Exhibit 99.1
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TRUST SALE AND SERVICING AGREEMENT
AMONG
GENERAL MOTORS ACCEPTANCE CORPORATION
SERVICER
CAPITAL AUTO RECEIVABLES, INC.
SELLER
AND
CAPITAL AUTO RECEIVABLES ASSET TRUST 2002-3
ISSUER
DATED AS OF AUGUST 8, 2002
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TABLE OF CONTENTS
Page
ARTICLE I CERTAIN DEFINITIONS .................................................................. 1
Section 1.01 Definitions ................................................................... 1
ARTICLE II CONVEYANCE OF RECEIVABLES; ISSUANCE OF SECURITIES ................................... 1
Section 2.01 Conveyance of Receivables ..................................................... 1
Section 2.02 Custody of Receivable Files ................................................... 3
Section 2.03 Acceptance by Issuer .......................................................... 3
Section 2.04 Representations and Warranties as to the Receivables .......................... 4
Section 2.05 Repurchase of Receivables Upon Breach of Warranty ............................. 4
Section 2.06 Conditions to Sales of Additional Receivables ................................. 5
ARTICLE III THE SELLER ......................................................................... 6
Section 3.01 Representations of Seller ..................................................... 6
Section 3.02 Liability of Seller ........................................................... 8
Section 3.03 Merger or Consolidation of, or Assumption of the Obligations of Seller;
Amendment of Certificate of Incorporation ..................................... 8
Section 3.04 Limitation on Liability of Seller and Others .................................. 9
Section 3.05 Seller May Own Notes or Certificates .......................................... 9
ARTICLE IV SERVICER'S COVENANTS; DISTRIBUTIONS; RESERVE ACCOUNT; STATEMENTS TO
NOTEHOLDERS AND CERTIFICATEHOLDERS .................................................. 9
Section 4.01 Annual Statement as to Compliance; Notice of Servicer Default ................. 9
Section 4.02 Annual Independent Accountants' Report ........................................ 10
Section 4.03 Access to Certain Documentation and Information Regarding the Receivables ..... 10
Section 4.04 Amendments to Schedule of Receivables ......................................... 11
Section 4.05 Assignment of Administrative Receivables and Warranty Receivables ............. 11
Section 4.06 Distributions ................................................................. 11
Section 4.07 Reserve Account ............................................................... 14
Section 4.08 Net Deposits .................................................................. 15
Section 4.09 Statements to Securityholders ................................................. 16
ARTICLE V CERTIFICATEHOLDER AND NOTEHOLDER STATEMENTS AND ACCOUNTS; COLLECTIONS,
DEPOSITS AND INVESTMENTS; ADVANCES ................................................... 17
Section 5.01 Establishment of Accounts ..................................................... 17
Section 5.02 Collections ................................................................... 21
Section 5.03 Investment Earnings and Supplemental Servicing Fees ........................... 22
Section 5.04 Monthly Advances .............................................................. 22
Section 5.05 Additional Deposits ........................................................... 23
ARTICLE VI LIABILITIES OF SERVICER AND OTHERS .................................................. 23
Section 6.01 Liability of Servicer; Indemnities ............................................ 23
Section 6.02 Merger or Consolidation of, or Assumption of the Obligations of the Servicer .. 24
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 ........................................................ 26
ARTICLE VII DEFAULT ............................................................................ 26
Section 7.01 Servicer Defaults 26
Section 7.02 Consequences of a Servicer Default 27
Section 7.03 Indenture Trustee to Act; Appointment of Successor 27
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Section 7.04 Notification to Noteholders and Certificateholders ............................. 28
Section 7.05 Waiver of Past Defaults ....................................................... 28
Section 7.06 Repayment of Advances .......................................................... 28
ARTICLE VIII TERMINATION ....................................................................... 29
Section 8.01 Optional Purchase of All Receivables; Insolvency of Seller; Termination
of Trust ....................................................................... 29
ARTICLE IX MISCELLANEOUS PROVISIONS ............................................................ 31
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
EXHIBIT A Locations of Schedule of Receivables
EXHIBIT B Form of Second Step Initial Receivables Assignment
EXHIBIT C Form of Second Step Additional Receivables Assignment
EXHIBIT D Form of Officer's Certificate
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 August 8, 2002 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 2002-3, a Delaware business
trust (the "Issuer").
WHEREAS, on the Initial Closing Date GMAC has sold the Initial Receivables,
and from time to time thereafter on each Additional Closing Date will sell
Additional Receivables, to the Seller;
WHEREAS, GMAC, as Servicer, has agreed to service the Receivables pursuant
to the Pooling and Servicing Agreement;
WHEREAS, the Seller desires to sell to the Issuer the Initial Receivables
on the Initial Closing Date and the Additional Receivables on each Additional
Closing Date during the Revolving Period in exchange for the Notes and
Certificates pursuant to the terms of this Agreement;
WHEREAS, the Servicer desires to perform the servicing obligations set
forth herein for and in consideration of the fees and other benefits set forth
in this Agreement and in the Pooling and Servicing Agreement; and
WHEREAS, Seller and the Issuer wish to set forth the terms pursuant to
which the Receivables are to be sold by the Seller to the Issuer and serviced by
the Servicer.
NOW, THEREFORE, in consideration of the foregoing, the other good and
valuable consideration and the mutual terms and covenants contained herein, the
parties hereto agree as follows:
ARTICLE I
CERTAIN DEFINITIONS
Section 1.01 Definitions. Certain capitalized terms used in the above
recitals and in this Agreement are defined in and shall have the respective
meanings assigned to them in Part I of Appendix A to this Agreement. All
references herein to "the Agreement" or "this Agreement" are to this Trust Sale
and Servicing Agreement as it may be amended, supplemented or modified from time
to time, the exhibits hereto and the capitalized terms used herein which are
defined in such Appendix A, and all references herein to Articles, Sections and
subsections are to Articles, Sections or subsections of this Agreement unless
otherwise specified. The rules of construction set forth in Part II of such
Appendix A shall be applicable to this Agreement.
ARTICLE II
CONVEYANCE OF RECEIVABLES; ISSUANCE OF SECURITIES
Section 2.01 Conveyance of Receivables.
(a) Initial Receivables. In consideration of the Issuer's
delivery of the Notes and the Certificates to, or upon the order of, the Seller,
the Seller does hereby enter into this
Agreement and the related Second Step Initial Receivables Assignment in the form
attached as Exhibit B to this Agreement (the "Second Step Initial Receivables
Assignment") and agrees to fulfill all of its obligations hereunder and
thereunder and to sell, transfer, assign and otherwise convey to the Issuer,
without recourse:
(i) all right, title and interest of the Seller in, to and
under the Initial Receivables listed on the Schedule of Initial Receivables and
(a) in the case of Initial Receivables that are Scheduled Interest Receivables,
all monies due thereunder on and after the Initial Cutoff Date and (b) in the
case of Initial Receivables that are Simple Interest Receivables, all monies
received thereon on and after the Initial Cutoff Date, in each case exclusive of
any amounts allocable to the premium for physical damage insurance force-placed
by the Servicer covering any related Financed Vehicle;
(ii) the interest of the Seller in the security interests in the
Financed Vehicles granted by Obligors pursuant to the Initial Receivables and,
to the extent permitted by law, any accessions thereto;
(iii) except for those Initial 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;
(iv) the interest of the Seller in any proceeds from recourse
against Dealers on the Initial Receivables;
(v) all right, title and interest of the Seller in, to and
under the Pooling and Servicing Agreement and the Custodian Agreement, including
the right of the Seller to cause GMAC to repurchase Receivables under certain
circumstances;
(vi) the right to purchase Additional Receivables during the
Revolving Period at a price equal to the Additional Receivables Discounted
Principal Balance; and
(vii) the interest of the Seller in any proceeds of the property
described in clauses (i) and (ii) above.
(b) Additional Receivables. Subject to the satisfaction of the
conditions set forth in Section 2.06, in consideration of the Issuer's delivery
on or prior to any Additional Closing Date to the Seller of an amount equal to
the Additional Receivables Discounted Principal Balance, on each Additional
Closing Date the Seller shall, pursuant to this Agreement and the related Second
Step Additional Receivables Assignment in the form attached as Exhibit C to this
Agreement (the "Second Step Additional Receivables Assignment" and together with
the Second Step Initial Receivables Assignment, the "Second Step Receivables
Assignments"), sell, transfer, assign and otherwise convey to the Issuer,
without recourse:
(i) all right, title and interest of the Seller in, to and under
the Additional Receivables listed on the Schedule of Additional Receivables and
(a) in the case of Additional Receivables that are Scheduled Interest
Receivables, all monies due thereunder on and after the related Additional
Cutoff Date and (b) in the case of Additional Receivables that are Simple
Interest Receivables, all monies received thereon on and after the related
Additional
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Cutoff Date, in each case exclusive of any amounts allocable to the premium for
physical damage insurance force-placed by the Servicer covering any related
Financed Vehicle;
(ii) the interest of the Seller in the security interests in
the Financed Vehicles granted by Obligors pursuant to the Additional Receivables
and, to the extent permitted by law, any accessions thereto;
(iii) except for those Additional 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;
(iv) the interest of the Seller in any proceeds from recourse
against Dealers on Additional Receivables;
(v) all right, title and interest of the Seller in, to and
under the related First Step Additional Receivables Assignment;
(vi) the interest of the Seller in any proceeds of the
property described in clauses (i), (ii) and (iii) above.
(c) It is the intention of the Seller and the Issuer that the
transfers and assignments contemplated by this Agreement and the related Second
Step Receivables Assignments shall constitute sales of the Receivables from the
Seller to the Issuer 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.
(d) The foregoing sales do not constitute and are not intended to
result in any assumption by the Issuer of any obligation of the Seller to the
Obligors, Dealers, insurers or any other Person in connection with the
Receivables, any Dealer Agreements, any insurance policies or any agreement or
instrument relating to any of them.
(e) Within two Business Days after the Initial Closing Date, with
respect to the Initial Receivables, and within two Business Days after the
related Additional Closing Date, with respect to the Additional Receivables,
GMAC shall cause to be deposited into the Collection Account the collections on
the Receivables described in Section 5.07 of the Pooling and Servicing
Agreement; provided, that so long as the Monthly Remittance Conditions are
satisfied, such collections need not be deposited until the Distribution Date
immediately following the Initial Closing Date or Additional Closing Date, as
applicable.
Section 2.02 Custody of Receivable Files. In connection with the sale,
transfer and assignment of the Receivables to the Issuer pursuant to this
Agreement and the related Second Step Receivables Assignments, GMAC, as
Custodian under the Custodian Agreement, agrees to act as Custodian thereunder
for the benefit of the Issuer. The Issuer hereby accepts and agrees to the terms
and provisions of the Custodian Agreement and designates GMAC as custodian with
respect to the Receivables Files.
Section 2.03 Acceptance by Issuer. The Issuer does hereby accept all
consideration conveyed by the Seller pursuant to Section 2.01(a) and to be
conveyed pursuant to Section
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2.01(b), and declares that the Issuer shall hold such consideration upon the
trust set forth in the Trust Agreement for the benefit of Certificateholders,
subject to the terms and conditions of the Indenture and this Agreement and the
related Second Step Receivables Assignments. The Issuer hereby agrees to and
accepts the appointment and authorization of GMAC as Servicer under Section 3.01
of the Pooling and Servicing Agreement. The parties agree that this Agreement,
the Indenture and the Trust Agreement constitute the Second Step 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 Initial Closing Date, with
respect to the Initial Receivables, and as of the related Additional Closing
Date, with respect to the Additional Receivables. 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 Initial Closing Date, with respect to the Initial Receivables, and as of
the related Additional Closing Date, with respect to the Additional Receivables,
but shall survive the sale, transfer and assignment of the Receivables to the
Issuer and the pledge thereof to the Indenture Trustee pursuant to the
Indenture.
Section 2.05 Repurchase of Receivables Upon Breach of Warranty. Upon
discovery by the Seller, the Servicer, the Owner Trustee or the Indenture
Trustee of a breach of any of the representations and warranties in Section 4.01
of the Pooling and Servicing Agreement or in Section 2.04 or Section 3.01 of
this Agreement that materially and adversely affects the interests of the
Noteholders or the Certificateholders in any Receivable, the party discovering
such breach shall give prompt written notice thereof to the others. As of the
last day of the second Monthly Period following its discovery or its receipt of
notice of breach (or, at the Seller's election, the last day of the first
Monthly Period following such discovery), unless such breach shall have been
cured in all material respects, in the event of a breach of the representations
and warranties made by the Seller in Section 2.04 or Section 3.01, the Seller
shall repurchase, or in the event of a breach of a representation and warranty
under Section 4.01 of the Pooling and Servicing Agreement, the Seller and the
Servicer shall use reasonable efforts to enforce the obligation of GMAC under
Section 5.04 of the Pooling and Servicing Agreement to repurchase, such
Receivable from the Issuer on the related Distribution Date. The repurchase
price to be paid by the breaching party (the "Warranty Purchaser") shall be an
amount equal to the Warranty Payment. 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
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fulfilled, constitute the sole remedy against the Seller, the Servicer or GMAC
for such breach available to the Issuer, the Financial Parties, the Owner
Trustee or the Indenture Trustee. The Servicer also acknowledges its obligations
to repurchase Administrative Receivables from the Issuer pursuant to Section
3.08 of the Pooling and Servicing Agreement.
Section 2.06 Conditions to Sales of Additional Receivables. The Seller
shall sell, transfer, assign and otherwise convey to the Trust on each
Additional Closing Date the Additional Receivables and the other property and
rights related thereto described in Section 2.01(b) only upon the satisfaction
of each of the following conditions on or prior to such Additional Closing Date:
(a) the Seller shall have delivered to each of the Owner Trustee
and the Indenture Trustee a duly executed Second Step Additional Receivables
Assignment, which shall include the Schedule of Additional Receivables;
(b) as of such Additional Closing Date: (i) the Seller shall not
be insolvent and shall not become insolvent as a result of the transfer of
Additional Receivables on such Additional Closing Date, (ii) the Seller shall
not intend to incur or believe that it would incur debts that would be beyond
the Seller's ability to pay as such debts matured, (iii) such transfer shall not
be made by the Seller with actual intent to hinder, delay or defraud any Person
and (iv) the assets of the Seller shall not constitute unreasonably small
capital to carry out its business as conducted;
(c) each Additional Receivable (i) is secured by a Financed
Vehicle, was originated in the United States by a Dealer for the retail sale of
a Financed Vehicle in the ordinary course of such Dealer's business, was fully
and properly executed by the parties thereto, was purchased by GMAC from such
Dealer under an existing Dealer Agreement, and was validly assigned by such
Dealer to GMAC in accordance with its terms, (ii) will have created a valid,
binding and enforceable first priority security interest in favor of GMAC in the
Financed Vehicle, which security interest is assignable by GMAC to XXXX, (iii)
contains customary and enforceable provisions such as to render the rights and
remedies of the holder thereof adequate for realization against the collateral
of the benefits of the security, (iv) is a Scheduled Interest Receivable or a
Simple Interest Receivable, (v) provides for level monthly payments (provided
that the payment in the first month and the final month of the life of the
Additional Receivable may be different from the level payment) that shall
amortize the Amount Financed by maturity and shall yield interest at the Annual
Percentage Rate, (vi) has an original term of not less than six and not greater
than 60 months and a remaining term of not less than six months, (vii) has been
acquired by GMAC under one of its special incentive rate financing programs
designed to encourage purchases of new vehicles manufactured by General Motors
Corporation, (viii) has a final scheduled payment due no later than 6 months
prior to the Final Scheduled Distribution Date of the Certificates and (ix) as
of the related Additional Cutoff Date, was not considered past due, that is, the
payments due on that Initial Receivable in excess of $25.00 have been received
within 30 days of the scheduled payment date, nor charged-off by GMAC;
(d) no Early Amortization Event shall have occurred;
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(e) each of the representations and warranties made by the Seller
pursuant to Section 3.01 of this Agreement and by GMAC pursuant to Sections 4.01
and 4.02 of the Pooling and Servicing Agreement, with respect to the Seller,
GMAC and the Additional Receivables, as applicable, shall be true and correct as
of the date as of which such representations and warranties are made;
(f) the Seller shall, at its own expense, on or prior to the
Additional Closing Date, indicate in its computer files that the Additional
Receivables have been sold to the Issuer pursuant to this Agreement and the
related Second Step Additional Receivables Assignment and deliver to the Owner
Trustee the related Schedule of Additional Receivables certified by an officer
of the Seller to be true, correct and complete;
(g) the Seller shall have taken any action required to maintain
the first perfected ownership interest of the Issuer in the Trust Property and
the first priority perfected security interest of the Indenture Trustee in the
Collateral;
(h) no selection procedures believed by the Seller to be adverse
to the interests of the Issuer, the Noteholders or the Certificateholders shall
have been utilized in selecting the Additional Receivables;
(i) the addition of the Additional Receivables will not result in
any material adverse tax consequences to the Issuer, the Noteholders or the
Certificateholders;
(j) the Seller shall have delivered to the Owner Trustee and the
Indenture Trustee an Officer's Certificate confirming the satisfaction of each
condition specified in this Section 2.06 substantially in the form attached
hereto as Exhibit D; and
(k) all the conditions to the transfer of the Additional
Receivables by GMAC to the Seller specified in Section 6.01 of the Pooling and
Servicing Agreement shall be satisfied.
ARTICLE III
THE SELLER
Section 3.01 Representations of Seller. The Seller makes the following
representations on which the Issuer is relying in acquiring the Receivables and
issuing the Notes and the Certificates. The following representations speak as
of the Initial Closing Date, with respect to the Initial Receivables, and as of
the related Additional Closing Date, with respect to the Additional Receivables,
but in either case, such representations shall survive the sale, transfer and
assignment of the Receivables to the Issuer.
(a) Representations and Warranties as to the Seller.
(i) Organization and Good Standing. The Seller has been duly
organized and is validly existing as a corporation in good standing under the
laws of the State of Delaware, with power and authority to own its properties
and to conduct its business as such
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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 the Second Step Receivables Assignments
and to carry out their terms, the Seller has full power and authority to sell
and assign the property to be sold and assigned to and deposited with the Issuer
as part of the Trust and has duly authorized such sale and assignment to the
Issuer by all necessary corporate action; and the execution, delivery and
performance of this Agreement and the Second Step Receivables Assignments have
been duly authorized by the Seller by all necessary corporate action;
(iv) Valid Sale; Binding Obligations. This Agreement and the Second
Step Receivables Assignments, when duly executed and delivered, shall constitute
a valid sale, transfer and assignment of the Receivables, enforceable against
creditors of and purchasers from the Seller; and this Agreement and the Second
Step Receivables Assignments, 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 and the Second Step Receivables Assignments by
the Seller and the fulfillment of the terms of this Agreement and the Second
Step Receivables Assignments 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 and the
Second Step Receivables Assignments, or violate any law or, to the best of the
Seller's knowledge, any order, rule or regulation applicable to the Seller of
any court or of any federal or state regulatory body, administrative agency or
other governmental instrumentality having jurisdiction over the Seller or any of
its properties; and
(vi) No Proceedings. To the Seller's knowledge, there are no
proceedings or investigations pending, or threatened, before any court,
regulatory body, administrative agency or other tribunal or governmental
instrumentality having jurisdiction over the Seller or its properties (i)
asserting the invalidity of this Agreement, the Second Step Receivables
Assignments, the Notes, the Certificates, the Indenture, the Trust Agreement,
the Custodian Agreement, the Administration Agreement or any Interest Rate
Swaps, (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
Second Step Receivables Assignments, the
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Pooling and Servicing Agreement, the Indenture, the Trust Agreement, the
Custodian Agreement, the Administration Agreement or any Interest Rate Swaps,
(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 Second Step Receivables Assignments,
the Pooling and Servicing Agreement, the Notes, the Certificates, the Indenture,
the Trust Agreement, the Custodian Agreement, the Administration Agreement or
any Interest Rate Swaps, or (iv) seeking to adversely affect the federal income
tax attributes of the Notes or the Certificates.
(b) Representations and Warranties as to the Receivables.
(i) Good Title. No Receivable has been sold, transferred,
assigned or pledged by the Seller to any Person other than the Issuer;
immediately prior to the conveyance of the Receivables pursuant to this
Agreement and the Second Step Receivables Assignments, the Seller had good and
marketable title thereto, free of any Lien; and, upon execution and delivery of
this Agreement and the Second Step Receivables Assignments by the Seller, the
Issuer shall have all of the right, title and interest of the Seller in, to and
under the Receivables, the unpaid indebtedness evidenced thereby and the
collateral security therefor, free of any Lien.
(ii) All Filings Made. All filings (including, without
limitation, UCC filings) necessary in any jurisdiction to give the Issuer a
first priority perfected ownership interest in the Receivables shall have been
made.
Section 3.02 Liability of Seller. The Seller shall be liable in accordance
with this Agreement and the Second Step Receivables Assignments only to the
extent of the obligations in this Agreement and the Second Step Receivables
Assignments specifically undertaken by the Seller.
Section 3.03 Merger or Consolidation of, or Assumption of the Obligations
of Seller; Amendment of Certificate of Incorporation.
(a) Any corporation or other entity (i) into which the Seller may be
merged or consolidated, (ii) resulting from any merger or consolidation to which
the Seller shall be a party, (iii) succeeding to the business of the Seller, or
(iv) more than 50% of the voting stock (or, if not a corporation, other voting
interests) of which is owned directly or indirectly by General Motors, which
corporation in any of the foregoing cases executes an agreement of assumption to
perform every obligation of the Seller under this Agreement, shall be the
successor to the Seller under this Agreement without the execution or filing of
any document or any further act on the part of any of the parties to this
Agreement. The Seller shall provide 10 days prior notice of any merger,
consolidation or succession pursuant to this Section 3.03 to the Rating
Agencies.
(b) The Seller hereby agrees that during the term of this Agreement
it shall not (i) take any action prohibited by Article Fourth of its certificate
of incorporation, (ii) without the prior written consent of the Indenture
Trustee and the Owner Trustee and without giving prior written notice to the
Rating Agencies, amend Article Third or Fourth of its certificate of
incorporation or (iii) incur any indebtedness, or assume or guaranty
indebtedness of any other entity, other than pursuant to the Revolving Note and
the Intercompany Advance Agreement
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(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 and the
Owner Trustee, on or before August 15 of each year, beginning August 15, 2003,
an officer's certificate signed by the President or any Vice President of the
Servicer, dated as of June 30 of such year, stating that (i) a review of the
activities of the Servicer during the preceding 12-month period (or, with
respect to the first such certificate, such period as shall have elapsed from
the Closing Date to the date of such certificate) and of its performance under
this Agreement and under the Pooling and Servicing Agreement has been made under
such officer's supervision, and (ii) to such officer's knowledge, based on such
review, the Servicer has fulfilled all its obligations under such agreements
throughout such period, or, if there has been a default in the fulfillment of
any such obligation, specifying each such default known to such officer and the
nature and status thereof. A copy of such certificate may be obtained by any
Noteholder 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.
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(b) The Servicer shall deliver to the Indenture Trustee, the
Owner Trustee and to the Rating Agencies, promptly after having obtained
knowledge thereof, but in no event later than five Business Days thereafter,
written notice in an officer's certificate of any event which with the giving of
notice or lapse of time, or both, would become a Servicer Default under Section
7.01. The Seller shall deliver to the Indenture Trustee, the Owner Trustee, the
Servicer and the Rating Agencies, promptly after having obtained knowledge
thereof, but in no event later than five Business Days thereafter, written
notice in an officer's certificate of any event which with the giving of notice
or lapse of time, or both, would become a Servicer Default under clause (b) of
Section 7.01.
Section 4.02 Annual Independent Accountants' Report.
(a) The Servicer shall cause a firm of independent accountants,
who may also render other services to the Servicer or the Seller, to deliver to
the Issuer, and the Rating Agencies, on or before August 15 of each year,
beginning August 15, 2003 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.
(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 the
Receivables. The Servicer shall provide to the Indenture Trustee and the Owner
Trustee reasonable access to the documentation regarding the Receivables. The
Servicer shall provide such access to any Noteholder or Certificateholder only
in such cases where a Noteholder or a Certificateholder is required by
applicable statutes or regulations to review such documentation.
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In each case, such access shall be afforded without charge but only upon
reasonable request and during normal business hours at offices of the Servicer
designated by the Servicer. Nothing in this Section 4.03 shall derogate from the
obligation of the Servicer to observe any applicable law prohibiting disclosure
of information regarding Obligors, and the failure of the Servicer to provide
access as provided in this Section 4.03 as a result of such obligation shall not
constitute a breach of this Section 4.03.
Section 4.04 Amendments to Schedule of Receivables. If the Servicer,
during a Monthly Period, assigns to a Receivable an account number that differs
from the account number previously identifying such Receivable on the Schedule
of Initial Receivables or any Schedule of Additional Receivables, the Servicer
shall deliver to the Seller, the Indenture Trustee and the Owner Trustee on or
before the Distribution Date related to such Monthly Period an amendment to the
Schedule of Initial Receivables or Schedule of Additional Receivables, as
applicable, to report the newly assigned account number. Each such amendment
shall list all new account numbers assigned to the Receivables during such
Monthly Period and shall show by cross reference the prior account numbers
identifying such Receivables on the Schedule of Initial Receivables or Schedule
of Additional Receivables, as applicable.
Section 4.05 Assignment of Administrative Receivables and Warranty
Receivables. Upon receipt of the Administrative Purchase Payment or the Warranty
Payment with respect to 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, including bringing suit in the name of such Person or the names
of the Noteholders or the Certificateholders.
Section 4.06 Distributions.
(a) On or before each Determination Date, the Servicer shall
calculate the Total Available Amount, the Available Interest, the Available
Principal, if any, the Total Servicing Fee, the Aggregate Noteholders' Interest
Distributable Amount, the Principal Distributable Amount, the Aggregate
Noteholders' Principal Distributable Amount (during the Amortization Period
only), the Certificateholders' Interest Distributable Amount, the
Certificateholders' Principal Distributable Amount, the Specified Reserve
Account Balance, the net amount, if any, payable by the Trust under any Interest
Rate Swaps and all other amounts
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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 Payment Ahead Servicing Account,
if applicable, and during the Revolving Period, the Accumulation Account, on or
before the related Distribution Date (or, in the case of payments due under any
Interest Rate Swaps, if any, on the Business Day preceding the Distribution
Date).
(b) On or before each Determination Date during the Revolving Period,
the Servicer shall calculate the Reinvestment Amount, the Accumulation Amount,
the Additional Receivables Discounted Principal Balance and the amount on
deposit in the Accumulation Account (less the amount of the Additional
Receivables Discounted Principal Balance for such Distribution Date) as a
percentage of the Initial Aggregate Discounted Principal Balance of the
Receivables.
(c) (i) On or before each Distribution Date, the Indenture Trustee
shall cause collections made during the related Monthly Period which constitute
Payments Ahead to be transferred from the Collection Account to the Servicer, or
to the Payment Ahead Servicing Account, if required pursuant to Section 5.01(e).
(ii) On or before each Distribution Date (or, with respect to
funds necessary to make payments due, if any, under any Interest Rate Swaps for
the related Monthly Period, on the Business Day preceding the Distribution
Date), the Indenture Trustee shall transfer from the Payment Ahead Servicing
Account (or, if the Servicer is not required to make deposits to the Payment
Ahead Servicing Account on a daily basis pursuant to Section 5.01(e), the
Servicer shall deposit) to the Collection Account the aggregate Applied Payments
Ahead and, as applicable, Applied Payments Ahead necessary to make payments
under any Interest Rate Swaps pursuant to Section 4.06(d)(ii).
(iii) On or before each Distribution Date, the Indenture Trustee
shall transfer from the Collection Account to the Servicer, in immediately
available funds, reimbursement of Outstanding Monthly Advances pursuant to
Section 5.04, payment of Excess Simple Interest Collections, if any, pursuant to
Section 3.11(b) of the Pooling and Servicing Agreement, and payments of
Liquidation Expenses (and any unpaid Liquidation Expenses from prior periods)
with respect to Receivables which became Liquidating Receivables during the
related Monthly Period pursuant to Section 3.04 of the Pooling and Servicing
Agreement.
(iv) On or before each Distribution Date (or, with respect to
funds necessary to make payments due, if any, under any Interest Rate Swaps for
the related payment period thereunder, on the Business Day preceding the
Distribution Date), the Indenture Trustee shall withdraw from the Reserve
Account and deposit in the Collection Account the lesser of (A) the amount of
cash or other immediately available funds on deposit 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 any Interest Rate Swaps, the
Additional Receivables Discounted Principal Balance and the Certificateholders'
Principal Distributable Amount for such Distribution Date exceeds (y) the
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sum of the Available Interest, the Accumulation Amount and Available Principal
for such Distribution Date.
(v) On or before each Distribution Date during the Revolving
Period and on the first Distribution Date during the Amortization Period, the
Indenture Trustee shall transfer all amounts in the Accumulation Account to the
Collection Account.
(vi) [Intentionally Omitted].
(vii) [Intentionally Omitted].
(d) Except as otherwise provided in Section 4.06(e), on each
Distribution Date (or in the case of payments to the Swap Counterparty pursuant
to clause (ii) below, if any, on the Business Day preceding the Distribution
Date) the Indenture Trustee (based on the information contained in the
Servicer's Accounting delivered on the related Determination Date pursuant to
Section 3.10 of the Pooling and Servicing Agreement) shall make the following
distributions from the Collection Account (after the withdrawals, deposits and
transfers specified in Section 4.06(c) have been made) in the following order of
priority:
(i) first, to the Servicer, to the extent of the Total
Available Amount, the 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 all Interest
Rate Swaps (exclusive of payments due in respect of an Early Termination Date of
any Interest Rate Swaps);
(iii) third, to the extent of the Total Available Amount (as such
amount has been reduced by the distributions described in clauses (i) and (ii)
above) (a) to the Note Distribution Account 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 an Early
Termination Date of any Interest Rate Swaps, allocated between the Note
Distribution Account and the Swap Counterparty in proportion to the amounts
owing to the Swap Counterparty in connection with such Early Termination Date
and in respect of the Aggregate Noteholders' Interest Distributable Amount;
(iv) fourth, to the Certificate Distribution Account, to the
extent of the Total Available Amount (as such amount has been reduced by the
distributions described in clauses (i), (ii) and (iii) above), the
Certificateholders' Interest Distributable Amount;
(v) fifth, during the Revolving Period only, to the Seller, 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 Additional
Receivables Discounted Principal Balance;
(vi) sixth, during the Revolving Period only, to the
Accumulation Account, to the extent of Total Available Amount (as such amount
has been reduced by the distributions described in clauses (i) through (v)
above), the excess of the Reinvestment Amount for such Distribution Date over
the Additional Receivables Discounted Principal Balance, if any;
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(vii) seventh, during the Amortization Period only, 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
(vi) above), the Aggregate Noteholders' Principal Distributable Amount;
(viii) eighth, during the Amortization Period only, 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 (vii) above), the Certificateholders' Principal Distributable Amount;
and
(ix) ninth, to the Reserve Account, any portion of the
Total Available Amount remaining after the distributions described in clauses
(i) through (viii) above.
(e) Notwithstanding the foregoing, at any time that the Notes
have not been paid in full and the principal balance of the Notes has been
declared immediately due and payable following the occurrence of an Event of
Default under Sections 5.1(a), 5.1 (b), 5.1(c) 5.1(e), or 5.1(f) of the
Indenture, then until such time as the Notes have been paid in full and the
Indenture has been discharged or the foregoing Events of Default have been cured
or waived as provided in Section 5.2(b) of the Indenture, 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 2002-3 Reserve Account (the "Reserve Account") to
include the money and other property deposited and held therein pursuant to this
Section 4.07(a), Section 4.07(e) and Section 4.06(c). On the Initial Closing
Date, the Seller shall deposit the Reserve Account Initial Deposit 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 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
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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
authorized and executed, as applicable, delivered and filed such further
documents and instruments (including, without limitation, any UCC financing
statements or this Agreement) as may be determined to be necessary, in an
Opinion of Counsel to the Seller delivered to the Indenture Trustee, in order to
perfect the interests created by this Section 4.07 and otherwise fully to
effectuate the purposes, terms and conditions of this Section 4.07. The Seller
shall:
(i) promptly authorize and execute, as applicable, deliver
and file any financing statements, amendments, continuation statements,
assignments, certificates and other documents with respect to such interests and
perform all such other acts as may be necessary in order to perfect or to
maintain the perfection of the Indenture Trustee's security interest; and
(ii) make the necessary filings of financing statements or
amendments thereto within thirty days after the occurrence of any of the
following: (A) any change in their respective corporate names or any trade
names, (B) any change in the location of their respective chief executive
offices or principal places of business or any change in their respective
jurisdictions of organization, (C) any merger or consolidation or other change
in their respective identities or corporate structures and (D) any other change
or occurrence that would make any financing statement or amendment thereto
seriously misleading within the meaning of the UCC; and shall promptly notify
the Indenture Trustee of any such filings.
(e) If the Servicer pursuant to Section 5.04 determines on any
Determination Date that it is required to make a Monthly Advance and does not do
so from its own funds, the Servicer shall instruct the Indenture Trustee to
withdraw funds from the Reserve Account and deposit them in the Collection
Account to cover any shortfall. Such payment shall be deemed to have been made
by the Servicer pursuant to Section 5.04 for purposes of making distributions
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 Discounted Principal Balance as of the
close of business on the last day of such Monthly Period, the Aggregate
Discounted Principal Balance as of the close of business on the last day of the
second monthly period preceding such Distribution Date (or, for the first
Distribution Date, the Initial Aggregate Discounted 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
(ii) 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;
(x) the balance of the Reserve Account on such
Distribution Date (after giving effect to changes therein on such Distribution
Date);
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(xi) LIBOR for such Distribution Date and the interest rate
on the Floating Rate Notes;
(xii) the Additional Receivables Discounted Principal
Balance for such Distribution Date (during the Revolving Period only);
(xiii) the balance of the Accumulation Account after giving
effect to payments to and distributions from such account on such Distribution
Date (during the Revolving Period only); and
(xiv) whether the Revolving Period has terminated early as a
result of the occurrence of an Early Amortization Event (during the Revolving
Period only).
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 Financial
Parties, shall establish and maintain in the name of the Indenture Trustee an
Eligible Deposit Account known as the Capital Auto Receivables Asset Trust
2002-3 Collection Account (the "Collection Account"), bearing an additional
designation clearly indicating that the funds deposited therein are held for the
benefit of the Financial Parties.
(ii) The Servicer, for the benefit of the Noteholders,
shall establish and maintain in the name of the Indenture Trustee an Eligible
Deposit Account known as the Capital Auto Receivables Asset Trust 2002-3 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 in the name of the Issuer an Eligible Deposit Account known as the
Capital Auto Receivables Asset Trust 2002-3 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.
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(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 2002-3 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 2002-3 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 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 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
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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.
(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.
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(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.
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
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
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Collection Account in immediately available funds on or before the related
Distribution Date (or in the case of amounts payable to the Swap Counterparty
pursuant to Section 4.06(c)(ii), if any, on or before the Business Day preceding
the Distribution Date).
Section 5.03 Investment Earnings and Supplemental Servicing Fees. The
Servicer shall be entitled to receive all Investment Earnings (with the
exception of Investment Earnings on funds in the Accumulation Account) and
Supplemental Servicing Fees when and as paid without any obligation to the Owner
Trustee, the Indenture Trustee or the Seller in respect thereof. The Servicer
will have no obligation to deposit any such amount in any account established
hereunder. To the extent that any such amount shall be held in any account held
by the Indenture Trustee or the Owner Trustee, or otherwise established
hereunder, such amount will be withdrawn therefrom and paid to the Servicer upon
presentation of a certificate signed by a Responsible Officer of the Servicer
setting forth, in reasonable detail, the amount of such Investment Earnings or
Supplemental Servicing Fees.
Section 5.04 Monthly Advances.
(a) Subject to the following sentence, as of the last day of
each Monthly Period, with respect to each Scheduled Interest Receivable (other
than an Administrative Receivable or a Warranty Receivable), if there is a
shortfall in the Scheduled Payment remaining after application of the Deferred
Prepayment pursuant to the last sentence of Section 3.11(a) of the Pooling and
Servicing Agreement, the Servicer shall advance an amount equal to such
shortfall (such amount, a "Scheduled Interest Advance"). The Servicer shall be
obligated to make a Scheduled Interest Advance in respect of a Scheduled
Interest Receivable only to the extent that the Servicer, in its sole
discretion, shall determine that such advance shall be recoverable from
subsequent collections or recoveries on any Receivable. The Servicer shall be
reimbursed for Outstanding Scheduled Interest Advances with respect to a
Receivable from the following sources with respect to such Receivable, in each
case as set forth in the Pooling and Servicing Agreement: (i) subsequent
payments by or on behalf of the Obligor, (ii) collections of Liquidation
Proceeds, and (iii) the Warranty Payment. At such time as the Servicer shall
determine that any Outstanding Scheduled Interest Advances with respect to any
Scheduled Interest Receivable shall not be recoverable from payments with
respect to such Receivable, the Servicer shall be reimbursed from any
collections made on other Receivables held by the Issuer.
(b) As of the last day of each Monthly Period, the Servicer shall
advance an amount equal to the excess, if any, of (i) the amount of interest
that would be due during such Monthly Period on all Simple Interest Receivables
held by the Issuer (assuming that the payment on each such Receivable was
received on its respective due date) over (ii) all payments received during such
Monthly Period on all Simple Interest Receivables held by the Issuer to the
extent allocable to interest (such excess, a "Simple Interest Advance"). In
addition, Liquidation Proceeds with respect to a Simple Interest Receivable
allocable to accrued and unpaid interest thereon (but not including interest for
the then current Monthly Period) shall be paid to the Servicer but only to the
extent of any Outstanding Simple Interest Advances. The Servicer shall not make
any advance with respect to principal of any Simple Interest Receivable. Excess
Simple Interest Collections shall be paid to the Servicer as provided in Section
3.11(b) of the Pooling and Servicing Agreement.
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Section 5.05 Additional Deposits. The Servicer shall deposit in the
Collection Account the aggregate Monthly Advances pursuant to Sections 5.04(a)
and (b) and the aggregate amounts to be paid to the Issuer pursuant to Section
3.03 of the Pooling and Servicing Agreement. The Servicer and the Seller shall
deposit in the Collection Account the aggregate Administrative Purchase Payments
and Warranty Payments with respect to Administrative Receivables and Warranty
Receivables, respectively. All such deposits with respect to a Monthly Period
shall be made in immediately available funds on or before the Distribution Date
related to such Monthly Period (or, to the extent such funds are necessary to
make payments due, if any, under any Interest Rate Swaps for the related Monthly
Period, on or before the Business Day preceding the Distribution Date).
ARTICLE VI
LIABILITIES OF SERVICER AND OTHERS
Section 6.01 Liability of Servicer; Indemnities.
(a) The Servicer shall be liable in accordance with this
Agreement and the Second Step Receivables Assignments only to the extent of the
obligations in this Agreement and the Pooling and Servicing Agreement
specifically undertaken by the Servicer. Such obligations shall include the
following:
(i) The Servicer shall defend, indemnify and hold harmless
the Indenture Trustee, the Owner Trustee, the Issuer, the Noteholders and the
Certificateholders from and against any and all costs, expenses, losses,
damages, claims and liabilities arising out of or resulting from the use,
ownership or operation by the Servicer or any affiliate thereof of any Financed
Vehicle;
(ii) The Servicer shall indemnify, defend and hold harmless
the Indenture Trustee, the Owner Trustee and the Issuer from and against any
taxes that may at any time be asserted against any such Person with respect to
the transactions contemplated in this Agreement, including, without limitation,
any sales, gross receipts, general corporation, tangible personal property,
privilege or license taxes (but not including any taxes asserted with respect
to, and as of the date of, the sale of the Receivables to the Issuer or the
issuance and original sale of the Notes and the Certificates, or asserted with
respect to ownership of the Receivables, or federal or other income taxes
arising out of distributions on the Notes or the Certificates, or any fees or
other compensation payable to any such Person) and costs and expenses in
defending against the same;
(iii) The Servicer shall indemnify, defend and hold harmless
the Indenture Trustee, the Owner Trustee, the Issuer, the Noteholders and the
Certificateholders from and against any and all costs, expenses, losses, claims,
damages, and liabilities to the extent that such cost, expense, loss, claim,
damage, or liability arose out of, or was imposed upon the Indenture Trustee,
the Owner Trustee, the Issuer, the Noteholders or the Certificateholders through
the negligence, willful misfeasance or bad faith of the Servicer in the
performance of its duties under this Agreement, the Pooling and Servicing
Agreement, the Indenture or the Trust Agreement or any other Basic Document or
by reason of reckless disregard of its obligations and
23
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 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 external counsel and expenses of
litigation. If the Servicer has made any indemnity payments pursuant to this
Section 6.01 and the recipient thereafter collects any of such amounts from
others, the recipient shall promptly repay such amounts collected to the
Servicer, without interest.
Section 6.02 Merger or Consolidation of, or Assumption of the Obligations
of the Servicer. Any corporation or other entity (a) into which the Servicer may
be merged or consolidated, (b) resulting from any merger, conversion or
consolidation to which the Servicer shall be a party, (c) succeeding to the
business of the Servicer, or (d) more than 50% of the voting stock (or, if not a
corporation, other voting interests) of which is owned directly or indirectly by
General Motors and which is otherwise servicing the Seller's receivables, which
corporation in any of the foregoing cases executes an agreement of assumption to
perform every obligation of the Servicer under this Agreement and the Pooling
and Servicing Agreement, shall be the successor to the Servicer under this
Agreement and the Pooling and Servicing Agreement without the execution or
filing of any paper or any further act on the part of any of the parties to this
Agreement, anything in this Agreement or in the Pooling and Servicing Agreement
to the contrary notwithstanding. The Servicer shall provide notice of any
merger, consolidation or succession pursuant to this Section 6.02 to the Rating
Agencies.
Section 6.03 Limitation on Liability of Servicer and Others.
(a) Neither the Servicer nor any of the directors or officers or
employees or agents of the Servicer shall be under any liability to the Issuer,
the Noteholders or the
24
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 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
25
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 this Agreement or
under the Pooling and Servicing Agreement, as the case may be, is no longer
permissible under applicable law. Any such determination permitting the
resignation of the Servicer shall be evidenced by an Opinion of Counsel to such
effect delivered to the Indenture Trustee and the Owner Trustee. No such
resignation shall become effective until the Indenture Trustee or a successor
Servicer shall have assumed the responsibilities and obligations of the Servicer
in accordance with Section 7.02.
ARTICLE VII
DEFAULT
Section 7.01 Servicer Defaults. Each of the following shall constitute a
"Servicer Default":
(a) any failure by the Servicer to deliver to the Indenture
Trustee for deposit in any of the Designated Accounts or to the Owner Trustee
for deposit in the Certificate Distribution Account any required payment or to
direct the Indenture Trustee to make any required distributions therefrom, which
failure continues unremedied for a period of five Business Days after written
notice is received by the Servicer from the Indenture Trustee or the Owner
Trustee or after discovery of such failure by an officer of the Servicer;
(b) failure on the part of the Seller or the Servicer to duly
observe or perform in any material respect any other covenants or agreements of
the Seller or the Servicer set forth in this Agreement, the Pooling and
Servicing Agreement, the Indenture or the Trust Agreement which failure (i)
materially and adversely affects the rights of Noteholders or
Certificateholders, and (ii) continues unremedied for a period of 90 days after
the date on which written notice of such failure, requiring the same to be
remedied, shall have been given to the Seller or the Servicer, as applicable, by
the Indenture Trustee or the Owner Trustee, or to the Seller or the Servicer, as
applicable, and to the Indenture Trustee or the Owner Trustee by Noteholders
whose Notes evidence not less than 25% of the Outstanding Amount of the Notes as
of the close of the preceding Distribution Date or by 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
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(d) the consent by the Seller or the Servicer to the appointment
of a conservator or receiver or liquidator in any insolvency, readjustment of
debt, marshalling of assets and liabilities, or similar proceedings of or
relating to the Seller or the Servicer or of or relating to substantially all of
their respective property; or the Seller or the Servicer shall admit in writing
its inability to pay its debts generally as they become due, file a petition to
take advantage of any applicable insolvency or reorganization statute, make an
assignment for the benefit of its creditors or voluntarily suspend payment of
its obligations.
Section 7.02 Consequences of a Servicer Default. If a Servicer Default
shall occur and be continuing, either the Indenture Trustee or the Noteholders
whose Notes evidence not less than a majority of the Outstanding Amount of the
Notes as of the close of the preceding Distribution Date (or, if the Notes have
been paid in full and the Indenture has been discharged in accordance with its
terms, by the Owner Trustee or Certificateholders whose Certificates evidence
not less than a majority of the Voting Interests as of the close of the
preceding Distribution Date) by notice then given in writing to the Servicer and
the Owner Trustee (and to the Indenture Trustee if given by the Noteholders or
the Certificateholders) may terminate all of the rights and obligations of the
Servicer under this Agreement and the Pooling and Servicing Agreement. On or
after the receipt by the Servicer of such written notice, all authority and
power of the Servicer under this Agreement and the Pooling and Servicing
Agreement, whether with respect to the Notes, the Certificates or the
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
27
under this Agreement if no such notice of termination had been given including,
but not limited to, the Total Servicing Fee, Investment Earnings and
Supplemental Servicing Fees. Notwithstanding the above, the Indenture Trustee
may, if it shall be unwilling so to act, or shall, if it is legally unable so to
act, appoint, or petition a court of competent jurisdiction to appoint, a
successor (i) having a net worth of not less than $100,000,000, (ii) a long-term
unsecured debt rating from Xxxxx'x Investors Service, Inc. of at least Baa3
(unless such requirement is expressly waived by Xxxxx'x 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.
28
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 Discounted Principal Balance is 10% or less of
the Initial Aggregate Discounted Principal Balance. 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 under any Interest
Rate Swap 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 any Interest Rate Swaps (exclusive of
payments due to the Swap Counterparty in respect of an Early Termination Date
under any Interest Rate Swaps);
29
(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 any Interest Rate Swaps, allocated
between the Note Distribution Account and the Swap Counterparty in proportion to
the amounts owing to the Swap Counterparty in connection with such Early
Termination Date and in respect of the Aggregate Noteholders' Interest
Distributable Amount;
(iii) to the Note Distribution Account, any portion of the
Aggregate Noteholders' Interest Distributable Amount not otherwise deposited
into the Note Distribution Account on such Distribution Date for payment of
interest on the Notes;
(iv) to the Note Distribution Account, an amount equal to the
Aggregate 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 and the Indenture Trustee as soon as practicable
after the Servicer has received notice thereof.
(d) Following the satisfaction and discharge of the Indenture with
respect to the Notes, and the payment in full of the principal and interest on
the Notes, the Certificateholders shall succeed to the rights of the Noteholders
hereunder and the Owner Trustee shall succeed to the rights of, and assume the
obligations (other than those under Section 7.03 which shall remain obligations
of the Indenture Trustee) of, the Indenture Trustee pursuant to this Agreement
(subject to the continuing obligations of the Indenture Trustee set forth in
Section 4.4 of the Indenture).
(e) After indefeasible payment in full to the Indenture Trustee,
the Owner Trustee, the Swap Counterparty, the Noteholders, the
Certificateholders and the Servicer of all amounts required to be paid under
this Agreement, the Indenture, any Interest Rate Swaps and
30
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 Financial Parties, (i) to cure any ambiguity, (ii) to
correct or supplement any provision in this Agreement that may be defective or
inconsistent with any other provision in this Agreement or any other Basic
Documents, (iii) to add or supplement any credit enhancement for the benefit of
the Noteholders of any class or the Certificateholders ( provided that if any
such addition shall affect any class of Noteholders or Certificateholders
differently than any other class of Noteholders or Certificateholders, then such
addition shall not, as evidenced by an Opinion of Counsel, adversely affect in
any material respect the interests of any class of Noteholders or the
Certificateholders), (iv) add to the covenants, restrictions or obligations of
the Seller, the Servicer, the Owner Trustee or the Indenture Trustee or (v) add,
change or eliminate any other provision of this Agreement in any manner that
shall not, as evidenced by an Opinion of Counsel, adversely affect in any
material respect the interests of the Financial Parties.
(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 aforesaid percentage required to consent to any such amendment, without the
consent of the holders of all Notes and Certificates then outstanding.
31
(c) Prior to the execution of any such amendment or consent, the
Indenture Trustee shall furnish written notification of the substance of such
amendment or consent to the Rating Agencies.
(d) Promptly after the execution of any such amendment or consent,
the Owner Trustee shall furnish written notification of the substance of such
amendment or consent to each Financial Party.
(e) It shall not be necessary for the consent of Noteholders or
Certificateholders pursuant to Section 9.01(b) to approve the particular form of
any proposed amendment or consent, but it shall be sufficient if such consent
shall approve the substance thereof. The manner of obtaining such consents (and
any other consents of Noteholders or Certificateholders provided for in this
Agreement) and of evidencing the authorization of the execution thereof by
Noteholders and Certificateholders shall be subject to such reasonable
requirements as the Indenture Trustee or the Owner Trustee may prescribe,
including the establishment of record dates pursuant to paragraph number 2 of
the 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 authorize and/or
execute, as applicable, and file such financing statements and cause to be
authorized and/or executed, as applicable, and filed such continuation and other
statements, all in such manner and in such places as may be required by law
fully to preserve, maintain and protect the interest of the Noteholders, the
Certificateholders, the Indenture Trustee and the Owner Trustee under this
Agreement and the Second Step Receivables Assignments in the Receivables and in
the proceeds thereof. The Seller or the Servicer or both shall deliver (or cause
to be delivered) to the Indenture Trustee and the Owner Trustee file-stamped
copies of, or filing receipts for, any document filed as provided above, as soon
as available following such filing.
(b) Neither the Seller nor the Servicer shall change its state of
organization or its name, identity or corporate structure in any manner that
would, could or might make any financing statement or continuation statement
filed in accordance with paragraph (a) above seriously misleading within the
meaning of the UCC, unless it shall have given the Indenture Trustee and the
Owner Trustee at least 60 days prior written notice thereof.
32
(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 or change of its jurisdiction of
incorporation if, as a result of such relocation or change of jurisdiction, the
applicable provisions of the UCC would require the filing of any amendment of
any previously filed financing or continuation statement or of any new financing
statement. The Servicer shall at all times maintain each office from which it
services Receivables and its principal executive office within the United States
of America.
(d) The Servicer shall maintain accounts and records as to each
Receivable accurately and in sufficient detail to permit (i) the reader thereof
to know at any time the status of such Receivable, including payments and
recoveries made and payments owing (and the nature of each), and (ii)
reconciliation between payments or recoveries on (or with respect to) each
Receivable and the amounts from time to time deposited in the Collection
Account, Note Distribution Account, Certificate Distribution Account, and
Payment Ahead Servicing Account and any Payments Ahead held by the Servicer in
respect of such Receivable.
(e) The Servicer shall maintain its computer systems so that, from
and after the time of sale under this Agreement and the Second Step Receivables
Assignment of the Receivables, the Servicer's master computer records (including
any back-up archives) that refer to any Receivable indicate clearly that the
Receivable is owned by the Issuer. Indication of the Issuer's ownership of a
Receivable shall be deleted from or modified on the Servicer's computer systems
when, and only when, the Receivable has been paid in full or repurchased by the
Seller or purchased by the Servicer.
(f) In the event that GMAC shall change the jurisdiction in which
it is incorporated or otherwise enter into any transaction which would result in
a "new debtor" (as defined in the UCC) succeeding to the obligations of GMAC
hereunder, GMAC shall comply fully with the obligations of Section 9.02(a).
(g) If at any time the Seller or the Servicer proposes to sell,
grant a security interest in, or otherwise transfer any interest in automotive
receivables to any prospective purchaser, lender or other transferee, the
Servicer shall give to such prospective purchaser, lender or other transferee
computer tapes, records or print-outs (including any restored from back-up
archives) that, if they refer in any manner whatsoever to any Receivable,
indicate clearly that such Receivable has been sold and is owned by the Issuer
unless such Receivable has been paid in full or repurchased by the Seller or
purchased by the Servicer.
(h) The Servicer shall permit the Indenture Trustee and the Owner
Trustee and their respective agents at any time to inspect, audit and make
copies of and abstracts from the Servicer's records regarding any Receivables
then or previously included in the Owner Trust Estate.
(i) The Servicer shall furnish to the Indenture Trustee and the
Owner Trustee at any time upon request a list of all Receivables then held as
part of the Trust, together with a reconciliation of such list to the Schedule
of Receivables and to each of the Servicer's Accountings furnished before such
request indicating removal of Receivables from the Trust. Upon request, the
Servicer shall furnish a copy of any such list to the Seller. The Indenture
33
Trustee, the Owner Trustee and the Seller shall hold any such list and the
Schedule of Receivables for examination by interested parties during normal
business hours at their respective offices located at the addresses specified in
Section 9.03.
(j) The Servicer shall deliver to the Indenture Trustee and the
Owner Trustee promptly after the execution and delivery of this Agreement and of
each amendment thereto, an Opinion of Counsel either (a) stating that, in the
opinion of such counsel, all financing statements and continuation statements
have been authorized and/or executed, as applicable, 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.
(k) To the extent required by law, the Seller shall cause the
Notes and the Certificates to be registered with the Securities and Exchange
Commission pursuant to Section 12(b) or Section 12(g) of the Securities Exchange
Act of 1934 within the time periods specified in such sections.
Section 9.03 Notices. All demands, notices and communications upon or to
the Seller, the Servicer, the Indenture Trustee, the Owner Trustee or the Rating
Agencies under this Agreement shall be delivered as specified in Appendix B
hereto.
Section 9.04 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK, WITHOUT
REFERENCE TO ITS CONFLICT OF LAWS PROVISIONS AND THE OBLIGATIONS, RIGHTS AND
REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH
LAWS.
Section 9.05 Severability of Provisions. If any one or more of the
covenants, agreements, provisions or terms of this Agreement shall be for any
reason whatsoever held invalid, then such covenants, agreements, provisions or
terms shall be deemed severable from the remaining covenants, agreements,
provisions or terms of this Agreement and shall in no way affect the validity or
enforceability of the other provisions of this Agreement or of the Certificates
or the rights of the holders thereof.
Section 9.06 Assignment. Notwithstanding anything to the contrary contained
in this Agreement, this Agreement may not be assigned by the Seller without the
prior written consent of Noteholders whose Notes evidence not less than 66% of
the Outstanding Amount of the Notes as of the close of the preceding
Distribution Date and of Certificateholders whose Certificates evidence not less
than 66% of the Voting Interests as of the close of the preceding Distribution
Date. The Seller shall provide notice of any such assignment to the Rating
Agencies.
Section 9.07 Third-Party Beneficiaries. This Agreement and the Second Step
Receivables Assignments shall inure to the benefit of and be binding upon the
parties hereto and, to the extent expressly provided herein, the Noteholders,
the Certificateholders, the Swap Counterparty and their respective successors
and permitted assigns. The Swap Counterparty shall be a third-party beneficiary
to this Agreement only to the extent that it has any rights
34
specified herein or rights with respect to this Trust Sale and Servicing
Agreement specified under the Swap Counterparty Rights Agreement. Except as
otherwise provided in Section 6.01, the Swap Counterparty Rights Agreement, or
in this Article IX, no other person shall have any right or obligation
hereunder.
Section 9.08 Separate Counterparts. This Agreement may be executed by the
parties hereto in separate counterparts, each of which when so executed and
delivered shall be an original, but all such counterparts shall together
constitute but one and the same instrument.
Section 9.09 Headings and Cross-References. The various headings in this
Agreement are included for convenience only and shall not affect the meaning or
interpretation of any provision of this Agreement.
Section 9.10 Assignment to Indenture Trustee. The Seller hereby
acknowledges and consents to any mortgage, pledge, assignment and grant of a
security interest by the Issuer pursuant to the Indenture for the benefit of the
Noteholders and (only to the extent expressly provided in the Indenture) the
Certificateholders of all right, title and interest of the Issuer in, to and
under the Receivables and/or the assignment of any or all of the Issuer's rights
and obligations hereunder to the Indenture Trustee.
Section 9.11 No Petition Covenants. Notwithstanding any prior termination
of this Agreement, the Servicer and the Seller shall not, prior to the date
which is one year and one day 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 Bank One, National
Association, not in its individual capacity but solely as Indenture Trustee and
in no event shall Bank One, National Association 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.
(b) Notwithstanding anything contained herein to the contrary,
this Agreement has been executed by Deutsche Bank Trust Company Delaware not in
its individual capacity but solely in its capacity as Owner Trustee of the
Issuer and in no event Deutsche Bank Trust Company Delaware in its individual
capacity or, except as expressly provided in the Trust Agreement, as Owner
Trustee of the Issuer have any liability for the representations, warranties,
covenants, agreements or other obligations of the Issuer hereunder or in any of
the certificates, notices or agreements delivered pursuant hereto, as to all of
which recourse shall be had solely to the assets of the Issuer. For all purposes
of this Agreement, in the performance of its duties or
35
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.
* * * * *
36
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 2002-3
By: DEUTSCHE BANK TRUST COMPANY
DELAWARE, not in its individual capacity
but solely as Owner Trustee on behalf of
the Trust,
By: /s/ Man Wing Li
---------------------------------------
Name: Man Wing Li
Title: Attorney-In-Fact
CAPITAL AUTO RECEIVABLES, INC.,
Seller
By: /s/ S. N. Richard
-------------------------------------------
Name: S. N. Richard
Title: Project Manager - Securitization
GENERAL MOTORS ACCEPTANCE CORPORATION
By: /s/ X. X. Xxxxxx
-------------------------------------------
Name: X. X. Xxxxxx
Title: Manager - Securitization
Acknowledged and Accepted:
BANK ONE, NATIONAL ASSOCIATION,
not in its individual capacity but solely as Indenture Trustee,
By: /s/ Xxxxxxx X. Xxxxxx
---------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
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.
EXHIBIT B
SECOND STEP INITIAL RECEIVABLES ASSIGNMENT
PURSUANT TO TRUST SALE AND SERVICING AGREEMENT
For value received in accordance with and subject to the Trust Sale and
Servicing Agreement, dated as of August 8, 2002 (the "Trust Sale and Servicing
Agreement"), by and among General Motors Acceptance Corporation, a Delaware
corporation and in its capacity as Servicer under the Pooling and Servicing
Agreement described below (the "Servicer"), Capital Auto Receivables, Inc., a
Delaware corporation (the "Seller"), and Capital Auto Receivables Asset Trust
2002-3, a Delaware business trust (the "Issuer"), the Seller hereby irrevocably
sells, transfers, assigns and otherwise conveys to the Trust, without recourse
(subject to the obligations herein), all right, title and interest of the
Seller, whether now owned or hereafter acquired, in, to and under the following:
(i) all right, title and interest of the Seller in, to and under the
Initial Receivables listed on the Schedule of Initial Receivables and (a) in the
case of Initial Receivables that are Scheduled Interest Receivables, all monies
due thereunder on and after the Initial Cutoff Date and (b) in the case of
Initial Receivables that are Simple Interest Receivables, all monies received
thereon on and after the Initial Cutoff Date, in each case exclusive of any
amounts allocable to the premium for physical damage insurance force-placed by
the Servicer covering any related Financed Vehicle;
(ii) the interest of the Seller in the security interests in the
Financed Vehicles granted by Obligors pursuant to the Initial Receivables and,
to the extent permitted by law, any accessions thereto;
(iii) except for those Initial 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;
(iv) the interest of the Seller in any proceeds from recourse against
Dealers on Initial Receivables;
(v) all right, title and interest of the Seller in, to and under the
Pooling and Servicing Agreement and the Custodian Agreement, including the right
of the Seller to cause GMAC to repurchase Receivables under certain
circumstances;
(vi) the right to purchase Additional Receivables during the
Revolving Period at a price equal to the Additional Receivables Discounted
Principal Balance; and
(vii) the interest of the Seller in any proceeds of the property
described in clauses (i) and (ii) above.
The Seller hereby represents that as of the Initial Cutoff Date, the
Initial Aggregate Receivables Discounted Principal Balance was $3,042,177,569.94
and acknowledges
that in consideration of such Initial Receivables, the Trust has paid to the
Seller an amount equal to $3,042,177,569.94.
THIS SECOND STEP INITIAL RECEIVABLES ASSIGNMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK, WITHOUT
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.
This Second Step Initial Receivables Assignment is made pursuant to and
upon the representations, warranties and agreements on the part of the Seller
contained in the Trust Sale and Servicing Agreement (including the Officer's
Certificate of the Seller accompanying this Second Step Initial Receivables
Assignment) and is to be governed in all respects by the Trust Sale and
Servicing Agreement. Capitalized terms used but not otherwise defined herein
shall have the meanings assigned to them in the Trust Sale and Servicing
Agreement.
* * * *
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their respective officers as of the day and year first above
written.
CAPITAL AUTO RECEIVABLES, INC.,
as Seller
By: /s/ S. N. Richard
----------------------------------------
Name: S. N. Richard
Title: Project Manager - Securitization
[Attach Schedule of Initial Receivables]
EXHIBIT C
SECOND STEP ADDITIONAL RECEIVABLES ASSIGNMENT
PURSUANT TO TRUST SALE AND SERVICING AGREEMENT
For value received in accordance with and subject to the Trust Sale and
Servicing Agreement, dated as of August 8, 2002 (the "Trust Sale and Servicing
Agreement"), by and among General Motors Acceptance Corporation, a Delaware
corporation and in its capacity as Servicer under the Pooling and Servicing
Agreement described below (the "Servicer"), Capital Auto Receivables, Inc., a
Delaware corporation (the "Seller"), and Capital Auto Receivables Asset Trust
2002-3, a Delaware business trust (the "Issuer"), the Seller hereby irrevocably
sells, transfers, assigns and otherwise conveys to the Trust, without recourse
(subject to the obligations herein), all right, title and interest of the
Seller, whether now owned or hereafter acquired, in, to and under the following:
(i) all right, title and interest of the Seller in, to and under the
Additional Receivables listed on the Schedule of Additional Receivables and (a)
in the case of Additional Receivables that are Scheduled Interest Receivables,
all monies due thereunder on and after the Additional Cutoff Date and (b) in the
case of Additional Receivables that are Simple Interest Receivables, all monies
received thereon on and after the Initial Cutoff Date, in each case exclusive of
any amounts allocable to the premium for physical damage insurance force-placed
by the Servicer covering any related Financed Vehicle;
(ii) the interest of the Seller in the security interests in the
Financed Vehicles granted by Obligors pursuant to the Additional Receivables
and, to the extent permitted by law, any accessions thereto;
(iii) except for those Additional 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;
(iv) the interest of the Seller in any proceeds from recourse against
Dealers on Additional Receivables;
(v) all right, title and interest of the Seller in, to and under the
related First Step Subsequent Assignment dated as of the date hereof; and
(vi) the interest of the Seller in any proceeds of the property
described in clauses (i) and (ii) above.
The Seller hereby represents that as of the Additional Cutoff Date, the
Additional Receivable Discounted Principal Balance of the Additional Receivables
was $________ and acknowledges that in consideration of such Additional
Receivables, the Trust has paid to the Seller an amount equal to $________.
THIS SECOND STEP ADDITIONAL RECEIVABLES ASSIGNMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK, WITHOUT
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.
This Second Step Additional Receivables Assignment is made pursuant to and
upon the representations, warranties and agreements on the part of the Seller
contained in the Trust Sale and Servicing Agreement (including the Officer's
Certificate of the Seller accompanying this Second Step Additional Receivables
Assignment) and is to be governed in all respects by the Trust Sale and
Servicing Agreement. Capitalized terms used but not otherwise defined herein
shall have the meanings assigned to them in the Trust Sale and Servicing
Agreement.
* * * *
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their respective officers this __ day of ______.
CAPITAL AUTO RECEIVABLES, INC.,
as Seller
By: /s/ S. N. Richard
--------------------------------
Name: S. N. Richard
Title: Project Manager - Securitization
[Attach Schedule of Additional Receivables]
EXHIBIT D
FORM OF OFFICER'S CERTIFICATE
The undersigned, on behalf of General Motors Acceptance Corporation, as
Administrator, (the "Administrator "), does hereby certify pursuant to Section
2.06(k) of the Trust Sale and Servicing Agreement, dated as of August 8, 2002
(the "Trust Sale and Servicing Agreement"), by and among General Motors
Acceptance Corporation, a Delaware corporation and in its capacity as Servicer
under the Pooling and Servicing Agreement described below (the "Servicer"),
Capital Auto Receivables, Inc., a Delaware corporation (the "Seller"), and
Capital Auto Receivables Asset Trust 2002-3, a Delaware business trust (the
"Issuer"), that all of the conditions to the transfer to the Trust of the
Additional Receivables listed on the Second Step Additional Receivables
Assignments delivered herewith and the other property and rights related to such
Additional Receivables, as described in Section 2.06 of the Trust Sale and
Servicing Agreement, have been satisfied on or prior to the related Additional
Closing Date.
Capitalized terms used but not defined herein shall have the meanings
assigned to such terms in the Trust Sale and Servicing Agreement.
* * * *
IN WITNESS WHEREOF, the parties hereto have caused this certificate to be
duly executed by this __ day of ____.
By: /s/ S. N. Richard
---------------------------------
Name: S. N. Richard
Title: Project Manager - Securitization
EXECUTION COPY
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: For any Distribution Date during the Revolving
Period, the aggregate amount on deposit in the Accumulation Account at the open
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 Closing Date: With respect to each Additional Receivable, the
Distribution Date on which such Additional Receivable is sold, transferred,
assigned or otherwise conveyed (i) from GMAC to the Seller and (ii) from the
Seller to the Issuer.
Additional Cutoff Date: With respect to any Additional Receivable, the
first calendar day of the month in which such Additional Receivable is purchased
by XXXX from GMAC.
Additional Purchased Property: As defined in Section 2.01(b) of the
Pooling and Servicing Agreement.
Additional Receivables: Any retail instalment sale contract for a Financed
Vehicle that is included in the Schedule of Additional Receivables attached to a
First Step Additional Receivables Assignment and all rights and obligations
thereunder.
Additional Receivables Discounted Principal Balance: With respect to any
Additional Receivables to be purchased by the Trust on a Distribution Date
during the Revolving Period, an amount equal to the present value as of the
close of business on the applicable Additional Cutoff Date of all scheduled
payments due on those Additional Receivables that have not been applied on or
prior to the applicable Cutoff Date, discounted from the last day of the
calendar month in which payments are to become due to that date at the Discount
Rate. For any Distribution Date
during the Revolving Period, the Additional Receivables Discounted Principal
Balance shall, to the extent sufficient Additional Receivables are available for
sale and purchase, be reasonably proximate to, but not in excess of, the
Reinvestment Amount, for any such Distribution Date. During the Amortization
Period, the Additional Receivables Discounted Principal Balance shall be zero.
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 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 (vii) of the Trust Sale and Servicing Agreement have been
paid or provided for.
Administration Agreement: That certain Administration Agreement, dated as
of the Initial Closing Date, among GMAC, as Administrator, the Trust and the
Indenture Trustee, as amended and supplemented from time to time.
Administrative Purchase Payment: With respect to a Distribution Date and to
an Administrative Receivable purchased as of the last day of 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
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(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.
Aggregate Amount Financed: $3,300,016,727.21, which represents the
aggregate of the Amount Financed under all of the Receivables.
Aggregate Discounted Principal Balance: As of any date, the present value
as of such date of all scheduled monthly payments on all of the Receivables
(other than Liquidating Receivables) held by the Trust on such date which have
not been applied on or prior to such date (determined after taking into account
any Prepayments, Warranty Payments and/or Administrative Purchase Payments in
respect of such Receivables), discounted from the last day of the calendar month
in which payments are to become due to such date at the Discount Rate.
Aggregate 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 during the Amortization Period, 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. During the Revolving Period, the Aggregate Noteholders'
Principal Distributable Amount shall be equal to zero.
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.
Amortization Date: The earlier of (i) July 15, 2003 and (ii) the date on
which an Early Amortization Event occurs.
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Amortization Period: The period beginning on the Amortization Date and
ending on the date that all classes of Notes and all Certificates have been paid
in full.
Amount Financed: With respect to a Receivable, the aggregate amount
advanced under such Receivable toward the purchase price of the Financed
Vehicle, including accessories, insurance premiums, service and warranty
contracts and other items customarily financed as part of retail automobile
instalment sale contracts and 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 or agent acting
under power of attorney of the Owner Trustee who is authorized to act for the
Owner Trustee in matters relating to the Issuer and who is identified on the
list of Authorized Officers delivered by the Owner Trustee to the Indenture
Trustee on the Closing Date (as such list may be modified or supplemented from
time to time thereafter) or the power of attorney and, so long as the
Administration Agreement is in effect, any Vice President or more senior officer
of the Administrator who is authorized to act for the Administrator in matters
relating to the Issuer and to be acted upon by the Administrator pursuant to the
Administration Agreement and who is identified on the list of Authorized
Officers delivered by the Administrator to the Indenture Trustee on the Closing
Date (as such list may be modified or supplemented from time to time
thereafter).
Available Interest: With respect to any Distribution Date, the sum of the
following amounts with respect to the prior 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);
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(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 any Interest Rate Swaps;
(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; and
(vii) any Investment Earnings on funds on deposit in the Accumulation
Account;
except that any of the foregoing amounts, to the extent they constitute any
of the following, shall be excluded from "Available Interest":
(A) all amounts received on any Scheduled Interest Receivable (other
than a Liquidating Receivable) to the extent of the Outstanding Scheduled
Interest Advances allocable to interest with respect to such Receivable;
(B) all Liquidation Proceeds with respect to Scheduled Interest
Receivables to the extent of the Outstanding Scheduled Interest Advances thereon
allocable to interest;
(C) any Excess Simple Interest Collections;
(D) Liquidation Proceeds with respect to Simple Interest Receivables
allocable to accrued and unpaid interest thereon (but not including interest for
the then current Monthly Period), but only to the extent of any Outstanding
Simple Interest Advances; and
(E) amounts representing Liquidation Expenses pursuant to Section 3.04
of the Pooling and Servicing Agreement.
For purposes of this definition, references to the prior Monthly Period
shall include, for the initial Distribution Date, the period since the Cutoff
Date.
Available Principal: With respect to any Distribution Date, the sum of the
following amounts with respect to the prior Monthly Period:
(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;
5
(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;
except that any of the foregoing amounts, to the extent they constitute any
of the following shall be excluded from "Available Principal:"
(A) any Excess Simple Interest Collections;
(B) all amounts received on any Scheduled Interest Receivable (other
than a Liquidating Receivable) to the extent of the Outstanding Scheduled
Interest Advances allocable to principal with respect to such Receivable;
(C) all Liquidation Proceeds with respect to Scheduled Interest
Receivables to the extent of the Outstanding Scheduled Interest Advances
allocable to principal; and
(D) amounts representing reimbursement for Liquidation Expenses pursuant
to Section 3.04 of the Pooling and Servicing Agreement.
For purposes of this definition, references to the prior Monthly Period
shall include, for the initial Distribution Date, the period since the Cutoff
Date.
Basic Documents: The Certificate of Trust, the Certificate Depository
Agreement, the Trust Agreement, the Pooling and Servicing Agreement, the Trust
Sale and Servicing Agreement, the Triparty Agreement, the Custodian Agreement,
the Administration Agreement, the Indenture, any Interest Rate Swaps, the Swap
Counterparty Rights Agreement 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) 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 Basic Servicing Fee Rate multiplied by a fraction, the numerator of
which is 21 and the denominator of which is 360, multiplied by 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
entity.
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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 (S) 3801 et seq., as the same may be amended from time to time.
XXXX: Capital Auto Receivables, Inc., a Delaware corporation.
Certificate: Any one of the 3.44% 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, $91,177,569.94 and,
on any Distribution Date thereafter, will equal the initial Certificate Balance
reduced by (i) all distributions in respect of the 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 Initial Closing Date, among the Trust, the Administrator and The
Depository Trust Company (as the initial Clearing Agency), relating to the
Certificates, as the same may be amended and supplemented from time to time.
Certificate Distribution Account: The account, if any, designated as such,
established and maintained pursuant to Section 5.1(a) of the Trust Agreement and
Section 5.01(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, (ii) the Certificateholders'
Interest Carryover Shortfall as of the close of the
7
preceding Distribution Date and (iii) one month's interest at the Pass Through
Rate on the sum of (a) any outstanding Noteholders' Principal Carryover
Shortfall and (b) any outstanding Certificateholders' Principal Carryover
Shortfall as of the close of business on the preceding Distribution Date.
Certificateholders' Monthly Interest Distributable Amount: With respect to
any Distribution Date, interest equal to the product of (i) the Certificate
Balance as of the close of the preceding Distribution Date (or, in the case of
the first Distribution Date, the initial Certificate Balance), and (ii) the
product of the Pass Through Rate and one-twelfth, or in the case of the first
Distribution Date, the product of the Pass Through Rate and a fraction, the
numerator of which is 37, the denominator of which is 360.
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 the Certificate Balance.
Certificateholders' Principal Distributable Amount: With respect to any
Distribution Date during the Amortization Period, 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.
During the Revolving Period, the Certificateholders' Principal Distributable
Amount shall be equal to zero.
Certificate of Trust: The certificate of trust of the Issuer substantially
in the form of Exhibit B to the Trust Agreement filed for the Trust pursuant to
Section 3810(a) of the 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).
8
Certificate Pool Factor: With respect to any Distribution Date, a
seven-digit decimal figure computed by the Servicer equal to the remaining
Certificate Balance as of the close of such Distribution Date divided by the
initial Certificate Balance.
Certificate Register: The register of Certificates specified in Section 3.4
of the Trust Agreement.
Certificate Registrar: The registrar at any time of the Certificate
Register, appointed pursuant to Section 3.4(a) of the Trust Agreement.
Class A Notes: Collectively, the Class A-1 Notes, the Class A-2 Notes, the
Class A-3 Notes and the Class A-4 Notes.
Class A-1 Notes: The Class A-1 Floating Rate Asset Backed Notes in the
initial aggregate principal amount of $1,162,000,000.00 issued pursuant to the
Indenture.
Class A-2 Notes: Collectively, the Class A-2a Notes and the Class A-2b
Notes.
Class A-2a Notes: The Class A-2a 3.05% Asset Backed Notes in the initial
aggregate principal amount of $344,250,000.00 issued pursuant to the Indenture.
Class A-2b Notes: The Class A-2b Floating Rate Asset Backed Notes in the
initial aggregate principal amount of $344,250,000.00 issued pursuant to the
Indenture.
Class A-3 Notes: The Class A-3 3.58% Asset Backed Notes in the initial
aggregate principal amount of $766,000,000.00 issued pursuant to the Indenture.
Class A-4 Notes: The Class A-4 Floating Rate Asset Backed Notes in the
initial aggregate principal amount of $334,500,000.00 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.
Code: The Internal Revenue Code of 1986, as amended from time to time, and
the Treasury Regulations promulgated thereunder.
Collateral: The collateral specified in the Granting Clause of the
Indenture.
Collection Account: The account designated as such, established and
maintained pursuant to Section 5.01(a)(i) of the Trust Sale and Servicing
Agreement.
Contingent Interest Rate Swap: Each interest rate swap agreement, including
the schedule and confirmation related thereto, between GMAC and the Trust, as
executed and delivered on the
9
Closing Date, as the same may become effective as provided in the Triparty
Agreement or be amended, supplemented, renewed, extended or replaced from time
to time.
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 1 Bank Xxx Xxxxx, Xxxxx XX0-0000, Xxxxxxx, Xxxxxxxx,
00000-0000, Attn: Corporate Trust Division, and in the case of the Owner
Trustee, at Xxxxxxxxxx Building, 0000 Xxxxxx Xxxx, Xxxxx 000, Xxxxxxxxxx,
Xxxxxxxx 00000, Attn: Corporate Trust Department.
Custodian: GMAC, as Servicer, or another custodian named from time to time
in the Custodian Agreement.
Custodian Agreement: The Custodian Agreement, dated as of the Initial
Closing Date, between the Custodian and XXXX, as amended or supplemented from
time to time.
Cutoff Date: The Initial Cutoff Date with respect to the Initial
Receivables or the applicable Additional Cutoff Date with respect to any
Additional Receivables.
Dealer: The seller of automobiles or light trucks that originated one or
more of the Receivables and assigned the respective Receivable, directly or
indirectly, to GMAC under an existing agreement between such seller and GMAC or
between such seller and General Motors, as applicable.
Dealer Agreement: An existing agreement between GMAC and a Dealer with
respect to a Receivable.
Default: Any occurrence that is, or with notice or the lapse of time or
both would become, an Event of Default.
Deferred Prepayment: With respect to the opening of business on a
Distribution Date and to a Scheduled Interest Receivable, the amount, if any,
held by the Servicer pursuant to Section 5.01(e) of the Trust Sale and Servicing
Agreement or in the Payment Ahead Servicing Account with respect to such
Receivable as of the opening of business on such Distribution Date.
Definitive Certificates: As defined in Section 3.13 of the Trust Agreement.
Definitive Notes: The Notes issued in the form of definitive notes pursuant
to Section 2.12 or Section 2.15 of the Indenture.
Depository Agreements: Together, the Certificate Depository Agreement, and
the Note Depository Agreement.
Designated Account Property: The Designated Accounts, all cash,
investments, Financial Assets, securities and investment property held from time
to time in any Designated Account (whether in the form of deposit accounts,
Physical Property, book-entry securities, Uncertificated
10
Securities or otherwise), including the Reserve Account Initial Deposit, and all
proceeds of the foregoing but excluding all Investment Earnings thereon.
Designated Accounts: The Accumulation Account, the Collection Account, the
Note Distribution Account and the Reserve Account, collectively.
Determination Date: The tenth day of each calendar month, or if such tenth
day is not a Business Day, the next succeeding Business Day.
Discount Rate: 7.75% per annum.
Distribution Date: With respect to a Monthly Period, the 15th day of the
next succeeding calendar month or, if such 15th day is not a Business Day, the
next succeeding Business Day, commencing September 16, 2002.
Early Amortization Event: The occurrence during the Revolving Period of one
or more of the following: (i) the amount on deposit in the Reserve Account is
less than the Specified Reserve Account Balance for two consecutive Monthly
Periods; (ii) after payment of the Additional Receivables Discounted Principal
Balance on any Distribution Date, the amount on deposit in the Accumulation
Account exceeds one percent of the Aggregate Discounted Principal Balance; (iii)
an Event of Default occurs; or (iv) a Servicer Default occurs.
Early Termination Date: As defined in each Interest Rate Swap.
Eligible Deposit Account: Either (i) a segregated account with an Eligible
Institution or (ii) a segregated trust account with the corporate trust
department of a depository institution organized under the laws of the United
States of America or any one of the states thereof or the District of Columbia
(or any domestic branch of a foreign bank), having corporate trust powers and
acting as trustee for funds deposited in such account, so long as any of the
securities of such depository institution have a credit rating from each Rating
Agency in one of its generic rating categories which signifies investment grade.
Eligible Institution: Either (i) the corporate trust department of the
Indenture Trustee or the Owner Trustee or (ii) a depository institution
organized under the laws of the United States of America or any one of the
states thereof or the District of Columbia (or any domestic branch of a foreign
bank), (A) which has either (1) a long-term unsecured debt rating acceptable to
the Rating Agencies or (2) a short-term unsecured debt rating or certificate of
deposit rating acceptable to the Rating Agencies and (B) whose deposits are
insured by the FDIC.
Eligible Investments: Book-entry securities, negotiable instruments or
securities represented by instruments in bearer or registered form which
evidence:
(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
11
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;
(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 is required to be liquidated immediately upon the
amount of such collateral being less than the amount of such repurchase
obligation (unless the counterparty immediately satisfies the repurchase
obligation upon being notified of such shortfall);
(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, unless otherwise permitted by the Rating Agencies, maturing (A)
not later than the Business Day immediately preceding the next Distribution Date
or (B) on such next Distribution Date if either (x) such investment is issued by
the institution with which the Note Distribution
12
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 Xxxxx'x
Investors Service, Inc. and A-1+ by Standard & Poor's Ratings Services on the
date such investment is made) shall advance funds on such Distribution Date to
the Note Distribution Account or the Certificate Distribution Account, as the
case may be, in the amount payable on such investment on such Distribution Date
pending receipt thereof to the extent necessary to make distributions on the
Notes or the Certificates, as the case may be, on such Distribution Date. The
provisions in clauses (ii), (iii), (iv), (vi) and (vii) above requiring that
certain investments be rated in the highest investment category granted by each
Rating Agency require such rating from Fitch, Inc. only if Fitch, Inc. is then
rating such investment. For purposes of the foregoing, unless the Indenture
Trustee objects at the time an investment is made, the Indenture Trustee shall
be deemed to have agreed to make such advance with respect to such investment.
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.
FDIC: Federal Deposit Insurance Corporation or any successor agency.
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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:
Class A-1 Notes: December, 2004;
Class A-2 Notes: September, 2005;
Class A-3 Notes: October, 2006;
Class A-4 Notes: February, 2009; and
(ii) with respect to the Certificates, the Distribution Date in February,
2009.
Financed Vehicle: A new 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.
Financial Parties: The Noteholders, the Certificateholders and, so long as
any Interest Rate Swaps are in effect, the Swap Counterparty.
First Step Additional Receivables Assignment: As defined in Section 2.02(b)
of the Pooling and Servicing Agreement.
First Step Initial Receivables Assignment: As defined in Section 2.02(a) of
the Pooling and Servicing Agreement.
First Step Receivables Assignments: As defined in Section 2.02(b) of the
Pooling and Servicing Agreement.
Fixed Rate Notes: Together, the Class A-2a Notes and the Class A-3 Notes.
Floating Rate Notes: Together, the Class A-1 Notes, Class A-2b Notes and
Class A-4 Notes.
General Motors: General Motors Corporation, a Delaware corporation.
GMAC: General Motors Acceptance Corporation, a Delaware corporation.
GMAC Interest Rate Swap: Each interest rate swap agreement, including the
schedule and confirmation related thereto, between GMAC and the Swap
Counterparty in effect on the Closing Date, as the same may be amended,
supplemented, renewed, extended or replaced from time to time.
14
Grant: To mortgage, pledge, bargain, sell, warrant, alienate, remise,
release, convey, assign, transfer, create, and xxxxx x xxxx 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.
Indenture Trustee: Bank One, National 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 stating that
the signer has read the definition of "Independent" in the Indenture and that
the signer is Independent within the meaning thereof.
Indirect Participant: A securities broker, dealer, bank, trust company or
other Person that clears through or maintains a custodial relationship with a
Clearing Agency Participant, either directly or indirectly.
Initial Aggregate Discounted Principal Balance: $3,042,177,569.94.
Initial Book-Entry Certificates: As defined in Section 3.11 of the Trust
Agreement.
Initial Closing Date: August 8, 2002.
Initial Cutoff Date: July 1, 2002.
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Initial Purchased Property: As defined in Section 2.01(a) of the Pooling
and Servicing Agreement.
Initial Receivables: Any retail instalment sale contract for a Financed
Vehicle that is included in the Schedule of Initial Receivables attached to the
First Step Initial Receivables Assignment and all rights and obligations
thereunder.
Insurance Policy: With respect to a Receivable, an insurance policy
covering physical damage, credit life, credit disability, theft, mechanical
breakdown or similar event with respect to the related Financed Vehicle.
Intercompany Advance Agreement: The Amended and Restated Intercompany
Advance Agreement dated as of February 22, 1996 between XXXX and GMAC, as
amended and supplemented from time to time.
Interest Rate: With respect to each class of Class A Notes, the per annum
rate set forth below:
Class A-1 Notes: LIBOR plus 0.04%;
Class A-2a Notes: 3.05%;
Class A-2b Notes: LIBOR plus 0.07%;
Class A-3 Notes: 3.58%; and
Class A-4 Notes: LIBOR plus 0.11%.
Interest Rate Swap: Each interest rate swap agreement, including all
schedules and confirmations related thereto, between the Trust and the Swap
Counterparty, in effect on the Initial Closing Date, as the same may be amended,
supplemented, renewed, extended or replaced from time to time. From and after
the date, if any, on which any Contingent Interest Rate Swaps become effective
as provided in the Triparty Agreement, each shall constitute an "Interest Rate
Swap" for all purposes under the Basic Documents.
Interested Parties: As defined in the preamble to the Pooling and Servicing
Agreement.
Investment Company Act: The Investment Company Act of 1940, as the same may
be amended from time to time.
Investment Earnings: Investment earnings on funds deposited in the
Designated Accounts, 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.
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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 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 (and, in the case of the initial Distribution Date, two LIBOR Business Days
prior to the Initial Closing Date). If such rate does not appear on that date on
Telerate Service Page 3750 (or any other page as may replace that page on that
service, or if that service is no longer offered, any other service for
displaying LIBOR or comparable rates as may be selected by the Indenture Trustee
after consultation with the Seller), then LIBOR will be the Reference Bank Rate.
LIBOR Business Day: Any day other than a Saturday, Sunday or any other day
on which banks in London are required or authorized to be closed.
Lien: Any security interest, lien, charge, pledge, equity, encumbrance or
adverse claim of any kind other than tax liens, mechanics' liens and any liens
that attach by operation of law.
Liquidating Receivable: A Receivable as to which the Servicer (i) has
reasonably determined, in accordance with its customary servicing procedures,
that eventual payment of amounts owing on such Receivable is unlikely, or (ii)
has repossessed and disposed of the Financed Vehicle.
Liquidation Expenses: With respect to (i) a Liquidating Receivable without
recourse to a Dealer, $300.00 (or such greater amount as the Servicer determines
necessary in accordance with its customary procedures to refurbish and dispense
of a repurchased Financed Vehicle) as an allowance for amounts charged to the
account of the Obligor, in keeping with the Servicer's customary procedures, for
refurbishing and disposition of the Financed Vehicle and other out-of-pocket
costs related to the liquidation; (ii) a Liquidating Receivable with recourse to
a Dealer, $0.
Liquidation Proceeds: With respect to a Liquidating Receivable, all amounts
realized with respect to such Receivable net of amounts that are required to be
refunded to the Obligor on such Receivable.
Materiality Opinion: A written opinion of Xxxxxxxx & Ellis, Mayer, Xxxxx
Xxxx & Maw 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, the calendar month
preceding the month in which such Distribution Date occurs.
Monthly Remittance Condition: Each of the following conditions:
(i) GMAC is the Servicer;
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(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 Xxxxx'x 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 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.
Note Owner: With respect to a Book-Entry Note, the Person who is the
beneficial owner of such Book-Entry Note, as reflected on the books of the
Clearing Agency, or on the books of a Person maintaining an account with such
Clearing Agency (directly as a Clearing Agency Participant or as an Indirect
Participant, in each case in accordance with the rules of such Clearing Agency).
Note Pool Factor: With respect to any class of Notes and any Distribution
Date, an amount expressed to the seventh decimal place and computed by the
Servicer which is equal to the Note Principal Balance for such class as of the
close of such Distribution Date divided by the initial Note Principal Balance
for such class.
Note Principal Balance: With respect to a class of the Class A Notes and
any Distribution Date, the initial aggregate principal balance of such class of
Notes, reduced by all previous payments to the Noteholders of such class in
respect of principal of such Notes.
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 and
the Class A-4 Notes.
Noteholders: Holders of record of the Notes pursuant to the Indenture and,
with respect to any class of Notes, holders of record of such class of Notes
pursuant to the Indenture.
Noteholders' Interest Carryover Shortfall: With respect to any Distribution
Date, the excess, as of the close of business on such Distribution Date of (i)
the Aggregate Noteholders'
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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 of such class of Notes on the Initial Closing Date) and (ii) in the case
of (a) the Fixed Rate Notes, one-twelfth of the Interest Rate for such class
(or, in the case of the first Distribution Date, the Interest Rate for such
class multiplied by a fraction, the numerator of which is 37 and the denominator
of which is 360) and (b) the Floating Rate Notes, the product of the Interest
Rate for such class of Notes for such Distribution Date and a fraction, the
numerator of which is the number of days elapsed from and including the prior
Distribution Date (or, in 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 means, for any Distribution Date prior to the
payment in full of the Class A-1 Notes, 100%, and thereafter 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 immediately preceding Distribution Date. Notwithstanding the
foregoing, following the occurrence of an Event of Default and acceleration of
the Notes pursuant to Section 5.2 of the Indenture, the Noteholders' Percentage
shall be 100% until the Notes are paid in full or the acceleration is rescinded
in accordance with the terms of the Indenture.
Noteholders' Principal Carryover Shortfall: With respect to any
Distribution Date, the excess, as of the close of business on such Distribution
Date 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 Distribution Date in respect of principal.
Noteholders' Principal Distributable Amount: With respect to any class of
Notes, for any Distribution Date during the Amortization Period, the lesser of:
(A) the outstanding principal balance of such class as of
the close of the immediately preceding Distribution Date or in
the case of the first Distribution Date, the outstanding
principal balance on the Closing Date; and
(B) the remainder, if any, of:
(1) the Noteholders' Percentage of the Principal
Distributable Amount minus
(2) the outstanding principal balance for each
class of Notes with a lower numerical designation as of the close
of the immediately preceding Distribution Date.
19
For any Distribution Date during the Revolving Period, the Noteholders'
Principal Distribution Amount shall be equal to zero.
Notwithstanding the foregoing, on the Final Scheduled Distribution Date for
any class of the Notes, the Noteholders' Principal Distributable Amount for such
class of Notes will also include the amount that is necessary, after giving
effect to other amounts deposited into the Note Distribution Account on such
Distribution Date and allocable to payments of principal, to reduce the
outstanding principal balance of such class of Notes to zero.
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 the Trust Agreement
with the exception of the Certificates retained by the Seller.
Offered Notes: Together, the Class A-1 Notes, the Class A-2 Notes, the
Class A-3 Notes and the Class A-4 Notes.
Officer's Certificate: A certificate signed by any Authorized Officer of
the Issuer, under the circumstances described in, and otherwise complying with,
the applicable requirements of Section 11.1 of the Indenture, and delivered to
the Indenture Trustee. Unless otherwise specified in the Indenture, any
reference in the Indenture to an officer's certificate shall be to an Officer's
Certificate of any Authorized Officer of the Issuer.
Opinion of Counsel: A written opinion of counsel, who may, except as
otherwise expressly provided, be an employee of the Seller or the Servicer. In
addition, for purposes of the Indenture: (i) such counsel shall be satisfactory
to the Indenture Trustee; (ii) the opinion shall be addressed to the Indenture
Trustee as Trustee and (iii) the opinion shall comply with any applicable
requirements of Section 11.1 of the Indenture and shall be in form and substance
satisfactory to the Indenture Trustee.
Optional Purchase Date: As defined in Section 8.01(a) of the Trust Sale and
Servicing Agreement.
Optional Purchase Percentage: 10%.
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
20
(iii) Notes in exchange for or in lieu of other Notes which have been
authenticated and delivered pursuant to the Indenture unless proof
satisfactory to the Indenture Trustee is presented that any such Notes are
held by a bona fide purchaser;
provided, however, that in determining whether the Holders of the requisite
Outstanding Amount of the Notes have given any request, demand, authorization,
direction, notice, consent or waiver hereunder or under any Basic Document,
Notes both legally and beneficially owned by the Issuer, any other obligor upon
the Notes, the Seller or any Affiliate of any of the foregoing Persons shall be
disregarded and deemed not to be Outstanding, except that, in determining
whether the Indenture Trustee shall be protected in relying upon any such
request, demand, authorization, direction, notice, consent or waiver, only Notes
that the Indenture Trustee knows to be so owned shall be so disregarded. Notes
so owned that have been pledged in good faith may be regarded as Outstanding if
the pledgee establishes to the satisfaction of the Indenture Trustee the
pledgor's right so to act with respect to such Notes and that the pledgee is not
the Issuer, any other obligor upon the Notes, the Seller or any Affiliate of any
of the foregoing Persons.
Outstanding Amount: As of any date, the aggregate principal amount of all
Notes, or a class of Notes, as applicable, Outstanding at such date.
Outstanding Monthly Advances: Outstanding Scheduled Interest Advances and
Outstanding Simple Interest Advances, collectively.
Outstanding Scheduled Interest Advances: As of the last day of a Monthly
Period and with respect to a Scheduled Interest Receivable, the sum of all
Scheduled Interest Advances made on or prior to such date minus all payments
made or collections received on or prior to such date which are specified in
Section 5.04(a) of the Trust Sale and Servicing Agreement as reducing
Outstanding Scheduled Interest Advances with respect to such Receivable.
Outstanding Simple Interest Advances: As of the last day of a Monthly
Period, the sum of all Simple Interest Advances made on or prior to such date
minus the sum of (i) all payments to the Servicer made on or prior to such date
pursuant to Section 5.04(b) of the Trust Sale and Servicing Agreement and (ii)
all Excess Simple Interest Collections paid to the Servicer made on or prior to
such date; provided, however, that Outstanding Simple Interest Advances shall
never be deemed to be less than zero.
Overdue Payment: With respect to a Distribution Date and to a Scheduled
Interest Receivable, all payments received by the Servicer from or for the
account of the related Obligor during the related Monthly Period in excess of
any Supplemental Servicing Fees (excluding any Investment Earnings during the
related Monthly Period), to the extent of the Outstanding Scheduled Interest
Advances relating to such Receivable.
Owner: As defined in Section 1.02 of the Pooling and Servicing Agreement.
Owner Trust Estate: All right, title and interest of the Trust in and to
the property and rights assigned to the Trust pursuant to Article II of the
Trust Sale and Servicing Agreement, all funds on deposit from time to time in
the Collection Account and the Certificate Distribution Account and all other
property of the Trust from time to time, including any rights of the Owner
21
Trustee and the Trust pursuant to the Trust Sale and Servicing Agreement and the
Administration Agreement.
Owner Trustee: Deutsche Bank Trust Company Delaware, a Delaware banking
corporation, not in its individual capacity but solely as trustee, or any
successor trustee under the Trust Agreement.
Pass Through Rate: means, for the Certificates, 3.44% per annum.
Paying Agent: With respect to the Indenture, the Indenture Trustee or any
other Person that meets the eligibility standards for the Indenture Trustee
specified in Section 6.11 of the Indenture and is authorized by the Issuer to
make the payments to and distributions from the Collection Account and the Note
Distribution Account, including payment of principal of or interest on the Notes
on behalf of the Issuer. With respect to the Trust Agreement, any paying agent
or co-paying agent appointed pursuant to Section 3.9 of the Trust Agreement that
meets the eligibility standards for the Owner Trustee specified in Section 6.13
of the Trust Agreement. The initial Paying Agent under the Indenture and the
Trust Agreement shall be Deutsche Bank Trust Company Delaware.
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 9-102(47) of the New York UCC and are susceptible
of physical delivery and (ii) Security Certificates.
Pooling and Servicing Agreement: The Pooling and Servicing Agreement, dated
as of the 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.
22
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 Scheduled Interest Receivable.
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
excess of (i) the sum of (a) the Aggregate Discounted Principal Balance as of
the close of business on the last day of the second Monthly Period preceding
such Distribution Date (or, in the case of the initial Distribution Date, the
Initial Aggregate Discounted Principal Balance) plus (b) the Additional
Receivables Discounted Principal Balance for the Additional Receivables acquired
on the preceding Distribution Date over (ii) the Aggregate Discounted Principal
Balance as of the close of business on the last day of the first Monthly Period
preceding such Distribution Date. On the first Distribution Date during the
Amortization Period, the Principal Distributable Amount will also include the
Accumulation Amount as of the close of business on the preceding Distribution
Date.
Proceeding: Any suit in equity, action at law or other judicial or
administrative proceeding.
Program: As defined in Section 4.02(a) of the Trust Sale and Servicing
Agreement.
Purchased Property: The property described in Section 2.01(b) of the
Pooling and Servicing Agreement.
Rating Agencies: As of any date, the nationally recognized statistical
rating organizations requested by the Seller to provide ratings on the Notes or
the Certificates which are rating the Notes or the Certificates on such date.
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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 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 Initial Receivables and any Additional Receivable
that is included in a Schedule of Additional 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.
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-4 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, a rate determined on the
basis of the rates at which deposits in U.S. Dollars are offered by reference
banks as of 11:00 a.m., London time, on the day that is two LIBOR Business Days
prior to the immediately preceding Distribution Date to prime banks in the
London interbank market for a period of one month, in amounts approximately
equal to the then Outstanding Amount of the then outstanding Floating Rate
Notes. The reference banks shall be four major banks that are engaged in
transactions in the London interbank market, selected by the Indenture Trustee
after consultation with the Seller. The Indenture Trustee will request the
principal London office of each of the reference banks to provide a quotation of
its rate. If at least two quotations are provided, the rate will be the
arithmetic mean of the quotations, rounded upwards to the nearest one-sixteenth
of one percent. If on that date fewer than two quotations are provided as
requested, the rate will be the arithmetic mean, rounded upwards to the nearest
one-sixteenth of one percent, of the rates quoted by one or more major banks in
New York City, selected by the Indenture Trustee after consultation with
24
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 Outstanding Amount of the then outstanding
Floating Rate Notes. If no quotation can be obtained, then LIBOR will be the
rate from the prior Distribution Date.
Registered Holder: The Person in whose name a Note is registered on the
Note Register on the applicable Record Date.
Reinvestment Amount: For any Distribution Date during the Revolving Period,
the Principal Distributable Amount plus the Accumulation Amount. During the
Amortization Period, the Reinvestment Amount shall be equal to zero.
Released Administrative Amount: With respect to a Distribution Date and a
purchased Administrative Receivable, the Deferred Prepayment on such Receivable.
Released Warranty Amount: With respect to a Distribution Date and a
repurchased Warranty Receivable, the Deferred Prepayment on such Receivable.
Required Deposit Rating: A rating on short-term unsecured debt obligations
of P-1 by Xxxxx'x Investors Service, Inc.; A-1+ by Standard & Poor's Ratings
Services; and if rated by Fitch, Inc., F-1+ by Fitch, Inc. Any requirement that
short-term unsecured debt obligations have the "Required Deposit Rating" shall
mean that such short-term unsecured debt obligations have the foregoing required
ratings from each of such rating agencies.
Reserve Account: The account designated as such, established and maintained
pursuant to Section 4.07(a) of the Trust Sale and Servicing Agreement.
Reserve Account Initial Deposit: Cash or Eligible Investments having a
value of at least $45,632,663.55.
Reserve Account Property: (i) The Reserve Account and all proceeds thereof
(other than the Investment Earnings thereon) including all cash, investments,
investment property and other amounts held from time to time in the Reserve
Account (whether in the form of deposit accounts, Physical Property, book-entry
securities, Uncertificated Securities, Financial Assets or otherwise) and (ii)
the Reserve Account Initial Deposit and all proceeds thereof (other than the
Investment Earnings thereon).
Responsible Officer: With respect to the Indenture Trustee or the Owner
Trustee, any officer within the Corporate Trust Office of such trustee or with
respect to the Owner Trustee, any agent of the Owner Trustee acting under a
power of attorney, and, with respect to the Servicer, the President, any Vice
President, Assistant Vice President, Secretary, Assistant Secretary or any other
officer or assistant officer of such Person customarily performing functions
similar to those performed by any of the above designated officers and also,
with respect to a particular matter, any other officer to whom such matter is
referred because of such officer's knowledge of and familiarity with the
particular subject.
Retained Certificates: The Certificates retained by the Seller pursuant to
the Trust Agreement, with an initial Certificate Balance of $912,569.94.
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Revolving Note: The Revolving Note issued by XXXX to GMAC under the
Intercompany Advance Agreement.
Revolving Period: The period beginning on the Initial Closing Date and
ending on (but not including) the earlier to occur of (i) July 16, 2003 and (ii)
the date on which an Early Amortization Event occurs.
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 pursuant to which the
payments due from the obligors during any month are allocated between finance
charges and principal on a scheduled basis, without regard to the period of time
which has elapsed since the preceding payment was made, using the actuarial
method.
Scheduled Payment: With respect to a Distribution Date and a Scheduled
Interest Receivable, the payment due in respect of such Scheduled Interest
Receivable due from the Obligor in the related Monthly Period.
Schedule of Additional Receivables: The schedule of Additional Receivables
attached to the First Step Additional Receivables Assignment delivered on each
Additional Closing Date and held as part of the Trust, and on file at the
locations listed on Exhibit A of the Trust Sale and Servicing Agreement, as it
may be amended from time to time.
Schedule of Initial Receivables: The schedule of Initial Receivables
attached to the First Step Initial Receivables Assignment delivered on the
Initial Closing Date and originally held as part of the Trust, and on file at
the locations listed on Exhibit A of the Trust Sale and Servicing Agreement, as
it may be amended from time to time.
Second Step Additional Receivables Assignment: As defined in Section
2.01(b) of the Trust Sale and Servicing Agreement.
Second Step Initial Receivables Assignment: As defined in Section 2.01(a)
of the Trust Sale and Servicing Agreement.
Second Step Receivable Assignments: As defined in Section 2.01(b) of the
Trust Sale and Servicing Agreement.
Second Step Transfer and Servicing Agreement: As defined in the recitals to
the Pooling and Servicing Agreement.
Secretary of State: The Secretary of State of the State of Delaware.
Secured Obligations: Obligations consisting of the principal of and
interest on, and any other amounts owing in respect of, the Notes, equally and
ratably without prejudice, priority or distinction.
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Secured Parties: Each Holder of a Note.
Securities Act: As defined in Section 2.15(a) of the Indenture.
Securities Intermediary: As defined in Section 5.01(b)(i) of the Trust Sale
and Servicing Agreement.
Security Certificate: Has the meaning given such term in Section
8-102(a)(16) of the New York UCC.
Security Entitlement: Has the meaning given such term in Section
8-102(a)(17) of the New York UCC.
Securityholder: A Holder of a Note or a Certificate.
Seller: The Person executing the Trust Sale and Servicing Agreement as the
Seller, or its successor in interest pursuant to Section 3.03 of the Trust Sale
and Servicing Agreement.
Servicer: The Person executing the Trust Sale and Servicing Agreement as
the Servicer, or its successor in interest pursuant to Section 6.02 of the Trust
Sale and Servicing Agreement.
Servicer Default: An event described in Section 7.01 of the Trust Sale and
Servicing Agreement.
Servicer's Accounting: A certificate, completed by and executed on behalf
of the Servicer, in accordance with Section 3.10 of the Pooling and Servicing
Agreement.
Simple Interest Advance: The amount, as of the last day of the related
Monthly Period, which the Servicer is required to advance pursuant to Section
5.04(b) of the Trust Sale and Servicing Agreement.
Simple Interest Method: The method of allocating each monthly payment on a
Simple Interest Receivable to principal and interest pursuant to which the
portion of such payment that is allocated to interest is equal to the product of
the outstanding principal balance thereon multiplied by the fixed rate of
interest applicable to such Receivable multiplied by the period of time elapsed
(expressed as a fraction of a calendar year) since the preceding payment of
interest with respect to such principal balance was made.
Simple Interest Receivable: Any Receivable under which the portion of each
monthly payment allocable to earned interest and the portion allocable to the
Amount Financed is determined in accordance with the Simple Interest Method. For
purposes hereof, all payments with respect to a Simple Interest Receivable shall
be allocated to principal and interest in accordance with the Simple Interest
Method.
Specified Reserve Account Balance: For any Distribution Date, the sum of:
(i) the greater of
27
(a) 1.50% of the outstanding principal balance of the Notes and
the Certificates as of the close of business on that Distribution Date
(after giving effect to all payments and distributions to be made on that
Distribution Date); and
(b) $22,816,331.77;
but in no event more than the outstanding principal balance of the Notes
and the Certificates as of the close of business on that Distribution Date
(after giving effect to all payments and distributions to be made on that
Distribution Date);
and
(ii) during the Revolving Period, if an Accumulation Amount will exist
at the close of business on that Distribution Date, the product of:
(a) the amount on deposit in the Accumulation Account on that
Distribution Date (after giving effect to all payments and distributions to
be made on that Distribution Date); and
(b) the excess of (1) the Weighted Average Note and Certificate
Rate over (2) LIBOR minus 1.00%;
divided by 12.
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: Deutsche Bank AG, New York branch, as swap counterparty
under each Interest Rate Swap, or any successor or replacement Swap Counterparty
from time to time under each Interest Rate Swap.
Swap Counterparty Rights Agreement: The Swap Counterparty Rights Agreement,
dated as of the Closing Date, among the Swap Counterparty, the Issuer, GMAC, as
Servicer, Custodian, and Administrator, the Seller, the Indenture Trustee, and
the Owner Trustee, as amended and supplemented from time to time.
Temporary Notes: The Notes specified in Section 2.3 of the Indenture.
Third Party Instrument: Each Interest Rate Swap, each Contingent Interest
Rate Swap and the Triparty Agreement.
Total Available Amount: With respect to any Distribution Date, the sum of
the Available Interest, the Accumulation Amount and the Available Principal for
such Distribution Date and
28
the amount of all cash or other immediately available funds on deposit in the
Reserve Account immediately prior to such Distribution Date.
Total Servicing Fee: With respect to a Distribution Date, the sum of the
Basic Servicing Fee for such Distribution Date, any unpaid Basic Servicing Fee
for all prior Distribution Dates and Additional Servicing for such Distribution
Date.
Treasury Regulations: The regulations, including proposed or temporary
regulations, promulgated under the Code. References herein to specific
provisions of proposed or temporary regulations shall include analogous
provisions of final Treasury Regulations or other successor Treasury
Regulations.
Triparty Agreement: The Triparty Contingent Assignment Agreement, dated as
of the Initial Closing Date, including all schedules, and confirmations thereto,
among the Trust, the Swap Counterparty and GMAC, as the same may be amended,
supplemented, renewed, extended or replaced from time to time.
Trust: Capital Auto Receivables Asset Trust 2002-3, a Delaware business
trust created by the Certificate of Trust and described in the Trust Agreement.
Trust Agreement: The Trust Agreement, dated as of the Initial Closing Date,
between the Seller and the Owner Trustee, as amended and supplemented from time
to time.
Trust Estate: All money, instruments, rights and other property that are
subject or intended to be subject to the lien and security interest of the
Indenture for the benefit of the Secured Parties (including, without limitation,
all property and interests Granted to the Indenture Trustee), including all
proceeds thereof, and the Reserve Account and the Reserve Account Property
pledged to the Indenture Trustee pursuant to the Trust Sale and Servicing
Agreement.
Trust Indenture Act or TIA: The Trust Indenture Act of 1939 as in force on
the date hereof, unless otherwise specifically provided.
Trust Sale and Servicing Agreement: The Trust Sale and Servicing Agreement,
dated as of the Initial Closing Date, between the Seller, the Servicer and the
Trust, as amended and supplemented from time to time.
UCC: The Uniform Commercial Code as in effect in the relevant jurisdiction
from time to time.
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.
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
29
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
Scheduled Interest 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 day of the related Monthly Period
allocable to principal and minus any Liquidation Proceeds (to the extent
applied to reduce the Principal Balance of such Simple Interest Receivable)
previously received with respect to such Simple Interest Receivable.
Warranty Purchaser: The Person described in Section 2.05 of the Trust Sale
and Servicing Agreement.
Warranty Receivable: A Receivable which the Warranty Purchaser has become
obligated to repurchase pursuant to Section 2.05 of the Trust Sale and Servicing
Agreement.
Weighted Average Note and Certificate Rate: 3.063% per annum.
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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.
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
0000 Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000,
with a copy to:
Manager - Securitization,
General Motors Acceptance Corporation
000 Xxxxxxxxxxx Xxxxxx
00xx Xxxxx, XX: 482-B12-C24
Xxxxxxx, XX 00000,
(b) in the case of the Servicer, the Administrator or the Custodian,
at the following address:
Director - Securitization and Cash Management
General Motors Acceptance Corporation
000 Xxxxxxxxxxx Xxxxxx
00xx Xxxxx, XX: 482-B12-C24
Xxxxxxx, XX 00000,
(c) in the case of the Indenture Trustee, at its Corporate Trust
Office, and
(d) in the case of the Issuer or the Owner Trustee, to the Owner
Trustee at its Corporate Trust Office,
with a copy to:
Deutsche Bank Trust Company Americas,
Attention: Corporate Trust & Agency Services
- Structured Finance Services
00 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
c/o DB Services New Jersey Inc.
Attention: Corporate Trust & Agency Services
- Structured Finance Services
100 Plaza One, MS JCY03-0606
Xxxxxx Xxxx, XX 00000
and with a copy to:
Capital Auto Receivables, Inc.,
Attention: X. X. Xxxxxx, Manager
000 Xxxxxxxxxxx Xxxxxx
00xx Xxxxx, XX: 482-B12-C24
Xxxxxxx, XX 00000
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 Xxxxx'x Investors Service, Inc., to
Xxxxx'x Investors Service, Inc.
ABS Monitoring Department,
00 Xxxxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000,
(f) in the case of Standard & Poor's Ratings Services, to
Standard & Poor's Ratings Services,
00 Xxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Asset Backed Surveillance Department,
(g) in the case of Fitch, Inc., to
Fitch, Inc.,
Xxx Xxxxx Xxxxxx Xxxxx,
Xxx Xxxx, Xxx Xxxx 00000,
Attention: Asset-Backed Surveillance, and
(h) in the case of Swap Counterparty, to
Deutsche Bank, AG
New York Branch
00 Xxxx 00/xx/ Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
33
or at such other address as shall be designated by such Person in a written
notice to the other parties to this Agreement.
Where any Basic Document provides for notice to Noteholders or
Certificateholders of any condition or event, such notice shall be sufficiently
given (unless otherwise herein expressly provided) if it is in writing and
mailed, first-class, postage prepaid to each Noteholder or Certificateholder
affected by such condition or event, at such Person's address as it appears on
the Note Register or Certificate Register, as applicable, not later than the
latest date, and not earlier than the earliest date, prescribed in such Basic
Document for the giving of such notice. If notice to Noteholders or
Certificateholders is given by mail, neither the failure to mail such notice nor
any defect in any notice so mailed to any particular Noteholders or
Certificateholders shall affect the sufficiency of such notice with respect to
other Noteholders or Certificateholders, and any notice that is mailed in the
manner herein provided shall conclusively be presumed to have been duly given
regardless of whether such notice is in fact actually received.
34
