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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 1999-2
ISSUER
DATED AS OF SEPTEMBER 9, 1999
2
TABLE OF CONTENTS
PAGE
ARTICLE I
CERTAIN DEFINITIONS
Section 1.01 Definitions.....................................................................................1
ARTICLE II
CONVEYANCE OF RECEIVABLES; ISSUANCE OF SECURITIES
Section 2.01 Conveyance of Receivables.......................................................................1
Section 2.02 Custody of Receivable Files.....................................................................2
Section 2.03 Acceptance by Issuer............................................................................3
Section 2.04 Representations and Warranties as to the Receivables............................................3
Section 2.05 Repurchase of Receivables Upon Breach of Warranty...............................................3
Section 2.06 Issuance of Additional Variable Pay Term Notes..................................................4
ARTICLE III THE SELLER
Section 3.01 Representations of Seller.......................................................................5
Section 3.02 Liability of Seller.............................................................................6
Section 3.03 Merger or Consolidation of, or Assumption of the Obligations
of Seller; Amendment of Certificate of Incorporation............................................6
Section 3.04 Limitation on Liability of Seller and Others....................................................7
Section 3.05 Seller May Own Notes or Certificates............................................................7
ARTICLE IV
SERVICER'S COVENANTS; DISTRIBUTIONS; RESERVE ACCOUNT;
STATEMENTS TO NOTEHOLDERS AND CERTIFICATEHOLDERS
Section 4.01 Annual Statement as to Compliance; Notice of Servicer Default...................................8
Section 4.02 Annual Independent Accountants' Report..........................................................8
Section 4.03 Access to Certain Documentation and Information Regarding Receivables...........................9
Section 4.04 Amendments to Schedule of Receivables...........................................................9
Section 4.05 Assignment of Administrative Receivables and Warranty Receivables...............................9
Section 4.06 Distributions..................................................................................10
Section 4.07 Reserve Account................................................................................12
Section 4.08 Net Deposits...................................................................................14
Section 4.09 Statements to Securityholders..................................................................14
ARTICLE V
CERTIFICATEHOLDER AND NOTEHOLDER STATEMENTS AND ACCOUNTS;
COLLECTIONS, DEPOSITS AND INVESTMENTS; ADVANCES
Section 5.01 Establishment of Accounts......................................................................15
Section 5.02 Collections....................................................................................20
Section 5.03 Investment Earnings and Supplemental Servicing Fees............................................20
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Section 5.04 Monthly Advances...............................................................................21
Section 5.05 Servicer Liquidity Advance.....................................................................21
Section 5.06 Additional Deposits............................................................................22
SECTION VI
LIABILITIES OF SERVICER AND OTHERS
Section 6.01 Liability of Servicer; Indemnities.............................................................22
Section 6.02 Merger or Consolidation of, or Assumption of the Obligations of the Servicer...................23
Section 6.03 Limitation on Liability of Servicer and Others.................................................24
Section 6.04 Delegation of Duties...........................................................................25
Section 6.05 Servicer Not to Resign.........................................................................25
ARTICLE VII
DEFAULT
Section 7.01 Servicer Defaults..............................................................................25
Section 7.02 Consequences of a Servicer Default.............................................................26
Section 7.03 Indenture Trustee to Act; Appointment of Successor.............................................27
Section 7.04 Notification to Noteholders and Certificateholders.............................................27
Section 7.05 Waiver of Past Defaults.......................................................................28
Section 7.06 Repayment of Advances..........................................................................28
ARTICLE VIII
TERMINATION
Section 8.01 Optional Purchase of All Receivables; Insolvency of Seller;
Termination of Trust...........................................................................28
ARTICLE IX
MISCELLANEOUS PROVISIONS
Section 9.01 Amendment......................................................................................31
Section 9.02 Protection of Title to Trust...................................................................32
Section 9.03 Notices........................................................................................34
Section 9.04 GOVERNING LAW..................................................................................34
Section 9.05 Severability of Provisions.....................................................................34
Section 9.06 Assignment.....................................................................................34
Section 9.07 Third-Party Beneficiaries......................................................................34
Section 9.08 Separate Counterparts..........................................................................35
Section 9.09 Headings and Cross-References..................................................................35
Section 9.10 Assignment to Indenture Trustee................................................................35
Section 9.11 No Petition Covenants..........................................................................35
Section 9.12 Limitation of Liability of Indenture Trustee and Owner Trustee.................................35
Section 9.13 Tax Treatment..................................................................................36
Section 9.14 Furnishing Documents...........................................................................36
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EXHIBIT A Locations of Schedule of Receivables
APPENDIX A Definitions and Rules of Construction
APPENDIX B Notices Addresses and Procedures
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THIS TRUST SALE AND SERVICING AGREEMENT is made as of September 9,
1999, 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 1999-2, a
Delaware business trust (the "Issuer").
WHEREAS, General Motors Acceptance Corporation has sold the Receivables
to Seller and, as Servicer, has agreed to service the Receivables pursuant to
the Pooling and Servicing Agreement.
WHEREAS, Seller desires to sell the Receivables to Issuer in exchange
for the Notes and Certificates pursuant to the terms of this Agreement, and the
Servicer desires to perform the servicing obligations set forth herein for and
in consideration of the fees and other benefits set forth in this Agreement and
in the Pooling and Servicing Agreement.
WHEREAS, Seller and the Issuer wish to set forth the terms pursuant to
which the Receivables are to be sold by the Seller to the Issuer and serviced by
the Servicer.
NOW, THEREFORE, in consideration of the foregoing, the other good and
valuable consideration and the mutual terms and covenants contained herein, the
parties hereto agree as follows:
ARTICLE I
CERTAIN DEFINITIONS
Section 1.01. Definitions. Certain capitalized terms used in the above
recitals and in this Agreement are defined in and shall have the respective
meanings assigned them in Part I of Appendix A to this Agreement. All references
herein to "the Agreement" or "this Agreement" are to this 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. 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 agree to
fulfill all of its obligations hereunder and to sell, transfer, assign and
otherwise convey to the Issuer, without recourse:
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(a) all right, title and interest of the Seller in, to and under the
Receivables listed on the Schedule of Receivables which is on file at the
locations listed on Exhibit A hereto and (i) in the case of Scheduled Interest
Receivables, all monies due thereunder on and after the Cutoff Date and (ii) in
the case of Simple Interest Receivables, all monies received thereon on and
after the Cutoff Date, in each case exclusive of any amounts allocable to the
premium for physical damage insurance force-placed by the Servicer covering any
related Financed Vehicle;
(b) the interest of the Seller in the security interests in the
Financed Vehicles granted by Obligors pursuant to the Receivables and, to the
extent permitted by law, any accessions thereto;
(c) except for those Receivables originated in Wisconsin, the interest
of the Seller in any proceeds from claims on any physical damage, credit life,
credit disability or other insurance policies covering Financed Vehicles or
Obligors;
(d) the interest of the Seller in any proceeds from recourse against
Dealers on Receivables;
(e) all right, title and interest of the Seller in, to and under the
Pooling and Servicing Agreement and the Custodian Agreement, including the right
of the Seller to cause GMAC to repurchase Receivables under certain
circumstances; and
(f) the interest of the Seller in any proceeds of the property
described in clauses (a), (b) and (e) above.
It is the intention of the Seller and the Issuer that the transfer and
assignment contemplated by this Agreement shall constitute a sale of the
Receivables from the Seller to the Issuer and the beneficial interest in and
title to the Receivables shall not be part of the Seller's estate in the event
of the filing of a bankruptcy petition by or against the Seller under any
bankruptcy law. The foregoing sale does not constitute and is not intended to
result in any assumption by the Issuer of any obligation of the Seller to the
Obligors, Dealers, insurers or any other Person in connection with the
Receivables, any Dealer Agreements, any insurance policies or any agreement or
instrument relating to any of them. Within two Business Days after the Closing
Date, GMAC shall cause to be deposited into the Collection Account the
collections on the Receivables described in Section 5.07 of the Pooling and
Servicing Agreement; provided, that so long as the Monthly Remittance Conditions
are satisfied, such collections need not be deposited until the first
Distribution Date.
Section 2.02. Custody of Receivable Files. In connection with the sale,
transfer and assignment of the Receivables to the Issuer pursuant to this
Agreement, GMAC, as Custodian under the Custodian Agreement, agrees to act as
Custodian thereunder for the benefit of the Issuer. The Issuer hereby accepts
and agrees to the terms and provisions of the Custodian Agreement and designates
GMAC as custodian with respect to the Receivables Files.
Section 2.03. Acceptance by Issuer. The Issuer does hereby accept all
consideration conveyed by the Seller pursuant to Section 2.01, and declares that
the Issuer shall hold such consideration upon the trust set forth in the Trust
Agreement for the benefit of Certificateholders,
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subject to the terms and conditions of the Indenture and this Agreement. The
Issuer hereby agrees and accepts the appointment and authorization of General
Motors Acceptance Corporation as Servicer under Section 3.01 of the Pooling and
Servicing Agreement. The parties agree that this Agreement, the Indenture and
the Trust Agreement constitute the Further Transfer and Servicing Agreements for
purposes of the Pooling and Servicing Agreement and that the rights, duties and
obligations of GMAC as Servicer under the Pooling and Servicing Agreement are
subject to the provisions of Sections 6.02, 6.04, 6.05, 9.01 and Article VII
hereof.
Section 2.04. Representations and Warranties as to the Receivables.
Pursuant to Section 2.01(e), the Seller assigns to the Issuer all of its right,
title and interest in, to and under the Pooling and Servicing Agreement. Such
assigned right, title and interest includes the representations and warranties
of GMAC made to the Seller pursuant to Section 4.01 of the Pooling and Servicing
Agreement. The Seller hereby represents and warrants to the Issuer that the
Seller has taken no action which would cause such representations and warranties
of GMAC to be false in any material respect as of the Closing Date. The Seller
further acknowledges that the Issuer relies on the representations and
warranties of the Seller under this Agreement and of GMAC under the Pooling and
Servicing Agreement in accepting the Receivables in trust and executing and
delivering the Notes and the Certificates. The foregoing representation and
warranty speaks as of the Closing Date, but shall survive the sale, transfer and
assignment of the Receivables to the Issuer and the pledge thereof to the
Indenture Trustee pursuant to the Indenture.
Section 2.05. Repurchase of Receivables Upon Breach of Warranty. Upon
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. Upon repurchase, the Warranty Purchaser
shall be entitled to receive the Released Warranty Amount, if any. It is
understood and agreed that the obligation of the Warranty Purchaser to
repurchase any Receivable as to which a breach has occurred and is continuing,
and the obligation of the Seller and the Servicer to enforce GMAC's obligation
to repurchase such Receivables pursuant to the Pooling and Servicing
Agreement shall, if such obligations are fulfilled, constitute the sole remedy
against the Seller, the Servicer or GMAC for such breach available to the
Issuer, Swap Counterparty, Noteholders, Certificateholders, the Owner Trustee or
the Indenture Trustee. The Servicer also acknowledges its obligations to
repurchase
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Administrative Receivables from the Issuer pursuant to Section 3.08 of the
Pooling and Servicing Agreement.
Section 2.06 Issuance of Additional Variable Pay Term Notes.
(a) Subject to the terms and conditions of this Section 2.06, on the
Targeted Final Distribution Date for each class of Class A Notes, the Seller may
cause the Issuer to issue additional Variable Pay Term Notes. At the time of
issuance, the Seller shall determine, in its sole discretion, the Interest Rate
for each class of Variable Pay Term Notes, which shall equal, for each
Distribution Date, LIBOR plus a fixed percentage spread which will be determined
at the time of issuance based on market conditions but which will not exceed
2.5%, subject to the last sentence of the definition of Interest Rate. The
Seller shall also determine, in its sole discretion, the terms of any sale of an
interest in any Variable Pay Term Notes, provided that the proceeds to the Trust
in connection with the issuance of any Variable Pay Term Notes shall be fair
value based on market conditions. At the time of issuance of any additional
Variable Pay Term Notes, Standard and Poor's Ratings Services may re-affirm or
change its original ratings on the Offered Notes and the Offered Certificates.
(b) Subject to Section 2.06(c), the Seller agrees to offer the right to
purchase a 100% participation interest in each Variable Pay Term Note that may
be issued on the Targeted Final Distribution Date for a class of Class A Notes
to a commercial paper facility administered by GMAC, if any, such that the Total
Note Principal Payment Amount will be sufficient to pay such class of Class A
Notes in full on such Targeted Final Distribution Date. Neither the Seller nor
the Servicer shall be obligated to identify any other prospective purchasers for
interests in any Variable Pay Term Notes.
(c) No Variable Pay Term Notes may be issued on a Targeted Final
Distribution Date unless the following conditions are satisfied:
(iii) after giving effect to the issuance of such Variable Pay Term
Notes and all payments of principal on the Notes and payments with
respect to the Certificate Balance on that Targeted Final Distribution
Date, the sum of the outstanding principal balance of the Notes plus
the Certificate Balance shall not exceed the Aggregate Principal
Balance of the Receivables on the last day of the month immediately
preceding that Targeted Final Distribution Date;
(iv) the Interest Rate Swap shall be in full force and effect; and
(v) no Event of Default shall have occurred and be continuing.
ARTICLE III
THE SELLER
Section 3.01 Representations of Seller. The Seller makes the following
representations on which the Issuer is relying in acquiring the Receivables and
issuing the Notes and the Certificates.
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The following representations speak as of the Closing Date but shall survive the
sale, transfer and assignment of the Receivables to the Issuer.
(a) Representations and Warranties as to the Seller.
(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 this Agreement and to carry out its
terms, the Seller has full power and authority to sell and assign the
property to be sold and assigned to and deposited with the Issuer as
part of the Trust and has duly authorized such sale and assignment to
the Issuer by all necessary corporate action; and the execution,
delivery and performance of this Agreement have been duly authorized by
the Seller by all necessary corporate action;
(iv) Valid Sale; Binding Obligations. This Agreement, when
duly executed and delivered, shall constitute a valid sale, transfer
and assignment of the Receivables, enforceable against creditors of and
purchasers from the Seller; and this Agreement when duly executed and
delivered, shall constitute a legal, valid and binding obligation of
the Seller enforceable in accordance with its terms, except as
enforceability may be limited by bankruptcy, insolvency, reorganization
or other similar laws affecting the enforcement of creditors' rights in
general and by general principles of equity, regardless of whether such
enforceability is considered in a proceeding in equity or at law;
(v) No Violation. The consummation of the transactions
contemplated by this Agreement by the Seller and the fulfillment of the
terms of this Agreement by the Seller shall not conflict with, result
in any breach of any of the terms and provisions of or constitute (with
or without notice or lapse of time) a default under, the certificate of
incorporation or by-laws of the Seller, or any indenture, agreement or
other instrument to which the Seller is a party or by which it is
bound, or result in the creation or imposition of any Lien upon any
of its properties pursuant to the terms of any such indenture,
agreement or other instrument, other than this Agreement, or violate
any law or, to the best of the Seller's knowledge, any order, rule or
regulation applicable to the Seller of any court or of any federal or
state regulatory body, administrative agency or other governmental
instrumentality having jurisdiction over the Seller or any of its
properties; and
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(vi) No Proceedings. To the Seller's knowledge, there are no
proceedings or investigations pending, or threatened, before any court,
regulatory body, administrative agency or other tribunal or
governmental instrumentality having jurisdiction over the Seller or its
properties (i) asserting the invalidity of this Agreement, the Notes,
the Certificates, the Indenture, the Trust Agreement, the Custodian
Agreement or the Administration Agreement, (ii) seeking to prevent the
issuance of the Notes or the Certificates or the consummation of any of
the transactions contemplated by this Agreement, the Pooling and
Servicing Agreement, the Indenture, the Trust Agreement, the Custodian
Agreement or the Administration Agreement, (iii) seeking any
determination or ruling that might materially and adversely affect the
performance by the Seller of its obligations under, or the validity or
enforceability of, this Agreement, the Pooling and Servicing Agreement,
the Notes, the Certificates, the Indenture, the Trust Agreement, the
Custodian Agreement or the Administration Agreement, 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 the Seller had good and marketable title thereto, free of any Lien;
and, upon execution and delivery of this Agreement by the Seller, the Issuer
shall have all of the right, title and interest of the Seller in, to and under
the Receivables, the unpaid indebtedness evidenced thereby and the collateral
security therefor, free of any Lien.
(ii) All Filings Made. All filings (including, without
limitation, UCC filings) necessary in any jurisdiction to give the Issuer a
first priority perfected ownership interest in the Receivables shall have been
made.
Section 3.02 Liability of Seller. The Seller shall be liable in
accordance with this Agreement only to the extent of the obligations in this
Agreement specifically undertaken by the Seller.
Section 3.03 Merger or Consolidation of, or Assumption of the
Obligations of Seller; Amendment of Certificate of Incorporation.
(a) Any corporation or other entity (i) into which the Seller may be
merged or consolidated, (ii) resulting from any merger or consolidation to which
the Seller shall be a party, (iii) succeeding to the business of the Seller, or
(iv) more than 50% of the voting stock (or, if not a corporation, other voting
interests) of which is owned directly or indirectly by General Motors, which
corporation in any of the foregoing cases executes an agreement of assumption to
perform every obligation of the Seller under this Agreement, shall be the
successor to the Seller under this Agreement without the execution or filing of
any document or any further act on the part of any of the parties to this
Agreement. The Seller shall provide 10 days prior notice of any merger,
consolidation or succession pursuant to this Section 3.03 to the Rating
Agencies.
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(b) The Seller hereby agrees that during the term of this Agreement it
shall not (i) take any action prohibited by Article Fourth of its certificate of
incorporation, (ii) without the prior written consent of the Indenture Trustee
and the Owner Trustee and without giving prior written notice to the Rating
Agencies and the Swap Counterparty, 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. The Seller and any director or officer or employee or
agent of the Seller shall be reimbursed by the Indenture Trustee or Owner
Trustee, as applicable, for any contractual damages, liability or expense
incurred by reason of such trustee's willful misfeasance, bad faith or gross
negligence (except errors in judgment) in the performance of its duties under
this Agreement, the Indenture or the Trust Agreement, or by reason of reckless
disregard of its obligations and duties under this Agreement, the Indenture or
the Trust Agreement. The Seller shall not be under any obligation to appear in,
prosecute or defend any legal action that is not incidental to its obligations
as Seller of the Receivables under this Agreement and that in its opinion may
involve it in any expense or liability.
Section 3.05 Seller May Own Notes or Certificates. Each of the Seller
and any Person controlling, controlled by or under common control with the
Seller may in its individual or any other capacity become the owner or pledgee
of Notes or Certificates with the same rights as it would have if it were not
the Seller or an affiliate thereof except as otherwise specifically provided
herein. Except as otherwise provided herein, Notes or Certificates so owned by
or pledged to the Seller or such controlling or commonly controlled Person shall
have an equal and proportionate benefit under the provisions of this Agreement,
without preference, priority or distinction as among all of such Notes or
Certificates, respectively.
ARTICLE IV
SERVICER'S COVENANTS; DISTRIBUTIONS; RESERVE ACCOUNT;
STATEMENTS TO NOTEHOLDERS AND CERTIFICATEHOLDERS
Section 4.01. Annual Statement as to Compliance; Notice of Servicer
Default.
(a) The Servicer shall deliver to the Indenture Trustee, the Swap
Counterparty and the Owner Trustee, on or before August 15 of each year,
beginning August 15, 2001, an officer's certificate signed by the President or
any Vice President of the Servicer, dated as of June 30 of such year, stating
that (i) a review of the activities of the Servicer during the preceding
12-month period (or, with respect to the first such certificate, such period as
shall have elapsed from the Closing Date
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to the date of such certificate) and of its performance under this Agreement and
under the Pooling and Servicing Agreement has been made under such officer's
supervision, and (ii) to such officer's knowledge, based on such review, the
Servicer has fulfilled all its obligations under such agreements throughout such
period, or, if there has been a default in the fulfillment of any such
obligation, specifying each such default known to such officer and the nature
and status thereof. A copy of such certificate may be obtained by any Noteholder
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, the Swap Counterparty and to the Rating Agencies, promptly after having
obtained knowledge thereof, but in no event later than five Business Days
thereafter, written notice in an officer's certificate of any event which with
the giving of notice or lapse of time, or both, would become a Servicer Default
under Section 7.01. The Seller shall deliver to the Indenture Trustee, the Owner
Trustee, the Servicer and the Rating Agencies, promptly after having obtained
knowledge thereof, but in no event later than five Business Days thereafter,
written notice in an officer's certificate of any event which with the giving of
notice or lapse of time, or both, would become a Servicer Default under clause
(b) of Section 7.01.
Section 4.02. Annual Independent Accountants' Report.
(a) The Servicer shall cause a firm of independent accountants, who may
also render other services to the Servicer or the Seller, to deliver to the
Issuer, the Swap Counterparty and the Rating Agencies, on or before August 15 of
each year, beginning August 15, 2001 with respect to the twelve months ended on
the immediately preceding June 30 (or, with respect to the first such report,
such period as shall have elapsed from the Closing Date to the date of such
certificate), a report (the "Accountants' Report") addressed and delivered to
the Board of Directors of the Servicer and to the Indenture Trustee and the
Owner Trustee, to the effect that such firm has audited the financial statements
of the Servicer and issued its report thereon and that such audit (i) was made
in accordance with generally accepted auditing standards, (ii) included tests
relating to automotive loans serviced for others in accordance with the
requirements of the Uniform Single Audit Program for Mortgage Bankers (the
"Program"), to the extent the procedures in the Program are applicable to the
servicing obligations set forth in this Agreement and the Pooling and Servicing
Agreement, and (iii) except as described in the report, disclosed no exceptions
or errors in the records relating to automobile and light truck loans serviced
for others that, in the firm's opinion, paragraph four of the Program requires
such firm to report. In the event that such firm requires the Owner Trustee to
agree to the procedures performed by such firm, the Servicer shall direct the
Owner Trustee in writing to so agree; it being understood and agreed that the
Owner Trustee will deliver such letter of agreement in conclusive reliance upon
the direction of the Servicer and the Owner Trustee makes no independent inquiry
or investigation as to, and shall have no obligation or liability in respect of,
the sufficiency, validity or correctness of such procedures.
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(b) The Accountants' Report shall also indicate that the firm is
independent of the Seller and the Servicer within the meaning of the Code of
Professional Ethics of the American Institute of Certified Public Accountants.
(c) A copy of the Accountants' Report may be obtained by any Noteholder
or Certificateholder by a request in writing to the Issuer addressed to the
Corporate Trust Office of the Indenture Trustee or the Owner Trustee.
Section 4.03 Access to Certain Documentation and Information Regarding
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 Receivables, the Servicer shall deliver to the Seller, the Indenture Trustee
and the Owner Trustee on or before the Distribution Date related to such Monthly
Period an amendment to the Schedule of Receivables to report the newly assigned
account number. Each such amendment shall list all new account numbers assigned
to Receivables during such Monthly Period and shall show by cross reference the
prior account numbers identifying such Receivables on the Schedule of
Receivables.
Section 4.05 Assignment of Administrative Receivables and Warranty
Receivables. Upon receipt of the Administrative Purchase Payment or the Warranty
Payment with respect to an Administrative Receivable or a Warranty Receivable,
respectively, each of the Indenture Trustee and the Owner Trustee shall assign,
without recourse, representation or warranty, to the Servicer or the Warranty
Purchaser, as applicable, all of such Person's right, title and interest in, to
and under such Administrative Receivable or Warranty Receivable, all monies due
thereon, the security interests in the related Financed Vehicle, proceeds from
any Insurance Policies, proceeds from recourse against a Dealer on such
Receivable and the interests of such Person or the Trust, as applicable, in
certain rebates of premiums and other amounts relating to the Insurance Policies
and any document relating thereto, such assignment being an assignment outright
and not for security; and the Servicer or the Warranty Purchaser, as applicable,
shall thereupon own such Receivable, and all such security and documents, free
of any further obligations to the Indenture Trustee, the Owner Trustee, the
Noteholders or the Certificateholders with respect thereto. If in any Proceeding
it is held that the Servicer may not enforce a Receivable on the ground that it
is not a real party in interest or a holder entitled to enforce the Receivable,
the Indenture Trustee or the Owner Trustee, as applicable, shall, at the
Servicer's expense, take such steps as the Servicer deems necessary to enforce
the Receivable,
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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, the
expected Variable Pay Term Notes Issuance Proceeds, if any, the Accumulation
Amount, the Total Servicing Fee, the Total Note Principal Payment Amount, the
Aggregate Noteholders' Interest Distributable Amount, the Aggregate Noteholders'
Principal Distributable Amount, the Certificateholders' Interest Distributable
Amount, the Certificateholders' Principal Distributable Amount, the net amount,
if any, payable by the Trust under the Interest Rate 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 Certificate
Distribution Account, the Reserve Account, the Accumulation Account and, if
applicable, the Payment Ahead Servicing Account on the related Distribution
Date.
(a) (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, 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.
(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, the Indenture
Trustee shall withdraw from the Reserve Account and deposit in the
Collection Account the lesser of (A) the amount of cash or other
immediately available funds deposited therein and (B) the amount, if
any, by which (x) the sum of the Total Servicing Fee, the Aggregate
Noteholders' Interest Distributable Amount, the Certificateholders'
Interest Distributable Amount, the Aggregate Noteholders' Principal
Distributable Amount, the net amount, if any, payable by the Trust
under the Interest Rate Swap and the Certificateholders' Principal
Distributable Amount for such Distribution Date exceeds (y) the sum of
the Available Interest and Available Principal for such Distribution
Date.
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(v) On or before each Distribution Date that is a Targeted
Final Distribution Date for a class of Class A Notes, the Indenture
Trustee shall withdraw from the Accumulation Account and deposit in the
Collection Account the Accumulation Amount, if any, for such
Distribution Date.
(vi) On or before the first Distribution Date during a
Sequential Amortization Period caused by the termination of the
Interest Rate Swap, the Indenture Trustee shall withdraw from the
Accumulation Account and deposit in the Collection Account the
Accumulation Amount, if any, for such Distribution Date.
(vii) On or before the first Distribution Date after the Notes
have been declared due and payable following an Event of Default, the
Indenture Trustee shall withdraw from the Accumulation Account and
deposit in the Collection Account the Accumulation Amount, if any, for
such Distribution Date.
(b) Except as otherwise provided in Section 4.06(d), on each
Distribution Date the Indenture Trustee (based on the information contained in
the Servicer's Accounting delivered on the related Determination Date pursuant
to Section 3.10 of the Pooling and Servicing Agreement) shall make the following
distributions from the Collection Account (after the withdrawals, deposits and
transfers specified in Section 4.06(b) have been made) in the following order of
priority:
(i) first, to the Servicer, to the extent of the Total
Available Amount, the Total Servicing Fee;
(ii) second, to the Swap Counterparty, to the extent of the
Total Available Amount (as such amount has been reduced by the
distributions described in clause (i) above), the net amount, if any,
due under the Interest Rate Swap (exclusive of payments due in respect
of an Early Termination Date of the Interest Rate Swap);
(iii) third, to the extent of the Total Available Amount (as
such amount has been reduced by the distributions described in clauses
(i) and (ii) above) (a) to the Note Distribution Account in respect of
the Aggregate Noteholders' Interest Distributable Amount, and (b) to
the Swap Counterparty in respect of any payments due to the Swap
Counterparty in connection with any Early Termination Date of the
Interest Rate Swap, allocated between the Note Distribution Account and
the Swap Counterparty in proportion to the amounts owing to the Swap
Counterparty in connection with such Early Termination Date and in
respect of the Aggregate Noteholders' Interest Distributable Amount;
(iv) fourth, to the Certificate Distribution Account, to the
extent of the Total Available Amount (as such amount has been reduced
by the distributions described in clauses (i), (ii) and (iii) above),
the Certificateholders' Interest Distributable Amount;
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(v) fifth, to the Note Distribution Account, to the extent
of the Total Available Amount (as such amount has been reduced by the
distributions described in clauses (i) through (iv) above), the
Aggregate Noteholders' Principal Distributable Amount;
(vi) sixth, to the Accumulation Account, to the extent of
the Total Available Amount (as such amount has been reduced by the
distributions described in clauses (i) through (v) above), the
Undistributed Principal Amount, if any;
(vii) seventh, to the Certificate Distribution Account, to
the extent of the Total Available Amount (as such amount has been
reduced by the distributions described in clauses (i) through (vi)
above), the Certificateholders' Principal Distributable Amount; and
(viii) eighth, to the Reserve Account, any portion of the
Total Available Amount remaining after the distributions described in
clauses (i) through (vii) above.
(c) 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,
then until such time as the Notes have been paid in full and the Indenture has
been discharged or all Events of Default have been cured or waived as provided
in Section 5.2(b) of the Indenture, no amounts shall be deposited in or
distributed to the Certificate Distribution Account. Any such amounts otherwise
distributable to the Certificate Distribution Account shall be deposited instead
into the Note Distribution Account for payment of principal on the Notes.
Section 4.07. Reserve Account.
(a) There shall be established in the name of and maintained with
the Indenture Trustee an Eligible Deposit Account known as the Capital Auto
Receivables Asset Trust 1999-2 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 Closing Date, the
Seller shall deposit the Reserve Account Initial Deposit into the Reserve
Account. The Reserve Account shall not under any circumstances be deemed to be
part of or otherwise included in the Trust.
(b) If the amount on deposit in the Reserve Account on any
Distribution Date (after giving effect to all deposits therein or withdrawals
therefrom on such Distribution Date) exceeds the Specified Reserve Account
Balance for such Distribution Date, the Servicer shall instruct the Indenture
Trustee to distribute an amount equal to any such excess to the Seller; it being
understood that no such distribution from the Reserve Account shall be made to
the Seller unless the amount so on deposit in the Reserve Account exceeds such
Specified Reserve Account Balance.
(c) In order to provide for the payment to the Noteholders, the
Certificateholders and the Servicer in accordance with Sections 4.06(c) and
4.06(d), to assure availability of the amounts maintained in the Reserve Account
for the benefit of the Noteholders, the Certificateholders and the Servicer, and
as security for the performance by the Seller of its obligations hereunder, the
Seller on
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behalf of itself and its successors and assigns, hereby pledges to the Indenture
Trustee and its successors and assigns, all its rights, title and interest in
and to the Reserve Account Property, to have and to hold all such property,
rights and privileges unto the Indenture Trustee its successors and assigns, in
trust for the uses and purposes, and subject to the terms and provisions, set
forth in this Section 4.07. The Indenture Trustee hereby acknowledges such
transfer and accepts the trust hereunder and shall hold and distribute the
Reserve Account Property in accordance with the terms and provisions of this
Agreement.
(d) Each of the Seller and Servicer agree to take or cause to be
taken such further actions, to execute, deliver and file or cause to be
executed, delivered and filed such further documents and instruments (including,
without limitation, any UCC financing statements or this Agreement) as may be
determined to be necessary, in an Opinion of Counsel to the Seller delivered to
the Indenture Trustee, in order to perfect the interests created by this Section
4.07 and otherwise fully to effectuate the purposes, terms and conditions of
this Section 4.07. The Seller shall:
(i) promptly execute, deliver and file any financing
statements, amendments, continuation statements, assignments,
certificates and other documents with respect to such interests and
perform all such other acts as may be necessary in order to perfect or
to maintain the perfection of the Indenture Trustee's security
interest; and
(ii) make the necessary filings of financing statements or
amendments thereto within thirty days after the occurrence of any of
the following: (A) any change in their respective corporate names or
any trade names, (B) any change in the location of their respective
chief executive offices or principal places of business and (C) any
merger or consolidation or other change in their respective identities
or corporate structures; and shall promptly notify the Indenture
Trustee of any such filings.
(e) If the Servicer pursuant to Section 5.04 determines on any
Determination Date that it is required to make a Monthly Advance and does not do
so from its own funds, the Servicer shall instruct the Indenture Trustee to
withdraw funds from the Reserve Account and deposit them in the Collection
Account to cover any shortfall. Such payment shall be deemed to have been made
by the Servicer pursuant to Section 5.04 for purposes of making distributions
pursuant to this Agreement, but shall not otherwise satisfy the Servicer's
obligation to deliver the amount of the Monthly Advances, and the Servicer shall
within two Business Days replace any funds in the Reserve Account so used. The
Servicer shall not be entitled to reimbursement for any such deemed Monthly
Advances unless and until the Servicer shall have replaced such funds in the
Reserve Account.
Section 4.08 Net Deposits. At any time that (i) GMAC shall be the
Servicer, (ii) the Servicer shall be permitted by Section 5.02 to remit
collections on a basis other than a daily basis, and (iii) the Servicer shall be
permitted by Section 5.01(e) to remit Payments Ahead on a basis other than on a
daily basis, the Servicer, the Seller, the Indenture Trustee and the Owner
Trustee may make any remittances pursuant to this Article IV net of amounts to
be distributed by the applicable recipient to such remitting party. Nonetheless,
each such party shall account for all of the above described remittances and
distributions as if the amounts were deposited and/or transferred separately.
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Section 4.09. Statements to Securityholders.
(a) On each Distribution Date, the Owner Trustee shall (except as
otherwise provided in the Trust Agreement) deliver to each Certificateholder,
and the Indenture Trustee shall include with each distribution to each
Noteholder, a statement (which statement shall also be provided to the Rating
Agencies) prepared by the Servicer based on information in the Servicer's
Accounting furnished pursuant to Section 3.10 of the Pooling and Servicing
Agreement. Each such statement to be delivered to Certificateholders and
Noteholders, respectively, shall set forth the following information concerning
the Certificates or the Notes, as appropriate, with respect to such Distribution
Date or the preceding Monthly Period:
(i) the amount of such distribution allocable to principal
of each class of the Notes and to the Certificate Balance;
(ii) the amount of the distribution, if any, allocable to
interest on or with respect to each class of securities;
(iii) the Aggregate Principal Balance as of the close of
business on the last day of such Monthly Period (or, for the first
Distribution Date, the Initial Aggregate Principal Balance) and the
Principal Distributable Amount for such Distribution Date;
(iv) the Note Principal Balance for each class of Notes, the
Aggregate Note Principal Balance, the Certificate Balance, the Note
Pool Factor for each class of Notes and the Certificate Pool Factor,
each as of such Distribution Date after giving effect to all payments
described under clause (i) above;
(v) the amount of the Noteholders' Interest Carryover
Shortfall, the Noteholders' Principal Carryover Shortfall, the
Certificateholders' Interest Carryover Shortfall, and the
Certificateholders' Principal Carryover Shortfall, if any, and the
change in each of such amounts from the preceding Distribution Date;
(vi) the aggregate amount in the Payment Ahead Servicing
Account or on deposit with the Servicer as Payments Ahead and the
change in such amount from the previous Distribution Date;
(vii) the amount of Outstanding Monthly Advances on such
Distribution Date;
(viii) the amount of the Total Servicing Fee paid to the
Servicer with respect to the related Monthly Period;
(ix) the amount, if any, distributed to Noteholders and
Certificateholders from amounts on deposit in the Reserve Account;
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(x) the balance of the Reserve Account and the Accumulation
Account on such Distribution Date (after giving effect to changes
therein on such Distribution Date); and
(xi) LIBOR for such Distribution Date.
Each amount set forth pursuant to clauses (i), (ii), (v), (viii) and (ix) above
shall be expressed as a dollar amount per $1,000 of initial principal amount of
the Notes or of the Certificate Balance, as applicable.
(b) Within the prescribed period of time for tax reporting
purposes after the end of each calendar year during the term of this Agreement,
the Indenture Trustee and the Owner Trustee shall mail, to each Person who at
any time during such calendar year shall have been a holder of Notes or
Certificates, respectively, and received any payments thereon, a statement
containing such information as may be required by the Code and applicable
Treasury Regulations to enable such securityholder to prepare its federal income
tax returns.
ARTICLE V
CERTIFICATEHOLDER AND NOTEHOLDER STATEMENTS AND ACCOUNTS;
COLLECTIONS, DEPOSITS AND INVESTMENTS; ADVANCES
Section 5.01. Establishment of Accounts.
(a) (i) The Servicer, for the benefit of the Noteholders and
the Certificateholders and the Swap Counterparty, shall establish and maintain
in the name of the Indenture Trustee an Eligible Deposit Account known as the
Capital Auto Receivables Asset Trust 1999-2 Collection Account (the "Collection
Account"), bearing an additional designation clearly indicating that the funds
deposited therein are held for the benefit of the Noteholders, the
Certificateholders and the Swap Counterparty.
(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
1999-2 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) If and as required pursuant to the Trust Agreement, the
Servicer, for the benefit of the Certificateholders, shall establish
and maintain at Bankers Trust Company in the name of the Issuer an
Eligible Deposit Account known as the Capital Auto Receivables Asset
Trust 1999-2 Certificate Distribution Account (the "Certificate
Distribution Account") bearing an additional designation clearly
indicating that the funds deposited therein are held for the benefit of
the Certificateholders.
(iv) The Servicer, for the benefit of the Obligors, shall
establish and maintain in the name of the Indenture Trustee an account
known as the Capital Auto Receivables Asset Trust
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1999-2 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 1999-2 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 and
shall be maintained with the Indenture Trustee so long as (A) the short-term
unsecured debt obligations of the Indenture Trustee have the Required Deposit
Rating or (B) each of the Designated Accounts are maintained in the corporate
trust department of the Indenture Trustee. All amounts held in such accounts
(including amounts, if any, which the Servicer is required to remit daily to the
Collection Account pursuant to Section 5.02) shall, to the extent permitted by
applicable laws, rules and regulations, be invested, at the written direction of
the Servicer, by such bank or trust company in Eligible Investments. Such
written direction shall constitute certification by the Servicer that any such
investment is authorized by this Section 5.01. Funds deposited in the Reserve
Account shall be invested in Eligible Investments which mature prior to the next
Distribution Date, and then only to the extent, as shall be otherwise permitted
by the Rating Agencies. Investments in Eligible Investments shall be made in the
name of the Indenture Trustee or its nominee, and such investments shall not be
sold or disposed of prior to their maturity; provided, however, that Notes held
in the Reserve Account may be sold or disposed of prior to their maturity so
long as (x) the Servicer directs the Indenture Trustee to make such sale or
disposition, (y) the Indenture Trustee gives reasonable prior notice of such
disposition to the Administrator and (z) such Notes are sold at a price equal to
or greater than the unpaid principal balance thereof if, following such sale,
the amount on deposit in the Reserve Account would be less than the Specified
Reserve Account Balance. Should the short-term unsecured debt obligations of the
Indenture Trustee (or any other bank or trust company with which the Designated
Accounts or Payment Ahead Servicing Account are maintained) no longer have the
Required Deposit Rating, then the Servicer shall within 10 Business Days (or
such longer period, not to exceed 30 calendar days, as to which each Rating
Agency shall consent), with the Indenture Trustee's assistance as necessary,
cause the Designated Accounts and the Payment Ahead Servicing Account (A) to be
moved to a bank or trust company, the short-term unsecured debt obligations of
which shall have the Required Deposit Rating, or (B) with respect to the
Designated Accounts, to be moved to the corporate trust department of the
Indenture Trustee. Investment Earnings on funds deposited in the Designated
Accounts and the Payment Ahead Servicing Account shall be payable to the
Servicer. The Servicer shall give notice of such movement to the Swap
Counterparty. The Indenture Trustee or the other Person holding the Designated
Accounts as provided in this Section 5.01(b)(i) shall be the "Securities
Intermediary." If the Securities Intermediary shall be a Person other than the
Indenture Trustee, the Servicer shall obtain the express agreement of such
Person to the obligations of the Securities Intermediary set forth in this
Section 5.01 and an Opinion of Counsel that such Person can perform such
Obligations.
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(ii) With respect to the Designated Account Property, the
Indenture Trustee agrees, by its acceptance hereof, that:
(A) Any Designated Account Property that is held in
deposit accounts shall be held solely in Eligible Deposit
Accounts. The Designated Accounts are accounts to which
Financial Assets will be credited.
(B) All securities or other property underlying any
Financial Assets credited to the Designated Accounts shall be
registered in the name of the Securities Intermediary,
indorsed to the Securities Intermediary or in blank or
credited to another securities account maintained in the name
of the Securities Intermediary and in no case will any
Financial Asset credited to any of the Designated Accounts be
registered in the name of the Issuer, the Servicer or the
Seller, payable to the order of the Issuer, the Servicer or
the Seller or specially indorsed to the Issuer, the Servicer
or the Seller except to the extent the foregoing have been
specially indorsed to the Securities Intermediary or in blank.
(C) All property delivered to the Securities
Intermediary pursuant to this Agreement will be credited upon
receipt of such property to the appropriate Designated
Account.
(D) Each item of property (whether investments,
investment property, Financial Asset, security, instrument or
cash) credited to a Designated Account shall
be treated as a "financial asset" within the meaning of
Section 8-102(a)(9) of the New York UCC.
(E) If at any time the Securities Intermediary shall
receive any order from the Indenture Trustee directing
transfer or redemption of any Financial Asset relating to the
Designated Accounts, the Securities Intermediary shall comply
with such order without further consent by the Trust, the
Servicer, the Seller or any other Person.
(F) The Designated Accounts shall be governed by the
laws of the State of New York, regardless of any provision in
any other agreement. For purposes of the UCC, New York shall
be deemed to be the Securities Intermediary's jurisdiction and
the Designated Accounts (as well as the Security Entitlements
related thereto) shall be governed by the laws of the State of
New York.
(G) The Securities Intermediary has not entered into,
and until the termination of this Agreement will not enter
into, any agreement with any other Person relating to the
Designated Accounts and/or any Financial Assets or other
property credited thereto pursuant to which it has agreed to
comply with entitlement orders (as defined in Section
8-102(a)(8) of the New York UCC) of such other Person and the
Securities Intermediary has not entered into, and until the
termination of this Agreement will not enter into, any
agreement with the Issuer, the Seller, the
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Servicer or the Indenture Trustee purporting to limit or
condition the obligation of the Securities Intermediary to
comply with entitlement orders as set forth in Section
5.01(b)(ii)(E) hereof.
(H) Except for the claims and interest of the
Indenture Trustee in the Designated Accounts, the Securities
Intermediary has no knowledge of claims to, or interests in,
the Designated Accounts or in any Financial Asset credited
thereto. If any other Person asserts any Lien, encumbrance or
adverse claim (including any writ, garnishment, judgment,
warrant of attachment, execution or similar process) against
the Designated Accounts or in any Financial Asset carried
therein, the Securities Intermediary will promptly notify the
Indenture Trustee, the Servicer and the Issuer thereof.
(I) The Securities Intermediary will promptly send
copies of all statements, confirmations and other
correspondence concerning the Designated Accounts and/or any
Designated Account Property simultaneously to each of the
Servicer and the Indenture Trustee, at the addresses set forth
in Appendix B to this Agreement.
(J) The Indenture Trustee shall maintain each item of
Designated Account Property in the particular Designated
Account to which such item originated and shall not commingle
items from different Designated Accounts.
(iii) The Servicer shall have the power, revocable by the
Indenture Trustee (or by the Owner Trustee with the consent of the
Indenture Trustee) to instruct the Indenture Trustee to make
withdrawals and payments from the Designated Accounts for the purpose
of permitting the Servicer or the Owner Trustee to carry out its
respective duties hereunder or permitting the Indenture Trustee to
carry out its duties under the Indenture.
(iv) The Indenture Trustee shall possess all right, title
and interest in and to all funds on deposit from time to time in the
Designated Accounts and in all proceeds thereof (except Investment
Earnings). Except as otherwise provided herein or in the Indenture, the
Designated Accounts shall be under the exclusive dominion and control
of the Indenture Trustee for the benefit of the Securityholders and the
Indenture Trustee shall have sole signature power and authority with
respect thereto.
(v) The Servicer shall not direct the Indenture Trustee to
make any investment of any funds or to sell any investment held in any
of the Designated Accounts unless the security interest granted and
perfected in such account shall continue to be perfected in such
investment or the proceeds of such sale, in either case without any
further action by any Person, and, in connection with any direction to
the Indenture Trustee to make any such investment or sale, if requested
by the Indenture Trustee, the Servicer shall deliver to the Indenture
Trustee an Opinion of Counsel, acceptable to the Indenture Trustee, to
such effect.
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(c) Pursuant to the Trust Agreement, the Issuer shall possess all
right, title and interest in and to all funds on deposit from time to time in
the Certificate Distribution Account and in all proceeds thereof (except
Investment Earnings). Except as otherwise provided herein or in the Trust
Agreement, the Certificate Distribution Account shall be under the sole dominion
and control of the Owner Trustee for the benefit of the Certificateholders. If,
at any time, the Certificate Distribution Account ceases to be an Eligible
Deposit Account, the Owner Trustee (or the Seller on behalf of the Owner
Trustee, if the Certificate Distribution Account is not then held by the Owner
Trustee or an Affiliate thereof) shall within 10 Business Days (or such longer
period, not to exceed 30 calendar days, as to which each Rating Agency may
consent) establish a new Certificate Distribution Account as an Eligible Deposit
Account and shall transfer any cash and/or any investments to such new
Certificate Distribution Account.
(d) The Indenture Trustee, the Owner Trustee, the Securities
Intermediary and each other Eligible Deposit Institution with whom a Designated
Account or the Certificate Distribution Account is maintained waives any right
of set-off, counterclaim, security interest or bankers' lien to which it might
otherwise be entitled.
(e) At any time that each Monthly Remittance Condition is
satisfied, then (x) Payments Ahead need not be remitted to and deposited in the
Payment Ahead Servicing Account but instead may be remitted to and held by the
Servicer and (y) the Servicer shall not be required to segregate or otherwise
hold separate any Payments Ahead, but the Servicer shall be required to remit
Applied Payments Ahead to the Collection Account in accordance with Section
4.06(b)(ii). The Servicer shall promptly notify the Indenture Trustee if any
Monthly Remittance Condition ceases to be satisfied such that the Payments Ahead
will not be remitted in accordance with the prior sentence. Commencing with the
first day of the first Monthly Period that begins at least two Business Days
after the day on which any Monthly Remittance Condition ceases to be satisfied,
the Servicer shall deposit in the Payment Ahead Servicing Account the amount of
any Payments Ahead then held by it, and thereafter, for so long as a Monthly
Remittance Condition continues to be unsatisfied, the Servicer shall deposit any
additional Payments Ahead in the Payments Ahead Servicing Account within two
Business Days after receipt thereof. Notwithstanding the foregoing, if a Monthly
Remittance Condition is unsatisfied the Servicer may utilize, with respect to
the Payments Ahead, an alternative remittance schedule (which may include a
remittance schedule utilized by the Servicer at a time when the Monthly
Remittance Conditions were satisfied), if the Servicer provides to the Indenture
Trustee written confirmation from the Rating Agencies that such alternative
remittance schedule will not result in the downgrading or withdrawal by the
Rating Agencies of the ratings then assigned to the Notes and the Certificates.
Neither the Indenture Trustee nor the Owner Trustee shall be deemed to have
knowledge of any Servicer Default unless such trustee has received notice of
such event or circumstance from the other trustee, the Seller or the Servicer in
an officer's certificate or from Certificateholders whose Certificates evidence
not less than 25% of the Voting Interests as of the close of the preceding
Distribution Date or from Noteholders whose Notes evidence not less than 25% of
the Outstanding Amount of the Notes as of the close of the preceding
Distribution Date or unless a Responsible Officer in the Corporate Trust Office
of the Indenture Trustee with knowledge hereof and familiarity herewith has
actual knowledge of such event or circumstance.
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Section 5.02. Collections. If a Monthly Remittance Condition is not
satisfied, commencing with the first day of the first Monthly Period that begins
at least two Business Days after the day on which any Monthly Remittance
Condition ceases to be satisfied, the Servicer shall remit to the Collection
Account all payments by or on behalf of the Obligors (including Payments Ahead
in accordance with Section 5.01(e)) on the Receivables and all Liquidation
Proceeds within two Business Days after receipt thereof. Notwithstanding the
foregoing, if a Monthly Remittance Condition is unsatisfied, the Servicer may
utilize an alternative remittance schedule (which may include a remittance
schedule utilized by the Servicer at a time when the Monthly Remittance
Conditions were satisfied), if the Servicer provides to the Indenture Trustee
and the Swap Counterparty 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 the related Distribution Date.
Section 5.03. Investment Earnings and Supplemental Servicing Fees. The
Servicer shall be entitled to receive all Investment Earnings and Supplemental
Servicing Fees when and as paid without any obligation to the Owner Trustee, the
Indenture Trustee or the Seller in respect thereof. The Servicer will have no
obligation to deposit any such amount in any account established
hereunder. To the extent that any such amount shall be held in any account held
by the Indenture Trustee or the Owner Trustee, or otherwise established
hereunder, such amount will be withdrawn therefrom and paid to the Servicer upon
presentation of a certificate signed by a Responsible Officer of the Servicer
setting forth, in reasonable detail, the amount of such Investment Earnings or
Supplemental Servicing Fees.
Section 5.04 Monthly Advances.
(a) Subject to the following sentence, as of the last day of each
Monthly Period, with respect to each Scheduled Interest Receivable (other than
an Administrative Receivable or a Warranty Receivable), if there is a shortfall
in the Scheduled Payment remaining after application of the Deferred Prepayment
pursuant to the last sentence of Section 3.11(a) of the Pooling and Servicing
Agreement, the Servicer shall advance an amount equal to such shortfall (such
amount, a "Scheduled Interest Advance"). The Servicer shall be obligated to make
a Scheduled Interest Advance in respect of a Scheduled Interest Receivable only
to the extent that the Servicer, in its sole discretion, shall determine that
such advance shall be recoverable from subsequent collections or recoveries on
any Receivable. The Servicer shall be reimbursed for Outstanding Scheduled
Interest Advances with respect to a Receivable from the following sources with
respect to such Receivable, in each case as set forth in the Pooling and
Servicing Agreement: (i) subsequent payments by or on behalf of the Obligor,
(ii) collections of Liquidation Proceeds, and (iii) the Warranty Payment. At
such time as the Servicer shall determine that any Outstanding Scheduled
Interest Advances with respect to any Scheduled Interest Receivable shall not be
recoverable from payments with respect to such Receivable, the Servicer shall be
reimbursed from any collections made on other Receivables held by the Issuer.
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(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. Servicer Liquidity Advance. If, on a Targeted Final
Distribution Date for any class of Class A Notes, there is a binding agreement
for the sale of an interest in the Variable Pay Term Notes to be issued on such
Targeted Final Distribution Date and the Servicer determines that the proceeds
from such sale will not be received by the Trust on that Targeted Final
Distribution Date in time to make payments on the Notes on or before such
Targeted Final Distribution Date, the Servicer may, in its sole discretion, make
a liquidity advance in an amount equal to the expected proceeds if it
determines, in its sole discretion, that it has received reasonable assurances
from the purchaser of an interest in the Variable Pay Term Notes to the effect
that the full amount of the expected proceeds will be delivered within two
Business Days after such Targeted Final Distribution Date (such advance, a
"Servicer Liquidity Advance"). If the Servicer makes a Servicer Liquidity
Advance, it will be immediately reimbursed for the advance upon receipt of the
purchase price for the related Variable Pay Term Notes or an interest therein.
If such purchase price for such Variable Pay Term Notes, or an interest therein,
is not paid within two Business Days after the applicable Targeted Final
Distribution Date, the Servicer will have the right to be reimbursed out of
collections on the Receivables as and when received by the Servicer and such
Variable Pay Term Notes, if issued, will be canceled.
Section 5.06 Additional Deposits. The Servicer shall deposit in the
Collection Account the aggregate Monthly Advances pursuant to Sections 5.04(a)
and (b) and the aggregate amounts to be paid to the Issuer pursuant to Section
3.03 of the Pooling and Servicing Agreement. The Servicer and the Seller shall
deposit in the Collection Account the aggregate Administrative Purchase Payments
and Warranty Payments with respect to Administrative Receivables and Warranty
Receivables, respectively. All such deposits with respect to a Monthly Period
shall be made in immediately available funds on the Distribution Date related to
such Monthly Period.
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SECTION VI
LIABILITIES OF SERVICER AND OTHERS
Section 6.01. Liability of Servicer; Indemnities.
(a) The Servicer shall be liable in accordance with this
Agreement only to the extent of the obligations in this Agreement and the
Pooling and Servicing Agreement specifically undertaken by the Servicer. Such
obligations shall include the following:
(i) The Servicer shall defend, indemnify and hold
harmless the Indenture Trustee, the Owner Trustee, the Issuer, the
Swap Counterparty, 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
Swap Counterparty, 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 Swap Counterparty, the
Noteholders or the Certificateholders through the negligence, willful
misfeasance or bad faith of the Servicer in the performance of its
duties under this Agreement, the Pooling and Servicing Agreement, the
Indenture or the Trust Agreement or any other Basic Document or by
reason of reckless disregard of its obligations and duties under this
Agreement, the Pooling and Servicing Agreement, the Indenture or the
Trust Agreement; and
(iv) The Servicer shall indemnify, defend and hold
harmless the Indenture Trustee and the Owner Trustee, and their
respective agents and servants, from and against all costs, expenses,
losses, claims, damages and liabilities arising out of or incurred in
connection with (x) in the case of the Owner Trustee, the Indenture
Trustee's performance of its duties under the Indenture or any other
Basic Document, (y) in the case of the Indenture Trustee, the 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
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Owner Trustee, as applicable, of the trusts and duties contained in
this Agreement, the Basic Documents, the Indenture (in the case of the
Indenture Trustee), including the administration of the Trust Estate,
and the Trust Agreement (in case of the Owner Trustee), including the
administration of the Owner Trust Estate, except in each case to the
extent that such cost, expense, loss, claim, damage or liability: (A)
is due to the willful misfeasance, bad faith or negligence (except for
errors in judgment) of the Person indemnified, (B) to the extent
otherwise payable to the Indenture Trustee, arises from the Indenture
Trustee's breach of any of its representations or warranties in
Section 6.13 of the Indenture, (C) to the extent otherwise payable to
the Owner Trustee, arises from the Owner Trustee's breach of any of
its representations or warranties set forth in Section 6.6 of the
Trust Agreement, or (D) shall arise out of or be incurred in
connection with the performance by the Indenture Trustee of the duties
of successor Servicer hereunder.
(b) Indemnification under this Section 6.01 shall include, without
limitation, reasonable fees and expenses of 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 and the Swap Counterparty.
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 or the Trust Agreement. The Servicer and any director,
officer or employee or agent of the Servicer may rely in good faith on
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the advice of counsel or on any document of any kind prima facie properly
executed and submitted by any Person respecting any matters arising under this
Agreement or the Pooling and Servicing Agreement.
(b) The Servicer and any director or officer or employee or agent
of the Servicer shall be reimbursed by the Indenture Trustee or the Owner
Trustee, as applicable, for any contractual damages, liability or expense
(including, without limitation, any obligation of the Servicer to the Indenture
Trustee or the Owner Trustee, as applicable, pursuant to Section 6.01(a)(iv)(x)
or (y)) incurred by reason of such trustee's willful misfeasance, bad faith or
gross negligence (except errors in judgment) in the performance of such
trustee's duties under this Agreement, the Indenture or the Trust Agreement or
by reason of reckless disregard of its obligations and duties under this
Agreement.
(c) Except as provided in this Agreement or in the Pooling and
Servicing Agreement, the Servicer shall not be under any obligation to appear
in, prosecute or defend any legal action that is not incidental to its duties to
service the 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 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
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this Agreement or under the Pooling and Servicing Agreement, as the case may be,
is no longer permissible under applicable law. Any such determination permitting
the resignation of the Servicer shall be evidenced by an Opinion of Counsel to
such effect delivered to the Indenture Trustee and the Owner Trustee (with a
copy to the Swap Counterparty). No such resignation shall become effective until
the Indenture Trustee or a successor Servicer shall have assumed the
responsibilities and obligations of the Servicer in accordance with Section
7.02.
ARTICLE VII
DEFAULT
Section 7.01. Servicer Defaults. Each of the following shall
constitute a "Servicer Default":
(a) any failure by the Servicer to deliver to the Indenture Trustee
for deposit in any of the Designated Accounts or to the Owner Trustee for
deposit in the Certificate Distribution Account any required payment or to
direct the Indenture Trustee to make any required distributions therefrom,
which failure continues unremedied for a period of five Business Days after
written notice is received by the Servicer from the Indenture Trustee or the
Owner Trustee or after discovery of such failure by an officer of the Servicer;
(b) failure on the part of the Seller or the Servicer to duly
observe or perform in any material respect any other covenants or agreements of
the Seller or the Servicer set forth in this Agreement, the Pooling and
Servicing Agreement, the Indenture or the Trust Agreement which failure (i)
materially and adversely affects the rights of Noteholders or
Certificateholders, and (ii) continues unremedied for a period of 90 days after
the date on which written notice of such failure, requiring the same to be
remedied, shall have been given to the Seller or the Servicer, as applicable, by
the Indenture Trustee or the Owner Trustee, or to the Seller or the Servicer, as
applicable, and to the Indenture Trustee or the Owner Trustee by Noteholders
whose Notes evidence not less than 25% of the Outstanding Amount of the Notes as
of the close of the preceding Distribution Date or by Certificateholders whose
Certificates evidence not less than 25% of the Voting Interests as of the close
of the preceding Distribution Date;
(c) the entry of a decree or order by a court or agency or
supervisory authority having jurisdiction in the premises for the appointment of
a conservator, receiver or liquidator for the Seller or the Servicer, in any
insolvency, readjustment of debt, marshalling of assets and liabilities or
similar proceedings, or for the winding up or liquidation of their respective
affairs, and the continuance of any such decree or order unstayed and in effect
for a period of 90 consecutive days; or
(d) the consent by the Seller or the Servicer to the appointment of
a conservator or receiver or liquidator in any insolvency, readjustment of debt,
marshalling of assets and liabilities, or similar proceedings of or relating to
the Seller or the Servicer or of or relating to substantially all of their
respective property; or the Seller or the Servicer shall admit in writing its
inability to pay its debts generally as they become due, file a petition to take
advantage of any applicable insolvency or
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reorganization statute, make an assignment for the benefit of its creditors or
voluntarily suspend payment of its obligations.
Section 7.02. Consequences of a Servicer Default. If a Servicer Default
shall occur and be continuing, either the Indenture Trustee or the Noteholders
whose Notes evidence not less than a majority of the Outstanding Amount of the
Notes as of the close of the preceding Distribution Date (or, if the Notes have
been paid in full and the Indenture has been discharged in accordance with its
terms, by the Owner Trustee or Certificateholders whose Certificates evidence
not less than a majority of the Voting Interests as of the close of the
preceding Distribution Date) by notice then given in writing to the Servicer and
the Owner Trustee (and to the Indenture Trustee if given by the Noteholders or
the Certificateholders) may terminate all of the rights and obligations of the
Servicer under this Agreement and the Pooling and Servicing Agreement. On or
after the receipt by the Servicer of such written notice, all authority and
power of the Servicer under this Agreement and the Pooling and Servicing
Agreement, whether with respect to the Notes, the Certificates or the
Receivables or otherwise, shall pass to and be vested in the Indenture Trustee
pursuant to and under this Section 7.02. The Indenture Trustee is hereby
authorized and empowered to execute and deliver, on behalf of the Servicer, as
attorney-in-fact or otherwise, any and all documents and other instruments, and
to do or accomplish all other acts or things necessary or appropriate to effect
the purposes of such notice of termination, whether to complete the transfer and
endorsement of the Receivables and related documents, or otherwise. The Servicer
agrees to cooperate with the Indenture Trustee and the Owner Trustee in
effecting the termination of the responsibilities and rights of the Servicer
under this Agreement and the Pooling and Servicing Agreement, including, without
limitation, the transfer to the Indenture Trustee or the Owner Trustee for
administration by it of all cash amounts that shall at the time be held by the
Servicer for deposit, or that shall have been deposited by the Servicer in the
Collection Account, the Note Distribution Account, the Certificate Distribution
Account or the Payment Ahead Servicing Account or thereafter received with
respect to the Receivables and all Payments Ahead that shall at that time be
held by the Servicer. In addition to any other amounts that are then payable to
the Servicer under this Agreement, the Servicer shall be entitled to receive
from the successor Servicer reimbursements for any Outstanding Monthly Advances
made during the period prior to the notice pursuant to this Section 7.02 which
terminates the obligation and rights of the Servicer under this Agreement.
Section 7.03. Indenture Trustee to Act; Appointment of Successor. On
and after the time the Servicer receives a notice of termination pursuant to
Section 7.02, the Indenture Trustee shall be the successor in all respects to
the Servicer in its capacity as servicer under this Agreement and the Pooling
and Servicing Agreement and the transactions set forth or provided for in this
Agreement and the Pooling and Servicing Agreement, and shall be subject to all
the responsibilities, restrictions, duties and liabilities relating thereto
placed on the Servicer by the terms and provisions of this Agreement and the
Pooling and Servicing Agreement. As compensation therefor, the Indenture Trustee
shall be entitled to such compensation (whether payable out of the Collection
Account or otherwise) as the Servicer would have been entitled to under this
Agreement if no such notice of termination had been given including, but not
limited to, the Total Servicing Fee, Investment Earnings and Supplemental
Servicing Fees. Notwithstanding the above, the Indenture Trustee may, if it
shall be unwilling so to act, or shall, if it is legally unable so to act,
appoint, or petition a court of
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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 Notes as of the close
of the preceding Distribution Date (or, if all of the Notes have been paid in
full and the Indenture has been discharged in accordance with its terms,
Certificateholders whose Certificates evidence not less than a majority of the
Voting Interests as of the close of the preceding Distribution Date) may, on
behalf of all Noteholders and Certificateholders, waive any default by the
Servicer in the performance of its obligations hereunder and its consequences,
except a default in making any required deposits to or payments from any of the
accounts in accordance with this Agreement. Upon any such waiver of a past
default, such default shall cease to exist, and any Servicer Default arising
therefrom shall be deemed to have been remedied for every purpose of this
Agreement and the Pooling and Servicing Agreement. No such waiver shall extend
to any subsequent or other default or impair any right consequent thereon.
Section 7.06 Repayment of Advances. If the identity of the Servicer
shall change, the predecessor Servicer shall be entitled to receive, to the
extent of available funds, reimbursement for Outstanding Monthly Advances
pursuant to Section 5.04 in the manner specified in Section 4.06 with respect to
all Monthly Advances made by such predecessor Servicer and reimbursement for
Servicer Liquidity Advances pursuant to Section 5.05 in the manner specified in
Section 5.05 with respect to all Servicer Liquidity Advances made by such
predecessor Servicer.
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ARTICLE VIII
TERMINATION
Section 8.01 Optional Purchase of All Receivables; Insolvency of
Seller; Termination of Trust.
(a) The Servicer shall have the option to purchase the assets of
the Trust (other than the Designated Accounts and the Certificate Account) as of
any date (the "Optional Purchase Date") which is the last day of any Monthly
Period as of which the Aggregate Principal Balance is 10% or less of the
Aggregate Amount Financed. To exercise such option, the Servicer shall (i)
furnish to the Issuer and the Indenture Trustee notice of its intention to
exercise such option and of the Optional Purchase Date (such notice to be
furnished not later than 25 days prior to the Distribution Date related to such
Optional Purchase Date) and (ii) deposit in the Collection Account an amount
equal to the aggregate Administrative Purchase Payments for the Receivables
(including Liquidating Receivables), plus the appraised value of any other
property held by the Trust (less the Liquidation Expenses to be incurred in
connection with the recovery thereof), provided, that such amount (when added to
any funds then on deposit in the Designated Accounts and the Certificate
Distribution Account) must be at least equal to the aggregate Redemption Price
of the outstanding Notes to be redeemed and the Certificate Balance plus accrued
and unpaid interest on all Certificates to be retired early with such proceeds
on the Distribution Date related to the Monthly Period in which such option
is exercised plus any amount payable to the Swap Counterparty on such
Distribution Date. Such appraised value shall be determined by an appraiser
mutually satisfactory to the Servicer, the Owner Trustee and the Indenture
Trustee. The Servicer shall make such deposit in immediately available funds on
the Distribution Date related to the Optional Purchase Date, except that if any
Monthly Remittance Condition is not satisfied on the Optional Purchase Date,
such deposit shall instead be made on the Optional Purchase Date. Upon the
making of such deposit, the Servicer shall succeed to all interests in and to
the Trust (other than the Designated Accounts and the Certificate Account).
(b) Upon any sale or other disposition of the assets of the Trust
pursuant to Article V of the Indenture (an "Event of Default Sale"), the
Servicer shall instruct the Applicable Trustee to deposit into the Collection
Account from the proceeds of such disposition the amount specified in clause
SECOND of Section 5.4(b) of the Indenture (the "Event of Default Proceeds"). On
the Distribution Date on which the Event of Default Proceeds are deposited in
the Collection Account (or, if such proceeds are not so deposited on a
Distribution Date, on the Distribution Date immediately following such deposit),
the Servicer shall instruct the Applicable Trustee to make the following
deposits (after the application on such Distribution Date of the Available
Principal and the Available Interest and funds on deposit in the Reserve Account
pursuant to Sections 4.06 and 4.07) from the Event of Default Proceeds and any
funds remaining on deposit in the Reserve Account (including the proceeds of any
sale of investments therein as described in the following sentence) in the
following priority:
(i) to the Swap Counterparty, the net amount, if any, then
due to the Swap Counterparty under the Interest Rate Swap (exclusive
of payments due to the Swap Counterparty in respect of an Early
Termination Date under the Interest Rate Swap);
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(ii) second, to (a) the Note Distribution Account in respect
of the Aggregate Noteholders' Interest Distributable Amount and (b) to
the Swap Counterparty in respect of any payments due to the Swap
Counterparty in connection with any Early Termination Date of the
Interest Rate Swap, allocated between the Note Distribution Account and
the Swap Counterparty in proportion to the amounts owing to the Swap
Counterparty in connection with such Early Termination Date and in
respect of the Aggregate Noteholders' Interest Distributable Amount;
(iii) to the Note Distribution Account, any portion of the
Aggregate Noteholders' Interest Distributable Amount not otherwise
deposited into the Note Distribution Account on such Distribution Date
for payment of interest on the Notes;
(iv) to the Note Distribution Account, an amount equal to
the Note Principal Balance of the Notes (after giving effect to the
reduction in the Aggregate Note Principal Balance to result from the
deposits made in the Note Distribution Account on such Distribution
Date and on each prior Distribution Date) for payment of principal of
the Notes;
(v) to the Certificate Distribution Account, any portion of
the Certificateholders' Interest Distributable Amount not otherwise
deposited into the Certificate Distribution Account on such
Distribution Date for payment of interest on the Certificates; and
(vi) to the Certificate Distribution Account, an amount
equal to the Certificate Balance of the Certificates (after giving
effect to the reduction therein to result from the deposits made in the
Certificate Distribution Account on such Distribution Date and on each
prior Distribution Date) for payment of the Certificate Balance on the
Certificates.
Subject to Section 5.01(b), any investments on deposit in the Reserve Account
which shall not mature on or before such Distribution Date shall be sold by the
Indenture Trustee at such time as shall result in the Indenture Trustee
receiving the proceeds from such sale not later than such Distribution Date. Any
Event of Default Proceeds remaining after the deposits described above shall be
paid to the Seller.
(c) Notice of any termination of the Trust shall be given by the
Servicer to the Owner Trustee, the Indenture Trustee and the Swap Counterparty
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).
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(e) After indefeasible payment in full to the Indenture Trustee,
the Owner Trustee, the Swap Counterparty, the Noteholders, the
Certificateholders and the Servicer of all amounts required to be paid under
this Agreement, the Indenture, the Interest Rate Swap and the Trust Agreement
(including as contemplated by this Section 8.01), (i) any amounts on deposit in
the Reserve Account, the Payment Ahead Servicing Account and the Collection
Account (after all other distributions required to be made from such accounts
have been made and provision for the payment of all liabilities of the Trust as
required by Section 3808 of the Business Trust Statute) shall be paid to the
Seller and (ii) any other assets remaining in the Trust shall be distributed to
the Seller.
ARTICLE IX
MISCELLANEOUS PROVISIONS
Section 9.01. Amendment.
(a) This Agreement may be amended by the Seller, the Servicer and
the Owner Trustee with the consent of the Indenture Trustee, but without the
consent of any of the Noteholders or the Certificateholders, (i) to cure any
ambiguity, (ii) to correct or supplement any provision in this Agreement that
may be defective or inconsistent with any other provision in this Agreement or
any other Basic Documents, (iii) to add or supplement any credit enhancement for
the benefit of the Noteholders of any class or the Certificateholders ( provided
that if any such addition shall affect any class of Noteholders or
Certificateholders differently than any other class of Noteholders or
Certificateholders, then such addition shall not, as evidenced by an Opinion of
Counsel, adversely affect in any material respect the interests of any class of
Noteholders or the Certificateholders), (iv) add to the covenants, restrictions
or obligations of the Seller, the Servicer, the Owner Trustee or the Indenture
Trustee or (v) add, change or eliminate any other provision of this Agreement in
any manner that shall not, as evidenced by an Opinion of Counsel, adversely
affect in any material respect the interests of the Noteholders or the
Certificateholders.
(b) This Agreement may also be amended from time to time by the
Seller, the Servicer and the Owner Trustee with the consent of the Indenture
Trustee, the consent of Noteholders whose Notes evidence not less than a
majority of the Outstanding Amount of the Notes as of the close of the preceding
Distribution Date, the consent of Certificateholders whose Certificates evidence
not less than a majority of the Voting Interests as of the close of the
preceding Distribution Date, (which consent, whether given pursuant to this
Section 9.01 or pursuant to any other provision of this Agreement, shall be
conclusive and binding on such Person and on all future holders of such Note or
Certificate and of any Note or Certificate issued upon the transfer thereof or
in exchange thereof or in lieu thereof whether or not notation of such consent
is made upon the Note or Certificate) for the purpose of adding any provisions
to or changing in any manner or eliminating any of the provisions of this
Agreement, or of modifying in any manner the rights of the Noteholders or the
Certificateholders; provided, however, that no such amendment shall (i) increase
or reduce in any manner the amount of, or accelerate or delay the timing of,
collections of payments on Receivables or distributions that shall be required
to be made on any Note or Certificate, the Interest Rate for any class of Notes,
the Pass Through Rate or the Specified Reserve Account Balance or (ii) reduce
the
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aforesaid percentage required to consent to any such amendment, without the
consent of the holders of all Notes and Certificates then outstanding. In no
case shall there occur any amendment under this Section 9.01(b) of this
Agreement unless either (A) the Swap Counterparty consents to such amendment or
(B) the amendment will, as evidenced by a Materiality Opinion, have no material
and adverse effect on the interests of the Swap Counterparty.
(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 and the Swap Counterparty.
(d) Promptly after the execution of any such amendment or consent,
the Owner Trustee shall furnish written notification of the substance of such
amendment or consent to each Noteholder, Certificateholder and, for so long as
the Interest Rate Swap is in effect, to the Swap Counterparty.
(e) It shall not be necessary for the consent of Noteholders or
Certificateholders pursuant to Section 9.01(b) to approve the particular form of
any proposed amendment or consent, but it shall be sufficient if such consent
shall approve the substance thereof. The manner of obtaining such consents (and
any other consents of Noteholders or Certificateholders provided for in this
Agreement) and of evidencing the authorization of the execution thereof by
Noteholders and Certificateholders shall be subject to such reasonable
requirements as the Indenture Trustee or the Owner Trustee may prescribe,
including the establishment of record dates pursuant to paragraph number 2 of
the Depository Agreements.
(f) Prior to the execution of any amendment to this Agreement, the
Indenture Trustee and the Owner Trustee shall be entitled to receive and
conclusively rely upon an Opinion of Counsel stating that the execution of such
amendment is authorized or permitted by this Agreement and the Opinion of
Counsel referred to in Section 9.02(i). The Indenture Trustee and the Owner
Trustee may, but shall not be obligated to, enter into any such amendment which
affects such trustee's own rights, duties or immunities under this Agreement or
otherwise.
(g) Each of GMAC and the Seller agrees that such Person shall not
amend or agree to any amendment of the Pooling and Servicing Agreement unless
such amendment would be permissible under the terms of this Section 9.01 as if
this Section 9.01 were contained in the Pooling and Servicing Agreement.
Section 9.02 Protection of Title to Trust.
(a) The Seller or the Servicer or both shall execute and file such
financing statements and cause to be executed and filed such continuation and
other statements, all in such manner and in such places as may be required by
law fully to preserve, maintain and protect the interest of the Noteholders, the
Certificateholders, the Swap Counterparty and the Indenture Trustee and the
Owner Trustee under this Agreement in the Receivables and in the proceeds
thereof. The Seller or the Servicer or both shall deliver (or cause to be
delivered) to the Indenture Trustee and the Owner
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Trustee file-stamped copies of, or filing receipts for, any document filed as
provided above, as soon as available following such filing.
(b) Neither the Seller nor the Servicer shall change its name,
identity or corporate structure in any manner that would, could or might make
any financing statement or continuation statement filed in accordance with
paragraph (a) above seriously misleading within the meaning of Section 9-402(7)
of the UCC, unless it shall have given the Indenture Trustee and the Owner
Trustee at least 60 days prior written notice thereof.
(c) Each of the Seller and the Servicer shall give the Indenture
Trustee and the Owner Trustee at least 60 days prior written notice of any
relocation of its principal executive office if, as a result of such relocation,
the applicable provisions of the UCC would require the filing of any amendment
of any previously filed financing or continuation statement or of any new
financing statement. The Servicer shall at all times maintain each office from
which it services Receivables and its principal executive office within the
United States of America.
(d) The Servicer shall maintain accounts and records as to each
Receivable accurately and in sufficient detail to permit (i) the reader thereof
to know at any time the status of such Receivable, including payments and
recoveries made and payments owing (and the nature of each), and (ii)
reconciliation between payments or recoveries on (or with respect to) each
Receivable and the amounts from time to time deposited in the Collection
Account, Note Distribution Account, Certificate Distribution Account,
Accumulation Account, and Payment Ahead Servicing Account and any Payments Ahead
held by the Servicer in respect of such Receivable.
(e) The Servicer shall maintain its computer systems so that, from
and after the time of sale under this Agreement of the Receivables, the
Servicer's master computer records (including any back-up archives) that refer
to any Receivable indicate clearly that the Receivable is owned by the Issuer.
Indication of the Issuer's ownership of a Receivable shall be deleted from or
modified on the Servicer's computer systems when, and only when, the Receivable
has been paid in full or repurchased by the Seller or purchased by the Servicer.
(f) If at any time the Seller or the Servicer proposes to sell,
grant a security interest in, or otherwise transfer any interest in automotive
receivables to any prospective purchaser, lender or other transferee, the
Servicer shall give to such prospective purchaser, lender or other transferee
computer tapes, records or print-outs (including any restored from back-up
archives) that, if they refer in any manner whatsoever to any Receivable,
indicate clearly that such Receivable has been sold and is owned by the Issuer
unless such Receivable has been paid in full or repurchased by the Seller or
purchased by the Servicer.
(g) 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.
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(h) 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.
(i) The Servicer shall deliver to the Indenture Trustee and the
Owner Trustee (with a copy to the Swap Counterparty) promptly after the
execution and delivery of this Agreement and of each amendment thereto, an
Opinion of Counsel either (a) stating that, in the opinion of such counsel, all
financing statements and continuation statements have been executed and filed
that are necessary fully to preserve and protect the interest of the Indenture
Trustee and the Owner Trustee in the Receivables, and reciting the details of
such filings or referring to prior Opinions of Counsel in which such details are
given, or (b) stating that, in the opinion of such counsel, no such action is
necessary to preserve and protect such interest.
(j) 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. All demands upon, notices to and communications with the Swap
Counterparty under this Agreement shall be delivered in the manner specified for
notices in the Interest Rate Swap.
Section 9.04. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK, WITHOUT
REFERENCE TO ITS CONFLICT OF LAWS PROVISIONS AND THE OBLIGATIONS, RIGHTS AND
REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH
LAWS.
Section 9.05. Severability of Provisions. If any one or more of the
covenants, agreements, provisions or terms of this Agreement shall be for any
reason whatsoever held invalid, then such covenants, agreements, provisions or
terms shall be deemed severable from the remaining covenants, agreements,
provisions or terms of this Agreement and shall in no way affect the validity or
enforceability of the other provisions of this Agreement or of the Certificates
or the rights of the holders thereof.
Section 9.06. Assignment. Notwithstanding anything to the contrary
contained in this Agreement, this Agreement may not be assigned by the Seller
without the prior written consent of Noteholders whose Notes evidence not less
than 66% of the Outstanding Amount of the Notes as of the close of the preceding
Distribution Date and of Certificateholders whose Certificates evidence
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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 and the Swap Counterparty.
Section 9.07. Third-Party Beneficiaries. This Agreement shall inure to
the benefit of and be binding upon the parties hereto and, to the extent
expressly provided herein, the Noteholders, the Certificateholders, the Swap
Counterparty and their respective successors and permitted assigns. Except as
otherwise provided in Section 6.01 or in this Article IX, no other person shall
have any right or obligation hereunder.
Section 9.08. Separate Counterparts. This Agreement may be executed by
the parties hereto in separate counterparts, each of which when so executed and
delivered shall be an original, but all such counterparts shall together
constitute but one and the same instrument.
Section 9.09. Headings and Cross-References. The various headings in
this Agreement are included for convenience only and shall not affect the
meaning or interpretation of any provision of this Agreement.
Section 9.10. Assignment to Indenture Trustee. The Seller hereby
acknowledges and consents to any mortgage, pledge, assignment and grant of a
security interest by the Issuer to the Indenture Trustee pursuant to the
Indenture for the benefit of the Noteholders, the Swap Counterparty and (only to
the extent expressly provided in the Indenture) the Certificateholders of all
right, title and interest of the Issuer in, to and under the Receivables and/or
the assignment of any or all of the Issuer's rights and obligations hereunder to
the Indenture Trustee.
Section 9.11. No Petition Covenants. Notwithstanding any prior
termination of this Agreement, the Servicer and the Seller shall not, prior to
the date which is one year and one day after the final distribution with respect
to the Notes and the Certificates to the Note Distribution Account or the
Certificate Distribution Account, as applicable, acquiesce, petition or
otherwise invoke or cause the Issuer to invoke the process of any court or
government authority for the purpose of commencing or sustaining a case against
the Issuer under any federal or state bankruptcy, insolvency or similar law or
appointing a receiver, liquidator, assignee, trustee, custodian, sequestrator or
other similar official of the Issuer or any substantial part of its property, or
ordering the winding up or liquidation of the affairs of the Issuer.
Section 9.12. Limitation of Liability of Indenture Trustee and Owner
Trustee.
(a) Notwithstanding anything contained herein to the contrary, this
Agreement has been acknowledged and accepted by The First National Bank of
Chicago not in its individual capacity but solely as Indenture Trustee and in no
event shall The First National Bank of Chicago have any liability for the
representations, warranties, covenants, agreements or other obligations of the
Issuer hereunder or in any of the certificates, notices or agreements delivered
pursuant hereto, as to all of which recourse shall be had solely to the assets
of the Issuer.
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(b) Notwithstanding anything contained herein to the contrary, this
Agreement has been executed by Bankers Trust (Delaware) not in its individual
capacity but solely in its capacity as Owner Trustee of the Issuer and in no
event shall Bankers Trust (Delaware) in its individual capacity or, except as
expressly provided in the Trust Agreement, as Owner Trustee of the Issuer have
any liability for the representations, warranties, covenants, agreements or
other obligations of the Issuer hereunder or in any of the certificates, notices
or agreements delivered pursuant hereto, as to all of which recourse shall be
had solely to the assets of the Issuer. For all purposes of this Agreement, in
the performance of its duties or obligations hereunder or in the performance of
any duties or obligations of the Issuer hereunder, the Owner Trustee shall be
subject to, and entitled to the benefits of, the terms and provisions of Article
VI of the Trust Agreement.
Section 9.13. Tax Treatment. The Servicer covenants that for all tax
purposes the Servicer shall regard and treat the Notes and the Certificates in a
manner consistent with the agreements (i) among the Seller, the Owner Trustee
and the Certificateholders in Section 2.11 of the Trust Agreement and (ii) among
the Seller, the Indenture Trustee and the Noteholders in Section 2.14 of the
Indenture.
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.
* * * * *
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their respective officers as of the day and year first above
written.
CAPITAL AUTO RECEIVABLES
ASSET TRUST 1999-2
By: BANKERS TRUST (DELAWARE), not in its individual
capacity but solely as Owner Trustee on behalf of
the Trust,
By:
----------------------------
Name: Patricia Russo
Attorney-in-Fact
CAPITAL AUTO RECEIVABLES, INC.,
Seller
By:
-----------------------------------
Name: C.A. Ondrick
Title: Manager - Securitization
GENERAL MOTORS ACCEPTANCE CORPORATION
By:
------------------------------------
Name: D.C. Walker
Title: Director - U.S. Funding & Securitization
Acknowledged and Accepted:
THE FIRST NATIONAL BANK OF CHICAGO,
not in its individual capacity
but solely as Indenture Trustee,
By:
---------------------------
Name: Steven M. Wagner
Title: First Vice President
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EXHIBIT A
LOCATIONS OF SCHEDULE OF RECEIVABLES
The Schedule of Receivables is
on file at the offices of:
1. The Indenture Trustee
2. The Owner Trustee
3. General Motors Acceptance Corporation
4. Capital Auto Receivables, Inc.
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APPENDIX A
PART I - DEFINITIONS
All terms defined in this Appendix shall have the defined meanings when
used in the Basic Documents, unless otherwise defined therein.
Accountants' Report: The report described in Section 4.02 of the Trust
Sale and Servicing Agreement.
Accumulation Account: The account designated as such, established and
maintained pursuant to Section 5.01(a)(v) of the Trust Sale and Servicing
Agreement.
Accumulation Amount: With respect to any Distribution Date, the
aggregate amount of Undistributed Principal Amount deposited into the
Accumulation Account prior to such Distribution Date and not previously applied
to make payments on the Notes. On any Distribution Date which is a Targeted
Final Distribution Date for a class of Class A Notes, except during a Sequential
Amortization Period or after the Notes have been declared due and payable
following an Event of Default, until all Events of Default have been cured or
waived as provided in the Indenture, the Accumulation Amount, together with the
Noteholders' Percentage of the Principal Distributable Amount for such
Distribution Date and the expected Variable Pay Term Notes Issuance Proceeds,
may not exceed the outstanding principal balance of that class of Class A Notes
and the Variable Pay Term Notes as of the opening of business on that
Distribution Date.
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 Cutoff Date) except for any Overdue
Payments or Supplemental Servicing Fees. Actual Payments do not include Applied
Payments Ahead.
Additional Servicing: With respect to any Distribution Date, an amount
(not less than zero) equal to the lesser of:
(i) the amount, if any, by which:
(A) the amount equal to the aggregate amount of the Basic
Servicing Fee for such Distribution Date and all prior
Distribution Dates exceeds
(B) the aggregate amount of Additional Servicing paid to the
Servicer on all prior Distribution Dates; and
(ii) the amount, if any, by which the amount on deposit in the Reserve
Account on such Distribution Date (after giving effect to all deposits,
withdrawals and payments affecting the
43
Reserve Account other than Additional Servicing and payments to the
Seller) exceeds the Specified Reserve Account Balance.
For purposes of this definition, it is understood that Additional Servicing
equals zero on any Distribution Date unless all payments described in Sections
4.06(c)(ii) through (viii) of the Trust Sale and Servicing Agreement have been
paid or provided for.
Administration Agreement: That certain Administration Agreement, dated
as of the 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 a Monthly
Period:
(i) 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,
(B) any reimbursement made 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 or
(ii) 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.
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Aggregate Amount Financed: $2,125,030,066.84, which represents the
aggregate of the Amount Financed under all of the Receivables.
Aggregate Noteholders' Interest Distributable Amount: With respect to
any Distribution Date, the sum of (i) the Noteholders' Interest Distributable
Amounts for all classes of Notes and (ii) the Noteholders' Interest Carryover
Shortfall as of the close of the preceding Distribution Date.
Aggregate Noteholders' Principal Distributable Amount: With respect to
any Distribution Date, the sum of (i) the Noteholders' Principal Distributable
Amounts for all classes of Notes and (ii) the Noteholders' Principal 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 Principal Balance: 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.
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 related costs, less:
(i) (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
(ii) 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.
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.
Authorized Officer: With respect to the Issuer, any officer of the
Owner Trustee who is authorized to act for the Owner Trustee in matters relating
to the Issuer and who is identified on the list of Authorized Officers delivered
by the Owner Trustee to the Indenture Trustee on the Closing Date (as such list
may be modified or supplemented from time to time thereafter) and, so long as
the Administration Agreement is in effect, any Vice President or more senior
officer of the Administrator
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who is authorized to act for the Administrator in matters relating to the Issuer
and to be acted upon by the Administrator pursuant to the Administration
Agreement and who is identified on the list of Authorized Officers delivered by
the Administrator to the Indenture Trustee on the Closing Date (as such list may
be modified or supplemented from time to time thereafter).
Available Interest: With respect to any Distribution Date, the sum of
the following amounts with respect to the related Monthly Period:
(i) that portion of all collections on 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),
(ii) Liquidation Proceeds to the extent allocable to interest in
accordance with the Servicer's customary servicing procedures;
(iii) all Simple Interest Advances;
(iv) all Scheduled Interest Advances to the extent allocable to
interest
(v) the net amount, if any, paid by the Swap Counterparty to the
Trust pursuant to the Interest Rate Swap; and
(vi) 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;
less an amount equal to the sum of the following amounts with respect
to the related Monthly Period:
(i) 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;
(ii) all Liquidation Proceeds with respect to Scheduled Interest
Receivables to the extent of the Outstanding Scheduled Interest
Advances thereon allocable to interest;
(iii) any Excess Simple Interest Collections; and
(iv) 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.
Available Principal: With respect to any Distribution Date, the sum of
the following amounts with respect to the related Monthly Period:
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(i) 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);
(ii) Liquidation Proceeds to the extent allocable to principal in
accordance with the Servicer's customary servicing procedures;
(iii) all Scheduled Interest Advances to the extent allocable to
principal;
(iv) 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
(v) all Prepayments to the extent allocable to principal;
less an amount equal to the sum of the following amounts with respect
to the related Monthly Period:
(i) 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;
(ii) all Liquidation Proceeds with respect to Scheduled Interest
Receivables to the extent of the Outstanding Scheduled Interest
Advances allocable to principal; and
(iii) amounts representing reimbursement for Liquidation Expenses
pursuant to Section 3.04 of the Pooling and Servicing Agreement.
Basic Documents: The Certificate of Trust, the Trust Agreement, the
Pooling and Servicing Agreement, the Trust Sale and Servicing Agreement, the
Custodian Agreement, the Administration Agreement, the Indenture, the Interest
Rate Swap and the Note Depository Agreement 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 one-twelfth (1/12th) (or for the first Distribution
Date, 2/12ths) of the Basic Servicing Fee Rate multiplied by the Aggregate
Principal Balance of all Receivables held by the Trust as of the first day of
such Monthly Period (or, for the first Distribution Date, the Aggregate
Principal Balance as of the Closing Date).
Basic Servicing Fee Rate: 1.0% per annum.
Benefit Plan: Any of (i) an employee benefit plan (as defined in
Section 3(3) of ERISA) that is subject to the provisions of Title I of ERISA,
(ii) a plan described in Section 4975 (e)(1) of the Code or (iii) any entity
whose underlying assets include plan assets by reason of a plan's investment in
the Trust.
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Book-Entry Certificates: A beneficial interest in the Certificates,
ownership and transfer of which shall be made through book entries by a Clearing
Agency as described in Section 3.11 of the Trust Agreement.
Book-Entry Notes: A beneficial interest in the Notes, ownership and
transfers of which shall be made through book entries by a Clearing Agency as
described in Section 2.10 of the Indenture.
Business Day: Any day other than a Saturday, a Sunday or any other day
on which banks in New York, New York; Detroit, Michigan; or Chicago, Illinois
may, or are required to, remain closed.
Business Trust Statute: Chapter 38 of Title 12 of the Delaware Code, 12
Del. Code ss. 3801 et seq., as the same may be amended from time to time.
CARI: Capital Auto Receivables, Inc., a Delaware corporation.
Certificate: Any one of the 6.700% Asset Backed Certificates executed
by the Owner Trustee and authenticated by the Owner Trustee in substantially the
form set forth in Exhibit A to the Trust Agreement.
Certificate Balance: Initially, as of the Closing Date, $63,751,066.84
and, on any Distribution Date thereafter, will equal the initial Certificate
Balance reduced by (i) all distributions in respect of Certificate Balance
actually made on or prior to such date to Certificateholders, (ii) the
Noteholders' Principal Carryover Shortfall as of the close of the preceding
Distribution Date and (iii) the Certificateholders' Principal Carryover
Shortfall as of the close of the preceding Distribution Date.
Certificate Depository Agreement: The Certificate Depository Agreement,
dated as of the Closing Date, among the Trust, the Administrator and The
Depository Trust Company (as the initial Clearing Agency), relating to the
Certificates and substantially in the form set forth in Exhibit C to the Trust
Agreement, as the same may be amended and supplemented from time to time.
Certificate Distribution Account: The account, if any, designated as
such, established and maintained pursuant to Section 5.1(a) of the Trust
Agreement and Section 5.01(a)(iii) of the Trust Sale and Servicing Agreement.
Certificateholder: A Person in whose name a Certificate is registered
pursuant to the terms of the Trust Agreement.
Certificateholders' Interest Carryover Shortfall: As of the close of
any Distribution Date, the excess of (i) the Certificateholders' Interest
Distributable Amount for such Distribution Date over (ii) the amount that was
actually deposited in the Certificate Distribution Account on such current
Distribution Date in respect of interest on the Certificates.
Certificateholders' Interest Distributable Amount: With respect to any
Distribution Date, the sum of (i) the Certificateholders' Monthly Interest
Distributable Amount for such Distribution Date and (ii) the Certificateholders'
Interest Carryover Shortfall as of the close of the preceding Distribution Date.
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Certificateholders' Monthly Interest Distributable Amount: With respect
to any Distribution Date, interest equal to one-twelfth of the Pass Through Rate
multiplied by the Certificate Balance as of the close of the preceding
Distribution Date (or, in the case of the first Distribution Date, interest at
the Pass Through Rate multiplied by a fraction, the numerator of which is 36 and
the denominator of which is 360 multiplied by the initial Certificate Balance).
Certificateholders' Monthly Principal Distributable Amount: With
respect to any Distribution Date, the lesser of (i) the Certificateholders'
Percentage of the Principal Distributable Amount for such Distribution Date and
(ii) the Certificate Balance as of the close of the preceding Distribution Date.
Certificateholders' Percentage: With respect to any Distribution Date,
100% minus the Noteholders' Percentage.
Certificateholders' Principal Carryover Shortfall: As of the close of
any Distribution Date, the excess of (i) the Certificateholders' Principal
Distributable Amount for such Distribution Date over (ii) the amount that was
actually deposited in the Certificate Distribution Account on such current
Distribution Date in respect of Certificate Balance.
Certificateholders' Principal Distributable Amount: With respect to any
Distribution Date, the sum of:
(i) the lesser of
(A) the Certificateholders' Percentage of the Principal
Distributable Amount and
(B) the Certificate Balance
plus
(ii) any outstanding Certificateholders' Principal Carryover Shortfall
as of the close of the preceding Distribution Date.
Certificate of Trust: The certificate of trust of the Issuer
substantially in the form of Exhibit B to the Trust Agreement to be filed for
the Trust pursuant to Section 3810(a) of the Business Trust Statute.
Certificate Owner: With respect to a Book-Entry Certificate, the Person
who is the beneficial owner of such Book-Entry Certificate, 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).
Certificate Pool Factor: With respect to any Distribution Date, a
seven-digit decimal figure computed by the Servicer equal to the remaining
Certificate Balance as of the close of such Distribution Date divided by the
initial Certificate Balance.
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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.
Class A Notes: Together, the Class A-1 Notes, the Class A-2 Notes, the
Class A-3 Notes, the Class A-4 Notes, and the Class A-5 Notes.
Class A Percentage: With respect to a Distribution Date, the percentage
equal to a fraction, the numerator of which is the outstanding principal balance
of the Class A Notes and the denominator of which is the sum of the outstanding
principal balance of the Class A Notes plus the outstanding principal balance of
the Variable Pay Term Notes, in each case at the close of the immediately
preceding Distribution Date (or, in the case of the first Distribution Date, the
Closing Date).
Class A-1 Notes: The Class A-1 5.992% Asset Backed Notes in the
aggregate principal amount of $427,000,000.00 issued pursuant to the Indenture.
Class A-2 Notes: The Class A-2 6.060% Asset Backed Notes in the
aggregate principal amount of $370,000,000.00 issued pursuant to the Indenture.
Class A-3 Notes: The Class A-3 6.250% Asset Backed Notes in the
aggregate principal amount of $306,500,000.00 issued pursuant to the Indenture.
Class A-4 Notes: The Class A-4 6.300% Asset Backed Notes in the
aggregate principal amount of $400,000,000.00 issued pursuant to the Indenture.
Class A-5 Notes: The Class A-5 6.450% Asset Backed Notes in the
aggregate principal amount of $76,779,000.00 issued pursuant to the Indenture.
Clearing Agency: An organization registered as a "clearing agency"
pursuant to Section 17A of the Exchange Act. The initial Clearing Agency shall
be The Depository Trust Company.
Clearing Agency Participant: A securities broker, dealer, bank, trust
company, clearing corporation or other financial institution or other Person for
whom from time to time a Clearing Agency effects book entry transfers and
pledges of securities deposited with the Clearing Agency.
Closing Date: September 9, 1999.
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.
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Corporate Trust Office: With respect to the Indenture Trustee or the
Owner Trustee, the principal office at which at any particular time the
corporate trust business of the Indenture Trustee or Owner Trustee,
respectively, shall be administered, which offices at the Closing Date are
located, in the case of the Indenture Trustee, at One First National Plaza,
Suite 0126, Chicago, Illinois 60670- 0126, Attn: Corporate Trust Division, and
in the case of the Owner Trustee, at 1011 Centre Road, Suite 200, Wilmington,
Delaware 19805, Attn: Corporate Trust and Agency Group.
Curable Sequential Amortization Period: A Sequential Amortization
Period which is not, or has not become, an Extended Sequential Amortization
Period.
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 Closing
Date, between the Custodian and CARI, as amended or supplemented from time to
time.
Cutoff Date: August 1, 1999.
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.
Definitive Certificates: As defined in Section 3.11 of the Trust
Agreement.
Definitive Notes: The Notes issued in the form of definitive notes
pursuant to Section 2.12 or Section 2.15 of the Indenture.
Depository Agreements: Together, the Letter of Representations dated as
of the date hereof among the Trust, the Indenture Trustee and The Depository
Trust Company, and the Letter of Representations dated as of the date hereof
among the Trust, the Owner Trustee and The Depository Trust Company.
Designated Account Property: The Designated Accounts, all cash,
investments, Financial Assets, securities and investment property held from time
to time in any Designated Account (whether in the form of deposit accounts,
Physical Property, book-entry securities, Uncertificated
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Securities or otherwise), including the Reserve Account Initial Deposit, and all
proceeds of the foregoing but excluding all Investment Earnings thereon.
Designated Accounts: The Collection Account, the Note Distribution
Account, the Accumulation 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.
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 October 15, 1999.
Early Termination Date: As defined in the 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:
(i) direct obligations of, and obligations fully guaranteed as to
timely payment of principal and interest by, the United States of
America;
(ii) demand deposits, time deposits or certificates of deposit of any
depository institution or trust company incorporated under the laws of
the United States of America or any state thereof (or any domestic
branch of a foreign bank) and subject to supervision and examination by
Federal or State banking or depository institution authorities;
provided, however, that at the time of the investment or contractual
commitment to invest therein, the commercial paper or other short-term
unsecured 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;
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(iii) commercial paper having, at the time of the investment or
contractual commitment to invest therein, a rating from each of the
Rating Agencies in the highest investment category for short-term
unsecured debt obligations or certificates of deposit granted thereby;
(iv) investments in money market or common trust funds having a
rating from each of the Rating Agencies in the highest investment
category for short-term unsecured debt obligations or certificates of
deposit granted thereby (including funds for which the Indenture
Trustee or the Owner Trustee or any of their respective affiliates is
investment manager or advisor, so long as such fund shall have such
rating);
(v) bankers' acceptances issued by any depository institution or
trust company referred to in clause (ii) above;
(vi) repurchase obligations with respect to any security that is a
direct obligation of, or fully guaranteed by, the United States of
America or any agency or instrumentality thereof the obligations of
which are backed by the full faith and credit of the United States of
America, in either case entered into with (A) a depository institution
or trust company (acting as principal) described in clause (ii) or (B)
a depository institution or trust company (x) the deposits of which are
insured by FDIC or (y) the counterparty for which has a rating from
each of the Rating Agencies in the highest investment category for
short-term unsecured debt obligations, the collateral for which is held
by a custodial bank for the benefit of the Trust or the Indenture
Trustee, is marked to market daily and is maintained in an amount that
exceeds the amount of such repurchase obligation, and which requires
liquidation of the collateral immediately upon the amount of such
collateral being less than the amount of such repurchase obligation
(unless the counterparty immediately satisfies the repurchase
obligation upon being notified of such shortfall);
(vii) commercial paper master notes having, at the time of the
investment or contractual commitment to invest therein, a rating from
each of the Rating Agencies in the highest investment category for
short-term unsecured debt obligations;
(viii) (solely in the case of the Reserve Account) the Notes; and
(ix) any other investment permitted by each of the Rating Agencies,
in each case, other than as permitted by the Rating Agencies, maturing not later
than the Business Day immediately preceding the next Distribution Date or (B) on
such next Distribution Date if either (x) such investment is in the institution
with which the Note Distribution Account or the Certificate Distribution
Account, as the case may be, is then maintained or (y) the Indenture Trustee (so
long as the short-term unsecured debt obligations of the Indenture Trustee are
rated at least P-1 by Moody's Investors Service, Inc. and A-1 by Standard &
Poor's Ratings Services on the date such investment is made) shall advance funds
on such Distribution Date to the Note Distribution Account or the Certificate
Distribution Account, as the case may be, in the amount payable on such
investment on such Distribution Date pending receipt thereof to the extent
necessary to make distributions on the Notes or the Certificates, as the case
may be, on such Distribution Date. The provisions in clauses (ii), (iii), (iv),
(vi) and (vii) above requiring that certain investments be rated in the highest
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investment category granted by each Rating Agency require (a) such rating from
Fitch IBCA, Inc. only if Fitch IBCA, Inc. is then rating such investment and (b)
such rating from Duff & Phelps Credit Rating Co. only if Duff & Phelps Credit
Rating Co. is then rating such investment. For purposes of the foregoing, unless
the Indenture Trustee objects at the time an investment is made, the Indenture
Trustee shall be deemed to have agreed to make such advance with respect to such
investment.
ERISA: The Employee Retirement Income Security Act of 1974, as amended.
Event of Default: An event described in Section 5.1 of the Indenture.
Event of Default Proceeds: As defined in Section 8.01(b) of the Trust
Sale and Servicing Agreement.
Event of Default Sale: As defined in Section 8.01(b) of the Trust Sale
and Servicing Agreement.
Excess 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.
Extended Sequential Amortization Period: A Sequential Amortization
Period (i) which commenced as a result of the termination of the Interest Rate
Swap or (ii) which commenced as a result of a failure to pay the principal
amount of a class of Class A Notes in full on its Targeted Final Distribution
Date and which has continued beyond the Targeted Final Distribution Date for a
class of Class A Notes with the next highest numerical designation.
FDIC: Federal Deposit Insurance Corporation or any successor agency.
Final Scheduled Distribution Date:
(i) With respect to a class of Class A Notes, the Distribution Date in
the month and year set forth below opposite such Notes:
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Class A-1 Notes: July 2001;
Class A-2 Notes: June 2002;
Class A-3 Notes: March 2003;
Class A-4 Notes: May 2004; and
Class A-5 Notes: January 2005;
(ii) with respect to all classes of Variable Pay Term Notes, the
Distribution Date in January 2005; and
(iii) with respect to the Certificates, the Distribution Date in
January 2005.
Financed Vehicle: An automobile 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.
Further Transfer and Servicing Agreement: 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.
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 Closing Date, between the
Issuer and the Indenture Trustee, as amended and supplemented from time to time.
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Indenture Trustee: The First National Bank of Chicago, a national
banking association, 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
such opinion or certificate shall state that the signer has read the definition
of "Independent" in the Indenture and that the signer is Independent within the
meaning thereof.
Indirect Participant: A securities broker, dealer, bank, trust company
or other Person that clears through or maintains a custodial relationship with a
Clearing Agency Participant, either directly or indirectly.
Initial Aggregate Principal Balance: $2,125,030,066.84.
Initial Variable Pay Term Note: The Variable Pay Term Note, Class 1, in
the initial aggregate principal amount of $481,000,000, issued on the Closing
Date.
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:
(i) With respect to each class of Class A Notes, the rate set forth
below:
Class A-1 Notes: 5.992%
Class A-2 Notes: 6.060%
Class A-3 Notes: 6.250%
Class A-4 Notes: 6.300%
Class A-5 Notes: 6.450%
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(ii) With respect to the Initial Variable Pay Term Note, the rate
equal to LIBOR plus 0.120%.
(iii) With respect to each other class of Variable Pay Term Notes, on
any Distribution Date, the rate equal to LIBOR plus the fixed
percentage spread determined at the time of issuance based on market
conditions but such spread will not exceed 2.5% as contemplated in
Section 2.06(a) of the Trust Sale and Servicing Agreement.
Notwithstanding the above, on each Distribution Date after the termination of
the Interest Rate Swap, the Interest Rate for all classes of Variable Pay Term
Notes shall be 6.445%.
Interest Rate Swap: The interest rate swap agreement, including all
schedules and confirmations related thereto, between the Trust and the Swap
Counterparty in effect on the Closing Date, as the same may be amended,
supplemented, renewed, extended or replaced from time to time.
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, the Payment Ahead Servicing Account and Certificate
Distribution Account, net of losses and investment expenses.
Issuer: The party named as such in the Trust Sale and Servicing
Agreement and in the Indenture until a successor replaces it and, thereafter,
means the successor and, for purposes of any provision contained herein and
required by the TIA, each other obligor on the Notes.
Issuer Order and Issuer Request: A written order or request signed in
the name of the Issuer by any one of its Authorized Officers and delivered to
the Indenture Trustee.
LIBOR: 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 the Dow Jones 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 the rate does not appear on that date on the Dow
Jones 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.
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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 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; with respect to 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, Mayer,
Brown & Platt 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.
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, other than the
initial Distribution Date, the calendar month preceding the month in which such
Distribution Date occurs, and for the initial Distribution Date, the two
calendar months preceding the month in which such Distribution Date occurs.
Monthly Remittance Condition: Each of the following conditions:
(i) GMAC is the Servicer,
(ii) the rating of GMAC's short-term unsecured debt is at least A-1 by
Standard & Poor's Ratings Services and P-1 by Moody's Investors
Service, Inc., and
(iii) a Servicer Default shall not have occurred and be continuing.
New York UCC: The UCC as in effect in the State of New York.
Note Depository: The depository from time to time selected by the
Indenture Trustee on behalf of the Trust in whose name the Notes are registered
prior to the issue of Definitive Notes. The first Note Depository shall be Cede
& Co., the nominee of the initial Clearing Agency.
Note Depository Agreement: The agreement, dated as of the Closing Date,
among the Issuer, the Indenture Trustee and The Depository Trust Company, as the
initial Clearing Agency relating to
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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.
Noteholders: Holders of record of the Notes pursuant to the Indenture
and, with respect to any class of Notes, holders of record of such class of
Notes pursuant to the Indenture.
Noteholders' Interest Carryover Shortfall: As of the close of any
Distribution Date, the excess of (i) the Aggregate Noteholders' 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.
Noteholders' Interest Distributable Amount: With respect to any class
of Notes and any Distribution Date, the product of (i) the outstanding principal
balance of such class of Notes as of the close of the preceding Distribution
Date (or, in the case of the first Distribution Date, the outstanding principal
balance on the Closing Date) and (ii) in the case of (a) the Class A-2 Notes,
the Class A-3 Notes, the Class A-4 Notes and the Class A-5 Notes, one-twelfth of
the Interest Rate for such class (or, in the case of the first Distribution
Date, the Interest Rate for such class multiplied by a fraction, the numerator
of which is 36 and the denominator of which is 360) and (b) the Class A-1 Notes
and each class of the Variable Pay Term Notes, the product of the Interest Rate
for such class 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 Closing
Date), to but excluding that Distribution Date and the denominator of which is
360.
Noteholders' Percentage: With respect to any Distribution Date, the
percentage equivalent of a fraction, the numerator of which is the outstanding
principal balance of the Notes and the denominator of which is the sum of the
outstanding principal balance of the Notes and the Certificate Balance, in each
case as of the close of the preceding Distribution Date.
Noteholders' Principal Carryover Shortfall: As of the close of any
Distribution Date, the excess of (i) Aggregate Noteholders' Principal
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 principal.
Noteholders' Principal Distributable Amount: With respect to the
following:
For the Class A Notes,
(i) Except during a Sequential Amortization Period:
(A) For a class of Class A Notes on its Targeted Final
Distribution Date, the Noteholders' Principal Distributable
Amount for that class of Class A Notes is the lesser of
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(1) the outstanding principal balance of that class as of
the close of the immediately preceding Distribution Date and
(2) the Total Note Principal Payment Amount.
(B) If the Distribution Date is not a Targeted Final Distribution
Date for any class of Class A Notes, the Noteholders' Principal
Distributable Amount for a class of Class A Notes is zero.
(ii) During a Sequential Amortization Period, the Noteholders'
Principal Distributable Amount for a Distribution Date for a class of
Class A Notes is the lesser of
(A) the outstanding principal balance of that class as of the
close of the immediately preceding Distribution Date and
(B) the remainder of
(1) the Class A Percentage of the Noteholders' Percentage of
the Principal Distributable Amount minus
(2) the outstanding principal balance for each class of Class
A Notes with a lower numerical designation as of the close of
the immediately preceding Distribution Date.
For the Variable Pay Term Notes,
(i) Except during a Sequential Amortization Period:
(A) If the Distribution Date is a Targeted Final Distribution
Date for a class of Class A Notes, the Noteholders' Principal
Distributable Amount for the Variable Pay Term Notes is the
remainder of
(1) the Total Note Principal Payment Amount minus
(2) the Noteholder's Principal Distributable Amount for that
class of Class A Notes on that Distribution Date determined
as described above,
but in no event more than the outstanding principal balance of
the Variable Pay Term Notes as of the close of the immediately
preceding Distribution Date.
(B) If the Distribution Date is not a Targeted Final Distribution
Date for a class of Class A Notes, the Noteholders' Principal
Distributable Amount for the Variable Pay Term Notes is the
lesser of
(1) the outstanding principal balance of the Variable Pay
Term Notes as of the close of the immediately preceding
Distribution Date and
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(2) the Noteholders' Percentage of the Principal
Distributable Amount for that Distribution Date.
(ii) During a Sequential Amortization Period, the Noteholders'
Principal Distributable Amount for the Variable Pay Term Notes on a
Distribution Date is the lesser of
(A) the outstanding principal balance of the Variable Pay Term
Notes as of the close of the immediately preceding Distribution
Date and
(B) the Variable Pay Term Percentage of the Noteholders'
Percentage of the Principal Distributable Amount.
Notwithstanding the foregoing, on the Final Scheduled Distribution Date for any
class of Class A Notes or the Variable Pay Term Notes, the Noteholders'
Principal Distributable Amount for that class will equal the outstanding
principal balance of that class as of the close of the immediately preceding
Distribution Date.
Note Owner: With respect to a Book-Entry Note, the Person who is the
beneficial owner of such Book-Entry Note, as reflected on the books of the
Clearing Agency, or on the books of a Person maintaining an account with such
Clearing Agency (directly as a Clearing Agency Participant or as an Indirect
Participant, in each case in accordance with the rules of such Clearing Agency).
Note Pool Factor: With respect to any class of Notes and any
Distribution Date, a seven-digit decimal figure computed by the Servicer which
is equal to the Note Principal Balance for such class as of the close of such
Distribution Date divided by the initial Note Principal Balance for such class.
Note Principal Balance: With respect to any 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 A-5 Notes and all classes of the Variable Pay
Term Notes.
Obligor: The purchaser or the co-purchasers of the Financed Vehicle or
other person who owes payments under a Receivable.
Offered Certificates: Certificates issued pursuant to a Trust Agreement
with the exception of the Certificates retained by the Seller.
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Offered Notes: Together, the Class A-2 Notes, the Class A-3 Notes, the
Class A-4 Notes, and the Class A-5 Notes.
Officer's Certificate: A certificate signed by any Authorized Officer
of the Issuer, under the circumstances described in, and otherwise complying
with, the applicable requirements of Section 11.1 of the Indenture, and
delivered to the Indenture Trustee. Unless otherwise specified, any reference in
the Indenture to an officer's certificate shall be to an Officer's Certificate
of any Authorized Officer of the Issuer.
Opinion of Counsel: A written opinion of counsel, who may, except as
otherwise expressly provided, be an employee of the Seller or the Servicer. In
addition, for purposes of the Indenture: (i) such counsel shall be satisfactory
to the Indenture Trustee; (ii) the opinion shall be addressed to the Indenture
Trustee as Trustee and (iii) the opinion shall comply with any applicable
requirements of Section 11.1 of the Indenture and shall be in form and substance
satisfactory to the Indenture Trustee.
Optional Purchase Date: As defined in Section 8.01(a) of the Trust Sale
and Servicing Agreement.
Optional Purchase Percentage: 10%.
Outstanding: With respect to the Notes, as of the date of
determination, all Notes theretofore authenticated and delivered under the
Indenture except:
(i) Notes theretofore cancelled by the Indenture Trustee or delivered
to the Indenture Trustee for cancellation;
(ii) Notes or portions thereof the payment for which money in the
necessary amount has been theretofore deposited with the Indenture
Trustee or any Paying Agent in trust for the Holders of such Notes;
provided, however, that if such Notes are to be redeemed, notice of
such redemption has been duly given pursuant to the Indenture or
provision therefor, satisfactory to the Indenture Trustee, has been
made; and
(iii) Notes in exchange for or in lieu of other Notes which have been
authenticated and delivered pursuant to this Indenture unless proof
satisfactory to the Indenture Trustee is presented that any such Notes
are held by a bona fide purchaser;
provided, however, that in determining whether the Holders of the requisite
Outstanding Amount of the Notes have given any request, demand, authorization,
direction, notice, consent or waiver hereunder or under any Basic Document,
Notes both legally and beneficially owned by the Issuer, any other obligor upon
the Notes, the Seller or any Affiliate of any of the foregoing Persons shall be
disregarded and deemed not to be Outstanding, except that, in determining
whether the Indenture Trustee shall be protected in relying upon any such
request, demand, authorization, direction, notice, consent or waiver, only Notes
that the Indenture Trustee knows to be so owned shall be so disregarded. Notes
so owned that have been pledged in good faith may be regarded as Outstanding if
the pledgee establishes to the satisfaction of the Indenture Trustee the
pledgor's right so to act with
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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 as of or prior to such date minus all
payments or collections as of 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 as of or prior to such date
minus the sum of (i) all payments to the Servicer as of 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 as of or prior to
such date; provided, however, that Outstanding Simple Interest Advances shall
never be deemed to be less than zero.
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 Trust Estate: All right, title and interest of the Trust in and
to the property and rights assigned to the Trust pursuant to Article II of the
Trust Sale and Servicing Agreement, all funds on deposit from time to time in
the Collection Account and the Certificate Distribution Account and all other
property of the Trust from time to time, including any rights of the Owner
Trustee and the Trust pursuant to the Trust Sale and Servicing Agreement and the
Administration Agreement.
Owner Trustee: Bankers Trust (Delaware), a Delaware banking
corporation, or any successor trustee under the Trust Agreement, not in its
individual capacity but solely as trustee.
Pass Through Rate: 6.700%.
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
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Owner Trustee specified in Section 6.13 of the Trust Agreement, and initially
Bankers Trust Company.
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, joint stock company, trust,
unincorporated organization or government or any agency or political subdivision
thereof.
Physical Property: (i) bankers' acceptances, commercial paper,
negotiable certificates of deposit and other obligations that constitute
"instruments" within the meaning of Section 9-105(1)(i) of the New York UCC and
are susceptible of physical delivery and (ii) Security Certificates.
Pooling and Servicing Agreement: The Pooling and Servicing Agreement,
dated as of the 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:
(i) that portion of all Scheduled Payments due on or after the Cutoff
Date and on or prior to such date allocable to principal,
(ii) any Warranty Payment or Administrative Purchase Payment to the
extent allocable to principal, and
(iii) any Prepayments applied by the Servicer to reduce the Principal
Balance of such Receivable.
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With respect to any Simple Interest Receivable, as of any date, the Amount
Financed minus the sum of the following amounts:
(i) that portion of all payments received from the related Obligor on
or prior to such date allocable to principal and
(ii) any Warranty Payment or Administrative Purchase Payment to the
extent allocable to principal.
Principal Distributable Amount: With respect to any Distribution Date,
the sum of (1) the principal portion of all Scheduled Payments due with respect
to the related Monthly Period on Scheduled Interest Receivables held by the
Trust (other than Liquidating Receivables) and the principal portion of all
payments received by the Trust during the related Monthly Period on Simple
Interest Receivables held by the Trust (other than Liquidating Receivables), (2)
the principal portion of all Prepayments received during the related Monthly
Period (except to the extent included in (1) above) and (3) the Principal
Balance of each Receivable that the Servicer became obligated or elected to
purchase, the Seller became obligated to repurchase or that became a Liquidating
Receivable during the related Monthly Period (except to the extent included in
(1) or (2) above).
Private Notes: The Class A-1 Notes and any of the Variable Pay Term
Notes.
Proceeding: Any suit in equity, action at law or other judicial or
administrative proceeding.
Purchased Property: The property described in Section 2.01 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 or
the Certificates which are rating the Notes or the Certificates on such date.
Rating Agency Condition: With respect to any action, the condition that
each Rating Agency shall have been given at least 10 days prior notice thereof
and that each of the Rating Agencies shall have notified the Seller, the
Servicer and the Issuer in writing that such action shall not result in a
downgrade or withdrawal of the then current rating of the Notes or the
Certificates.
Rebate: With respect to a given date and to 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 for a Financed Vehicle
that is included in the Schedule of Receivables and all rights and obligations
thereunder.
Receivable File: The documents listed in Section 2.04 of the Pooling
and Servicing Agreement pertaining to a particular Receivable.
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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.
Redeemable Notes: The Class A-5 Notes and the Variable Pay Term Notes.
Redemption Date: As defined in Section 10.1 of the Indenture.
Redemption Price: With respect to the Redeemable Notes, the unpaid
principal amount of such Notes, plus accrued and unpaid interest thereon.
Reference Bank Rate: For any Distribution Date, the per annum rate
determined on the basis of the rates at which deposits in U.S. Dollars are
offered by the reference banks (which will be four major banks that are engaged
in transactions in the London interbank market, selected by the Indenture
Trustee after consultation with the Seller) as of 11:00 a.m., London time, on
the day that is two LIBOR Business Days prior to the immediately preceding
Distribution Date to prime banks in the London interbank market for a period of
one month, in amounts approximately equal to the principal amount of the
Variable Pay Term Notes then outstanding. The Indenture Trustee will request the
principal London office of each of the reference banks to provide a quotation of
its rate. If at least two quotations are provided, the rate will be the
arithmetic mean of the quotations, rounded upwards to the nearest one-sixteenth
of one percent. If on that date fewer than two quotations are provided as
requested, the rate will be the arithmetic mean, rounded upwards to the nearest
one-sixteenth of one percent, of the rates quoted by one or more major banks in
New York City, selected by the Indenture Trustee after consultation with the
Seller, as of 11:00 a.m., New York City time, on that date to leading European
banks for United States dollar deposits for a period of one month in amounts
approximately equal to the principal amount of any class of Variable Pay Term
Notes then outstanding. If no quotation can be obtained, then LIBOR will be the
rate for the prior Distribution Date.
Registered Holder: The Person in whose name a Note is registered on the
Note Register on the applicable Record Date.
Released Administrative Amount: With respect to a Distribution Date and
to a purchased Administrative Receivable, the Deferred Prepayment on such
Receivable.
Released Warranty Amount: With respect to a Distribution Date and to 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; if rated by Fitch
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Investors Service, Inc., F-1+ by Fitch IBCA, Inc.; and, if rated by Duff &
Phelps Credit Rating Co., D-1+ by Duff & Phelps Credit Rating Co. Any
requirement that short-term unsecured debt obligations have the "Required
Deposit Rating" shall mean that such short-term unsecured debt obligations have
the foregoing required ratings from each of such rating agencies.
Reserve Account: The account designated as such, established and
maintained pursuant to Section 4.07(a) of the Trust Sale and Servicing
Agreement.
Reserve Account Initial Deposit: Cash or Eligible Investments having a
value of at least $53,125,751.67.
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 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 Section 3.10 of the Trust Agreement, with an initial Certificate Balance of
$638,066.84.
Revolving Note: The Revolving Note issued by CARI to GMAC under the
Intercompany Advance Agreement.
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 subsection 5.04(a) of the Trust
Sale and Servicing Agreement.
Scheduled Interest Receivable: Any Receivable that is not a Simple
Interest Receivable. For purposes hereof, all payments with respect to a
Scheduled Interest Receivable shall be allocated to principal and interest in
accordance with the actuarial method.
Scheduled Payment: With respect to a Distribution Date and to a
Scheduled Interest Receivable, the payment set forth in such Receivable due from
the Obligor in the related Monthly Period.
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Schedule of Receivables: The schedule of all Receivables 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.
Secretary of State: The Secretary of State of the State of Delaware.
Securities Act: As defined in Section 2.15(a) of the Indenture.
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.
Sequential Amortization Commencement Date: (i) The Targeted Final
Distribution Date for a class of Class A Notes if the principal amount of that
class is not paid in full on that Targeted Final Distribution Date, unless that
Targeted Final Distribution Date occurs during a Sequential Amortization Period,
or (ii) the first Distribution Date following the date on which the Interest
Rate Swap is terminated.
Sequential Amortization Period: The period commencing on a Sequential
Amortization Commencement Date and, if such Sequential Amortization Commencement
Date occurred as a result of the failure to pay a class of Class A Notes in full
on its Targeted Final Distribution Date, ending on the Distribution Date on
which such class of Class A Notes is paid in full so long as such Distribution
Date occurs prior to the Targeted Final Distribution Date for the class of Class
A Notes with the next highest numerical designation; provided that a Sequential
Amortization Period shall not so terminate if the failure to so pay a class of
Class A Notes in full on its Targeted Final Distribution Date follows a failure
to pay the class of Class A Notes with the next lowest numerical designation on
its Targeted Final Distribution Date.
Servicer: The Person executing the Trust Sale and Servicing Agreement
as the Servicer, or its successor in interest pursuant to Section 6.02 of the
Trust Sale and Servicing Agreement.
Servicer Default: An event described in Section 7.01 of the Trust Sale
and Servicing Agreement. Servicer Liquidity Advance: An advance made by the
Servicer to the Trust pursuant to Section 5.05 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.
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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: With respect to any Distribution
Date, the sum of
(i) the greater of
(A) 3.5% of the outstanding principal balance of the Notes and
the Certificates as of the close of business on such
Distribution Date (after giving effect to all payments and
distributions to be made on such Distribution Date); and
(B) $15,937,725.50;
but in no event more than the outstanding principal balance of
the Notes and the Certificates as of the close of business on
such Distribution Date (after giving effect to all payments and
distributions to be made on such Distribution Date);
plus
(ii) in each case, if a deposit is to be made into the Accumulation
Account on such Distribution Date or was made on any prior Distribution
Date, an amount equal to the product of
(A) the Accumulation Amount on such Distribution Date (after
giving effect to all deposits and withdrawals from the
Accumulation Account on such Distribution Date)
multiplied by
(B) the number of Distribution Dates after such Distribution
Date through and including the next Distribution Date that is a
Targeted Final Distribution Date for any class of Class A Notes
divided by 12
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multiplied by
(C) LIBOR for such Distribution Date minus 2.5%.
State: Any one of the 50 States of the United States of America or the
District of Columbia.
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: General Re Financial Products Corporation, as swap
counterparty under the Interest Rate Swap, or any successor or replacement Swap
Counterparty from time to time under the Interest Rate Swap.
Swap Counterparty Guarantor: General Re Corporation, as swap
counterparty guarantor under the Interest Rate Swap, or any successor or
replacement Swap Counterparty Guarantor, from time to time under the Interest
Rate Swap.
Targeted Final Distribution Date: With respect to a class of Class A
Notes, the Distribution Date in the month and year set forth below opposite such
Notes:
Class A-1 Notes: March 2000;
Class A-2 Notes: September 2000;
Class A-3 Notes: March 2001;
Class A-4 Notes: September 2001; and
Class A-5 Notes: September 2002.
Temporary Notes: The Notes specified in Section 2.3 of the Indenture.
Total Available Amount: With respect to any Distribution Date, the sum
of the Available Interest and the Available Principal for such Distribution Date
and the amount of all cash or other immediately available funds on deposit in
the Reserve Account immediately prior to such Distribution Date plus
(i) on the Targeted Final Distribution Date for any class of Class A
Notes, any Variable Pay Term Notes Issuance Proceeds and the
Accumulation Amount, if any, for such Distribution Date and
(ii) on the first Distribution Date after the Notes have been declared
due and payable following the occurrence of an Event of Default and on
the first Distribution Date after the termination of the Interest Rate
Swap, the Accumulation Amount, if any, for such Distribution Date.
Total Note Principal Payment Amount: With respect to any Distribution
Date, the sum of
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(i) the Noteholders' Percentage of the Principal Distributable Amount
plus
(ii) the Variable Pay Term Notes Issuance Proceeds, if any, plus
(iii) the Accumulation Amount, if any.
Total Servicing Fee: With respect to a Distribution Date, the sum of
the Basic Servicing Fee for such Distribution Date, any unpaid Basic Servicing
Fee for all prior Distribution Dates and Additional Servicing for such
Distribution Date.
Treasury Regulations: The regulations, including proposed or temporary
regulations, promulgated under the Code. References herein to specific
provisions of proposed or temporary regulations shall include analogous
provisions of final Treasury Regulations or other successor Treasury
Regulations.
Trust: Capital Auto Receivables Asset Trust 1999-2, a Delaware business
trust created by the Trust Agreement.
Trust Agreement: The Trust Agreement, dated as of the Closing Date,
between the Seller and the Owner Trustee, as amended and supplemented from time
to time.
Trust Estate: All money, instruments, rights and other property that
are subject or intended to be subject to the lien and security interest of the
Indenture for the benefit of the Noteholders (including, without limitation, all
property and interests Granted to the Indenture Trustee), including all proceeds
thereof, and the Reserve Account and the Reserve Account Property pledged to the
Indenture Trustee pursuant to the Trust Sale and Servicing Agreement.
Trust Indenture Act or TIA: The Trust Indenture Act of 1939 as in force
on the date hereof, unless otherwise specifically provided.
Trust Sale and Servicing Agreement: The Trust Sale and Servicing
Agreement, dated as of the 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.
Uncertificated Security: Has the meaning given to such term in Section
8-102(a)(18) of the New York UCC.
Undertaking Letter: The Letter referred to in Sections 3.4 and 9.12 of
the Trust Agreement.
Undistributed Principal Amount: For any Distribution Date that is not a
Targeted Final Distribution Date for a class of Class A Notes, except as
described in the following sentence, the excess, if any, of (x) the Noteholders'
Percentage of the Principal Distributable Amount over (y) the outstanding
principal balance of the Variable Pay Term Notes as of the close of business on
the immediately preceding Distribution Date. The Undistributed Principal Amount
for (a) each
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Distribution Date that is a Targeted Final Distribution Date for a class of
Class A Notes, (b) each Distribution Date during a Sequential Amortization
Period and (c) each Distribution Date following a declaration that the Notes are
immediately due and payable following the occurrence of an Event of Default,
until all Events of Default have been cured or waived as provided in Section
5.2(b) of the Indenture, shall be zero.
Variable Pay Term Note Percentage: With respect to a Distribution Date,
100% minus the Class A Percentage for that Distribution Date.
Variable Pay Term Notes: The Floating Rate Variable Pay Asset Backed
Term Notes issued from time to time pursuant to the Indenture including the
Initial Variable Pay Term Note.
Variable Pay Term Notes Issuance Proceeds: With respect to a
Distribution Date, the proceeds to the Trust from the issuance of Variable Pay
Term Notes on that Distribution Date.
Voting Interests: As of any date, the aggregate Certificate Balance of
all Certificates outstanding; provided, however, that Certificates owned by the
Issuer, the Seller or any Affiliate of any of the foregoing Persons (each, an
"insider") shall be disregarded and deemed not to be outstanding (unless all
Certificates are owned by insiders), except that, in determining whether the
Owner Trustee shall be protected in relying upon any such request, demand,
authorization, direction, notice, consent or waiver, only Certificates that the
Owner Trustee knows to be so owned shall be so disregarded. Certificates so
owned that have been pledged in good faith may be regarded as outstanding if the
pledgee establishes to the satisfaction of the Owner Trustee the pledgor's right
so to act with respect to such Certificates and that the pledgee is not the
Issuer, the Seller or any Affiliate of any of the foregoing Persons (unless all
Certificates are owned by insiders).
Warranty Payment: With respect to a Distribution Date and to a Warranty
Receivable repurchased as of the last day of a Monthly Period,
(i) 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
Receivable minus the Rebate,
(B) all past due Scheduled Payments with respect to which a
Scheduled Interest Advance has not been made,
(C) any reimbursement made 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 with respect to
such Receivable, minus any Liquidation Proceeds (to the extent
applied to reduce the Principal Balance of such Receivable)
previously received with respect to such Receivable, or
(ii) 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
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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 Receivable) previously received with respect to such
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.
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PART II - RULES OF CONSTRUCTION
(a) Accounting Terms. As used in this Appendix or the Basic Documents,
accounting terms which are not defined, and accounting terms partly
defined, herein or therein shall have the respective meanings given to
them under generally accepted accounting principles. To the extent that
the definitions of accounting terms in this Appendix or the Basic
Documents are inconsistent with the meanings of such terms under
generally accepted accounting principles, the definitions contained in
this Appendix or the Basic Documents will control.
(b) "Hereof," etc. The words "hereof," "herein" and "hereunder" and words
of similar import when used in this Appendix or any Basic Document will
refer to this Appendix or such Basic Document as a whole and not to any
particular provision of this Appendix or such Basic Document; and
Section, Schedule and Exhibit references contained in this Appendix or
any Basic Document are references to Sections, Schedules and Exhibits
in or to this Appendix or such Basic Document unless otherwise
specified. The word "or" is not exclusive.
(c) Reference to Distribution Dates. With respect to any Distribution Date,
the "related Monthly Period," and the "related Record Date," will mean
the Monthly Period and Record Date, respectively, immediately preceding
such Distribution Date, and the relationships among Monthly Periods and
Record Dates will be correlative to the foregoing relationships.
(d) Number and Gender. Each defined term used in this Appendix or the Basic
Documents has a comparable meaning when used in its plural or singular
form. Each gender-specific term used in this Appendix or the Basic
Documents has a comparable meaning whether used in a masculine,
feminine or gender-neutral form.
(e) Including. Whenever the term "including" (whether or not that term is
followed by the phrase "but not limited to" or "without limitation" or
words of similar effect) is used in this Appendix or the Basic
Documents in connection with a listing of items within a particular
classification, that listing will be interpreted to be illustrative
only and will not be interpreted as a limitation on, or exclusive
listing of, the items within that classification.
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APPENDIX B
NOTICE ADDRESSES AND PROCEDURES
All requests, demands, directions, consents, waivers, notices,
authorizations and communications provided or permitted under any Basic Document
to be made upon, given or furnished to or filed with the Seller, the Servicer,
the Administrator, the Indenture Trustee, the Issuer, the Owner Trustee, 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, Delaware 19801
with a copy to:
C.A. Ondrick, Manager - Securitization,
3031 West Grand Boulevard,
Detroit, Michigan 48202,
(b) in the case of the Servicer, the Administrator or the Custodian,
at the following address:
D.C. Walker, Director - U.S. Funding & Securitization,
General Motors Acceptance Corporation,
3031 West Grand Boulevard,
Detroit, Michigan 48202,
(c) in the case of the Indenture Trustee, at its Corporate Trust
Office,
(d) in the case of the Issuer or the Owner Trustee, to the Owner
Trustee at its Corporate Trust Office, with a copy to
Bankers Trust Company,
Four Albany Street, 10th Floor
New York, New York 10006,
Attention: Corporate Trust and Agency Group,
and with a copy to:
Capital Auto Receivables, Inc.,
Attention: D. C. Walker, Vice President
3031 West Grand Boulevard,
Detroit, Michigan 48202,
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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, New York 10007,
(f) in the case of Standard & Poor's Ratings Services, to
Standard & Poor's Ratings Services,
55 Water Street
40th Floor
New York, New York 10041
Attention: Asset Backed Surveillance Department,
(g) in the case of Fitch IBCA, Inc., to
Fitch IBCA, Inc.,
One State Street Plaza,
New York, New York 10004,
Attention: Asset-Backed Surveillance, and
(h) in the case of Duff & Phelps Credit Rating Co., to
Duff & Phelps Credit Rating Co.,
55 E. Monroe Street,
Chicago, Illinois 60603,
Attention: Structured Finance Research & Monitoring,
(i) in the case of General Re Financial Products Corporation, to
General Re Financial Products Corporation,
Rockefeller Center
630 Fifth Avenue, Suite 450,
New York, New York 10111
Attention: Head of Operations
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
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provided) if it is in writing and mailed, first-class, postage prepaid to each
Noteholder or Certificateholder affected by such condition or event, at such
Person's address as it appears on the Note Register or Certificate Register, as
applicable, not later than the latest date, and not earlier than the earliest
date, prescribed in such Basic Document for the giving of such notice. If notice
to Noteholders or Certificateholders is given by mail, neither the failure to
mail such notice nor any defect in any notice so mailed to any particular
Noteholders or Certificateholders shall affect the sufficiency of such notice
with respect to other Noteholders or Certificateholders, and any notice that is
mailed in the manner herein provided shall conclusively be presumed to have been
duly given regardless of whether such notice is in fact actually received.
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