EXECUTION COPY
EXHIBIT 99.3
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ADMINISTRATION AGREEMENT
AMONG
CAPITAL AUTO RECEIVABLES ASSET TRUST 2006-1,
ISSUER,
GENERAL MOTORS ACCEPTANCE CORPORATION,
ADMINISTRATOR
AND
JPMORGAN CHASE BANK, N.A.,
INDENTURE TRUSTEE
DATED AS OF FEBRUARY 16, 2006
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ADMINISTRATION AGREEMENT, dated as of February 16, 2006, among CAPITAL
AUTO RECEIVABLES ASSET TRUST 2006-1, a Delaware statutory trust, as issuer (the
"Issuer"), GENERAL MOTORS ACCEPTANCE CORPORATION, a Delaware corporation, as
administrator (the "Administrator"), and JPMORGAN CHASE BANK, N.A., a national
banking association organized under the laws of the United States of America,
not in its individual capacity but solely as indenture trustee (the "Indenture
Trustee").
WITNESSETH:
WHEREAS, the Issuer is issuing Notes pursuant to an indenture, dated as
of February 16, 2006 (as amended and supplemented from time to time, the
"Indenture"), between the Issuer and the Indenture Trustee;
WHEREAS, the Issuer has entered into (or assumed) certain agreements in
connection with the issuance of the Notes and the Certificates, including (i)
the Trust Sale and Servicing Agreement, (ii) the Note Depository Agreement and
(iii) the Indenture;
WHEREAS, pursuant to the Basic Documents, the Issuer and Deutsche Bank
Trust Company Delaware, as Owner Trustee, are required to perform certain duties
in connection with (a) the Notes and the Collateral and (b) the Certificates;
WHEREAS, the Issuer and the Owner Trustee desire to have the
Administrator perform certain of the duties of the Issuer and the Owner Trustee
referred to in the preceding clause, and to provide such additional services
consistent with the terms of this Agreement and the Basic Documents as the
Issuer and the Owner Trustee may from time to time request;
WHEREAS, the Administrator has the capacity to provide the services
required hereby and is willing to perform such services for the Issuer and the
Owner Trustee on the terms set forth herein;
NOW, THEREFORE, in consideration of the premises and the mutual
covenants herein contained, the parties agree as follows:
1. Certain Definitions. Capitalized terms used but not
otherwise defined herein shall have the respective meanings assigned to them in
Part I of Appendix A to the Trust Sale and Servicing Agreement of even date
herewith among the Issuer, the Seller and General Motors Acceptance Corporation,
as Servicer (as it may be amended, modified or supplemented from time to time,
the "Trust Sale and Servicing Agreement"). All references herein to the
"Agreement" are to this Administration Agreement as it may be amended, modified
or supplemented from time to time. All references herein to Sections are to
sections of this Agreement unless otherwise specified. The rules of construction
set forth in Part II of Appendix A to the Trust Sale and Servicing Agreement
shall be applicable to this Agreement.
2. Duties of the Administrator.
(a) Duties with Respect to the Note Depository Agreement and the
Indenture.
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(i) The Administrator agrees to perform all its duties as
Administrator and the duties of the Issuer under the Indenture, the Swap
Counterparty Rights Agreement and the Note Depository Agreement. In addition,
the Administrator shall consult with the Owner Trustee regarding the duties of
the Issuer under the Indenture, the Swap Counterparty Rights Agreement and the
Note Depository Agreement. The Administrator shall monitor the performance of
the Issuer and shall advise the Owner Trustee when action is necessary to comply
with the Issuer's duties under the Indenture, the Swap Counterparty Rights
Agreement and the Note Depository Agreement. The Administrator shall prepare for
execution by the Issuer or shall cause the preparation by other appropriate
persons of all such documents, reports, filings, instruments, certificates,
notices and opinions as it shall be the duty of the Issuer to prepare, file or
deliver pursuant to the Indenture, the Swap Counterparty Rights Agreement and
the Note Depository Agreement. In furtherance of the foregoing, the
Administrator shall take all appropriate action that it is the duty of the
Issuer to take pursuant to the Indenture and the Swap Counterparty Rights
Agreement, including, without limitation, such of the foregoing as are required
with respect to the following matters under the Indenture (references are to
sections of the Indenture and the Swap Counterparty Rights Agreement, as
applicable):
(A) the preparation of or obtaining of the documents
and instruments required for authentication of the Notes and delivery of such
documents or instruments to the Indenture Trustee (Section 2.2 of the
Indenture);
(B) the duty to cause the Note Register to be kept
and to give the Indenture Trustee notice of any appointment of a new Note
Registrar and the location, or change in location, of the Note Register (Section
2.4 of the Indenture);
(C) the notification of Noteholders of the final
principal payment on their Notes (Section 2.7(d) of the Indenture);
(D) the preparation, obtaining or filing of the
instruments, opinions and certificates and other documents required for the
release of Collateral (Section 2.9 of the Indenture);
(E) the preparation of Definitive Notes and arranging
the delivery thereof (Section 2.12 of the Indenture);
(F) the maintenance of an office in the Borough of
Manhattan, the City of New York, for registration of transfer or exchange of
Notes (Section 3.2 of the Indenture);
(G) the duty to cause newly appointed Paying Agents,
if any, to deliver to the Indenture Trustee the instrument specified in the
Indenture regarding funds held in trust (Section 3.3(c) of the Indenture);
(H) the direction to the Indenture Trustee to deposit
monies with Paying Agents, if any, other than the Indenture Trustee (Section
3.3(c) of the Indenture);
(I) the obtaining and preservation of the Issuer's
qualification to do business in each jurisdiction in which such qualification is
or shall be necessary to protect the
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validity and enforceability of the Indenture, the Notes, the Collateral and each
other instrument and agreement included in the Trust Estate (Section 3.4 of the
Indenture);
(J) the preparation of all supplements, amendments,
financing statements, continuation statements, instruments of further assurance
and other instruments, in accordance with Section 3.5 of the Indenture,
necessary to protect the Trust Estate (Section 3.5 of the Indenture);
(K) the delivery of the Opinion of Counsel on the
Closing Date, in accordance with Section 3.6(a) of the Indenture, the delivery
of the Opinion of Counsel on or before March 15 in each calendar year, beginning
March 15, 2006 regarding maintenance of security liens and security interests in
accordance with Section 3.6(b) of the Indenture, each of which relates to the
Trust Estate, and the annual delivery of the Officers' Certificate and certain
other statements, in accordance with Section 3.9 of the Indenture, as to
compliance with the Indenture (Sections 3.6(a), 3.6(b) and 3.9 of the
Indenture);
(L) the identification to the Indenture Trustee in an
Officers' Certificate of a Person with whom the Issuer has contracted to perform
its duties under the Indenture (Section 3.7(b) of the Indenture);
(M) the notification of the Indenture Trustee and the
Rating Agencies of a Servicer Default pursuant to the Trust Sale and Servicing
Agreement or the Pooling and Servicing Agreement and, if such Servicer Default
arises from the failure of the Servicer to perform any of its duties under the
Trust Sale and Servicing Agreement, the taking of all reasonable steps available
to remedy such failure (Section 3.7(d) of the Indenture);
(N) the preparation and obtaining of documents and
instruments required for the release of the Issuer from its obligations under
the Indenture (Sections 3.10 and 3.11 of the Indenture);
(O) the delivery of notice to the Indenture Trustee
and the Rating Agencies of each Event of Default under the Indenture, each
Servicer Default, each default by the Seller under the Trust Sale and Servicing
Agreement and each default by GMAC under the Pooling and Servicing Agreement
(Section 3.19 of the Indenture);
(P) the monitoring of the Issuer's obligations as to
the satisfaction and discharge of the Indenture and the preparation and delivery
of an Officers' Certificate, and the obtaining of the Opinion of Counsel and an
Independent Certificate relating thereto (Section 4.1 of the Indenture);
(Q) the compliance with any written directive of the
Indenture Trustee with respect to the sale of the Trust Estate in a commercially
reasonable manner if an Event of Default shall have occurred and be continuing
(Section 5.4 of the Indenture);
(R) the preparation and delivery of notice to
Noteholders and the Swap Counterparty of the resignation or removal of the
Indenture Trustee and the appointment of a successor Indenture Trustee (Section
6.8 of the Indenture);
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(S) the preparation of any written instruments
required to confirm more fully the authority of any co-trustee or separate
trustee and any written instruments necessary in connection with the resignation
or removal of any co-trustee or separate trustee (Section 6.10 of the
Indenture);
(T) the furnishing of the Indenture Trustee with the
names and addresses of Noteholders during any period when the Indenture Trustee
is not the Note Registrar (Section 7.1 of the Indenture);
(U) the preparation, the execution on behalf of the
Issuer and the filing with the Securities and Exchange Commission, any
applicable state agencies and the Indenture Trustee of documents required to be
filed on a periodic basis with, and summaries thereof as may be required by
rules and regulations prescribed by, the Securities and Exchange Commission and
any applicable state agencies and the transmission of such summaries, as
necessary, to the Noteholders (Section 7.3 of the Indenture);
(V) the opening of one or more accounts in the
Issuer's name, the preparation of Issuer Orders and Opinions of Counsel and all
other actions necessary with respect to investment and reinvestment of funds in
the Designated Accounts (Sections 8.2 and 8.3 of the Indenture);
(W) the preparation of an Issuer Request and
Officer's Certificate and the obtaining of an Opinion of Counsel, a Materiality
Opinion and Independent Certificates, if necessary, for the release of the Trust
Estate as defined in the Indenture (Sections 8.4 and 8.5 of the Indenture);
(X) the preparation of Issuer Orders and the
obtaining of Opinions of Counsel with respect to the execution of supplemental
indentures and the mailing to the Noteholders of notices with respect to such
supplemental indentures (Sections 9.1, 9.2 and 9.3 of the Indenture);
(Y) the execution and delivery of new Notes
conforming to any supplemental indenture (Section 9.6 of the Indenture);
(Z) the notification of Noteholders and the Rating
Agencies of redemption of the Notes or the duty to cause the Indenture Trustee
to provide such notification (Sections 10.1 and 10.2 of the Indenture);
(AA) the preparation of all Officer's Certificates,
Opinions of Counsel and Independent Certificates with respect to any requests by
the Issuer to the Indenture Trustee to take any action under the Indenture and
delivery thereof to the Indenture Trustee (Section 11.1(a) of the Indenture);
(BB) the preparation and delivery of Officers'
Certificates and the obtaining of Independent Certificates, if necessary, for
the release of property from the lien of the Indenture (Section 11.1(b) of the
Indenture);
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(CC) the notification of the Rating Agencies upon the
failure of the Indenture Trustee to give such notification, of the information
required pursuant to Section 11.4 (Section 11.4 of the Indenture);
(DD) the preparation and delivery to Noteholders, the
Indenture Trustee or any Paying Agent of any agreements with any Holder of a
Note with respect to alternate payment and notice provisions (Section 11.6 of
the Indenture);
(EE) the recording of the Indenture, if applicable
(Section 11.15 of the Indenture);
(FF) the delivery to the Indenture Trustee of an
Officer's Certificate and an Opinion of Counsel addressed to the Issuer, each
stating that any consolidation or merger of the Issuer and related supplemental
indenture shall have no material adverse tax consequence to the Swap
Counterparty, as required pursuant to Section 2.01(a) of the Swap Counterparty
Rights Agreement;
(GG) the delivery to the Indenture Trustee of an
Officer's Certificate and an Opinion of Counsel addressed to the Issuer, each
stating that any sale, conveyance, exchange, transfer or disposition of property
or assets of the Issuer and related supplemental indenture shall have no
material adverse tax consequence to the Swap Counterparty, as required pursuant
to Section 2.01(b) of the Swap Counterparty Rights Agreement;
(HH) the delivery of a copy to the Swap Counterparty
of any notice it shall deliver pursuant to Section 3.7(d) of the Indenture in
respect of the occurrence of a Servicer Default under the Trust Sale and
Servicing Agreement (Section 4.02(b) of the Swap Counterparty Rights Agreement);
(II) the delivery of prompt written notice to the
Swap Counterparty of each Event of Default under the Indenture, each Servicer
Default, each default on the part of the Seller of its obligations under the
Trust Sale and Servicing Agreement and each default on the part of GMAC of its
obligations under the Pooling and Servicing Agreement (Section 4.02(c) of the
Swap Counterparty Rights Agreement);
(JJ) the delivery to the Swap Counterparty, within
five (5) Business Days after learning of the occurrence thereof, of a copy of
the written notice in the form of an Officer's Certificate delivered to the
Indenture Trustee, of any event which with the giving of notice and the lapse of
time would become an Event of Default under Section 5.1(d) of the Indenture, its
status and what action the Issuer is taking or proposes to take with respect
thereto (Section 4.02(d) of the Swap Counterparty Rights Agreement);
(KK) the delivery of written notice to the Swap
Counterparty at least sixty (60) days prior to the removal of the Administrator
without cause pursuant to Section 10(d) of this Agreement (Section 4.10(a) of
the Swap Counterparty Rights Agreement);
(LL) the delivery to the Swap Counterparty of a copy
of any written notice from the Issuer to the Administrator effecting the
immediate removal of the Administrator
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pursuant to Section 10(d) of this Agreement (Section 4.10(b) of the Swap
Counterparty Rights Agreement);
(MM) the prompt transmittal to the Swap Counterparty
of any notice received by the Issuer from the Noteholders to the Swap
Counterparty (Section 4.12 of the Swap Counterparty Rights Agreement);
(NN) the delivery to the Swap Counterparty of
summaries of any information, documents or reports required to be filed by the
Issuer pursuant to Sections 7.3(a)(i) and 7.3(a)(ii) of the Indenture;
(OO) the delivery to the Swap Counterparty of a copy
of the Annual Statement of Compliance required by Section 3.9 of the Indenture
(Section 4.13(c) of the Swap Counterparty Rights Agreement); and
(ii) For so long as GMAC is both the Administrator and the
Servicer, the Administrator will perform those payment and indemnity obligations
of the Servicer under Section 3.01 of the Pooling and Servicing Agreement and
Section 6.01 of the Trust Sale and Servicing Agreement in the event that the
Servicer fails to perform such obligations.
(b) Additional Duties.
(i) In addition to the duties of the Administrator set forth
above, the Administrator shall perform all the duties of the Issuer under the
Basic Documents, including, without limitation, making all calculations and
shall prepare for execution by the Issuer or the Owner Trustee or shall cause
the preparation by other appropriate Persons of all such documents, reports,
filings, instruments, certificates, notices and opinions as it shall be the duty
of the Issuer or the Owner Trustee to prepare, file or deliver pursuant to the
Basic Documents, and at the request of the Owner Trustee shall take all
appropriate action that it is the duty of the Issuer or the Owner Trustee to
take pursuant to the Basic Documents. Subject to Section 7 of this Agreement,
and in accordance with the directions of the Owner Trustee, the Administrator
shall administer, perform or supervise the performance of such other activities
in connection with the Collateral (including the Basic Documents) as are not
covered by any of the foregoing provisions and as are expressly requested by the
Owner Trustee and are reasonably within the capability of the Administrator.
(ii) Notwithstanding anything in this Agreement or the Basic
Documents to the contrary, the Administrator shall be responsible for promptly
notifying the Owner Trustee if any withholding tax is imposed on the Issuer's
payments to a Certificateholder as contemplated in Section 5.2(c) of the Trust
Agreement. Any such notice shall specify the amount of any withholding tax
required to be withheld by the Owner Trustee pursuant to such provision.
(iii) Notwithstanding anything in this Agreement or the Basic
Documents to the contrary, the Administrator shall be responsible for
performance of the duties of the Owner Trustee set forth in Section 5.4 of the
Trust Agreement with respect to, among other things, accounting and reports to
Certificateholders; provided, however, that if the Owner Trustee is notified by
the Administrator that the Issuer is deemed to be taxable as a partnership for
federal income tax purposes, the Owner Trustee shall retain responsibility for
the distribution to the
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Certificateholders of the Schedule K-1s necessary to enable each
Certificateholder to prepare its federal and state income tax returns.
(iv) The Administrator may satisfy any obligations it may have
with respect to clauses (ii) and (iii) above by retaining, at the expense of the
Issuer payable by the Administrator, a firm of independent public accountants
acceptable to the Owner Trustee which shall perform the obligations of the
Administrator thereunder.
(v) The Administrator shall perform the duties of the
Administrator specified in Section 6.10 of the Trust Agreement required to be
performed in connection with the resignation or removal of the Owner Trustee,
and any other duties expressly required to be performed by the Administrator
under the Trust Agreement.
(vi) In carrying out the foregoing duties or any of its other
obligations under this Agreement, the Administrator may enter into transactions
with or otherwise deal with any of its Affiliates; provided, however, that the
terms of any such transactions or dealings shall be in accordance with any
directions received from the Issuer and shall be, in the Administrator's
opinion, no less favorable to the Issuer than would be available from Persons
that are not Affiliates of the Administrator.
(vii) The Administrator shall indemnify, defend and hold
harmless the Indenture Trustee and the Owner Trustee 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 or the Owner Trustee through the negligence,
willful misfeasance or bad faith of the Administrator in the performance of its
duties under this Agreement or by reason of reckless disregard of its
obligations and duties under this Agreement. Indemnification under this Section
2(b)(vii) shall include, without limitation, reasonable fees and expenses of
counsel and expenses of litigation. If the Administrator has made any indemnity
payments pursuant to this Section 2(b)(vii) and the recipient thereafter
collects any of such amounts from others, the recipient shall promptly repay
such amounts collected to the Administrator, without interest.
(c) Non-Ministerial Matters.
(i) With respect to matters that in the reasonable judgment of
the Administrator are non-ministerial, the Administrator shall not take any
action unless, within a reasonable time before the taking of such action, the
Administrator shall have notified the Owner Trustee of the proposed action and
the Owner Trustee shall not have withheld consent or provided an alternative
direction. For the purpose of the preceding sentence, "non-ministerial matters"
shall include, without limitation:
(A) the amendment of or any supplement to the
Indenture;
(B) the initiation of any claim or lawsuit by the
Issuer and the compromise of any action, claim or lawsuit brought by or against
the Issuer;
(C) the amendment, change or modification of any of
the Basic Documents;
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(D) the appointment of successor Note Registrars,
successor Paying Agents and successor Indenture Trustees pursuant to the
Indenture or the appointment of successor Administrators or successor Servicers,
or the consent to the assignment by the Note Registrar, Paying Agent or
Indenture Trustee of its obligations under the Indenture; and
(E) the removal of the Indenture Trustee.
(ii) Notwithstanding anything to the contrary in this
Agreement, the Administrator shall not be obligated to, and shall not, (x) make
any payments to the Noteholders under the Basic Documents, (y) sell the Trust
Estate pursuant to Section 5.4 of the Indenture or (z) take any other action
that the Issuer directs the Administrator not to take on its behalf.
3. Successor Servicer and Administrator. The Issuer shall
undertake, as promptly as possible after the giving of notice of termination to
the Servicer of the Servicer's rights and powers pursuant to Section 7.02 of the
Trust Sale and Servicing Agreement, to enforce the provisions of Sections 7.02,
7.03 and 7.04 of the Trust Sale and Servicing Agreement with respect to the
appointment of a successor Servicer. Such successor Servicer shall, upon
compliance with Sections 10(e)(ii) and 10(e)(iii), become the successor
Administrator hereunder.
4. Records. The Administrator shall comply with Section 5.4 of
the Trust Agreement, including, without limitation, maintaining appropriate
books of account and records relating to services performed hereunder, which
books of account and records shall be accessible for inspection by the Issuer
and the Seller at any time during normal business hours.
5. Compensation. As compensation for the performance of the
Administrator's obligations under this Agreement and as reimbursement for its
expenses related thereto, the Servicer shall pay the Administrator a monthly fee
in the amount of $1,500.
6. Additional Information To Be Furnished to the Issuer. The
Administrator shall furnish to the Issuer from time to time such additional
information regarding the Collateral as the Issuer shall reasonably request.
7. Independence of the Administrator. For all purposes of this
Agreement, the Administrator shall be an independent contractor and shall not be
subject to the supervision of the Issuer or the Owner Trustee with respect to
the manner in which it accomplishes the performance of its obligations
hereunder. Unless expressly authorized by the Issuer, the Administrator shall
have no authority to act for or represent the Issuer or the Owner Trustee in any
way and shall not otherwise be deemed an agent of the Issuer or the Owner
Trustee.
8. No Joint Venture. Nothing contained in this Agreement (i)
shall constitute the Administrator and either of the Issuer or the Owner Trustee
as members of any partnership, joint venture, association, syndicate,
unincorporated business or other separate entity, (ii) shall be construed to
impose any liability as such on any of them or (iii) shall be deemed to confer
on any of them any express, implied or apparent authority to incur any
obligation or liability on behalf of the others.
9. Other Activities of Administrator. Nothing herein shall
prevent the Administrator or its Affiliates from engaging in other businesses
or, in its sole discretion, from
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acting in a similar capacity as an administrator for any other person or entity
even though such person or entity may engage in business activities similar to
those of the Issuer, the Owner Trustee or the Indenture Trustee.
10. Term of Agreement; Resignation and Removal of
Administrator.
(a) This Agreement shall continue in force until the termination of the
Issuer, upon which event this Agreement shall automatically terminate.
(b) Subject to Section 10(e), the Administrator may give notice of its
intent to resign its duties hereunder by providing the Issuer with at least
sixty (60) days' prior written notice.
(c) Subject to Section 10(e), the Issuer may remove the Administrator
without cause by providing the Administrator with at least sixty (60) days'
prior written notice.
(d) Subject to Section 10(e), at the sole option of the Issuer, the
Administrator may be removed immediately upon written notice of termination from
the Issuer to the Administrator if any of the following events shall occur:
(i) the Administrator shall default in the performance of any
of its duties under this Agreement and, after notice from the Issuer of such
default, shall not cure such default within ten (10) days (or, if such default
cannot be cured in such time, shall not give within ten (10) days such assurance
of cure as shall be reasonably satisfactory to the Issuer);
(ii) a court having jurisdiction in the premises shall enter a
decree or order for relief, and such decree or order shall not have been vacated
within sixty (60) days, in respect of the Administrator in any involuntary case
under any applicable bankruptcy, insolvency or other similar law now or
hereafter in effect or appoint a receiver, liquidator, assignee, custodian,
trustee, sequestrator or similar official for the Administrator or any
substantial part of its property or order the winding-up or liquidation of its
affairs; or
(iii) the Administrator shall commence a voluntary case under
any applicable bankruptcy, insolvency or other similar law now or hereafter in
effect, shall consent to the entry of an order for relief in an involuntary case
under any such law, or shall consent to the appointment of a receiver,
liquidator, assignee, trustee, custodian, sequestrator or similar official for
the Administrator or any substantial part of its property, shall consent to the
taking of possession by any such official of any substantial part of its
property, shall make any general assignment for the benefit of creditors or
shall fail generally to pay its debts as they become due.
The Administrator agrees that if any of the events specified
in clauses (i), (ii) or (iii) of this Section 10(d) shall occur, it shall give
written notice thereof to the Issuer, the Swap Counterparty and the Indenture
Trustee within seven (7) days after the happening of such event.
(e) No resignation or removal of the Administrator pursuant to this
Section 10 shall be effective until (i) a successor Administrator shall have
been appointed by the Issuer, (ii) such successor Administrator shall have
agreed in writing to be bound by the terms of this Agreement in the same manner
as the Administrator is bound hereunder, and (iii) the Rating Agency Condition
has been satisfied with respect to such proposed appointment.
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11. Action upon Termination, Resignation or Removal. Promptly
upon the effective date of termination of this Agreement pursuant to Section
10(a) or the resignation or removal of the Administrator pursuant to Section
10(b) or 10(c), respectively, the Administrator shall be entitled to be paid all
fees and reimbursable expenses accruing to it to the effective date of such
termination, resignation or removal. The Administrator shall forthwith upon such
termination pursuant to Section 10(a) deliver to the Issuer all property and
documents of or relating to the Collateral then in the custody of the
Administrator. In the event of the resignation or removal of the Administrator
pursuant to Section 10(b) or 10(c), respectively, the Administrator shall
cooperate with the Issuer and take all reasonable steps requested to assist the
Issuer in making an orderly transfer of the duties of the Administrator.
12. Notices. All demands, notices and communications upon or
to the Issuer, the Administrator or the Indenture Trustee under this Agreement
shall be delivered as specified in Appendix B of the Trust Sale and Servicing
Agreement.
13. Amendments.
(a) This Agreement may be amended from time to time with prior notice
to the Rating Agencies by a written amendment duly executed and delivered by the
Issuer, the Administrator and the Indenture Trustee, with the written consent of
the Owner Trustee, without the consent of the Financial Parties, for any of the
following purposes:
(i) to add provisions hereof for the benefit of the
Noteholders and Certificateholders or to surrender any right or power herein
conferred upon the Administrator;
(ii) to cure any ambiguity or to correct or supplement any
provision herein which may be inconsistent with any other provision herein;
(iii) to evidence and provide for the appointment of a
successor Administrator hereunder and to add to or change any of the provisions
of this Agreement as shall be necessary to facilitate such succession; and
(iv) to add any provisions to or change in any manner or
eliminate any of the provisions of this Agreement or to modify in any manner the
rights of the Noteholders or Certificateholders; provided, however, that such
amendment under this Section 13(a)(iv) shall not, as evidenced by an Opinion of
Counsel, materially and adversely affect in any material respect the interest of
any Noteholder or Certificateholder.
(b) This Agreement may also be amended by the Issuer, the Administrator
and the Indenture Trustee with prior notice to the Rating Agencies and with the
written consent of the Owner Trustee and the holders of Notes evidencing at
least a majority in the Outstanding Amount of the Notes as of the close of the
immediately preceding Distribution Date and the holders of Certificates
evidencing at least a majority of the Voting Interests as of the close of the
preceding Distribution Date for the purpose of adding any provisions to,
changing in any manner or eliminating any of the provisions of this Agreement or
of modifying in any manner the rights of Noteholders or the Certificateholders;
provided, however, that no such amendment may (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 are required to be made for the
benefit of the
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Noteholders or Certificateholders, (ii) reduce the percentage of the holders of
Notes and Certificates which are required to consent to any amendment of this
Agreement or (iii) modify or alter any provision of this Section 13, except to
provide that certain additional provisions of this Agreement and the Basic
Documents cannot be modified or waived without the consent of each Noteholder
and Certificateholder affected thereby, without, in any such case, the consent
of the holders of all the outstanding Notes and Certificates.
(c) Notwithstanding Sections 13(a) and 13(b), the Administrator may not
amend this Agreement without the permission of the Seller, which permission
shall not be unreasonably withheld.
14. Successors and Assigns. This Agreement may not be assigned
by the Administrator unless such assignment is previously consented to in
writing by the Issuer and the Owner Trustee and subject to the satisfaction of
the Rating Agency Condition in respect thereof. An assignment with such consent
and satisfaction, if accepted by the assignee, shall bind the assignee hereunder
in the same manner as the Administrator is bound hereunder. Notwithstanding the
foregoing, this Agreement may be assigned by the Administrator without the
consent of the Issuer or the Owner Trustee to a corporation or other
organization that is a successor (by merger, consolidation or purchase of
assets) to the Administrator, provided that such successor organization executes
and delivers to the Issuer, the Owner Trustee and the Indenture Trustee an
agreement in which such corporation or other organization agrees to be bound
hereunder by the terms of such assignment in the same manner as the
Administrator is bound hereunder. Subject to the foregoing, this Agreement shall
bind any successors or assigns of the parties hereto.
15. Governing Law. THIS AGREEMENT 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.
16. Headings. The section headings hereof have been inserted
for convenience of reference only and shall not define or limit any of the terms
or provisions hereof.
17. Separate Counterparts. This Agreement may be executed by
the parties 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.
18. Severability of Provisions. If any one or more of the
covenants, agreements, provisions or terms of this Agreement shall for any
reason whatsoever be 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.
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19. Not Applicable to General Motors Acceptance Corporation in
Other Capacities. Nothing in this Agreement shall affect any obligation General
Motors Acceptance Corporation may have in any other capacity.
20. Limitation of Liability of Owner Trustee and Indenture
Trustee.
(a) Notwithstanding anything contained herein to the contrary, this
instrument has been countersigned by Deutsche Bank Trust Company Delaware, not
in its individual capacity but solely as Owner Trustee and in no event shall
Deutsche Bank Trust Company Delaware 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 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.
(b) Notwithstanding anything contained herein to the contrary, this
Agreement has been countersigned by JPMorgan Chase Bank, N.A., not in its
individual capacity but solely in its capacity 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 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.
21. Third-Party Beneficiary. The Owner Trustee is a
third-party beneficiary to this Agreement and is entitled to the rights and
benefits hereunder and may enforce the provisions hereof as if it were a party
hereto.
* * * * *
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IN WITNESS WHEREOF, the parties 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 2006-1, as Issuer
By: DEUTSCHE BANK TRUST
COMPANY DELAWARE, not in its
individual capacity but solely as Owner
Trustee on behalf of the Issuer
By: /s/ Jenna Kaufman
-------------------------------------
Name: Jenna Kaufman
Title: Attorney-in-Fact
GENERAL MOTORS ACCEPTANCE
CORPORATION, as Administrator
By: /s/ Carl J. Vannatter
-------------------------------------
Name: Carl J. Vannatter
Title: Director - Global Securitization
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