EXHIBIT 99.1
TRUST SALE AND SERVICING AGREEMENT
AMONG
GENERAL MOTORS ACCEPTANCE CORPORATION
SERVICER
CAPITAL AUTO RECEIVABLES, INC.
SELLER
AND
CAPITAL AUTO RECEIVABLES ASSET TRUST 2004-2
ISSUER
DATED AS OF DECEMBER 9, 2004
TABLE OF CONTENTS
PAGE
----
ARTICLE I CERTAIN DEFINITIONS.................................................................................... 1
Section 1.01 Definitions................................................................................. 1
ARTICLE II CONVEYANCE OF RECEIVABLES; ISSUANCE OF SECURITIES..................................................... 1
Section 2.01 Conveyance of Receivables................................................................... 1
Section 2.02 Custody of Receivable Files................................................................. 4
Section 2.03 Acceptance by Issuer........................................................................ 4
Section 2.04 Representations and Warranties as to the Receivables........................................ 4
Section 2.05 Repurchase of Receivables Upon Breach of Warranty........................................... 5
Section 2.06 Realization Upon Liquidating Receivables.................................................... 5
Section 2.07 Conditions to Sales of Additional Receivables............................................... 6
ARTICLE III THE SELLER........................................................................................... 8
Section 3.01 Representations of Seller................................................................... 8
Section 3.02 Liability of Seller......................................................................... 9
Section 3.03 Merger or Consolidation of, or Assumption of the Obligations of Seller; Amendment
of Certificate of Incorporation............................................................. 9
Section 3.04 Limitation on Liability of Seller and Others................................................ 10
Section 3.05 Seller May Own Notes or Certificates........................................................ 10
ARTICLE IV SERVICER'S COVENANTS; DISTRIBUTIONS; RESERVE ACCOUNT; STATEMENTS TO
NOTEHOLDERS AND CERTIFICATEHOLDERS .............................................................................. 11
Section 4.01 Annual Statement as to Compliance; Notice of Servicer Default............................... 11
Section 4.02 Annual Independent Accountants' Report...................................................... 11
Section 4.03 Access to Certain Documentation and Information Regarding the Receivables................... 12
Section 4.04 Amendments to Schedule of Receivables....................................................... 12
Section 4.05 Assignment of Administrative Receivables and Warranty Receivables........................... 12
Section 4.06 Distributions............................................................................... 13
Section 4.07 Reserve Account............................................................................. 18
Section 4.08 Net Deposits................................................................................ 19
Section 4.09 Statements to Securityholders............................................................... 19
ARTICLE V CERTIFICATEHOLDER AND NOTEHOLDER STATEMENTS AND ACCOUNTS; COLLECTIONS,
DEPOSITS AND INVESTMENTS; ADVANCES .............................................................................. 20
Section 5.01 Establishment of Accounts................................................................... 21
Section 5.02 Collections................................................................................. 25
Section 5.03 Investment Earnings and Supplemental Servicing Fees......................................... 25
Section 5.04 Monthly Advances............................................................................ 25
Section 5.05 Additional Deposits......................................................................... 26
Section 5.06 Seller Repurchase Option.................................................................... 26
ARTICLE VI LIABILITIES OF SERVICER AND OTHERS.................................................................... 27
Section 6.01 Liability of Servicer; Indemnities.......................................................... 27
Section 6.02 Merger or Consolidation of, or Assumption of the Obligations of the Servicer................ 28
Section 6.03 Limitation on Liability of Servicer and Others.............................................. 28
Section 6.04 Delegation of Duties........................................................................ 29
Section 6.05 Servicer Not to Resign...................................................................... 29
ARTICLE VII DEFAULT.............................................................................................. 30
Section 7.01 Servicer Defaults........................................................................... 30
i
Section 7.02 Consequences of a Servicer Default.......................................................... 31
Section 7.03 Indenture Trustee to Act; Appointment of Successor.......................................... 31
Section 7.04 Notification to Noteholders and Certificateholders.......................................... 32
Section 7.05 Waiver of Past Defaults.................................................................... 32
Section 7.06 Repayment of Advances....................................................................... 32
ARTICLE VIII TERMINATION......................................................................................... 33
Section 8.01 Optional Purchase of All Receivables; Insolvency of Seller; Termination of Trust............ 33
ARTICLE IX MISCELLANEOUS PROVISIONS.............................................................................. 35
Section 9.01 Amendment................................................................................... 35
Section 9.02 Protection of Title to Trust................................................................ 37
Section 9.03 Notices..................................................................................... 38
Section 9.04 GOVERNING LAW............................................................................... 38
Section 9.05 Severability of Provisions.................................................................. 39
Section 9.06 Assignment.................................................................................. 39
Section 9.07 Third-Party Beneficiaries................................................................... 39
Section 9.08 Separate Counterparts....................................................................... 39
Section 9.09 Headings and Cross-References............................................................... 39
Section 9.10 Assignment to Indenture Trustee............................................................. 39
Section 9.11 No Petition Covenants....................................................................... 39
Section 9.12 Limitation of Liability of Indenture Trustee and Owner Trustee.............................. 40
Section 9.13 Tax Treatment............................................................................... 40
Section 9.14 Furnishing Documents........................................................................ 40
EXHIBIT A Schedule of Receivables
EXHIBIT B Form of Second Step Initial Receivables Assignment
EXHIBIT C Form of Second Step Additional Receivables Assignment
EXHIBIT D Form of Officer's Certificate
EXHIBIT E Additional Representations and Warranties
APPENDIX A Definitions and Rules of Construction
APPENDIX B Notices Addresses and Procedures
ii
THIS TRUST SALE AND SERVICING AGREEMENT is made as of December 9, 2004 by
and among General Motors Acceptance Corporation, a Delaware corporation and in
its capacity as Servicer under the Pooling and Servicing Agreement described
below (the "Servicer"), Capital Auto Receivables, Inc., a Delaware corporation
(the "Seller"), and Capital Auto Receivables Asset Trust 2004-2, a Delaware
statutory trust (the "Issuer").
WHEREAS, on the Initial Closing Date GMAC has sold the Initial
Receivables, and from time to time thereafter on each Subsequent Closing Date
will sell Additional Receivables, to the Seller;
WHEREAS, GMAC, as Servicer, has agreed to service the Receivables pursuant
to the Pooling and Servicing Agreement;
WHEREAS, the Seller desires to sell the Initial Receivables to the Issuer
on the Initial Closing Date and the Additional Receivables on each Subsequent
Closing Date relating to the Revolving Period in exchange for the Notes and
Certificates pursuant to the terms of this Agreement;
WHEREAS, 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; and
WHEREAS, Seller and the Issuer wish to set forth the terms pursuant to
which the Receivables are to be sold by the Seller to the Issuer and serviced by
the Servicer.
NOW, THEREFORE, in consideration of the foregoing, the other good and
valuable consideration and the mutual terms and covenants contained herein, the
parties hereto agree as follows:
ARTICLE I
CERTAIN DEFINITIONS
Section 1.01 Definitions. Certain capitalized terms used in the above
recitals and in this Agreement are defined in and shall have the respective
meanings assigned to them in Part I of Appendix A to this Agreement. All
references herein to "the Agreement" or "this Agreement" are to this Trust Sale
and Servicing Agreement as it may be amended, supplemented or modified from time
to time, the exhibits hereto and the capitalized terms used herein which are
defined in such Appendix A, and all references herein to Articles, Sections and
subsections are to Articles, Sections or subsections of this Agreement unless
otherwise specified. The rules of construction set forth in Part II of such
Appendix A shall be applicable to this Agreement.
ARTICLE II
CONVEYANCE OF RECEIVABLES; ISSUANCE OF SECURITIES
Section 2.01 Conveyance of Receivables.
(a) Initial Receivables. In consideration of the Issuer's delivery
of the Notes and the Certificates to, or upon the order of, the Seller, the
Seller does hereby enter into this
Agreement and the related Second Step Initial Receivables Assignment in the form
attached as Exhibit B to this Agreement (the "Second Step Initial Receivables
Assignment") and agrees to fulfill all of its obligations hereunder and
thereunder and to sell, transfer, assign and otherwise convey to the Issuer,
without recourse:
(i) all right, title and interest of the Seller in, to and
under the Initial Receivables listed on the Schedule of Initial Receivables and
(a) in the case of Initial Receivables that are Scheduled Interest Receivables,
all monies due thereunder on and after the Initial Cutoff Date and (b) in the
case of Initial Receivables that are Simple Interest Receivables, all monies
received thereon on and after the Initial Cutoff Date, in each case exclusive of
any amounts allocable to the premium for physical damage insurance force-placed
by the Servicer covering any related Financed Vehicle;
(ii) the interest of the Seller in the security interests in
the Financed Vehicles granted by Obligors pursuant to the Initial Receivables
and, to the extent permitted by law, any accessions thereto;
(iii) the interest of the Seller in any proceeds from claims
on any physical damage, credit life, credit disability or other insurance
policies covering related Financed Vehicles or Obligors;
(iv) the interest of the Seller in any proceeds from recourse
against Dealers on the Initial Receivables;
(v) all right, title and interest of the Seller in, to and
under the Pooling and Servicing Agreement, the First Step Receivables
Assignments and the Custodian Agreement, including the right of the Seller to
cause GMAC to repurchase Receivables under certain circumstances;
(vi) the right to purchase Additional Receivables during the
Revolving Period at a price equal to the Aggregate Additional Receivables
Principal Balance of such Additional Receivables as of each Distribution Date;
and
(vii) all present and future claims, demands, causes and
choses in action in respect of any or all of the foregoing described above and
all payments on or under and all proceeds of every kind and nature whatsoever in
respect of any or all of the foregoing, including all proceeds of the conversion
of any or all of the foregoing, voluntary or involuntary, into cash or other
liquid property, all cash proceeds, accounts, accounts receivable, notes,
drafts, acceptances, chattel paper, checks, deposit accounts, insurance
proceeds, investment property, payment intangibles, general intangibles,
condemnation awards, rights to payment of any and every kind and other forms of
obligations and receivables, instruments and other property which ay any time
constitute all or part or are included in the proceeds of any of the foregoing.
(b) Additional Receivables. On each Distribution Date, the Seller
shall seek to purchase from GMAC and sell to the Issuer Additional Receivables
in an amount approximately equal to (but not greater than) the amount of funds
deposited on such Distribution Date in the Accumulation Account pursuant to
clauses (vii) and (ix) of Section 4.06(d) of this Agreement. Subject to the
satisfaction of the conditions set forth in Section 2.07, in consideration of
the
2
Issuer's delivery on or prior to any Subsequent Closing Date to the Seller of an
amount equal to the Aggregate Additional Receivables Principal Balance for such
date, on each Subsequent Closing Date the Seller shall, pursuant to this
Agreement and the related Second Step Additional Receivables Assignment in the
form attached as Exhibit C to this Agreement (the "Second Step Additional
Receivables Assignment" and together with the Second Step Initial Receivables
Assignment, the "Second Step Receivables Assignments"), sell, transfer, assign
and otherwise convey to the Issuer, without recourse:
(i) all right, title and interest of the Seller in, to and
under the Additional Receivables listed on the Schedule of Additional
Receivables delivered on or prior to the related Subsequent Closing Date and (a)
in the case of Additional Receivables that are Scheduled Interest Receivables,
all monies due thereunder on and after the related Subsequent Cutoff Date and
(b) in the case of Additional Receivables that are Simple Interest Receivables,
all monies received thereon on and after the related Subsequent Cutoff Date, in
each case exclusive of any amounts allocable to the premium for physical damage
insurance force-placed by the Servicer covering any related Financed Vehicle;
(ii) the interest of the Seller in the security interests in
the Financed Vehicles granted by Obligors pursuant to the Additional Receivables
and, to the extent permitted by law, any accessions thereto;
(iii) the interest of the Seller in any proceeds from claims
on any physical damage, credit life, credit disability or other insurance
policies covering related Financed Vehicles or Obligors;
(iv) the interest of the Seller in any proceeds from recourse
against Dealers on Additional Receivables;
(v) all right, title and interest of the Seller in, to and
under the related First Step Additional Receivables Assignment; and
(vi) all present and future claims, demands, causes and choses
in action in respect of any or all of the foregoing described above and all
payments on or under and all proceeds of every kind and nature whatsoever in
respect of any or all of the foregoing, including all proceeds of the conversion
of any or all of the foregoing, voluntary or involuntary, into cash or other
liquid property, all cash proceeds, accounts, accounts receivable, notes,
drafts, acceptances, chattel paper, checks, deposit accounts, insurance
proceeds, investment property, payment intangibles, general intangibles,
condemnation awards, rights to payment of any and every kind and other forms of
obligations and receivables, instruments and other property which ay any time
constitute all or part or are included in the proceeds of any of the foregoing.
(c) It is the intention of the Seller and the Issuer that the
transfers and assignments contemplated by this Agreement and the related Second
Step Receivables Assignments shall constitute sales of the Receivables from the
Seller to the Issuer for the purpose of applicable bankruptcy, insolvency,
reorganization and other similar laws, so that the beneficial interest in and
title to the Receivables shall not be part of the Seller's estate in the event
of the filing of a bankruptcy petition by or against the Seller under any
bankruptcy law.
3
(d) The foregoing sales do not constitute and are not intended to
result in any assumption by the Issuer of any obligation of the Seller to the
Obligors, Dealers, insurers or any other Person in connection with the
Receivables, any Dealer Agreements, any insurance policies or any agreement or
instrument relating to any of them.
(e) Within two (2) Business Days after the Initial Closing Date,
with respect to the Initial Receivables, and within two (2) Business Days after
each related Subsequent Closing Date, with respect to the Additional
Receivables, GMAC shall cause to be deposited into the Collection Account the
collections on the Receivables described in Section 5.07 of the Pooling and
Servicing Agreement; provided, however, that so long as the Monthly Remittance
Conditions are satisfied, such collections need not be deposited until the
Distribution Date immediately following the Initial Closing Date or Subsequent
Closing Date, as applicable. The Issuer shall retain in the Accumulation Account
any funds deposited therein on a Distribution Date which are not used pursuant
to Section 2.01(b) above to purchase Additional Receivables.
Section 2.02 Custody of Receivable Files. In connection with the sale,
transfer and assignment of the Receivables to the Issuer pursuant to this
Agreement and the related Second Step Receivables Assignments, GMAC, as
Custodian under the Custodian Agreement, agrees to act as Custodian thereunder
for the benefit of the Issuer. The Issuer hereby accepts and agrees to the terms
and provisions of the Custodian Agreement and designates GMAC as custodian with
respect to the Receivables Files.
Section 2.03 Acceptance by Issuer. The Issuer does hereby accept all
consideration conveyed by the Seller pursuant to Section 2.01(a) and shall
accept all consideration to be conveyed pursuant to Section 2.01(b), 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, this Agreement and the related Second
Step Receivables Assignments and the rights of the Noteholders with respect
thereto. The Issuer hereby agrees to and accepts the appointment and
authorization of GMAC as Servicer under Section 3.01 of the Pooling and
Servicing Agreement. The parties agree that this Agreement, the Second Step
Receivables Assignments, the Indenture, the Trust Agreement, the Notes and the
Certificates constitute the Further Transfer and Servicing Agreements for
purposes of the Pooling and Servicing Agreement and that the rights, duties and
obligations of GMAC as Servicer under the Pooling and Servicing Agreement are
subject to the provisions of Sections 6.02, 6.04, 6.05, 9.01 and Article VII
hereof.
Section 2.04 Representations and Warranties as to the Receivables.
Pursuant to Section 2.01(a)(v), 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 benefit of 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 Initial Closing Date, with respect to the Initial Receivables, and as of the
related Subsequent Closing Date, with respect to the Additional Receivables. The
Seller further acknowledges that the Issuer and its permitted assignees rely on
the representations and warranties of the Seller under this Agreement and of
GMAC under the Pooling and Servicing Agreement in accepting the Receivables in
trust and executing and
4
delivering the Notes and the Certificates. The foregoing representation and
warranty speaks as of the Initial Closing Date with respect to the Initial
Receivables, and as of the related Subsequent Closing Date, with respect to the
Additional Receivables, but shall survive the sale, transfer and assignment of
the Receivables to the Issuer and the pledge thereof to the Indenture Trustee
pursuant to the Indenture.
Section 2.05 Repurchase of Receivables Upon Breach of Warranty. Upon
discovery by the Seller, the Servicer, the Owner Trustee or the Indenture
Trustee of a breach of any of the representations and warranties in Section 4.01
of the Pooling and Servicing Agreement or in Section 2.04 or Section 3.01 of
this Agreement that materially and adversely affects the interests of the
Noteholders or the Certificateholders in any Receivable, the party discovering
such breach shall give prompt written notice thereof to the others. As of the
last day of the second Monthly Period following its discovery or its receipt of
notice of breach (or, at the Seller's election, the last day of the first
Monthly Period following such discovery), unless such breach shall have been
cured in all material respects, in the event of a breach of the representations
and warranties made by the Seller in Section 2.04 or Section 3.01, the Seller
shall repurchase, or in the event of a breach of a representation and warranty
under Section 4.01 of the Pooling and Servicing Agreement, the Seller and the
Servicer shall use reasonable efforts to enforce the obligation of GMAC under
Section 5.04 of the Pooling and Servicing Agreement to repurchase such
Receivable from the Issuer on the related Distribution Date. The repurchase
price to be paid by the breaching party (the "Warranty Purchaser") shall be an
amount equal to the Warranty Payment calculated as of the last day of the
related Monthly Period. Upon repurchase and payment of such Warranty Payment,
the Warranty Purchaser shall be entitled to receive the Released Warranty
Amount, if any. It is understood and agreed that the obligation of the Warranty
Purchaser to repurchase any Receivable as to which a breach has occurred and is
continuing, and the obligation of the Seller and the Servicer to enforce GMAC's
obligation to repurchase such Receivables pursuant to the Pooling and Servicing
Agreement shall, if such obligations are fulfilled, constitute the sole remedy
against the Seller, the Servicer or GMAC for such breach available to the
Issuer, the Financial Parties, the Owner Trustee or the Indenture Trustee. The
Servicer also acknowledges its obligations to repurchase Administrative
Receivables from the Issuer pursuant to Section 3.08 of the Pooling and
Servicing Agreement.
Section 2.06 Realization Upon Liquidating Receivables. The Servicer shall
use all reasonable efforts, consistent with its customary servicing procedures,
to repossess or take other similar action with respect to any Financed Vehicle
that it has reasonably determined should be repossessed or otherwise converted
following a default under the Receivable secured by the Financed Vehicle. The
Servicer is authorized to follow such practices, policies and procedures as it
customarily follows with respect to comparable automotive receivables that it
services for itself or others, which practices, policies and procedures may
include reasonable efforts to realize upon any recourse to Dealers, selling the
related Financed Vehicle at public or private sale and the taking of other
actions by the Servicer in order to realize upon such a Receivable. The Servicer
is hereby authorized to exercise its discretion consistent with its customary
servicing procedures and the terms of the Basic Documents, in servicing
Liquidating Receivables so as to maximize the net collection of those
Liquidating Receivables, including the discretion to choose to sell or not to
sell any of the Liquidating Receivables on behalf of the Issuer. The Servicer
shall not be liable for any such exercise of its discretion made in good faith
and in accordance with such servicing procedures. The foregoing is subject to
the provision that, in any case in
5
which the Financed Vehicle shall have suffered damage, the Servicer shall not
expend funds in connection with any repair or towards the repossession of such
Financed Vehicle unless it shall determine in its discretion and in accordance
with such servicing procedures that such repair and/or repossession shall
increase the proceeds of liquidation of the related Receivable by an amount
greater than the amount of such expenses. The Servicer shall be entitled to
receive Liquidation Expenses with respect to each Liquidating Receivable at such
time as the Receivable becomes a Liquidating Receivable.
Section 2.07 Conditions to Sales of Additional Receivables. The Seller
shall sell, transfer, assign and otherwise convey to the Trust on each
Subsequent Closing Date the Additional Receivables and the other property and
rights related thereto described in Section 2.01(b) only upon the satisfaction
of each of the following conditions on or prior to such Subsequent Closing Date:
(a) the Seller shall have delivered to each of the Owner Trustee and
the Indenture Trustee a duly executed Second Step Additional Receivables
Assignment, which shall include the Schedule of Additional Receivables;
(b) as of such Subsequent Closing Date: (i) the Seller shall not be
insolvent and shall not become insolvent as a result of the transfer of
Additional Receivables on such Subsequent Closing Date, (ii) the Seller shall
not intend to incur or believe that it would incur debts that would be beyond
the Seller's ability to pay as such debts matured, (iii) such transfer shall not
be made by the Seller with actual intent to hinder, delay or defraud any Person
and (iv) the assets of the Seller shall not constitute unreasonably small
capital to carry out its business as conducted;
(c) each Additional Receivable (i) is secured by a Financed Vehicle,
was originated in the United States by GMAC or one of its subsidiaries or a
Dealer for the retail sale of a Financed Vehicle in the ordinary course of
business, was fully and properly executed by the parties thereto, if not
originated by GMAC, was purchased by GMAC from one of its subsidiaries under the
or from such Dealer under an existing Dealer Agreement, and was validly assigned
by such subsidiary or such Dealer to GMAC in accordance with its terms, (ii)
will have created a valid, binding and enforceable first priority security
interest in favor of GMAC in the Financed Vehicle, which security interest is
assignable by GMAC to CARI, (iii) contains customary and enforceable provisions
such as to render the rights and remedies of the holder thereof adequate for
realization against the collateral of the benefits of the security, (iv) is a
Scheduled Interest Receivable or a Simple Interest Receivable, (v) provides for
level monthly payments (which may vary from one another by no more than $5.00)
that shall amortize the Amount Financed by maturity and shall yield interest at
the Annual Percentage Rate, (vi) has an original term of not less than six and
not greater than 72 months and a remaining term of not less than six months,
(vii) has a final scheduled payment due no later than October 31, 2011, (viii)
as of the related Subsequent Cutoff Date, was not considered past due, that is,
the payments due on that Additional Receivable in excess of $25.00 have been
received within thirty (30) days of the scheduled payment date, nor charged off
by GMAC and (ix) following the addition of all Additional Receivables on each
Subsequent Cutoff Date:
6
(i) the sum of the Amount Financed of each Cumulative
Receivable as of such date that had an original term in excess of 60 months,
measured as of its date of origination, is not greater than 20.0% of the
Aggregate Amount Financed of the Cumulative Receivables as of such date;
(ii) the sum of the Amount Financed of each Cumulative
Receivable as of such date that was secured by used Financed Vehicles, measured
as of the Applicable Cutoff Date for each such Cumulative Receivable, is not
greater than 20.0% of the Aggregate Amount Financed of the Cumulative
Receivables as of such dates; and
(iii) the sum of the Amount Financed of each Cumulative
Receivable as of such date that was a Subvented Receivable, measured as of the
Applicable Cutoff Date for each such Cumulative Receivable, is not less than
70.0% of the Aggregate Amount Financed of the Cumulative Receivables as of such
date.
(d) the Revolving Period shall be in effect;
(e) each of the representations and warranties made by the Seller
pursuant to Section 3.01 of this Agreement and by GMAC pursuant to Sections 4.01
and 4.02 of the Pooling and Servicing Agreement, with respect to the Seller,
GMAC and the Additional Receivables, as applicable, shall be true and correct as
of the date as of which such representations and warranties are made;
(f) the Seller shall, at its own expense, on or prior to the
Subsequent Closing Date, indicate in its computer files that the Additional
Receivables have been sold to the Issuer pursuant to this Agreement and the
related Second Step Additional Receivables Assignment and deliver to the Owner
Trustee the related Schedule of Additional Receivables certified by an officer
of the Seller to be true, correct and complete;
(g) the Seller shall have taken any action required to maintain the
first perfected ownership interest of the Issuer in the Trust Property and the
first priority perfected security interest of the Indenture Trustee in the
Collateral;
(h) no selection procedures believed by the Seller to be adverse to
the interests of the Issuer, the Noteholders or the Certificateholders shall
have been utilized in selecting the Additional Receivables;
(i) the addition of the Additional Receivables will not result in
any material adverse tax consequences to the Issuer, the Noteholders or the
Certificateholders;
(j) the Seller shall have delivered to the Owner Trustee and the
Indenture Trustee an Officer's Certificate confirming the satisfaction of each
condition specified in this Section 2.07 substantially in the form attached
hereto as Exhibit D; and
(k) all the conditions to the transfer of the Additional Receivables
by GMAC to the Seller specified in Section 6.01 of the Pooling and Servicing
Agreement shall be satisfied.
7
ARTICLE III
THE SELLER
Section 3.01 Representations of Seller. The Seller makes the following
representations on which the Issuer is relying in acquiring the Receivables and
issuing the Notes and the Certificates. The following representations in clause
(a) speak as of the Initial Closing Date and each Subsequent Closing Date. The
representations in clause (b) speak as of the Initial Closing Date, with respect
to the Initial Receivables, and as of the related Subsequent Closing Date, with
respect to the Additional Receivables, but in either case, such representations
shall survive the sale, transfer and assignment of the Receivables 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 Receivables;
(ii) Due Qualification. The Seller is duly qualified to do
business as a foreign corporation in good standing, and has obtained all
necessary licenses and approvals in all jurisdictions in which the ownership or
lease of property or the conduct of its business requires such qualification;
(iii) Power and Authority. The Seller has the power and
authority to execute and deliver the Basic Documents to which it is a party and
to carry out their 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 the Basic Documents to which it is a party have been duly authorized by the
Seller by all necessary corporate action;
(iv) Valid Sale; Binding Obligations. This Agreement and the
Second Step Receivables Assignments, when duly executed and delivered, shall
constitute a valid sale, transfer and assignment of the Receivables, enforceable
against creditors of and purchasers from the Seller; and the Basic Documents to
which the Seller is a party, when duly executed and delivered, shall constitute
legal, valid and binding obligations of the Seller enforceable in accordance
with their 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; Consents. The consummation of the
transactions contemplated by the Basic Documents to which the Seller is a party
and the fulfillment of the terms of the Basic Documents to which the Seller is a
party 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,
8
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 and the Second Step Receivables
Assignments, or violate any law or, to the best of the Seller's knowledge, any
order, rule or regulation applicable to the Seller of any court or of any
federal or state regulatory body, administrative agency or other governmental
instrumentality having jurisdiction over the Seller or any of its properties;
and
(vi) No Proceedings. To the Seller's knowledge, there are no
proceedings or investigations pending, or threatened, before any court,
regulatory body, administrative agency or other tribunal or governmental
instrumentality having jurisdiction over the Seller or its properties (i)
asserting the invalidity of any Basic Document, (ii) seeking to prevent the
issuance of the Notes or the Certificates or the consummation of any of the
transactions contemplated by any Basic Document, (iii) seeking any determination
or ruling that might materially and adversely affect the performance by the
Seller of its obligations under, or the validity or enforceability of, any Basic
Document, or (iv) seeking to adversely affect the federal income tax attributes
of the Notes or the Certificates.
(b) Representations and Warranties as to the Receivables.
(i) Good Title. No Receivable has been sold, transferred,
assigned or pledged by the Seller to any Person other than the Issuer;
immediately prior to the conveyance of the Receivables pursuant to this
Agreement and the Second Step Receivables Assignments, the Seller had good and
marketable title thereto, free of any Lien; and, upon execution and delivery of
this Agreement and the Second Step Receivables Assignments by the Seller, the
Issuer shall have all of the right, title and interest of the Seller in, to and
under the Receivables, the unpaid indebtedness evidenced thereby and the
collateral security therefor, free of any Lien.
(ii) All Filings Made. All filings (including, without
limitation, UCC filings) necessary in any jurisdiction to give the Issuer a
first priority perfected ownership interest in the Receivables shall have been
made.
(iii) Additional Representations and Warranties. The
representations and warranties regarding creation, perfection and priority of
security interests in the Receivables, which are attached to this Agreement as
Exhibit E, are true and correct to the extent they are applicable.
Section 3.02 Liability of Seller. The Seller shall be liable in accordance
with this Agreement and the Second Step Receivables Assignments only to the
extent of the obligations in this Agreement and the Second Step Receivables
Assignments specifically undertaken by the Seller.
Section 3.03 Merger or Consolidation of, or Assumption of the Obligations
of Seller; Amendment of Certificate of Incorporation.
(a) Any corporation or other entity (i) into which the Seller may be
merged or consolidated, (ii) resulting from any merger or consolidation to which
the Seller shall be a party, (iii) succeeding to the business of the Seller, or
(iv) more than 50% of the voting stock (or, if not
9
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 and the other Basic Documents to which it is a party, 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 ten (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 such action would result in a
downgrading of the then current rating of any class of the Notes.
Section 3.04 Limitation on Liability of Seller and Others. The Seller and
any director or officer or employee or agent of the Seller may rely in good
faith on the advice of counsel or on any document of any kind prima facie
properly executed and submitted by any Person respecting any matters arising
under this Agreement and the Second Step Receivables Assignments. 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 negligence (except errors in judgment) in the
performance of its duties under this Agreement, the Second Step Receivables
Assignments, the Indenture or the Trust Agreement, or by reason of reckless
disregard of its obligations and duties under this Agreement, the Second Step
Receivables Assignments, the Indenture or the Trust Agreement. In no event,
however, shall the Indenture Trustee or the Owner Trustee be liable to the
Seller for any damages in the nature of special, indirect or consequential
damages, however styled, including lost profits. The Seller shall not be under
any obligation to appear in, prosecute or defend any legal action that is not
incidental to its obligations as Seller of the Receivables under this Agreement
and the Second Step Receivables Assignments and that in its opinion may involve
it in any expense or liability.
Section 3.05 Seller May Own Notes or Certificates. Each of the Seller and
any Person controlling, controlled by or under common control with the Seller
may in its individual or any other capacity become the owner or pledgee of Notes
or Certificates with the same rights as it would have if it were not the Seller
or an affiliate thereof, except as otherwise specifically provided herein.
Except as otherwise provided herein, Notes or Certificates so owned by or
pledged to the Seller or such controlling or commonly controlled Person shall
have an equal and proportionate benefit under the provisions of this Agreement,
without preference, priority or distinction as among all of such Notes or
Certificates, respectively.
10
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 March 15 of each year, beginning March 15, 2006, an
officer's certificate signed by the President or any Vice President of the
Servicer, dated as of December 31 of the immediately preceding year, in each
instance 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 Initial 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, once delivered, may be obtained by any Noteholder or
Certificateholder by a request in writing to the Issuer addressed to the
Corporate Trust Office of the Indenture Trustee or the Owner Trustee, as
applicable.
(b) The Servicer shall deliver to the Indenture Trustee, the Owner
Trustee and to the Rating Agencies, promptly after having obtained knowledge
thereof, but in no event later than five (5) 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 (5) 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.
(c) The Administrator shall prepare, and cause the Servicer to
execute and deliver all certificates or other documents required to be delivered
by the Issuer pursuant to the Sarbanes-Oxley Act of 2002 or the rules and
regulations promulgated pursuant thereto.
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 Board of Directors of the Servicer, on or before March 15 of each
year, beginning March 15, 2006, with respect to the twelve months ended on the
immediately preceding December 31 (or, with respect to the first such report,
such period as shall have elapsed from the Initial Closing Date to the date of
such certificate), a report (the "Accountants' Report") 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 examined the Servicer's assertion that the
Servicer has complied with its Minimum Servicing Standards and that such
examination: (i) was conducted in accordance with the Attestation Protocol and
(ii) included examining, on a test basis, evidence regarding the Servicer's
compliance with its Minimum Servicing Standards. The Accountant's Report shall
include an
11
opinion that the Servicer's assertion with respect to compliance with its
Minimum Servicing Standards is fairly stated in all material respects or shall
report the exceptions that do not permit such opinion. In the event that such
firm requires the Issuer or the Owner Trustee to agree to the examination
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 examination. The Accountants' Report required by
this Section 4.02(a) may be replaced at the election of the Servicer by any
similar report or certification using standards other than Minimum Servicing
Standards or the Attestation Protocol that are now or in the future in use by
servicers of retail instalment sale contracts or direct purchase money loans or
that otherwise comply with any rule, regulation, "no action" letter or similar
guidance promulgated by the Securities and Exchange Commission.
(b) A copy of the Accountants' Report received pursuant to Section
4.02(a) shall be delivered by the Servicer to the Indenture Trustee and the
Owner Trustee on or before March 15 of each year beginning March 15, 2006.
(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.
Section 4.03 Access to Certain Documentation and Information Regarding the
Receivables. The Servicer shall provide to the Indenture Trustee and the Owner
Trustee reasonable access to the documentation regarding the Receivables. The
Servicer shall provide such access to any Noteholder or Certificateholder only
in such cases where a Noteholder or a Certificateholder is required by
applicable statutes or regulations to review such documentation. In each case,
such access shall be afforded without charge but only upon reasonable request
and during normal business hours at offices of the Servicer designated by the
Servicer. Nothing in this Section 4.03 shall derogate from the obligation of the
Servicer to observe any applicable law prohibiting disclosure of information
regarding Obligors, and the failure of the Servicer to provide access as
provided in this Section 4.03 as a result of such obligation shall not
constitute a breach of this Section 4.03.
Section 4.04 Amendments to Schedule of Receivables. If the Servicer,
during a Monthly Period, assigns to a Receivable an account number that differs
from the account number previously identifying such Receivable on the Schedule
of Initial Receivables or any Schedule of Additional Receivables, the Servicer
shall deliver to the Seller, the Indenture Trustee and the Owner Trustee on or
before the Distribution Date related to such Monthly Period an amendment to the
Schedule of Initial Receivables or Schedule of Additional Receivables, as
applicable, to report the newly assigned account number. Each such amendment
shall list all new account numbers assigned to the Receivables during such
Monthly Period and shall show by cross reference the prior account numbers
identifying such Receivables on the Schedule of Initial Receivables or Schedule
of Additional Receivables, as applicable.
Section 4.05 Assignment of Administrative Receivables and Warranty
Receivables. Upon receipt of the Administrative Purchase Payment or the Warranty
Payment with respect to
12
an Administrative Receivable or a Warranty Receivable, respectively, each of the
Indenture Trustee and the Owner Trustee shall assign, without recourse,
representation or warranty, to the Servicer or the Warranty Purchaser, as
applicable, all of such Person's right, title and interest in, to and under such
Administrative Receivable or Warranty Receivable, all monies due thereon, the
security interests in the related Financed Vehicle, proceeds from any Insurance
Policies, proceeds from recourse against a Dealer on such Receivable and the
interests of such Person or the Trust, as applicable, in rebates of premiums and
other amounts relating to the Insurance Policies and any document relating
thereto, such assignment being an assignment outright and not for security; and
the Servicer or the Warranty Purchaser, as applicable, shall thereupon own such
Receivable, and all such security and documents, free of any further obligations
to the Indenture Trustee, the Owner Trustee, the Noteholders or the
Certificateholders with respect thereto. If in any Proceeding it is held that
the Servicer may not enforce a Receivable on the ground that it is not a real
party in interest or a holder entitled to enforce the Receivable, the Indenture
Trustee or the Owner Trustee, as applicable, shall, at the Servicer's expense,
take such steps as the Servicer deems necessary to enforce the Receivable,
including bringing suit in the name of such Person or the names of the
Noteholders or the Certificateholders.
Section 4.06 Distributions.
(a) On or before each Determination Date, the Servicer shall
calculate the Total Available Amount, the Available Interest, the Available
Principal, if any, the Basic Servicing Fee, the Additional Servicing Fee, the
Aggregate Noteholders' Interest Distributable Amount (including the Aggregate
Class A Interest Distributable Amount, the Aggregate Class B Interest
Distributable Amount, the Aggregate Class C Interest Distributable Amount, and
the Aggregate Class D Interest Distributable Amount), the Noteholders' Regular
Principal Distributable Amount (related to the Amortization Period only), the
Aggregate Noteholders' Principal Distributable Amount (related to the
Amortization Period only), the Specified Reserve Account Balance, the net
amount, if any, payable by the Trust under any Interest Rate Swaps, the amount,
if any, of any payments due in respect of an Early Termination Date payable by
the Trust under any Interest Rate Swap, and all other amounts required to
determine the amounts, if any, to be deposited in or paid from each of the
Collection Account, the Note Distribution Account, the Reserve Account, the
Payment Ahead Servicing Account, if applicable, and during the Revolving Period,
the Accumulation Account, on or before the related Distribution Date (or, in the
case of payments due under any Interest Rate Swaps, if any, on the Business Day
preceding the Distribution Date).
(b) On or before each Determination Date related to the Revolving
Period, the Servicer shall calculate the Parity Reinvestment Amount, the Target
Reinvestment Amount, the Accumulation Amount immediately prior to the
Distribution Date, the Aggregate Additional Receivables Principal Balance and
the amount that will be deposited in the Accumulation Account for the purchase
of Additional Receivables on the related Distribution Date, and the amount that
will remain in the Accumulation Account after such purchase as a percentage of
the Initial Aggregate Receivables Principal Balance.
(c) Based in each case, on the information contained in the
Servicer's Accounting delivered on the related Determination Date pursuant to
Section 3.10 of the Pooling and Servicing Agreement:
13
(i) On or before each Distribution Date, the Indenture Trustee
shall cause collections made during the related Monthly Period which constitute
Payments Ahead to be transferred from the Collection Account to the Servicer, or
to the Payment Ahead Servicing Account, if required pursuant to Section 5.01(e).
(ii) On or before each Distribution Date (or, with respect to
funds necessary to make payments due, if any, under any Interest Rate Swaps for
the related Monthly Period, on the Business Day preceding the Distribution
Date), the Indenture Trustee shall transfer from the Payment Ahead Servicing
Account (or, if the Servicer is not required to make deposits to the Payment
Ahead Servicing Account on a daily basis pursuant to Section 5.01(e), the
Servicer shall deposit) to the Collection Account the aggregate Applied Payments
Ahead and, as applicable, Applied Payments Ahead necessary to make payments
under any Interest Rate Swaps pursuant to Section 4.06(d)(ii) and (e)(ii).
(iii) On or before each Distribution Date, the Indenture
Trustee shall transfer from the Collection Account to the Servicer, in
immediately available funds, reimbursement of Outstanding Monthly Advances
pursuant to Section 5.04, payment of Excess Simple Interest Collections, if any,
pursuant to Section 3.11(b) of the Pooling and Servicing Agreement, and payments
of Liquidation Expenses (and any unpaid Liquidation Expenses from prior periods)
with respect to Receivables which became Liquidating Receivables during the
related Monthly Period pursuant to Section 3.04 of the Pooling and Servicing
Agreement.
(iv) On or before each Distribution Date (or, with respect to
funds necessary to make payments due, if any, under any Interest Rate Swaps for
the related payment period thereunder, the amount, if any, of any payments due
in respect of any Early Termination Date payable by the Trust under any Interest
Rate Swap and during the Revolving 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 amount of cash or other
immediately available funds on deposit therein.
(v) On or before each Distribution Date related to the
Revolving Period and on the first Distribution Date during the Amortization
Period, the Indenture Trustee shall transfer all amounts in the Accumulation
Account to the Collection Account.
(d) Except as otherwise provided in Section 4.06(f), on each
Distribution Date during the Revolving Period (or in the case of payments to the
Swap Counterparty pursuant to clause (ii) below, if any, on the Business Day
preceding the Distribution Date) the Indenture Trustee (based on the information
contained in the Servicer's Accounting delivered on the related Determination
Date pursuant to Section 3.10 of the Pooling and Servicing Agreement) shall make
the following distributions from the Collection Account (after the withdrawals,
deposits and transfers specified in Section 4.06(c) have been made) in the
following order of priority:
(i) first, to the Servicer, to the extent of the Total
Available Amount, the Basic 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)
14
above), the net amount, if any, due under all Interest Rate Swaps (exclusive of
payments due in respect of an Early Termination Date of any Interest Rate
Swaps);
(iii) third, to the extent of the Total Available Amount (as
such amount has been reduced by the distributions described in clauses (i) and
(ii) above) (a) to the Note Distribution Account for the payment of interest on
the Class A Notes, the Aggregate Class A Interest Distributable Amount, and (b)
to the Swap Counterparty, the amount of any payments due to the Swap
Counterparty or to be received from the Swap Counterparty in connection with an
Early Termination Date of any Interest Rate Swaps related to the Class A-1b
Notes, allocated between the Note Distribution Account and the Swap Counterparty
in proportion to the amount of the Aggregate Class A Interest Distributable
Amount and the amount owing to the Swap Counterparty in connection with such
Early Termination Date;
(iv) fourth, to the extent of the Total Available Amount (as
such amount has been reduced by the distributions described in clauses (i)
through (iii) above), to the Note Distribution Account for the payment of
interest on the Class B Notes, the Aggregate Class B Interest Distributable
Amount;
(v) fifth, to the extent of the Total Available Amount (as
such amount has been reduced by the distributions described in clauses (i)
through (iv) above), to the Note Distribution Account for the payment of
interest on the Class C Notes, the Aggregate Class C Interest Distributable
Amount;
(vi) sixth, to the extent of the Total Available Amount (as
such amount has been reduced by the distributions described in clauses (i)
through (v) above), to the Note Distribution Account for the payment of interest
on the Class D Notes, the Aggregate Class D Interest Distributable Amount;
(vii) seventh, 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 (vi) above), for the reinvestment in Additional
Receivables pursuant to Section 2.01(b) of this Agreement, the Parity
Reinvestment Amount for such Distribution Date;
(viii) eighth, to the Reserve Account, to the extent of the
Total Available Amount (as such amount has been reduced by the distributions
described in clauses (i) through (vii) above), the amount required to bring the
amount on deposit therein up to the Specified Reserve Account Balance;
(ix) ninth, 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 (viii) above), for the reinvestment in
Additional Receivables pursuant to Section 2.01(b) of this Agreement, an amount
equal to the excess, if any, of the Target Reinvestment Amount for such
Distribution Date over the amount deposited into the Accumulation Account
pursuant to clause (vii) above;
(x) tenth, to the Servicer, to the extent of the Total
Available Amount (as such amount has been reduced by the distributions described
in clauses (i) through (ix) above), the Additional Servicing Fee; and
15
(xi) eleventh, to the Certificateholders (if the Certificate
Distribution Account has been established pursuant to Section 5.1 of the Trust
Agreement, then to such Certificate Distribution Account for distribution to the
Certificateholders), any portion of the Total Available Amount remaining after
the distributions described in clauses (i) through (x) above.
(e) Except as otherwise provided in Section 4.06(f), on each
Distribution Date during the Amortization Period (or in the case of payments to
the Swap Counterparty pursuant to clause (ii) below, if any, on the Business Day
preceding the Distribution Date) the Indenture Trustee (based on the information
contained in the Servicer's Accounting delivered on the related Determination
Date pursuant to Section 3.10 of the Pooling and Servicing Agreement) shall make
the following distributions from the Collection Account (after the withdrawals,
deposits and transfers specified in Section 4.06(c) have been made) in the
following order of priority:
(i) first, to the Servicer, to the extent of the Total
Available Amount, the Basic 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 all Interest
Rate Swaps (exclusive of payments due in respect of an Early Termination Date of
any Interest Rate Swaps);
(iii) third, to the extent of the Total Available Amount (as
such amount has been reduced by the distributions described in clauses (i) and
(ii) above) (a) to the Note Distribution Account for the payment of interest on
the Class A Notes, the Aggregate Class A Interest Distributable Amount, and (b)
to the Swap Counterparty, the amount of any payments due to the Swap
Counterparty or to be received from the Swap Counterparty in connection with an
Early Termination Date of any Interest Rate Swaps related to the Class A-1b
Notes, allocated between the Note Distribution Account and the Swap Counterparty
in proportion to the amount of the Aggregate Class A Interest Distributable
Amount and the amount owing to the Swap Counterparty in connection with such
Early Termination Date;
(iv) fourth, to the extent of the Total Available Amount (as
such amount has been reduced by the distributions described in clauses (i)
through (iii) above), to the Note Distribution Account for the payment of
principal on the Notes in the priority specified in the Indenture, the First
Priority Principal Distributable Amount;
(v) fifth, to the extent of the Total Available Amount (as
such amount has been reduced by the distributions described in clauses (i)
through (iv) above), to the Note Distribution Account for the payment of
interest on the Class B Notes, the Aggregate Class B Interest Distributable
Amount;
(vi) sixth, to the extent of the Total Available Amount (as
such amount has been reduced by the distributions described in clauses (i)
through (v) above), to the Note Distribution Account for the payment of
principal on the Notes in the priority specified in the Indenture, the Second
Priority Principal Distributable Amount;
16
(vii) seventh, to the extent of the Total Available Amount (as
such amount has been reduced by the distributions described in clauses (i)
through (vi) above), to the Note Distribution Account for the payment of
interest on the Class C Notes, the Aggregate Class C Interest Distributable
Amount;
(viii) eighth, to the extent of the Total Available Amount (as
such amount has been reduced by the distributions described in clauses (i)
through (vii) above), to the Note Distribution Account for the payment of
principal on the Notes in the priority specified in the Indenture, the Third
Priority Principal Distributable Amount;
(ix) ninth, to the extent of the Total Available Amount (as
such amount has been reduced by the distributions described in clauses (i)
through (viii) above), to the Note Distribution Account for the payment of
interest on the Class D Notes, the Aggregate Class D Interest Distributable
Amount;
(x) tenth, to the extent of the Total Available Amount (as
such amount has been reduced by the distributions described in clauses (i)
through (ix) above), to the Note Distribution Account for the payment of
principal on the Notes in the priority specified in the Indenture, the Fourth
Priority Principal Distributable Amount;
(xi) eleventh, to the Reserve Account, to the extent of the
Total Available Amount (as such amount has been reduced by the distributions
described in clauses (i) through (x) above), the amount required to bring the
amount on deposit therein up to the Specified Reserve Account Balance;
(xii) twelfth, to the Note Distribution Account for payment to
the Noteholders, to the extent of the Total Available Amount (as such amount has
been reduced by the distributions described in clauses (i) through (xi) above),
an amount equal to the Noteholders' Regular Principal Distributable Amount;
(xiii) thirteenth, to the Servicer, to the extent of the Total
Available Amount (as such amount has been reduced by the distributions described
in clauses (i) through (xii) above), the Additional Servicing Fee; and
(xiv) fourteenth, to the Certificateholders (if the
Certificate Distribution Account has been established pursuant to Section 5.1 of
the Trust Agreement, then to such Certificate Distribution Account for
distribution to the Certificateholders), any portion of the Total Available
Amount remaining after the distributions described in clauses (i) through (xiii)
above.
(f) Notwithstanding the foregoing, at any time that the Notes have
not been paid in full and the principal balance of the Notes has been declared
immediately due and payable following the occurrence of an Event of Default
under Sections 5.1(a), 5.1(b), 5.1(c), 5.1(e), or 5.1(f) of the Indenture, then
until such time as the Notes have been paid in full and the Indenture has been
discharged or the foregoing Events of Default have been cured or waived as
provided in Section 5.2(b) of the Indenture, the order in which payments to
Noteholders shall be made or on amounts deposited into the Note Distribution
Account shall be as specified in Section 2.7(c) of the Indenture.
17
Section 4.07 Reserve Account.
(a) There shall be established in the name of and maintained with
the Indenture Trustee for the benefit of the Noteholders an Eligible Deposit
Account known as the Capital Auto Receivables Asset Trust 2004-2 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 Initial Closing Date, the Seller shall deposit the Reserve
Account Initial Deposit in immediately available funds into the Reserve Account.
The Reserve Account shall constitute property of 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
Certificateholder; it being understood that no such distribution from the
Reserve Account shall be made to the Certificateholder unless the amount so on
deposit in the Reserve Account exceeds such Specified Reserve Account Balance.
(c) [Intentionally Omitted].
(d) Each of the Seller and Servicer agree to take or cause to be
taken such further actions, to execute, deliver and file or cause to be
authorized and executed, as applicable, delivered and filed such further
documents and instruments (including, without limitation, any UCC financing
statements or this Agreement) as may be determined to be necessary, in an
Opinion of Counsel to the Seller delivered to the Indenture Trustee, in order to
perfect the interests created by this Section 4.07 and otherwise fully to
effectuate the purposes, terms and conditions of this Section 4.07. The Seller
shall:
(i) promptly authorize and execute, as applicable, 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 (30) 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 or any change in their respective
jurisdictions of organization, (C) any merger or consolidation or other change
in their respective identities or corporate structures and (D) any other change
or occurrence that would make any financing statement or amendment thereto
seriously misleading within the meaning of the UCC; and shall promptly notify
the Indenture Trustee of any such filings.
(e) If the Servicer pursuant to Section 5.04 determines on any
Determination Date that it is required to make a Monthly Advance and does not do
so from its own funds, the Servicer shall instruct the Indenture Trustee to
withdraw funds from the Reserve Account and deposit them in the Collection
Account to cover any shortfall. Such payment shall be deemed to have been made
by the Servicer pursuant to Section 5.04 for purposes of making distributions
18
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 (2) Business Days replace any funds in the Reserve Account so used.
The Servicer shall not be entitled to reimbursement for any such deemed Monthly
Advances unless and until the Servicer shall have replaced such funds in the
Reserve Account.
Section 4.08 Net Deposits. At any time that (i) GMAC shall be the
Servicer, (ii) the Servicer shall be permitted by Section 5.02 to remit
collections on a basis other than a daily basis, and (iii) the Servicer shall be
permitted by Section 5.01(e) to remit Payments Ahead on a basis other than on a
daily basis, the Servicer, the Seller, the Indenture Trustee and the Owner
Trustee may make any remittances pursuant to this Article IV net of amounts to
be distributed by the applicable recipient to such remitting party. Nonetheless,
each such party shall account for all of the above described remittances and
distributions as if the amounts were deposited and/or transferred separately.
Section 4.09 Statements to Securityholders.
(a) On each Distribution Date, the Owner Trustee shall (except as
otherwise provided in the Trust Agreement) deliver to each Certificateholder,
and the Indenture Trustee shall include with each distribution to each
Noteholder, a statement (which statement shall also be provided to the Rating
Agencies) prepared by the Servicer based on information in the Servicer's
Accounting furnished pursuant to Section 3.10 of the Pooling and Servicing
Agreement. Each such statement to be delivered to Certificateholders and
Noteholders, respectively, shall set forth the following information concerning
the Certificates or the Notes, as appropriate, with respect to such Distribution
Date or the preceding Monthly Period:
(i) the amount of such distribution allocable to principal of
each class of the Notes;
(ii) the amount of the distribution, if any, allocable to
interest on or with respect to each class of securities;
(iii) the net amount, if any, of any payments due under all
Interest Rate Swaps (specifying, if applicable, any amounts owing as a result of
an Early Termination Date under the Notes);
(iv) the Aggregate Receivables Principal Balance as of the
close of business on the last day of such Monthly Period, the Aggregate
Receivables Principal Balance as of the close of business on the last day of the
second monthly period preceding such Distribution Date (or, for the first
Distribution Date, the Initial Aggregate Receivables Principal Balance) and the
Principal Distributable Amount for such Distribution Date;
(v) the Note Principal Balance for each class of Notes and the
Aggregate Note Principal Balance, and the Note Pool Factor for each class of
Notes, each as of such Distribution Date after giving effect to all payments
described under clause (i) above and to all reinvestments described under clause
(xiii) below;
19
(vi) the amount of the Class A Notes Interest Carryover
Shortfall, the Class B Notes Interest Carryover Shortfall, the Class C Notes
Interest Carryover Shortfall, and the Class D Notes Interest Carryover
Shortfall, if any, and the change in each of such amounts from the preceding
Distribution Date;
(vii) the aggregate amount in the Payment Ahead Servicing
Account or on deposit with the Servicer as Payments Ahead and the change in such
amount from the previous Distribution Date;
(viii) the amount of Outstanding Monthly Advances on such
Distribution Date;
(ix) the amount of the Basic Servicing Fee and the Additional
Servicing Fee paid to the Servicer with respect to the related Monthly Period;
(x) the amount, if any, distributed to Noteholders from
amounts on deposit in the Reserve Account;
(xi) the balance of the Reserve Account on such Distribution
Date (after giving effect to changes therein on such Distribution Date);
(xii) LIBOR for such Distribution Date and the interest rate
on the Floating Rate Notes;
(xiii) the Aggregate Additional Receivables Principal Balance
for such Distribution Date (related to the Revolving Period only);
(xiv) the balance of the Accumulation Account after giving
effect to payments to and distributions from such account on such Distribution
Date (related to the Revolving Period only); and
(xv) whether the Revolving Period has terminated early as a
result of the occurrence of an Early Amortization Event (related to the
Revolving Period only).
Each amount set forth pursuant to clauses (i), (ii), (iv), (vii), and (viii)
above shall be expressed as a dollar amount per $1,000 of initial principal
amount of the Notes.
(b) Within the prescribed period of time for tax reporting purposes
after the end of each calendar year during the term of this Agreement, the
Indenture Trustee and the Owner Trustee shall mail, to each Person who at any
time during such calendar year shall have been a holder of Notes or
Certificates, respectively, and received any payments thereon, a statement
containing such information as may be required by the Code and applicable
Treasury Regulations to enable such securityholder to prepare its federal income
tax returns.
ARTICLE V
CERTIFICATEHOLDER AND NOTEHOLDER STATEMENTS AND ACCOUNTS;
COLLECTIONS, DEPOSITS AND INVESTMENTS; ADVANCES
20
Section 5.01 Establishment of Accounts.
(a) (i) The Servicer, for the benefit of the Financial Parties,
shall establish and maintain in the name of the Indenture Trustee an Eligible
Deposit Account known as the Capital Auto Receivables Asset Trust 2004-2
Collection Account (the "Collection Account"), bearing an additional designation
clearly indicating that the funds deposited therein are held for the benefit of
the Financial Parties.
(ii) The Servicer, for the benefit of the Noteholders, shall
establish and maintain in the name of the Indenture Trustee an Eligible Deposit
Account known as the Capital Auto Receivables Asset Trust 2004-2 Note
Distribution Account (the "Note Distribution Account"), bearing an additional
designation clearly indicating that the funds deposited therein are held for the
benefit of the Noteholders.
(iii) [Intentionally Omitted].
(iv) The Servicer, for the benefit of the Obligors, shall
establish and maintain in the name of the Indenture Trustee an account known as
the Capital Auto Receivables Asset Trust 2004-2 Payment Ahead Servicing Account
(the "Payment Ahead Servicing Account"). The Payment Ahead Servicing Account
shall not be property of the Issuer.
(v) The Servicer, for the benefit of the Noteholders and the
Certificateholders, shall establish and maintain in the name of the Indenture
Trustee an Eligible Deposit Account known as the Capital Auto Receivables Asset
Trust 2004-2 Accumulation Account (the "Accumulation Account"), bearing an
additional designation clearly indicating that the funds deposited therein are
held for the benefit of the Noteholders and the Certificateholders.
(b) (i) Each of the Designated Accounts and the Payment Ahead
Servicing Account shall be initially established with the Indenture Trustee. At
any time after the Initial Closing Date, the Servicer, upon thirty (30) days
written notice to the Indenture Trustee or other Account Holder, shall have the
right to instruct an Account Holder to transfer any or all of the Designated
Accounts or the Payment Ahead Servicing Account to another Eligible Institution
designated by the Servicer in such notice. No Designated Account nor the Payment
Ahead Servicing Account shall be maintained with an Account Holder if the
short-term debt obligations of such Account Holder cease to have the Required
Deposit Rating (except that any Designated Account, but not the Payment Ahead
Servicing Account, may be maintained with an Account Holder even if the
short-term debt obligations of such Account Holder do not have the Required
Deposit Rating, if such Account Holder maintains such Designated Account in its
corporate trust department). Should the short-term unsecured debt obligations of
an Account Holder no longer have the Required Deposit Rating, then the Servicer
shall, within ten (10) Business Days (or such longer period, not to exceed
thirty (30) calendar days, as to which each Rating Agency shall consent), with
the Indenture Trustee's assistance as necessary, cause each affected Designated
Account or Payment Ahead Servicing Account (A) to be moved to an Account Holder
that is an Eligible Institution or (B) with respect to the Designated Accounts
only, to be moved to the corporate trust department of the Account Holder. All
amounts held in Designated Accounts and the Payment Ahead Servicing Account
(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
21
by applicable laws, rules and regulations, be invested, at the written direction
of the Servicer, by such Account Holder 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 (i) prior to the
next Distribution Date or (ii) at such later date as shall be otherwise
permitted by the Rating Agencies. Investments in Eligible Investments shall be
made in the name of the Indenture Trustee or its nominee, and such investments
shall not be sold or disposed of prior to their maturity; provided, however,
that Notes held in the Reserve Account may be sold or disposed of prior to their
maturity so long as (x) the Servicer directs the Indenture Trustee to make such
sale or disposition, (y) the Indenture Trustee gives reasonable prior notice of
such disposition to the Administrator and (z) such Notes are sold at a price
equal to or greater than the unpaid principal balance thereof if, following such
sale, the amount on deposit in the Reserve Account would be less than the
Specified Reserve Account Balance. Investment Earnings on funds deposited in the
Designated Accounts and the Payment Ahead Servicing Account shall be payable to
the Servicer. Each Account Holder holding a Designated Account as provided in
this Section 5.01(b)(i), shall be a "Securities Intermediary." If a Securities
Intermediary shall be a Person other than the Indenture Trustee, the Servicer
shall obtain the express agreement of such Person to the obligations of the
Securities Intermediary set forth in this Section 5.01 and an Opinion of Counsel
that such Person can perform such obligations.
(ii) With respect to the Designated Account Property, the
Account Holder agrees, by its acceptance hereof, that:
(A) Any Designated Account Property that is held
in deposit accounts shall be held solely in Eligible Deposit Accounts. The
Designated Accounts are accounts to which Financial Assets will be credited.
(B) All securities or other property underlying
any Financial Assets credited to the Designated Accounts shall be registered in
the name of the Securities Intermediary, indorsed to the Securities Intermediary
or in blank or credited to another securities account maintained in the name of
the Securities Intermediary and in no case will any Financial Asset credited to
any of the Designated Accounts be registered in the name of the Issuer, the
Servicer or the Seller, payable to the order of the Issuer, the Servicer or the
Seller or specially indorsed to the Issuer, the Servicer or the Seller except to
the extent the foregoing have been specially indorsed to the Securities
Intermediary or in blank.
(C) All property delivered to the Securities
Intermediary pursuant to this Agreement will be credited upon receipt of such
property to the appropriate Designated Account.
(D) Each item of property (whether investments,
investment property, Financial Asset, security, instrument or cash) credited to
a Designated Account shall be treated as a "financial asset" within the meaning
of Section 8-102(a)(9) of the New York UCC.
(E) If at any time the Securities Intermediary
shall receive any order from the Indenture Trustee directing transfer or
redemption of any Financial Asset
22
relating to the Designated Accounts, the Securities Intermediary shall comply
with such order without further consent by the Trust, the Servicer, the Seller
or any other Person.
(F) The Designated Accounts shall be governed by
the laws of the State of New York, regardless of any provision in any other
agreement. For purposes of the UCC, New York shall be deemed to be the
Securities Intermediary's jurisdiction and the Designated Accounts (as well as
the Security Entitlements related thereto) shall be governed by the laws of the
State of New York.
(G) The Securities Intermediary has not entered
into, and until the termination of this Agreement will not enter into, any
agreement with any other Person relating to the Designated Accounts and/or any
Financial Assets or other property credited thereto pursuant to which it has
agreed to comply with entitlement orders (as defined in Section 8-102(a)(8) of
the New York UCC) of such other Person and the Securities Intermediary has not
entered into, and until the termination of this Agreement will not enter into,
any agreement with the Issuer, the Seller, the Servicer, the Account Holder or
the Indenture Trustee purporting to limit or condition the obligation of the
Securities Intermediary to comply with entitlement orders as set forth in
Section 5.01(b)(ii)(E) hereof.
(H) Except for the claims and interest of the
Indenture Trustee in the Designated Accounts, the Securities Intermediary has no
actual knowledge of claims to, or interests in, the Designated Accounts or in
any Financial Asset credited thereto. If any other Person asserts any Lien,
encumbrance or adverse claim (including any writ, garnishment, judgment, warrant
of attachment, execution or similar process) against the Designated Accounts or
in any Financial Asset carried therein, the Securities Intermediary will
promptly notify the Indenture Trustee, the Servicer and the Issuer thereof.
(I) The Securities Intermediary will promptly send
copies of all statements, confirmations and other correspondence concerning the
Designated Accounts and/or any Designated Account Property simultaneously to
each of the Servicer and the Indenture Trustee, at the addresses set forth in
Appendix B to this Agreement.
(J) The Account Holder shall maintain each item of
Designated Account Property in the particular Designated Account to which such
item originated and shall not commingle items from different Designated
Accounts.
(iii) The Servicer shall have the power, revocable by the
Indenture Trustee (or by the Owner Trustee with the consent of the Indenture
Trustee) to instruct the Indenture Trustee to make withdrawals and payments from
the Designated Accounts for the purpose of permitting the Servicer or the Owner
Trustee to carry out its respective duties hereunder or permitting the Indenture
Trustee to carry out its duties under the Indenture.
(iv) The Indenture Trustee shall possess all right, title and
interest in and to all funds on deposit from time to time in the Designated
Accounts and in all proceeds thereof (except Investment Earnings). Except as
otherwise provided herein or in the Indenture, the Designated Accounts shall be
under the exclusive dominion and control of the Indenture
23
Trustee for the benefit of the Securityholders and the Indenture Trustee shall
have sole signature power and authority with respect thereto.
(v) The Servicer shall not direct the Account Holder 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 Account Holder to make any such investment
or sale, if requested by the Indenture Trustee, the Servicer shall deliver to
the Indenture Trustee an Opinion of Counsel, acceptable to the Indenture
Trustee, to such effect.
(c) [Intentionally Omitted].
(d) The Indenture Trustee, the Owner Trustee, the Securities
Intermediary, the Account Holder and each other Eligible Deposit Institution
with whom a Designated Account is maintained waives any right of set-off,
counterclaim, security interest or bankers' lien to which it might otherwise be
entitled.
(e) At any time that each Monthly Remittance Condition is satisfied,
then (x) Payments Ahead need not be remitted to and deposited in the Payment
Ahead Servicing Account but instead may be remitted to and held by the Servicer
and (y) the Servicer shall not be required to segregate or otherwise hold
separate any Payments Ahead, but the Servicer shall be required to remit Applied
Payments Ahead to the Collection Account in accordance with Section 4.06(c)(ii).
The Servicer shall promptly notify the Indenture Trustee if any Monthly
Remittance Condition ceases to be satisfied such that the Payments Ahead will
not be remitted in accordance with the prior sentence. Commencing with the first
day of the first Monthly Period that begins at least two (2) Business Days after
the day on which any Monthly Remittance Condition ceases to be satisfied, the
Servicer shall deposit in the Payment Ahead Servicing Account the amount of any
Payments Ahead then held by it, and thereafter, for so long as a Monthly
Remittance Condition continues to be unsatisfied, the Servicer shall deposit any
additional Payments Ahead in the Payments Ahead Servicing Account within two (2)
Business Days after receipt thereof. Notwithstanding the foregoing, if a Monthly
Remittance Condition is unsatisfied the Servicer may utilize, with respect to
the Payments Ahead, an alternative remittance schedule (which may include a
remittance schedule utilized by the Servicer at a time when the Monthly
Remittance Conditions were satisfied), if the Servicer provides to the Indenture
Trustee written confirmation from the Rating Agencies that such alternative
remittance schedule will not result in the downgrading or withdrawal by the
Rating Agencies of the ratings then assigned to either the Notes or the
Certificates. Neither the Indenture Trustee nor the Owner Trustee shall be
deemed to have knowledge of any Servicer Default unless such trustee has
received notice of such event or circumstance from the other trustee, the Seller
or the Servicer in an officer's certificate or from Certificateholders whose
Certificates evidence not less than 25% of the Voting Interests as of the close
of the preceding Distribution Date or from Noteholders whose Notes evidence not
less than 25% of the Outstanding Amount of the Notes as of the close of the
preceding Distribution Date or unless a Responsible Officer in the Corporate
Trust Office of the Indenture Trustee with knowledge hereof and familiarity
herewith has actual knowledge of such event or circumstance.
24
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 (2) Business Days after the day on which any Monthly Remittance
Condition ceases to be satisfied, the Servicer shall remit to the Collection
Account all payments by or on behalf of the Obligors (including Payments Ahead
in accordance with Section 5.01(e)) on the Receivables and all Liquidation
Proceeds within two (2) Business Days after receipt thereof. Notwithstanding the
foregoing, if a Monthly Remittance Condition is unsatisfied, the Servicer may
utilize an alternative remittance schedule (which may include a remittance
schedule utilized by the Servicer at a time when the Monthly Remittance
Conditions were satisfied), if the Servicer provides to the Indenture Trustee
written confirmation from the Rating Agencies that such alternative remittance
schedule will not result in the downgrading or withdrawal by the Rating Agencies
of the ratings then assigned to the Notes or the Certificates. At all times when
all Monthly Remittance Conditions are satisfied, the Servicer (i) shall not be
required to segregate or otherwise hold separate any Payments Ahead remitted to
the Servicer and (ii) shall remit collections received during a Monthly Period
to the Collection Account in immediately available funds on or before the
related Distribution Date (or in the case of amounts payable to the Swap
Counterparty pursuant to Section 4.06(d)(ii) and (e)(ii), if any, on or before
the Business Day preceding the Distribution Date).
Section 5.03 Investment Earnings and Supplemental Servicing Fees. The
Servicer shall be entitled to receive all Investment Earnings (with the
exception of Investment Earnings on funds in the Accumulation Account) and
Supplemental Servicing Fees when and as paid without any obligation to the Owner
Trustee, the Indenture Trustee or the Seller in respect thereof. The Servicer
will have no obligation to deposit any such amount in any account established
hereunder. To the extent that any such amount shall be held in any account held
by the Indenture Trustee or the Owner Trustee, or otherwise established
hereunder, such amount will be withdrawn therefrom and paid to the Servicer upon
presentation of a certificate signed by a Responsible Officer of the Servicer
setting forth, in reasonable detail, the amount of such Investment Earnings or
Supplemental Servicing Fees.
Section 5.04 Monthly Advances.
(a) Subject to the following sentence, as of the last day of each
Monthly Period, with respect to each Scheduled Interest Receivable (other than
an Administrative Receivable or a Warranty Receivable), if there is a shortfall
in the Scheduled Payment remaining after application of the Deferred Prepayment
pursuant to the last sentence of Section 3.11(a) of the Pooling and Servicing
Agreement, the Servicer shall advance an amount equal to such shortfall (such
amount, a "Scheduled Interest Advance"). The Servicer shall be obligated to make
a Scheduled Interest Advance in respect of a Scheduled Interest Receivable only
to the extent that the Servicer, in its sole discretion, shall determine that
such advance shall be recoverable from subsequent collections or recoveries on
any Receivable. The Servicer shall be reimbursed for Outstanding Scheduled
Interest Advances with respect to a Receivable from the following sources with
respect to such Receivable, in each case as set forth in the Pooling and
Servicing Agreement: (i) subsequent payments by or on behalf of the Obligor,
(ii) collections of Liquidation Proceeds, and (iii) the Warranty Payment. At
such time as the Servicer shall determine that any Outstanding Scheduled
Interest Advances with respect to any Scheduled
25
Interest Receivable shall not be recoverable from payments with respect to such
Receivable, the Servicer shall be reimbursed from any collections made on other
Receivables held by the Issuer.
(b) As of the last day of each Monthly Period, the Servicer shall
advance an amount equal to the excess, if any, of (i) the amount of interest
that would be due during such Monthly Period on all Simple Interest Receivables
held by the Issuer (assuming that the payment on each such Receivable was
received on its respective due date) over (ii) all payments received during such
Monthly Period on all Simple Interest Receivables held by the Issuer to the
extent allocable to interest (such excess, a "Simple Interest Advance"). In
addition, Liquidation Proceeds with respect to a Simple Interest Receivable
allocable to accrued and unpaid interest thereon (but not including interest for
the then current Monthly Period) shall be paid to the Servicer but only to the
extent of any Outstanding Simple Interest Advances. The Servicer shall not make
any advance with respect to principal of any Simple Interest Receivable. Excess
Simple Interest Collections shall be paid to the Servicer as provided in Section
3.11(b) of the Pooling and Servicing Agreement.
Section 5.05 Additional Deposits. The Servicer shall deposit in the
Collection Account the aggregate Monthly Advances pursuant to Sections 5.04(a)
and (b) and the aggregate amounts to be paid to the Issuer pursuant to Section
3.03 of the Pooling and Servicing Agreement. The Servicer and the Seller shall
deposit in the Collection Account the aggregate Administrative Purchase Payments
and Warranty Payments with respect to Administrative Receivables and Warranty
Receivables, respectively. All such deposits with respect to a Monthly Period
shall be made in immediately available funds on or before the Distribution Date
related to such Monthly Period (or, to the extent such funds are necessary to
make payments due, if any, under any Interest Rate Swaps for the related Monthly
Period, on or before the Business Day preceding the Distribution Date).
Section 5.06 Seller Repurchase Option.
(a) The Seller shall have an option to purchase a portion of the
Receivables, which may be exercised only one time for an amount of Receivables
having an aggregate Receivable Principal Balance no greater than 5.00% of the
Initial Aggregate Receivables Principal Balance. The purchase price shall equal
the Receivable Principal Balance of the repurchased Receivables, plus accrued
and unpaid interest on the repurchased Receivables through the end of the
calendar month in which the repurchase occurs. 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 purchase date (such notice to be
furnished not later than twenty-five (25) days prior to the Distribution Date
related to such purchase date) and (ii) deposit in the Collection Account when
required pursuant to clause (b) below an amount equal to the aggregate of the
Receivable Principal Balance, plus accrued and unpaid interest, of each
Receivable purchased by the Seller on the related Distribution Date.
(b) The Servicer shall make such deposit set forth in clause (a)(ii)
above in immediately available funds on the Distribution Date related to such
purchase date, except that if any Monthly Remittance Condition is not satisfied
on such purchase date, such deposit shall instead be made on such purchase date.
26
ARTICLE VI
LIABILITIES OF SERVICER AND OTHERS
Section 6.01 Liability of Servicer; Indemnities.
(a) The Servicer shall be liable in accordance with this Agreement
and the Second Step Receivables Assignments only to the extent of the
obligations in this Agreement and the Pooling and Servicing Agreement
specifically undertaken by the Servicer. Such obligations shall include the
following:
(i) The Servicer shall defend, indemnify and hold harmless the
Indenture Trustee, the Owner Trustee, the Issuer, the Noteholders and the
Certificateholders from and against any and all costs, expenses, losses,
damages, claims and liabilities arising out of or resulting from the use,
ownership or operation by the Servicer or any affiliate thereof of any Financed
Vehicle;
(ii) The Servicer shall indemnify, defend and hold harmless
the Indenture Trustee, the Owner Trustee and the Issuer from and against any
taxes that may at any time be asserted against any such Person with respect to
the transactions contemplated in this Agreement, including, without limitation,
any sales, gross receipts, general corporation, tangible personal property,
privilege or license taxes (but not including any taxes asserted with respect
to, and as of the date of, the sale of the Receivables to the Issuer or the
issuance and original sale of the Notes and the Certificates, or asserted with
respect to ownership of the Receivables, or federal or other income taxes
arising out of distributions on the Notes or the Certificates, or any fees or
other compensation payable to any such Person) and costs and expenses in
defending against the same;
(iii) The Servicer shall indemnify, defend and hold harmless
the Indenture Trustee, the Owner Trustee, the Issuer, the Noteholders and the
Certificateholders from and against any and all costs, expenses, losses, claims,
damages, and liabilities to the extent that such cost, expense, loss, claim,
damage, or liability arose out of, or was imposed upon the Indenture Trustee,
the Owner Trustee, the Issuer, the Noteholders or the Certificateholders through
the negligence, willful misfeasance or bad faith of the Servicer in the
performance of its duties under this Agreement, the Pooling and Servicing
Agreement, the Indenture or the Trust Agreement or any other Basic Document or
by reason of reckless disregard of its obligations and duties under this
Agreement, the Pooling and Servicing Agreement, the Indenture, the Trust
Agreement or any other Basic Document; and
(iv) The Servicer shall indemnify, defend and hold harmless
the Indenture Trustee and the Owner Trustee, and their respective agents and
servants, from and against all costs, expenses, losses, claims, damages and
liabilities arising out of or incurred in connection with (x) in the case of the
Owner Trustee, the Indenture Trustee's performance of its duties under the
Indenture or any other Basic Document, (y) in the case of the Indenture Trustee,
the Owner Trustee's performance of its duties under the Trust Agreement or (z)
the acceptance, administration or performance by, or action or inaction of, the
Indenture Trustee or the Owner Trustee, as applicable, of the trusts and duties
contained in this Agreement, the Basic Documents, the Indenture (in the case of
the Indenture Trustee), including the administration of
27
the Trust Estate, and the Trust Agreement (in case of the Owner Trustee),
including the administration of the Owner Trust Estate, except in each case to
the extent that such cost, expense, loss, claim, damage or liability: (A) is due
to the willful misfeasance, bad faith or negligence (except for errors in
judgment) of the Person indemnified, (B) to the extent otherwise payable to the
Indenture Trustee, arises from the Indenture Trustee's breach of any of its
representations or warranties in Section 6.13 of the Indenture, (C) to the
extent otherwise payable to the Owner Trustee, arises from the Owner Trustee's
breach of any of its representations or warranties set forth in Section 6.6 of
the Trust Agreement, or (D) shall arise out of or be incurred in connection with
the performance by the Indenture Trustee of the duties of successor Servicer
hereunder.
(b) Indemnification under this Section 6.01 shall include, without
limitation, reasonable fees and expenses of external counsel and expenses of
litigation. If the Servicer has made any indemnity payments pursuant to this
Section 6.01 and the recipient thereafter collects any of such amounts from
others, the recipient shall promptly repay such amounts collected to the
Servicer, without interest.
Section 6.02 Merger or Consolidation of, or Assumption of the Obligations
of the Servicer. Any corporation or other entity (a) into which the Servicer may
be merged or consolidated, (b) resulting from any merger, conversion or
consolidation to which the Servicer shall be a party, (c) succeeding to the
business of the Servicer, or (d) more than 50% of the voting stock (or, if not a
corporation, other voting interests) of which is owned directly or indirectly by
General Motors and which is otherwise servicing the Seller's receivables, which
corporation in any of the foregoing cases executes an agreement of assumption to
perform every obligation of the Servicer under this Agreement and the Pooling
and Servicing Agreement, shall be the successor to the Servicer under this
Agreement and the Pooling and Servicing Agreement without the execution or
filing of any paper or any further act on the part of any of the parties to this
Agreement, anything in this Agreement or in the Pooling and Servicing Agreement
to the contrary notwithstanding. The Servicer shall provide notice of any
merger, consolidation or succession pursuant to this Section 6.02 to the Rating
Agencies.
Section 6.03 Limitation on Liability of Servicer and Others.
(a) Neither the Servicer nor any of the directors or officers or
employees or agents of the Servicer shall be under any liability to the Issuer,
the Noteholders or the Certificateholders, except as specifically provided in
this Agreement and in the Pooling and Servicing Agreement, for any action taken
or for refraining from the taking of any action pursuant to this Agreement, the
Pooling and Servicing Agreement, the Indenture or the Trust Agreement or for
errors in judgment; provided, however, that this provision shall not protect 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, the Trust Agreement or any other Basic Document. 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.
28
(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 any
obligation of the Servicer to the Indenture Trustee or the Owner Trustee, as
applicable, pursuant to Section 6.01(a)(iv)(x) or (y)) incurred by reason of
such trustee's willful misfeasance, bad faith or negligence (except errors in
judgment) in the performance of such trustee's duties under this Agreement, the
Indenture or the Trust Agreement or by reason of reckless disregard of its
obligations and duties under this Agreement. In no event, however, shall the
Indenture Trustee or the Owner Trustee be liable to the Servicer for any damages
in the nature of special, indirect or consequential damages, however styled,
including lost profits.
(c) Except as provided in this Agreement or in the Pooling and
Servicing Agreement, the Servicer shall not be under any obligation to appear
in, prosecute or defend any legal action that is not incidental to its duties to
service the Receivables in accordance with this Agreement and the Pooling and
Servicing Agreement and that in its opinion may involve it in any expense or
liability; provided, however, that the Servicer may undertake any reasonable
action that it may deem necessary or desirable in respect of this Agreement or
the Pooling and Servicing Agreement and the rights and duties of the parties to
this Agreement or the Pooling and Servicing Agreement and the interests of the
Noteholders and the Certificateholders under this Agreement and the Pooling and
Servicing Agreement, the interests of the Noteholders under the Indenture and
the interests of the Certificateholders under the Trust Agreement. In such
event, the legal expenses and costs for such action and any liability resulting
therefrom shall be expenses, costs and liabilities of the Trust and the Servicer
shall be entitled to be reimbursed therefor.
(d) The Applicable Trustee shall distribute out of the Collection
Account on a Distribution Date any amounts permitted for reimbursement pursuant
to Section 6.03(c) not therefor reimbursed; provided, however, that the
Applicable Trustee shall not distribute such amounts if the amount on deposit in
the Reserve Account (after giving effect to all deposits and withdrawals
pursuant to Sections 4.06(b) and (c) and Section 4.07(e), on such Distribution
Date) is greater than zero but less than the Specified Reserve Account Balance
for such Distribution Date.
Section 6.04 Delegation of Duties. So long as GMAC acts as Servicer, the
Servicer may, at any time without notice or consent, delegate any duties under
this Agreement or under the Pooling and Servicing Agreement to any corporation
or other Person more than 50% of the voting stock (or, if not a corporation,
other voting interests) of which is owned, directly or indirectly, by General
Motors. The Servicer may at any time perform specific duties as Servicer through
sub-contractors who are in the business of servicing automotive receivables;
provided, however, that no such delegation or sub-contracting 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
29
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 any required payment or to direct
the Indenture Trustee to make any required distributions therefrom, which
failure continues unremedied for a period of five (5) 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 ninety (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 Controlling Class as of the close of the preceding Distribution Date or
by Certificateholders whose Certificates evidence not less than 25% of the
Voting Interests as of the close of the preceding Distribution Date;
(c) the entry of a decree or order by a court or agency or
supervisory authority having jurisdiction in the premises for the appointment of
a conservator, receiver or liquidator for the Seller or the Servicer, in any
insolvency, readjustment of debt, marshalling of assets and liabilities or
similar proceedings, or for the winding up or liquidation of their respective
affairs, and the continuance of any such decree or order unstayed and in effect
for a period of ninety (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.
Notwithstanding the foregoing, there shall be no Servicer Default
where a Servicer Default would otherwise exist under clause (a) above for a
period of ten (10) Business Days or under clause (b) for a period of sixty (60)
days if the delay or failure giving rise to the
30
Servicer Default was caused by an act of God or other similar occurrence. Upon
the occurrence of any of these events, the Servicer shall not be relieved from
using its best efforts to perform its obligations in a timely manner in
accordance with the terms of the Pooling and Servicing Agreement and this
Agreement, and the Servicer shall provide the Indenture Trustee, the Owner
Trustee, the Seller and the Securityholders prompt notice of the failure or
delay by it, together with a description of its efforts to so perform 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
Controlling Class as of the close of the preceding Distribution Date (or, if the
Notes have been paid in full and the Indenture has been discharged in accordance
with its terms, by the Owner Trustee or Certificateholders whose Certificates
evidence not less than a majority of the Voting Interests as of the close of the
preceding Distribution Date) by notice then given in writing to the Servicer and
the Owner Trustee (and to the Indenture Trustee if given by the Noteholders or
the Certificateholders) may terminate all of the rights and obligations of the
Servicer under this Agreement and the Pooling and Servicing Agreement. On or
after the receipt by the Servicer of such written notice, all authority and
power of the Servicer under this Agreement and the Pooling and Servicing
Agreement, whether with respect to the Notes, the Certificates or the
Receivables or otherwise, shall pass to and be vested in the Indenture Trustee
pursuant to and under this Section 7.02. The Indenture Trustee is hereby
authorized and empowered to execute and deliver, on behalf of the Servicer, as
attorney-in-fact or otherwise, any and all documents and other instruments, and
to do or accomplish all other acts or things necessary or appropriate to effect
the purposes of such notice of termination, whether to complete the transfer and
endorsement of the Receivables and related documents, or otherwise. The Servicer
agrees to cooperate with the Indenture Trustee and the Owner Trustee in
effecting the termination of the responsibilities and rights of the Servicer
under this Agreement and the Pooling and Servicing Agreement, including, without
limitation, the transfer to the Indenture Trustee or the Owner Trustee for
administration by it of all cash amounts that shall at the time be held by the
Servicer for deposit, or that shall have been deposited by the Servicer in the
Collection Account, the Note Distribution Account or the Payment Ahead Servicing
Account or thereafter received with respect to the Receivables and all Payments
Ahead that shall at that time be held by the Servicer. In addition to any other
amounts that are then payable to the Servicer under this Agreement, the Servicer
shall be entitled to receive from the successor Servicer reimbursements for any
Outstanding Monthly Advances made during the period prior to the notice pursuant
to this Section 7.02 which terminates the obligation and rights of the Servicer
under this Agreement.
Section 7.03 Indenture Trustee to Act; Appointment of Successor. On and
after the time the Servicer receives a notice of termination pursuant to Section
7.02, the Indenture Trustee shall be the successor in all respects to the
Servicer in its capacity as servicer under this Agreement and the Pooling and
Servicing Agreement and the transactions set forth or provided for in this
Agreement and the Pooling and Servicing Agreement, and shall be subject to all
the responsibilities, restrictions, duties and liabilities relating thereto
placed on the Servicer by the terms and provisions of this Agreement and the
Pooling and Servicing Agreement. As compensation therefor, the Indenture Trustee
shall be entitled to such compensation (whether payable out of the Collection
Account or otherwise) as the Servicer would have been entitled to under this
Agreement if no such notice of termination had been given including the Basic
31
Servicing Fee, the Additional Servicing Fee, Investment Earnings and
Supplemental Servicing Fees. Notwithstanding the above, the Indenture Trustee
may, if it shall be unwilling so to act, or shall, if it is legally unable so to
act, appoint, or petition a court of competent jurisdiction to appoint, a
successor (i) having a net worth of not less than $100,000,000, (ii) a long-term
unsecured debt rating from Moody's Investors Service, Inc. of at least Baa3
(unless such requirement is expressly waived by Moody's Investors Service, Inc.)
and (iii) whose regular business includes the servicing of automotive
receivables, as the successor to the Servicer under this Agreement and the
Pooling and Servicing Agreement in the assumption of all or any part of the
responsibilities, duties or liabilities of the Servicer under this Agreement and
the Pooling and Servicing Agreement. In connection with such appointment and
assumption, the Indenture Trustee may make such arrangements for the
compensation of such successor out of payments on Receivables as it and such
successor shall agree; provided, however, that no such compensation shall be in
excess of that permitted the Servicer under this Agreement and the Pooling and
Servicing Agreement. The Indenture Trustee and 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 Controlling Class as of
the close of the preceding Distribution Date (or, if all of the Notes have been
paid in full and the Indenture has been discharged in accordance with its terms,
Certificateholders whose Certificates evidence not less than a majority of the
Voting Interests as of the close of the preceding Distribution Date) may, on
behalf of all Noteholders and Certificateholders, waive any default by the
Servicer in the performance of its obligations hereunder and its consequences,
except a default in making any required deposits to or payments from any of the
accounts in accordance with this Agreement. Upon any such waiver of a past
default, such default shall cease to exist, and any Servicer Default arising
therefrom shall be deemed to have been remedied for every purpose of this
Agreement and the Pooling and Servicing Agreement. No such waiver shall extend
to any subsequent or other default or impair any right consequent thereon.
Section 7.06 Repayment of Advances. If the identity of the Servicer shall
change, the predecessor Servicer shall be entitled to receive, to the extent of
available funds, reimbursement for Outstanding Monthly Advances pursuant to
Section 5.04 in the manner specified in Section 4.06 with respect to all Monthly
Advances made by such predecessor Servicer.
32
ARTICLE VIII
TERMINATION
Section 8.01 Optional Purchase of All Receivables; Insolvency of Seller;
Termination of Trust.
(a) (i) The Servicer shall have the option to purchase the assets of
the Trust (other than the Designated Accounts) as of any date (the "Optional
Purchase Date") which is the last day of any Monthly Period as of which the
Aggregate Receivables Principal Balance is the Optional Purchase Percentage or
less of the Initial Aggregate Receivables Principal Balance. To exercise such
option, the Servicer shall (A) 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 twenty-five (25) days prior to
the Distribution Date related to such Optional Purchase Date) and (B) deposit in
the Collection Account when required pursuant to (ii) below an amount equal to
the aggregate Administrative Purchase Payments for the Receivables (including
Liquidating Receivables), plus the appraised value of any other property held by
the Trust (less the Liquidation Expenses to be incurred in connection with the
recovery thereof), provided, that such amount (when added to any funds then on
deposit in the Designated Accounts and to amounts payable by the Swap
Counterparty on the Business Day preceding the related Distribution Date) must
be at least equal to the sum of (1) the Basic Servicing Fee for the related
Monthly Period, (2) the aggregate Redemption Price of all then outstanding
Notes, and (3) any amounts payable to the Swap Counterparty under any Interest
Rate Swap, on the Business Day preceding the related Distribution Date. Such
appraised value shall be determined by an appraiser mutually satisfactory to the
Seller, the Servicer, the Owner Trustee and the Indenture Trustee.
(ii) The Servicer shall make such deposit set forth in (i)(B)
above 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 rights of the Trust under the Interest Rate Swaps).
(b) Upon any sale or other disposition of the assets of the Trust
pursuant to Article V of the Indenture (an "Event of Default Sale"), the
Servicer shall instruct the Applicable Trustee to deposit into the Collection
Account from the proceeds of such disposition the amount specified in clause
SECOND of Section 5.4(b) of the Indenture (the "Event of Default Proceeds"). On
the Distribution Date on which the Event of Default Proceeds are deposited in
the Collection Account (or, if such proceeds are not so deposited on a
Distribution Date, on the Distribution Date immediately following such deposit),
the Servicer shall instruct the Applicable Trustee to make the following
deposits (after the application on such Distribution Date of the Available
Principal and the Available Interest and funds on deposit in the Reserve Account
pursuant to Sections 4.06 and 4.07) from the Event of Default Proceeds and any
funds remaining on deposit in the Reserve Account (including the proceeds of any
sale of investments therein as described in the following sentence) in the
following priority:
33
(i) first, to the Swap Counterparty, the net amount, if any,
then due to the Swap Counterparty under any Interest Rate Swaps (exclusive of
payments due to the Swap Counterparty in respect of an Early Termination Date
under any Interest Rate Swaps);
(ii) second, to (a) the Note Distribution Account, for payment
of interest pro rata on the Class A Notes, the Aggregate Class A 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
any Interest Rate Swaps related to the Notes, allocated between the Note
Distribution Account and the Swap Counterparty in proportion to the amounts
owing in respect of the Aggregate Noteholders' Interest Distributable Amount and
the amounts owing to the Swap Counterparty in connection with such Early
Termination Date;
(iii) third, to the Note Distribution Account, an amount equal
to the Note Principal Balance of the Class A Notes (after giving effect to the
reduction in the 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 pro rata on the Class A Notes;
(iv) fourth, to the Note Distribution Account, an amount equal
to the Aggregate Class B Interest Distributable Amount for payment of interest
on the Class B Notes;
(v) fifth, to the Note Distribution Account, an amount equal
to the Note Principal Balance of the Class B Notes (after giving effect to the
reduction in the 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 on the Class B Notes;
(vi) sixth, to the Note Distribution Account, an amount equal
to the Aggregate Class C Interest Distributable Amount for payment of interest
on the Class C Notes;
(vii) seventh, to the Note Distribution Account, an amount
equal to the Note Principal Balance of the Class C Notes (after giving effect to
the reduction in the 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 on the Class C Notes;
(viii) eight, to the Note Distribution Account, an amount
equal to the Aggregate Class D Interest Distributable Amount for payment of
interest on the Class D Notes; and
(ix) ninth, to the Note Distribution Account, an amount equal
to the Note Principal Balance of the Class D Notes (after giving effect to the
reduction in the 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 on the Class D Notes.
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
34
shall result in the Indenture Trustee receiving the proceeds from such sale not
later than such Distribution Date and applied as set forth above. Any Event of
Default Proceeds remaining after all the deposits and other payments described
above have been paid in full shall be paid to the Seller.
(c) Notice of any termination of the Trust shall be given by the
Servicer to the Owner Trustee and the Indenture Trustee as soon as practicable
after the Servicer has received notice thereof.
(d) Following the satisfaction and discharge of the Indenture with
respect to the Notes, and the payment in full of the principal and interest on
the Notes, the Certificateholders shall succeed to the rights of the Noteholders
hereunder and the Owner Trustee shall succeed to the rights of, and assume the
obligations (other than those under Section 7.03 which shall remain obligations
of the Indenture Trustee) of, the Indenture Trustee pursuant to this Agreement
(subject to the continuing obligations of the Indenture Trustee set forth in
Section 4.4 of the Indenture).
(e) After indefeasible payment in full to the Indenture Trustee, the
Owner Trustee, the Swap Counterparty, the Noteholders, the Certificateholders
and the Servicer of all amounts required to be paid under this Agreement, the
Indenture, any Interest Rate Swaps and the Trust Agreement (including as
contemplated by this Section 8.01), (i) any amounts on deposit in the Reserve
Account, the Payment Ahead Servicing Account and the Collection Account (after
all other distributions required to be made from such accounts have been made
and provision for the payment of all liabilities of the Trust as required by
Section 3808 of the Statutory Trust Statute) shall be paid to the Seller and
(ii) any other assets remaining in the Trust shall be distributed to the Seller.
ARTICLE IX
MISCELLANEOUS PROVISIONS
Section 9.01 Amendment.
(a) This Agreement may be amended by the Seller, the Servicer and
the Owner Trustee with the consent of the Indenture Trustee, but without the
consent of any of the Financial Parties, (i) to cure any ambiguity, (ii) to
correct or supplement any provision in this Agreement that may be defective or
inconsistent with any other provision in this Agreement or any other Basic
Documents, (iii) to add or supplement any credit enhancement for the benefit of
the Noteholders of any class or the Certificateholders ( provided that if any
such addition shall affect any class of Noteholders or Certificateholders
differently than any other class of Noteholders or Certificateholders, then such
addition shall not, as evidenced by an Opinion of Counsel, adversely affect in
any material respect the interests of any class of Noteholders or the
Certificateholders), (iv) add to the covenants, restrictions or obligations of
the Seller, the Servicer, the Owner Trustee or the Indenture Trustee or (v) add,
change or eliminate any other provision of this Agreement in any manner that
shall not, as evidenced by an Opinion of Counsel, adversely affect in any
material respect the interests of the Financial Parties.
35
(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 Controlling Class as of the close of
the preceding Distribution Date, the consent of Certificateholders whose
Certificates evidence not less than a majority of the Voting Interests as of the
close of the preceding Distribution Date, (which consent, whether given pursuant
to this Section 9.01 or pursuant to any other provision of this Agreement, shall
be conclusive and binding on such Person and on all future holders of such Note
or Certificate and of any Note or Certificate issued upon the transfer thereof
or in exchange thereof or in lieu thereof whether or not notation of such
consent is made upon the Note or Certificate) for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
this Agreement, or of modifying in any manner the rights of the Noteholders or
the Certificateholders; provided, however, that no such amendment shall (i)
increase or reduce in any manner the amount of, or accelerate or delay the
timing of, collections of payments on Receivables or distributions that shall be
required to be made on any Note or Certificate, the Interest Rate for any class
of Notes or the Specified Reserve Account Balance, (ii) adversely affect the
rating of any Securities by any of the Rating Agencies without the consent of
two-thirds of the holders of each affected Security, the Outstanding Amount of
the affected class of Notes or the Voting Interests of the Certificates, as
appropriate, as of the close of the preceding Distribution Date or (iii) reduce
the aforesaid percentage required to consent to any such amendment, without the
consent of the holders of all Notes and Certificates then outstanding.
(c) Prior to the execution of any such amendment or consent, the
Indenture Trustee shall furnish written notification of the substance of such
amendment or consent to the Rating Agencies.
(d) Promptly after the execution of any such amendment or consent,
the Owner Trustee shall furnish written notification of the substance of such
amendment or consent to each Financial Party.
(e) It shall not be necessary for the consent of Noteholders or
Certificateholders pursuant to Section 9.01(b) to approve the particular form of
any proposed amendment or consent, but it shall be sufficient if such consent
shall approve the substance thereof. The manner of obtaining such consents (and
any other consents of Noteholders or Certificateholders provided for in this
Agreement) and of evidencing the authorization of the execution thereof by
Noteholders and Certificateholders shall be subject to such reasonable
requirements as the Indenture Trustee or the Owner Trustee may prescribe,
including the establishment of record dates pursuant to paragraph number 2 of
the Note Depository Agreement.
(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(j). 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.
36
(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 authorize and/or
execute, as applicable, and file such financing statements and cause to be
authorized and/or executed, as applicable, and filed such continuation and other
statements, all in such manner and in such places as may be required by law
fully to preserve, maintain and protect the interest of the Noteholders, the
Certificateholders, the Indenture Trustee and the Owner Trustee under this
Agreement and the Second Step Receivables Assignments in the Receivables and in
the proceeds thereof. The Seller or the Servicer or both shall deliver (or cause
to be delivered) to the Indenture Trustee and the Owner Trustee file-stamped
copies of, or filing receipts for, any document filed as provided above, as soon
as available following such filing.
(b) Neither the Seller nor the Servicer shall change its state of
organization or 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 the UCC, unless it shall have given the Indenture Trustee and the
Owner Trustee at least sixty (60) days prior written notice thereof.
(c) Each of the Seller and the Servicer shall give the Indenture
Trustee and the Owner Trustee at least sixty (60) days prior written notice of
any relocation of its principal executive office or change of its jurisdiction
of incorporation if, as a result of such relocation or change of jurisdiction,
the applicable provisions of the UCC would require the filing of any amendment
of any previously filed financing or continuation statement or of any new
financing statement. The Servicer shall at all times maintain each office from
which it services Receivables and its principal executive office within the
United States of America.
(d) The Servicer shall maintain accounts and records as to each
Receivable accurately and in sufficient detail to permit (i) the reader thereof
to know at any time the status of such Receivable, including payments and
recoveries made and payments owing (and the nature of each), and (ii)
reconciliation between payments or recoveries on (or with respect to) each
Receivable and the amounts from time to time deposited in the Collection
Account, Note Distribution Account, and Payment Ahead Servicing Account and any
Payments Ahead held by the Servicer in respect of such Receivable.
(e) The Servicer shall maintain its computer systems so that, from
and after the time of sale under this Agreement and the Second Step Receivables
Assignment of the Receivables, the Servicer's master computer records (including
any back-up archives) that refer to any Receivable indicate clearly that the
Receivable is owned by the Issuer. Indication of the Issuer's ownership of a
Receivable shall be deleted from or modified on the Servicer's computer systems
when, and only when, the Receivable has been paid in full or repurchased by the
Seller or purchased by the Servicer in accordance with the terms of the Basic
Documents.
37
(f) In the event that GMAC shall change the jurisdiction in which it
is incorporated or otherwise enter into any transaction which would result in a
"new debtor" (as defined in the UCC) succeeding to the obligations of GMAC
hereunder, GMAC shall comply fully with the obligations of Section 9.02(a).
(g) If at any time the Seller or the Servicer proposes to sell,
grant a security interest in, or otherwise transfer any interest in automotive
receivables to any prospective purchaser, lender or other transferee, the
Servicer and the Seller shall give to such prospective purchaser, lender or
other transferee computer tapes, records or print-outs (including any restored
from back-up archives) that, if they refer in any manner whatsoever to any
Receivable, indicate clearly that such Receivable has been sold and is owned by
the Issuer unless such Receivable has been paid in full or repurchased by the
Seller or purchased by the Servicer.
(h) The Servicer shall permit the Indenture Trustee and the Owner
Trustee and their respective agents at any time to inspect, audit and make
copies of and abstracts from the Servicer's records regarding any Receivables
then or previously included in the Owner Trust Estate.
(i) The Servicer shall furnish to the Indenture Trustee and the
Owner Trustee at any time upon request a list of all Receivables then held as
part of the Trust, together with a reconciliation of such list to the Schedule
of Receivables and to each of the Servicer's Accountings furnished before such
request indicating removal of Receivables from the Trust. Upon request, the
Servicer shall furnish a copy of any such list to the Seller. The Indenture
Trustee, the Owner Trustee and the Seller shall hold any such list and the
Schedule of Receivables for examination by interested parties during normal
business hours at their respective offices located at the addresses specified in
Section 9.03.
(j) The Servicer shall deliver to the Indenture Trustee and the
Owner Trustee promptly after the execution and delivery of this Agreement and of
each amendment thereto, an Opinion of Counsel either (a) stating that, in the
opinion of such counsel, all financing statements and continuation statements
have been authorized and filed as necessary to fully preserve and protect the
interest of the Indenture Trustee and the Owner Trustee in the Receivables, and
reciting the details of such filings or referring to prior Opinions of Counsel
in which such details are given, or (b) stating that, in the opinion of such
counsel, no such action is necessary to preserve and protect such interest.
(k) To the extent required by law, the Seller shall cause the Notes
and the Certificates to be registered with the Securities and Exchange
Commission pursuant to Section 12(b) or Section 12(g) of the Securities Exchange
Act of 1934 within the time periods specified in such sections.
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
38
STATE OF NEW YORK, WITHOUT REGARD TO THE PRINCIPLES OF CONFLICTS OF LAWS THEREOF
OR OF ANY OTHER JURISDICTION OTHER THAN SECTION 5-1401 OF THE NEW YORK GENERAL
OBLIGATIONS LAW, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES UNDER
THIS AGREEMENT SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
Section 9.05 Severability of Provisions. If any one or more of the
covenants, agreements, provisions or terms of this Agreement shall be for any
reason whatsoever held invalid, then such covenants, agreements, provisions or
terms shall be deemed severable from the remaining covenants, agreements,
provisions or terms of this Agreement and shall in no way affect the validity or
enforceability of the other provisions of this Agreement or of the Certificates
or the rights of the holders thereof.
Section 9.06 Assignment. Notwithstanding anything to the contrary
contained in this Agreement, this Agreement may not be assigned by the Seller
without the prior written consent of Noteholders whose Notes evidence not less
than 66% of the Outstanding Amount of the Notes as of the close of the preceding
Distribution Date and of Certificateholders whose Certificates evidence not less
than 66% of the Voting Interests as of the close of the preceding Distribution
Date. The Seller shall provide notice of any such assignment to the Rating
Agencies.
Section 9.07 Third-Party Beneficiaries. This Agreement and the Second Step
Receivables Assignments 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 Indenture Trustee, the Owner Trustee, the Swap
Counterparty and their respective successors and permitted assigns. The Swap
Counterparty shall be a third-party beneficiary to this Agreement only to the
extent that it has any rights specified herein or rights with respect to this
Trust Sale and Servicing Agreement specified under the Swap Counterparty Rights
Agreement. Except as otherwise provided in Section 6.01, the Swap Counterparty
Rights Agreement, or in this Article IX, no other person shall have any right or
obligation hereunder.
Section 9.08 Separate Counterparts. This Agreement may be executed by the
parties hereto in separate counterparts, each of which when so executed and
delivered shall be an original, but all such counterparts shall together
constitute but one and the same instrument.
Section 9.09 Headings and Cross-References. The various headings in this
Agreement are included for convenience only and shall not affect the meaning or
interpretation of any provision of this Agreement.
Section 9.10 Assignment to Indenture Trustee. The Seller hereby
acknowledges and consents to any mortgage, pledge, assignment and grant of a
security interest by the Issuer pursuant to the Indenture for the benefit of the
Noteholders and (only to the extent expressly provided in the Indenture) the
Certificateholders of all right, title and interest of the Issuer in, to and
under the Receivables and/or the assignment of any or all of the Issuer's rights
and obligations hereunder to the Indenture Trustee.
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
39
after the final distribution with respect to the Notes to the Note Distribution
Account, 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 JPMorgan Chase Bank, N.A., not
in its individual capacity but solely as Indenture Trustee and in no event shall
JPMorgan Chase Bank, N.A. 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 Indenture Trustee shall be subject to, and entitled to the
benefits of, the terms and provisions of Article VI of the Indenture.
(b) Notwithstanding anything contained herein to the contrary, this
Agreement has been executed by Deutsche Bank Trust Company Delaware not in its
individual capacity but solely in its capacity as Owner Trustee of the Issuer
and in no event shall Deutsche Bank Trust Company Delaware in its individual
capacity or, except as expressly provided in the Trust Agreement, as Owner
Trustee of the Issuer have any liability for the representations, warranties,
covenants, agreements or other obligations of the Issuer hereunder or in any of
the certificates, notices or agreements delivered pursuant hereto, as to all of
which recourse shall be had solely to the assets of the Issuer. For all purposes
of this Agreement, in the performance of its duties or obligations hereunder or
in the performance of any duties or obligations of the Issuer hereunder, the
Owner Trustee shall be subject to, and entitled to the benefits of, the terms
and provisions of Article VI of the Trust Agreement.
Section 9.13 Tax Treatment. The Servicer covenants that for all tax
purposes the Servicer shall regard and treat the Notes and the Certificates in a
manner consistent with the agreements (i) among the Seller, the Owner Trustee
and the Certificateholders in Section 2.11 of the Trust Agreement and (ii) among
the Seller, the Indenture Trustee and the Noteholders in Section 2.14 of the
Indenture.
Section 9.14 Furnishing Documents. The Indenture Trustee shall furnish to
Noteholders, promptly upon receipt of a written request therefor, copies of the
Pooling and Servicing Agreement, the Administration Agreement, the Custodian
Agreement, the Trust Agreement, the Indenture and this Agreement.
* * * * *
40
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 2004-2
By: DEUTSCHE BANK TRUST COMPANY
DELAWARE, not in its individual
capacity but solely as Owner Trustee
on behalf of the Trust,
By: /s/ Eva Aryeetey
---------------------------------
Name: Eva Aryeetey
Title: Attorney-In-Fact
CAPITAL AUTO RECEIVABLES, INC., Seller
By: /s/ Nancy L. Bugg
-------------------------------------
Name: Nancy L. Bugg
Title: Vice President
GENERAL MOTORS ACCEPTANCE CORPORATION
By: /s/ Carl J. Vannatter
-------------------------------------
Name: Carl J. Vannatter
Title: Director - Global
Securitization
Acknowledged and Accepted:
JPMORGAN CHASE BANK, N.A., not in its individual
capacity but solely as Indenture Trustee,
By: /s/ Keith R. Richardson
-----------------------------------
Name: Keith R. Richardson
Title: Attorney-In-Fact
Signature Page to Trust Sale and Servicing Agreement
EXHIBIT A
SCHEDULE OF RECEIVABLES
The Schedule of Receivables is
on file at the offices of:
1. The Indenture Trustee
2. The Owner Trustee
3. General Motors Acceptance Corporation
4. Capital Auto Receivables, Inc.
EXHIBIT B
SECOND STEP INITIAL RECEIVABLES ASSIGNMENT
PURSUANT TO TRUST SALE AND SERVICING AGREEMENT
For value received in accordance with and subject to the Trust Sale and
Servicing Agreement, dated as of December 9, 2004 (the "Trust Sale and Servicing
Agreement"), by and among General Motors Acceptance Corporation, a Delaware
corporation and in its capacity as Servicer under the Pooling and Servicing
Agreement described below (the "Servicer"), Capital Auto Receivables, Inc., a
Delaware corporation (the "Seller"), and Capital Auto Receivables Asset Trust
2004-2, a Delaware statutory trust (the "Issuer"), the Seller hereby irrevocably
sells, transfers, assigns and otherwise conveys to the Trust, without recourse
(subject to the obligations herein), all right, title and interest of the
Seller, whether now owned or hereafter acquired, in, to and under the following:
(i) all right, title and interest of the Seller in, to and under the
Initial Receivables listed on the Schedule of Initial Receivables, attached as
Exhibit A hereto, and (a) in the case of Initial Receivables that are Scheduled
Interest Receivables, all monies due thereunder on and after the Initial Cutoff
Date and (b) in the case of Initial Receivables that are Simple Interest
Receivables, all monies received thereon on and after the Initial Cutoff Date,
in each case exclusive of any amounts allocable to the premium for physical
damage insurance force-placed by the Servicer covering any related Financed
Vehicle;
(ii) the interest of the Seller in the security interests in the
Financed Vehicles granted by Obligors pursuant to the Initial Receivables and,
to the extent permitted by law, any accessions thereto;
(iii) the interest of the Seller in any proceeds from claims on any
physical damage, credit life, credit disability or other insurance policies
covering Financed Vehicles or Obligors;
(iv) the interest of the Seller in any proceeds from recourse
against Dealers on Initial Receivables;
(v) all right, title and interest of the Seller in, to and under the
Pooling and Servicing Agreement, the First Step Receivables Assignments, and the
Custodian Agreement, including the right of the Seller to cause GMAC to
repurchase Receivables under certain circumstances;
(vi) the right to purchase Additional Receivables during the
Revolving Period at a price equal to the Aggregate Additional Receivables
Principal Balance of such Additional Receivables as of each Distribution Date;
and
(vii) all present and future claims, demands, causes and choses in
action in respect of any or all of the foregoing described above and all
payments on or under and all proceeds of every kind and nature whatsoever in
respect of any or all of the foregoing, including
all proceeds of the conversion of any or all of the foregoing, voluntary or
involuntary, into cash or other liquid property, all cash proceeds, accounts,
accounts receivable, notes, drafts, acceptances, chattel paper, checks, deposit
accounts, insurance proceeds, investment property, payment intangibles, general
intangibles, condemnation awards, rights to payment of any and every kind and
other forms of obligations and receivables, instruments and other property which
ay any time constitute all or part or are included in the proceeds of any of the
foregoing.
The Seller hereby represents that as of the Initial Cutoff Date, the
Initial Aggregate Receivables Principal Balance was $2,597,263,866.06 and
acknowledges that in consideration of such Initial Receivables, the Trust has
paid to the Seller an amount equal to $2,597,263,866.06.
THIS SECOND STEP INITIAL RECEIVABLES ASSIGNMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK, WITHOUT
REGARD TO THE PRINCIPLES OF CONFLICTS OF LAWS THEREOF OR OF ANY OTHER
JURISDICTION OTHER THAN SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW,
AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES UNDER THIS AGREEMENT
SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
This Second Step Initial Receivables Assignment is made pursuant to and
upon the representations, warranties and agreements on the part of the Seller
contained in the Trust Sale and Servicing Agreement (including the Officer's
Certificate of the Seller accompanying this Second Step Initial Receivables
Assignment) and is to be governed in all respects by the Trust Sale and
Servicing Agreement. Capitalized terms used but not otherwise defined herein
shall have the meanings assigned to them in the Trust Sale and Servicing
Agreement.
* * * *
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, INC.,
as Seller
By: ___________________________________
Name: Nancy L. Bugg
Title: Vice President
EXHIBIT C
SECOND STEP ADDITIONAL RECEIVABLES ASSIGNMENT
PURSUANT TO TRUST SALE AND SERVICING AGREEMENT
For value received in accordance with and subject to the Trust Sale and
Servicing Agreement, dated as of December 9, 2004 (the "Trust Sale and Servicing
Agreement"), by and among General Motors Acceptance Corporation, a Delaware
corporation and in its capacity as Servicer under the Pooling and Servicing
Agreement described below (the "Servicer"), Capital Auto Receivables, Inc., a
Delaware corporation (the "Seller"), and Capital Auto Receivables Asset Trust
2004-2, a Delaware statutory trust (the "Issuer"), the Seller hereby irrevocably
sells, transfers, assigns and otherwise conveys to the Trust, without recourse
(subject to the obligations herein), all right, title and interest of the
Seller, whether now owned or hereafter acquired, in, to and under the following:
(i) all right, title and interest of the Seller in, to and under the
Additional Receivables listed on the Schedule of Additional Receivables and (a)
in the case of Additional Receivables that are Scheduled Interest Receivables,
all monies due thereunder on and after the Subsequent Cutoff Date and (b) in the
case of Additional Receivables that are Simple Interest Receivables, all monies
received thereon on and after the Subsequent Cutoff Date, in each case exclusive
of any amounts allocable to the premium for physical damage insurance
force-placed by the Servicer covering any related Financed Vehicle;
(ii) the interest of the Seller in the security interests in the
Financed Vehicles granted by Obligors pursuant to the Additional Receivables
and, to the extent permitted by law, any accessions thereto;
(iii) the interest of the Seller in any proceeds from claims on any
physical damage, credit life, credit disability or other insurance policies
covering Financed Vehicles or Obligors;
(iv) the interest of the Seller in any proceeds from recourse
against Dealers on Additional Receivables;
(v) all right, title and interest of the Seller in, to and under the
related First Step Additional Receivables Assignment dated as of the date
hereof; and
(vi) all present and future claims, demands, causes and choses in
action in respect of any or all of the foregoing described above and all
payments on or under and all proceeds of every kind and nature whatsoever in
respect of any or all of the foregoing, including all proceeds of the conversion
of any or all of the foregoing, voluntary or involuntary, into cash or other
liquid property, all cash proceeds, accounts, accounts receivable, notes,
drafts, acceptances, chattel paper, checks, deposit accounts, insurance
proceeds, investment property, payment intangibles, general intangibles,
condemnation awards, rights to payment of any and
every kind and other forms of obligations and receivables, instruments and other
property which ay any time constitute all or part or are included in the
proceeds of any of the foregoing.
The Seller hereby represents that as of the Subsequent Cutoff Date, the
Aggregate Additional Receivables Principal Balance of the Additional Receivables
was $________ and acknowledges that in consideration of such Additional
Receivables, the Trust has paid to the Seller an amount equal to $________.
THIS SECOND STEP ADDITIONAL RECEIVABLES ASSIGNMENT SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK,
WITHOUT REGARD TO THE PRINCIPLES OF CONFLICTS OF LAWS THEREOF OR OF ANY OTHER
JURISDICTION OTHER THAN SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW,
AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES UNDER THIS AGREEMENT
SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
This Second Step Additional Receivables Assignment is made pursuant to and
upon the representations, warranties and agreements on the part of the Seller
contained in the Trust Sale and Servicing Agreement (including the Officer's
Certificate of the Seller accompanying this Second Step Additional Receivables
Assignment) and is to be governed in all respects by the Trust Sale and
Servicing Agreement. Capitalized terms used but not otherwise defined herein
shall have the meanings assigned to them in the Trust Sale and Servicing
Agreement.
* * * *
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their respective officers this __ day of _______________.
CAPITAL AUTO RECEIVABLES, INC.,
as Seller
By: ___________________________________
Name: Nancy L. Bugg
Title: Vice President
[Attach Schedule of Additional Receivables]
EXHIBIT D
FORM OF OFFICER'S CERTIFICATE
The undersigned, on behalf of General Motors Acceptance Corporation, as
Administrator, (the "Administrator "), does hereby certify pursuant to Section
2.07(k) of the Trust Sale and Servicing Agreement, dated as of December 9, 2004
(the "Trust Sale and Servicing Agreement"), by and among General Motors
Acceptance Corporation, a Delaware corporation and in its capacity as Servicer
under the Pooling and Servicing Agreement described below (the "Servicer"),
Capital Auto Receivables, Inc., a Delaware corporation (the "Seller"), and
Capital Auto Receivables Asset Trust 2004-2, a Delaware statutory trust (the
"Issuer"), that all of the conditions to the transfer to the Trust of the
Additional Receivables listed on the Second Step Additional Receivables
Assignment delivered herewith and the other property and rights related to such
Additional Receivables, as described in Section 2.07 of the Trust Sale and
Servicing Agreement, have been satisfied on or prior to the related Subsequent
Closing Date.
Capitalized terms used but not defined herein shall have the meanings
assigned to such terms in the Trust Sale and Servicing Agreement.
* * * *
IN WITNESS WHEREOF, the parties hereto have caused this certificate to be
duly executed by this __ day of __________.
By: ___________________________________
Name:
Title:
EXHIBIT E
Additional Representations and Warranties
1. This Agreement and the Indenture create a valid and continuing security
interest (as defined in the applicable UCC) in the Purchased Property in
favor of the Issuer and the Indenture Trustee, as applicable, which
security interest is prior to all other Liens, and is enforceable as such
as against creditors of and purchasers from CARI and the Issuer,
respectively.
2. All steps necessary to perfect CARI's security interest against each
Obligor in the property securing the Purchased Property have been taken.
3. Prior to the sale of the Purchased Property to the Issuer under this
Agreement, the Receivables constitute "tangible chattel paper" within the
meaning of the applicable UCC.
4. CARI owns and has good and marketable title to the Purchased Property free
and clear of any Lien, claim or encumbrance of any Person.
5. CARI has caused or will have caused, within ten (10) days, the filing of
all appropriate financing statements in the proper filing office in the
appropriate jurisdictions under applicable law in order to perfect the
security interest in the Purchased Property granted to the Issuer
hereunder and the Indenture Trustee under the Indenture.
6. Other than the security interest granted to CARI pursuant to the Basic
Documents, the Issuer under the Trust Sale and Servicing Agreement and the
Indenture Trustee under the Indenture, none of GMAC, CARI or the Issuer
has pledged, assigned, sold, granted a security interest in, or otherwise
conveyed any of the Purchased Property. None of GMAC, CARI or the Issuer
has authorized the filing of, nor is CARI aware of, any financing
statements against GMAC, CARI or the Issuer that include a description of
collateral covering the Purchased Property other than the financing
statements relating to the security interests granted to CARI, the Issuer
and the Indenture Trustee under the Basic Documents or any financing
statement that has been terminated. CARI is not aware of any judgment or
tax lien filings against GMAC, CARI or the Issuer.
7. GMAC, as Servicer, has in its possession all original copies of the
Receivables Files and other documents that constitute or evidence the
Receivables and the Purchased Property. The Receivables Files and other
documents that constitute or evidence the Purchased Property do not have
any marks or notations indicating that they have been pledged, assigned or
otherwise conveyed to any Person other than CARI.
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.
Account Holder: A bank or trust company, whose short-term unsecured debt
obligations have the Required Deposit Rating, which holds one or more of the
Designated Accounts or the Payment Ahead Servicing Account.
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: For any Distribution Date during the Revolving
Period, the aggregate amount on deposit in the Accumulation Account.
Act: An Act as specified in Section 11.3(a) of the Indenture.
Actual Payment: With respect to a Distribution Date and to a Scheduled
Interest Receivable, all payments received by the Servicer from or for the
account of the Obligor during the related Monthly Period (and, in the case of
the first Monthly Period, all payments received by the Servicer from or for the
account of the Obligor on or after the Applicable Cutoff Date) except for any
Overdue Payments or Supplemental Servicing Fees. Actual Payments do not include
Applied Payments Ahead.
Additional Purchased Property: As defined in Section 2.01(b) of the
Pooling and Servicing Agreement.
Additional Receivables: Any retail instalment sale contract or direct
purchase money loan for a Financed Vehicle that is included in the Schedule of
Additional Receivables attached to a First Step Additional Receivables
Assignment and all rights and obligations thereunder.
Additional Servicing Fee: With respect to a Distribution Date, the
additional fee payable to the Servicer for services rendered during the related
Monthly Period, which shall be equal to the sum of (a) one-twelfth (1/12th) of
the Additional Servicing Fee Rate multiplied by the Aggregate Receivables Face
Amount of all Receivables held by the Trust as of the first day of such Monthly
Period (or, for the first Distribution Date, the Additional Servicing Fee Rate
multiplied by a fraction, the numerator of which is 36 and the denominator of
which is 360, multiplied by the Aggregate Receivables Face Amount as of the
Initial Closing Date) and (b) any unpaid Additional Servicing Fee from any prior
Distribution Date.
Additional Servicing Fee Rate: 1.00% per annum.
Administration Agreement: That certain Administration Agreement, dated as
of the Initial Closing Date, among GMAC, as Administrator, the Trust and the
Indenture Trustee, as amended and supplemented from time to time.
Administrative Purchase Payment: With respect to a Distribution Date and
to an Administrative Receivable purchased as of the last day of the related
Monthly Period:
Section 9.15 in the case of a Scheduled Interest Receivable, a release of
all claims for reimbursement of Scheduled Interest Advances made on such
Receivable plus a payment equal to the sum of:
(a) the Scheduled Payments on such Receivable due after the last day
of the related Monthly Period minus the Rebate as of the last day of such
Monthly Period;
(b) any reimbursement made on or prior to the last day of such
Monthly Period pursuant to the last sentence of Section 5.04(a) of the Trust
Sale and Servicing Agreement with respect to such Receivable; and
(c) all past due Scheduled Payments with respect to which a
Scheduled Interest Advance has not been made on or prior to the last day of such
Monthly Period; or
Section 9.16 in the case of a Simple Interest Receivable, a payment equal
to the Amount Financed minus that portion of all payments made by or on behalf
of the related Obligor on or prior to the last day of the related Monthly Period
allocable to principal.
Administrative Receivable: A Receivable which the Servicer is required to
purchase pursuant to Section 3.08 of the Pooling and Servicing Agreement or
which the Servicer has elected to repurchase pursuant to Section 8.01(a) of the
Trust Sale and Servicing Agreement.
Administrator: GMAC or any successor Administrator under the
Administration Agreement.
Affiliate: With respect to any specified Person, any other Person
controlling, controlled by or under common control with such specified Person.
For the purposes of this definition, "control" when used with respect to any
specified Person means the power to direct the management and policies of such
Person, directly or indirectly, whether through the ownership of voting
securities, by contract or otherwise; and the terms "controlling" and
"controlled" have meanings correlative to the foregoing.
Agency Office: The office of the Issuer maintained pursuant Section 3.2 of
the Indenture.
Aggregate Additional Receivables Principal Balance: With respect to a
Distribution Date during the Revolving Period, the aggregate of the Receivable
Principal Balances of each Additional Receivable purchased by the Trust on that
Distribution Date.
Aggregate Amount Financed: With respect to any date, the aggregate of the
Amount Financed for each Receivable as of its Applicable Cutoff Date. As of the
Initial Closing Date, the Aggregate Amount Financed was $2,762,157,255.93.
2
Aggregate Class A Interest Distributable Amount: With respect to any
Distribution Date, the sum of (i) the aggregate of the Note Class Interest
Distributable Amount for each class of the Class A Notes as of such Distribution
Date and (ii) the Class A Interest Carryover Shortfall as of the close of the
preceding Distribution Date.
Aggregate Class B Interest Distributable Amount: With respect to any
Distribution Date, the sum of (i) the Note Class Interest Distributable Amount
for the Class B Notes as of such Distribution Date and (ii) the Class B Interest
Carryover Shortfall as of the close of the preceding Distribution Date.
Aggregate Class C Interest Distributable Amount: With respect to any
Distribution Date, the sum of (i) the Note Class Interest Distributable Amount
for the Class C Notes as of such Distribution Date and (ii) the Class C Interest
Carryover Shortfall as of the close of the preceding Distribution Date.
Aggregate Class D Interest Distributable Amount: With respect to any
Distribution Date, the sum of (i) the Note Class Interest Distributable Amount
for the Class D Notes as of such Distribution Date and (ii) the Class D Interest
Carryover Shortfall as of the close of the preceding Distribution Date.
Aggregate Note Principal Balance: With respect to the close of a
Distribution Date, the sum of the Note Principal Balances for all classes of
Notes.
Aggregate Noteholders' Interest Distributable Amount: With respect to any
Distribution Date, the sum of (i) the Aggregate Class A Interest Distributable
Amount as of such Distribution Date, (ii) the Aggregate Class B Interest
Distributable Amount as of such Distribution Date, (iii) the Aggregate Class C
Interest Distributable Amount as of such Distribution Date, and (iv) the
Aggregate Class D Interest Distributable Amount as of such Distribution Date.
Aggregate Noteholders' Principal Distributable Amount: With respect to any
Distribution Date during the Amortization Period, the sum of (i) the
Noteholders' Regular Principal Distributable Amount as of such Distribution Date
and (ii) the Aggregate Noteholders' Priority Principal Distributable Amount as
of such Distribution Date. During the Revolving Period and for the related
Distribution Dates, the Aggregate Noteholders' Principal Distributable Amount
shall be equal to zero.
Aggregate Noteholders' Priority Principal Distributable Amount: With
respect to any Distribution Date, the sum of (i) the First Priority Principal
Distributable Amount, (ii) the Second Priority Principal Distributable Amount,
(iii) the Third Priority Principal Distributable Amount, and (iv) the Fourth
Priority Principal Distributable Amount, each as of such Distribution Date.
Aggregate Principal Balance of Non-Subvented Receivables: As of any date,
the aggregate outstanding Principal Balances of all of the Non-Subvented
Receivables (other than Liquidating Receivables) held by the Trust on such date
(determined after taking into account any Prepayments, Warranty Payments and
Administrative Purchase Payments in respect of such Receivables).
3
Aggregate Principal Balance of Subvented Receivables: As of any date, the
present value as of such date of all scheduled monthly payments on all of the
Subvented Receivables (other than Liquidating Receivables) held by the Trust on
such date which have not been applied on or prior to such date (determined after
taking into account any Prepayments, Warranty Payments and Administrative
Purchase Payments in respect of such Receivables), discounted from the last day
of the calendar month in which payments are to become due to such date at the
Discount Rate.
Aggregate Receivables Face Amount: As of any date, the sum of the
Principal Balances of all outstanding Receivables (other than Liquidating
Receivables) held by the Trust on such date.
Aggregate Receivables Principal Balance: As of any date, the sum of (i)
the Aggregate Principal Balance of Subvented Receivables and (ii) the Aggregate
Principal Balance of Non-Subvented Receivables, each as of such date.
Amortization Date: The earlier of (i) November 1, 2005 and (ii) the date
on which an Early Amortization Event occurs.
Amortization Period: The period beginning on the Amortization Date and
ending on the date that all classes of Notes have been paid in full.
Amount Financed: With respect to a Receivable, the aggregate amount
advanced under such Receivable toward the purchase price of the Financed
Vehicle, including accessories, insurance premiums, service and warranty
contracts and other items customarily financed as part of retail automobile
instalment sale contracts and direct purchase money loans and related costs,
less:
Section 9.17 (A) in the case of a Scheduled Interest Receivable, payments
due from the related Obligor prior to the Cutoff Date allocable to principal and
(B) in the case of a Simple Interest Receivable, payments received from the
related Obligor prior to the Cutoff Date allocable to principal and
Section 9.18 any amount allocable to the premium for physical damage
insurance covering the Financed Vehicle force-placed by the Servicer.
Annual Percentage Rate: With respect to a Receivable, the annual rate of
finance charges stated in such Receivable.
Annual Statement of Compliance: The Officer's Certificate required to be
delivered by the Issuer, pursuant to Section 3.9 of the Indenture or the
Officer's Certificate required to be delivered by the Servicer pursuant to
Section 4.01(a) of the Trust Sale and Servicing Agreement, as applicable.
Applicable Cutoff Date: For a particular Receivable, the related Cutoff
Date.
4
Applicable Trustee: So long as the Aggregate Note Principal Balance is
greater than zero and the Indenture has not been discharged in accordance with
its terms, the Indenture Trustee, and thereafter, the Owner Trustee.
Applied Payment Ahead: With respect to a Distribution Date and to a
Scheduled Interest Receivable on which the Actual Payment is less than the
Scheduled Payment, the Deferred Prepayment to the extent the Scheduled Payment
exceeds the Actual Payment.
Attestation Protocol: The procedures, standards, guidance, explanatory
materials and exhibits with respect to the conduct of an attestation program
that are set forth in the preface, introduction and exhibits to The Uniform
Single Attestation Program for Mortgage Bankers effective for fiscal years ended
on or after December 15, 1995 or in any successor program, to the extent such
procedures, standards, guidance, explanatory materials and exhibits are
applicable to the servicing obligations set forth in the Trust Sale and
Servicing Agreement and the Pooling and Servicing Agreement.
Authorized Officer: With respect to the Issuer, any officer or agent
acting under power of attorney of the Owner Trustee who is authorized to act for
the Owner Trustee in matters relating to the Issuer and who is identified on the
list of Authorized Officers delivered by the Owner Trustee to the Indenture
Trustee on the Initial Closing Date (as such list may be modified or
supplemented from time to time thereafter) or the power of attorney and, so long
as the Administration Agreement is in effect, any 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 Initial Closing Date (as such
list may be modified or supplemented from time to time thereafter).
Available Interest: With respect to any Distribution Date, the sum of the
following amounts with respect to the prior Monthly Period:
Section 9.19 that portion of all collections on the Receivables held by
the Trust (other than Liquidating Receivables) allocable to interest or
Prepayment Surplus (including, in the case of Scheduled Interest Receivables,
the interest portion of Applied Payments Ahead but excluding Excess Payments
made during such Monthly Period that are treated as Payments Ahead);
Section 9.20 Liquidation Proceeds to the extent allocable to interest;
Section 9.21 all Simple Interest Advances;
Section 9.22 all Scheduled Interest Advances to the extent allocable to
interest;
Section 9.23 the net amount, if any, paid by the Swap Counterparty to the
Trust pursuant to any Interest Rate Swaps;
Section 9.24 the Warranty Payment or the Administrative Purchase Payment
for each Receivable that the Seller repurchased or the Servicer purchased during
such Monthly Period to the extent allocable to accrued interest or Prepayment
Surplus;
5
Section 9.25 any Investment Earnings on funds on deposit in the
Accumulation Account; and
Section 9.26 in the event that the Seller exercises its option to purchase
a portion of the Receivables pursuant to Section 5.06 of the Trust Sale and
Servicing Agreement, the purchase price paid by the Seller in connection with
the exercise, to the extent allocable to interest;
except that any of the foregoing amounts, to the extent they constitute
any of the following, shall be excluded from "Available Interest":
(a) all amounts received on any Scheduled Interest Receivable (other
than a Liquidating Receivable) to the extent of the Outstanding Scheduled
Interest Advances allocable to interest with respect to such Receivable;
(b) all Liquidation Proceeds with respect to Scheduled Interest
Receivables to the extent of the Outstanding Scheduled Interest Advances thereon
allocable to interest;
(c) any Excess Simple Interest Collections;
(d) all Liquidation Proceeds with respect to Simple Interest
Receivables allocable to accrued and unpaid interest thereon (but not including
interest for the then current Monthly Period), but only to the extent of any
Outstanding Simple Interest Advances; and
(e) amounts representing Liquidation Expenses pursuant to Section
3.04 of the Pooling and Servicing Agreement.
For purposes of this definition, references to the prior Monthly Period
shall mean (i) with respect to any Initial Receivable and the initial
Distribution Date, the period from and including the Initial Cutoff Date to the
end of the calendar month preceding the initial Distribution Date and (ii) with
respect to any Additional Receivable and the first Distribution Date following
its Applicable Cutoff Date, the period from and including its Applicable Cutoff
Date to the end of the calendar month preceding such first Distribution Date.
All of the preceding allocations called for herein shall be made in accordance
with the Servicer's customary servicing procedures.
Available Principal: With respect to any Distribution Date, the sum of the
following amounts with respect to the prior Monthly Period:
Section 9.27 that portion of all collections on Receivables held by the
Trust (other than Liquidating Receivables) allocable to principal (including, in
the case of Scheduled Interest Receivables, the principal portion of Applied
Payments Ahead but excluding Excess Payments made during such Monthly Period
that are treated as Payments Ahead);
Section 9.28 Liquidation Proceeds to the extent allocable to principal;
Section 9.29 all Scheduled Interest Advances to the extent allocable to
principal;
6
Section 9.30 to the extent allocable to principal, the Warranty Payment or
the Administrative Purchase Payment for each Receivable that the Seller
repurchased or the Servicer purchased during such Monthly Period; and
Section 9.31 all Prepayments to the extent allocable to principal;
Section 9.32 in the event that the Seller exercises its option to purchase
a portion of the Receivables pursuant to Section 5.06 of the Trust Sale and
Servicing Agreement, the purchase price paid by the Seller in connection with
such exercise, to the extent allocable to principal;
except that any of the foregoing amounts, to the extent they constitute
any of the following shall be excluded from "Available Principal":
(a) any Excess Simple Interest Collections;
(b) all amounts received on any Scheduled Interest Receivable (other
than a Liquidating Receivable) to the extent of the Outstanding Scheduled
Interest Advances allocable to principal with respect to such Receivable;
(c) all Liquidation Proceeds with respect to Scheduled Interest
Receivables paid to the Servicer to reimburse Outstanding Scheduled Interest
Advances pursuant to Section 5.04 of the Trust Sale and Servicing Agreement;
(d) all Liquidation Proceeds with respect to Scheduled Interest
Receivables to the extent of the Outstanding Scheduled Interest Advances
allocable to principal; and
(e) amounts representing reimbursement for Liquidation Expenses
pursuant to Section 3.04 of the Pooling and Servicing Agreement.
For purposes of this definition, references to the prior Monthly Period
shall mean (i) with respect to any initial Receivable and the initial
Distribution Date, the period from and including the Initial Cutoff Date to the
end of the calendar month preceding the initial Distribution Date and (ii) with
respect to any Additional Receivable and the first Distribution Date following
its Applicable Cutoff Date, the period from and including its Applicable Cutoff
Date to the end of the calendar month preceding such first Distribution Date.
All of the preceding allocations called for herein shall be made in accordance
with the Servicer's customary servicing procedures.
Basic Documents: The Certificate of Trust, the Trust Agreement, the
Pooling and Servicing Agreement (including the First Step Receivables
Assignments), the Trust Sale and Servicing Agreement (including the Second Step
Receivables Assignments), the Triparty Agreement, the Custodian Agreement, the
Administration Agreement, the Indenture, any Interest Rate Swaps, the Swap
Counterparty Rights Agreement, the Note Depository Agreement, the Notes, the
Certificates and the other documents and certificates delivered in connection
therewith.
Basic Servicing Fee: With respect to a Distribution Date, the basic fee
payable to the Servicer for services rendered during the related Monthly Period,
which shall be equal to the sum of (a) one-twelfth (1/12th) of the Basic
Servicing Fee Rate multiplied by the Aggregate
7
Receivables Face Amount of all Receivables held by the Trust as of the first day
of such Monthly Period (or, for the first Distribution Date, the Basic Servicing
Fee Rate multiplied by a fraction, the numerator of which is 36 and the
denominator of which is 360, multiplied by the Aggregate Receivables Face Amount
as of the Initial Closing Date) and (b) any unpaid Basic Servicing Fees from any
prior Distribution Date.
Basic Servicing Fee Rate: 1.00% 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 investment by an employee
benefit plan or plan in such entity.
Book-Entry Notes: A beneficial interest in the Notes, ownership and
transfers of which shall be made through book entries by a Clearing Agency as
described in Section 2.10 of the Indenture.
Business Day: Any day other than a Saturday, a Sunday or any other day on
which banks in New York, New York; Detroit, Michigan; or Chicago, Illinois may,
or are required to, remain closed.
CARI: Capital Auto Receivables, Inc., a Delaware corporation.
Certificate: The Certificates executed by the Owner Trustee and
authenticated by the Owner Trustee in substantially the form set forth in
Exhibit A to the Trust Agreement.
Certificate Distribution Account: The account, if applicable, designated
as such, established and maintained pursuant to Section 5.1(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 filed for the Trust pursuant to
Section 3810(a) of the Statutory Trust Act.
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.
Certificateholder: A Person in whose name a Certificate is registered
pursuant to the terms of the Trust Agreement.
Class A Interest Carryover Shortfall: With respect to any Distribution
Date, as of the close of business on such Distribution Date, the excess of (i)
the Aggregate Class A Interest Distributable Amount for such Distribution Date
over (ii) the amount that was actually deposited in the Note Distribution
Account on such Distribution Date in respect of interest for the Class A Notes.
8
Class A Notes: Collectively, the Class A-1 Notes, the Class A-2 Notes, the
Class A-3 Notes and the Class A-4 Notes.
Class A-1 Notes: Collectively, the Class A-1a Notes and the Class A-1b
Notes.
Class A-1a Notes: The 3.12% Asset Backed Notes, Class A-1a in the initial
aggregate principal balance of $220,000,000 issued pursuant to the Indenture.
Class A-1b Notes: The Floating Rate Asset Backed Notes, Class A-1b in the
initial aggregate principal balance of $657,000,000 issued pursuant to the
Indenture.
Class A-2 Notes: The 3.35% Asset Backed Notes, Class A-2 in the initial
aggregate principal balance of $740,000,000 issued pursuant to the Indenture.
Class A-3 Notes: The 3.58% Asset Backed Notes, Class A-3 in the initial
aggregate principal balance of $558,000,000 issued pursuant to the Indenture.
Class A-4 Notes: The 3.75% Asset Backed Notes, Class A-4 in the initial
aggregate principal balance of $240,455,000 issued pursuant to the Indenture.
Class B Interest Carryover Shortfall: With respect to any Distribution
Date, as of the close of business on such Distribution Date, the excess of (i)
the Aggregate Class B Interest Distributable Amount for such Distribution Date
over (ii) the amount that was actually deposited in the Note Distribution
Account on such current Distribution Date in respect of interest for the Class B
Notes.
Class B Notes: The 3.92% Asset Backed Notes, Class B in the initial
aggregate principal balance of $97,397,000 issued pursuant to the Indenture.
Class C Interest Carryover Shortfall: With respect to any Distribution
Date, as of the close of business on such Distribution Date, the excess of (i)
the Aggregate Class C Interest Distributable Amount for such Distribution Date
over (ii) the amount that was actually deposited in the Note Distribution
Account on such current Distribution Date in respect of interest for the Class C
Notes.
Class C Notes: The 4.16% Asset Backed Notes, Class C in the initial
aggregate principal balance of $32,465,000 issued pursuant to the Indenture.
Class D Interest Carryover Shortfall: With respect to any Distribution
Date, as of the close of business on such Distribution Date, the excess of (i)
the Aggregate Class D Interest Distributable Amount for such Distribution Date
over (ii) the amount that was actually deposited in the Note Distribution
Account on such current Distribution Date in respect of interest for the Class D
Notes.
Class D Notes: The 5.82% Asset Backed Notes, Class D in the initial
aggregate principal balance of $25,972,000 issued pursuant to the Indenture.
9
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.
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)(i) of the Trust Sale and Servicing
Agreement.
Contingent Interest Rate Swap: Each interest rate swap agreement,
including the schedule and confirmation related thereto, between GMAC and the
Trust, as executed and delivered on the Initial Closing Date, as the same may
become effective as provided in the Triparty Agreement or be amended,
supplemented, renewed, extended or replaced from time to time.
Controlling Class: Shall be (a) so long as the Class A Notes are
outstanding, the Class A Notes, (b) if the Class A Notes are no longer
outstanding but the Class B Notes are outstanding, the Class B Notes, (c) if the
Class A Notes and the Class B Notes are no longer outstanding but the Class C
Notes are outstanding, the Class C Notes, and (d) if the Class A Notes, Class B
Notes and the Class C Notes are no longer outstanding, the Class D Notes.
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 Initial Closing Date are located, in the case
of the Indenture Trustee, at 227 West Monroe Street, 26th Floor, Chicago,
Illinois 60606, Attn: Institutional Trust Services - CARAT 2004-2 and, with
respect to registration, exchange and transfer of a Security, at 4 New York
Plaza, New York, Sixth Floor, New York, New York 10004, Attn: Institutional
Trust Services/Global Debt, CARAT 2004-2, and in the case of the Owner Trustee,
at Montgomery Building, 1011 Centre Road, Suite 200, Wilmington, Delaware 19805,
Attn: Corporate Trust Department.
Cumulative Receivables: As of any Closing Date, means all Receivables sold
by GMAC to the Seller and by the Seller to the Trust on or before such Closing
Date, whether or not such Receivable is still outstanding or owned by the Trust
on such Closing Date.
Custodian: GMAC, as Servicer, or another custodian named from time to time
in the Custodian Agreement.
Custodian Agreement: The Custodian Agreement, dated as of the Initial
Closing Date, between the Custodian and CARI, as amended or supplemented from
time to time.
10
Cutoff Date: The Initial Cutoff Date with respect to the Initial
Receivables or the applicable Subsequent Cutoff Date with respect to any
Additional Receivables.
Dealer: The seller of automobiles or light trucks that originated one or
more of the Receivables and assigned the respective Receivable, directly or
indirectly, to GMAC under an existing agreement between such seller and GMAC or
between such seller and General Motors, as applicable.
Dealer Agreement: An existing agreement between GMAC and a Dealer with
respect to a Receivable.
Default: Any occurrence that is, or with notice or the lapse of time or
both would become, an Event of Default.
Deferred Prepayment: With respect to the opening of business on a
Distribution Date and to a Scheduled Interest Receivable, the amount, if any,
held by the Servicer pursuant to Section 5.01(e) of the Trust Sale and Servicing
Agreement or in the Payment Ahead Servicing Account with respect to such
Receivable as of the opening of business on such Distribution Date.
Definitive Certificates: As defined in Section 3.13 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.
Designated Account Property: The Designated Accounts, all cash,
investments, Financial Assets, securities and investment property held from time
to time in any Designated Account (whether in the form of deposit accounts,
Physical Property, book-entry securities, Uncertificated Securities or
otherwise), including the Reserve Account Initial Deposit, and all proceeds of
the foregoing but excluding all Investment Earnings thereon.
Designated Accounts: The Accumulation Account, 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: 6.00% per annum.
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 January 18, 2005.
Early Amortization Event: The occurrence during the Revolving Period of
one or more of the following: (i) the amount on deposit in the Reserve Account
is less than the Specified Reserve Account Balance for two consecutive Monthly
Periods; (ii) after payment of the Aggregate Additional Receivables Principal
Balance on any Distribution Date, the amount on deposit in the Accumulation
Account exceeds one percent (1.00%) of the Initial Aggregate Receivables
Principal Balance; (iii) an Event of Default occurs; or (iv) a Servicer Default
occurs.
11
Early Termination Date: As defined in each Interest Rate Swap.
Eligible Deposit Account: Either (i) a segregated account with an Eligible
Institution or (ii) a segregated trust account with the corporate trust
department of a depository institution organized under the laws of the United
States of America or any one of the states thereof or the District of Columbia
(or any domestic branch of a foreign bank), having corporate trust powers and
acting as trustee for funds deposited in such account, so long as any of the
securities of such depository institution have a credit rating from each Rating
Agency in one of its generic rating categories which signifies investment grade.
Eligible Institution: Either (i) the corporate trust department of the
Indenture Trustee or the Owner Trustee or (ii) a depository institution
organized under the laws of the United States of America or any one of the
states thereof or the District of Columbia (or any domestic branch of a foreign
bank), (A) which has either (1) a long-term unsecured debt rating acceptable to
the Rating Agencies or (2) a short-term unsecured debt rating or certificate of
deposit rating acceptable to the Rating Agencies and (B) whose deposits are
insured by the FDIC.
Eligible Investments: Book-entry securities, negotiable instruments or
securities represented by instruments in bearer or registered form which
evidence:
Section 9.33 direct obligations of, and obligations fully guaranteed as to
timely payment of principal and interest by, the United States of America;
Section 9.34 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 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;
Section 9.35 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;
Section 9.36 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);
Section 9.37 bankers' acceptances issued by any depository institution or
trust company referred to in clause (ii) above;
12
Section 9.38 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 is required to be liquidated 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);
Section 9.39 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;
Section 9.40 (solely in the case of the Reserve Account) the Notes; and
Section 9.41 any other investment permitted by each of the Rating
Agencies,
in each case, unless otherwise permitted by the Rating Agencies, maturing (A)
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 issued by
the institution with which the Note Distribution Account 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 in the amount payable on such investment on such Distribution Date
pending receipt thereof to the extent necessary to make distributions on the
Notes 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 such rating from
Fitch, Inc. only if Fitch, Inc. 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.
Entitlement Holder: Has the meaning given such term in Section 8-102(a)(7)
of the New York UCC.
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.
13
Event of Default Sale: As defined in Section 8.01(b) of the Trust Sale and
Servicing Agreement.
Excess Payment: With respect to a Distribution Date and a Scheduled
Interest Receivable, the portion of an Actual Payment on such Receivable in
excess of the Scheduled Payment thereon.
Excess Simple Interest Collections: With respect to a Distribution Date,
the excess, if any, of (i) all payments received during the related Monthly
Period on all Simple Interest Receivables to the extent allocable to interest
over (ii) the amount of interest that would be due during the related Monthly
Period on all Simple Interest Receivables assuming that the payment on each such
Receivable was received on its respective due date.
Exchange Act: The Securities Exchange Act of 1934, as amended.
Executive Officer: With respect to any corporation, the Chief Executive
Officer, Chief Operating Officer, Chief Financial Officer, President, Executive
Vice President, any Vice President, the Secretary or the Treasurer of such
corporation; and with respect to any partnership, any general partner thereof.
Expenses: The expenses described in Section 6.9 of the Trust Agreement.
FDIC: Federal Deposit Insurance Corporation or any successor agency.
Final Scheduled Distribution Date: 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: March 15, 2007;
Class A-2 Notes: February 15, 2008;
Class A-3 Notes: January 15, 2009;
Class A-4 Notes: July 15, 2009;
Class B Notes: November 16, 2009;
Class C Notes: January 15, 2010; and
Class D Notes: May 15, 2012.
Financed Vehicle: A new or used car or light truck, together with all
accessories thereto, securing an Obligor's indebtedness under a Receivable.
Financial Asset: Has the meaning given such term in Article 8 of the New
York UCC. As used herein, the Financial Asset "related to" a Security
Entitlement is the Financial Asset in which the entitlement holder (as defined
in Article 8 of the New York UCC) holding such Security Entitlement has the
rights and property interest specified in Article 8 of the New York UCC.
Financial Parties: The Noteholders, the Certificateholders and, so long as
any Interest Rate Swap is in effect, the Swap Counterparty.
14
First Priority Principal Distributable Amount: With respect to any
Distribution Date related to the Amortization Period, an amount equal to the
excess, if any, of (i) the aggregate outstanding principal balance of the Class
A Notes as of the preceding Distribution Date (after giving effect to any
principal payments made on the Class A Notes on such preceding Distribution
Date) over (ii) the Aggregate Receivables Principal Balance as of the close of
business on the last day of the immediately preceding Monthly Period.
First Step Additional Receivables Assignment: As defined in Section
2.02(b) of the Pooling and Servicing Agreement.
First Step Initial Receivables Assignment: As defined in Section 2.02(a)
of the Pooling and Servicing Agreement.
First Step Receivables Assignments: As defined in Section 2.02(b) of the
Pooling and Servicing Agreement.
Fixed Rate Notes: Together, the Class A-1a Notes, the Class A-2 Notes, the
Class A-3 Notes, the Class A-4 Notes, the Class B Notes, the Class C Notes and
the Class D Notes.
Floating Rate Notes: The Class A-1b Notes.
Fourth Priority Principal Distributable Amount: With respect to any
Distribution Date related to the Amortization Period, an amount, not less than
zero, equal to the difference between (i) the excess, if any, of (a) the
aggregate outstanding principal balance of all the Notes as of the preceding
Distribution Date (after giving effect to any principal payments made on the
Notes on such preceding Distribution Date) over (b) the Aggregate Receivables
Principal Balance as of the close of business on the last day of the immediately
preceding Monthly Period, and (ii) the sum of (a) the First Priority Principal
Distributable Amount, if any, with respect to such Distribution Date, (b) the
Second Priority Principal Distributable Amount, if any, with respect to such
Distribution Date, and (c) the Third Priority Principal Distributable Amount, if
any, with respect to such Distribution Date.
Further Transfer and Servicing Agreements: As defined in the recitals to
the Pooling and Servicing Agreement.
General Motors: General Motors Corporation, a Delaware corporation.
GMAC: General Motors Acceptance Corporation, a Delaware corporation.
GMAC Interest Rate Swap: Each interest rate swap agreement, including the
schedule and confirmation related thereto, between GMAC and the Swap
Counterparty in effect on the Initial Closing Date, as the same may be amended,
supplemented, renewed, extended or replaced from time to time.
GMACNA: General Motors Acceptance Corporation, North America, a Delaware
corporation.
15
GMACNA Sale Agreement: The GMACNA Sale Agreement, dated as of June 23,
2004, by and between GMACNA and GMAC.
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.
Indemnified Parties: The Persons specified in Section 6.9 of the Trust
Agreement.
Indenture: The Indenture, dated as of the Initial Closing Date, between
the Issuer and the Indenture Trustee, as amended and supplemented from time to
time.
Indenture Trustee: JPMorgan Chase Bank, N.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 Issuer Order and approved
by the Indenture Trustee in the exercise of reasonable care, and stating 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 Receivables Principal Balance: As of the Initial Cutoff
Date, the sum of (i) the Aggregate Principal Balance of Subvented Receivables
and (ii) the Aggregate Principal Balance of Non-Subvented Receivables, equal to
$2,597,263,866.06.
16
Initial Closing Date: December 9, 2004.
Initial Cutoff Date: November 1, 2004.
Initial Purchased Property: As defined in Section 2.01(a) of the Pooling
and Servicing Agreement.
Initial Receivables: Any retail instalment sale contract or direct
purchase money loan for a Financed Vehicle that is included in the Schedule of
Initial Receivables attached to the First Step Initial Receivables Assignment
and all rights and obligations thereunder.
Insurance Policy: With respect to a Receivable, an insurance policy
covering physical damage, credit life, credit disability, theft, mechanical
breakdown or similar event with respect to the related Financed Vehicle.
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 Notes, the per annum rate set
forth below:
Class A-1a Notes 3.12%;
Class A-1b Notes: LIBOR;
Class A-2 Notes: 3.35%;
Class A-3 Notes: 3.58%;
Class A-4 Notes: 3.75%;
Class B Notes: 3.92%;
Class C Notes: 4.16%; and
Class D Notes: 5.82%.
Interest Rate Swap: Each interest rate swap agreement, including all
schedules and confirmations related thereto, between the Trust and the Swap
Counterparty, in effect on the Initial 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 any Contingent Interest Rate Swaps become effective
as provided in the Triparty Agreement, each shall constitute an "Interest Rate
Swap" for all purposes under the Basic Documents.
Interested Parties: As defined in the recitals to the Pooling and
Servicing Agreement.
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 Payment Ahead Servicing 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.
17
Issuer Order: A written order signed in the name of the Issuer by any one
of its Authorized Officers and delivered to the Indenture Trustee.
Issuer Request: A written request signed in the name of the Issuer by any
one of its Authorized Officers and delivered to the Indenture Trustee.
LIBOR: With respect to the initial Distribution Date, 2.37290%; with
respect to each Distribution Date other than the initial Distribution Date, the
rate for deposits in U.S. Dollars for a period of one month which appears on
Telerate Service Page 3750 as of 11:00 a.m., London time, on the day that is two
LIBOR Business Days prior to the preceding Distribution Date. If such rate does
not appear on that date on Telerate Service Page 3750 (or any other page as may
replace that page on that service, or if that service is no longer offered, any
other service for displaying LIBOR or comparable rates as may be selected by the
Indenture Trustee after consultation with the Seller), then LIBOR will be the
Reference Bank Rate.
LIBOR Business Day: Any day other than a Saturday, Sunday or any other day
on which banks in London are required or authorized to be closed.
Lien: Any security interest, lien, charge, pledge, equity, encumbrance or
adverse claim of any kind other than tax liens, mechanics' liens and any liens
that attach by operation of law.
Liquidating Receivable: A Receivable as to which the Servicer (i) has
reasonably determined, in accordance with its customary servicing procedures,
that eventual payment of amounts owing on such Receivable is unlikely, or (ii)
has repossessed and disposed of the Financed Vehicle.
Liquidation Expenses: With respect to (i) a Liquidating Receivable without
recourse to a Dealer, $300.00 (or such greater amount as the Servicer determines
necessary in accordance with its customary procedures to refurbish and dispense
of a repurchased Financed Vehicle) as an allowance for amounts charged to the
account of the Obligor, in keeping with the Servicer's customary procedures, for
refurbishing and disposition of the Financed Vehicle and other out-of-pocket
costs related to the liquidation; and (ii) a Liquidating Receivable with
recourse to a Dealer, $0.
Liquidation Proceeds: With respect to a Liquidating Receivable, all
amounts realized with respect to such Receivable net of amounts that are
required to be refunded to the Obligor on such Receivable.
Materiality Opinion: A written opinion of Kirkland & Ellis LLP, Mayer
Brown Rowe & Maw LLP or another nationally recognized law firm experienced in
securitization matters reasonably acceptable to the Swap Counterparty, addressed
to the Swap Counterparty and in form and substance reasonably satisfactory to
the Swap Counterparty.
Minimum Servicing Standards: Servicing standards identified as "Minimum
Servicing Standards" in The Uniform Single Attestation Program for Mortgage
Bankers effective for fiscal years ended on or after December 15, 1995 or in any
successor program, to the extent such standards are applicable to the servicing
obligations set forth in the Trust Sale and Servicing Agreement and the Pooling
and Servicing Agreement.
18
Monthly Advance: As of a Distribution Date, either a Scheduled Interest
Advance or a Simple Interest Advance, or both, as applicable, in respect of the
related Monthly Period.
Monthly Period: With respect to a Distribution Date, the calendar month
preceding the month in which such Distribution Date occurs; provided, however,
that with respect to the first Distribution Date, the Monthly Period shall be
the period from and including the Initial Cutoff Date to the end of the calendar
month preceding such Distribution Date.
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.
New York UCC: The UCC as in effect on the Initial Closing Date in the
State of New York, and as may be amended from time to time.
Non-Subvented Receivable: A Receivable that was or will be acquired or
originated by GMAC or its subsidiaries that is not a Subvented Receivable.
Note Class Interest Distributable Amount: With respect to any class or
tranche of Notes and any Distribution Date, the product of (i) the outstanding
principal balance of such class or tranche of Notes as of the close of the
preceding Distribution Date (or, in the case of the first Distribution Date, the
outstanding principal balance of such class or tranche of Notes on the Initial
Closing Date) and (ii) in the case of (a) the Fixed Rate Notes, one-twelfth of
the Interest Rate for such class or tranche (or, in the case of the first
Distribution Date, the Interest Rate for such class multiplied by a fraction,
the numerator of which is 36 and the denominator of which is 360) and (b) the
Floating Rate Notes, the product of the Interest Rate for such class or tranche
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 the case of the first Distribution Date, from and including the Initial
Closing Date), to but excluding that Distribution Date and the denominator of
which is 360.
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 Initial Closing
Date, between the Issuer and The Depository Trust Company, as the initial
Clearing Agency relating to the Notes, substantially in the form of Exhibit B to
the Indenture, as the same may be amended and supplemented from time to time.
Note Distribution Account: The account designated as such, established and
maintained pursuant to Section 5.01(a)(ii) of the Trust Sale and Servicing
Agreement.
19
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, an amount expressed to the seventh decimal place and computed by the
Servicer which is equal to the Note Principal Balance for such class as of the
close of such Distribution Date divided by the initial Note Principal Balance
for such class.
Note Principal Balance: With respect to a class of Notes and any
Distribution Date, the initial aggregate principal balance of such class of
Notes, reduced by all previous payments to the Noteholders of such class in
respect of principal of such Notes.
Note Register: With respect to any class of Notes, the register of such
Notes specified in Section 2.4 of the Indenture.
Note Registrar: The registrar at any time of the Note Register, appointed
pursuant to Section 2.4 of the Indenture.
Notes: The Class A-1 Notes, the Class A-2 Notes, the Class A-3 Notes, the
Class A-4 Notes, the Class B Notes, the Class C Notes and the Class D Notes.
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' Regular Principal Distributable Amount: With respect to the
Notes, for any Distribution Date related to the Amortization Period, the lesser
of:
(a) the Aggregate Note Principal Balance as of the close of the
immediately preceding Distribution Date; and
(b) the remainder, if any, of:
(i) the Principal Distributable Amount minus
(ii) the Aggregate Noteholders' Priority Principal Distributable
Amount, if any, with respect to such Distribution Date.
For any Distribution Date related to the Revolving Period, the Noteholders'
Regular Principal Distributable Amount shall be equal to zero.
Notwithstanding the foregoing, on the Final Scheduled Distribution Date
for any class of the Notes, the Noteholders' Regular Principal Distributable
Amount shall equal the greater of (i) the amount specified above and (ii) the
outstanding principal balance of such class of Notes as of the preceding
Distribution Date.
20
Obligor: The purchaser or the co-purchasers of the Financed Vehicle or
other person who owes payments under a Receivable.
Offered Notes: Together, the Class A Notes, the Class B Notes and the
Class C 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 in the Indenture, 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: 10.00%.
Outstanding: With respect to the Notes, as of the date of determination,
all Notes theretofore authenticated and delivered under the Indenture except:
Section 9.42 Notes theretofore cancelled by the Indenture Trustee or
delivered to the Indenture Trustee for cancellation;
Section 9.43 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
Section 9.44 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
21
Trustee the pledgor's right so to act with respect to such Notes and that the
pledgee is not the Issuer, any other obligor upon the Notes, the Seller or any
Affiliate of any of the foregoing Persons.
Outstanding Amount: As of any date, the aggregate principal amount of all
Notes, or a class of Notes, as applicable, Outstanding at such date.
Outstanding Monthly Advances: Outstanding Scheduled Interest Advances and
Outstanding Simple Interest Advances, collectively.
Outstanding Scheduled Interest Advances: As of the last day of a Monthly
Period and with respect to a Scheduled Interest Receivable, the sum of all
Scheduled Interest Advances made on or prior to such date minus all payments
made or collections received on or prior to such date which are specified in
Section 5.04(a) of the Trust Sale and Servicing Agreement as reducing
Outstanding Scheduled Interest Advances with respect to such Receivable.
Outstanding Simple Interest Advances: As of the last day of a Monthly
Period, the sum of all Simple Interest Advances made on or prior to such date
minus the sum of (i) all payments to the Servicer made on or prior to such date
pursuant to Section 5.04(b) of the Trust Sale and Servicing Agreement and (ii)
all Excess Simple Interest Collections paid to the Servicer made on or prior to
such date; provided, however, that Outstanding Simple Interest Advances shall
never be deemed to be less than zero.
Overcollateralization Target Amount: The product of 1.50% multiplied by
the Initial Aggregate Receivables Principal Balance.
Overdue Payment: With respect to a Distribution Date and to a Scheduled
Interest Receivable, all payments received by the Servicer from or for the
account of the related Obligor during the related Monthly Period in excess of
any Supplemental Servicing Fees (excluding any Investment Earnings during the
related Monthly Period), to the extent of the Outstanding Scheduled Interest
Advances relating to such Receivable.
Owner: As defined in Section 1.02 of the Pooling and Servicing Agreement.
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 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: Deutsche Bank Trust Company Delaware, a Delaware banking
corporation, not in its individual capacity but solely as trustee, or any
successor trustee under the Trust Agreement.
Parity Reinvestment Amount: With respect to any Distribution Date during
the Revolving Period, the excess, if any, of the Aggregate Note Principal
Balance as of the preceding Distribution Date over the Aggregate Receivables
Principal Balance as of the last day of the Monthly Period related to such
current Distribution Date.
22
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. The initial Paying Agent under the Trust Agreement shall
be Deutsche Bank Trust Company Americas.
Payment Ahead: With respect to a Distribution Date and to a Scheduled
Interest Receivable, any Excess Payment (not representing prepayment in full of
such Receivable) that is of an amount such that the sum of such Excess Payment
and the Deferred Prepayment is equal to or less than three times the Scheduled
Payment.
Payment Ahead Servicing Account: The account designated as such,
established and maintained pursuant to Section 5.01(a)(iv) of the Trust Sale and
Servicing Agreement.
Person: Any legal person, including any individual, corporation,
partnership, joint venture, association, limited liability company, 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 9-102(47) of the New York UCC and are susceptible
of physical delivery and (ii) Security Certificates.
Pooling and Servicing Agreement: The Pooling and Servicing Agreement,
dated as of the Initial Closing Date, between GMAC and the Seller, as amended
and supplemented from time to time.
Predecessor Note: With respect to any particular Note, every previous Note
evidencing all or a portion of the same debt as that evidenced by such
particular Note; and, for the purpose of this definition, any Note authenticated
and delivered under Section 2.5 of the Indenture in lieu of a mutilated, lost,
destroyed or stolen Note shall be deemed to evidence the same debt as the
mutilated, lost, destroyed or stolen Note.
Prepayment: Any Excess Payment other than a Payment Ahead.
Prepayment Surplus: With respect to any Distribution Date on which a
Prepayment is to be applied with respect to a Scheduled Interest Receivable,
that portion of such Prepayment, net of any Rebate.
Principal Balance: With respect to any Scheduled Interest Receivable, as
of any date, the Amount Financed minus the sum of the following amounts:
Section 9.45 that portion of all Scheduled Payments due on or after the
Cutoff Date and on or prior to such date allocable to principal;
23
Section 9.46 any Warranty Payment or Administrative Purchase Payment to
the extent allocable to principal; and
Section 9.47 any Prepayments applied by the Servicer to reduce the
Principal Balance of such Scheduled Interest Receivable.
With respect to any Simple Interest Receivable, as of any date, the Amount
Financed minus the sum of the following amounts:
Section 9.48 that portion of all payments received from the related
Obligor on or prior to such date allocable to principal; and
Section 9.49 any Warranty Payment or Administrative Purchase Payment to
the extent allocable to principal.
Principal Distributable Amount: With respect to any Distribution Date
during the Amortization Period, the excess of (i) the Aggregate Note Principal
Balance as of the close of the preceding Distribution Date over (ii) the result
of the Aggregate Receivables Principal Balance as of the close of business on
the last day of the immediately preceding Monthly Period minus the
Overcollateralization Target Amount.
Private Notes: The Class D Notes.
Proceeding: Any suit in equity, action at law or other judicial or
administrative proceeding.
Purchased Property: As defined in Section 2.01(b) of the Pooling and
Servicing Agreement.
Rating Agencies: As of any date, the nationally recognized statistical
rating organizations requested by the Seller to provide ratings on the Notes
which are rating the Notes on such date.
Rating Agency Condition: With respect to any action, the condition that
each Rating Agency shall have been given at least ten (10) days prior notice
thereof and that each of the Rating Agencies shall have notified the Seller, the
Servicer, the Issuer and the Indenture Trustee in writing that such action shall
not result in a downgrade or withdrawal of the then current rating of the Notes.
Rebate: With respect to a given date and a Scheduled Interest Receivable,
the rebate under such Receivable that is or would be payable to the Obligor for
unearned finance charges or any other charges rebatable to the Obligor upon the
payment on such date of all remaining Scheduled Payments.
Receivable: A retail instalment sale contract or direct purchase money
loan for a Financed Vehicle that is included in the Schedule of Initial
Receivables and any Additional Receivable that is included in a Schedule of
Additional Receivables and all rights and obligations thereunder.
24
Receivable File: The documents listed in Section 2.04 of the Pooling and
Servicing Agreement pertaining to a particular Receivable.
Receivable Principal Balance: (i) with respect to a Subvented Receivable,
an amount equal to the present value as of the close of business on the
Applicable Cutoff Date of all remaining payments on the Subvented Receivable
which have not been applied prior to the Applicable Cutoff Date, discounted at
the Discount Rate from the last day of the calendar month in which each
scheduled payment is to become due to that Distribution Date and (ii) with
respect to a Non-Subvented Receivable, an amount equal to the outstanding
principal balance of the Non-Subvented Receivable on the Applicable Cutoff Date.
Receivables Purchase Price: The amount described in Section 2.02 of the
Pooling and Servicing Agreement.
Record Date: (i) with respect to the Notes and with respect to any
Distribution Date, the close of business on the day immediately preceding such
Distribution Date, or if Definitive Notes are issued for any class of Notes,
with respect to such class of Notes the last day of the preceding Monthly Period
and (ii) with respect to the Certificates and with respect to any Distribution
Date, the close of business on the date immediately preceding such Distribution
Date, or if Definitive Certificates are issued, the last day of the preceding
Monthly Period.
Redemption Date: As defined in Section 10.1 of the Indenture.
Redemption Price: With respect to the Notes, the unpaid principal amount
of such Notes, plus accrued and unpaid interest thereon.
Reference Bank Rate: For any Distribution Date other than the initial
Distribution Date, a rate determined on the basis of the rates at which deposits
in United States dollars are offered by reference banks 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 then Outstanding
Amount of the applicable class or tranche of the then outstanding Floating Rate
Notes. The reference banks shall be four major banks that are engaged in
transactions in the London interbank market, selected by the Indenture Trustee
after consultation with the Seller. 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 then Outstanding Amount of the applicable class or
tranche of the then outstanding Floating Rate Notes. If no quotation can be
obtained, then LIBOR will be the rate from the prior Distribution Date.
25
Registered Holder: The Person in whose name a Note is registered on the
Note Register on the applicable Record Date.
Released Administrative Amount: With respect to a Distribution Date and a
purchased Administrative Receivable, the Deferred Prepayment on such Receivable.
Released Warranty Amount: With respect to a Distribution Date and a
repurchased Warranty Receivable, the Deferred Prepayment on such Receivable.
Required Deposit Rating: A rating on short-term unsecured debt obligations
of P-1 by Moody's Investors Service, Inc.; A-1+ by Standard & Poor's Ratings
Services; and, if rated by Fitch, Inc., F-1+ by Fitch, Inc. 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 $12,986,319.33.
Reserve Account Property: (i) The Reserve Account and all proceeds thereof
(other than the Investment Earnings thereon) including all cash, investments,
investment property and other amounts held from time to time in the Reserve
Account (whether in the form of deposit accounts, Physical Property, book-entry
securities, Uncertificated Securities, Financial Assets or otherwise) and (ii)
the Reserve Account Initial Deposit and all proceeds thereof (other than the
Investment Earnings thereon).
Responsible Officer: With respect to the Indenture Trustee or the Owner
Trustee, any officer within the Corporate Trust Office of such trustee or with
respect to the Owner Trustee, any 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.
Revolving Note: The Revolving Note issued by CARI to GMAC under the
Intercompany Advance Agreement.
Revolving Period: The period beginning on the Initial Closing Date and
ending on (but not including) the Amortization Date.
Schedule of Additional Receivables: The schedule of Additional Receivables
attached to the First Step Additional Receivables Assignment delivered on each
Subsequent Closing Date
26
and 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.
Schedule of Initial Receivables: The schedule of Initial Receivables
attached to the First Step Initial Receivables Assignment delivered on the
Initial Closing Date and 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.
Scheduled Interest Advance: With respect to a Scheduled Interest
Receivable, the amount, as of the last day of the related Monthly Period, which
the Servicer is required to advance pursuant to Section 5.04(a) of the Trust
Sale and Servicing Agreement.
Scheduled Interest Receivable: Any Receivable pursuant to which the
payments due from the Obligors during any month are allocated between finance
charges and principal on a scheduled basis, without regard to the period of time
which has elapsed since the preceding payment was made, using the actuarial
method.
Scheduled Payment: With respect to a Distribution Date and a Scheduled
Interest Receivable, the payment in respect of such Scheduled Interest
Receivable due from the Obligor in the related Monthly Period.
Second Priority Principal Distributable Amount: With respect to any
Distribution Date related to the Amortization Period, an amount, not less than
zero, equal to the difference between (i) the excess, if any, of (a) the
aggregate outstanding principal balance of the Class A Notes and the Class B
Notes as of the preceding Distribution Date (after giving effect to any
principal payments made on the Class A Notes and the Class B Notes on such
preceding Distribution Date) over (b) the Aggregate Receivables Principal
Balance as of the close of business on the last day of the immediately preceding
Monthly Period, and (ii) the First Priority Principal Distributable Amount, if
any, with respect to such Distribution Date.
Second Step Additional Receivables Assignment: As defined in Section
2.01(b) of the Trust Sale and Servicing Agreement.
Second Step Initial Receivables Assignment: As defined in Section 2.01(a)
of the Trust Sale and Servicing Agreement.
Second Step Receivables Assignments: As defined in Section 2.01(b) of the
Trust Sale and Servicing Agreement.
Secretary of State: The Secretary of State of the State of Delaware.
Secured Obligations: Obligations consisting of the principal of and
interest on, and any other amounts owing in respect of, the Notes and amounts
allocable pursuant to the Indenture with respect to the Certificates.
Secured Parties: Each Noteholder.
Securities: The Notes and the Certificates.
27
Securities Act: The Securities Act of 1933, as amended.
Securities Intermediary: As defined in Section 5.01(b)(i) of the Trust
Sale and Servicing Agreement.
Security Certificate: Has the meaning given such term in Section
8-102(a)(16) of the New York UCC.
Security Entitlement: Has the meaning given such term in Section
8-102(a)(17) of the New York UCC.
Securityholder: A Holder of a Note or a Certificate.
Seller: The Person executing the Trust Sale and Servicing Agreement as the
Seller, or its successor in interest pursuant to Section 3.03 of the Trust Sale
and Servicing Agreement.
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 3.10 of the Pooling and Servicing
Agreement.
Simple Interest Advance: The amount, as of the last day of the related
Monthly Period, which the Servicer is required to advance pursuant to Section
5.04(b) of the Trust Sale and Servicing Agreement.
Simple Interest Method: The method of allocating each monthly payment on a
Simple Interest Receivable to principal and interest pursuant to which the
portion of such payment that is allocated to interest is equal to the product of
the outstanding principal balance thereon multiplied by the fixed rate of
interest applicable to such Receivable multiplied by the period of time elapsed
(expressed as a fraction of a calendar year) since the preceding payment of
interest with respect to such principal balance was made.
Simple Interest Receivable: Any Receivable under which the portion of each
monthly payment allocable to earned interest and the portion allocable to the
Amount Financed is determined in accordance with the Simple Interest Method. For
purposes hereof, all payments with respect to a Simple Interest Receivable shall
be allocated to principal and interest in accordance with the Simple Interest
Method.
Specified Reserve Account Balance: For any Distribution Date, the sum of:
Section 9.50 the lesser of
(a) 0.50% of the Initial Aggregate Receivables Principal Balance;
and
28
(b) the outstanding principal balance of the Notes 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
Section 9.51 for each Distribution Date related to the Revolving Period,
if an Accumulation Amount shall exist at the close of business on such
Distribution Date, the product of:
(a) the amount on deposit in the Accumulation Account on such
Distribution Date (after giving effect to all payments and distributions to be
made on such Distribution Date); and
(b) the excess of (1) the Weighted Average Note Rate plus 1.00% over
(2) LIBOR;
divided by
(c) 12.
State: Any one of the 50 states of the United States of America or the
District of Columbia.
Statutory Trust Act: Chapter 38 of Title 12 of the Delaware Code, 12 Del.
Codess.3801 et seq., as the same may be amended from time to time.
Subsequent Closing Date: With respect to each Additional Receivable, the
Distribution Date related to the Revolving Period on which such Additional
Receivable is sold, transferred, assigned or otherwise conveyed (i) from GMAC to
the Seller and (ii) from the Seller to the Issuer.
Subsequent Cutoff Date: With respect to any Additional Receivable, the
first calendar day of the month in which such Additional Receivable is purchased
by CARI from GMAC.
Subvented Receivable: A Receivable that was or will be acquired or
originated by GMAC or its subsidiaries under special incentive rate financing
programs.
Supplemental Servicing Fees: With respect to a Distribution Date, all late
fees, prepayment charges and other administrative fees and expenses or similar
charges allowed by applicable law with respect to Receivables, collected (from
whatever source) on the Receivables held by the Trust during the related Monthly
Period.
Swap Counterparty: Credit Suisse First Boston International will serve as
swap counterparty under each Interest Rate Swap, or any successor or replacement
Swap Counterparty from time to time under each Interest Rate Swap.
Swap Counterparty Rights Agreement: The Swap Counterparty Rights
Agreement, dated as of the Initial Closing Date, among the Swap Counterparty,
the Issuer, GMAC, as Servicer,
29
Custodian, and Administrator, the Seller, the Indenture Trustee, and the Owner
Trustee, as amended and supplemented from time to time.
Target Reinvestment Amount: As of any Distribution Date during the
Revolving Period, the excess, if any, of the Aggregate Note Principal Balance as
of the preceding Distribution Date or the Initial Closing Date, as applicable,
over the remainder of (i) the Aggregate Receivables Principal Balance as of the
last day of the Monthly Period related to such current Distribution Date minus
(ii) the Overcollateralization Target Amount.
Temporary Notes: The Notes specified in Section 2.3 of the Indenture.
Third Party Instrument: Each Interest Rate Swap, each Contingent Interest
Rate Swap and the Triparty Agreement.
Third Priority Principal Distributable Amount: With respect to any
Distribution Date related to the Amortization Period, an amount, not less than
zero, equal to the difference between (i) the excess, if any, of (a) the
aggregate outstanding principal balance of the Class A Notes, the Class B Notes,
and the Class C Notes as of the preceding Distribution Date (after giving effect
to any principal payments made on the Class A Notes, the Class B Notes, and the
Class C Notes on such preceding Distribution Date) over (b) the Aggregate
Receivables Principal Balance as of the close of business on the last day of the
immediately preceding Monthly Period, and (ii) the sum of (a) the First Priority
Principal Distributable Amount, if any, with respect to such Distribution Date
and (b) the Second Priority Principal Distributable Amount, if any, with respect
to such Distribution Date.
Total Available Amount: With respect to any Distribution Date, the sum of
the Available Interest and the Available Principal for such Distribution Date,
the Accumulation Amount as of the opening of business on 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.
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 Initial Closing Date, including all schedules, and confirmations thereto,
among the Trust, the Swap Counterparty and GMAC, as the same may be amended,
supplemented, renewed, extended or replaced from time to time.
Trust: Capital Auto Receivables Asset Trust 2004-2, a Delaware statutory
trust created by the Certificate of Trust and described in the Trust Agreement.
Trust Agreement: The Trust Agreement, dated as of the Initial Closing
Date, between the Seller and the Owner Trustee, as amended and supplemented from
time to time.
30
Trust Estate: All money, instruments, rights and other property that are
subject or intended to be subject to the lien and security interest of the
Indenture for the benefit of the Secured Parties (including, without limitation,
all property and interests Granted to the Indenture Trustee), including all
proceeds thereof, and the Reserve Account and the Reserve Account Property
pledged to the Indenture Trustee pursuant to the Trust Sale and Servicing
Agreement.
Trust Indenture Act or TIA: The Trust Indenture Act of 1939 as in force on
the date hereof, unless otherwise specifically provided.
Trust Sale and Servicing Agreement: The Trust Sale and Servicing
Agreement, dated as of the Initial Closing Date, between the Seller, the
Servicer and the Trust, as amended and supplemented from time to time.
UCC: The Uniform Commercial Code as in effect in the relevant jurisdiction
from time to time.
Unaffiliated Certificateholder: Shall mean any Certificateholder other
than the Seller or an Affiliate of the Seller.
Uncertificated Security: Has the meaning given to such term in Section
8-102(a)(18) of the New York UCC.
Undertaking Letter: The letter in substantially the form set forth in
Exhibit C of the Trust Agreement.
Voting Interests: The voting interests in the Certificates. Until such
time, if any, as the Seller shall transfer any interest in the Certificates, the
Seller shall hold 100% of the Voting Interests. Upon and after any such
transfer, the Voting Interests shall be determined as provided in Section 3.4(b)
of the Trust Agreement.
Warranty Payment: With respect to a Distribution Date and to a Warranty
Receivable to be repurchased as of the last day of the related Monthly Period:
Section 9.52 in the case of a Scheduled Interest Receivable, a payment
equal to the sum of:
(a) the sum of all remaining Scheduled Payments on such Scheduled
Interest Receivable minus the Rebate as of the last day of such Monthly Period;
(b) all past due Scheduled Payments with respect to which a
Scheduled Interest Advance has not been made on or prior to the last day of such
Monthly Period;
(c) any reimbursement made on or prior to the last day of such
Monthly Period pursuant to the last sentence of subsection 5.04(a) of the Trust
Sale and Servicing Agreement with respect to such Receivable; and
(d) all Outstanding Scheduled Interest Advances made on or prior to
the last day of such Monthly Period with respect to such Receivable, minus any
Liquidation Proceeds (to the
31
extent applied to reduce the Principal Balance of such Receivable) previously
received on or prior to the last day of such Monthly Period with respect to such
Receivable; or
Section 9.53 in the case of a Simple Interest Receivable, a payment equal
to the Amount Financed minus that portion of all payments received from the
related Obligor on or prior to the last day of the related Monthly Period
allocable to principal and minus any Liquidation Proceeds (to the extent applied
to reduce the Principal Balance of such Simple Interest Receivable) previously
received with respect to such Simple Interest Receivable.
Warranty Purchaser: The Person described in Section 2.05 of the Trust Sale
and Servicing Agreement.
Warranty Receivable: A Receivable which the Warranty Purchaser has become
obligated to repurchase pursuant to Section 2.05 of the Trust Sale and Servicing
Agreement.
Weighted Average Note Rate: 3.41% per annum.
32
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.
(f) Reference to a Class of Notes. Unless otherwise specified,
references to a Class of Notes includes all the tranches included in
such class of Notes.
APPENDIX B
Notice Addresses and Procedures
All requests, demands, directions, consents, waivers, notices,
authorizations and communications provided or permitted under any Basic Document
to be made upon, given or furnished to or filed with the Seller, the Servicer,
the Administrator, the Indenture Trustee, the Issuer, the Owner Trustee, the
Custodian or the Rating Agencies shall be in writing, personally delivered, sent
by facsimile with a copy to follow via first class mail or mailed by certified
mail-return receipt requested, and shall be deemed to have been duly given upon
receipt:
(a) in the case of the Seller, at the following address:
Capital Auto Receivables, Inc.
Corporation Trust Center
1209 Orange Street
Wilmington, DE 19801,
with a copy to:
Manager - Securitization,
General Motors Acceptance Corporation
200 Renaissance Center
12th Floor, MC: 482-B12-C24
Detroit, MI 48265,
(b) in the case of the Servicer, the Administrator or the
Custodian, at the following address:
Director - Global Securitization
General Motors Acceptance Corporation
200 Renaissance Center
12th Floor, MC: 482-B12-C24
Detroit, MI 48265,
(c) in the case of the Indenture Trustee, at its Corporate Trust
Office, and
(d) in the case of the Issuer or the Owner Trustee, to the Owner
Trustee at its Corporate Trust Office,
with a copy to:
Deutsche Bank Trust Company Americas
60 Wall Street , 26th Floor
Mail Stop: NYC60-2606
New York, NY 10005
Phone: 212-250-2946
Fax: 212-797-8606/8607
and with a copy to:
Capital Auto Receivables, Inc.,
Attention: Manager - Securitization
200 Renaissance Center
12th Floor, MC: 482-B12-C24
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:
(e) in the case of Moody's Investors Service, Inc., to
Moody's Investors Service, Inc.
ABS Monitoring Department,
99 Church Street,
New York, NY 10007,
(f) in the case of Standard & Poor's Ratings Services, to
Standard & Poor's Ratings Services,
55 Water Street
40th Floor
New York, NY 10041
Attention: Asset Backed Surveillance Department,
(g) in the case of Fitch, Inc., to
Fitch, Inc.,
One State Street Plaza,
New York, NY 10004,
Attention: Asset-Backed Surveillance,
(h) in the case of Dominion Bond Rating Service, Inc., to
Dominion Band Rating Service, Inc.,
55 Broadway,
New York, NY 10006,
Attention: Asset-Backed Surveillance, and
(i) in the case of Swap Counterparty, to
Credit Suisse First Boston International
One Cabot Square
London E14 4QJ
England
2
or at such other address as shall be designated by such Person in a written
notice to the other parties to this Agreement.
Where any Basic Document provides for notice to Noteholders or
Certificateholders of any condition or event, such notice shall be sufficiently
given (unless otherwise herein expressly provided) if it is in writing and
mailed, first-class, postage prepaid to each Noteholder or Certificateholder
affected by such condition or event, at such Person's address as it appears on
the Note Register or Certificate Register, as applicable, not later than the
latest date, and not earlier than the earliest date, prescribed in such Basic
Document for the giving of such notice. If notice to Noteholders or
Certificateholders is given by mail, neither the failure to mail such notice nor
any defect in any notice so mailed to any particular Noteholders or
Certificateholders shall affect the sufficiency of such notice with respect to
other Noteholders or Certificateholders, and any notice that is mailed in the
manner herein provided shall conclusively be presumed to have been duly given
regardless of whether such notice is in fact actually received.
3