Amount
of the Class A-2 Notes is reduced to zero;
(3) third, to the Class A-3 Notes, until the Outstanding Amount
of the Class A-3 Notes is reduced to zero; and
(4) fourth, to the Class A-4 Notes, until the Outstanding Amount
of the Class A-4 Notes is reduced to zero.
(iii) If the Notes have been declared immediately due and payable
following an Event of Default as provided in Section 5.2, until such time
as all Events of Default have been cured or waived as provided in Section
5.2(b), any amounts remaining in the Note Distribution Account after the
applications described in Section 8.2(c)(i) and any amounts then on deposit
or deposited into the Note Distribution Account thereafter shall be applied
in accordance with Section 2.7(c).
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SECTION 8.3 General Provisions Regarding Accounts.So long as no Default or
Event of Default shall have occurred and be continuing, all or a portion of the
funds in the Designated Accounts shall be invested in Eligible Investments and
reinvested by the Indenture Trustee upon Issuer Order, subject to the provisions
of Section 5.01(b) of the Trust Sale and Servicing Agreement. The Issuer shall
not direct the Indenture Trustee to make any investment of any funds or to sell
any investment held in any of the Designated Accounts unless the security
interest granted and perfected in such account shall continue to be perfected in
such investment or the proceeds of such sale, in either case without any further
action by any Person, and, in connection with any direction to the Indenture
Trustee to make any such investment or sale, if requested by the Indenture
Trustee, the Issuer shall deliver to the Indenture Trustee an Opinion of Counsel
acceptable to the Indenture Trustee, to such effect.
(b) Subject to Section 6.1(c), the Indenture Trustee shall not in any way
be held liable by reason of any insufficiency in any of the Designated Accounts
resulting from any loss on any Eligible Investment included therein except for
losses attributable to the Indenture Trustee's failure to make payments on such
Eligible Investments issued by the Indenture Trustee, in its commercial capacity
as principal obligor and not as trustee, in accordance with their terms.
(c) If (i) the Issuer shall have failed to give investment directions for
any funds on deposit in the Designated Accounts to the Indenture Trustee by
11:00 a.m., New York City Time (or such other time as may be agreed by the
Issuer and the Indenture Trustee) on any Business Day; or (ii) a Default or
Event of Default shall have occurred and be continuing with respect to the Notes
but the Notes shall not have been declared due and payable pursuant to Section
5.2, or, if such Notes shall have been declared due and payable following an
Event of Default, but amounts collected or receivable from the Trust Estate are
being applied in accordance with Section 5.5 as if there had not been such a
declaration; then the Indenture Trustee shall, to the fullest extent
practicable, invest and reinvest funds in the Designated Accounts in one or more
Eligible Investments selected by the Indenture Trustee.
SECTION 8.4 Release of Trust Estate.Subject to the payment of its fees and
expenses pursuant to Section 6.7, the Indenture Trustee may, and when required
by the provisions of this Indenture shall, execute instruments to release
property from the lien of this Indenture, or convey the Indenture Trustee's
interest in the same, in a manner and under circumstances that are consistent
with the provisions of this Indenture. No party relying upon an instrument
executed by the Indenture Trustee as provided in this Article VIII shall be
bound to ascertain the Indenture Trustee's authority, inquire into the
satisfaction of any conditions precedent or see to the application of any
monies.
(b) The Indenture Trustee shall, at such time as there are no Notes
Outstanding and all sums due to the Indenture Trustee pursuant to Section 6.7
have been paid and all amounts owing under each Third Party Instrument have been
paid, release any remaining portion of the Trust Estate that secured the Notes
and the other Secured Obligations from the lien of this Indenture and release to
the Issuer or any other Person entitled thereto any funds then on deposit in the
Designated Accounts. The Indenture Trustee shall release property from the lien
of this Indenture pursuant to this Section 8.4(b) only upon receipt by it of an
Issuer Request and an Officer's Certificate, an Opinion of Counsel and (if
required by the TIA) Independent Certificates in accordance with TIA ss.ss.
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314(c) and 314(d)(1) meeting the applicable requirements of Section 11.1.
SECTION 8.5 Opinion of Counsel. The Indenture Trustee shall receive at
least seven days' notice when requested by the Issuer to take any action
pursuant to Section 8.4(a), accompanied by copies of any instruments involved,
and the Indenture Trustee shall also require as a condition to such action, an
Opinion of Counsel and a Materiality Opinion, in form and substance satisfactory
to the Indenture Trustee, stating the legal effect of any such action, outlining
the steps required to complete the same, and concluding that all conditions
precedent to the taking of such action have been complied with and such action
shall not materially and adversely impair the security for the Secured
Obligations or the rights of the Secured Parties in contravention of the
provisions of this Indenture; provided, however, that such Opinion of Counsel
and Materiality Opinion shall not be required to express an opinion as to the
fair value of the Trust Estate. Counsel rendering any such opinion may rely,
without independent investigation, on the accuracy and validity of any
certificate or other instrument delivered to the Indenture Trustee in connection
with any such action.
ARTICLE IX
SUPPLEMENTAL INDENTURESSupplemental Indentures Without Consent of
Noteholders.>>[iC93]
(a) Without the consent of the Holders of any Notes but with prior notice
to the Rating Agencies, the Issuer and the Indenture Trustee, when authorized by
an Issuer Order, at any time and from time to time, may enter into one or more
indentures supplemental hereto (which shall conform to the provisions of the
Trust Indenture Act as in force at the date of the execution thereof), in form
satisfactory to the Indenture Trustee, for any of the following purposes:
(i) to correct or amplify the description of any property at any time
subject to the lien of this Indenture, or better to assure, convey and
confirm unto the Indenture Trustee any property subject or required to be
subjected to the lien of this Indenture, or to subject to additional
property to the lien of this Indenture;
(ii) to evidence the succession, in compliance with Section 3.10 and
the applicable provisions hereof, of another Person to the Issuer, and the
assumption by any such successor of the covenants of the Issuer contained
herein and in the Notes contained;
(iii) to add to the covenants of the Issuer, for the benefit of the
Securityholders or to surrender any right or power herein conferred upon
the Issuer;
(iv) to convey, transfer, assign, mortgage or pledge any property to
or with the Indenture Trustee;
(v) to cure any ambiguity, to correct or supplement any provision
herein or in any supplemental indenture which may be inconsistent with any
other provision herein or in any supplemental indenture or in any other
Basic Document;
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(vi) to evidence and provide for the acceptance of the appointment
hereunder by a successor or additional trustee with respect to the Notes and to
add to or change any of the provisions of this Indenture as shall be necessary
to facilitate the administration of the trusts hereunder by more than one
trustee, pursuant to the requirements of Article VI; or
(vii) to modify, eliminate or add to the provisions of this Indenture to
such extent as shall be necessary to effect the qualification of this Indenture
under the TIA or under any similar federal statute hereafter enacted and to add
to this Indenture such other provisions as may be expressly required by the TIA,
and the Indenture Trustee is hereby authorized to join in the execution of any
such supplemental indenture and to make any further appropriate agreements and
stipulations that may be therein contained.
(b) The Issuer and the Indenture Trustee, when authorized by an Issuer
Order, may, also without the consent of any of the Noteholders but with prior
notice to the Rating Agencies at any time and from time to time enter into one
or more indentures supplemental hereto for the purpose of adding any provisions
to, changing in any manner, or eliminating any of the provisions of, this
Indenture or modifying in any manner the rights of the Noteholders under this
Indenture; provided, however, that such action shall not, as evidenced by an
Opinion of Counsel, adversely affect in any material respect the interests of
any Noteholder.
SECTION 9.2 Supplemental Indentures With Consent of Noteholders.The Issuer
and the Indenture Trustee, when authorized by an Issuer Order, also may, with
prior notice to the Rating Agencies and with the consent of the Holders of not
less than a majority of the Outstanding Amount of the Notes, by Act of such
Holders delivered to the Issuer and the Indenture Trustee, enter into an
indenture or indentures supplemental hereto for the purpose of adding any
provisions to, changing in any manner, or eliminating any of the provisions of,
this Indenture or of modifying in any manner the rights of the Noteholders under
this Indenture; provided, however, that no such supplemental indenture shall,
without the consent of the Holder of each Outstanding Note affected thereby:
(i) change the due date of any instalment of principal of or interest
on any Note, or reduce the principal amount thereof, the interest rate
applicable thereto, or the Redemption Price with respect thereto, change
any place of payment where, or the coin or currency in which, any Note or
any interest thereon is payable, or impair the right to institute suit for
the enforcement of the provisions of this Indenture requiring the
application of funds available therefor, as provided in Article V, to the
payment of any such amount due on the Notes on or after the respective due
dates thereof (or, in the case of redemption, on or after the Redemption
Date);
(ii) reduce the percentage of the Outstanding Amount of the Notes, the
consent of the Holders of which is required for any such supplemental
indenture, or the consent of the Holders of which is required for any
waiver of compliance with certain provisions of this Indenture or certain
defaults hereunder and their consequences as provided for in this
Indenture;
(iii) modify or alter the provisions of the proviso to the definition
of the term "Outstanding";
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(iv) reduce the percentage of the Outstanding Amount of the Notes
required to direct the Indenture Trustee to sell or liquidate the Trust
Estate pursuant to Section 5.4 if the proceeds of such sale would be
insufficient to pay the principal amount of and accrued but unpaid interest
on the Outstanding Notes;
(v) modify any provision of this Section 9.2 to decrease the required
minimum percentage necessary to approve any amendments to any provisions of
this Indenture or any of the Basic Documents;
(vi) modify any of the provisions of this Indenture in such manner as
to affect the calculation of the amount of any payment of interest or
principal due on any Note on any Distribution Date (including the
calculation of any of the individual components of such calculation), or
modify or alter the provisions of the Indenture regarding the voting of
Notes held by the Issuer, the Seller or any Affiliate of either of them; or
(vii) permit the creation of any Lien ranking prior to or on a parity
with the lien of this Indenture with respect to any part of the Trust
Estate or, except as otherwise permitted or contemplated herein, terminate
the lien of this Indenture on any property at any time subject thereto or
deprive the Holder of any Note of the security afforded by the lien of this
Indenture.
(b) The Indenture Trustee may in its discretion determine whether or not
any Notes would be affected (such that the consent of each Noteholder would be
required) by any supplemental indenture proposed pursuant to this Section 9.2
and any such determination shall be binding upon the Holders of all Notes,
whether authenticated and delivered thereunder before or after the date upon
which such supplemental indenture becomes effective. The Indenture Trustee shall
not be liable for any such determination made in good faith.
(c) It shall be sufficient if an Act of Noteholders approves the substance,
but not the form, of any proposed supplemental indenture.
(d) Promptly after the execution by the Issuer and the Indenture Trustee of
any supplemental indenture pursuant to this Section 9.2, the Indenture Trustee
shall mail to the Noteholders to which such amendment or supplemental indenture
relates a notice setting forth in general terms the substance of such
supplemental indenture. Any failure of the Indenture Trustee to mail such
notice, or any defect therein, shall not, however, in any way impair or affect
the validity of any such supplemental indenture.
SECTION 9.3 Execution of Supplemental Indentures. In executing, or
permitting the additional trusts created by, any supplemental indenture
permitted by this Article IX or the modifications thereby of the trusts created
by this Indenture, the Indenture Trustee shall be entitled to receive, and
subject to Sections 6.1 and 6.2, shall be fully protected in relying upon, an
Opinion of Counsel stating that the execution of such supplemental indenture is
authorized or permitted by this Indenture. The Indenture Trustee may, but shall
not be obligated to, enter into any such supplemental indenture that affects the
Indenture Trustee's own rights, duties, liabilities or immunities under this
Indenture or otherwise.
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SECTION 9.4 Effect of Supplemental Indenture. Upon the execution of any
supplemental indenture pursuant to the provisions hereof, this Indenture shall
be and be deemed to be modified and amended in accordance therewith with respect
to the Notes affected thereby, and the respective rights, limitations of rights,
obligations, duties, liabilities and immunities under this Indenture of the
Indenture Trustee, the Issuer and the Noteholders shall thereafter be
determined, exercised and enforced hereunder subject in all respects to such
modifications and amendments, and all the terms and conditions of any such
supplemental indenture shall be and be deemed to be part of the terms and
conditions of this Indenture for any and all purposes.
SECTION 9.5 Conformity with Trust Indenture Act. Every amendment of this
Indenture and every supplemental indenture executed pursuant to this Article IX
shall conform to the requirements of the TIA as then in effect so long as this
Indenture shall then be qualified under the TIA.
SECTION 9.6 Reference in Notes to Supplemental Indentures. Notes
authenticated and delivered after the execution of any supplemental indenture
pursuant to this Article IX may, and if required by the Indenture Trustee shall,
bear a notation in form approved by the Indenture Trustee as to any matter
provided for in such supplemental indenture. If the Issuer or the Indenture
Trustee shall so determine, new Notes so modified as to conform, in the opinion
of the Indenture Trustee and the Issuer, to any such supplemental indenture may
be prepared and executed by the Issuer and authenticated and delivered by the
Indenture Trustee in exchange for Outstanding Notes of the same class.
ARTICLE X
REDEMPTION OF NOTESRedemption. The Redeemable Notes are subject to redemption in
whole, but not in part, upon the exercise by the Servicer of its option to
purchase the Receivables pursuant to Section 8.01 of the Trust Sale and
Servicing Agreement. The date on which such redemption shall occur is the
Distribution Date following the Optional Purchase Date identified by Servicer in
its notice of exercise of such purchase option (the "Redemption Date"). The
purchase price for the Redeemable Notes shall be equal to the applicable
Redemption Price, provided the Issuer has available funds sufficient to pay such
amount. The Servicer or the Issuer shall furnish the Rating Agencies notice of
such redemption. If the Redeemable Notes are to be redeemed pursuant to this
Section 10.1, the Servicer or the Issuer shall furnish notice thereof to the
Indenture Trustee not later than 25 days prior to the Redemption Date and the
Indenture Trustee (based on such notice) shall withdraw from the Collection
Account and deposit into the Note Distribution Account, on the Redemption Date,
the aggregate Redemption Price of the Redeemable Notes, whereupon all such Notes
shall be due and payable on the Redemption Date.
SECTION 10.2 Form of Redemption Notice.Notice of redemption of the
Redeemable Notes under Section 10.1 shall be given by the Indenture Trustee by
first-class mail, postage prepaid, mailed not less than five days prior to the
applicable Redemption Date to each Noteholder of Redeemable Notes of record at
such Noteholder's address appearing in the Note Register.
(b) All notices of redemption shall state:
(i) the Redemption Date;
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(ii) the applicable Redemption Price; and
(iii) the place where Redeemable Notes are to be surrendered for
payment of the Redemption Price (which shall be the Agency Office of the
Indenture Trustee to be maintained as provided in Section 3.2).
(c) Notice of redemption of the Redeemable Notes shall be given by the
Indenture Trustee in the name and at the expense of the Issuer. Failure to give
notice of redemption, or any defect therein, to any Holder of any Redeemable
Note shall not impair or affect the validity of the redemption of any other
Redeemable Note.
SECTION 10.3 Notes Payable on Redemption Date. The Redeemable Notes shall,
following notice of redemption as required by Section 10.2, on the Redemption
Date cease to be Outstanding for purposes of this Indenture and shall thereafter
represent only the right to receive the applicable Redemption Price and (unless
the Issuer shall default in the payment of such Redemption Price) no interest
shall accrue on such Redemption Price for any period after the date to which
accrued interest is calculated for purposes of calculating such Redemption
Price.
ARTICLE XI
MISCELLANEOUSCompliance Certificates and Opinions, etc.Upon any application or
request by the Issuer to the Indenture Trustee to take any action under any
provision of this Indenture, the Issuer shall furnish to the Indenture Trustee:
(i) an Officer's Certificate stating that all conditions precedent, if any,
provided for in this Indenture relating to the proposed action have been
complied with, (ii) an Opinion of Counsel stating that in the opinion of such
counsel all such conditions precedent, if any, have been complied with, and
(iii) (if required by the TIA) an Independent Certificate from a firm of
certified public accountants meeting the applicable requirements of this Section
11.1, except that, in the case of any such application or request as to which
the furnishing of such documents is specifically required by any provision of
this Indenture, no additional certificate or opinion need be furnished. Every
certificate or opinion with respect to compliance with a condition or covenant
provided for in this Indenture shall include:
(i) a statement that each signatory of such certificate or opinion has
read or has caused to be read such covenant or condition and the
definitions herein relating thereto;
(ii) a brief statement as to the nature and scope of the examination
or investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(iii) a statement that, in the judgment of each such signatory, such
signatory has made such examination or investigation as is necessary to
enable such signatory to express an informed opinion as to whether or not
such covenant or condition has been complied with; and
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(iv) a statement as to whether, in the opinion of each such signatory,
such condition or covenant has been complied with.
(b) (i) Prior to the deposit with the Indenture Trustee of any Collateral
or other property or securities that is to be made the basis for the release of
any property or securities subject to the lien of this Indenture, the Issuer
shall, in addition to any obligation imposed in Section 11.1(a) or elsewhere in
this Indenture, furnish to the Indenture Trustee an Officer's Certificate
certifying or stating the opinion of each Person signing such certificate as to
the fair value (within 90 days of such deposit) to the Issuer of the Collateral
or other property or securities to be so deposited.
(ii) Whenever the Issuer is required to furnish to the Indenture
Trustee an Officer's Certificate certifying or stating the opinion of any
signer thereof as to the matters described in clause (b)(i) above, the
Issuer shall also deliver to the Indenture Trustee an Independent
Certificate as to the same matters, if the fair value to the Issuer of the
securities to be so deposited and of all other such securities made on the
basis of any such withdrawal or release since the commencement of the then
current fiscal year of the Issuer, as set forth in the certificates
delivered pursuant to clause (i) above and this clause (b)(ii), is 10% or
more of the Outstanding Amount of the Notes, but such a certificate need
not be furnished with respect to any securities so deposited, if the fair
value thereof to the Issuer as set forth in the related Officer's
Certificate is less than $25,000 or less than one percent of the
Outstanding Amount of the Notes.
(iii) Other than with respect to the release of any Warranty
Receivables, Administrative Receivables or Liquidating Receivables,
whenever any property or securities are to be released from the lien of
this Indenture, the Issuer shall also furnish to the Indenture Trustee an
Officer's Certificate certifying or stating the opinion of each Person
signing such certificate as to the fair value (within 90 days of such
release) of the property or securities proposed to be released and stating
that in the opinion of such Person the proposed release will not impair the
security under this Indenture in contravention of the provisions hereof.
(iv) Whenever the Issuer is required to furnish to the Indenture
Trustee an Officer's Certificate certifying or stating the opinion of any
signatory thereof as to the matters described in clause (b)(iii) above, the
Issuer shall also furnish to the Indenture Trustee an Independent
Certificate as to the same matters if the fair value of the property or
securities and of all other property, other than Warranty Receivables,
Administrative Receivables and Liquidating Receivables, or securities
released from the lien of this Indenture since the commencement of the then
current calendar year, as set forth in the certificates required by clause
(b)(iii) above and this clause (b)(iv), equals 10% or more of the
Outstanding Amount of the Notes, but such certificate need not be furnished
in the case of any release of property or securities if the fair value
thereof as set forth in the related Officer's Certificate is less than
$25,000 or less than one percent of the then Outstanding Amount of the
Notes.
(v) Notwithstanding Section 2.9 or any other provision of this Section
11.1, the Issuer may (A) collect, liquidate, sell or otherwise dispose of
Receivables as and to the extent permitted or required by the Basic
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Documents, (B) make cash payments out of the Designated Accounts and the
Certificate Distribution Account as and to the extent permitted or required
by the Basic Documents and (C) take any other action not inconsistent with
the TIA.
SECTION 11.2 Form of Documents Delivered to Indenture Trustee.In any case
where several matters are required to be certified by, or covered by an opinion
of, any specified Person, it is not necessary that all such matters be certified
by, or covered by the opinion of, only one such Person, or that they be so
certified or covered by only one document, but one such Person may certify or
give an opinion with respect to some matters and one or more other such Persons
as to other matters, and any such Person may certify or give an opinion as to
such matters in one or several documents.
(b) Any certificate or opinion of an Authorized Officer of the Issuer may
be based, insofar as it relates to legal matters, upon a certificate or opinion
of, or representations by, counsel, unless such officer knows, or in the
exercise of reasonable care should know, that any certificate, opinion or
representation with respect to the matters upon which his certificate or opinion
is based is erroneous. Any such certificate of an Authorized Officer or Opinion
of Counsel may be based, insofar as it relates to factual matters, upon a
certificate or opinion of, or representations by, an officer or officers of the
Servicer, the Seller, the Issuer or the Administrator, stating that the
information with respect to such factual matters is in the possession of the
Servicer, the Seller, the Issuer or the Administrator, unless such counsel
knows, or in the exercise of reasonable care should know, that the certificate
or opinion or representations with respect to such matters are erroneous.
(c) Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
(d) Whenever in this Indenture, in connection with any application or
certificate or report to the Indenture Trustee, it is provided that the Issuer
shall deliver any document as a condition of the granting of such application,
or as evidence of the Issuer's compliance with any term hereof, it is intended
that the truth and accuracy, at the time of the granting of such application or
at the effective date of such certificate or report (as the case may be), of the
facts and opinions stated in such document shall in such case be conditions
precedent to the right of the Issuer to have such application granted or to the
sufficiency of such certificate or report. The foregoing shall not, however, be
construed to affect the Indenture Trustee's right to rely upon the truth and
accuracy of any statement or opinion contained in any such document as provided
in Article VI.
SECTION 11.3 Acts of Noteholders.Any request, demand, authorization,
direction, notice, consent, waiver or other action provided by this Indenture to
be given or taken by Noteholders or a class of Noteholders may be embodied in
and evidenced by one or more instruments of substantially similar tenor signed
by such Noteholders in person or by agents duly appointed in writing; and except
as herein otherwise expressly provided such action shall become effective when
such instrument or instruments are delivered to the Indenture Trustee, and,
where it is hereby expressly required, to the Issuer. Such instrument or
instruments (and the action embodied therein and evidenced thereby) are herein
sometimes referred to as the "Act" of the Noteholders signing such instrument or
instruments. Proof of execution of any such instrument or of a writing
49
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appointing any such agent shall be sufficient for any purpose of this Indenture
and (subject to Section 6.1) conclusive in favor of the Indenture Trustee and
the Issuer, if made in the manner provided in this Section 11.3.
(b) The fact and date of the execution by any person of any such instrument
or writing may be proved in any manner that the Indenture Trustee deems
sufficient.
(c) The ownership of Notes shall be proved by the Note Register.
(d) Any request, demand, authorization, direction, notice, consent, waiver
or other action by the Holder of any Notes (or any one or more Predecessor
Notes) shall bind the Holder of every Note issued upon the registration thereof
or in exchange therefor or in lieu thereof, in respect of anything done, omitted
or suffered to be done by the Indenture Trustee or the Issuer in reliance
thereon, whether or not notation of such action is made upon such Note.
SECTION 11.4 Notices, etc., to Indenture Trustee, Issuer and Rating
Agencies. Any request, demand, authorization, direction, notice, consent, waiver
or Act of Noteholders or other documents provided or permitted by this Indenture
to be made upon, given or furnished to or filed with:
(a) the Indenture Trustee by any Noteholder or by the Issuer shall be
sufficient for every purpose hereunder if made, given, furnished or filed in
writing to or with the Indenture Trustee at its Corporate Trust Office, or
(b) the Issuer by the Indenture Trustee or by any Noteholder shall be
sufficient for every purpose hereunder if in writing and either sent by
electronic facsimile transmission (with hard copy to follow via first class
mail) or mailed, by certified mail, return receipt requested to the Issuer and
the Owner Trustee each at the address specified in Appendix B to the Trust Sale
and Servicing Agreement.
The Issuer shall promptly transmit any notice received by it from the
Noteholders to the Indenture Trustee. The Indenture Trustee shall likewise
promptly transmit any notice received by it from the Noteholders to the Issuer.
(c) Notices required to be given to the Rating Agencies by the Issuer and
the Indenture Trustee or the Owner Trustee shall be delivered as specified in
Appendix B to the Trust Sale and Servicing Agreement.
SECTION 11.5 Notices to Noteholders; Waiver.Where this Indenture provides
for notice to Noteholders of any event, such notice shall be sufficiently given
(unless otherwise herein expressly provided) if it is in writing and mailed,
first-class, postage prepaid to each Noteholder affected by such event, at such
Person's address as it appears on the Note Register, not later than the latest
date, and not earlier than the earliest date, prescribed for the giving of such
notice. If notice to Noteholders is given by mail, neither the failure to mail
such notice nor any defect in any notice so mailed to any particular Noteholder
shall affect the sufficiency of such notice with respect to other Noteholders,
and any notice that is mailed in the manner herein provided shall conclusively
50
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be presumed to have been duly given regardless of whether such notice is in fact
actually received.
(b) Where this Indenture provides for notice in any manner, such notice may
be waived in writing by any Person entitled to receive such notice, either
before or after the event, and such waiver shall be the equivalent of such
notice. Waivers of notice by Noteholders shall be filed with the Indenture
Trustee but such filing shall not be a condition precedent to the validity of
any action taken in reliance upon such a waiver.
(c) In case, by reason of the suspension of regular mail service as a
result of a strike, work stoppage or similar activity, it shall be impractical
to mail notice of any event of Noteholders when such notice is required to be
given pursuant to any provision of this Indenture, then any manner of giving
such notice as shall be satisfactory to the Indenture Trustee shall be deemed to
be a sufficient giving of such notice.
(d) Where this Indenture provides for notice to the Rating Agencies,
failure to give such notice shall not affect any other rights or obligations
created hereunder, and shall not under any circumstance constitute an Event of
Default.
SECTION 11.6 Alternate Payment and Notice Provisions. Notwithstanding any
provision of this Indenture or any of the Notes to the contrary, the Issuer may
enter into any agreement with any Holder of a Note providing for a method of
payment, or notice by the Indenture Trustee or any Paying Agent to such Holder,
that is different from the methods provided for in this Indenture for such
payments or notices. The Issuer shall furnish to the Indenture Trustee a copy of
each such agreement and the Indenture Trustee shall cause payments to be made
and notices to be given in accordance with such agreements.
SECTION 11.7 Conflict with Trust Indenture Act.If any provision hereof
limits, qualifies or conflicts with another provision hereof that is required to
be included in this Indenture by any of the provisions of the TIA, such required
provision shall control.
(b) The provisions of TIA ss.ss. 310 through 317 that impose duties on any
Person (including the provisions automatically deemed included herein unless
expressly excluded by this Indenture) are a part of and govern this Indenture,
whether or not physically contained herein.
SECTION 11.8 Effect of Headings and Table of Contents. The Article and
Section headings herein and the Table of Contents are for convenience only and
shall not affect the construction hereof.
SECTION 11.9 Successors and Assigns.All covenants and agreements in this
Indenture and the Notes by the Issuer shall bind its successors and assigns,
whether so expressed or not.
(b) All covenants and agreements of the Indenture Trustee in this Indenture
shall bind its successors and assigns, whether so expressed or not.
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SECTION 11.10 Severability. In case any provision in this Indenture or in
the Notes shall be invalid, illegal or unenforceable, the validity, legality,
and enforceability of the remaining provisions shall not in any way be affected
or impaired thereby.
SECTION 11.11 Benefits of Indenture. Nothing in this Indenture or in the
Notes, express or implied, shall give to any Person, other than the parties
hereto and their successors hereunder, and to the extent expressly provided
herein, the Noteholders, the Certificateholders, any other party secured
hereunder, any other Person with an ownership interest in any part of the Trust
Estate and any holder of a Third Party Instrument, any benefit or any legal or
equitable right, remedy or claim under this Indenture. The holder of a Third
Party Instrument shall be a third-party beneficiary to this Agreement only to
the extent that it has any rights specified herein or rights with respect to
this Indenture specified under the Swap Counterparty Rights Agreement.
SECTION 11.12 Legal Holidays. If the date on which any payment is due shall
not be a Business Day, then (notwithstanding any other provision of the Notes or
this Indenture) payment need not be made on such date, but may be made on the
next succeeding Business Day with the same force and effect as if made on the
date on which nominally due, and no interest shall accrue for the period from
and after any such nominal date.
SECTION 11.13 GOVERNING LAW. THIS INDENTURE SHALL BE CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REFERENCE TO ITS
CONFLICT OF LAW PROVISIONS, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE
PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
SECTION 11.14 Counterparts. This Indenture may be executed in any number of
counterparts, each of which so executed shall be deemed to be an original, but
all such counterparts shall together constitute but one and the same instrument.
SECTION 11.15 Recording of Indenture. If this Indenture is subject to
recording in any appropriate public recording offices, such recording is to be
effected by the Issuer and at its expense accompanied by an Opinion of Counsel
(which may be counsel to the Indenture Trustee or any other counsel reasonably
acceptable to the Indenture Trustee) to the effect that such recording is
necessary either for the protection of the Noteholders or any other Person
secured hereunder or for the enforcement of any right or remedy granted to the
Indenture Trustee under this Indenture.
SECTION 11.16 No Recourse. No recourse may be taken, directly or
indirectly, with respect to the obligations of the Issuer, the Owner Trustee or
the Indenture Trustee on the Notes or under this Indenture or any certificate or
other writing delivered in connection herewith or therewith, against:
(a) the Indenture Trustee or the Owner Trustee in its individual capacity;
(b) the Seller or any other owner of a beneficial interest in the Issuer;
or
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(c) any partner, owner, beneficiary, agent, officer, director, employee or
agent of the Indenture Trustee or the Owner Trustee in its individual capacity,
the Seller or any other holder of a beneficial interest in the Issuer, the Owner
Trustee or the Indenture Trustee or of any successor or assign of the Indenture
Trustee or the Owner Trustee in its individual capacity (or any of their
successors or assigns), except as any such Person may have expressly agreed (it
being understood that the Indenture Trustee and the Owner Trustee have no such
obligations in their individual capacity) and except that any such partner,
owner or beneficiary shall be fully liable, to the extent provided by applicable
law, for any unpaid consideration for stock, unpaid capital contribution or
failure to pay any instalment or call owing to such entity. For all purposes of
this Indenture, in the performance of any duties or obligations of the Issuer
hereunder, the Owner Trustee shall be subject to, and entitled to the benefits
of, the terms and provisions of Articles VI, VII and VIII of the Trust
Agreement.
SECTION 11.17 No Petition. The Indenture Trustee, by entering into this
Indenture, and each Noteholder and Note Owner, by accepting a Note (or interest
therein) issued hereunder, hereby covenant and agree that they shall not, prior
to the date which is one year and one day after the termination of this
Indenture with respect to the Issuer pursuant to Section 4.1, acquiesce,
petition or otherwise invoke or cause the Seller or the Issuer to invoke the
process of any court or government authority for the purpose of commencing or
sustaining a case against the Seller or the Issuer under any federal or state
bankruptcy, insolvency or similar law or appointing a receiver, liquidator,
assignee, trustee, custodian, sequestrator or other similar official of the
Seller or the Issuer or any substantial part of its property, or ordering the
winding up or liquidation of the affairs of the Seller or the Issuer.
SECTION 11.18 Inspection. The Issuer agrees that, on reasonable prior
notice, it shall permit any representative of the Indenture Trustee, during the
Issuer's normal business hours, to examine all the books of account, records,
reports, and other papers of the Issuer, to make copies and extracts therefrom,
to cause such books to be audited by Independent certified public accountants,
and to discuss the Issuer's affairs, finances and accounts with the Issuer's
officers, employees and Independent certified public accountants, all at such
reasonable times and as often as may be reasonably requested. The Indenture
Trustee shall and shall cause its representatives to hold in confidence all such
information except to the extent disclosure may be required by law (and all
reasonable applications for confidential treatment are unavailing) and except to
the extent that the Indenture Trustee may reasonably determine that such
disclosure is consistent with its obligations hereunder.
SECTION 11.19 Indemnification by and Reimbursement of the Servicer. The
Indenture Trustee acknowledges and agrees to reimburse (i) the Servicer and its
directors, officers, employees and agents in accordance with Section 6.03(b) of
the Trust Sale and Servicing Agreement and (ii) the Seller and its directors,
officers, employees and agents in accordance with Section 3.04 of the Trust Sale
and Servicing Agreement. The Indenture Trustee further acknowledges and accepts
the conditions and limitations with respect to the Servicer's obligation to
indemnify, defend and hold the Indenture Trustee harmless as set forth in
Section 6.01(a)(iv) of the Trust Sale and Servicing Agreement.
* * * * *
53
IN WITNESS WHEREOF, the Issuer and the Indenture Trustee have caused this
Indenture to be duly executed by their respective officers, thereunto duly
authorized, all as of the day and year first above written.
CAPITAL AUTO RECEIVABLES ASSET TRUST 2002-1
By: BANKERS TRUST (DELAWARE),
not in its individual capacity but solely
as Owner Trust
By: CHARLES C. GREITER
________________________________________________
Name: Charles C. Greiter
Title: Attorney-in-fact
BANK ONE, NATIONAL ASSOCIATION,
not in its individual capacity but solely as
Indenture Trustee,
By: ____________________________________________
Name: _________________________________________
Title: ________________________________________
STATE OF ILLINOIS )
) ss
COUNTY OF COOK )
BEFORE ME, the undersigned authority, a Notary Public in and for said
county and state, on this day personally appeared Charles C. Greiter, known to
me to be the person and officer whose name is subscribed to the foregoing
instrument and acknowledged to me that the same was the act of the said Capital
Auto Receivables Asset Trust 2002-1, a Delaware business trust, and that he
executed the same as the act of said business trust for the purpose and
consideration therein expressed, and in the capacities therein stated.
GIVEN UNDER MY HAND AND SEAL OF OFFICE, this the 24th day of January, 2002.
---------------------------------------------
Notary Public in and for the State of Illinois
My commission expires:
- -----------------------------
STATE OF ILLINOIS )
) ss
COUNTY OF COOK )
BEFORE ME, the undersigned authority, a Notary Public in and for said
county and state, on this day personally appeared ______________, known to me to
be the person and officer whose name is subscribed to the foregoing instrument
and acknowledged to me that the same was the act of the said Bank One, National
Association, and that he executed the same as the act of said national banking
association for the purpose and consideration therein stated.
GIVEN UNDER MY HAND AND SEAL OF OFFICE, this the 24th day of January, 2002.
---------------------------------------------
Notary Public in and for the State of Illinois
My commission expires:
- -----------------------------
EXHIBIT A
LOCATION OF
SCHEDULE OF RECEIVABLES
The Schedule of Receivables is on file at the offices of:
1. The Indenture Trustee
2. The Owner Trustee
3. General Motors Acceptance Corporation
4. Capital Auto Receivables, Inc.
EXHIBIT B
FORM OF NOTE DEPOSITORY AGREEMENT
EXHIBIT C-1
FORM OF FLOATING RATE OFFERED CLASS [A-2] [A-3] ASSET BACKED NOTE
REGISTERED $____________
No. R-
SEE REVERSE FOR CERTAIN DEFINITIONS
CUSIP NO. __________
Unless this Note is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the Issuer or its
agent for registration of transfer, exchange or payment, and any Note issued is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC (and any payment is made to Cede & Co. or to
such other entity as is requested by an authorized representative of DTC), ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL inasmuch as the registered owner hereof, Cede & Co., has an interest
herein.
THE PRINCIPAL OF THIS NOTE IS PAYABLE AS SET FORTH HEREIN. ACCORDINGLY, THE
OUTSTANDING PRINCIPAL AMOUNT OF THIS NOTE AT ANY TIME MAY BE LESS THAN THE
AMOUNT SHOWN ON THE FACE HEREOF.
CAPITAL AUTO RECEIVABLES ASSET TRUST 2002-1
CLASS [A-2] [A-3] FLOATING RATE ASSET BACKED NOTES
CAPITAL AUTO RECEIVABLES ASSET TRUST 2002-1, a business trust organized and
existing under the laws of the State of Delaware (herein referred to as the
"Issuer"), for value received, hereby promises to pay to _______________, or
registered assigns, the principal sum of _______________ DOLLARS ($_________)
payable in accordance with the Indenture (as defined on the reverse side of this
Note), on each Distribution Date in an amount equal to the result obtained by
multiplying (i) a fraction, the numerator of which is the initial principal
amount hereof and the denominator of which is aggregate initial principal amount
for such Class [A-2] [A-3] Notes by (ii) the aggregate amount, if any, payable
on such Distribution Date from the Note Distribution Account in respect of
principal on the Class [A-2] [A-3] Notes pursuant to Sections 2.7, 3.1 and
8.2(c) of the Indenture; provided, however, that the entire unpaid principal
amount of this Note shall be due and payable on the earlier of ___________ (the
"Final Scheduled Distribution Date") and the Redemption Date, if any, pursuant
to Section 10.1 of the Indenture. The Issuer shall pay interest on this Note on
1
each Distribution Date until the principal of this Note is paid or made
available for payment on the principal amount of this Note outstanding on the
preceding Distribution Date (after giving effect to all payments of principal
made on the preceding Distribution Date (or, for the initial Distribution Date,
the outstanding principal balance on the Closing Date)). Interest on the Class
[A-2] [A-3] Notes will accrue from and including the Closing Date, and will be
payable on each Distribution Date in an amount equal to the Noteholders'
Interest Distributable Amount for such Distribution Date for the Class [A-2]
[A-3] Notes. Interest will be computed on the basis of actual number of days
elapsed from and including the prior Distribution Date (or, in the case of the
first Distribution Date, from and including the Closing Date) and a 360-day
year. Such principal of and interest on this Note shall be paid in the manner
specified on the reverse hereof. All interest payments on each class of Notes on
any Distribution Date shall be made pro rata to the Noteholders of such class
entitled thereto.
The principal of and interest on this Note are payable in such coin or
currency of the United States of America which, at the time of payment, is legal
tender for payment of public and private debts. All payments made by the Issuer
with respect to this Note shall be applied first to interest due and payable on
this Note as provided above and then to the unpaid principal of this Note.
Reference is made to the further provisions of this Note set forth on the
reverse hereof, which shall have the same effect as though fully set forth on
the face of this Note.
Unless the certificate of authentication hereon has been executed by the
Indenture Trustee whose name appears below by manual signature, this Note shall
not be entitled to any benefit under the Indenture referred to on the reverse
hereof or be valid or obligatory for any purpose.
2
IN WITNESS WHEREOF, the Issuer has caused this instrument to be signed,
manually or in facsimile, by its Authorized Officer.
Date: January 24, 2002
CAPITAL AUTO RECEIVABLES ASSET TRUST 2002-1
By: BANKERS TRUST (DELAWARE),
not in its individual capacity but solely
as Owner Trustee
By: CHARLES C. GREITER
________________________________________________
Name: Charles C. Greiter
Title: Attorney-in-fact
INDENTURE TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Notes designed above and referred to in the
within-mentioned Indenture.
BANK ONE, NATIONAL ASSOCIATION, not in its
individual capacity but solely as Indenture Trustee
By: ______________________________________________
Name: ___________________________________________
Title: ___________________________________________
REVERSE OF NOTE
This Note is one of a duly authorized issue of Notes of the Issuer,
designated as its Class [A-2] [A-3] Floating Rate Asset Backed Notes (herein
called the "Class [A-2] [A-3] Notes"), all issued under an Indenture, dated as
of January 24, 2002 (such Indenture, as supplemented or amended, is herein
called the "Indenture"), between the Issuer and Bank One, National Association,
as trustee (the "Indenture Trustee", which term includes any successor trustee
under the Indenture), to which Indenture and all indentures supplemental thereto
reference is hereby made for a statement of the respective rights and
obligations thereunder of the Issuer, the Indenture Trustee and the Noteholders.
The Class [A-2] [A-3] Notes are one of several duly authorized classes of Notes
of the Issuer issued pursuant to the Indenture (collectively, as to all Notes of
all such classes, the "Notes"). The Notes are governed by and subject to all
terms of the Indenture (which terms are incorporated herein and made a part
hereof), to which Indenture the Holder of this Note by virtue of acceptance
hereof assents and by which such Holder is bound. All capitalized terms used and
not otherwise defined in this Note that are defined in the Indenture, as
supplemented or amended, shall have the meanings assigned to them in or pursuant
to the Indenture.
The Class [A-2] [A-3] Notes and all other Notes issued pursuant to the
Indenture are and will be equally and ratably secured by the Collateral pledged
as security therefor as provided in the Indenture.
Each Noteholder or Note Owner, by acceptance of a Note or, in the case of a
Note Owner, a beneficial interest in a Note, covenants and agrees that no
recourse may be taken, directly or indirectly, with respect to the obligations
of the Issuer, the Owner Trustee or the Indenture Trustee on the Notes or under
the Indenture or any certificate or other writing delivered in connection
therewith, against (i) the Indenture Trustee or the Owner Trustee in their
individual capacities, (ii) the Seller or any other owner of a beneficial
interest in the Issuer or (iii) any partner, owner, beneficiary, agent, officer,
director or employee of the Indenture Trustee or the Owner Trustee in their
individual capacities, any holder of a beneficial interest in the Issuer, the
Owner Trustee or the Indenture Trustee or of any successor or assign of the
Indenture Trustee or the Owner Trustee in their individual capacities, except as
any such Person may have expressly agreed and except that any such partner,
owner or beneficiary shall be fully liable, to the extent provided by applicable
law, for any unpaid consideration for stock, unpaid capital contribution or
failure to pay any instalment or call owing to such entity.
Each Noteholder or Note Owner, by acceptance of a Note or, in the case of a
Note Owner, a beneficial interest in a Note, covenants and agrees that by
accepting the benefits of the Indenture such Noteholder will not, prior to the
date which is one year and one day after the termination of the Indenture with
respect to the Issuer, acquiesce, petition or otherwise invoke or cause the
Seller or the Issuer to invoke the process of any court or government authority
for the purpose of commencing or sustaining a case against the Seller or the
Issuer under any federal or state bankruptcy, insolvency or similar law or
appointing a receiver, liquidator, assignee, trustee, custodian, sequestrator or
other similar official of the Seller or the Issuer or any substantial part of
its property, or ordering the winding up or liquidation of the affairs of the
Seller or the Issuer.
4
Each Noteholder, by acceptance of a Note or, in the case of a Note Owner, a
beneficial interest in a Note, expresses its intention that this Note qualifies
under applicable tax law as indebtedness secured by the Collateral and, unless
otherwise required by appropriate taxing authorities, agrees to treat the Notes
as indebtedness secured by the Collateral for the purpose of federal income
taxes, state and local income and franchise taxes, Michigan single business tax,
and any other taxes imposed upon, measured by or based upon gross or net income.
Prior to the due presentment for registration of transfer of this Note, the
Issuer, the Indenture Trustee and any agent of the Issuer or the Indenture
Trustee may treat the Person in whose name this Note (as of the day of
determination or as of such other date as may be specified in the Indenture) is
registered as the owner hereof for all purposes, whether or not this Note shall
be overdue, and neither the Issuer, the Indenture Trustee nor any such agent
shall be affected by notice to the contrary.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Issuer and the rights of the Noteholders under the Indenture at any time by the
Issuer with the consent of the Holders of Notes representing a majority of the
Outstanding Amount of all the Notes. The Indenture also contains provisions
permitting the Holders of Notes representing specified percentages of the
Outstanding Amount of the Notes, on behalf of the Holders of all the Notes, to
waive compliance by the Issuer with certain provisions of the Indenture and
certain past defaults under the Indenture and their consequences. Any such
consent or waiver by the Holder of this Note (or any one of more Predecessor
Notes) shall be conclusive and binding upon such Holder and upon all future
Holders of this Note and of any Note issued upon the registration of transfer
hereof or in exchange hereof or in lieu hereof whether or not notation of such
consent or waiver is made upon this Note. The Indenture also permits the
Indenture Trustee to amend or waive certain terms and conditions set forth in
the Indenture without the consent of the Noteholders.
The term "Issuer" as used in this Note includes any successor to the Issuer
under the Indenture.
The Issuer is permitted by the Indenture, under certain circumstances, to
merge or consolidate, subject to the rights of the Indenture Trustee and the
Holders of Notes under the Indenture.
The Notes are issuable only in registered form in denominations as provided
in the Indenture, subject to certain limitations therein set forth.
This Note and the Indenture shall be construed in accordance with the laws
of the State of New York, without reference to its conflict of law provisions,
and the obligations, rights and remedies of the parties hereunder and thereunder
shall be determined in accordance with such laws.
No reference herein to the Indenture and no provision of this Note or of
the Indenture shall alter or impair the obligation of the Issuer, which is
absolute and unconditional, to pay the principal of and interest on this Note at
the times, place and rate, and in the coin or currency herein prescribed.
5
Anything herein to the contrary notwithstanding, except as expressly
provided in the Basic Documents, neither the Seller, the Servicer, the Indenture
Trustee nor the Owner Trustee in their respective individual capacities, any
owner of a beneficial interest in the Issuer, nor any of their respective
partners, beneficiaries, agents, officers, directors, employees or successors or
assigns, shall be personally liable for, nor shall recourse be had to any of
them for, the payment of principal of or interest on, or performance of, or
omission to perform, any of the covenants, obligations or indemnifications
contained in this Note or the Indenture, it being expressly understood that said
covenants, obligations and indemnifications have been made by the Owner Trustee
solely as the Owner Trustee in the assets of the Issuer. The Holder of this Note
by the acceptance hereof agrees that, except as expressly provided in the Basic
Documents, in the case of an Event of Default under the Indenture, the Holder
shall have no claim against any of the foregoing for any deficiency, loss or
claim therefrom; provided, however, that nothing contained herein shall be taken
to prevent recourse to, and enforcement against, the assets of the Issuer for
any and all liabilities, obligations and undertakings contained in the Indenture
or in this Note.
6
ASSIGNMENT
Social Security or taxpayer I.D. or other identifying number of assignee
- ---------------------------------
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers
unto _______________________________________________
______________________________________________________________
.................. (name and address of assignee)
the within Note and all rights thereunder, and hereby irrevocably constitutes
and appoints ____________________________________, as attorney, to transfer said
Note on the books kept for registration thereof, with full power of substitution
in the premises.
Dated:__________________ __________________________________1
Signature Guaranteed:
________________________ __________________________________
______________________________
1 NOTE: The signature to this assignment must correspond with the name of the
registered owner as it appears on the face of the within Note in every
particular, without alteration, enlargement or any change whatsoever.
<page>
EXHIBIT C-2
FORM OF FIXED RATE OFFERED CLASS A-4 ASSET BACKED NOTE
REGISTERED $____________
No. R-
SEE REVERSE FOR CERTAIN DEFINITIONS
CUSIP NO. __________
Unless this Note is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the Issuer or
its agent for registration of transfer, exchange or payment, and any Note
issued is registered in the name of Cede & Co. or in such other name as is
requested by an authorized representative of DTC (and any payment is made
to Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE
OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered
owner hereof, Cede & Co., has an interest herein.
THE PRINCIPAL OF THIS NOTE IS PAYABLE AS SET FORTH HEREIN.
ACCORDINGLY, THE OUTSTANDING PRINCIPAL AMOUNT OF THIS NOTE AT ANY TIME MAY
BE LESS THAN THE AMOUNT SHOWN ON THE FACE HEREOF.
CAPITAL AUTO RECEIVABLES ASSET TRUST 2002-1
CLASS A-4 4.16% ASSET BACKED NOTES
CAPITAL AUTO RECEIVABLES ASSET TRUST 2002-1, a business trust organized and
existing under the laws of the State of Delaware (herein referred to as the
"Issuer"), for value received, hereby promises to pay to _______________, or
registered assigns, the principal sum of _______________ DOLLARS ($_________)
payable in accordance with the Indenture (as defined on the reverse side of this
Note), on each Distribution Date in an amount equal to the result obtained by
multiplying (i) a fraction, the numerator of which is the initial principal
amount hereof and the denominator of which is aggregate initial principal amount
for such Class A-4 Notes by (ii) the aggregate amount, if any, payable on such
Distribution Date from the Note Distribution Account in respect of principal on
the Class A-4 Notes pursuant to Sections 2.7, 3.1 and 8.2(c) of the Indenture;
provided, however, that the entire unpaid principal amount of this Note shall be
due and payable on the earlier of ___________ (the "Final Scheduled Distribution
Date") and the Redemption Date, if any, pursuant to Section 10.1 of the
Indenture. The Issuer shall pay interest on this Note at the rate per annum
shown above on each Distribution Date until the principal of this Note is paid
or made available for payment on the principal amount of this Note outstanding
on the preceding Distribution Date (after giving effect to all payments of
principal made on the preceding Distribution Date (or, for the initial
Distribution Date, the outstanding principal balance on the Closing Date)).
1
<page>
Interest on the Class A-4 Notes will accrue from and including the Closing Date,
and will be payable on each Distribution Date in an amount equal to the
Noteholders' Interest Distributable Amount for such Distribution Date for the
Class A-4 Notes. Interest will be computed on the basis of a 360-day year of
twelve 30-day months (or, in the case of the initial Distribution Date, 21/360).
Such principal of and interest on this Note shall be paid in the manner
specified on the reverse hereof. All interest payments on each class of Notes on
any Distribution Date shall be made pro rata to the Noteholders of such class
entitled thereto.
The principal of and interest on this Note are payable in such coin or
currency of the United States of America which, at the time of payment, is legal
tender for payment of public and private debts. All payments made by the Issuer
with respect to this Note shall be applied first to interest due and payable on
this Note as provided above and then to the unpaid principal of this Note.
Reference is made to the further provisions of this Note set forth on the
reverse hereof, which shall have the same effect as though fully set forth on
the face of this Note.
Unless the certificate of authentication hereon has been executed by the
Indenture Trustee whose name appears below by manual signature, this Note shall
not be entitled to any benefit under the Indenture referred to on the reverse
hereof or be valid or obligatory for any purpose.
2
IN WITNESS WHEREOF, the Issuer has caused this instrument to be signed,
manually or in facsimile, by its Authorized Officer.
Date: January 24, 2002
CAPITAL AUTO RECEIVABLES ASSET TRUST 2002-1
By: BANKERS TRUST (DELAWARE),
not in its individual capacity but solely as
Owner Trustee
By: CHARLES C. GREITER
__________________________________________________
Name: Charles C. Greiter
Title: Attorney-in-fact
INDENTURE TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Notes designed above and referred to in the
within-mentioned Indenture.
BANK ONE, NATIONAL ASSOCIATION, not in its
individual capacity but solely as Indenture Trustee
By: ______________________________________________
Name: _______________________________________
Title: _______________________________________
3
REVERSE OF NOTE
This Note is one of a duly authorized issue of Notes of the Issuer,
designated as its Class A-4 4.16% Asset Backed Notes (herein called the "Class
A-4 Notes"), all issued under an Indenture, dated as of January 24, 2002 (such
Indenture, as supplemented or amended, is herein called the "Indenture"),
between the Issuer and Bank One, National Association, as trustee (the
"Indenture Trustee", which term includes any successor trustee under the
Indenture), to which Indenture and all indentures supplemental thereto reference
is hereby made for a statement of the respective rights and obligations
thereunder of the Issuer, the Indenture Trustee and the Noteholders. The Class
A-4 Notes are one of several duly authorized classes of Notes of the Issuer
issued pursuant to the Indenture (collectively, as to all Notes of all such
classes, the "Notes"). The Notes are governed by and subject to all terms of the
Indenture (which terms are incorporated herein and made a part hereof), to which
Indenture the Holder of this Note by virtue of acceptance hereof assents and by
which such Holder is bound. All capitalized terms used and not otherwise defined
in this Note that are defined in the Indenture, as supplemented or amended,
shall have the meanings assigned to them in or pursuant to the Indenture.
The Class A-4 Notes and all other Notes issued pursuant to the Indenture
are and will be equally and ratably secured by the Collateral pledged as
security therefor as provided in the Indenture.
Each Noteholder or Note Owner, by acceptance of a Note or, in the case of a
Note Owner, a beneficial interest in a Note, covenants and agrees that no
recourse may be taken, directly or indirectly, with respect to the obligations
of the Issuer, the Owner Trustee or the Indenture Trustee on the Notes or under
the Indenture or any certificate or other writing delivered in connection
therewith, against (i) the Indenture Trustee or the Owner Trustee in their
individual capacities, (ii) the Seller or any other owner of a beneficial
interest in the Issuer or (iii) any partner, owner, beneficiary, agent, officer,
director or employee of the Indenture Trustee or the Owner Trustee in their
individual capacities, any holder of a beneficial interest in the Issuer, the
Owner Trustee or the Indenture Trustee or of any successor or assign of the
Indenture Trustee or the Owner Trustee in their individual capacities, except as
any such Person may have expressly agreed and except that any such partner,
owner or beneficiary shall be fully liable, to the extent provided by applicable
law, for any unpaid consideration for stock, unpaid capital contribution or
failure to pay any instalment or call owing to such entity.
Each Noteholder or Note Owner, by acceptance of a Note or, in the case of a
Note Owner, a beneficial interest in a Note, covenants and agrees that by
accepting the benefits of the Indenture such Noteholder will not, prior to the
date which is one year and one day after the termination of the Indenture with
respect to the Issuer, acquiesce, petition or otherwise invoke or cause the
Seller or the Issuer to invoke the process of any court or government authority
for the purpose of commencing or sustaining a case against the Seller or the
Issuer under any federal or state bankruptcy, insolvency or similar law or
appointing a receiver, liquidator, assignee, trustee, custodian, sequestrator or
other similar official of the Seller or the Issuer or any substantial part of
its property, or ordering the winding up or liquidation of the affairs of the
Seller or the Issuer.
Each Noteholder, by acceptance of a Note or,
in the case of a Note Owner, a beneficial interest in a Note, expresses its
4
intention that this Note qualifies under applicable tax law as indebtedness
secured by the Collateral and, unless
otherwise required by appropriate taxing authorities, agrees to treat the Notes
as indebtedness secured by the Collateral for the purpose of federal income
taxes, state and local income and franchise taxes, Michigan single business tax,
and any other taxes imposed upon, measured by or based upon gross or net income.
Prior to the due presentment for registration of transfer of this Note, the
Issuer, the Indenture Trustee and any agent of the Issuer or the Indenture
Trustee may treat the Person in whose name this Note (as of the day of
determination or as of such other date as may be specified in the Indenture) is
registered as the owner hereof for all purposes, whether or not this Note shall
be overdue, and neither the Issuer, the Indenture Trustee nor any such agent
shall be affected by notice to the contrary.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Issuer and the rights of the Noteholders under the Indenture at any time by the
Issuer with the consent of the Holders of Notes representing a majority of the
Outstanding Amount of all the Notes. The Indenture also contains provisions
permitting the Holders of Notes representing specified percentages of the
Outstanding Amount of the Notes, on behalf of the Holders of all the Notes, to
waive compliance by the Issuer with certain provisions of the Indenture and
certain past defaults under the Indenture and their consequences. Any such
consent or waiver by the Holder of this Note (or any one of more Predecessor
Notes) shall be conclusive and binding upon such Holder and upon all future
Holders of this Note and of any Note issued upon the registration of transfer
hereof or in exchange hereof or in lieu hereof whether or not notation of such
consent or waiver is made upon this Note. The Indenture also permits the
Indenture Trustee to amend or waive certain terms and conditions set forth in
the Indenture without the consent of the Noteholders.
The term "Issuer" as used in this Note includes any successor to the Issuer
under the Indenture.
The Issuer is permitted by the Indenture, under certain circumstances, to
merge or consolidate, subject to the rights of the Indenture Trustee and the
Holders of Notes under the Indenture.
The Notes are issuable only in registered form in denominations as provided
in the Indenture, subject to certain limitations therein set forth.
This Note and the Indenture shall be construed in accordance with the laws
of the State of New York, without reference to its conflict of law provisions,
and the obligations, rights and remedies of the parties hereunder and thereunder
shall be determined in accordance with such laws.
No reference herein to the Indenture and no provision of this Note or of
the Indenture shall alter or impair the obligation of the Issuer, which is
absolute and unconditional, to pay the principal of and interest on this Note at
the times, place and rate, and in the coin or currency herein prescribed.
Anything herein to the contrary notwithstanding, except as expressly
provided in the Basic Documents, neither the Seller, the Servicer, the Indenture
5
Trustee nor the Owner Trustee in their respective individual capacities, any
owner of a beneficial interest in the Issuer, nor any of their respective
partners, beneficiaries, agents, officers, directors, employees or successors or
assigns, shall be personally liable for, nor shall recourse be had to any of
them for, the payment of principal of or interest on, or performance of, or
omission to perform, any of the covenants, obligations or indemnifications
contained in this Note or the Indenture, it being expressly understood that said
covenants, obligations and indemnifications have been made by the Owner Trustee
solely as the Owner Trustee in the assets of the Issuer. The Holder of this Note
by the acceptance hereof agrees that, except as expressly provided in the Basic
Documents, in the case of an Event of Default under the Indenture, the Holder
shall have no claim against any of the foregoing for any deficiency, loss or
claim therefrom; provided, however, that nothing contained herein shall be taken
to prevent recourse to, and enforcement against, the assets of the Issuer for
any and all liabilities, obligations and undertakings contained in the Indenture
or in this Note.
6
ASSIGNMENT
Social Security or taxpayer I.D. or other identifying number of assignee
- ---------------------------------
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers
unto _______________________________________________
__________________________________________________________________
.................. (name and address of assignee)
the within Note and all rights thereunder, and hereby irrevocably constitutes
and appoints ____________________________________, as attorney, to transfer said
Note on the books kept for registration thereof, with full power of substitution
in the premises.
Dated:__________________ __________________________________2
Signature Guaranteed:
________________________ ___________________________________
________________________
2 NOTE:The signature to this assignment must corresond with the name of the
registered owner as it appears on the face of the within Note in every
particular, without alteration, enlargement or any change whatsoever.
7
<page>
EXHIBIT C-3
FORM OF CLASS A-1 ASSET BACKED NOTE
REGISTERED $____________
No. R-
SEE REVERSE FOR CERTAIN DEFINITIONS
CUSIP NO. N/A
THE SECURITIES REPRESENTED BY THIS NOTE WERE ORIGINALLY ISSUED ON
JANUARY 24, 2002, HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE "ACT"), OR APPLICABLE STATE SECURITIES LAWS AND MAY
NOT BE SOLD OR TRANSFERRED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION
STATEMENT UNDER THE ACT OR APPLICABLE STATE SECURITIES LAWS OR AN EXEMPTION
FROM REGISTRATION THEREUNDER.
THIS NOTE (AND INTERESTS THEREIN) ARE ALSO SUBJECT TO THE RESTRICTIONS
SET FORTH IN THE INDENTURE REFERENCED BELOW.
THE PRINCIPAL OF THIS NOTE IS PAYABLE AS SET FORTH HEREIN.
ACCORDINGLY, THE OUTSTANDING PRINCIPAL AMOUNT OF THIS NOTE AT ANY TIME MAY
BE LESS THAN THE AMOUNT SHOWN ON THE FACE HEREOF.
CAPITAL AUTO RECEIVABLES ASSET TRUST 2002-1
CLASS A-1 1.71% ASSET BACKED NOTES
CAPITAL AUTO RECEIVABLES ASSET TRUST 2002-1, a business trust organized and
existing under the laws of the State of Delaware (herein referred to as the
"Issuer"), for value received, hereby promises to pay to _______________, or
registered assigns, the principal sum of _______________ DOLLARS ($_________)
payable in accordance with the Indenture (as defined on the reverse side of this
Note), on each Distribution Date in an amount equal to the result obtained by
multiplying (i) a fraction, the numerator of which is the initial principal
amount hereof and the denominator of which is the initial aggregate principal
amount for such Class A-1 Notes, by (ii) the aggregate amount, if any, payable
on such Distribution Date from the Note Distribution Account in respect of
principal on the Class A-1 Notes pursuant to Sections 2.7, 3.1 and 8.2(c) of the
Indenture; provided, however, that the entire unpaid principal amount of this
Note shall be due and payable on the earlier of January 15, 2003 (the "Final
Scheduled Distribution Date") and the Redemption Date, if any, pursuant to
Section 10.1 of the Indenture. The Issuer shall pay interest on this Note on
2
<page>
each Distribution Date until the principal of this Note is paid or made
available for payment on the principal amount of this Note outstanding on the
preceding Distribution Date (after giving effect to all payments of principal
made on the preceding Distribution Date (or, for the initial Distribution Date,
the outstanding principal balance on the Closing Date)). Interest on the Class
A-1 Notes will accrue from and including the Closing Date, and will be payable
on each Distribution Date in an amount equal to the Noteholders' Interest
Distributable Amount for such Distribution Date for the Class A-1 Notes.
Interest will be computed on the basis of actual number of days elapsed from and
including the prior Distribution Date (or, in the case of the first Distribution
Date, from and including the Closing Date) and a 360-day year. Such principal of
and interest on this Note shall be paid in the manner specified on the reverse
hereof. All interest payments on each class of Notes on any Distribution Date
shall be made pro rata to the Noteholders of such class entitled thereto.
The principal of and interest on this Note are payable in such coin or
currency of the United States of America which, at the time of payment, is legal
tender for payment of public and private debts. All payments made by the Issuer
with respect to this Note shall be applied first to interest due and payable on
this Note as provided above and then to the unpaid principal of this Note.
Reference is made to the further provisions of this Note set forth on the
reverse hereof, which shall have the same effect as though fully set forth on
the face of this Note.
Unless the certificate of authentication hereon has been executed by the
Indenture Trustee whose name appears below by manual signature, this Note shall
not be entitled to any benefit under the Indenture referred to on the reverse
hereof or be valid or obligatory for any purpose.
2
IN WITNESS WHEREOF, the Issuer has caused this instrument to be signed,
manually or in facsimile, by its Authorized Officer.
Date: January 24, 2002
CAPITAL AUTO RECEIVABLES ASSET TRUST 2002-1
By: BANKERS TRUST (DELAWARE),
not in its individual capacity but solely as
Owner Trustee
By: CHARLES C. GREITER
__________________________________________________
Name: Charles C. Greiter
Title: Attorney-in-fact
INDENTURE TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Notes designed above and referred to in the
within-mentioned Indenture.
BANK ONE, NATIONAL ASSOCIATION, not in its
individual capacity but solely as Indenture Trustee
By: ____________________________________________
Name: _____________________________________
Title: _____________________________________
REVERSE OF NOTE
This Note is one of a duly authorized issue of Notes of the Issuer,
designated as its Class A-1 1.71% Asset Backed Notes (herein called the "Class
A-1 Notes"), all issued under an Indenture, dated as of January 24, 2002 (such
Indenture, as supplemented or amended, is herein called the "Indenture"),
between the Issuer and Bank One, National Association, as trustee (the
"Indenture Trustee", which term includes any successor trustee under the
Indenture), to which Indenture and all indentures supplemental thereto reference
is hereby made for a statement of the respective rights and obligations
thereunder of the Issuer, the Indenture Trustee and the Noteholders. The Class
A-1 Notes are one of several duly authorized classes of Notes of the Issuer
issued pursuant to the Indenture (collectively, as to all Notes of all such
classes, the "Notes"). The Notes are governed by and subject to all terms of the
Indenture (which terms are incorporated herein and made a part hereof), to which
Indenture the Holder of this Note by virtue of acceptance hereof assents and by
which such Holder is bound. All capitalized terms used and not otherwise defined
in this Note that are defined in the Indenture, as supplemented or amended,
shall have the meanings assigned to them in or pursuant to the Indenture.
The Class A-1 Notes and all other Notes issued pursuant to the Indenture
are and will be equally and ratably secured by the Collateral pledged as
security therefor as provided in the Indenture.
Each Noteholder or Note Owner, by acceptance of a Note or, in the case of a
Note Owner, a beneficial interest in a Note, covenants and agrees that no
recourse may be taken, directly or indirectly, with respect to the obligations
of the Issuer, the Owner Trustee or the Indenture Trustee on the Notes or under
the Indenture or any certificate or other writing delivered in connection
therewith, against (i) the Indenture Trustee or the Owner Trustee in their
individual capacities, (ii) the Seller or any other owner of a beneficial
interest in the Issuer or (iii) any partner, owner, beneficiary, agent, officer,
director or employee of the Indenture Trustee or the Owner Trustee in their
individual capacities, any holder of a beneficial interest in the Issuer, the
Owner Trustee or the Indenture Trustee or of any successor or assign of the
Indenture Trustee or the Owner Trustee in their individual capacities, except as
any such Person may have expressly agreed and except that any such partner,
owner or beneficiary shall be fully liable, to the extent provided by applicable
law, for any unpaid consideration for stock, unpaid capital contribution or
failure to pay any instalment or call owing to such entity.
Each Noteholder or Note Owner, by acceptance of a Note or, in the case of a
Note Owner, a beneficial interest in a Note, covenants and agrees that by
accepting the benefits of the Indenture such Noteholder will not, prior to the
date which is one year and one day after the termination of the Indenture with
respect to the Issuer, acquiesce, petition or otherwise invoke or cause the
Seller or the Issuer to invoke the process of any court or government authority
for the purpose of commencing or sustaining a case against the Seller or the
Issuer under any federal or state bankruptcy, insolvency or similar law or
appointing a receiver, liquidator, assignee, trustee, custodian, sequestrator or
other similar official of the Seller or the Issuer or any substantial part of
its property, or ordering the winding up or liquidation of the affairs of the
Seller or the Issuer.
Each Noteholder, by acceptance of a Note or,
in the case of a Note Owner, a beneficial interest in a Note, expresses its
4
<Page>
intention that this Note qualifies under applicable tax law as indebtedness
secured by the Collateral and, unless
otherwise required by appropriate taxing authorities, agrees to treat the Notes
as indebtedness secured by the Collateral for the purpose of federal income
taxes, state and local income and franchise taxes, Michigan single business tax,
and any other taxes imposed upon, measured by or based upon gross or net income.
Prior to the due presentment for registration of transfer of this Note, the
Issuer, the Indenture Trustee and any agent of the Issuer or the Indenture
Trustee may treat the Person in whose name this Note (as of the day of
determination or as of such other date as may be specified in the Indenture) is
registered as the owner hereof for all purposes, whether or not this Note shall
be overdue, and neither the Issuer, the Indenture Trustee nor any such agent
shall be affected by notice to the contrary.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Issuer and the rights of the Noteholders under the Indenture at any time by the
Issuer with the consent of the Holders of Notes representing a majority of the
Outstanding Amount of all the Notes. The Indenture also contains provisions
permitting the Holders of Notes representing specified percentages of the
Outstanding Amount of the Notes, on behalf of the Holders of all the Notes, to
waive compliance by the Issuer with certain provisions of the Indenture and
certain past defaults under the Indenture and their consequences. Any such
consent or waiver by the Holder of this Note (or any one of more Predecessor
Notes) shall be conclusive and binding upon such Holder and upon all future
Holders of this Note and of any Note issued upon the registration of transfer
hereof or in exchange hereof or in lieu hereof whether or not notation of such
consent or waiver is made upon this Note. The Indenture also permits the
Indenture Trustee to amend or waive certain terms and conditions set forth in
the Indenture without the consent of the Noteholders.
The term "Issuer" as used in this Note includes any successor to the Issuer
under the Indenture.
The Issuer is permitted by the Indenture, under certain circumstances, to
merge or consolidate, subject to the rights of the Indenture Trustee and the
Holders of Notes under the Indenture.
The Notes are issuable only in registered form in denominations as provided
in the Indenture, subject to certain limitations therein set forth.
This Note and the Indenture shall be construed in accordance with the laws
of the State of New York, without reference to its conflict of law provisions,
and the obligations, rights and remedies of the parties hereunder and thereunder
shall be determined in accordance with such laws.
No reference herein to the Indenture and no provision of this Note or of
the Indenture shall alter or impair the obligation of the Issuer, which is
absolute and unconditional, to pay the principal of and interest on this Note at
the times, place and rate, and in the coin or currency herein prescribed.
Anything herein to the contrary notwithstanding, except as expressly
provided in the Basic Documents, neither the Seller, the Servicer, the Indenture
5
<page>
Trustee nor the Owner Trustee in their respective individual capacities, any
owner of a beneficial interest in the Issuer, nor any of their respective
partners, beneficiaries, agents, officers, directors, employees or successors or
assigns, shall be personally liable for, nor shall recourse be had to any of
them for, the payment of principal of or interest on, or performance of, or
omission to perform, any of the covenants, obligations or indemnifications
contained in this Note or the Indenture, it being expressly understood that said
covenants, obligations and indemnifications have been made by the Owner Trustee
solely as the Owner Trustee in the assets of the Issuer. The Holder of this Note
by the acceptance hereof agrees that, except as expressly provided in the Basic
Documents, in the case of an Event of Default under the Indenture, the Holder
shall have no claim against any of the foregoing for any deficiency, loss or
claim therefrom; provided, however, that nothing contained herein shall be taken
to prevent recourse to, and enforcement against, the assets of the Issuer for
any and all liabilities, obligations and undertakings contained in the Indenture
or in this Note.
6
ASSIGNMENT
Social Security or taxpayer I.D. or other identifying number of assignee
- ---------------------------------
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers
unto _______________________________________________
__________________________________________________________________
.................. (name and address of assignee)
the within Note and all rights thereunder, and hereby irrevocably constitutes
and appoints ____________________________________, as attorney, to transfer said
Note on the books kept for registration thereof, with full power of substitution
in the premises.
Dated:__________________ __________________________________3
Signature Guaranteed:
________________________ __________________________________
3 NOTE: The signature to this assignment must correspond with the name of the
registered owner as it appears on the face of the within Note in every
particular, without alteration, enlargement or any change whatsoever.
7
EXHIBIT D
RULE 144A CERTIFICATE
Capital Auto Receivables, Inc.
Corporation Trust Center
1209 Orange Street
Wilmington, DE 19801
Bank One, National Association,
as Indenture Trustee
1 Bank One Plaza, Mail Code 162-0481
Chicago, IL 60670 - 0126
Ladies and Gentlemen:
In connection with the purchase of Class A-1 1.71% Asset Backed Note, (the
"Class A-1 Notes") of the Capital Auto Receivables Asset Trust 2002-1, the
undersigned buyer ("Buyer") hereby acknowledges, represents and agrees that:
(a) Buyer is a "qualified institutional buyer" as defined under Rule 144A
("Rule 144A") under the Securities Act of 1933, as amended (the "Securities
Act"), acting for its own account or for the accounts of other "qualified
institutional buyers" as defined under Rule 144A under the Securities Act. Buyer
is familiar with Rule 144A under the Securities Act and Buyer is aware that the
seller of the applicable Class A-1 Notes, as applicable, to the Buyer and other
parties intend to rely on the statements made herein and the exemption from the
registration requirements of the Securities Act provided by Rule 144A.
(b) Buyer is purchasing the applicable Class A-1 Notes for its own account
(or the accounts of other "qualified institutional buyers"), not with a view to,
or for offer or sale in connection with, any distribution thereof, subject to
the disposition of Buyer's property (or property held in the accounts of other
"qualified institutional buyers") being at all times within Buyer's control and
subject to Buyer's ability to resell such Class A-1 Notes pursuant to Rule 144A
under the Securities Act. Buyer agrees to offer, sell or otherwise transfer such
Class A-1 Notes only in conformity with the restrictions on transfer set forth
in the Indenture dated as of January 24, 2002 pursuant to which the Class A-1
Notes were issued and the legend set forth on the definitive physical
certificate evidencing the Class A-1 Notes.
1
<page>
(c) Buyer acknowledges that you and others will rely upon its
confirmations, acknowledgments and agreements set forth herein, and Buyer agrees
to notify you promptly in writing if any of the information herein ceases to be
accurate and complete.
------------------------------------
Print Name of Buyer
By: ________________________________
Name:
Title:
Date: ______________________________
2