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EXHIBIT 99.5
SECURED NOTE TRUST SALE AND SERVICING AGREEMENT
BETWEEN
GENERAL MOTORS ACCEPTANCE CORPORATION
SERVICER
CAPITAL AUTO RECEIVABLES, INC.
SELLER
AND
CAPITAL AUTO RECEIVABLES ASSET TRUST 20__-SN[1]
ISSUER
DATED AS OF _______________, 20__
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TABLE OF CONTENTS
Page
ARTICLE I
CERTAIN DEFINITIONS
Section 1.01. Definitions.......................................................................1
ARTICLE II
CONVEYANCE OF SECURED NOTES; ORIGINAL ISSUANCE OF SECURITIES
Section 2.01. Conveyance of Secured Notes.......................................................1
Section 2.02. Custody of Secured Notes..........................................................3
Section 2.03. Acceptance by the Issuer..........................................................3
Section 2.04. Representations and Warranties as to the Secured Notes............................3
Section 2.05. Repurchase of Secured Notes Upon Breach of Warranty...............................3
[Section 2.06 Incremental Advances and Issuance of Additional Variable Pay Revolving Notes......4
ARTICLE III
THE SELLER
Section 3.01. Representations of the Seller.....................................................5
Section 3.02. Liability of the Seller...........................................................7
Section 3.03. Merger or Consolidation of, or Assumption of the Obligations of, the
Seller; Amendment of Certificate of Incorporation.............................7
Section 3.04. Limitation on Liability of the Seller and Others..................................8
Section 3.05. Seller May Own Notes or Certificates..............................................8
ARTICLE IV
SERVICER'S COVENANTS; DISTRIBUTIONS; RESERVE ACCOUNT;
STATEMENTS TO NOTEHOLDERS AND CERTIFICATEHOLDERS
Section 4.01. Annual Statement as to Compliance; Notice of Servicer Default.....................8
Section 4.02. Annual Independent Accountants' Report............................................9
Section 4.03. Access to Certain Documentation and Information Regarding Secured Notes..........10
Section 4.04. Amendments to Schedule of Secured Notes..........................................10
Section 4.05. Assignment of Administrative Secured Notes and Warranty Secured Notes............10
Section 4.06. Distributions....................................................................11
Section 4.07. [Reserve Account.................................................................13
Section 4.08. Net Deposits.....................................................................15
Section 4.09. Statements to Securityholders....................................................15
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TABLE OF CONTENTS
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ARTICLE V
CERTIFICATEHOLDER AND NOTEHOLDER STATEMENTS AND ACCOUNTS;
COLLECTIONS, DEPOSITS AND INVESTMENTS; ADVANCES
Section 5.01. Establishment of Accounts........................................................17
Section 5.02. Collections......................................................................20
Section 5.03. Investment Earnings and Supplemental Servicing Fees..............................21
Section 5.04. Monthly Advances.................................................................21
Section 5.05. Additional Deposits..............................................................21
ARTICLE VI
LIABILITIES OF THE SERVICER AND OTHERS
Section 6.01. Liability of the Servicer; Indemnities...........................................22
Section 6.02. Merger or Consolidation of, or Assumption of the Obligations of, the Servicer....23
Section 6.03. Limitation on Liability of the Servicer and Others...............................23
Section 6.04. Delegation of Duties.............................................................25
Section 6.05. Servicer Not to Resign...........................................................25
ARTICLE VII
DEFAULT
Section 7.01. Servicer Defaults................................................................25
Section 7.02. Consequences of a Servicer Default...............................................26
Section 7.03. Indenture Trustee to Act; Appointment of Successor...............................27
Section 7.04. Notification to Noteholders and Certificateholders...............................27
Section 7.05. Waiver of Past Defaults..........................................................27
Section 7.06. Repayment of Advances............................................................28
ARTICLE VIII
TERMINATION
Section 8.01. Optional Purchase of All Secured Notes; Insolvency of the Seller;
Termination of Trust.........................................................28
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TABLE OF CONTENTS
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ARTICLE IX
MISCELLANEOUS PROVISIONS
Section 9.01. Amendment........................................................................31
Section 9.02. Protection of Title to Trust.....................................................32
Section 9.03. Notices..........................................................................34
Section 9.04. GOVERNING LAW....................................................................34
Section 9.05. Severability of Provisions.......................................................34
Section 9.06. Assignment.......................................................................34
Section 9.07. Third-Party Beneficiaries........................................................35
Section 9.08. Separate Counterparts............................................................35
Section 9.09. Headings and Cross-References....................................................35
Section 9.10. Assignment to Indenture Trustee..................................................35
Section 9.11. No Petition Covenants............................................................35
Section 9.12. Limitation of Liability of Indenture Trustee and Owner Trustee...................35
Section 9.13. Tax Treatment....................................................................36
Section 9.14. Furnishing Documents.............................................................36
EXHIBIT A Locations of Schedule of Secured Notes
APPENDIX A Definitions and Rules of Construction
APPENDIX B Notices Addresses and Procedures
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THIS SECURED NOTE TRUST SALE AND SERVICING AGREEMENT is made as of
__________, 20__, by and between General Motors Acceptance Corporation, a
Delaware corporation (in its capacity as Servicer under the Pooling and
Servicing Agreement described below, the "Servicer"), Capital Auto Receivables,
Inc., a Delaware corporation (the "Seller"), and Capital Auto Receivables Asset
Trust 20__-SN[1], a Delaware business trust (the "Issuer").
WHEREAS, General Motors Acceptance Corporation has sold the Secured
Notes to the Seller and, as Servicer, has agreed to service the Secured Notes
pursuant to the Pooling and Servicing Agreement.
WHEREAS, the Seller desires to sell the Secured Notes to the Issuer in
exchange for the Notes and Certificates pursuant to the terms of this Agreement,
and the Servicer desires to perform the servicing obligations set forth herein
for and in consideration of the fees and other benefits set forth in this
Agreement and in the Pooling and Servicing Agreement.
WHEREAS, the Seller and the Issuer wish to set forth the terms pursuant
to which the Secured Notes are to be sold by the Seller to the Issuer and
serviced by the Servicer.
NOW, THEREFORE, in consideration of the foregoing, the other good and
valuable consideration and the mutual terms and covenants contained herein, the
parties hereto agree as follows:
ARTICLE I
CERTAIN DEFINITIONS
Section 1.01. Definitions. Certain capitalized terms used in the above
recitals and in this Agreement are defined in and shall have the respective
meanings assigned them in Part I of Appendix A to this Agreement. All references
herein to "the Agreement" or "this Agreement" are to this Secured Note Trust
Sale and Servicing Agreement as it may be amended, supplemented or modified from
time to time, the exhibits hereto and the capitalized terms used herein which
are defined in such Appendix A, and all references herein to Articles, Sections
and subsections are to Articles, Sections or subsections of this Agreement
unless otherwise specified. The rules of construction set forth in Part II of
such Appendix A shall be applicable to this Agreement.
ARTICLE II
CONVEYANCE OF SECURED NOTES; ORIGINAL ISSUANCE OF SECURITIES
Section 2.01. Conveyance of Secured Notes. In consideration of the
Issuer's delivery of the Notes and the Certificates to, or upon the order of,
the Seller, the Seller does hereby enter into this
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Agreement and agree to fulfill all of its obligations hereunder and to sell,
transfer, assign and otherwise convey to the Issuer, without recourse:
(a) all right, title and interest of the Seller in, to and
under the Secured Notes listed on the Schedule of Secured Notes which
is on file at the locations listed on Exhibit A hereto and all moneys
received thereon after the Cutoff Date;
(b) all right, title and interest of the Seller in the lien
upon, and security interests in, the Vehicles and Program Leases as
described in the Secured Notes;
(c) all right, title and interest of the Seller in all
proceeds attributable to the property described in clauses (a) and (b),
including insurance proceeds and other rights with respect to the
Vehicles and Program Leases described in the Secured Notes under the
Termination Value Agreement;
(d) all right, title and interest of the Seller under any
guarantees or similar obligations relating to all Program Leases and
Vehicles as described in the Secured Notes, or the proceeds thereof;
(e) all right, title and interest of the Seller to receive
payments with respect to Program Leases and after sale or transfer of a
Vehicle pursuant to the terms of the Termination Value Agreement, all
as described in the Secured Notes;
(f) all right, title and interest of the Seller in any
instrument or document relating to the Secured Notes;
(g) all right, title and interest of the Seller in, to and
under the Pooling and Servicing Agreement, including the right of the
Seller to cause GMAC to repurchase Secured Notes under certain
circumstances; and
(h) the interest of the Seller in any proceeds of the
foregoing property.
The property described clauses (a) through (h) is referred to herein
collectively as the "Purchased Property."
It is the intention of the Seller and the Issuer that the transfer and
assignment contemplated by this Agreement shall constitute a sale of the Secured
Notes and the other Purchased Property from the Seller to the Issuer and the
beneficial interest in and title to the Secured Notes and the other Purchased
Property shall not be part of the Seller's estate in the event of the filing of
a bankruptcy petition by or against the Seller under any bankruptcy law. The
foregoing sale does not constitute and is not intended to result in any
assumption by the Issuer of any obligation of the Seller to the Lessees,
Dealers, insurers or any other Person in connection with the Secured Notes, the
Program Leases securing the Secured Notes, the related Vehicles and any
agreements with Dealers, any insurance policies or any agreement or instrument
relating to any of them.
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Within two Business Days after the Closing Date, GMAC shall cause to be
deposited into the Collection Account the collections on the Secured Notes
described in Section 5.07 of the Pooling and Servicing Agreement; provided,
however, that so long as the Monthly Remittance Conditions are satisfied, such
collections need not be deposited until the first Distribution Date.
Section 2.02. Custody of Secured Notes. Pursuant to the terms of the
COLT Acknowledgment, if for any reason GMAC or the Servicer obtains possession
of the Secured Notes in definitive form, GMAC or the Servicer, as the case may
be, shall hold the Secured Notes solely as custodian for, and under the control
of, the Indenture Trustee, on behalf of the Noteholders of the Trust.
Section 2.03. Acceptance by the Issuer. The Issuer does hereby accept
all consideration conveyed by the Seller pursuant to Section 2.01, and declares
that the Issuer shall hold such consideration upon the trust set forth in the
Trust Agreement for the benefit of Certificateholders, subject to the terms and
conditions of the Indenture and this Agreement. The Issuer hereby agrees and
accepts the appointment and authorization of General Motors Acceptance
Corporation as the Servicer under Section 3.01 of the Pooling and Servicing
Agreement. The parties agree that this Agreement, the Indenture and the Trust
Agreement constitute the Further Transfer and Servicing Agreements for purposes
of the Pooling and Servicing Agreement and that the rights, duties and
obligations of GMAC as the Servicer under the Pooling and Servicing Agreement
are subject to the provisions of Sections 6.02, 6.04, 6.05, 9.01 and Article VII
hereof.
Section 2.04. Representations and Warranties as to the Secured Notes.
Pursuant to Section 2.01(g), the Seller assigns to the Issuer all of its right,
title and interest in, to and under the Pooling and Servicing Agreement. Such
assigned right, title and interest includes the representations and warranties
of GMAC made to the Seller pursuant to Section 4.01 of the Pooling and Servicing
Agreement. The Seller hereby represents and warrants to the Issuer that the
Seller has taken no action which would cause such representations and warranties
of GMAC to be false in any material respect as of the Closing Date. The Seller
further acknowledges that the Issuer relies on the representations and
warranties of the Seller under this Agreement and of GMAC under the Pooling and
Servicing Agreement in accepting the Secured Notes and the other Purchased
Property in trust and executing and delivering the Notes and the Certificates.
The foregoing representation and warranty speaks as of the Closing Date, but
shall survive the sale, transfer and assignment of the Secured Notes and the
other Purchased Property to the Issuer and the pledge thereof to the Indenture
Trustee pursuant to the Indenture.
Section 2.05. Repurchase of Secured Notes Upon Breach of Warranty. Upon
discovery by the Seller, the Servicer, the Owner Trustee or the Indenture
Trustee of a breach of any of the representations and warranties in Section 4.01
of the Pooling and Servicing Agreement or in Section 2.04 or Section 3.01 of
this Agreement that materially and adversely affects the interests of the
Noteholders or the Certificateholders in any Secured Note, the party discovering
such breach shall give prompt written notice thereof to the others. As of the
last day of the second Monthly Period following its discovery or its receipt of
notice of breach (or, at the Seller's election, the last day of the first
Monthly Period following such discovery), unless such breach shall have been
cured in all
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material respects, in the event of a breach of the representations and
warranties made by the Seller in Section 2.04 or Section 3.01, the Seller shall
repurchase, or in the event of a breach of a representation and warranty under
Section 4.01 of the Pooling and Servicing Agreement the Seller and the Servicer
shall use reasonable efforts to enforce the obligation of GMAC under Section
5.04 of the Pooling and Servicing Agreement to repurchase, such Secured Note
from the Issuer on the related Distribution Date. The repurchase price to be
paid by the breaching party (the "Warranty Purchaser") shall be an amount equal
to the Warranty Payment. It is understood and agreed that the obligation of the
Warranty Purchaser to repurchase any Secured Note as to which a breach has
occurred and is continuing, and the obligation of the Seller and the Servicer to
enforce GMAC's obligation to repurchase such Secured Notes pursuant to the
Pooling and Servicing Agreement shall, if such obligations are fulfilled,
constitute the sole remedy against the Seller, the Servicer or GMAC for such
breach available to the Issuer, Noteholders, Certificateholders, the Owner
Trustee or the Indenture Trustee. The Servicer also acknowledges its obligations
to repurchase Administrative Secured Notes from the Issuer pursuant to Section
3.07 of the Pooling and Servicing Agreement.
[SECTION 2.06 INCREMENTAL ADVANCES AND ISSUANCE OF ADDITIONAL VARIABLE
PAY REVOLVING NOTES.
(a) SUBJECT TO THE TERMS AND CONDITIONS OF THIS SECTION 2.06,
ON THE TARGETED FINAL DISTRIBUTION DATE FOR EACH CLASS OF CLASS A
NOTES, THE SELLER SHALL REQUEST AN ADVANCE OF FUNDS UNDER THE INITIAL
VARIABLE PAY REVOLVING NOTE IN AN AMOUNT SUFFICIENT TO PERMIT THE
REPAYMENT IN FULL OF SUCH CLASS OF CLASS A NOTES (AFTER TAKING INTO
ACCOUNT THE OTHER SOURCES OF THE TOTAL NOTE PRINCIPAL PAYMENT AMOUNT
FOR SUCH DISTRIBUTION DATE). IF THE HOLDER OF THE INITIAL VARIABLE
REVOLVING NOTE (OR OF A 100% PARTICIPATION INTEREST THEREIN) ELECTS NOT
TO MAKE SUCH ADVANCE, THEN THE SELLER SHALL USE REASONABLE EFFORTS TO
SELL ONE OR MORE ADDITIONAL VARIABLE PAY REVOLVING NOTES OF ANOTHER
CLASS TO ADDITIONAL PURCHASERS IN ORDER TO OBTAIN AN ADVANCE OF SUCH
AMOUNT THEREUNDER. THE SELLER SHALL CAUSE THE ISSUER TO ISSUE ANY SUCH
ADDITIONAL VARIABLE PAY REVOLVING NOTES. AT THE TIME OF ISSUANCE OF THE
INITIAL VARIABLE PAY REVOLVING NOTE OR OF ANY OTHER CLASS OF ADDITIONAL
VARIABLE PAY REVOLVING NOTES, THE SELLER SHALL DETERMINE, IN ITS SOLE
DISCRETION, THE INTEREST RATE FOR EACH SUCH CLASS OF VARIABLE PAY
REVOLVING NOTES, WHICH SHALL EQUAL, FOR EACH DISTRIBUTION DATE, LIBOR
PLUS A FIXED PERCENTAGE SPREAD (WHICH SPREAD MAY BE DIFFERENT FOR EACH
SUCH CLASS), WHICH SHALL BE DETERMINED AT THE TIME OF ISSUANCE BASED ON
MARKET CONDITIONS BUT WHICH SHALL NOT EXCEED [2.50]%, SUBJECT TO THE
LAST SENTENCE OF THE DEFINITION OF INTEREST RATE. THE SELLER SHALL ALSO
DETERMINE, IN ITS SOLE DISCRETION, THE TERMS OF ANY SALE OF AN INTEREST
IN ANY CLASS OF VARIABLE PAY REVOLVING NOTES, PROVIDED THAT THE
PROCEEDS TO THE TRUST IN CONNECTION WITH THE ISSUANCE OF THE INITIAL
VARIABLE PAY REVOLVING NOTE OR ANY OTHER CLASS OF ADDITIONAL VARIABLE
PAY REVOLVING NOTES SHALL BE FAIR VALUE BASED ON MARKET CONDITIONS.
(b) NO INCREMENTAL ADVANCES UNDER THE INITIAL VARIABLE PAY
REVOLVING NOTE OR UNDER AN ADDITIONAL CLASS OF VARIABLE PAY REVOLVING
NOTE, AND NO ADDITIONAL CLASS OF VARIABLE PAY REVOLVING NOTES MAY BE
ISSUED ON A TARGETED FINAL DISTRIBUTION DATE UNLESS THE FOLLOWING
CONDITIONS ARE SATISFIED:
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(i) THE AGGREGATE AMOUNT OF THE INCREMENTAL ADVANCE
PLUS THE AMOUNT OF AVAILABLE FUNDS FROM THE OTHER SOURCES OF
THE TOTAL NOTE PRINCIPAL PAYMENT AMOUNT IS SUFFICIENT TO PAY
IN FULL THE OUTSTANDING PRINCIPAL BALANCE OF THE TARGETED
CLASS OF CLASS A NOTES ON SUCH TARGETED FINAL DISTRIBUTION
DATE;
(ii) AFTER GIVING EFFECT TO SUCH INCREMENTAL ADVANCE
OR ISSUANCE OF AN ADDITIONAL CLASS OF VARIABLE PAY REVOLVING
NOTES AND ALL PAYMENTS OF PRINCIPAL ON THE NOTES AND PAYMENTS
WITH RESPECT TO THE CERTIFICATE BALANCE ON THAT TARGETED FINAL
DISTRIBUTION DATE, THE SUM OF THE OUTSTANDING PRINCIPAL
BALANCE OF THE NOTES PLUS THE CERTIFICATE BALANCE SHALL NOT
EXCEED THE AGGREGATE SECURED NOTE VALUE ON THE LAST DAY OF THE
MONTHLY PERIOD IMMEDIATELY PRECEDING THAT TARGETED FINAL
DISTRIBUTION DATE;
(iii) THE INTEREST RATE SWAPS SHALL BE IN FULL FORCE
AND EFFECT; AND
(iv) NO EVENT OF DEFAULT SHALL HAVE OCCURRED AND BE
CONTINUING.]
ARTICLE III
THE SELLER
Section 3.01. Representations of the Seller. The Seller makes the
following representations on which the Issuer is relying in acquiring the
Secured Notes and the other Purchased Property and issuing the Notes and the
Certificates. The following representations speak as of the Closing Date but
shall survive the sale, transfer and assignment of the Secured Notes and the
other Purchased Property to the Issuer.
(a) Representations and Warranties as to the Seller.
(i) Organization and Good Standing. The Seller has
been duly organized and is validly existing as a corporation
in good standing under the laws of the State of Delaware, with
power and authority to own its properties and to conduct its
business as such properties are presently owned and such
business is presently conducted, and had at all relevant
times, and now has, power, authority and legal right to
acquire and own the Secured Notes and the other Purchased
Property;
(ii) Due Qualification. The Seller is duly qualified
to do business as a foreign corporation in good standing, and
has obtained all necessary licenses and approvals in all
jurisdictions in which the ownership or lease of property or
the conduct of its business requires such qualification;
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(iii) Power and Authority. The Seller has the power
and authority to execute and deliver this Agreement and to
carry out its terms, the Seller has full power and authority
to sell and assign the property to be sold and assigned to and
deposited with the Issuer as part of the Trust and has duly
authorized such sale and assignment to the Issuer by all
necessary corporate action; and the execution, delivery and
performance of this Agreement have been duly authorized by the
Seller by all necessary corporate action;
(iv) Valid Sale; Binding Obligations. This Agreement,
when duly executed and delivered, shall constitute a valid
sale, transfer and assignment of the Secured Notes and the
other Purchased Property, enforceable against creditors of and
purchasers from the Seller; and this Agreement when duly
executed and delivered, shall constitute a legal, valid and
binding obligation of the Seller enforceable in accordance
with its terms, except as enforceability may be limited by
bankruptcy, insolvency, reorganization or other similar laws
affecting the enforcement of creditors' rights in general and
by general principles of equity, regardless of whether such
enforceability is considered in a proceeding in equity or at
law;
(v) No Violation. The consummation of the
transactions contemplated by this Agreement by the Seller and
the fulfillment of the terms of this Agreement by the Seller
shall not conflict with, result in any breach of any of the
terms and provisions of or constitute (with or without notice
or lapse of time) a default under, the certificate of
incorporation or by-laws of the Seller, or any indenture,
agreement or other instrument to which the Seller is a party
or by which it is bound, or result in the creation or
imposition of any Lien upon any of its properties pursuant to
the terms of any such indenture, agreement or other
instrument, other than this Agreement, or violate any law or,
to the best of the Seller's knowledge, any order, rule or
regulation applicable to the Seller of any court or of any
federal or state regulatory body, administrative agency or
other governmental instrumentality having jurisdiction over
the Seller or any of its properties; and
(vi) No Proceedings. To the Seller's knowledge, there
are no proceedings or investigations pending, or threatened,
before any court, regulatory body, administrative agency or
other tribunal or governmental instrumentality having
jurisdiction over the Seller or its properties (A) asserting
the invalidity of this Agreement, the Pooling and Servicing
Agreement, the Secured Notes, the Notes, the Certificates, the
Indenture, the Trust Agreement or the Administration
Agreement, (B) seeking to prevent the issuance of the Notes or
the Certificates or the consummation of any of the
transactions contemplated by this Agreement, the Pooling and
Servicing Agreement, the Indenture, the Trust Agreement, or
the Administration Agreement, (C) seeking any determination or
ruling that might materially and adversely affect the
performance by the Seller of its obligations under, or the
validity or enforceability of, this Agreement, the Pooling and
Servicing Agreement, the Secured Notes, the Notes, the
Certificates, the Indenture, the Trust
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Agreement or the Administration Agreement, or (D) seeking to
adversely affect the federal income tax attributes of the
Notes or the Certificates.
(b) Representations and Warranties as to the Secured Notes.
(i) Good Title. No Secured Note has been sold,
transferred, assigned or pledged by the Seller to any Person
other than the Issuer. Immediately prior to the conveyance of
the Secured Notes pursuant to this Agreement, the Seller had
good and marketable title thereto, free of any Lien. Upon
execution and delivery of this Agreement by the Seller, the
Issuer shall have all of the right, title and interest of the
Seller in, to and under the Secured Notes, the unpaid
indebtedness evidenced thereby and the collateral security
therefor, free of any Lien.
(ii) All Filings Made. All filings (including UCC
filings) necessary in any jurisdiction to give the Issuer a
first priority perfected ownership interest in the Secured
Notes shall have been made.
Section 3.02. Liability of the Seller. The Seller shall be liable in
accordance with this Agreement only to the extent of the obligations in this
Agreement specifically undertaken by the Seller.
Section 3.03. Merger or Consolidation of, or Assumption of the
Obligations of, the Seller; Amendment of Certificate of Incorporation.
(a) Any corporation or other entity (i) into which the Seller
may be merged or consolidated, (ii) resulting from any merger or
consolidation to which the Seller shall be a party, (iii) succeeding to
the business of the Seller, or (iv) more than 50% of the voting stock
(or, if not a corporation, other voting interests) of which is owned
directly or indirectly by General Motors, which corporation in any of
the foregoing cases executes an agreement of assumption to perform
every obligation of the Seller under this Agreement, shall be the
successor to the Seller under this Agreement without the execution or
filing of any document or any further act on the part of any of the
parties to this Agreement. The Seller shall provide 10 days prior
notice of any merger, consolidation or succession pursuant to this
Section 3.03 to the Rating Agencies.
(b) The Seller hereby agrees that during the term of this
Agreement it shall not (i) take any action prohibited by Article Fourth
of its certificate of incorporation, (ii) without the prior written
consent of the Indenture Trustee and the Owner Trustee and without
giving prior written notice to the Rating Agencies, amend Article Third
or Fourth of its certificate of incorporation or (iii) incur any
indebtedness, or assume or guaranty indebtedness of any other entity,
other than pursuant to the Revolving Note and the Intercompany Advance
Agreement (without giving effect to any amendment to such Note or
Agreement after the date hereof, unless the Rating Agency Condition was
satisfied in connection therewith), if
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such action would result in a downgrading of the then current rating of
any class of the Notes.
Section 3.04. Limitation on Liability of the Seller and Others. The
Seller and any director or officer or employee or agent of the Seller may rely
in good faith on the advice of counsel or on any document of any kind prima
facie properly executed and submitted by any Person respecting any matters
arising under this Agreement. The Seller and any director or officer or employee
or agent of the Seller shall be reimbursed by the Indenture Trustee or Owner
Trustee, as applicable, for any contractual damages, liability or expense
incurred by reason of such trustee's willful misfeasance, bad faith or gross
negligence (except errors in judgment) in the performance of its duties under
this Agreement, the Indenture or the Trust Agreement, or by reason of reckless
disregard of its obligations and duties under this Agreement, the Indenture or
the Trust Agreement. The Seller shall not be under any obligation to appear in,
prosecute or defend any legal action that is not incidental to its obligations
as Seller of the Secured Notes and the other Purchased Property under this
Agreement and that in its opinion may involve it in any expense or liability.
Section 3.05. Seller May Own Notes or Certificates. Each of the Seller
and any Person controlling, controlled by or under common control with the
Seller may in its individual or any other capacity become the owner or pledgee
of Notes or Certificates with the same rights as it would have if it were not
the Seller or an affiliate thereof except as otherwise specifically provided
herein. Except as otherwise specifically provided herein, Notes or Certificates
so owned by or pledged to the Seller or such controlling or commonly controlled
Person shall have an equal and proportionate benefit under the provisions of
this Agreement, without preference, priority or distinction as among all of such
Notes or Certificates, respectively.
ARTICLE IV
SERVICER'S COVENANTS; DISTRIBUTIONS; RESERVE ACCOUNT;
STATEMENTS TO NOTEHOLDERS AND CERTIFICATEHOLDERS
Section 4.01. Annual Statement as to Compliance; Notice of Servicer
Default.
(a) The Servicer shall deliver to the Indenture Trustee and
the Owner Trustee, on or before August 15 of each year, beginning
August 15, 20__, an officer's certificate signed by the President or
any Vice President of the Servicer, dated as of June 30 of such year,
stating that (i) a review of the activities of the Servicer during the
preceding 12-month period (or, with respect to the first such
certificate, such period as shall have elapsed from the Closing Date to
the date of such certificate) and of its performance under this
Agreement and under the Pooling and Servicing Agreement has been made
under such officer's supervision, and (ii) to such officer's knowledge,
based on such review, the Servicer has fulfilled all its obligations
under such agreements throughout such period, or, if there has been a
default in the fulfillment of any such obligation, specifying each such
default known to such officer and the nature and status thereof. A copy
of such certificate may be obtained by any Noteholder
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or Certificateholder by a request in writing to the Issuer addressed to
the Corporate Trust Office of the Indenture Trustee or the Owner
Trustee, as applicable.
(b) The Servicer shall deliver to the Indenture Trustee, the
Owner Trustee and to the Rating Agencies, promptly after having
obtained knowledge thereof, but in no event later than five Business
Days thereafter, written notice in an officer's certificate of any
event which with the giving of notice or lapse of time, or both, would
become a Servicer Default under Section 7.01. The Seller shall deliver
to the Indenture Trustee, the Owner Trustee, the Servicer and the
Rating Agencies, promptly after having obtained knowledge thereof, but
in no event later than five Business Days thereafter, written notice in
an officer's certificate of any event which with the giving of notice
or lapse of time, or both, would become a Servicer Default under clause
(b) of Section 7.01.
Section 4.02. Annual Independent Accountants' Report.
(a) The Servicer shall cause a firm of independent
accountants, who may also render other services to the Servicer or the
Seller, to deliver to the Issuer and the Rating Agencies, on or before
August 15 of each year, beginning August 15, 20__ with respect to the
twelve months ended on the immediately preceding June 30 (or, with
respect to the first such report, such period as shall have elapsed
from the Closing Date to the date of such certificate), a report (the
"Accountants' Report") addressed and delivered to the Board of
Directors of the Servicer and to the Indenture Trustee and the Owner
Trustee, to the effect that such firm has audited the financial
statements of the Servicer and issued its report thereon and that such
audit: (i) was made in accordance with generally accepted auditing
standards; (ii) included tests relating to automotive leases serviced
for others in accordance with the requirements of the Uniform Single
Audit Program for Mortgage Bankers (the "Program"), to the extent the
procedures in the Program are applicable to the servicing obligations
set forth in this Agreement and the Pooling and Servicing Agreement;
and (iii) except as described in the report, disclosed no exceptions or
errors in the records relating to automobile and light truck leases
serviced for others that, in the firm's opinion, paragraph four of the
Program requires such firm to report. If such firm requires the Owner
Trustee to agree to the procedures performed by such firm, the Servicer
shall direct the Owner Trustee in writing to so agree; it being
understood and agreed that the Owner Trustee will deliver such letter
of agreement in conclusive reliance upon the direction of the Servicer
and the Owner Trustee makes no independent inquiry or investigation as
to, and shall have no obligation or liability in respect of, the
sufficiency, validity or correctness of such procedures.
(b) The Accountants' Report shall also indicate that the firm
is independent of the Seller and the Servicer within the meaning of the
Code of Professional Ethics of the American Institute of Certified
Public Accountants.
(c) A copy of the Accountants' Report may be obtained by any
Noteholder or Certificateholder by a request in writing to the Issuer
addressed to the Corporate Trust Office of the Indenture Trustee or the
Owner Trustee.
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Section 4.03. Access to Certain Documentation and Information Regarding
Secured Notes. The Servicer shall provide to the Indenture Trustee and the Owner
Trustee reasonable access to the electronic tape or other documentation
regarding the Secured Notes. The Servicer shall provide such access to any
Noteholder or Certificateholder only in such cases where a Noteholder or a
Certificateholder is required by applicable statutes or regulations to review
such documentation. In each case, such access shall be afforded without charge
but only upon reasonable request and in such format and during normal business
hours at offices of the Servicer as shall be designated by the Servicer. Nothing
in this Section 4.03 shall derogate from the obligation of the Servicer to
observe any applicable law prohibiting disclosure of information regarding
Lessees, and the failure of the Servicer to provide access as provided in this
Section 4.03 as a result of such obligation shall not constitute a breach of
this Section 4.03.
Section 4.04. Amendments to Schedule of Secured Notes. If the Servicer,
during a Monthly Period, assigns to a Secured Note an account number that
differs from the account number previously identifying such Secured Note on the
Schedule of Secured Notes, the Servicer shall deliver to the Seller, the
Indenture Trustee and the Owner Trustee on or before the Distribution Date
related to such Monthly Period an amendment to the Schedule of Secured Notes to
report the newly assigned account number. Each such amendment shall list all new
account numbers assigned to Secured Notes during such Monthly Period and shall
show by cross reference the prior account numbers identifying such Secured Notes
on the Schedule of Secured Notes.
Section 4.05. Assignment of Administrative Secured Notes and Warranty
Secured Notes. Upon receipt of the Administrative Purchase Payment or the
Warranty Payment with respect to an Administrative Secured Note or a Warranty
Secured Note, respectively, each of the Indenture Trustee and the Owner Trustee
shall assign, without recourse, representation or warranty, to the Servicer or
the Warranty Purchaser, as applicable, all of such Person's right, title and
interest in, to and under such Administrative Secured Note or Warranty Secured
Note, all monies due thereon, the security interests in the related Lease
Assets, proceeds from any insurance policies (including the Termination Value
Agreement) attributable to the related Lease Assets, and proceeds from any
guarantees or similar obligations attributable to the related Lease Assets, such
assignment being an assignment outright and not for security. The Servicer or
the Warranty Purchaser, as applicable, shall thereupon own such Secured Note,
and all such security and documents, free of any further obligations to the
Indenture Trustee, the Owner Trustee, the Noteholders or the Certificateholders
with respect thereto. If in any Proceeding it is held that the Servicer may not
enforce a Secured Note on the ground that it is not a real party in interest or
a holder entitled to enforce the Secured Note, the Indenture Trustee or the
Owner Trustee, as applicable, shall, at the Servicer's expense, take such steps
as the Servicer deems necessary to enforce the Secured Note, including bringing
suit in the name of such Person or the names of the Noteholders or the
Certificateholders.
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Section 4.06. Distributions.
(a) On or before each Determination Date, the Servicer shall
calculate the Total Available Amount, [THE EXPECTED VARIABLE PAY
REVOLVING NOTES ADVANCE AMOUNT, IF ANY, THE ACCUMULATION AMOUNT,] the
Total Servicing Fee, the Aggregate Noteholders' Interest Distributable
Amount, the Aggregate Noteholders' Principal Distributable Amount, the
Certificateholders' Interest Distributable Amount, the
Certificateholders' Principal Distributable Amount[, THE NET AMOUNT, IF
ANY, PAYABLE BY THE TRUST UNDER THE INTEREST RATE SWAPS] and all other
amounts required to determine the amounts to be deposited in or paid
from each of the Collection Account, the Note Distribution Account, the
Certificate Distribution Account, the Reserve Account [AND THE
ACCUMULATION ACCOUNT] on the related Distribution Date [(OR, IN THE
CASE OF PAYMENTS DUE UNDER THE INTEREST RATE SWAP, IF ANY, ON THE
BUSINESS DAY PRECEDING THE DISTRIBUTION DATE)].
(b) (i) On or before each Distribution Date, the Indenture
Trustee shall transfer from the Collection Account to the Servicer, in
immediately available funds, reimbursement of Outstanding Monthly
Advances pursuant to Section 5.04 [,and payments of Liquidation
Expenses (and any unpaid Liquidation Expenses from prior periods) with
respect to Secured Notes that became Liquidating Secured Notes during
the related Monthly Period pursuant to Section 3.03 of the Pooling and
Servicing Agreement.]
(ii) On or before each Distribution Date [(OR, WITH
RESPECT TO FUNDS NECESSARY TO MAKE PAYMENTS DUE, IF ANY, UNDER
THE INTEREST RATE SWAPS FOR THE RELATED MONTHLY PERIOD, ON THE
BUSINESS DAY PRECEDING THE DISTRIBUTION DATE)], the Indenture
Trustee shall withdraw from the Reserve Account and deposit in
the Collection Account the lesser of (a) the amount of cash or
other immediately available funds deposited therein and (b)
the amount, if any, by which (x) the sum of the Total
Servicing Fee, the Aggregate Noteholders' Interest
Distributable Amount, the Certificateholders' Interest
Distributable Amount, the Aggregate Noteholders' Principal
Distributable Amount, [THE NET AMOUNT, IF ANY, PAYABLE BY THE
TRUST UNDER THE INTEREST RATE SWAPS] and the
Certificateholders' Principal Distributable Amount for such
Distribution Date exceeds (y) the Total Available Amount for
such Distribution Date.
[(iii) ON OR BEFORE EACH DISTRIBUTION DATE THAT IS A
TARGETED FINAL DISTRIBUTION DATE FOR A CLASS OF CLASS A NOTES,
THE INDENTURE TRUSTEE SHALL WITHDRAW FROM THE ACCUMULATION
ACCOUNT AND DEPOSIT IN THE COLLECTION ACCOUNT THE ACCUMULATION
AMOUNT, IF ANY, FOR SUCH DISTRIBUTION DATE AND, AS APPLICABLE,
THE ACCUMULATION AMOUNT NECESSARY TO MAKE PAYMENTS UNDER THE
INTEREST RATE SWAPS PURSUANT TO SECTION 4.06(c)(ii).]
[(iv) ON OR BEFORE THE FIRST DISTRIBUTION DATE DURING
A SEQUENTIAL AMORTIZATION PERIOD CAUSED BY THE TERMINATION OF
THE INTEREST RATE SWAPS, THE INDENTURE TRUSTEE SHALL WITHDRAW
FROM THE ACCUMULATION ACCOUNT AND DEPOSIT IN THE COLLECTION
ACCOUNT THE ACCUMULATION AMOUNT, IF ANY, FOR SUCH DISTRIBUTION
DATE.]
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[(v) ON OR BEFORE THE FIRST DISTRIBUTION DATE AFTER
THE NOTES HAVE BEEN DECLARED DUE AND PAYABLE FOLLOWING AN
EVENT OF DEFAULT (OR, WITH RESPECT TO FUNDS NECESSARY TO MAKE
PAYMENTS DUE, IF ANY, UNDER THE INTEREST RATE SWAPS FOR THE
RELATED MONTHLY PERIOD, ON THE BUSINESS DAY PRECEDING THE
DISTRIBUTION DATE), THE INDENTURE TRUSTEE SHALL WITHDRAW FROM
THE ACCUMULATION ACCOUNT AND DEPOSIT IN THE COLLECTION ACCOUNT
THE ACCUMULATION AMOUNT, IF ANY, FOR SUCH DISTRIBUTION DATE
OR, AS APPLICABLE, THE ACCUMULATION AMOUNT NECESSARY TO MAKE
PAYMENTS UNDER THE INTEREST RATE SWAPS PURSUANT TO SECTION
4.06(c)(ii.]
(c) Except as otherwise provided in Section 4.06(d), on each
Distribution Date [(OR IN THE CASE OF PAYMENTS TO THE SWAP COUNTERPARTY
PURSUANT TO CLAUSE (ii) BELOW, IF ANY, ON THE BUSINESS DAY PRECEDING
THE DISTRIBUTION DATE)] the Indenture Trustee (based on the information
contained in the Servicer's Accounting delivered on the related
Determination Date pursuant to Section 3.09 of the Pooling and
Servicing Agreement) shall make the following distributions from the
Collection Account (after the withdrawals, deposits and transfers
specified in Section 4.06(b) have been made) in the following order of
priority:
(i) first, to the Servicer, to the extent of the
Total Available Amount, the Total Servicing Fee;
(ii) [SECOND, TO THE SWAP COUNTERPARTY, TO THE EXTENT
OF THE TOTAL AVAILABLE AMOUNT (AS SUCH AMOUNT HAS BEEN REDUCED
BY THE DISTRIBUTIONS DESCRIBED IN CLAUSE (i) ABOVE), THE NET
AMOUNT, IF ANY, DUE UNDER THE INTEREST RATE SWAPS (EXCLUSIVE
OF PAYMENTS DUE IN RESPECT OF AN EARLY TERMINATION DATE OF THE
INTEREST RATE SWAPS);]
(iii) third, [(a)] to the Note Distribution Account,
to the extent of the Total Available Amount (as such amount
has been reduced by the distributions described in clause (ii)
above), the Aggregate Noteholders' Interest Distributable
Amount[, AND (b) TO THE SWAP COUNTERPARTY IN RESPECT OF ANY
PAYMENTS DUE TO THE SWAP COUNTERPARTY IN CONNECTION WITH ANY
EARLY TERMINATION DATE OF THE INTEREST RATE SWAPS, ALLOCATED
BETWEEN THE NOTE DISTRIBUTION ACCOUNT AND THE SWAP
COUNTERPARTY IN PROPORTION TO THE AMOUNTS OWING TO THE SWAP
COUNTERPARTY IN CONNECTION WITH SUCH EARLY TERMINATION DATE
AND IN RESPECT OF THE AGGREGATE NOTEHOLDERS' INTEREST
DISTRIBUTABLE AMOUNT];
(iv) fourth, to the Certificate Distribution Account,
to the extent of the Total Available Amount, (as such amount
has been reduced by the distributions described in clauses
(i)[, (ii)] and (iii) above), the Certificateholders' Interest
Distributable Amount;
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(v) fifth, to the Note Distribution Account, to the
extent of the Total Available Amount (as such amount has been
reduced by the distributions described in clauses (i), [(ii)],
(iii) and (iv) above), the Aggregate Noteholders' Principal
Distributable Amount;
(vi) [SIXTH, TO THE ACCUMULATION ACCOUNT, TO THE
EXTENT OF THE TOTAL AVAILABLE AMOUNT (AS SUCH AMOUNT HAS BEEN
REDUCED BY THE DISTRIBUTIONS DESCRIBED IN CLAUSES (i) THROUGH
(v) ABOVE), THE UNDISTRIBUTED PRINCIPAL AMOUNT, IF ANY;]
(vii) seventh, to the Certificate Distribution
Account, to the extent of the Total Available Amount (as such
amount has been reduced by the distributions described in
clauses (i) through (vi) above), the Certificateholders'
Principal Distributable Amount; and
(viii) eighth, to the Reserve Account, any portion of
the Total Available Amount remaining after the distributions
described in clauses (i) through (vii) above.
(d) Notwithstanding the foregoing, at any time that the Notes
have not been paid in full and the principal balance of the Notes has
been declared immediately due and payable following the occurrence of
an Event of Default specified in Sections 5.1(a), (b) or (c) of the
Indenture, then until such time as the Notes have been paid in full and
the Indenture has been discharged or all Events of Default have been
cured or waived as provided in Section 5.2(b) of the Indenture, no
amounts shall be deposited in or distributed to the Certificate
Distribution Account. Any such amounts otherwise distributable to the
Certificate Distribution Account shall be deposited instead into the
Note Distribution Account for payment of principal on the Notes.
SECTION 4.07. [RESERVE ACCOUNT.
(a) THERE SHALL BE ESTABLISHED IN THE NAME OF AND MAINTAINED
WITH THE INDENTURE TRUSTEE AN ELIGIBLE DEPOSIT ACCOUNT KNOWN AS THE
CAPITAL AUTO RECEIVABLES ASSET TRUST 20__-SN[1] RESERVE ACCOUNT (THE
"RESERVE ACCOUNT") TO INCLUDE THE MONEY AND OTHER PROPERTY DEPOSITED
AND HELD THEREIN PURSUANT TO THIS SECTION 4.07(a), SECTION 4.07(e) AND
SECTION 4.06(c). ON THE CLOSING DATE, THE SELLER SHALL DEPOSIT THE
RESERVE ACCOUNT INITIAL DEPOSIT INTO THE RESERVE ACCOUNT. THE RESERVE
ACCOUNT SHALL NOT UNDER ANY CIRCUMSTANCES BE DEEMED TO BE PART OF OR
OTHERWISE INCLUDED IN THE TRUST.
(b) IF THE AMOUNT ON DEPOSIT IN THE RESERVE ACCOUNT ON ANY
DISTRIBUTION DATE (AFTER GIVING EFFECT TO ALL DEPOSITS THEREIN OR
WITHDRAWALS THEREFROM ON SUCH DISTRIBUTION DATE) EXCEEDS THE SPECIFIED
RESERVE ACCOUNT BALANCE FOR SUCH DISTRIBUTION DATE, THE SERVICER SHALL
INSTRUCT THE INDENTURE TRUSTEE TO DISTRIBUTE AN AMOUNT EQUAL TO ANY
SUCH EXCESS TO THE SELLER; IT BEING UNDERSTOOD THAT NO SUCH
DISTRIBUTION FROM THE
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RESERVE ACCOUNT SHALL BE MADE TO THE SELLER UNLESS THE AMOUNT SO ON
DEPOSIT IN THE RESERVE ACCOUNT EXCEEDS SUCH SPECIFIED RESERVE ACCOUNT
BALANCE.
(c) IN ORDER TO PROVIDE FOR THE PAYMENT TO THE NOTEHOLDERS,
THE CERTIFICATEHOLDERS AND THE SERVICER IN ACCORDANCE WITH SECTIONS
4.06(b) AND 4.06(c), TO ASSURE AVAILABILITY OF THE AMOUNTS MAINTAINED
IN THE RESERVE ACCOUNT FOR THE BENEFIT OF THE NOTEHOLDERS, THE
CERTIFICATEHOLDERS AND THE SERVICER, AND AS SECURITY FOR THE
PERFORMANCE BY THE SELLER OF ITS OBLIGATIONS HEREUNDER, THE SELLER ON
BEHALF OF ITSELF AND ITS SUCCESSORS AND ASSIGNS, HEREBY PLEDGES TO THE
INDENTURE TRUSTEE AND ITS SUCCESSORS AND ASSIGNS, ALL ITS RIGHT, TITLE
AND INTEREST IN AND TO THE RESERVE ACCOUNT PROPERTY, TO HAVE AND TO
HOLD ALL SUCH PROPERTY, RIGHTS AND PRIVILEGES UNTO THE INDENTURE
TRUSTEE, ITS SUCCESSORS AND ASSIGNS, IN TRUST FOR THE USES AND
PURPOSES, AND SUBJECT TO THE TERMS AND PROVISIONS, SET FORTH IN THIS
SECTION 4.07. THE INDENTURE TRUSTEE HEREBY ACKNOWLEDGES SUCH TRANSFER
AND ACCEPTS THE TRUST HEREUNDER AND SHALL HOLD AND DISTRIBUTE THE
RESERVE ACCOUNT PROPERTY IN ACCORDANCE WITH THE TERMS AND PROVISIONS OF
THIS AGREEMENT.
(d) EACH OF THE SELLER AND THE SERVICER AGREE TO TAKE OR CAUSE
TO BE TAKEN SUCH FURTHER ACTIONS, TO EXECUTE, DELIVER AND FILE OR CAUSE
TO BE EXECUTED, DELIVERED AND FILED SUCH FURTHER DOCUMENTS AND
INSTRUMENTS (INCLUDING ANY UCC FINANCING STATEMENTS OR THIS AGREEMENT)
AS MAY BE DETERMINED TO BE NECESSARY, IN AN OPINION OF COUNSEL TO THE
SELLER DELIVERED TO THE INDENTURE TRUSTEE, IN ORDER TO PERFECT THE
INTERESTS CREATED BY THIS SECTION 4.07 AND OTHERWISE FULLY TO
EFFECTUATE THE PURPOSES, TERMS AND CONDITIONS OF THIS SECTION 4.07. THE
SELLER SHALL:
(i) PROMPTLY EXECUTE, DELIVER AND FILE ANY FINANCING
STATEMENTS, AMENDMENTS, CONTINUATION STATEMENTS, ASSIGNMENTS,
CERTIFICATES AND OTHER DOCUMENTS WITH RESPECT TO SUCH
INTERESTS AND PERFORM ALL SUCH OTHER ACTS AS MAY BE NECESSARY
IN ORDER TO PERFECT OR TO MAINTAIN THE PERFECTION OF THE
INDENTURE TRUSTEE'S SECURITY INTEREST; AND
(ii) MAKE THE NECESSARY FILINGS OF FINANCING
STATEMENTS OR AMENDMENTS THERETO WITHIN THIRTY DAYS AFTER THE
OCCURRENCE OF ANY OF THE FOLLOWING: (A) ANY CHANGE IN THEIR
RESPECTIVE CORPORATE NAMES OR ANY TRADE NAMES, (B) ANY CHANGE
IN THE LOCATION OF THEIR RESPECTIVE CHIEF EXECUTIVE OFFICES OR
PRINCIPAL PLACES OF BUSINESS AND (C) ANY MERGER OR
CONSOLIDATION OR OTHER CHANGE IN THEIR RESPECTIVE IDENTITIES
OR CORPORATE STRUCTURES; AND SHALL PROMPTLY NOTIFY THE
INDENTURE TRUSTEE OF ANY SUCH FILINGS.
(e) IF THE SERVICER PURSUANT TO SECTION 5.04 DETERMINES ON ANY
DETERMINATION DATE THAT IT IS REQUIRED TO MAKE A MONTHLY ADVANCE AND
DOES NOT DO SO FROM ITS OWN FUNDS, THE SERVICER SHALL INSTRUCT THE
INDENTURE TRUSTEE TO WITHDRAW FUNDS FROM THE RESERVE ACCOUNT AND
DEPOSIT THEM IN THE COLLECTION ACCOUNT TO COVER ANY SHORTFALL. SUCH
PAYMENT SHALL BE DEEMED TO HAVE BEEN MADE BY THE SERVICER PURSUANT TO
SECTION
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5.04 FOR PURPOSES OF MAKING DISTRIBUTIONS PURSUANT TO THIS AGREEMENT,
BUT SHALL NOT OTHERWISE SATISFY THE SERVICER'S OBLIGATION TO DELIVER
THE AMOUNT OF THE MONTHLY ADVANCES, AND THE SERVICER SHALL WITHIN TWO
BUSINESS DAYS REPLACE ANY FUNDS IN THE RESERVE ACCOUNT SO USED. THE
SERVICER SHALL NOT BE ENTITLED TO REIMBURSEMENT FOR ANY SUCH DEEMED
MONTHLY ADVANCES UNLESS AND UNTIL THE SERVICER SHALL HAVE REPLACED SUCH
FUNDS IN THE RESERVE ACCOUNT.]
Section 4.08. Net Deposits. At any time that (i) GMAC shall be the
Servicer, and (ii) the Servicer shall be permitted by Section 5.02 to remit
collections on a basis other than a daily basis, the Servicer, the Seller, the
Indenture Trustee and the Owner Trustee may make any remittances pursuant to
this Article IV net of amounts to be distributed by the applicable recipient to
such remitting party. Nonetheless, each such party shall account for all of the
above described remittances and distributions as if the amounts were deposited
and/or transferred separately.
Section 4.09. Statements to Securityholders.
(a) On each Distribution Date, the Owner Trustee shall (except
as otherwise provided in the Trust Agreement) deliver to each
Certificateholder, and the Indenture Trustee shall include with each
distribution to each Noteholder, a statement (which statement shall
also be provided to the Rating Agencies) prepared by the Servicer based
on information in the Servicer's Accounting furnished pursuant to
Section 3.09 of the Pooling and Servicing Agreement. Each such
statement to be delivered to Certificateholders and Noteholders,
respectively, shall set forth the following information concerning the
Certificates or the Notes, as appropriate, with respect to such
Distribution Date or the preceding Monthly Period:
(i) the amount of such distribution allocable to
principal of each class of the Notes and to the Certificate
Balance;
(ii) the amount of the distribution, if any,
allocable to interest on or with respect to each class of
securities;
(iii) the Aggregate Secured Note Value as of the
close of business on the preceding Distribution Date and as of
the current Distribution Date, and the Principal Distributable
Amount for such Distribution Date;
(iv) the Note Principal Balance and the Note Pool
Factor for each class of Notes, the Aggregate Note Principal
Balance, the Certificate Balance, and the Certificate Pool
Factor, each as of such Distribution Date after giving effect
to all payments described under clause (i) above;
(v) the amount of Outstanding Monthly Advances on
such Distribution Date;
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(vi) the amount of the Total Servicing Fee paid to
the Servicer for the prior month or months, as the case may
be;
(vii) the interest rate or pass-through rate for the
next Monthly Period for any class or series of Notes or
Certificates with variable or adjustable rates;
(viii) [THE AMOUNT, IF ANY, DISTRIBUTED TO
NOTEHOLDERS AND CERTIFICATEHOLDERS FROM AMOUNTS ON DEPOSIT IN
THE RESERVE ACCOUNT OR FROM [DESCRIBE OTHER FORMS OF CREDIT
ENHANCEMENT];]
(ix) the balance of the Reserve Account [AND THE
ACCUMULATION ACCOUNT], if any, on such Distribution Date
(after giving effect to changes therein on such Distribution
Date);
(x) the aggregate Stipulated Market Value of all the
Lease Assets securing the secured notes, and the Auction
Turn-In Rate and the Residual Realization Ratio for the
Program Leases held by COLT;
(xi) the current TVA Percentage held by COLT, the
maximum amount of insurance available under the Termination
Value Agreement for all of the Lease Assets then held by COLT,
and the percentage of all the Lease Assets held by COLT
represented by the Lease Assets securing the Secured Notes;
and
(xii) [LIBOR FOR SUCH DISTRIBUTION DATE].
Each amount set forth pursuant to clauses (i), (ii), (vi) and (vii)
above shall be expressed as a dollar amount per $1,000 of initial
principal amount of the Notes or of the Certificate Balance, as
applicable.
(b) Within the prescribed period of time for tax reporting
purposes after the end of each calendar year during the term of this
Agreement, the Indenture Trustee and the Owner Trustee shall mail, to
each Person who at any time during such calendar year shall have been a
holder of Notes or Certificates, respectively, and received any
payments thereon, a statement containing such information as may be
required by the Code and applicable Treasury Regulations to enable such
securityholder to prepare its federal income tax returns.
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ARTICLE V
CERTIFICATEHOLDER AND NOTEHOLDER STATEMENTS AND ACCOUNTS;
COLLECTIONS, DEPOSITS AND INVESTMENTS; ADVANCES
Section 5.01. Establishment of Accounts.
(a) The Servicer, for the benefit of the Noteholders and the
Certificateholders, shall establish and maintain in the name of the
Indenture Trustee an Eligible Deposit Account known as the Capital Auto
Receivables Asset Trust 20___-SN[1] Collection Account (the "Collection
Account"), bearing an additional designation clearly indicating that
the funds deposited therein are held for the benefit of the Noteholders
and the Certificateholders.
(b) The Servicer, for the benefit of the Noteholders, shall
establish and maintain in the name of the Indenture Trustee an Eligible
Deposit Account known as the Capital Auto Receivables Asset Trust
20__-SN[1] Note Distribution Account (the "Note Distribution Account"),
bearing an additional designation clearly indicating that the funds
deposited therein are held for the benefit of the Noteholders.
(c) If and as required pursuant to the Trust Agreement, the
Servicer, for the benefit of the Certificateholders, shall establish
and maintain at _________, in the name of the Issuer an Eligible
Deposit Account known as the Capital Auto Receivables Asset Trust
20__-SN[1] Certificate Distribution Account (the "Certificate
Distribution Account") bearing an additional designation clearly
indicating that the funds deposited therein are held for the benefit of
the Certificateholders.
(d) [THE SERVICER, FOR THE BENEFIT OF THE NOTEHOLDERS AND THE
CERTIFICATEHOLDERS, SHALL ESTABLISH AND MAINTAIN IN THE NAME OF THE
INDENTURE TRUSTEE AN ELIGIBLE DEPOSIT ACCOUNT KNOWN AS THE CAPITAL AUTO
RECEIVABLES ASSET TRUST 2001-1 ACCUMULATION ACCOUNT (THE "ACCUMULATION
ACCOUNT"), BEARING AN ADDITIONAL DESIGNATION CLEARLY INDICATING THAT
THE FUNDS DEPOSITED THEREIN ARE HELD FOR THE BENEFIT OF THE NOTEHOLDERS
AND THE CERTIFICATEHOLDERS.]
(e) Each of the Designated Accounts shall be initially
established with the Indenture Trustee and shall be maintained with the
Indenture Trustee so long as (A) the short-term unsecured debt
obligations of the Indenture Trustee have the Required Deposit Rating
or (B) each of the Designated Accounts are maintained in the corporate
trust department of the Indenture Trustee. All amounts held in such
accounts (including amounts, if any, which the Servicer is required to
remit daily to the Collection Account pursuant to Section 5.02) shall,
to the extent permitted by applicable laws, rules and regulations, be
invested, at the written direction of the Servicer, by such bank or
trust company in Eligible Investments. Such written direction shall
constitute certification by the Servicer that any such investment is
authorized by this Section 5.01. Funds deposited in the Reserve Account
shall be invested in Eligible Investments which mature prior to the
next Distribution Date except, and then only to the extent, as shall be
otherwise permitted by the Rating Agencies. Investments in Eligible
Investments shall be made in the name of the Indenture Trustee or its
nominee, and such investments shall not be sold or disposed of prior to
their maturity; provided, however, that Notes held in the Reserve
Account may be sold or disposed of prior
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to their maturity so long as (x) the Servicer directs the Indenture
Trustee to make such sale or disposition, (y) the Indenture Trustee
gives reasonable prior notice of such disposition to the Administrator
and (z) such Notes are sold at a price equal to or greater than the
unpaid principal balance thereof if, following such sale, the amount on
deposit in the Reserve Account would be less than the Specified Reserve
Account Balance. If the short-term unsecured debt obligations of the
Indenture Trustee (or any other bank or trust company with which the
Designated Accounts are maintained) no longer have the Required Deposit
Rating, then the Servicer shall within 10 Business Days (or such longer
period, not to exceed 30 calendar days, as to which each Rating Agency
shall consent), with the Indenture Trustee's assistance as necessary,
cause the Designated Accounts (A) to be moved to a bank or trust
company, the short-term unsecured debt obligations of which shall have
the Required Deposit Rating, or (B) with respect to the Designated
Accounts, to be moved to the corporate trust department of the
Indenture Trustee. Investment Earnings on funds deposited in the
Designated Accounts shall be payable to the Servicer. The Indenture
Trustee or the other Person holding the Designated Accounts as provided
in this Section 5.01(e) shall be the "Securities Intermediary." If the
Securities Intermediary shall be a Person other than the Indenture
Trustee, the Servicer shall obtain the express agreement of such Person
to the obligations of the Securities Intermediary set forth in this
Section 5.01 and an Opinion of Counsel that such Person can perform
such Obligations.
(f) With respect to the Designated Account Property, the
Indenture Trustee agrees, by its acceptance hereof, that:
(i) Any Designated Account Property that is held in
deposit accounts shall be held solely in Eligible Deposit
Accounts. The Designated Accounts are accounts to which
Financial Assets will be credited.
(ii) All securities or other property underlying any
Financial Assets credited to the Designated Accounts shall be
registered in the name of the Securities Intermediary,
indorsed to the Securities Intermediary or in blank or
credited to another securities account maintained in the name
of the Securities Intermediary and in no case will any
Financial Asset credited to any of the Designated Accounts be
registered in the name of the Issuer, the Servicer or the
Seller, payable to the order of the Issuer, the Servicer or
the Seller or specially indorsed to the Issuer, the Servicer
or the Seller except to the extent the foregoing have been
specially indorsed to the Securities Intermediary or in blank.
(iii) All property delivered to the Securities
Intermediary pursuant to this Agreement will be credited upon
receipt of such property to the appropriate Designated
Account.
(iv) Each item of property (whether investments,
investment property, Financial Asset, security, instrument or
cash) credited to a Designated Account shall
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be treated as a "financial asset" within the meaning of
Section 8-102(a)(9) of the New York UCC.
(v) If at any time the Securities Intermediary shall
receive any order from the Indenture Trustee directing
transfer or redemption of any Financial Asset relating to the
Designated Accounts, the Securities Intermediary shall comply
with such order without further consent by the Trust, the
Servicer, the Seller or any other Person.
(vi) The Designated Accounts shall be governed by the
laws of the State of New York, regardless of any provision in
any other agreement. For purposes of the UCC, New York shall
be deemed to be the Securities Intermediary's jurisdiction and
the Designated Accounts (as well as the Security Entitlements
related thereto) shall be governed by the laws of the State of
New York.
(vii) The Securities Intermediary has not entered
into, and until the termination of this Agreement will not
enter into, any agreement with any other Person relating to
the Designated Accounts and/or any Financial Assets or other
property credited thereto pursuant to which it has agreed to
comply with entitlement orders (as defined in Section
8-102(a)(8) of the New York UCC) of such other Person and the
Securities Intermediary has not entered into, and until the
termination of this Agreement will not enter into, any
agreement with the Issuer, the Seller, the Servicer or the
Indenture Trustee purporting to limit or condition the
obligation of the Securities Intermediary to comply with
entitlement orders as set forth in Section 5.01(f)(v) hereof.
(viii) Except for the claims and interest of the
Indenture Trustee in the Designated Accounts, the Securities
Intermediary has no knowledge of claims to, or interests in,
the Designated Accounts or in any Financial Asset credited
thereto. If any other Person asserts any Lien, encumbrance or
adverse claim (including any writ, garnishment, judgment,
warrant of attachment, execution or similar process) against
the Designated Accounts or in any Financial Asset carried
therein, the Securities Intermediary will promptly notify the
Indenture Trustee, the Servicer and the Issuer thereof.
(ix) The Securities Intermediary will promptly send
copies of all statements, confirmations and other
correspondence concerning the Designated Accounts and/or any
Designated Account Property simultaneously to each of the
Servicer and the Indenture Trustee, at the addresses set forth
in Appendix B to this Agreement.
(x) The Indenture Trustee shall maintain each item of
Designated Account Property in the particular Designated
Account to which such item originated and shall not commingle
items from different Designated Accounts.
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(g) The Servicer shall have the power, revocable by the
Indenture Trustee (or by the Owner Trustee with the consent of the
Indenture Trustee) to instruct the Indenture Trustee to make
withdrawals and payments from the Designated Accounts for the purpose
of permitting the Servicer or the Owner Trustee to carry out its
respective duties hereunder or permitting the Indenture Trustee to
carry out its duties under the Indenture.
(h) The Indenture Trustee shall possess all right, title and
interest in and to all funds on deposit from time to time in the
Designated Accounts and in all proceeds thereof (except Investment
Earnings). Except as otherwise provided herein or in the Indenture, the
Designated Accounts shall be under the exclusive dominion and control
of the Indenture Trustee for the benefit of the Securityholders and the
Indenture Trustee shall have sole signature power and authority with
respect thereto.
(i) The Servicer shall not direct the Indenture Trustee to
make any investment of any funds or to sell any investment held in any
of the Designated Accounts unless the security interest granted and
perfected in such account shall continue to be perfected in such
investment or the proceeds of such sale, in either case without any
further action by any Person, and, in connection with any direction to
the Indenture Trustee to make any such investment or sale, if requested
by the Indenture Trustee, the Servicer shall deliver to the Indenture
Trustee an Opinion of Counsel, acceptable to the Indenture Trustee, to
such effect.
(j) Pursuant to the Trust Agreement, the Issuer shall possess
all right, title and interest in and to all funds on deposit from time
to time in the Certificate Distribution Account and in all proceeds
thereof (except Investment Earnings). Except as otherwise provided
herein or in the Trust Agreement, the Certificate Distribution Account
shall be under the sole dominion and control of the Owner Trustee for
the benefit of the Certificateholders. If, at any time, the Certificate
Distribution Account ceases to be an Eligible Deposit Account, the
Owner Trustee (or the Seller on behalf of the Owner Trustee, if the
Certificate Distribution Account is not then held by the Owner Trustee
or an Affiliate thereof) shall within 10 Business Days (or such longer
period, not to exceed 30 calendar days, as to which each Rating Agency
may consent) establish a new Certificate Distribution Account as an
Eligible Deposit Account and shall transfer any cash and/or any
investments to such new Certificate Distribution Account.
(k) The Indenture Trustee, the Owner Trustee, the Securities
Intermediary and each other Eligible Deposit Institution with whom a
Designated Account or the Certificate Distribution Account is
maintained waives any right of set-off, counterclaim, security interest
or bankers' lien to which it might otherwise be entitled.
Section 5.02. Collections. If a Monthly Remittance Condition is not
satisfied, commencing with the first day of the first Monthly Period that begins
at least two Business Days after the day on which any Monthly Remittance
Condition ceases to be satisfied, the Servicer shall remit to the Collection
Account all payments by or on behalf of COLT in accordance with Section
5.01[(e)] on the Secured Notes and all Liquidation Proceeds within two Business
Days after receipt thereof.
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Notwithstanding the foregoing, if a Monthly Remittance Condition is unsatisfied,
the Servicer may utilize an alternative remittance schedule (which may include a
remittance schedule utilized by the Servicer at a time when the Monthly
Remittance Conditions were satisfied), if the Servicer provides to the Indenture
Trustee written confirmation from the Rating Agencies that such alternative
remittance schedule will not result in the downgrading or withdrawal by the
Rating Agencies of the ratings then assigned to the Notes or the Certificates.
At all times when all Monthly Remittance Conditions are satisfied, the Servicer
(i) shall not be required to segregate or otherwise hold separate any
collections remitted to the Servicer and (ii) shall remit collections received
during a Monthly Period to the Collection Account in immediately available funds
on the related Distribution Date.
Section 5.03. Investment Earnings and Supplemental Servicing Fees. The
Servicer shall be entitled to receive all Investment Earnings and Supplemental
Servicing Fees when and as paid without any obligation to the Owner Trustee, the
Indenture Trustee or the Seller in respect thereof. The Servicer will have no
obligation to deposit any such amount in any account established hereunder. To
the extent that any such amount shall be held in any account held by the
Indenture Trustee or the Owner Trustee, or otherwise established hereunder, such
amount will be withdrawn therefrom and paid to the Servicer upon presentation of
a certificate signed by a Responsible Officer of the Servicer setting forth, in
reasonable detail, the amount of such Investment Earnings or Supplemental
Servicing Fees.
Section 5.04. Monthly Advances. Subject to the following sentence, as
of the last day of each Monthly Period, with respect to each Secured Note (other
than an Administrative Secured Note or a Warranty Secured Note), if there is a
shortfall in the Monthly Scheduled Installment remaining after application of
all amounts required pursuant to Section 3.10(a) of the Pooling and Servicing
Agreement, the Servicer shall advance an amount equal to such shortfall (such
amount, a "Monthly Advance"). The Servicer shall be obligated to make a Monthly
Advance in respect of a Secured Note only to the extent that the Servicer, in
its sole discretion, shall determine that such advance shall be recoverable from
subsequent collections or recoveries on any Secured Note. The Servicer shall be
reimbursed for Outstanding Monthly Advances with respect to a Secured Note from
(i) subsequent payments received on that Secured Note, (ii) collections of any
Liquidation Proceeds, and (iii) any Warranty Payment. At such time as the
Servicer shall determine that any Outstanding Monthly Advances with respect to
any Secured Note shall not be recoverable from payments with respect to such
Secured Note, the Servicer shall be reimbursed from any collections made on
other Secured Notes held by the Issuer.
Section 5.05. Additional Deposits. The Servicer shall deposit into the
Collection Account the aggregate Monthly Advances pursuant to Section 5.04. The
Servicer and the Seller shall deposit in the Collection Account the aggregate
Administrative Purchase Payments and Warranty Payments with respect to
Administrative Secured Notes and Warranty Secured Notes, respectively. All such
deposits with respect to a Monthly Period shall be made in immediately available
funds on the Distribution Date related to such Monthly Period.
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ARTICLE VI
LIABILITIES OF THE SERVICER AND OTHERS
Section 6.01. Liability of the Servicer; Indemnities.
(a) The Servicer shall be liable in accordance with this
Agreement only to the extent of the obligations in this Agreement and
the Pooling and Servicing Agreement specifically undertaken by the
Servicer. Such obligations shall include the following:
(i) The Servicer shall defend, indemnify and hold
harmless the Indenture Trustee, the Owner Trustee, the Issuer,
the Noteholders and the Certificateholders from and against
any and all costs, expenses, losses, damages, claims and
liabilities arising out of or resulting from the use,
ownership or operation of any Vehicle by VAULT, COLT, GMAC,
the Servicer or any affiliate of any of them;
(ii) The Servicer shall indemnify, defend and hold
harmless the Indenture Trustee, the Owner Trustee and the
Issuer from and against any taxes that may at any time be
asserted against any such Person with respect to the
transactions contemplated in this Agreement, including,
without limitation, any sales, gross receipts, general
corporation, tangible personal property, privilege or license
taxes (but not including any taxes asserted with respect to,
and as of the date of, the sale of the Secured Notes to the
Issuer or the issuance and original sale of the Notes and the
Certificates, or asserted with respect to ownership of the
Secured Notes, or federal or other income taxes arising out of
distributions on the Notes or the Certificates, or any fees or
other compensation payable to any such Person) and costs and
expenses in defending against the same;
(iii) The Servicer shall indemnify, defend and hold
harmless the Indenture Trustee, the Owner Trustee, the Issuer,
the Noteholders and the Certificateholders from and against
any and all costs, expenses, losses, claims, damages, and
liabilities to the extent that such cost, expense, loss,
claim, damage, or liability arose out of, or was imposed upon
the Indenture Trustee, the Owner Trustee, the Issuer, the
Noteholders or the Certificateholders through the negligence,
willful misfeasance or bad faith of the Servicer in the
performance of its duties under this Agreement, the Pooling
and Servicing Agreement, the Indenture or the Trust Agreement
or any other Basic Document or by reason of reckless disregard
of its obligations and duties under this Agreement, the
Pooling and Servicing Agreement, the Indenture or the Trust
Agreement; and
(iv) The Servicer shall indemnify, defend and hold
harmless the Indenture Trustee and the Owner Trustee, and
their respective agents and servants, from and against all
costs, expenses, losses, claims, damages and liabilities
arising out of or
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incurred in connection with (x) in the case of the Owner
Trustee, the Indenture Trustee's performance of its duties
under the Indenture or any other Basic Document, (y) in the
case of the Indenture Trustee, the Owner Trustee's performance
of its duties under the Trust Agreement or (z) the acceptance,
administration or performance by, or action or inaction of,
the Indenture Trustee or the Owner Trustee, as applicable, of
the trusts and duties contained in this Agreement, the Basic
Documents, the Indenture (in the case of the Indenture
Trustee), including the administration of the Trust Estate,
and the Trust Agreement (in case of the Owner Trustee),
including the administration of the Owner Trust Estate, except
in each case to the extent that such cost, expense, loss,
claim, damage or liability: (A) is due to the willful
misfeasance, bad faith or negligence (except for errors in
judgment) of the Person indemnified, (B) to the extent
otherwise payable to the Indenture Trustee, arises from the
Indenture Trustee's breach of any of its representations or
warranties in Section 6.13 of the Indenture, (C) to the extent
otherwise payable to the Owner Trustee, arises from the Owner
Trustee's breach of any of its representations or warranties
set forth in Section 6.6 of the Trust Agreement, or (D) shall
arise out of or be incurred in connection with the performance
by the Indenture Trustee of the duties of successor Servicer
hereunder.
(b) Indemnification under this Section 6.01 shall include
reasonable fees and expenses of counsel and expenses of litigation. If
the Servicer has made any indemnity payments pursuant to this Section
6.01 and the recipient thereafter collects any of such amounts from
others, the recipient shall promptly repay such amounts collected to
the Servicer, without interest.
Section 6.02. Merger or Consolidation of, or Assumption of the
Obligations of, the Servicer. Any corporation or other entity (a) into which the
Servicer may be merged or consolidated, (b) resulting from any merger,
conversion or consolidation to which the Servicer shall be a party, (c)
succeeding to the business of the Servicer, or (d) more than 50% of the voting
stock (or, if not a corporation, other voting interests) of which is owned
directly or indirectly by General Motors and which is otherwise servicing the
Seller's automotive loans, leases or similar notes or receivables, which
corporation in any of the foregoing cases executes an agreement of assumption to
perform every obligation of the Servicer under this Agreement and the Pooling
and Servicing Agreement, shall be the successor to the Servicer under this
Agreement and the Pooling and Servicing Agreement without the execution or
filing of any paper or any further act on the part of any of the parties to this
Agreement, anything in this Agreement or in the Pooling and Servicing Agreement
to the contrary notwithstanding. The Servicer shall provide notice of any
merger, consolidation or succession pursuant to this Section 6.02 to the Rating
Agencies.
Section 6.03. Limitation on Liability of the Servicer and Others.
(a) Neither the Servicer nor any of the directors or officers
or employees or agents of the Servicer shall be under any liability to
the Issuer, the Noteholders or the Certificateholders, except as
specifically provided in this Agreement and in the Pooling and
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Servicing Agreement, for any action taken or for refraining from the
taking of any action pursuant to this Agreement, the Pooling and
Servicing Agreement, the Indenture or the Trust Agreement or for errors
in judgment; provided, however, that this provision shall not protect
the Servicer or any such Person against any liability that would
otherwise be imposed by reason of willful misfeasance, bad faith or
negligence (except errors in judgment) in the performance of duties or
by reason of reckless disregard of obligations and duties under this
Agreement, the Pooling and Servicing Agreement, the Indenture or the
Trust Agreement. The Servicer and any director, officer or employee or
agent of the Servicer may rely in good faith on the advice of counsel
or on any document of any kind prima facie properly executed and
submitted by any Person respecting any matters arising under this
Agreement or the Pooling and Servicing Agreement.
(b) The Servicer and any director or officer or employee or
agent of the Servicer shall be reimbursed by the Indenture Trustee or
the Owner Trustee, as applicable, for any contractual damages,
liability or expense (including, without limitation, any obligation of
the Servicer to the Indenture Trustee or the Owner Trustee, as
applicable, pursuant to Section 6.01(a)(iv)(x) or (y)) incurred by
reason of such trustee's willful misfeasance, bad faith or gross
negligence (except errors in judgment) in the performance of such
trustee's duties under this Agreement, the Indenture or the Trust
Agreement or by reason of reckless disregard of its obligations and
duties under this Agreement.
(c) Except as provided in this Agreement or in the Pooling and
Servicing Agreement, the Servicer shall not be under any obligation to
appear in, prosecute or defend any legal action that is not incidental
to its duties to service the Secured Notes in accordance with this
Agreement and the Pooling and Servicing Agreement and that in its
opinion may involve it in any expense or liability; provided, however,
that the Servicer may undertake any reasonable action that it may deem
necessary or desirable in respect of this Agreement or the Pooling and
Servicing Agreement and the rights and duties of the parties to this
Agreement or the Pooling and Servicing Agreement and the interests of
the Noteholders and the Certificateholders under this Agreement and the
Pooling and Servicing Agreement, the interests of the Noteholders under
the Indenture and the interests of the Certificateholders under the
Trust Agreement. In such event, the legal expenses and costs for such
action and any liability resulting therefrom shall be expenses, costs
and liabilities of the Trust and the Servicer shall be entitled to be
reimbursed therefor.
(d) The Applicable Trustee shall distribute out of the
Collection Account on a Distribution Date any amounts permitted for
reimbursement pursuant to Section 6.03(c) not therefor reimbursed;
provided, however, that the Applicable Trustee shall not distribute
such amounts if the amount on deposit in the Reserve Account (after
giving effect to all deposits and withdrawals pursuant to Sections
4.06(b) and (c) and Section 4.07(e) on such Distribution Date) is
greater than zero but less than the Specified Reserve Account Balance
for such Distribution Date.
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Section 6.04. Delegation of Duties. So long as GMAC acts as Servicer,
the Servicer may, at any time without notice or consent, delegate any duties
under this Agreement or under the Pooling and Servicing Agreement to any
corporation or other Person more than 50% of the voting stock (or, if not a
corporation, other voting interests) of which is owned, directly or indirectly,
by General Motors. The Servicer may at any time perform specific duties as
Servicer through sub-contractors who are in the business of servicing automotive
loans, leases or similar notes or receivables; provided, however, that no such
delegation shall relieve the Servicer of its responsibility with respect to such
duties.
Section 6.05. Servicer Not to Resign. Subject to the provisions of
Section 7.02, the Servicer shall not resign from the obligations and duties
imposed on it by this Agreement and the Pooling and Servicing Agreement as
Servicer, except upon determination that the performance of its duties under
this Agreement or under the Pooling and Servicing Agreement, as the case may be,
is no longer permissible under applicable law. Any such determination permitting
the resignation of the Servicer shall be evidenced by an Opinion of Counsel to
such effect delivered to the Indenture Trustee and the Owner Trustee. No such
resignation shall become effective until the Indenture Trustee or a successor
Servicer shall have assumed the responsibilities and obligations of the Servicer
in accordance with Section 7.02.
ARTICLE VII
DEFAULT
Section 7.01. Servicer Defaults. Each of the following shall constitute
a "Servicer Default":
(a) any failure by the Servicer to deliver to the Indenture
Trustee for deposit in any of the Designated Accounts or to the Owner
Trustee for deposit in the Certificate Distribution Account any
required payment or to direct the Indenture Trustee to make any
required distributions therefrom, which failure continues unremedied
for a period of five Business Days after written notice is received by
the Servicer from the Indenture Trustee or the Owner Trustee or after
discovery of such failure by an officer of the Servicer;
(b) failure on the part of the Seller or the Servicer to duly
observe or perform in any material respect any other covenants or
agreements of the Seller or the Servicer set forth in this Agreement,
the Pooling and Servicing Agreement, the Indenture or the Trust
Agreement which failure (i) materially and adversely affects the rights
of Noteholders or Certificateholders, and (ii) continues unremedied for
a period of 90 days after the date on which written notice of such
failure, requiring the same to be remedied, shall have been given to
the Seller or the Servicer, as applicable, by the Indenture Trustee or
the Owner Trustee, or to the Seller or the Servicer, as applicable, and
to the Indenture Trustee or the Owner Trustee by Noteholders whose
Notes evidence not less than 25% of the Outstanding Amount of the Notes
as of the close of the preceding Distribution Date or by
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Certificateholders whose Certificates evidence not less than 25% of the
Voting Interests as of the close of the preceding Distribution Date;
(c) the entry of a decree or order by a court or agency or
supervisory authority having jurisdiction in the premises for the
appointment of a conservator, receiver or liquidator for the Seller or
the Servicer, in any insolvency, readjustment of debt, marshalling of
assets and liabilities or similar proceedings, or for the winding up or
liquidation of their respective affairs, and the continuance of any
such decree or order unstayed and in effect for a period of 90
consecutive days; or
(d) the consent by the Seller or the Servicer to the
appointment of a conservator or receiver or liquidator in any
insolvency, readjustment of debt, marshalling of assets and
liabilities, or similar proceedings of or relating to the Seller or the
Servicer or of or relating to substantially all of their respective
property; or the Seller or the Servicer shall admit in writing its
inability to pay its debts generally as they become due, file a
petition to take advantage of any applicable insolvency or
reorganization statute, make an assignment for the benefit of its
creditors or voluntarily suspend payment of its obligations.
Section 7.02. Consequences of a Servicer Default. If a Servicer Default
shall occur and be continuing, either the Indenture Trustee or the Noteholders
whose Notes evidence not less than a majority of the Outstanding Amount of the
Notes as of the close of the preceding Distribution Date (or, if the Notes have
been paid in full and the Indenture has been discharged in accordance with its
terms, by the Owner Trustee or Certificateholders whose Certificates evidence
not less than a majority of the Voting Interests as of the close of the
preceding Distribution Date) by notice then given in writing to the Servicer and
the Owner Trustee (and to the Indenture Trustee if given by the Noteholders or
the Certificateholders) may terminate all of the rights and obligations of the
Servicer under this Agreement and the Pooling and Servicing Agreement. On or
after the receipt by the Servicer of such written notice, all authority and
power of the Servicer under this Agreement and the Pooling and Servicing
Agreement, whether with respect to the Notes, the Certificates or the Secured
Notes or otherwise, shall pass to and be vested in the Indenture Trustee
pursuant to and under this Section 7.02. The Indenture Trustee is hereby
authorized and empowered to execute and deliver, on behalf of the Servicer, as
attorney-in-fact or otherwise, any and all documents and other instruments, and
to do or accomplish all other acts or things necessary or appropriate to effect
the purposes of such notice of termination, whether to complete the transfer and
endorsement of the Secured Notes and related documents, or otherwise. The
Servicer agrees to cooperate with the Indenture Trustee and the Owner Trustee in
effecting the termination of the responsibilities and rights of the Servicer
under this Agreement and the Pooling and Servicing Agreement, including, without
limitation, the transfer to the Indenture Trustee or the Owner Trustee for
administration by it of all cash amounts that shall at the time be held by the
Servicer for deposit, or that shall have been deposited by the Servicer in the
Collection Account, the Note Distribution Account or the Certificate
Distribution Account or thereafter received with respect to the Secured Notes.
In addition to any other amounts that are then payable to the Servicer under
this Agreement, the Servicer shall be entitled to receive from the successor
Servicer reimbursements for any Outstanding Scheduled
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Installment Advances made during the period prior to the notice pursuant to this
Section 7.02 which terminates the obligation and rights of the Servicer under
this Agreement.
Section 7.03. Indenture Trustee to Act; Appointment of Successor. On
and after the time the Servicer receives a notice of termination pursuant to
Section 7.02, the Indenture Trustee shall be the successor in all respects to
the Servicer in its capacity as servicer under this Agreement and the Pooling
and Servicing Agreement and the transactions set forth or provided for in this
Agreement and the Pooling and Servicing Agreement, and shall be subject to all
the responsibilities, restrictions, duties and liabilities relating thereto
placed on the Servicer by the terms and provisions of this Agreement and the
Pooling and Servicing Agreement. As compensation therefor, the Indenture Trustee
shall be entitled to such compensation (whether payable out of the Collection
Account or otherwise) as the Servicer would have been entitled to under this
Agreement if no such notice of termination had been given including, but not
limited to, the Total Servicing Fee, Investment Earnings and Supplemental
Servicing Fees. Notwithstanding the above, the Indenture Trustee may, if it
shall be unwilling so to act, or shall, if it is legally unable so to act,
appoint, or petition a court of competent jurisdiction to appoint, a successor
(i) having a net worth of not less than $50,000,000, (ii) a long-term unsecured
debt rating from Moody's Investors Service, Inc. of at least Baa3 (unless such
requirement is expressly waived by Moody's Investors Service, Inc.) and (iii)
whose regular business includes the servicing of automotive loans, leases or
similar notes or receivables, as the successor to the Servicer under this
Agreement and the Pooling and Servicing Agreement in the assumption of all or
any part of the responsibilities, duties or liabilities of the Servicer under
this Agreement and the Pooling and Servicing Agreement. In connection with such
appointment and assumption, the Indenture Trustee may make such arrangements for
the compensation of such successor out of payments on Secured Notes as it and
such successor shall agree; provided, however, that no such compensation shall
be in excess of that permitted the Servicer under this Agreement and the Pooling
and Servicing Agreement. The Indenture Trustee and such successor shall take
such action, consistent with this Agreement and the Pooling and Servicing
Agreement, as shall be necessary to effectuate any such succession.
Section 7.04. Notification to Noteholders and Certificateholders. Upon
any termination of, or appointment of a successor to, the Servicer pursuant to
this Article VII, the Indenture Trustee shall give prompt written notice thereof
to the Noteholders and the Rating Agencies and the Owner Trustee shall give
prompt written notice thereof to the Certificateholders.
Section 7.05. Waiver of Past Defaults. Noteholders whose Notes evidence
not less than a majority of the Outstanding Amount of the Notes as of the close
of the preceding Distribution Date (or, if all of the Notes have been paid in
full and the Indenture has been discharged in accordance with its terms,
Certificateholders whose Certificates evidence not less than a majority of the
Voting Interests as of the close of the preceding Distribution Date) may, on
behalf of all Noteholders and Certificateholders, waive any default by the
Servicer in the performance of its obligations hereunder and its consequences,
except a default in making any required deposits to or payments from any of the
accounts in accordance with this Agreement. Upon any such waiver of a past
default, such default shall cease to exist, and any Servicer Default arising
therefrom shall be deemed to have been
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remedied for every purpose of this Agreement and the Pooling and Servicing
Agreement. No such waiver shall extend to any subsequent or other default or
impair any right consequent thereon.
Section 7.06. Repayment of Advances. If the identity of the Servicer
shall change, the predecessor Servicer shall be entitled to receive, to the
extent of available funds, reimbursement for Outstanding Monthly Advances
pursuant to Section 5.04 in the manner specified in Section 4.06, with respect
to all Monthly Advances made by such predecessor Servicer.
ARTICLE VIII
TERMINATION
Section 8.01. Optional Purchase of All Secured Notes; Insolvency of the
Seller; Termination of Trust.
(a) The Servicer shall have the option to purchase the assets
of the Trust (other than the Designated Accounts and the Certificate
Account) as of any date (the "Optional Purchase Date") which is the
last day of any Monthly Period as of which the Aggregate Secured Note
Value is 10% or less of the Initial Aggregate Secured Note Value. To
exercise such option, the Servicer shall (i) furnish to the Issuer and
the Indenture Trustee notice of its intention to exercise such option
and of the Optional Purchase Date (such notice to be furnished not
later than 25 days prior to the Distribution Date related to such
Optional Purchase Date) and (ii) deposit in the Collection Account an
amount equal to the aggregate Administrative Purchase Payments for the
Secured Notes (including Liquidating Secured Notes), plus the appraised
value of any other property held by the Trust [(less the Liquidation
Expenses to be incurred in connection with the recovery thereof)],
provided, that such amount (when added to any funds then on deposit in
the Designated Accounts and the Certificate Distribution Account) must
be at least equal to the aggregate Redemption Price of the outstanding
Notes to be redeemed and the Certificate Balance plus accrued and
unpaid interest on all Certificates to be retired early with such
proceeds on the Distribution Date related to the Monthly Period in
which such option is exercised. Such appraised value shall be
determined by an appraiser mutually satisfactory to the Servicer, the
Owner Trustee and the Indenture Trustee. The Servicer shall make such
deposit in immediately available funds on the Distribution Date related
to the Optional Purchase Date, except that if any Monthly Remittance
Condition is not satisfied on the Optional Purchase Date, such deposit
shall instead be made on the Optional Purchase Date. Upon the making of
such deposit, the Servicer shall succeed to all interests in and to the
Trust (other than the Designated Accounts and the Certificate Account).
(b) Upon any sale or other disposition of the assets of the
Trust pursuant to Article V of the Indenture (an "Event of Default
Sale"), the Servicer shall instruct the Applicable Trustee to deposit
into the Collection Account from the proceeds of such disposition the
amount specified in clause SECOND of Section 5.4(b) of the Indenture
(the
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"Event of Default Proceeds"). On the Distribution Date on which the
Event of Default Proceeds are deposited in the Collection Account (or,
if such proceeds are not so deposited on a Distribution Date, on the
Distribution Date immediately following such deposit), the Servicer
shall instruct the Applicable Trustee to make the following deposits
(after the application on such Distribution Date of the Total Available
Amount and funds on deposit in the Reserve Account pursuant to Sections
4.06 and 4.07) from the Event of Default Proceeds and any funds
remaining on deposit in the Reserve Account (including the proceeds of
any sale of investments therein as described in the following sentence)
in the following priority:
(i) [TO THE SWAP COUNTERPARTY, THE NET AMOUNT, IF
ANY, THEN DUE TO THE SWAP COUNTERPARTY UNDER THE INTEREST RATE
SWAPS (EXCLUSIVE OF PAYMENTS DUE TO THE SWAP COUNTERPARTY IN
RESPECT OF AN EARLY TERMINATION DATE UNDER THE INTEREST RATE
SWAPS);]
(ii) to [(a)] the Note Distribution Account, any
portion of the Aggregate Noteholders' Interest Distributable
Amount not otherwise deposited into the Note Distribution
Account on such Distribution Date for payment of interest on
the Notes [AND (b) TO THE SWAP COUNTERPARTY IN RESPECT OF ANY
PAYMENTS DUE TO THE SWAP COUNTERPARTY IN CONNECTION WITH ANY
EARLY TERMINATION DATE OF THE INTEREST RATE SWAPS, ALLOCATED
BETWEEN THE NOTE DISTRIBUTION ACCOUNT AND THE SWAP
COUNTERPARTY IN PROPORTION TO THE AMOUNTS OWING TO THE SWAP
COUNTERPARTY IN CONNECTION WITH SUCH EARLY TERMINATION DATE
AND IN RESPECT OF THE AGGREGATE NOTEHOLDERS' INTEREST
DISTRIBUTABLE AMOUNT];
(iii) [TO THE NOTE DISTRIBUTION ACCOUNT, ANY PORTION
OF THE AGGREGATE NOTEHOLDERS' INTEREST DISTRIBUTABLE AMOUNT
NOT OTHERWISE DEPOSITED INTO THE NOTE DISTRIBUTION ACCOUNT ON
SUCH DISTRIBUTION DATE FOR PAYMENT OF INTEREST ON THE NOTES;]
(iv) [IF SUCH EVENT OF DEFAULT SALE RESULTS FROM THE
OCCURRENCE OF AN EVENT OF DEFAULT SPECIFIED IN SECTION 5.1(a),
(b) OR (c) OF THE INDENTURE] to the Note Distribution Account,
an amount equal to the Note Principal Balance of the Notes
(after giving effect to the reduction in the Aggregate Note
Principal Balance to result from the deposits made in the Note
Distribution Account on such Distribution Date and on each
prior Distribution Date) for payment of principal of the
Notes;
(v) to the Certificate Distribution Account, any
portion of the Certificateholders' Interest Distributable
Amount not otherwise deposited into the Certificate
Distribution Account on such Distribution Date for payment of
interest on the Certificates;
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(vi) [IF SUCH EVENT OF DEFAULT SALE DOES NOT RESULT
FROM THE CIRCUMSTANCES SPECIFIED IN SECTION 8.01(b)(iv), TO
THE NOTE DISTRIBUTION ACCOUNT, AN AMOUNT EQUAL TO THE NOTE
PRINCIPAL BALANCE OF THE NOTES (AFTER GIVING EFFECT TO THE
REDUCTION IN THE AGGREGATE NOTE PRINCIPAL BALANCE TO RESULT
FROM THE DEPOSITS MADE IN THE NOTE DISTRIBUTION ACCOUNT ON
SUCH DISTRIBUTION DATE AND ON EACH PRIOR DISTRIBUTION DATE)
FOR PAYMENT OF PRINCIPAL OF THE NOTES;] and
(vii) to the Certificate Distribution Account, an
amount equal to the Certificate Balance of the Certificates
(after giving effect to the reduction therein to result from
the deposits made in the Certificate Distribution Account on
such Distribution Date and on each prior Distribution Date)
for payment of the Certificate Balance on the Certificates.
Subject to Section 5.01(b), any investments on deposit in the Reserve
Account which shall not mature on or before such Distribution Date
shall be sold by the Indenture Trustee at such time as shall result in
the Indenture Trustee receiving the proceeds from such sale not later
than such Distribution Date. Any Event of Default Proceeds remaining
after the deposits described above shall be paid to the Seller.
(c) Notice of any termination of the Trust shall be given by
the Servicer to the Owner Trustee and the Indenture Trustee as soon as
practicable after the Servicer has received notice thereof.
(d) Following the satisfaction and discharge of the Indenture
with respect to the Notes, and the payment in full of the principal and
interest on the Notes, the Certificateholders shall succeed to the
rights of the Noteholders hereunder and the Owner Trustee shall succeed
to the rights of, and assume the obligations (other than those under
Section 7.03 which shall remain obligations of the Indenture Trustee)
of, the Indenture Trustee pursuant to this Agreement (subject to the
continuing obligations of the Indenture Trustee set forth in Section
4.4 of the Indenture).
(e) After indefeasible payment in full to the Indenture
Trustee, the Owner Trustee, the Noteholders, the Certificateholders and
the Servicer of all amounts required to be paid under this Agreement,
the Indenture and the Trust Agreement (including as contemplated by
this Section 8.01), (i) any amounts on deposit in the Reserve Account,
the Payment Ahead Servicing Account and the Collection Account (after
all other distributions required to be made from such accounts have
been made and provision for the payment of all liabilities of the Trust
as required by Section 3808 of the Business Trust Statute) shall be
paid to the Seller and (ii) any other assets remaining in the Trust
shall be distributed to the Seller.
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ARTICLE IX
MISCELLANEOUS PROVISIONS
Section 9.01. Amendment.
(a) This Agreement may be amended by the Seller, the Servicer
and the Owner Trustee with the consent of the Indenture Trustee, but
without the consent of any of the Noteholders or the
Certificateholders, (i) to cure any ambiguity, (ii) to correct or
supplement any provision in this Agreement that may be defective or
inconsistent with any other provision in this Agreement or any other
Basic Documents, (iii) to add or supplement any credit enhancement for
the benefit of the Noteholders of any class or the Certificateholders
(provided that if any such addition shall affect any class of
Noteholders or Certificateholders differently than any other class of
Noteholders or Certificateholders, then such addition shall not, as
evidenced by an Opinion of Counsel, adversely affect in any material
respect the interests of any class of Noteholders or the
Certificateholders), (iv) add to the covenants, restrictions or
obligations of the Seller, the Servicer, the Owner Trustee or the
Indenture Trustee or (v) add, change or eliminate any other provision
of this Agreement in any manner that shall not, as evidenced by an
Opinion of Counsel, adversely affect in any material respect the
interests of the Noteholders or the Certificateholders.
(b) This Agreement may also be amended from time to time by
the Seller, the Servicer and the Owner Trustee with the consent of the
Indenture Trustee, the consent of Noteholders whose Notes evidence not
less than a majority of the Outstanding Amount of the Notes as of the
close of the preceding Distribution Date, the consent of
Certificateholders whose Certificates evidence not less than a majority
of the Voting Interests as of the close of the preceding Distribution
Date (which consent, whether given pursuant to this Section 9.01 or
pursuant to any other provision of this Agreement, shall be conclusive
and binding on such Person and on all future holders of such Note or
Certificate and of any Note or Certificate issued upon the transfer
thereof or in exchange thereof or in lieu thereof whether or not
notation of such consent is made upon the Note or Certificate) for the
purpose of adding any provisions to or changing in any manner or
eliminating any of the provisions of this Agreement, or of modifying in
any manner the rights of the Noteholders or the Certificateholders;
provided, however, that no such amendment shall (i) increase or reduce
in any manner the amount of, or accelerate or delay the timing of,
collections of payments on Secured Notes or distributions that shall be
required to be made on any Note or Certificate, the Interest Rate for
any class of Notes, the Pass Through Rate or the Specified Reserve
Account Balance or (ii) reduce the aforesaid percentage required to
consent to any such amendment, without the consent of the holders of
all Notes and Certificates then outstanding.
(c) Prior to the execution of any such amendment or consent,
the Indenture Trustee shall furnish written notification of the
substance of such amendment or consent to the Rating Agencies.
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(d) Promptly after the execution of any such amendment or
consent, the Owner Trustee shall furnish written notification of the
substance of such amendment or consent to each Noteholder and
Certificateholder.
(e) It shall not be necessary for the consent of Noteholders
or Certificateholders pursuant to Section 9.01(b) to approve the
particular form of any proposed amendment or consent, but it shall be
sufficient if such consent shall approve the substance thereof. The
manner of obtaining such consents (and any other consents of
Noteholders or Certificateholders provided for in this Agreement) and
of evidencing the authorization of the execution thereof by Noteholders
and Certificateholders shall be subject to such reasonable requirements
as the Indenture Trustee or the Owner Trustee may prescribe, including
the establishment of record dates pursuant to paragraph number 2 of the
Depository Agreements.
(f) Prior to the execution of any amendment to this Agreement,
the Indenture Trustee and the Owner Trustee shall be entitled to
receive and conclusively rely upon an Opinion of Counsel stating that
the execution of such amendment is authorized or permitted by this
Agreement and the Opinion of Counsel referred to in Section 9.02(i).
The Indenture Trustee and the Owner Trustee may, but shall not be
obligated to, enter into any such amendment which affects such
trustee's own rights, duties or immunities under this Agreement or
otherwise.
(g) Each of GMAC and the Seller agrees that such Person shall
not amend or agree to any amendment of the Pooling and Servicing
Agreement unless such amendment would be permissible under the terms of
this Section 9.01 as if this Section 9.01 were contained in the Pooling
and Servicing Agreement.
Section 9.02. Protection of Title to Trust.
(a) The Seller or the Servicer or both shall execute and file
such financing statements and cause to be executed and filed such
continuation and other statements, all in such manner and in such
places as may be required by law fully to preserve, maintain and
protect the interest of the Noteholders, the Certificateholders and the
Indenture Trustee and the Owner Trustee under this Agreement in the
Secured Notes and in the proceeds thereof. The Seller or the Servicer
or both shall deliver (or cause to be delivered) to the Indenture
Trustee and the Owner Trustee file-stamped copies of, or filing
receipts for, any document filed as provided above, as soon as
available following such filing.
(b) Neither the Seller nor the Servicer shall change its name,
identity or corporate structure in any manner that would, could or
might make any financing statement or continuation statement filed in
accordance with paragraph (a) above seriously misleading within the
meaning of Section 9-402(7) of the UCC, unless it shall have given the
Indenture Trustee and the Owner Trustee at least 60 days prior written
notice thereof.
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(c) Each of the Seller and the Servicer shall give the
Indenture Trustee and the Owner Trustee at least 60 days prior written
notice of any relocation of its principal executive office if, as a
result of such relocation, the applicable provisions of the UCC would
require the filing of any amendment of any previously filed financing
or continuation statement or of any new financing statement. The
Servicer shall at all times maintain each office from which it services
Secured Notes and its principal executive office within the United
States of America.
(d) The Servicer shall maintain accounts and records as to
each Secured Note accurately and in sufficient detail to permit (i) the
reader thereof to know at any time the status of such Secured Notes,
including payments and recoveries made and payments owing (and the
nature of each), and (ii) reconciliation between payments or recoveries
on (or with respect to) each Secured Notes and the amounts from time to
time deposited in the Collection Account, Note Distribution Account and
Certificate Distribution Account.
(e) The Servicer shall maintain its computer systems so that,
from and after the time of sale under this Agreement of the Secured
Notes, the Servicer's master computer records (including any back-up
archives) that refer to any Secured Note indicate clearly that the
Secured Note is owned by the Issuer. Indication of the Issuer's
ownership of a Secured Note shall be deleted from or modified on the
Servicer's computer systems when, and only when, the Secured Note has
been paid in full or repurchased by the Seller or purchased by the
Servicer.
(f) If GMAC shall change the jurisdiction in which it is
incorporated or otherwise enter into any transaction which would result
in a "new debtor" (as defined in the UCC) succeeding to the obligations
of GMAC hereunder, GMAC shall comply fully with the obligations of
Section 9.02(a).
(g) If at any time the Seller or the Servicer proposes to
sell, grant a security interest in, or otherwise transfer any interest
in Secured Notes to any prospective purchaser, lender or other
transferee, the Servicer shall give to such prospective purchaser,
lender or other transferee computer tapes, records or print-outs
(including any restored from back-up archives) that, if they refer in
any manner whatsoever to any Secured Note, indicate clearly that such
Secured Note has been sold and is owned by the Issuer unless such
Secured Note has been paid in full or repurchased by the Seller or
purchased by the Servicer.
(h) The Servicer shall permit the Indenture Trustee and the
Owner Trustee and their respective agents at any time to inspect, audit
and make copies of and abstracts from the Servicer's records regarding
any Secured Notes then or previously included in the Owner Trust
Estate.
(i) The Servicer shall furnish to the Indenture Trustee and
the Owner Trustee at any time upon request a list of all Secured Notes
then part of the Trust, together with a reconciliation of such list to
the Schedule of Secured Notes and to each of the Servicer's
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Accountings furnished before such request indicating removal of Secured
Notes from the Trust. Upon request, the Servicer shall furnish a copy
of any such list to the Seller. The Indenture Trustee, the Owner
Trustee and the Seller shall hold any such list and the Schedule of
Secured Notes for examination by interested parties during normal
business hours at their respective offices located at the addresses
specified in Section 9.03.
(j) The Servicer shall deliver to the Indenture Trustee and
the Owner Trustee promptly after the execution and delivery of this
Agreement and of each amendment thereto, an Opinion of Counsel either
(a) stating that, in the opinion of such counsel, all financing
statements and continuation statements have been executed and filed
that are necessary fully to preserve and protect the interest of the
Indenture Trustee and the Owner Trustee in the Secured Notes, and
reciting the details of such filings or referring to prior Opinions of
Counsel in which such details are given, or (b) stating that, in the
opinion of such counsel, no such action is necessary to preserve and
protect such interest.
(k) To the extent required by law, the Seller shall cause the
Notes and the Certificates to be registered with the Securities and
Exchange Commission pursuant to Section 12(b) or Section 12(g) of the
Securities Exchange Act of 1934 within the time periods specified in
such sections.
Section 9.03. Notices. All demands, notices and communications upon or
to the Seller, the Servicer, the Indenture Trustee, the Owner Trustee or the
Rating Agencies under this Agreement shall be delivered as specified in Appendix
B hereto.
Section 9.04. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK, WITHOUT
REFERENCE TO ITS CONFLICT OF LAWS PROVISIONS (OTHER THAN SECTION 5-1401 OF THE
NEW YORK GENERAL OBLIGATIONS LAW) AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF
THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
Section 9.05. Severability of Provisions. If any one or more of the
covenants, agreements, provisions or terms of this Agreement shall be for any
reason whatsoever held invalid, then such covenants, agreements, provisions or
terms shall be deemed severable from the remaining covenants, agreements,
provisions or terms of this Agreement and shall in no way affect the validity or
enforceability of the other provisions of this Agreement or of the Certificates
or the rights of the holders thereof.
Section 9.06. Assignment. Notwithstanding anything to the contrary
contained in this Agreement, this Agreement may not be assigned by the Seller
without the prior written consent of Noteholders whose Notes evidence not less
than 66% of the Outstanding Amount of the Notes as of the close of the preceding
Distribution Date and of Certificateholders whose Certificates evidence not less
than 66% of the Voting Interests as of the close of the preceding Distribution
Date. The Seller shall provide notice of any such assignment to the Rating
Agencies.
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Section 9.07. Third-Party Beneficiaries. This Agreement shall inure to
the benefit of and be binding upon the parties hereto, and, to the extent
expressly provided herein, the Noteholders, the Certificateholders[, THE SWAP
COUNTERPARTY] and their respective successors and permitted assigns. The Swap
Counterparty shall be a third-party beneficiary to this Agreement only to the
extent that it has any rights specified herein or rights with respect to this
Trust Sale and Servicing Agreement specified under the Swap Counterparty Rights
Agreement. Except as otherwise provided in Section 6.01[, THE SWAP COUNTERPARTY
RIGHTS AGREEMENT] or in this Article IX, no other person shall have any right or
obligation hereunder.
Section 9.08. Separate Counterparts. This Agreement may be executed by
the parties hereto in separate counterparts, each of which when so executed and
delivered shall be an original, but all such counterparts shall together
constitute but one and the same instrument.
Section 9.09. Headings and Cross-References. The various headings in
this Agreement are included for convenience only and shall not affect the
meaning or interpretation of any provision of this Agreement.
Section 9.10. Assignment to Indenture Trustee. The Seller hereby
acknowledges and consents to any mortgage, pledge, assignment and grant of a
security interest by the Issuer to the Indenture Trustee pursuant to the
Indenture for the benefit of the Noteholders and (only to the extent expressly
provided in the Indenture) the Certificateholders of all right, title and
interest of the Issuer in, to and under the Secured Notes and/or the assignment
of any or all of the Issuer's rights and obligations hereunder to the Indenture
Trustee.
Section 9.11. No Petition Covenants. Notwithstanding any prior
termination of this Agreement, the Servicer and the Seller shall not, prior to
the date which is one year and one day after the final distribution with respect
to the Notes and the Certificates to the Note Distribution Account or the
Certificate Distribution Account, as applicable, acquiesce, petition or
otherwise invoke or cause the Issuer to invoke the process of any court or
government authority for the purpose of commencing or sustaining a case against
the Issuer under any federal or state bankruptcy, insolvency or similar law or
appointing a receiver, liquidator, assignee, trustee, custodian, sequestrator or
other similar official of the Issuer or any substantial part of its property, or
ordering the winding up or liquidation of the affairs of the Issuer.
Section 9.12. Limitation of Liability of Indenture Trustee and Owner
Trustee.
(a) Notwithstanding anything contained herein to the contrary,
this Agreement has been acknowledged and accepted by _________________
not in its individual capacity but solely as Indenture Trustee and in
no event shall _____________________ have any liability for the
representations, warranties, covenants, agreements or other obligations
of the Issuer hereunder or in any of the certificates, notices or
agreements delivered pursuant hereto, as to all of which recourse shall
be had solely to the assets of the Issuer.
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(b) Notwithstanding anything contained herein to the contrary,
this Agreement has been executed by ______________ not in its
individual capacity but solely in its capacity as Owner Trustee of the
Issuer and in no event shall ______________ in its individual capacity
or, except as expressly provided in the Trust Agreement, as Owner
Trustee of the Issuer have any liability for the representations,
warranties, covenants, agreements or other obligations of the Issuer
hereunder or in any of the certificates, notices or agreements
delivered pursuant hereto, as to all of which recourse shall be had
solely to the assets of the Issuer. For all purposes of this Agreement,
in the performance of its duties or obligations hereunder or in the
performance of any duties or obligations of the Issuer hereunder, the
Owner Trustee shall be subject to, and entitled to the benefits of, the
terms and provisions of Article VI of the Trust Agreement.
Section 9.13. Tax Treatment. The Servicer covenants that for all tax
purposes the Servicer shall regard and treat the Notes and the Certificates in a
manner consistent with the agreements (i) among the Seller, the Owner Trustee
and the Certificateholders in Section 2.11 of the Trust Agreement and (ii) among
the Seller, the Indenture Trustee and the Noteholders in Section 2.14 of the
Indenture.
Section 9.14. Furnishing Documents. The Indenture Trustee shall furnish
to Noteholders, promptly upon receipt of a written request therefor, copies of
the Pooling and Servicing Agreement, the Administration Agreement, the Trust
Agreement, the Indenture and this Agreement.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their respective officers as of the day and year first above
written.
CAPITAL AUTO RECEIVABLES
ASSET TRUST 20__-SN[1]
By: ,
-----------------------------
not in its individual capacity
but solely as Owner Truste on
behalf of the Trust
By:
-------------------------------
Name:
Title:
CAPITAL AUTO RECEIVABLES, INC.,
as the Seller
By:
-------------------------------
Name:
Title:
GENERAL MOTORS ACCEPTANCE CORPORATION,
as the Servicer
By:
-------------------------------
Name:
Title:
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Acknowledged and Accepted:
[NAME OF BANK],
not in its individual capacity
but solely as Indenture Trustee
By:
-------------------------------
Name:
Title:
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EXHIBIT A
LOCATIONS OF SCHEDULE OF SECURED NOTES
The Schedule of Secured Notes is on
file at the offices of:
1. The Indenture Trustee
2. The Owner Trustee
3. General Motors Acceptance Corporation
4. Capital Auto Receivables, Inc.
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APPENDIX A
PART I - DEFINITIONS
All terms defined in this Appendix shall have the defined meanings when
used in the Basic Documents, unless otherwise defined therein.
Accountants' Report: The report described in Section 4.02 of the Trust
Sale and Servicing Agreement.
[ACCUMULATION ACCOUNT: THE ACCOUNT DESIGNATED AS SUCH, ESTABLISHED AND
MAINTAINED PURSUANT TO SECTION 5.01(a)(v) OF THE TRUST SALE AND SERVICING
AGREEMENT.]
[ACCUMULATION AMOUNT: WITH RESPECT TO ANY DISTRIBUTION DATE, THE
AGGREGATE AMOUNT OF UNDISTRIBUTED PRINCIPAL AMOUNT DEPOSITED INTO THE
ACCUMULATION ACCOUNT PRIOR TO SUCH DISTRIBUTION DATE AND NOT PREVIOUSLY APPLIED
TO MAKE PAYMENTS ON THE NOTES. ON ANY DISTRIBUTION DATE WHICH IS A TARGETED
FINAL DISTRIBUTION DATE FOR A CLASS OF CLASS A NOTES, EXCEPT DURING A SEQUENTIAL
AMORTIZATION PERIOD OR AFTER THE NOTES HAVE BEEN DECLARED DUE AND PAYABLE
FOLLOWING AN EVENT OF DEFAULT, UNTIL ALL EVENTS OF DEFAULT HAVE BEEN CURED OR
WAIVED AS PROVIDED IN THE INDENTURE, THE ACCUMULATION AMOUNT, TOGETHER WITH THE
NOTEHOLDERS' PERCENTAGE OF THE PRINCIPAL DISTRIBUTABLE AMOUNT FOR SUCH
DISTRIBUTION DATE AND THE EXPECTED VARIABLE PAY REVOLVING NOTE ADVANCE AMOUNT,
MAY NOT EXCEED THE OUTSTANDING PRINCIPAL BALANCE OF THAT CLASS OF CLASS A NOTES
AND ALL CLASSES OF THE VARIABLE PAY REVOLVING NOTES AS OF THE OPENING OF
BUSINESS ON THAT DISTRIBUTION DATE.]
Act: An Act as specified in Section 11.3(a) of the Indenture.
Additional Servicing: With respect to any Distribution Date, an amount
(not less than zero) equal to the lesser of:
(i) the amount, if any, by which:
(A) the amount equal to the aggregate amount of the Basic
Servicing Fee for such Distribution Date and all prior
Distribution Dates exceeds
(B) the aggregate amount of Additional Servicing paid to the
Servicer on all prior Distribution Dates; and
(ii) the amount, if any, by which the amount on deposit in the
Reserve Account on such Distribution Date (after giving effect
to all deposits, withdrawals and payments
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affecting the Reserve Account other than Additional Servicing
and payments to the Seller) exceeds the Specified Reserve
Account Balance.
For purposes of this definition, it is understood that Additional Servicing
equals zero on any Distribution Date unless all payments described in Sections
4.06(c)(ii) through (vi) of the Trust Sale and Servicing Agreement have been
paid or provided for.
Administration Agreement: The Administration Agreement, dated as of the
Closing Date, between GMAC, as Administrator, the Trust and the Indenture
Trustee, as it may be amended from time to time.
Administrative Purchase Payment: With respect to a Distribution Date
and to an Administrative Secured Note purchased as of the last day of a Monthly
Period, a release of all claims for reimbursement of Monthly Advances made on
such Secured Note, plus a payment equal to the sum of:
i. the Secured Note Value of such Secured Note as of
such Distribution Date;
ii. any reimbursement made pursuant to the last sentence
of Section 5.04 of the Trust Sale and Servicing
Agreement with respect to such Secured Note; and
iii. all past due Monthly Scheduled Installments with
respect to which a Monthly Advance has not been made.
Administrative Secured Note: A Secured Note that the Servicer is
required to purchase pursuant to Section 3.07 of the Pooling and Servicing
Agreement or which the Servicer has elected to repurchase pursuant to Section
8.01(a) of the Trust Sale and Servicing Agreement.
Administrator: GMAC or any successor Administrator under the
Administration Agreement.
Affiliate: With respect to any specified Person, any other Person
controlling, controlled by or under common control with such specified Person.
For the purposes of this definition, "control" when used with respect to any
specified Person means the power to direct the management and policies of such
Person, directly or indirectly, whether through the ownership of voting
securities, by contract or otherwise; and the terms "controlling" and
"controlled" have meanings correlative to the foregoing.
Agency Office: The office of the Issuer maintained pursuant Section 3.2
of the Indenture.
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Aggregate Noteholders' Interest Distributable Amount: With respect to
any Distribution Date, the sum of the Noteholders' Interest Distributable
Amounts for all classes of Notes for that Distribution Date.
Aggregate Noteholders' Principal Distributable Amount: With respect to
any Distribution Date, the sum of the Noteholders' Principal Distributable
Amounts for all classes of Notes for that distribution date.
Aggregate Note Principal Balance: With respect to the close of a
Distribution Date, the sum of the Note Principal Balances for all classes of
Notes.
Aggregate Secured Note Value: As of any date, the sum of the Secured
Note Values for all the Secured Notes, determined after taking into account any
Warranty Payments and/or Administrative Purchase Payments with respect to such
Secured Notes.
Applicable Trustee: So long as the Aggregate Note Principal Balance is
greater than zero and the Indenture has not been discharged in accordance with
its terms, the Indenture Trustee, and thereafter, the Owner Trustee.
Asset Balance: As of any date of determination, the aggregate
Stipulated Market Values of all Lease Assets held by COLT.
[AUCTION TURN-IN RATE: WITH RESPECT TO ANY DISTRIBUTION DATE, A
FRACTION, EXPRESSED AS A PERCENTAGE, (a) THE NUMERATOR OF WHICH IS THE NUMBER OF
VEHICLES, THE RELATED PROGRAM LEASES OF WHICH TERMINATED AS A RESULT OF HAVING
REACHED THEIR SCHEDULED LEASE END DATE IN ANY OF THE THREE MONTHLY PERIODS
PRECEDING THE MONTHLY PERIOD RELATED TO SUCH DISTRIBUTION DATE AND THAT WERE NOT
PURCHASED BY THE LESSEE OR A DEALER AND (b) THE DENOMINATOR OF WHICH IS THE
NUMBER OF VEHICLES, THE RELATED PROGRAM LEASES OF WHICH TERMINATED FOR ANY
REASON DURING SUCH MONTHLY PERIODS, IN EACH CASE DETERMINED IN ACCORDANCE WITH
THE COLT SERVICER'S NORMAL PRACTICES.]
Authorized Officer: With respect to the Issuer, any officer of the
Owner Trustee who is authorized to act for the Owner Trustee in matters relating
to the Issuer and who is identified on the list of Authorized Officers delivered
by the Owner Trustee to the Indenture Trustee on the Closing Date (as such list
may be modified or supplemented from time to time thereafter) and, so long as
the Administration Agreement is in effect, any Vice President or more senior
officer of the Administrator who is authorized to act for the Administrator in
matters relating to the Issuer and to be acted upon by the Administrator
pursuant to the Administration Agreement and who is identified on the list of
Authorized Officers delivered by the Administrator to the Indenture Trustee on
the Closing Date (as such list may be modified or supplemented from time to time
thereafter).
Bankruptcy Code: Title 11 of the United States Code, as the same may be
amended from time to time.
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Basic COLT Servicing Fee Rate: 1.75%.
Basic Documents: The COLT Acknowledgment, the Certificate of Trust, the
Trust Agreement, the Pooling and Servicing Agreement, the Trust Sale and
Servicing Agreement, the Administration Agreement, the Indenture and the Note
Depository Agreement and the other documents and certificates delivered in
connection therewith.
Basic Origination Fee Rate: 0.9%.
Basic Servicing Fee: With respect to a Distribution Date, the basic fee
payable to the Servicer for services rendered during the related Monthly Period,
which shall be equal to one-twelfth (1/12th) of the Basic Servicing Fee Rate
multiplied by the Aggregate Secured Note Value as of the prior Distribution Date
(or, for the first Distribution Date, the Basic Servicing Fee Rate multiplied by
a fraction, the numerator of which is ___ and the denominator of which is 360,
multiplied by the Aggregate Secured Note Value as of the Closing Date).
Basic Servicing Fee Rate: 0.25% per annum.
Benefit Plan: Any of (i) an employee benefit plan (as defined in
Section 3(3) of ERISA) that is subject to the provisions of Title I of ERISA,
(ii) a plan described in Section 4975 (e)(1) of the Code or (iii) any entity
whose underlying assets include plan assets by reason of a plan's investment in
the Trust.
Book-Entry Certificates: A beneficial interest in the Certificates,
ownership and transfers of which shall be made through book entries by a
Clearing Agency as described in Section 3.10 of the Trust Agreement.
Book-Entry Notes: A beneficial interest in the Notes, ownership and
transfers of which shall be made through book entries by a Clearing Agency as
described in Section 2.10 of the Indenture.
Business Day: Any day other than a Saturday, a Sunday or any other day
on which banks in New York, New York, Detroit, Michigan or [CITY AND STATE OF
INDENTURE TRUSTEE] may, or are required to, remain closed.
Business Trust Statute: Chapter 38 of Title 12 of the Delaware Code, 12
Del. Code Section 3801 et seq., as the same may be amended from time to time.
CARI: Capital Auto Receivables, Inc., a Delaware corporation.
Certificate: Any one of the ___% Asset Backed Certificates executed by
the Owner Trustee and authenticated by the Owner Trustee in substantially the
form set forth in Exhibit A to the Trust Agreement.
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Certificate Balance: Initially, as of the Closing Date, $_________ and,
on any Distribution Date thereafter, will equal the initial Certificate Balance
reduced by all distributions in respect of the Certificateholders' Principal
Distributable Amount actually made on or prior to such date to
Certificateholders.
Certificate Depository Agreement: The Certificate Depository Agreement,
dated as of the Closing Date, between the Trust, the Administrator and The
Depository Trust Company (as the initial Clearing Agency), relating to the
Certificates, as the same may be amended and supplemented from time to time.
Certificate Distribution Account: The account, if any, designated as
such, established and maintained pursuant to Section 5.1(a) of the Trust
Agreement and Section 5.01(c) of the Trust Sale and Servicing Agreement.
Certificate Pool Factor: With respect to any Distribution Date, a
seven-digit decimal figure computed by the Servicer equal to the remaining
Certificate Balance as of the close of such Distribution Date divided by the
initial Certificate Balance.
Certificate Register: The register of Certificates specified in Section
3.4 of the Trust Agreement.
Certificate Registrar: The registrar at any time of the Certificate
Register, appointed pursuant to Section 3.4(a) of the Trust Agreement.
Certificate of Trust: The certificate of trust of the Issuer
substantially in the form of Exhibit B to the Trust Agreement to be filed for
the Trust pursuant to Section 3810(a) of the Business Trust Statute.
Certificate Owner: means each Person who is the beneficial owner of a
Book-Entry Certificate as reflected in the records of the Clearing Agency, or if
a Clearing Agency Participant is not the Certificate Owner, then as reflected in
the records of a Person maintaining an account with such Clearing Agency
(directly or indirectly, in accordance with the rules of such Clearing Agency).
Certificateholder: A Person in whose name a Certificate is registered
pursuant to the terms of the Trust Agreement.
Certificateholder Agreement: The Certificateholder Agreement, dated as
of April 30, 1997, between COLT and each holder of a certificate identified on
the signature pages thereto, as it may be amended from time to time.
Certificateholders' Interest Distributable Amount: With respect to any
Distribution Date, the Certificateholders' Monthly Interest Distributable Amount
for such Distribution Date.
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Certificateholders' Monthly Interest Distributable Amount: With respect
to any Distribution Date, interest equal to the product of (i) one-twelfth of
the Pass Through Rate (or, in the case of the first Distribution Date, the Pass
Through Rate, multiplied by a fraction, the numerator of which is ____ and the
denominator of which is 360) multiplied by (ii) the Certificate Balance as of
the close of the preceding Distribution Date (or, in the case of the first
Distribution Date, the Certificate Balance as of the Closing Date).
Certificateholders' Percentage: With respect to any Distribution Date,
100% minus the Noteholders' Percentage.
Certificateholders' Principal Distributable Amount: With respect to any
Distribution Date, the lesser of:
(a) the Certificateholders' Percentage of the Principal
Distributable Amount; and
(b) the Certificate Balance as of the close of business on the
preceding Distribution Date.
In addition, on the Final Scheduled Distribution Date for the Certificates, the
amount required to be distributed to Certificateholders in respect of the
Certificate Balance shall include the lesser of:
(1) the Secured Note Value remaining unpaid on each
Secured Note; and
(b) the amount that is necessary (after giving effect to the other
amounts to be deposited into the Certificate Distribution
Account on such Distribution Date and allocable to payments in
respect of the Certificate Balance) to reduce the Certificate
Balance to zero, in either case after giving effect to any
required distribution of the Aggregate Noteholders' Principal
Distributable Amount to the Note Distribution Account.
In addition, on any Distribution Date on which, after giving effect to all
distributions to the Servicer (other than Additional Servicing), the Noteholders
and the Certificateholders on such Distribution Date, (i) the outstanding
principal balance of the Notes is zero and (ii) the amount on deposit in the
Reserve Account is equal to or greater than the Certificate Balance, the
Certificateholders' Principal Distributable Amount shall include an amount equal
to such Certificate Balance.
[CLASS A NOTES: TOGETHER, THE CLASS A-1 NOTES, THE CLASS A-2
NOTES AND THE CLASS A-3 NOTES.]
[CLASS A PERCENTAGE: WITH RESPECT TO A DISTRIBUTION DATE, THE
PERCENTAGE EQUAL TO A FRACTION, THE NUMERATOR OF WHICH IS THE OUTSTANDING
PRINCIPAL BALANCE OF THE CLASS A NOTES AND THE DENOMINATOR OF WHICH IS THE SUM
OF THE OUTSTANDING PRINCIPAL BALANCE OF THE CLASS A NOTES [PLUS THE OUTSTANDING
PRINCIPAL BALANCE OF ALL CLASSES OF ALL THE VARIABLE PAY REVOLVING NOTE],
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IN EACH CASE AT THE CLOSE OF THE PRECEDING DISTRIBUTION DATE (OR, IN THE CASE OF
THE FIRST DISTRIBUTION DATE, THE CLOSING DATE).]
Class A-1 Notes: The Class A-1 ___% Asset Backed Notes in the aggregate
principal amount of $________ issued pursuant to the Indenture.
Class A-2 Notes: The Class A-2 ___% Asset Backed Notes in the aggregate
principal amount of $________ issued pursuant to the Indenture.
Class A-3 Notes: The Class A-3 ___% Asset Backed Notes in the aggregate
principal amount of $________ issued pursuant to the Indenture.
Clearing Agency: An organization registered as a "clearing agency"
pursuant to Section 17A of the Exchange Act. The initial Clearing Agency shall
be The Depository Trust Company.
Clearing Agency Participant: A securities broker, dealer, bank, trust
company, clearing corporation or other financial institution or other Person for
whom from time to time a Clearing Agency effects book entry transfers and
pledges of securities deposited with the Clearing Agency.
Closing Date:____________ ,_____.
Code: The Internal Revenue Code of 1986, as amended from time to time,
and the Treasury Regulations promulgated thereunder.
Collateral: The collateral specified in the Granting Clause of the
Indenture.
Collection Account: The account designated as such, established and
maintained pursuant to Section 5.01(a) of the Trust Sale and Servicing
Agreement.
COLT: The trust created by the Declaration of Trust known as the
"Central Originating Lease Trust," "COLT" or "C.O.L. Trust," a Delaware
statutory business trust.
COLT Acknowledgment: The consent and acknowledgment, dated as of the
Closing Date, delivered by COLT to GMAC, CARI, the Trust and the Indenture
Trustee.
COLT Agent: GMAC, as agent for COLT under the Origination Agreement, or
any successor COLT Agent under the Origination Agreement.
COLT Servicer: GMAC, as servicer under the COLT Servicing Agreement, or
any successor servicer under the COLT Servicing Agreement.
COLT Servicing Agreement: The Amended and Restated Servicing Agreement,
dated as of April 30, 1997, between COLT and GMAC, as COLT Servicer.
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[COLT] Swap Agreement: Interest Rate and Currency Exchange Agreement
(including the schedule and confirmation thereto), dated as of March 15, 1996,
between COLT and the Swap Provider, as it may be amended from time to time.
[COLT] Swap Provider: GMAC, as the swap counterparty under the [COLT]
Swap Agreement, or any successor swap counterparty thereunder.
Corporate Trust Office: With respect to the Indenture Trustee or the
Owner Trustee, the principal office at which at any particular time the
corporate trust business of the Indenture Trustee or Owner Trustee,
respectively, shall be administered, which offices at the Closing Date are
located, in the case of the Indenture Trustee, at ___________________________,
Attn:____________________________, and in the case of the Owner Trustee,
at _____________________, Attn: ______________________.
Curable Sequential Amortization Period: A Sequential Amortization
Period which is not, or has not become, an Extended Sequential Amortization
Period.
Cutoff Date: _________________, 20__.
Dealer: Any Person that is a General Motors Corporation franchised
dealer or an affiliate of a General Motors Corporation franchised dealer that
participates in a leasing program with the COLT Agent or COLT.
Declaration of Trust or Declaration: The Amended and Restated
Declaration of Trust by Bankers Trust (Delaware), as Owner Trustee, dated as of
March 15, 1996, acknowledged, accepted and agreed to by CORRAL, L.P., as it may
be amended from time to time.
Default: Any occurrence that is, or with notice or the lapse of time or
both would become, an Event of Default.
Definitive Certificates: The Certificates issued in the form of
definitive certificates pursuant to Section 3.12 of the Trust Agreement.
Definitive Notes: The Notes issued in the form of definitive notes
pursuant to Section 2.12 or Section 2.15 of the Indenture.
Depository Agreements: Together, the Certificate Depository Agreement,
and the Note Depository Agreement.
Designated Account Property: The Designated Accounts, all cash,
investments, Financial Assets, securities and investment property held from time
to time in any Designated Account (whether in the form of deposit accounts,
Physical Property, book-entry securities, Uncertificated
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Securities or otherwise), including the Reserve Account Initial Deposit, and all
proceeds of the foregoing but excluding all Investment Earnings thereon.
Designated Accounts: The Collection Account, the Note Distribution
Account and the Reserve Account, collectively.
Determination Date: The tenth day of each calendar month, or if such
tenth day is not a Business Day, the next succeeding Business Day.
Discount Rate: _____% per annum, which is the sum of the highest rate
of interest on any series of Notes, plus 0.25%.
Distribution Date: With respect to a Monthly Period, the 15th day of
the next succeeding calendar month or, if such 15th day is not a Business Day,
the next succeeding Business Day, commencing ________________.
Eligible Deposit Account: Either (i) a segregated account with an
Eligible Institution or (ii) a segregated trust account with the corporate trust
department of a depository institution organized under the laws of the United
States of America or any one of the states thereof or the District of Columbia
(or any domestic branch of a foreign bank), having corporate trust powers and
acting as trustee for funds deposited in such account, so long as any of the
securities of such depository institution have a credit rating from each Rating
Agency in one of its generic rating categories which signifies investment grade.
Eligible Institution: Either (i) the corporate trust department of the
Indenture Trustee or the Owner Trustee or (ii) a depository institution
organized under the laws of the United States of America or any one of the
states thereof or the District of Columbia (or any domestic branch of a foreign
bank), (A) which has either (1) a long-term unsecured debt rating acceptable to
the Rating Agencies or (2) a short-term unsecured debt rating or certificate of
deposit rating acceptable to the Rating Agencies and (B) whose deposits are
insured by the FDIC.
Eligible Investments: Book-entry securities, negotiable instruments or
securities represented by instruments in bearer or registered form which
evidence:
(i) direct obligations of, and obligations fully guaranteed as
to timely payment of principal and interest by, the United
States of America;
(ii) demand deposits, time deposits or certificates of deposit
of any depository institution or trust company incorporated
under the laws of the United States of America or any state
thereof (or any domestic branch of a foreign bank) and subject
to supervision and examination by Federal or State banking or
depository institution authorities; provided, however, that at
the time of the investment or contractual commitment to invest
therein, the commercial paper or other short-term unsecured
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debt obligations (other than such obligations the rating of
which is based on the credit of a Person other than such
depository institution or trust company) thereof shall have a
credit rating from each of the Rating Agencies in the highest
investment category for short-term unsecured debt obligations
or certificates of deposit granted thereby;
(iii) commercial paper having, at the time of the investment
or contractual commitment to invest therein, a rating from
each of the Rating Agencies in the highest investment category
for short-term unsecured debt obligations or certificates of
deposit granted thereby;
(iv) investments in money market or common trust funds having
a rating from each of the Rating Agencies in the highest
investment category for short-term unsecured debt obligations
or certificates of deposit granted thereby (including funds
for which the Indenture Trustee or the Owner Trustee or any of
their respective affiliates is investment manager or advisor,
so long as such fund shall have such rating);
(v) bankers' acceptances issued by any depository institution
or trust company referred to in clause (ii) above;
(vi) repurchase obligations with respect to any security that
is a direct obligation of, or fully guaranteed by, the United
States of America or any agency or instrumentality thereof the
obligations of which are backed by the full faith and credit
of the United States of America, in either case entered into
with (A) a depository institution or trust company (acting as
principal) described in clause (ii) or (B) a depository
institution or trust company (x) the deposits of which are
insured by FDIC or (y) the counterparty for which has a rating
from each of the Rating Agencies in the highest investment
category for short-term unsecured debt obligations, the
collateral for which is held by a custodial bank for the
benefit of the Trust or the Indenture Trustee, is marked to
market daily and is maintained in an amount that exceeds the
amount of such repurchase obligation, and which requires
liquidation of the collateral immediately upon the amount of
such collateral being less than the amount of such repurchase
obligation (unless the counterparty immediately satisfies the
repurchase obligation upon being notified of such shortfall);
(vii) commercial paper master notes having, at the time of the
investment or contractual commitment to invest therein, a
rating from each of the Rating Agencies in the highest
investment category for short-term unsecured debt obligations;
(viii) (solely in the case of the Reserve Account) the Notes;
and
(ix) any other investment permitted by each of the Rating
Agencies,
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in each case, other than as permitted by the Rating Agencies, maturing not later
than the Business Day immediately preceding the next Distribution Date or (B) on
such next Distribution Date if either (x) such investment is in the institution
with which the Note Distribution Account or the Certificate Distribution
Account, as the case may be, is then maintained or (y) the Indenture Trustee (so
long as the short-term unsecured debt obligations of the Indenture Trustee are
rated at least P-1 by Moody's Investors Service, Inc. and A-1 by Standard &
Poor's Ratings Services on the date such investment is made) shall advance funds
on such Distribution Date to the Note Distribution Account or the Certificate
Distribution Account, as the case may be, in the amount payable on such
investment on such Distribution Date pending receipt thereof to the extent
necessary to make distributions on the Notes or the Certificates, as the case
may be, on such Distribution Date. The provisions in clauses (ii), (iii), (iv),
(vi) and (vii) above requiring that certain investments be rated in the highest
investment category granted by each Rating Agency require (a) such rating from
Fitch IBCA, Inc. only if Fitch IBCA, Inc. is then rating such investment and (b)
such rating from Duff & Phelps Credit Rating Co. only if Duff & Phelps Credit
Rating Co. is then rating such investment.
For purposes of the foregoing, unless the Indenture Trustee objects at the time
an investment is made, the Indenture Trustee shall be deemed to have agreed to
make such advance with respect to such investment.
ERISA: The Employee Retirement Income Security Act of 1974, as amended.
Event of Default: An event described in Section 5.1 of the Indenture.
Event of Default Proceeds: As defined in Section 8.01(b) of the Trust
Sale and Servicing Agreement.
Event of Default Sale: As defined in Section 8.01(b) of the Trust Sale
and Servicing Agreement.
Excess Wear and Tear and Excess Mileage Charges: With respect to any
Program Lease and related Vehicle, charges to a Lessee upon expiration or
termination of such Lease (i) as a result of excess wear and tear with respect
to such Vehicle and (ii) mileage charges incurred for vehicle mileage in excess
of the amount permitted under the Program Lease.
Exchange Act: The Securities Exchange Act of 1934, as amended.
Executive Officer: With respect to any corporation, the Chief Executive
Officer, Chief Operating Officer, Chief Financial Officer, President, Executive
Vice President, any Vice President, the Secretary or the Treasurer of such
corporation; and with respect to any partnership, any general partner thereof.
Expenses: The expenses described in Section 6.9 of the Trust Agreement.
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[EXTENDED SEQUENTIAL AMORTIZATION PERIOD: A SEQUENTIAL AMORTIZATION
PERIOD (i) WHICH COMMENCED AS A RESULT OF THE TERMINATION OF THE INTEREST RATE
SWAPS OR (ii) WHICH COMMENCED AS A RESULT OF A FAILURE TO PAY THE PRINCIPAL
AMOUNT OF A CLASS OF CLASS A NOTES IN FULL ON ITS TARGETED FINAL DISTRIBUTION
DATE AND WHICH HAS CONTINUED BEYOND THE TARGETED FINAL DISTRIBUTION DATE FOR A
CLASS OF CLASS A NOTES WITH THE NEXT HIGHEST NUMERICAL DESIGNATION.]
FDIC: Federal Deposit Insurance Corporation or any successor agency.
Final Scheduled Distribution Date: (i) With respect to a class of
Notes, the Distribution Date in the month and year set forth below opposite such
Notes:
Class A-1 Notes: ______________;
Class A-2 Notes: ______________; and
Class A-3 Notes: ______________.
(ii) with respect to all classes of the Variable Pay Revolving Notes,
the Distribution Date in _________________; and
(iii) With respect to the Certificates, the Distribution Date
in ______________.
Financial Asset: Has the meaning given such term in Article 8 of the
New York UCC. As used herein, the Financial Asset "related to" a Security
Entitlement is the Financial Asset in which the entitlement holder (as defined
in Article 8 of the New York UCC) holding such Security Entitlement has the
rights and property interest specified in Article 8 of the New York UCC.
[FIXED RATE OFFERED NOTES: TOGETHER, THE CLASS A-__ NOTES AND THE CLASS
A-__ NOTES.]
Fixed Rate Swap: With respect to any Lease Asset, the fixed rate of
interest per annum used with respect to such Lease Asset to calculate the
payments made by COLT to the Swap Provider pursuant to the Swap Agreement, which
fixed rate of interest shall be set forth in the Schedule of Lease
Characteristics for such Lease Asset.
[FLOATING RATE NOTES: TOGETHER, THE CLASS A-__ NOTES, THE CLASS A-__
NOTES AND THE VARIABLE PAY REVOLVING NOTES.]
[FLOATING RATE OFFERED NOTES: TOGETHER, THE CLASS A-__ NOTES AND THE
CLASS A-__ NOTES.]
Further Transfer and Servicing Agreements: As defined in the recitals
to the Pooling and Servicing Agreement.
General Motors: General Motors Corporation, a Delaware corporation.
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GMAC: General Motors Acceptance Corporation, a Delaware corporation.
[GMAC INTEREST RATE SWAPS: THE INTEREST RATE SWAP AGREEMENTS, INCLUDING
ALL SCHEDULES AND CONFIRMATIONS RELATED THERETO, BETWEEN GMAC AND THE SWAP
COUNTERPARTY IN EFFECT ON THE CLOSING DATE, AS THE SAME MAY BE AMENDED,
SUPPLEMENTED, RENEWED, EXTENDED OR REPLACED FROM TIME TO TIME.]
Grant: To mortgage, pledge, bargain, sell, warrant, alienate, remise,
release, convey, assign, transfer, create, and grant a lien upon, a security
interest in and right of set-off against, deposit, set over and confirm pursuant
to the Indenture. A Grant of the Collateral or of any other agreement or
instrument shall include all rights, powers and options (but none of the
obligations) of the Granting party thereunder, including the immediate and
continuing right to claim for, collect, receive and give receipt for principal
and interest payments in respect of, the Collateral and all other moneys payable
thereunder, to give and receive notices and other communications, to make
waivers or other agreements, to exercise all rights and options, to bring
Proceedings in the name of the Granting party or otherwise and generally to do
and receive anything that the Granting party is or may be entitled to do or
receive thereunder or with respect thereto.
Holder: The Person in whose name a Note or Certificate is registered on
the Note Register or the Certificate Register, as applicable.
[INCREMENTAL ADVANCE: EACH AMOUNT ADVANCED UNDER ANY VARIABLE PAY
REVOLVING NOTE AFTER CLOSING DATE.]
Indemnified Parties: The Persons specified in Section 6.9 of the Trust
Agreement.
Indenture: The Indenture, dated as of the Closing Date, between the
Issuer and the Indenture Trustee, as amended and supplemented from time to time.
Indenture Trustee:_________________________, a ______________________,
not in its individual capacity but solely as trustee under the Indenture, or any
successor trustee under the Indenture.
Independent: When used with respect to any specified Person, that the
Person (i) is in fact independent of the Issuer, any other obligor upon the
Notes, the Seller and any Affiliate of any of the foregoing Persons, (ii) does
not have any direct financial interest or any material indirect financial
interest in the Issuer, any such other obligor, the Seller or any Affiliate of
any of the foregoing Persons and (iii) is not connected with the Issuer, any
such other obligor, the Seller or any Affiliate of any of the foregoing Persons
as an officer, employee, promoter, underwriter, trustee, partner, director or
person performing similar functions.
Independent Certificate: A certificate or opinion to be delivered to
the Indenture Trustee under the circumstances described in, and otherwise
complying with, the applicable requirements of Section 11.1 of the Indenture,
made by an Independent appraiser or other expert appointed by an
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Issuer Order and approved by the Indenture Trustee in the exercise of reasonable
care, and such opinion or certificate shall state that the signer has read the
definition of "Independent" in the Indenture and that the signer is Independent
within the meaning thereof.
Indirect Participant: A securities broker, dealer, bank, trust company
or other Person that clears through or maintains a custodial relationship with a
Clearing Agency Participant, either directly or indirectly.
Initial Aggregate Secured Note Value: $________________.
Initial Book-Entry Certificates: As defined in Section 3.11 of the
Trust Agreement.
Initial Discounted Balance: With respect to any Lease Asset, an amount,
calculated as of the Lease Purchase Date, equal to the present value of all
Scheduled Cash Flows from such Lease Asset, discounted at an interest rate equal
to the Market Lease Purchase Rate in effect on the Lease Purchase Date.
[INITIAL VARIABLE PAY REVOLVING NOTE: THE VARIABLE PAY REVOLVING NOTE,
CLASS 1, IN THE INITIAL AGGREGATE PRINCIPAL AMOUNT OF $___________, ISSUED ON
THE CLOSING DATE.]
Insolvency Laws: The Bankruptcy Code and any other applicable federal
or State bankruptcy, insolvency or other similar laws.
Intercompany Advance Agreement: The Amended and Restated Intercompany
Advance Agreement, dated as of February 22, 1996, between CARI and GMAC, as
amended and supplemented from time to time.
Interest Rate: With respect to each class of [CLASS A] Notes, the per
annum rate set forth below:
Class A-1 Notes: ______________;
Class A-2 Notes: ______________; and
Class A-3 Notes: [LIBOR PLUS]____%
[(ii) WITH RESPECT TO THE INITIAL VARIABLE PAY REVOLVING NOTE,
THE RATE EQUAL TO LIBOR PLUS ___%
(iii) WITH RESPECT TO ANY OTHER VARIABLE PAY REVOLVING NOTE,
ON ANY DISTRIBUTION DATE, THE RATE EQUAL TO LIBOR PLUS THE FIXED
PERCENTAGE SPREAD DETERMINED AT THE TIME OF ISSUANCE BASED ON MARKET
CONDITIONS BUT SUCH SPREAD SHALL
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NOT EXCEED [2.50]% AS CONTEMPLATED IN SECTION 2.06(a) OF THE TRUST SALE
AND SERVICING AGREEMENT.
NOTWITHSTANDING THE ABOVE, ON EACH DISTRIBUTION DATE AFTER THE TERMINATION OF
THE INTEREST RATE SWAPS, THE INTEREST RATE FOR ALL CLASSES OF ANY VARIABLE PAY
REVOLVING NOTES SHALL BE ___%.]
INTEREST RATE SWAPS: COLLECTIVELY, THE THREE INTEREST RATE SWAP
AGREEMENTS, INCLUDING ALL SCHEDULES AND CONFIRMATIONS RELATED THERETO, BETWEEN
THE TRUST AND THE SWAP COUNTERPARTY, IN EFFECT ON THE CLOSING DATE, AS THE SAME
MAY BE AMENDED, SUPPLEMENTED, RENEWED, EXTENDED OR REPLACED FROM TIME TO TIME.
FROM AND AFTER THE DATE, IF ANY, ON WHICH THE CONTINGENT INTEREST RATE SWAPS
BECOME EFFECTIVE AS PROVIDED IN THE TRIPARTY AGREEMENT, THEY SHALL CONSTITUTE
THE "INTEREST RATE SWAPS" FOR ALL PURPOSES UNDER THE BASIC DOCUMENTS.]
Investment Company Act: The Investment Company Act of 1940, as the same
may be amended from time to time.
Investment Earnings: Investment earnings on funds deposited in the
Designated Accounts and the Certificate Distribution Account, net of losses and
investment expenses.
Issuer: The party named as such in the Trust Sale and Servicing
Agreement and in the Indenture until a successor replaces it and, thereafter,
means the successor and, for purposes of any provision contained herein and
required by the TIA, each other obligor on the Notes.
Issuer Order and Issuer Request: A written order or request signed in
the name of the Issuer by any one of its Authorized Officers and delivered to
the Indenture Trustee.
Lease Asset: A Program Lease and the Vehicle related thereto.
Lease Origination Standards: As defined in Section 2(a) of the
Origination Agreement.
Lease Purchase Date: With respect to a Lease Asset, the date COLT
purchases such Lease Asset from the applicable Dealer.
Lease Residual: With respect to any Program Lease, the amount specified
in the Program Lease, and which, when discounted at the Lease Rate from the date
on which such amount is scheduled to be received to present value as of the
commencement of the Program Lease, is actually used to calculate the Monthly
Payment under the related Program Lease.
Lease Rate: With respect to any Lease Asset, the per annum rate
actually used to calculate the Monthly Payments under the related Program Lease.
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Lessee: With respect to any Lease Asset, the lessee or the co-lessees
of the Vehicle and any guarantor of the Program Lease comprising such Lease
Asset (other than the TVA Provider).
[LIBOR: WITH RESPECT TO EACH DISTRIBUTION DATE, THE RATE FOR DEPOSITS
IN U.S. DOLLARS FOR A PERIOD OF ONE MONTH WHICH APPEARS ON TELERATE SERVICE PAGE
3750 AS OF 11:00 A.M., LONDON TIME, ON THE DAY THAT IS TWO LIBOR BUSINESS DAYS
PRIOR TO THE PRECEDING DISTRIBUTION DATE (OR, IN THE CASE OF THE INITIAL
DISTRIBUTION DATE, TWO LIBOR BUSINESS DAYS PRIOR TO THE CLOSING DATE). IF THE
RATE DOES NOT APPEAR ON THAT DATE ON TELERATE SERVICE PAGE 3750 (OR ANY OTHER
PAGE AS MAY REPLACE THAT PAGE ON THAT SERVICE, OR IF THAT SERVICE IS NO LONGER
OFFERED, ANY OTHER SERVICE FOR DISPLAYING LIBOR OR COMPARABLE RATES AS MAY BE
SELECTED BY THE INDENTURE TRUSTEE AFTER CONSULTATION WITH THE SELLER), THEN
LIBOR WILL BE THE REFERENCE BANK RATE.
LIBOR BUSINESS DAY: ANY DAY OTHER THAN A SATURDAY, SUNDAY OR ANY OTHER
DAY ON WHICH BANKS IN LONDON ARE REQUIRED OR AUTHORIZED TO BE CLOSED.]
Lien: Any security interest, lien, charge, pledge, equity, encumbrance
or adverse claim of any kind other than tax liens, mechanics' liens and any
liens that attach by operation of law.
Liquidation Expenses: With respect to a Liquidating Secured Note, the
amount, if any, charged in accordance with the Servicer's customary procedures,
for out-of-pocket costs related to the liquidation.
Liquidation Proceeds: With respect to a Liquidating Secured Note, (i)
all amounts realized with respect to such Secured Note after it becomes a
Liquidating Secured Note.
Liquidating Secured Note: A Secured Note as to which the Servicer has
reasonably determined, in accordance with its customary servicing procedures,
that eventual receipt of amounts payable with respect thereto is unlikely.
Market Lease Purchase Rate: With respect to a Lease Asset, the discount
rate used by the COLT Agent to calculate the initial Stipulated Market Value for
such Program Lease in accordance with the Lease Origination Standards, which
shall: (i) be a rate of discount that is not lower than the lowest rate at which
the COLT Servicer holds itself out to Dealers from time to time located in the
competitive market area of the Dealer as being willing to purchase leases for
the COLT Servicer's own account of the same vehicle make, model and lease term
(without premium or discount); and (ii) equal the sum of (a) the product of the
interest rate on the related Secured Note and 96.90%, (b) the product of Fixed
Swap Rate and 3.10%, and (c) the Basic COLT Servicing Fee Rate, the Basic
Origination Fee Rate and the Termination Value Fee Rate; provided, however, that
the Market Lease Purchase Rate and each component thereof shall be established
in a manner which assures that the sum of the weighted average components of
Market Lease Purchase Rate set forth in clause (ii) above with respect to any
Lease Asset shall not increase during the term of a Lease Asset.
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Monthly Advance: With respect to a Secured Note, the amount, as of the
last day of the related Monthly Period, which the Servicer is required to
advance pursuant to Section 5.04 of the Trust Sale and Servicing Agreement.
Monthly Payment: With respect to a Program Lease, the amount required
to be paid by the Lessee under such Program Lease on or prior to each Monthly
Payment Date, minus any payments with respect to Sales and Use Tax Amounts
required to be paid pursuant to such Program Lease on or prior to such Monthly
Payment Date.
Monthly Payment Date: With respect to a Program Lease, the date
specified in such Program Lease as the date on or before which the Lessee is
required to make a payment each month.
Monthly Period: With respect to a Distribution Date, the calendar month
preceding the month in which such Distribution Date occurs.
Monthly Remittance Condition: Each of the following conditions:
(i) GMAC is the Servicer,
(ii) the rating of GMAC's short-term unsecured debt is at
least A-1 by Standard & Poor's Ratings Services and
P-1 by Moody's Investors Service, Inc., and
(iii) a Servicer Default shall not have occurred and be
continuing.
Monthly Scheduled Installment: With respect to each Secured Note, as of
any Determination Date, each remaining monthly installment of principal and
interest payable to the holder of the Secured Note from the related Distribution
Date to the Stated Maturity as set forth in the payment schedule on the Secured
Note.
New York UCC: The UCC as in effect in the State of New York.
Noteholders: Holders of record of the Notes pursuant to the Indenture
and, with respect to any class of Notes, holders of record of such class of
Notes pursuant to the Indenture.
Noteholders' Interest Distributable Amount: With respect to any class
of Notes and any Distribution Date, the product of (i) the outstanding principal
balance of such class of Notes as of the close of the preceding Distribution
Date (or, in the case of the first Distribution Date, the outstanding principal
balance on the Closing Date) and (ii) [IN THE CASE OF (a) THE CLASS A-__ NOTES
AND THE CLASS A-__ NOTES] one-twelfth of the Interest Rate for such class (or,
in the case of the first Distribution Date, the Interest Rate for such class
multiplied by a fraction, the numerator of which is __ and the denominator of
which is 360) [AND (b) THE CLASS A-__ NOTES, THE CLASS A-__ NOTES, THE CLASS
A-__ NOTES AND EACH CLASS OF VARIABLE PAY REVOLVING NOTES, THE PRODUCT OF THE
INTEREST RATE FOR SUCH CLASS OF NOTES FOR SUCH DISTRIBUTION DATE AND A FRACTION,
THE NUMERATOR OF WHICH IS THE NUMBER OF DAYS ELAPSED FROM AND INCLUDING THE
PRIOR DISTRIBUTION DATE (OR, IN
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THE CASE OF THE FIRST DISTRIBUTION DATE, FROM AND INCLUDING THE CLOSING DATE),
TO BUT EXCLUDING THAT DISTRIBUTION DATE AND THE DENOMINATOR OF WHICH IS 360.].
Noteholders' Percentage: [100% UNTIL THE PRINCIPAL BALANCE OF ALL OF
THE NOTES IS PAID (OR PROVIDED FOR) IN FULL, AND ZERO THEREAFTER.] [WITH RESPECT
TO ANY DISTRIBUTION DATE, THE PERCENTAGE EQUIVALENT OF A FRACTION, THE NUMERATOR
OF WHICH IS THE OUTSTANDING PRINCIPAL BALANCE OF THE NOTES AND THE DENOMINATOR
OF WHICH IS THE SUM OF THE OUTSTANDING PRINCIPAL BALANCE OF THE NOTES AND THE
CERTIFICATE BALANCE, IN EACH CASE AS OF THE CLOSE OF THE PRECEDING DISTRIBUTION
DATE.]
Noteholders' Principal Distributable Amount: With respect to a class of
Notes on a Distribution Date[, THE LESSER OF:
(a) THE REMAINDER OF
(i) THE NOTEHOLDERS' PERCENTAGE OF THE PRINCIPAL
DISTRIBUTABLE AMOUNT MINUS
(ii) THE NOTEHOLDERS' PRINCIPAL DISTRIBUTABLE AMOUNT FOR
EACH CLASS OF NOTES HAVING PRIORITY OF PAYMENT (AS
DESCRIBED IN SECTION 8.2(c)(ii) OF THE INDENTURE)
OVER SUCH CLASS OF NOTES; AND
(b) THE OUTSTANDING PRINCIPAL BALANCE OF SUCH CLASS OF NOTES AS OF
THE CLOSE OF BUSINESS ON THE PRECEDING DISTRIBUTION DATE.
IN ADDITION, ON THE FINAL SCHEDULED DISTRIBUTION DATE FOR ANY CLASS OF NOTES,
THE NOTEHOLDERS' PRINCIPAL DISTRIBUTABLE AMOUNT FOR SUCH CLASS OF NOTES SHALL
ALSO INCLUDE THE AMOUNT THAT IS NECESSARY (AFTER GIVING EFFECT TO THE OTHER
AMOUNTS TO BE DEPOSITED INTO THE NOTE DISTRIBUTION ACCOUNT ON SUCH DISTRIBUTION
DATE AND ALLOCABLE TO PAYMENTS OF PRINCIPAL) TO REDUCE THE OUTSTANDING PRINCIPAL
BALANCE OF SUCH CLASS OF NOTES TO ZERO].
[FOR THE CLASS A NOTES,
(i) EXCEPT DURING A SEQUENTIAL AMORTIZATION PERIOD:
(A) FOR A CLASS OF CLASS A NOTES ON ITS TARGETED FINAL
DISTRIBUTION DATE, THE NOTEHOLDERS' PRINCIPAL
DISTRIBUTION AMOUNT FOR THAT CLASS OF CLASS A NOTES
IS THE LESSOR OF
(1) THE OUTSTANDING PRINCIPAL BALANCE OF THAT
CLASS AS OF THE CLOSE OF THE IMMEDIATELY
PRECEDING DISTRIBUTION DATE AND
(2) THE TOTAL NOTE PRINCIPAL PAYMENT AMOUNT.
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(B) IF THE DISTRIBUTION DATE IS NOT A TARGETED FINAL
DISTRIBUTION DATE FOR ANY CLASS OF CLASS A NOTES, THE
NOTEHOLDERS' PRINCIPAL DISTRIBUTABLE AMOUNT FOR A
CLASS OF CLASS A NOTES IS ZERO.
(ii) DURING A SEQUENTIAL AMORTIZATION PERIOD, THE NOTEHOLDERS'
PRINCIPAL DISTRIBUTABLE AMOUNT FOR A DISTRIBUTION DATE FOR A
CLASS OF CLASS A NOTES IS THE LESSER OF
(A) THE OUTSTANDING PRINCIPAL BALANCE OF THAT CLASS AS OF
THE CLOSE OF THE IMMEDIATELY PRECEDING DISTRIBUTION
DATE AND
(B) THE REMAINDER OF
(1) THE CLASS A PERCENTAGE OF THE NOTEHOLDERS'
PERCENTAGE OF THE PRINCIPAL DISTRIBUTABLE
AMOUNT MINUS
(2) THE OUTSTANDING PRINCIPAL BALANCE FOR EACH
CLASS OF CLASS A NOTES WITH A LOWER
NUMERICAL DESIGNATION AS OF THE CLOSE OF THE
IMMEDIATELY PRECEDING DISTRIBUTION DATE.
FOR THE VARIABLE PAY REVOLVING NOTES,
(i) EXCEPT DURING A SEQUENTIAL AMORTIZATION PERIOD:
(A) IF THE DISTRIBUTION DATE IS A TARGETED FINAL
DISTRIBUTION DATE FOR A CLASS OF CLASS A NOTES, THE
NOTEHOLDERS' PRINCIPAL DISTRIBUTABLE AMOUNT FOR THE
VARIABLE PAY REVOLVING NOTS IS THE REMAINDER OF
(1) THE TOTAL NOTE PRINCIPAL PAYMENT AMOUNT
MINUS
(2) THE NOTEHOLDER'S PRINCIPAL DISTRIBUTABLE
AMOUNT FOR THAT CLASS OF CLASS A NOTES ON
THAT DISTRIBUTION DATE DETERMINED AS
DESCRIBED ABOVE,
BUT IN NO EVENT MORE THAN THE AGGREGATE OUTSTANDING PRINCIPAL
BALANCE OF THE VARIABLE PAY REVOLVING NOTES AS OF THE CLOSE OF
THE IMMEDIATELY PRECEDING DISTRIBUTION DATE.
(B) IF THE DISTRIBUTION DATE IS NOT A TARGETED FINAL
DISTRIBUTION DATE FOR A CLASS OF CLASS A NOTES, THE
NOTEHOLDERS' PRINCIPAL DISTRIBUTABLE AMOUNT FOR THE
VARIABLE PAY REVOLVING NOTES IS THE LESSER OF
(1) THE AGGREGATE OUTSTANDING PRINCIPAL BALANCE
OF THE VARIABLE PAY REVOLVING NOTES AS OF
THE CLOSE OF THE IMMEDIATELY PRECEDING
DISTRIBUTION DATE AND
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(2) THE NOTEHOLDERS' PERCENTAGE OF THE PRINCIPAL
DISTRIBUTABLE AMOUNT FOR THAT DISTRIBUTION
DATE.
(ii) DURING A SEQUENTIAL AMORTIZATION PERIOD, THE NOTEHOLDERS'
PRINCIPAL DISTRIBUTABLE AMOUNT FOR THE VARIABLE PAY REVOLVING
NOTES ON A DISTRIBUTION DATE IS THE LESSER OF
(A) THE AGGREGATE OUTSTANDING PRINCIPAL BALANCE OF THE
VARIABLE PAY REVOLVING NOTES AS OF THE CLOSE OF THE
IMMEDIATELY PRECEDING DISTRIBUTION DATE AND
(B) THE VARIABLE PAY REVOLVING NOTE PERCENTAGE OF THE
NOTEHOLDERS' PERCENTAGE OF THE PRINCIPAL DISTRIBUTION
AMOUNT.
NOTWITHSTANDING THE FOREGOING, ON THE FINAL SCHEDULED DISTRIBUTION DATE FOR ANY
CLASS OF CLASS A NOTES OR THE VARIABLE PAY REVOLVING NOTES, THE NOTEHOLDERS'
PRINCIPAL DISTRIBUTABLE AMOUNT FOR THAT CLASS WILL EQUAL THE OUTSTANDING
PRINCIPAL BALANCE OF THAT CLASS AS OF THE CLOSE OF THE IMMEDIATELY PRECEDING
DISTRIBUTION DATE.]
Notes: The Class A-1 Notes, the Class A-2 Notes and the Class A-3 Notes
[AND THE VARIABLE PAY REVOLVING NOTES].
Note Depository: The depository from time to time selected by the
Indenture Trustee on behalf of the Trust in whose name the Notes are registered
prior to the issue of Definitive Notes. The first Note Depository shall be Cede
& Co., the nominee of the initial Clearing Agency.
Note Depository Agreement: The agreement, dated as of the Closing Date,
among the Issuer, the Indenture Trustee and The Depository Trust Company, as the
initial Clearing Agency relating to the Notes, substantially in the form of
Exhibit B to the Indenture, as the same may be amended and supplemented from
time to time.
Note Distribution Account: The account designated as such, established
and maintained pursuant to Section 5.01(b) of the Trust Sale and Servicing
Agreement.
Note Owner: With respect to a Book-Entry Note, the Person who is the
beneficial owner of such Book-Entry Note, as reflected on the books of the
Clearing Agency, or on the books of a Person maintaining an account with such
Clearing Agency (directly as a Clearing Agency Participant or as an Indirect
Participant, in each case in accordance with the rules of such Clearing Agency).
Note Pool Factor: With respect to any class of Notes and any
Distribution Date, a seven-digit decimal figure computed by the Servicer which
is equal to the Note Principal Balance for such class as of the close of such
Distribution Date divided by the initial Note Principal Balance for such class.
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Note Principal Balance: With respect to [ANY CLASS OF] [THE CLASS A]
Notes and any Distribution Date, the initial aggregate principal balance of such
class of Notes, reduced by all previous payments to the Noteholders of such
class in respect of principal of such Notes. [WITH RESPECT TO ANY CLASS OF
VARIABLE PAY REVOLVING NOTES AND ANY DISTRIBUTION DATE, THE INITIAL PRINCIPAL
BALANCE OF ANY SUCH CLASS PLUS ANY SUBSEQUENT INCREMENTAL ADVANCES UNDER SUCH
CLASS, REDUCED BY ALL PREVIOUS PAYMENTS TO THE NOTEHOLDERS OF SUCH CLASS IN
RESPECT OF PRINCIPAL OF SUCH CLASS.]
Note Register: With respect to any class of Notes, the register of such
Notes specified in Section 2.4 of the Indenture.
Note Registrar: The registrar at any time of the Note Register,
appointed pursuant to Section 2.4 of the Indenture.
[OFFERED CERTIFICATES: CERTIFICATES ISSUED PURSUANT TO THE TRUST
AGREEMENT WITH THE EXCEPTION OF THE CERTIFICATES RETAINED BY THE SELLER.]
[OFFERED NOTES: TOGETHER, THE CLASS A-__ NOTES AND THE CLASS A-__
NOTES.]
Officer's Certificate: A certificate signed by any Authorized Officer
of the Issuer, under the circumstances described in, and otherwise complying
with, the applicable requirements of Section 11.1 of the Indenture, and
delivered to the Indenture Trustee. Unless otherwise specified, any reference in
the Indenture to an officer's certificate shall be to an Officer's Certificate
of any Authorized Officer of the Issuer.
Opinion of Counsel: A written opinion of counsel, who may, except as
otherwise expressly provided, be an employee of the Seller or the Servicer. In
addition, for purposes of the Indenture: (i) such counsel shall be satisfactory
to the Indenture Trustee; (ii) the opinion shall be addressed to the Indenture
Trustee as Trustee and (iii) the opinion shall comply with any applicable
requirements of Section 11.1 of the Indenture and shall be in form and substance
satisfactory to the Indenture Trustee.
Optional Purchase Date: As defined in Section 8.01(a) of the Trust Sale
and Servicing Agreement.
Optional Purchase Percentage: 10%.
Origination Agreement: The Amended and Restated Origination Agreement,
dated as of April 30, 1997, between COLT and the COLT Agent, as it may be
amended from time to time.
Outstanding: With respect to the Notes, as of the date of
determination, all Notes theretofore authenticated and delivered under the
Indenture except:
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(i) Notes theretofore canceled by the Indenture Trustee
or delivered to the Indenture Trustee for
cancellation;
(ii) Notes or portions thereof the payment for which money
in the necessary amount has been theretofore
deposited with the Indenture Trustee or any Paying
Agent in trust for the Holders of such Notes;
provided, however, that if such Notes are to be
redeemed, notice of such redemption has been duly
given pursuant to the Indenture or provision
therefor, satisfactory to the Indenture Trustee, has
been made; and
(iii) Notes in exchange for or in lieu of other Notes which
have been authenticated and delivered pursuant to the
Indenture unless proof satisfactory to the Indenture
Trustee is presented that any such Notes are held by
a bona fide purchaser;
provided, however, that in determining whether the Holders of the requisite
Outstanding Amount of the Notes have given any request, demand, authorization,
direction, notice, consent or waiver hereunder or under any Basic Document,
Notes both legally and beneficially owned by the Issuer, any other obligor upon
the Notes, the Seller or any Affiliate of any of the foregoing Persons shall be
disregarded and deemed not to be Outstanding, except that, in determining
whether the Indenture Trustee shall be protected in relying upon any such
request, demand, authorization, direction, notice, consent or waiver, only Notes
that the Indenture Trustee knows to be so owned shall be so disregarded. Notes
so owned that have been pledged in good faith may be regarded as Outstanding if
the pledgee establishes to the satisfaction of the Indenture Trustee the
pledgor's right so to act with respect to such Notes and that the pledgee is not
the Issuer, any other obligor upon the Notes, the Seller or any Affiliate of any
of the foregoing Persons.
Outstanding Amount: As of any date, the aggregate principal amount of
all Notes, or a class of Notes, as applicable, Outstanding at such date.
Outstanding Monthly Advances: As of the last day of a Monthly Period
and with respect to a Secured Note, the sum of all Monthly Advances made as of
or prior to such date, minus all payments or collections as of or prior to such
date that are specified in Section 5.04 of the Trust Sale and Servicing
Agreement as reducing Outstanding Monthly Advances with respect to such Secured
Note.
Owner Trust Estate: All right, title and interest of the Trust in and
to the property and rights assigned to the Trust pursuant to Article II of the
Trust Sale and Servicing Agreement, all funds on deposit from time to time in
the Collection Account and the Certificate Distribution Account and all other
property of the Trust from time to time, including any rights of the Owner
Trustee and the Trust pursuant to the Trust Sale and Servicing Agreement and the
Administration Agreement.
Owner Trustee: ____________________________, a Delaware banking
corporation, or any successor trustee under the Trust Agreement, not in its
individual capacity but solely as trustee.
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Pass Through Rate: _______% per annum.
Paying Agent: With respect to the Indenture, the Indenture Trustee or
any other Person that meets the eligibility standards for the Indenture Trustee
specified in Section 6.11 of the Indenture and is authorized by the Issuer to
make the payments to and distributions from the Collection Account and the Note
Distribution Account, including payment of principal of or interest on the Notes
on behalf of the Issuer. With respect to the Trust Agreement, any paying agent
or co-paying agent appointed pursuant to Section 3.9 of the Trust Agreement that
meets the eligibility standards for the Owner Trustee specified in Section 6.13
of the Trust Agreement, and initially Bankers Trust Company.
Person: Any legal person, including any individual, corporation,
partnership, joint venture, association, joint stock company, trust,
unincorporated organization or government or any agency or political subdivision
thereof.
Physical Property: (i) bankers' acceptances, commercial paper,
negotiable certificates of deposit and other obligations that constitute
"instruments" within the meaning of Section 9-105(1)(i) of the New York UCC and
are susceptible of physical delivery and (ii) Security Certificates.
Pooling and Servicing Agreement: The Secured Note Pooling and Servicing
Agreement, dated as of the Closing Date, between GMAC and the Seller, as it may
be amended from time to time.
Predecessor Note: With respect to any particular Note, every previous
Note evidencing all or a portion of the same debt as that evidenced by such
particular Note; and, for the purpose of this definition, any Note authenticated
and delivered under Section 2.5 of the Indenture in lieu of a mutilated, lost,
destroyed or stolen Note shall be deemed to evidence the same debt as the
mutilated, lost, destroyed or stolen Note.
Principal Distributable Amount: With respect to any Distribution Date,
an amount equal to the difference between (a) the sum of the Secured Note Values
for all of the Secured Notes as of the close of business on the previous
Distribution Date (or, with respect to the initial Distribution Date, the
Closing Date) and (b) the sum of the Secured Note Values for all of the Secured
Notes as of such current Distribution Date.
Private Notes: The Class A-_ Notes and any of the Variable Pay
Revolving Notes.
Proceeding: Any suit in equity, action at law or other judicial or
administrative proceeding.
Program Leases: Automobile and light truck leases sold, assigned,
transferred or conveyed to COLT.
Purchased Property: The property described in Section 2.01 of the
Pooling and Servicing Agreement and Section 2.01 of the Trust Sale and Servicing
Agreement.
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Rating Agencies: As of any date, the nationally recognized statistical
rating organizations requested by the Seller to provide ratings on the Notes or
the Certificates which are rating the Notes or the Certificates on such date.
Rating Agency Condition: With respect to any action, the condition that
each Rating Agency shall have been given at least 10 days prior notice thereof
and that each of the Rating Agencies shall have notified the Seller, the
Servicer and the Issuer in writing that such action shall not result in a
downgrade or withdrawal of the then current rating of the Notes or the
Certificates.
Record Date: (i) with respect to the Notes and with respect to any
Distribution Date, the close of business on the day preceding such Distribution
Date, or if Definitive Notes are issued for any class of Notes, with respect to
such class of Notes the last day of the preceding Monthly Period; and (ii) with
respect to the Certificates and with respect to any Distribution Date, the close
of business on the date immediately preceding such Distribution Date, or if
Definitive Certificates are issued, the last day of the preceding Monthly
Period.
Redeemable Notes: The Class A-__ Notes [AND THE VARIABLE PAY REVOLVING
NOTES].
Redemption Date: As defined in Section 10.1 of the Indenture.
Redemption Price: With respect to the Redeemable Notes, the unpaid
principal amount of such Notes, plus accrued and unpaid interest thereon.
[REFERENCE BANK RATE: FOR ANY DISTRIBUTION DATE, THE PER ANNUM RATE
DETERMINED ON THE BASIS OF THE RATES AT WHICH DEPOSITS IN U.S. DOLLARS ARE
OFFERED BY THE REFERENCE BANKS (WHICH WILL BE FOUR MAJOR BANKS THAT ARE ENGAGED
IN TRANSACTIONS IN THE LONDON INTERBANK MARKET, SELECTED BY THE INDENTURE
TRUSTEE AFTER CONSULTATION WITH THE SELLER) AS OF 11:00 A.M., LONDON TIME, ON
THE DAY THAT IS TWO LIBOR BUSINESS DAYS PRIOR TO THE IMMEDIATELY PRECEDING
DISTRIBUTION DATE TO PRIME BANKS IN THE LONDON INTERBANK MARKET FOR A PERIOD OF
ONE MONTH, IN AMOUNTS APPROXIMATELY EQUAL TO THE AGGREGATE PRINCIPAL AMOUNT OF
EACH CLASS OF FLOATING RATE NOTES THEN OUTSTANDING. THE INDENTURE TRUSTEE WILL
REQUEST THE PRINCIPAL LONDON OFFICE OF EACH OF THE REFERENCE BANKS TO PROVIDE A
QUOTATION OF ITS RATE. IF AT LEAST TWO QUOTATIONS ARE PROVIDED, THE RATE WILL BE
THE ARITHMETIC MEAN OF THE QUOTATIONS, ROUNDED UPWARDS TO THE NEAREST
ONE-SIXTEENTH OF ONE PERCENT. IF ON THAT DATE FEWER THAN TWO QUOTATIONS ARE
PROVIDED AS REQUESTED, THE RATE WILL BE THE ARITHMETIC MEAN, ROUNDED UPWARDS TO
THE NEAREST ONE- SIXTEENTH OF ONE PERCENT, OF THE RATES QUOTED BY ONE OR MORE
MAJOR BANKS IN NEW YORK CITY, SELECTED BY THE INDENTURE TRUSTEE AFTER
CONSULTATION WITH THE SELLER, AS OF 11:00 A.M., NEW YORK CITY TIME, ON THAT DATE
TO LEADING EUROPEAN BANKS FOR UNITED STATES DOLLAR DEPOSITS FOR A PERIOD OF ONE
MONTH IN AMOUNTS APPROXIMATELY EQUAL TO THE PRINCIPAL AMOUNT OF EACH CLASS OF
FLOATING RATE NOTES THEN OUTSTANDING. IF NO QUOTATION CAN BE OBTAINED, THEN
LIBOR WILL BE THE RATE FOR THE PRIOR DISTRIBUTION DATE.]
Registered Holder: The Person in whose name a Note is registered on the
Note Register on the applicable Record Date.
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Required Deposit Rating: A rating on short-term unsecured debt
obligations of P-1 by Moody's Investors Service, Inc.; A-1+ by Standard & Poor's
Ratings Services; if rated by Fitch Investors Service, Inc., F-1+ by Fitch IBCA,
Inc.; and, if rated by Duff & Phelps Credit Rating Co., D-1+ by Duff & Phelps
Credit Rating Co. Any requirement that short-term unsecured debt obligations
have the "Required Deposit Rating" shall mean that such short-term unsecured
debt obligations have the foregoing required ratings from each of such rating
agencies.
Reserve Account: The account designated as such, established and
maintained pursuant to Section 4.07(a) of the Trust Sale and Servicing
Agreement.
Reserve Account Initial Deposit: Cash or Eligible Investments having a
value of at least $______.
Reserve Account Property: (i) the Reserve Account and all proceeds
thereof (other than the Investment Earnings thereon) including all cash,
investments, investment property and other amounts held from time to time in the
Reserve Account (whether in the form of deposit accounts, Physical Property,
book-entry securities, Uncertificated Securities, Financial Assets or otherwise)
and (ii) the Reserve Account Initial Deposit and all proceeds thereof (other
than the Investment Earnings thereon).
Residual Realization Ratio: With respect to any Distribution Date, the
ratio, expressed as a percentage, of (a) for all Program Leases that terminated
as a result of having reached their scheduled lease end date in any of the three
Monthly Periods preceding the Monthly Period related to such Distribution Date,
the aggregate amount realized upon sale of all related Vehicles, to (b) the
aggregate amount of the Lease Residuals for all Program Leases that terminated
as a result of having reached their scheduled lease end date in any of such
Monthly Periods, in each case determined in accordance with the Servicer's
normal practices.
Responsible Officer: With respect to the Indenture Trustee or the Owner
Trustee, any officer within the Corporate Trust Office of such trustee or agent
of the Owner Trustee acting under a power of attorney, and, with respect to the
Servicer, the President, any Vice President, Assistant Vice President,
Secretary, Assistant Secretary or any other officer or assistant officer of such
Person customarily performing functions similar to those performed by any of the
above designated officers and also, with respect to a particular matter, any
other officer to whom such matter is referred because of such officer's
knowledge of and familiarity with the particular subject.
Retained Certificates: The Certificates retained by the Seller pursuant
to the Trust Agreement, with an initial Certificate Balance of $__________.
Sales and Use Tax Amount: The portion of each payment under a Program
Lease that is allocable to fees and taxes or payments due under the Program
Lease as the result of any fines or Liens with respect to the related Vehicle.
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Scheduled Cash Flows: With respect to any Lease Asset, all expected
cash flows from such Lease Asset (excluding any amounts required to be paid by
the Lessee at the inception of the Program Lease and any Sales and Use Tax
Amounts), assuming that all Monthly Payments are received on their respective
Monthly Payment Dates and that the Lease Residual of the related Vehicle is
received one month after the Scheduled Lease End Date of the related Program
Lease; provided, however, that for purposes of calculating the Initial
Discounted Balance of each Program Lease it shall be assumed that all Monthly
Payments are received on the Distribution Date in the Monthly Period following
the Monthly Period in which their respective Monthly Payment Dates occur and
that the Lease Residual of the related Vehicle is received on the Distribution
Date related to the Monthly Period following the Monthly Period in which the
Scheduled Lease End Date of the related Program Lease occurs.
Scheduled Lease End Date: With respect to any Program Lease, the date
set forth in such Program Lease as the date on which such Program Lease is
scheduled to expire.
Schedule of Lease Characteristics: As described in Schedule 1 of
Exhibit A to the Origination Agreement.
Schedule of Secured Notes: The schedule of all Secured Notes originally
held as part of the Trust and on file at the locations listed on Exhibit A of
the Trust Sale and Servicing Agreement, as it may be amended from time to time.
Secured Note Purchase Price: The amount described in Section 2.02 of
the Pooling and Servicing Agreement.
Secured Notes: the Secured Notes listed on the Schedule of Secured
Notes.
Secretary of State: The Secretary of State of the State of Delaware.
Secured Note Value: With respect to each Secured Note, as of the Cutoff
Date and each Distribution Date, the lesser of (i) the principal balance of the
Secured Note and (ii) the sum of the present value of each Monthly Scheduled
Installment on the Secured Note due thereafter, discounted from the Distribution
Date on which each Monthly Scheduled Installment is due and payable to such
Distribution Date, at a rate equal to the Discount Rate (after giving effect to
all payments due on the Secured Note on that date).
Secured Notes: the non-recourse secured notes of COLT, in physical or
electronic form at the request of the holder from time to time, substantially in
the forms attached as Exhibits C and D to the Certificateholder Agreement.
Security Certificate: Has the meaning given such term in Section
8-102(a)(16) of the New York UCC.
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Security Entitlement: Has the meaning given such term in Section
8-102(a)(17) of the New York UCC.
Securityholder: A Holder of a Note or a Certificate.
Seller: The Person executing the Trust Sale and Servicing Agreement as
the Seller, or its successor in interest pursuant to Section 3.03 of the Trust
Sale and Servicing Agreement.
[SEQUENTIAL AMORTIZATION COMMENCEMENT DATE: (i) THE TARGETED FINAL
DISTRIBUTION DATE FOR A CLASS OF CLASS A NOTES IF THE PRINCIPAL AMOUNT OF THAT
CLASS IS NOT PAID IN FULL ON THAT TARGETED FINAL DISTRIBUTION DATE, UNLESS THAT
TARGETED FINAL DISTRIBUTION DATE OCCURS DURING A SEQUENTIAL AMORTIZATION PERIOD,
OR (ii) THE FIRST DISTRIBUTION DATE FOLLOWING THE DATE ON WHICH THE INTEREST
RATE SWAPS ARE TERMINATED.]
[SEQUENTIAL AMORTIZATION PERIOD: THE PERIOD COMMENCING ON A SEQUENTIAL
AMORTIZATION COMMENCEMENT DATE AND, IF SUCH SEQUENTIAL AMORTIZATION COMMENCEMENT
DATE OCCURRED AS A RESULT OF THE FAILURE TO PAY A CLASS OF CLASS A NOTES IN FULL
ON ITS TARGETED FINAL DISTRIBUTION DATE, ENDING ON THE DISTRIBUTION DATE ON
WHICH SUCH CLASS OF CLASS A NOTES IS PAID IN FULL SO LONG AS SUCH DISTRIBUTION
DATE OCCURS PRIOR TO THE TARGETED FINAL DISTRIBUTION DATE FOR THE CLASS OF CLASS
A NOTES WITH THE NEXT HIGHEST NUMERICAL DESIGNATION; PROVIDED, HOWEVER, THAT A
SEQUENTIAL AMORTIZATION PERIOD SHALL NOT SO TERMINATE IF THE FAILURE TO SO PAY A
CLASS OF CLASS A NOTES IN FULL ON ITS TARGETED FINAL DISTRIBUTION DATE FOLLOWS A
FAILURE TO PAY THE CLASS OF CLASS A NOTES WITH THE NEXT LOWEST NUMERICAL
DESIGNATION ON ITS TARGETED FINAL DISTRIBUTION DATE.]
Servicer: The Person executing the Trust Sale and Servicing Agreement
as the Servicer, or its successor in interest pursuant to Section 6.02 of the
Trust Sale and Servicing Agreement.
Servicer Default: An event described in Section 7.01 of the Trust Sale
and Servicing Agreement.
Servicer's Accounting: A certificate, completed by and executed on
behalf of the Servicer, in accordance with Section 3.09 of the Pooling and
Servicing Agreement.
Specified Reserve Account Balance: With respect to any Distribution
Date, the sum of
(i) the greater of
(A) ___% of the outstanding principal balance of the
Notes [AND THE CERTIFICATES] as of the close of
business on such Distribution Date (after giving
effect to all payments and distributions to be made
on such Distribution Date); and
(B) $_____________,
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but in no event more than the outstanding principal balance of
the Notes [AND THE CERTIFICATES] as of the close of business
on such Distribution Date (after giving effect to all payments
and distributions to be made on such Distribution Date);
[PLUS
(ii) IN EACH CASE, IF A DEPOSIT IS TO BE MADE INTO THE ACCUMULATION
ACCOUNT ON SUCH DISTRIBUTION DATE OR WAS MADE ON ANY PRIOR DISTRIBUTION
DATE, AN AMOUNT EQUAL TO THE PRODUCT OF
(A) THE ACCUMULATION AMOUNT ON SUCH DISTRIBUTION DATE
(AFTER GIVING EFFECT TO ALL DEPOSITS AND WITHDRAWALS
FROM THE ACCUMULATION ACCOUNT ON SUCH DISTRIBUTION
DATE)
MULTIPLIED BY
(B) THE NUMBER OF DISTRIBUTION DATES AFTER SUCH
DISTRIBUTION DATE THROUGH AND INCLUDING THE NEXT
DISTRIBUTION DATE THAT IS A TARGETED FINAL
DISTRIBUTION DATE FOR ANY CLASS OF CLASS A NOTES
DIVIDED BY 12
MULTIPLIED BY
(C) THE FIXED RATE PAYABLE BY THE TRUST ON THE VPRN
INTEREST RATE SWAP MINUS 2.50%.]
Stated Maturity: The date specified in each Secured Note as the fixed
date on which the principal of, and interest on, such Secured Note is due and
payable.
Stipulated Market Value: With respect to any Lease Asset on any date,
the aggregate present value, as of the date of calculation, of each Monthly
Payment due after such date of calculation, discounted from the Distribution
Date related to the Monthly Period in which the scheduled date of payment
thereof is due in accordance with the terms of the related Program Lease to such
date of calculation, and the Lease Residual, discounted from the Distribution
Date related to the Monthly Period following the Monthly Period in which the
Scheduled Lease End Date occurs to such date of calculation, in each case at a
rate equal to the Market Lease Purchase Rate for such Lease Asset.
Supplemental Servicing Fees: With respect to a Distribution Date, all
late fees, prepayment charges and other administrative fees and expenses or
similar charges allowed by applicable law with respect to the Secured Notes,
collected (from whatever source) on the Secured Notes held by the Trust during
the related Monthly Period.
[SWAP COUNTERPARTY: ____________________________________, AS SWAP
COUNTERPARTY UNDER EACH INTEREST RATE SWAP, OR ANY SUCCESSOR OR REPLACEMENT SWAP
COUNTERPARTY FROM TIME TO TIME UNDER THE INTEREST RATE SWAPS.]
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[SWAP COUNTERPARTY RIGHTS AGREEMENT: THE SWAP COUNTERPARTY RIGHTS
AGREEMENT, DATED AS OF THE CLOSING DATE, BETWEEN THE SWAP COUNTERPARTY, THE
ISSUER, GMAC, AS SERVICER AND ADMINISTRATOR, THE SELLER, THE INDENTURE TRUSTEE,
AND THE OWNER TRUSTEE, AS AMENDED FROM TIME TO TIME.]
[TARGETED FINAL DISTRIBUTION DATE: WITH RESPECT TO A CLASS OF CLASS A
NOTES, THE DISTRIBUTION DATE IN THE MONTH AND YEAR SET FORTH BELOW OPPOSITE SUCH
NOTES:
CLASS A-1 NOTES: ____________
CLASS A-2 NOTES: ____________
CLASS A-3 NOTES: ____________]
Temporary Notes: The Notes specified in Section 2.3 of the Indenture.
Termination Value Agreement: The Amended and Restated Termination Value
Agreement, dated as of April 30, 1997, between COLT and the TVA Provider, as it
may be amended from time to time.
Termination Value Fee Rate: 1.20%, or such other rate as shall be
agreed by COLT and the TVA Provider with respect to any Lease Assets acquired
after the date such rate is changed.
[THIRD PARTY INSTRUMENT: EACH OF THE INTEREST RATE SWAPS, THE
CONTINGENT INTEREST RATE SWAPS AND THE TRIPARTY AGREEMENT.]
Total Available Amount: With respect to any Distribution Date, the sum
of all collections on the Secured Notes for such Distribution Date and the
amount of all cash or other immediately available funds on deposit in the
Reserve Account immediately prior to such Distribution Date[, PLUS
(i) ON THE TARGETED FINAL DISTRIBUTION DATE FOR ANY CLASS OF CLASS
A NOTES, ANY VARIABLE PAY REVOLVING NOTE ADVANCE AMOUNT AND
THE ACCUMULATION AMOUNT, IF ANY, FOR SUCH DISTRIBUTION DATE,
AND
(ii) ON THE FIRST DISTRIBUTION DATE AFTER THE NOTES HAVE BEEN
DECLARED DUE AND PAYABLE FOLLOWING THE OCCURRENCE OF AN EVENT
OF DEFAULT AND ON THE FIRST DISTRIBUTION DATE AFTER THE
TERMINATION OF THE INTEREST RATE SWAPS, THE ACCUMULATION
AMOUNT, IF ANY, FOR SUCH DISTRIBUTION DATE].
[TOTAL NOTE PRINCIPAL PAYMENT AMOUNT: WITH RESPECT TO ANY DISTRIBUTION
DATE, THE SUM OF
(i) THE NOTEHOLDERS' PERCENTAGE OF THE PRINCIPAL DISTRIBUTABLE
AMOUNT PLUS
(ii) THE VARIABLE PAY REVOLVING NOTE ADVANCE AMOUNT, IF ANY, PLUS
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(iii) THE ACCUMULATION AMOUNT, IF ANY.]
Total Servicing Fee: With respect to a Distribution Date, the sum of
the Basic Servicing Fee for such Distribution Date, any unpaid Basic Servicing
Fee for all prior Distribution Dates and Additional Servicing for such
Distribution Date.
Treasury Regulations: The regulations, including proposed or temporary
regulations, promulgated under the Code. References herein to specific
provisions of proposed or temporary regulations shall include analogous
provisions of final Treasury Regulations or other successor Treasury
Regulations.
[TRIPARTY AGREEMENT: THE TRIPARTY CONTINGENT ASSIGNMENT AGREEMENT,
DATED AS OF THE CLOSING DATE, INCLUDING ALL SCHEDULES AND CONFIRMATIONS THERETO,
BETWEEN THE TRUST, THE SWAP COUNTERPARTY AND GMAC, AS THE SAME MAY BE AMENDED,
RENEWED, EXTENDED OR REPLACED FROM TIME TO TIME.]
Trust: Capital Auto Receivables Asset Trust 20___-SN[1], a Delaware
business trust created by the Trust Agreement.
Trust Agreement: The Trust Agreement, dated as of _______, 20________,
between the Seller and the Owner Trustee, as it may be amended from time to
time.
Trust Estate: All money, instruments, rights and other property that
are subject or intended to be subject to the lien and security interest of the
Indenture for the benefit of the Noteholders (including, without limitation, all
property and interests Granted to the Indenture Trustee), including all proceeds
thereof, and the Reserve Account and the Reserve Account Property pledged to the
Indenture Trustee pursuant to the Trust Sale and Servicing Agreement.
Trust Indenture Act or TIA: The Trust Indenture Act of 1939 as in force
on the date hereof, unless otherwise specifically provided.
Trust Sale and Servicing Agreement: The Secured Note Trust Sale and
Servicing Agreement, dated as of the Closing Date, between the Seller, the
Servicer and the Trust, as it may be amended from time to time.
TVA Percentage: With respect to any Distribution Date, the percentage
then being applied to each Lease Asset to determine the total amount of
insurance available under the Termination Value Agreement.
TVA Provider: _______________________________________, as the TVA
Provider under the Termination Value Agreement, or any permitted successor TVA
Provider thereunder.
UCC: The Uniform Commercial Code as in effect in the relevant
jurisdiction.
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Uncertificated Security: Has the meaning given to such term in Section
8-102(a)(18) of the New York UCC.
[UNDERTAKING LETTER: THE LETTER REFERRED TO IN SECTIONS 3.4 AND 9.12 OF
THE TRUST AGREEMENT.]
[UNDISTRIBUTED PRINCIPAL AMOUNT: FOR ANY DISTRIBUTION DATE THAT IS NOT
A TARGETED FINAL DISTRIBUTION DATE FOR A CLASS OF CLASS A NOTES, EXCEPT AS
DESCRIBED IN THE FOLLOWING SENTENCE, THE EXCESS, IF ANY, OF (x) THE NOTEHOLDERS'
PERCENTAGE OF THE PRINCIPAL DISTRIBUTABLE AMOUNT OVER (y) THE OUTSTANDING
PRINCIPAL BALANCE OF ALL VARIABLE PAY REVOLVING NOTES AS OF THE CLOSE OF
BUSINESS ON THE IMMEDIATELY PRECEDING DISTRIBUTION DATE. THE UNDISTRIBUTED
PRINCIPAL AMOUNT FOR (a) EACH DISTRIBUTION DATE THAT IS A TARGETED FINAL
DISTRIBUTION DATE FOR A CLASS OF CLASS A NOTES, (b) EACH DISTRIBUTION DATE
DURING A SEQUENTIAL AMORTIZATION PERIOD AND (c) EACH DISTRIBUTION DATE FOLLOWING
A DECLARATION THAT THE NOTES ARE IMMEDIATELY DUE AND PAYABLE FOLLOWING THE
OCCURRENCE OF AN EVENT OF DEFAULT, UNTIL ALL EVENTS OF DEFAULT HAVE BEEN CURED
OR WAIVED AS PROVIDED IN SECTION 5.2(b) OF THE INDENTURE, SHALL BE ZERO.]
[VARIABLE PAY REVOLVING NOTE PERCENTAGE: WITH RESPECT TO A DISTRIBUTION
DATE, 100% MINUS THE CLASS A PERCENTAGE FOR THAT DISTRIBUTION DATE.]
[VARIABLE PAY REVOLVING NOTES: THE FLOATING RATE VARIABLE PAY ASSET
BACKED REVOLVING NOTES ISSUED FROM TIME TO TIME PURSUANT TO THE INDENTURE,
INCLUDING THE INITIAL VARIABLE PAY REVOLVING NOTE.]
[VARIABLE PAY REVOLVING NOTE ADVANCE AMOUNT: WITH RESPECT TO A
DISTRIBUTION DATE, THE TOTAL AMOUNT OF THE INCREMENTAL ADVANCES MADE UNDER THE
VARIABLE PAY REVOLVING NOTES ON THAT DISTRIBUTION DATE.]
VAULT: Vehicle Asset Universal Leasing Trust, a statutory business
trust created under the Business Trust Statute, pursuant to the VAULT Trust
Agreement.
VAULT Trust Agreement: The First Amended and Restated Trust and
Servicing Agreement, dated as of March 15, 1996, as amended, between GMAC, as
servicer and initial trust beneficiary, and the VAULT Trustee, as it may be
amended from time to time.
VAULT Trustee: Chase Manhattan Bank (Delaware), as trustee of VAULT
under the VAULT Trust Agreement.
Vehicle: A new or used automobile or light truck manufactured by or for
General Motors Corporation.
Voting Interests: As of any date, the aggregate Certificate Balance of
all Certificates outstanding; provided, however, that Certificates owned by the
Issuer, the Seller or any Affiliate of any of the foregoing Persons (each, an
"insider") shall be disregarded and deemed not to be
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outstanding (unless all Certificates are owned by insiders), except that, in
determining whether the Owner Trustee shall be protected in relying upon any
such request, demand, authorization, direction, notice, consent or waiver, only
Certificates that the Owner Trustee knows to be so owned shall be so
disregarded. Certificates so owned that have been pledged in good faith may be
regarded as outstanding if the pledgee establishes to the satisfaction of the
Owner Trustee the pledgor's right so to act with respect to such Certificates
and that the pledgee is not the Issuer, the Seller or any Affiliate of any of
the foregoing Persons (unless all Certificates are owned by insiders).
[VPRN INTEREST RATE SWAP: THE INTEREST RATE SWAP AGREEMENT RELATING TO
THE VARIABLE PAY REVOLVING NOTES, INCLUDING ALL SCHEDULES AND CONFIRMATIONS
RELATED THERETO, BETWEEN GMAC AND THE SWAP COUNTERPARTY IN EFFECT ON THE CLOSING
DATE, AS THE SAME MAY BECOME EFFECTIVE AS PROVIDED IN THE TRIPARTY AGREEMENT OR
BE AMENDED, RENEWED, EXTENDED OR REPLACED FROM TIME TO TIME.]
Warranty Payment: With respect to a Distribution Date and to a Warranty
Secured Note repurchased as of the last day of a Monthly Period, a payment equal
to the sum of:
(a) the Secured Note Value of such Secured Note
as of such Distribution Date;
(b) any reimbursement made pursuant to the last
sentence of Section 5.04 of the Trust Sale
and Servicing Agreement with respect to such
Secured Note;
(c) all past due Monthly Scheduled Installments
with respect to which a Monthly Advance has
not been made; and
(d) all Outstanding Monthly Advances with
respect to such Secured Note, minus any
Liquidation Proceeds (to the extent applied
to reduce the Secured Note Value of such
Secured Note) previously received with
respect to such Secured Note.
Warranty Purchaser: The Person described in Section 2.05 of the Trust
Sale and Servicing Agreement.
Warranty Secured Note: A Secured Note that the Warranty Purchaser has
become obligated to repurchase pursuant to Section 2.05 of the Trust Sale and
Servicing Agreement.
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PART II - RULES OF CONSTRUCTION
(a) Accounting Terms. As used in this Appendix or the Basic
Documents, accounting terms which are not defined, and
accounting terms partly defined, herein or therein shall have
the respective meanings given to them under generally accepted
accounting principles. To the extent that the definitions of
accounting terms in this Appendix or the Basic Documents are
inconsistent with the meanings of such terms under generally
accepted accounting principles, the definitions contained in
this Appendix or the Basic Documents will control.
(b) "Hereof," etc. The words "hereof," "herein" and "hereunder"
and words of similar import when used in this Appendix or any
Basic Document will refer to this Appendix or such Basic
Document as a whole and not to any particular provision of
this Appendix or such Basic Document; and Section, Schedule
and Exhibit references contained in this Appendix or any Basic
Document are references to Sections, Schedules and Exhibits in
or to this Appendix or such Basic Document unless otherwise
specified. The word "or" is not exclusive.
(c) Reference to Distribution Dates. With respect to any
Distribution Date, the "related Monthly Period," and the
"related Record Date," will mean the Monthly Period and Record
Date, respectively, immediately preceding such Distribution
Date, and the relationships among Monthly Periods and Record
Dates will be correlative to the foregoing relationships.
(d) Number and Gender. Each defined term used in this Appendix or
the Basic Documents has a comparable meaning when used in its
plural or singular form. Each gender-specific term used in
this Appendix or the Basic Documents has a comparable meaning
whether used in a masculine, feminine or gender-neutral form.
(e) Including. Whenever the term "including" (whether or not that
term is followed by the phrase "but not limited to" or
"without limitation" or words of similar effect) is used in
this Appendix or the Basic Documents in connection with a
listing of items within a particular classification, that
listing will be interpreted to be illustrative only and will
not be interpreted as a limitation on, or exclusive listing
of, the items within that classification.
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APPENDIX B
NOTICE ADDRESSES AND PROCEDURES
All requests, demands, directions, consents, waivers, notices,
authorizations and communications provided or permitted under any Basic Document
to be made upon, given or furnished to or filed with the Seller, the Servicer,
the Administrator, the Indenture Trustee, the Issuer, the Owner Trustee or the
Rating Agencies shall be in writing, personally delivered, sent by facsimile
with a copy to follow via first class mail or mailed by certified mail-return
receipt requested, and shall be deemed to have been duly given upon receipt:
(i) in the case of the Seller, at the following address:
Capital Auto Receivables, Inc.,
Corporation Trust Center,
1209 Orange Street,
Wilmington, Delaware 19801
with a copy to:
Manager - Securitization,
General Motors Acceptance Corporation
200 Renaissance Center
12th Floor
Detroit, MI 48265
(ii) in the case of the Servicer or the Administrator, at the following
address:
Director - Securitization and Cash Management
General Motors Acceptance Corporation,
200 Renaissance Center
12th Floor
Detroit, MI 48265
(iii) in the case of the Indenture Trustee, at its Corporate Trust Office,
(iv) in the case of the Issuer or the Owner Trustee, to the Owner Trustee at
its Corporate Trust Office, with a copy to
[NAME OF BANK]
[ADDRESS],
Attention: ,
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and with a copy to:
Capital Auto Receivables, Inc.,
Attention: R. L. Straub, Manager
200 Renaissance Center
12th Floor
Detroit, MI 48265
The Issuer shall promptly transmit any notice received by it from the
Noteholders to the Indenture Trustee and the Indenture Trustee shall likewise
promptly transmit any notice received by it from the Noteholders to the Issuer.
(i) in the case of Moody's Investors Service, Inc., to
Moody's Investors Service, Inc.,
ABS Monitoring Department,
99 Church Street,
New York, New York 10007,
(ii) in the case of Standard & Poor's Ratings Services, to
Standard & Poor's Ratings Services,
55 Water Street
40th Floor
New York, New York 10041
Attention: Asset Backed Surveillance Department,
(iii) in the case of Fitch IBCA, Inc., to
Fitch IBCA, Inc.,
One State Street Plaza,
New York, New York 10004,
Attention: Asset-Backed Surveillance, and
(iv) [IN THE CASE OF SWAP COUNTERPARTY, TO
MERRILL LYNCH CAPITAL SERVICES, INC.
4 WORLD FINANCIAL CENTER
12TH FLOOR
NEW YORK, NEW YORK 10080
ATTENTION: ]
or at such other address as shall be designated by such Person in a written
notice to the other parties to this Agreement.
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Where any Basic Document provides for notice to Noteholders or
Certificateholders of any condition or event, such notice shall be sufficiently
given (unless otherwise herein expressly provided) if it is in writing and
mailed, first-class, postage prepaid to each Noteholder or Certificateholder
affected by such condition or event, at such Person's address as it appears on
the Note Register or Certificate Register, as applicable, not later than the
latest date, and not earlier than the earliest date, prescribed in such Basic
Document for the giving of such notice. If notice to Noteholders or
Certificateholders is given by mail, neither the failure to mail such notice nor
any defect in any notice so mailed to any particular Noteholders or
Certificateholders shall affect the sufficiency of such notice with respect to
other Noteholders or Certificateholders, and any notice that is mailed in the
manner herein provided shall conclusively be presumed to have been duly given
regardless of whether such notice is in fact actually received.
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