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 2003-3
ISSUER
DATED AS OF AUGUST 14, 2003
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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......................................................................... 4
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 Realization Upon Liquidating Receivables..................................................... 5
Section 2.07 Conditions to Sales of Additional Receivables................................................ 5
ARTICLE III THE SELLER............................................................................................ 7
Section 3.01 Representations of Seller.................................................................... 7
Section 3.02 Liability of Seller.......................................................................... 9
Section 3.03 Merger or Consolidation of, or Assumption of the Obligations of Seller; Amendment of
Certificate of Incorporation................................................................. 9
Section 3.04 Limitation on Liability of Seller and Others................................................. 9
Section 3.05 Seller May Own Notes or Certificates......................................................... 10
ARTICLE IV SERVICER'S COVENANTS; DISTRIBUTIONS; RESERVE ACCOUNT; STATEMENTS TO NOTEHOLDERS
AND CERTIFICATEHOLDERS ........................................................................................... 10
Section 4.01 Annual Statement as to Compliance; Notice of Servicer Default................................ 10
Section 4.02 Annual Independent Accountants' Report....................................................... 10
Section 4.03 Access to Certain Documentation and Information Regarding the Receivables.................... 11
Section 4.04 Amendments to Schedule of Receivables........................................................ 11
Section 4.05 Assignment of Administrative Receivables and Warranty Receivables............................ 12
Section 4.06 Distributions................................................................................ 12
Section 4.07 Reserve Account.............................................................................. 15
Section 4.08 Net Deposits................................................................................. 16
Section 4.09 Statements to Securityholders................................................................ 17
ARTICLE V CERTIFICATEHOLDER AND NOTEHOLDER STATEMENTS AND ACCOUNTS; COLLECTIONS, DEPOSITS AND INVESTMENTS;
ADVANCES.......................................................................................................... 18
Section 5.01 Establishment of Accounts.................................................................... 18
Section 5.02 Collections.................................................................................. 22
Section 5.03 Investment Earnings and Supplemental Servicing Fees.......................................... 23
Section 5.04 Monthly Advances............................................................................. 23
Section 5.05 Additional Deposits.......................................................................... 24
ARTICLE VI LIABILITIES OF SERVICER AND OTHERS..................................................................... 24
Section 6.01 Liability of Servicer; Indemnities........................................................... 24
Section 6.02 Merger or Consolidation of, or Assumption of the Obligations of the Servicer................. 25
Section 6.03 Limitation on Liability of Servicer and Others............................................... 26
Section 6.04 Delegation of Duties......................................................................... 27
Section 6.05 Servicer Not to Resign....................................................................... 27
ARTICLE VII DEFAULT............................................................................................... 27
Section 7.01 Servicer Defaults............................................................................ 27
Section 7.02 Consequences of a Servicer Default........................................................... 28
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Section 7.03 Indenture Trustee to Act; Appointment of Successor........................................... 29
Section 7.04 Notification to Noteholders and Certificateholders........................................... 29
Section 7.05 Waiver of Past Defaults...................................................................... 29
Section 7.06 Repayment of Advances........................................................................ 30
ARTICLE VIII TERMINATION.......................................................................................... 30
Section 8.01 Optional Purchase of All Receivables; Insolvency of Seller; Termination of Trust............. 30
ARTICLE IX MISCELLANEOUS PROVISIONS............................................................................... 32
Section 9.01 Amendment.................................................................................... 32
Section 9.02 Protection of Title to Trust................................................................. 33
Section 9.03 Notices...................................................................................... 35
Section 9.04 GOVERNING LAW................................................................................ 35
Section 9.05 Severability of Provisions................................................................... 35
Section 9.06 Assignment................................................................................... 36
Section 9.07 Third-Party Beneficiaries.................................................................... 36
Section 9.08 Separate Counterparts........................................................................ 36
Section 9.09 Headings and Cross-References................................................................ 36
Section 9.10 Assignment to Indenture Trustee.............................................................. 36
Section 9.11 No Petition Covenants........................................................................ 36
Section 9.12 Limitation of Liability of Indenture Trustee and Owner Trustee............................... 36
Section 9.13 Tax Treatment................................................................................ 37
Section 9.14 Furnishing Documents......................................................................... 37
EXHIBIT A Schedule of Receivables
EXHIBIT B Form of Second Step Initial Receivables Assignment
EXHIBIT C Form of Second Step Additional Receivables Assignment
EXHIBIT D Form of Officer's Certificate
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 14, 2003
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 2003-3, a Delaware
statutory trust (the "Issuer").
WHEREAS, on the Initial Closing Date GMAC has sold the Initial
Receivables, and from time to time thereafter on each 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 the Initial Receivables to the
Issuer on the Initial Closing Date and the Additional Receivables on each
Additional Closing Date relating to the Revolving Period in exchange for the
Notes and Certificates pursuant to the terms of this Agreement;
WHEREAS, the Servicer desires to perform the servicing obligations set
forth herein for and in consideration of the fees and other benefits set forth
in this Agreement and in the Pooling and Servicing Agreement; and
WHEREAS, Seller and the Issuer wish to set forth the terms pursuant to
which the Receivables are to be sold by the Seller to the Issuer and serviced by
the Servicer.
NOW, THEREFORE, in consideration of the foregoing, the other good and
valuable consideration and the mutual terms and covenants contained herein, the
parties hereto agree as follows:
ARTICLE I
CERTAIN DEFINITIONS
Section 1.01 Definitions. Certain capitalized terms used in the
above recitals and in this Agreement are defined in and shall have the
respective meanings assigned to them in Part I of Appendix A to this Agreement.
All references herein to "the Agreement" or "this Agreement" are to this Trust
Sale and Servicing Agreement as it may be amended, supplemented or modified from
time to time, the exhibits hereto and the capitalized terms used herein which
are defined in such Appendix A, and all references herein to Articles, Sections
and subsections are to Articles, Sections or subsections of this Agreement
unless otherwise specified. The rules of construction set forth in Part II of
such Appendix A shall be applicable to this Agreement.
ARTICLE II
CONVEYANCE OF RECEIVABLES; ISSUANCE OF SECURITIES
Section 2.01 Conveyance of Receivables.
(a) Initial Receivables. In consideration of the Issuer's
delivery of the Notes and the Certificates to, or upon the order of, the Seller,
the Seller does hereby enter into this
Agreement and the related Second Step Initial Receivables Assignment in the form
attached as Exhibit B to this Agreement (the "Second Step Initial Receivables
Assignment") and agrees to fulfill all of its obligations hereunder and
thereunder and to sell, transfer, assign and otherwise convey to the Issuer,
without recourse:
(i) all right, title and interest of the Seller
in, to and under the Initial Receivables listed on the Schedule of Initial
Receivables and (a) in the case of Initial Receivables that are Scheduled
Interest Receivables, all monies due thereunder on and after the Initial Cutoff
Date and (b) in the case of Initial Receivables that are Simple Interest
Receivables, all monies received thereon on and after the Initial Cutoff Date,
in each case exclusive of any amounts allocable to the premium for physical
damage insurance force-placed by the Servicer covering any related Financed
Vehicle;
(ii) the interest of the Seller in the security
interests in the Financed Vehicles granted by Obligors pursuant to the Initial
Receivables and, to the extent permitted by law, any accessions thereto;
(iii) the interest of the Seller in any proceeds
from claims on any physical damage, credit life, credit disability or other
insurance policies covering related Financed Vehicles or Obligors;
(iv) the interest of the Seller in any proceeds
from recourse against Dealers on the Initial Receivables;
(v) all right, title and interest of the Seller
in, to and under the Pooling and Servicing Agreement, First Step Receivables
Assignments, and the Custodian Agreement, including the right of the Seller to
cause GMAC to repurchase Receivables under certain circumstances;
(vi) the right to purchase Additional Receivables
during the Revolving Period at a price equal to the Additional Receivables
Discounted Principal Balance of such Additional Receivables; 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 2.07, 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 for such date,
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 delivered on or prior to the related Additional Closing Date and (a)
in the case of Additional Receivables that are
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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 Cutoff Date, in each case exclusive of any amounts
allocable to the premium for physical damage insurance force-placed by the
Servicer covering any related Financed Vehicle;
(ii) the interest of the Seller in the security
interests in the Financed Vehicles granted by Obligors pursuant to the
Additional Receivables and, to the extent permitted by law, any accessions
thereto;
(iii) the interest of the Seller in any proceeds
from claims on any physical damage, credit life, credit disability or other
insurance policies covering related Financed Vehicles or Obligors;
(iv) the interest of the Seller in any proceeds
from recourse against Dealers on Additional Receivables;
(v) all right, title and interest of the Seller
in, to and under the related First Step Additional Receivables Assignment; and
(vi) 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 for the purpose of applicable bankruptcy,
insolvency, reorganization and other similar laws, so that the beneficial
interest in and title to the Receivables shall not be part of the Seller's
estate in the event of the filing of a bankruptcy petition by or against the
Seller under any bankruptcy law.
(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 each 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
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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 will
accept all consideration to be conveyed pursuant to Section 2.01(b), and
declares that the Issuer shall hold such consideration upon the trust set forth
in the Trust Agreement for the benefit of Certificateholders, subject to the
terms and conditions of the Indenture, this Agreement and the related Second
Step Receivables Assignments and the rights of the Noteholders with respect
thereto. The Issuer hereby agrees to and accepts the appointment and
authorization of GMAC as Servicer under Section 3.01 of the Pooling and
Servicing Agreement. The parties agree that this Agreement, the Second Step
Receivables Assignments, the Indenture, the Trust Agreement, the Notes and the
Certificates constitute the Further Transfer and Servicing Agreements for
purposes of the Pooling and Servicing Agreement and that the rights, duties and
obligations of GMAC as Servicer under the Pooling and Servicing Agreement are
subject to the provisions of Sections 6.02, 6.04, 6.05, 9.01 and Article VII
hereof.
Section 2.04 Representations and Warranties as to the Receivables.
Pursuant to Section 2.01(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
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Receivable from the Issuer on the related Distribution Date. The repurchase
price to be paid by the breaching party (the "Warranty Purchaser") shall be an
amount equal to the Warranty Payment calculated as of the last day of the
related Monthly Period. Upon repurchase and payment of such Warranty Payment,
the Warranty Purchaser shall be entitled to receive the Released Warranty
Amount, if any. It is understood and agreed that the obligation of the Warranty
Purchaser to repurchase any Receivable as to which a breach has occurred and is
continuing, and the obligation of the Seller and the Servicer to enforce GMAC's
obligation to repurchase such Receivables pursuant to the Pooling and Servicing
Agreement shall, if such obligations are fulfilled, constitute the sole remedy
against the Seller, the Servicer or GMAC for such breach available to the
Issuer, the Financial Parties, the Owner Trustee or the Indenture Trustee. The
Servicer also acknowledges its obligations to repurchase Administrative
Receivables from the Issuer pursuant to Section 3.08 of the Pooling and
Servicing Agreement.
Section 2.06 Realization Upon Liquidating Receivables. The
Servicer shall use all reasonable efforts, consistent with its customary
servicing procedures, to repossess or take other similar action with respect to
any Financed Vehicle that it has reasonably determined should be repossessed or
otherwise converted following a default under the Receivable secured by the
Financed Vehicle. The Servicer is authorized to follow such practices, policies
and procedures as it customarily follows with respect to comparable automotive
receivables that it services for itself or others, which practices, policies and
procedures may include reasonable efforts to realize upon any recourse to
Dealers, selling the related Financed Vehicle at public or private sale and the
taking of other actions by the Servicer in order to realize upon such a
Receivable. The Servicer is hereby authorized to exercise its discretion
consistent with its customary servicing procedures and the terms of the Basic
Documents, in servicing Liquidating Receivables so as to maximize the net
collection of those Liquidating Receivables, including the discretion to choose
to sell or not to sell any of the Liquidating Receivables on behalf of the
Issuer. The Servicer shall not be liable for any such exercise of its discretion
made in good faith and in accordance with such servicing procedures. The
foregoing is subject to the provision that, in any case in which the Financed
Vehicle shall have suffered damage, the Servicer shall not expend funds in
connection with any repair or towards the repossession of such Financed Vehicle
unless it shall determine in its discretion and in accordance with such
servicing procedures that such repair and/or repossession shall increase the
proceeds of liquidation of the related Receivable by an amount greater than the
amount of such expenses. The Servicer shall be entitled to receive Liquidation
Expenses with respect to each Liquidating Receivable at such time as the
Receivable becomes a Liquidating Receivable.
Section 2.07 Conditions to Sales of Additional Receivables The
Seller shall sell, transfer, assign and otherwise convey to the Trust on each
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;
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(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 GMAC or one of its
subsidiaries or a Dealer for the retail sale of a Financed Vehicle in the
ordinary course of business, was fully and properly executed by the parties
thereto, if not originated by GMAC, was purchased by GMAC from one of its
subsidiaries under the or from such Dealer under an existing Dealer Agreement,
and was validly assigned by such subsidiary or such Dealer to GMAC in accordance
with its terms, (ii) will have created a valid, binding and enforceable first
priority security interest in favor of GMAC in the Financed Vehicle, which
security interest is assignable by GMAC to 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 72 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 Additional Receivable in excess of $25.00 have been received within 30
days of the scheduled payment date, nor charged off by GMAC;
(d) the Revolving Period shall be in effect;
(e) each of the representations and warranties made by
the Seller pursuant to Section 3.01 of this Agreement and by GMAC pursuant to
Sections 4.01 and 4.02 of the Pooling and Servicing Agreement, with respect to
the Seller, GMAC and the Additional Receivables, as applicable, shall be true
and correct as of the date as of which such representations and warranties are
made;
(f) the Seller shall, at its own expense, on or prior to
the 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;
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(g) the Seller shall have taken any action required to
maintain the first perfected ownership interest of the Issuer in the Trust
Property and the first priority perfected security interest of the Indenture
Trustee in the Collateral;
(h) no selection procedures believed by the Seller to be
adverse to the interests of the Issuer, the Noteholders or the
Certificateholders shall have been utilized in selecting the Additional
Receivables;
(i) the addition of the Additional Receivables will not
result in any material adverse tax consequences to the Issuer, the Noteholders
or the Certificateholders;
(j) the Seller shall have delivered to the Owner Trustee
and the Indenture Trustee an Officer's Certificate confirming the satisfaction
of each condition specified in this Section 2.07 substantially in the form
attached hereto as Exhibit D; and
(k) all the conditions to the transfer of the Additional
Receivables by GMAC to the Seller specified in Section 6.01 of the Pooling and
Servicing Agreement shall be satisfied.
ARTICLE III
THE SELLER
Section 3.01 Representations of Seller. The Seller makes the
following representations on which the Issuer is relying in acquiring the
Receivables and issuing the Notes and the Certificates. The following
representations in clause (a) speak as of the Initial Closing Date and each
Additional Closing Date. The representations in clause (b) speak as of the
Initial Closing Date, with respect to the Initial Receivables, and as of the
related 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 properties are presently
owned and such business is presently conducted, and had at all relevant times,
and now has, power, authority and legal right to acquire and own the
Receivables;
(ii) Due Qualification. The Seller is duly
qualified to do business as a foreign corporation in good standing, and has
obtained all necessary licenses and approvals in all jurisdictions in which the
ownership or lease of property or the conduct of its business requires such
qualification;
(iii) Power and Authority. The Seller has the
power and authority to execute and deliver the Basic Documents to which it is a
party and to carry out their terms, the Seller has full power and authority to
sell and assign the property to be sold and assigned to and deposited with the
Issuer as part of the Trust and has duly authorized such sale and assignment to
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the Issuer by all necessary corporate action; and the execution, delivery and
performance of the Basic Documents to which it is a party have been duly
authorized by the Seller by all necessary corporate action;
(iv) Valid Sale; Binding Obligations. This
Agreement and the Second Step Receivables Assignments, when duly executed and
delivered, shall constitute a valid sale, transfer and assignment of the
Receivables, enforceable against creditors of and purchasers from the Seller;
and the Basic Documents to which the Seller is a party, when duly executed and
delivered, shall constitute legal, valid and binding obligations of the Seller
enforceable in accordance with their terms, except as enforceability may be
limited by bankruptcy, insolvency, reorganization or other similar laws
affecting the enforcement of creditors' rights in general and by general
principles of equity, regardless of whether such enforceability is considered in
a proceeding in equity or at law;
(v) No Violation. The consummation of the
transactions contemplated by the Basic Documents to which the Seller is a party
and the fulfillment of the terms of the Basic Documents to which the Seller is a
party shall not conflict with, result in any breach of any of the terms and
provisions of or constitute (with or without notice or lapse of time) a default
under, the certificate of incorporation or by-laws of the Seller, or any
indenture, agreement or other instrument to which the Seller is a party or by
which it is bound, or result in the creation or imposition of any Lien upon any
of its properties pursuant to the terms of any such indenture, agreement or
other instrument, other than this Agreement and the Second Step Receivables
Assignments, or violate any law or, to the best of the Seller's knowledge, any
order, rule or regulation applicable to the Seller of any court or of any
federal or state regulatory body, administrative agency or other governmental
instrumentality having jurisdiction over the Seller or any of its properties;
and
(vi) No Proceedings. To the Seller's knowledge,
there are no proceedings or investigations pending, or threatened, before any
court, regulatory body, administrative agency or other tribunal or governmental
instrumentality having jurisdiction over the Seller or its properties (i)
asserting the invalidity of any Basic Document, (ii) seeking to prevent the
issuance of the Notes or the Certificates or the consummation of any of the
transactions contemplated by any Basic Document, (iii) seeking any determination
or ruling that might materially and adversely affect the performance by the
Seller of its obligations under, or the validity or enforceability, of any Basic
Document, or (iv) seeking to adversely affect the federal income tax attributes
of the Notes or the Certificates.
(b) Representations and Warranties as to the Receivables.
(i) Good Title. No Receivable has been sold,
transferred, assigned or pledged by the Seller to any Person other than the
Issuer; immediately prior to the conveyance of the Receivables pursuant to this
Agreement and the Second Step Receivables Assignments, the Seller had good and
marketable title thereto, free of any Lien; and, upon execution and delivery of
this Agreement and the Second Step Receivables Assignments by the Seller, the
Issuer shall have all of the right, title and interest of the Seller in, to and
under the Receivables, the unpaid indebtedness evidenced thereby and the
collateral security therefor, free of any Lien.
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(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 and the other Basic Documents to which it is a party, shall be the
successor to the Seller under this Agreement without the execution or filing of
any document or any further act on the part of any of the parties to this
Agreement. The Seller shall provide 10 days prior notice of any merger,
consolidation or succession pursuant to this Section 3.03 to the Rating
Agencies.
(b) The Seller hereby agrees that during the term of this
Agreement it shall not (i) take any action prohibited by Article Fourth of its
certificate of incorporation, (ii) without the prior written consent of the
Indenture Trustee and the Owner Trustee and without giving prior written notice
to the Rating Agencies, amend Article Third or Fourth of its certificate of
incorporation or (iii) incur any indebtedness, or assume or guaranty
indebtedness of any other entity, other than pursuant to the Revolving Note and
the Intercompany Advance Agreement (without giving effect to any amendment to
such Note or Agreement after the date hereof, unless the Rating Agency Condition
was satisfied in connection therewith), if such action would result in a
downgrading of the then current rating of any class of the Notes.
Section 3.04 Limitation on Liability of Seller and Others. The
Seller and any director or officer or employee or agent of the Seller may rely
in good faith on the advice of counsel or on any document of any kind prima
facie properly executed and submitted by any Person respecting any matters
arising under this Agreement and the Second Step Receivables Assignments. The
Seller and any director or officer or employee or agent of the Seller shall be
reimbursed by the Indenture Trustee or Owner Trustee, as applicable, for any
contractual damages, liability or expense incurred by reason of such trustee's
willful misfeasance, bad faith or gross negligence (except errors in judgment)
in the performance of its duties under this Agreement, the Second Step
Receivables Assignments, the Indenture or the Trust Agreement, or by reason of
reckless disregard of its obligations and duties under this Agreement, the
Second Step Receivables Assignments, the Indenture or the Trust Agreement. The
Seller shall not be under any obligation to appear in, prosecute or defend any
legal action that is not incidental to its obligations as Seller of the
Receivables under this Agreement and the Second Step Receivables Assignments and
that in its opinion may involve it in any expense or liability.
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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,
2004, 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.
(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.
(c) The Administrator shall prepare, and cause the
Servicer to execute and deliver all certificates or other documents required to
be delivered by the Issuer pursuant to the Xxxxxxxx-Xxxxx Act of 2002 or the
rules and regulations promulgated pursuant thereto.
Section 4.02 Annual Independent Accountants' Report.
(a) The Servicer shall cause a firm of independent
accountants, who may also render other services to the Servicer or the Seller,
to deliver to the Issuer, and the Rating
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Agencies, on or before August 15 of each year, beginning August 15, 2004 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.
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
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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, the amount, if any, of any payments due in respect of an Early
Termination Date payable by the Trust under any Interest Rate Swap and during
the Revolving Period, the Accumulation Amount, and all other amounts required to
determine the amounts, if any, to be deposited in or paid from each of the
Collection Account, the Note Distribution Account, the Certificate Distribution
Account, the Reserve Account, the Payment Ahead Servicing Account, if
applicable, and during the Revolving Period, the Accumulation Account, on or
before the related Distribution Date (or, in the case of payments due under any
Interest Rate Swaps, if any, on the Business Day preceding the Distribution
Date).
(b) On or before each Determination Date related to the
Revolving Period, the Servicer shall calculate the 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
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Distribution Date) as a percentage of the Initial Aggregate Discounted Principal
Balance of the Receivables.
(c) 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).
(i) 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).
(ii) 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.
(iii) On or before each Distribution Date (or,
with respect to funds necessary to make payments due, if any, under any Interest
Rate Swaps for the related payment period thereunder, the amount, if any, of any
payments due in respect of any Early Termination Date payable by the Trust under
any Interest Rate Swap and during the Revolving Period, on the Business Day
preceding the Distribution Date), the Indenture Trustee shall withdraw from the
Reserve Account and deposit in the Collection Account the 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 amount, if any, of any payments due in respect of any
Early Termination Date payable by the Trust under any Interest Rate Swap and
during the Revolving Period, the Additional Receivables Discounted Principal
Balance and the Certificateholders' Principal Distributable Amount for such
Distribution Date exceeds (y) the sum of the Available Interest, the
Accumulation Amount and Available Principal for such Distribution Date.
(iv) On or before each Distribution Date related
to the Revolving Period and on the first Distribution Date during the
Amortization Period, the Indenture Trustee shall transfer all amounts in the
Accumulation Account to the Collection Account.
(d) Except as otherwise provided in Section 4.06(e), on
each Distribution Date (or in the case of payments to the Swap Counterparty
pursuant to clause (ii) below, if any, on the
13
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 or to be
received from the Swap Counterparty in connection with an Early Termination Date
of any Interest Rate Swaps related to the Notes, allocated between the Note
Distribution Account and the Swap Counterparty in proportion to the amounts in
respect of the Aggregate Noteholders' Interest Distributable Amount and owing to
the Swap Counterparty in connection with such Early Termination Date;
(iv) fourth, to the extent of the Total Available
Amount (as such amount has been reduced by the distributions described in
clauses (i), (ii) and (iii) above), (a) to the Certificate Distribution Account
in respect of the Certificateholders' Interest Distributable Amount, and (b) to
the Swap Counterparty in respect of any payments due to the Swap Counterparty or
to be received from the Swap Counterparty in connection with an Early
Termination Date of any Interest Rate Swaps related to the Certificates,
allocated between the Certificate Distribution Account and the Swap Counterparty
in proportion to the amounts owing in respect of the Certificateholders'
Interest Distributable Amount and to the Swap Counterparty in connection with
such Early Termination Date;
(v) fifth, related to 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, related to 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;
(vii) seventh, related to the Amortization Period
only, to the Note Distribution Account, to the extent of the Total Available
Amount (as such amount has been
14
reduced by the distributions described in clauses (i) through (vi) above), the
Aggregate Noteholders' Principal Distributable Amount;
(viii) eighth, related to the Amortization Period
only, after the Notes have been paid in full, 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, as provided for under the Indenture. Amounts distributable to the
Swap Counterparty pursuant to Section 4.06(d)(iv), if any, shall continue to be
so distributed.
Section 4.07 Reserve Account.
(a) There shall be established in the name of and
maintained with the Indenture Trustee for the benefit of the Noteholders an
Eligible Deposit Account known as the Capital Auto Receivables Asset Trust
2003-3 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 in immediately available funds 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
15
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 and the other Basic Documents.
(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
16
all of the above described remittances and distributions as if the amounts were
deposited and/or transferred separately.
Section 4.09 Statements to Securityholders.
(a) On each Distribution Date, the Owner Trustee shall
(except as otherwise provided in the Trust Agreement) deliver to each
Certificateholder, and the Indenture Trustee shall include with each
distribution to each Noteholder, a statement (which statement shall also be
provided to the Rating Agencies) prepared by the Servicer based on information
in the Servicer's Accounting furnished pursuant to Section 3.10 of the Pooling
and Servicing Agreement. Each such statement to be delivered to
Certificateholders and Noteholders, respectively, shall set forth the following
information concerning the Certificates or the Notes, as appropriate, with
respect to such Distribution Date or the preceding Monthly Period:
(i) the amount of such distribution allocable to
principal of each class of the Notes 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 net amount, if any, of any payments due
under all Interest Rate Swaps (specifying, if applicable, any amounts owing as a
result of an Early Termination Date under the Notes or the Certificates);
(iv) 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;
(v) the Note Principal Balance for each class of
Notes, the Aggregate Note Principal Balance, the Certificate Balance, the Note
Pool Factor for each class of Notes and the Certificate Pool Factor, each as of
such Distribution Date after giving effect to all payments described under
clause (i) above;
(vi) 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;
(vii) the aggregate amount in the Payment Ahead
Servicing Account or on deposit with the Servicer as Payments Ahead and the
change in such amount from the previous Distribution Date;
(viii) the amount of Outstanding Monthly Advances
on such Distribution Date;
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(ix) the amount of the Total Servicing Fee paid
to the Servicer with respect to the related Monthly Period;
(x) the amount, if any, distributed to
Noteholders and Certificateholders from amounts on deposit in the Reserve
Account;
(xi) the balance of the Reserve Account on such
Distribution Date (after giving effect to changes therein on such Distribution
Date);
(xii) LIBOR for such Distribution Date and the
interest rate on the Floating Rate Notes;
(xiii) the Additional Receivables Discounted
Principal Balance for such Distribution Date (related to the Revolving Period
only);
(xiv) the balance of the Accumulation Account
after giving effect to payments to and distributions from such account on such
Distribution Date (related to the Revolving Period only); and
(xv) whether the Revolving Period has terminated
early as a result of the occurrence of an
Early Amortization Event (related to the Revolving Period only).
Each amount set forth pursuant to clauses (i), (ii), (iv), (vii), and (viii)
above shall be expressed as a dollar amount per $1,000 of initial principal
amount of the Notes 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 2003-3 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
2003-3 Note Distribution Account (the "Note Distribution
18
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 2003-3 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.
(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 2003-3 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 2003-3 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
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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.
(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
20
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 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
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and in all proceeds thereof (except Investment Earnings). Except as otherwise
provided herein or in the Trust Agreement, the Certificate Distribution Account
shall be under the sole dominion and control of the Owner Trustee for the
benefit of the Certificateholders. If, at any time, the Certificate Distribution
Account ceases to be an Eligible Deposit Account, the Owner Trustee (or the
Seller on behalf of the Owner Trustee, if the Certificate Distribution Account
is not then held by the Owner Trustee or an Affiliate thereof) shall within 10
Business Days (or such longer period, not to exceed 30 calendar days, as to
which each Rating Agency may consent) establish a new Certificate Distribution
Account as an Eligible Deposit Account and shall transfer any cash and/or any
investments to such new Certificate Distribution Account.
(d) The Indenture Trustee, the Owner Trustee, the
Securities Intermediary and each other Eligible Deposit Institution with whom a
Designated Account or the Certificate Distribution Account is maintained waives
any right of set-off, counterclaim, security interest or bankers' lien to which
it might otherwise be entitled.
(e) At any time that each Monthly Remittance Condition is
satisfied, then (x) Payments Ahead need not be remitted to and deposited in the
Payment Ahead Servicing Account but instead may be remitted to and held by the
Servicer and (y) the Servicer shall not be required to segregate or otherwise
hold separate any Payments Ahead, but the Servicer shall be required to remit
Applied Payments Ahead to the Collection Account in accordance with Section
4.06(b)(ii). The Servicer shall promptly notify the Indenture Trustee if any
Monthly Remittance Condition ceases to be satisfied such that the Payments Ahead
will not be remitted in accordance with the prior sentence. Commencing with the
first day of the first Monthly Period that begins at least two Business Days
after the day on which any Monthly Remittance Condition ceases to be satisfied,
the Servicer shall deposit in the Payment Ahead Servicing Account the amount of
any Payments Ahead then held by it, and thereafter, for so long as a Monthly
Remittance Condition continues to be unsatisfied, the Servicer shall deposit any
additional Payments Ahead in the Payments Ahead Servicing Account within two
Business Days after receipt thereof. Notwithstanding the foregoing, if a Monthly
Remittance Condition is unsatisfied the Servicer may utilize, with respect to
the Payments Ahead, an alternative remittance schedule (which may include a
remittance schedule utilized by the Servicer at a time when the Monthly
Remittance Conditions were satisfied), if the Servicer provides to the Indenture
Trustee written confirmation from the Rating Agencies that such alternative
remittance schedule will not result in the downgrading or withdrawal by the
Rating Agencies of the ratings then assigned to either the Notes or the
Certificates. Neither the Indenture Trustee nor the Owner Trustee shall be
deemed to have knowledge of any Servicer Default unless such trustee has
received notice of such event or circumstance from the other trustee, the Seller
or the Servicer in an officer's certificate or from Certificateholders whose
Certificates evidence not less than 25% of the Voting Interests as of the close
of the preceding Distribution Date or from Noteholders whose Notes evidence not
less than 25% of the Outstanding Amount of the Notes as of the close of the
preceding Distribution Date or unless a Responsible Officer in the Corporate
Trust Office of the Indenture Trustee with knowledge hereof and familiarity
herewith has actual knowledge of such event or circumstance.
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
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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 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
23
Monthly Period on all Simple Interest Receivables held by the Issuer (assuming
that the payment on each such Receivable was received on its respective due
date) over (ii) all payments received during such Monthly Period on all Simple
Interest Receivables held by the Issuer to the extent allocable to interest
(such excess, a "Simple Interest Advance"). In addition, Liquidation Proceeds
with respect to a Simple Interest Receivable allocable to accrued and unpaid
interest thereon (but not including interest for the then current Monthly
Period) shall be paid to the Servicer but only to the extent of any Outstanding
Simple Interest Advances. The Servicer shall not make any advance with respect
to principal of any Simple Interest Receivable. Excess Simple Interest
Collections shall be paid to the Servicer as provided in Section 3.11(b) of the
Pooling and Servicing Agreement.
Section 5.05 Additional Deposits. The Servicer shall deposit in
the Collection Account the aggregate Monthly Advances pursuant to Sections
5.04(a) and (b) and the aggregate amounts to be paid to the Issuer pursuant to
Section 3.03 of the Pooling and Servicing Agreement. The Servicer and the Seller
shall deposit in the Collection Account the aggregate Administrative Purchase
Payments and Warranty Payments with respect to Administrative Receivables and
Warranty Receivables, respectively. All such deposits with respect to a Monthly
Period shall be made in immediately available funds on or before the
Distribution Date related to such Monthly Period (or, to the extent such funds
are necessary to make payments due, if any, under any Interest Rate Swaps for
the related Monthly Period, on or before the Business Day preceding the
Distribution Date).
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
24
fees or other compensation payable to any such Person) and costs and expenses in
defending against the same;
(iii) The Servicer shall indemnify, defend and
hold harmless the Indenture Trustee, the Owner Trustee, the Issuer, the
Noteholders and the Certificateholders from and against any and all costs,
expenses, losses, claims, damages, and liabilities to the extent that such cost,
expense, loss, claim, damage, or liability arose out of, or was imposed upon the
Indenture Trustee, the Owner Trustee, the Issuer, the Noteholders or the
Certificateholders through the negligence, willful misfeasance or bad faith of
the Servicer in the performance of its duties under this Agreement, the Pooling
and Servicing Agreement, the Indenture or the Trust Agreement or any other Basic
Document or by reason of reckless disregard of its obligations and duties under
this Agreement, the Pooling and Servicing Agreement, the Indenture, the Trust
Agreement or any other Basic Document; and
(iv) The Servicer shall indemnify, defend and
hold harmless the Indenture Trustee and the Owner Trustee, and their respective
agents and servants, from and against all costs, expenses, losses, claims,
damages and liabilities arising out of or incurred in connection with (x) in the
case of the Owner Trustee, the Indenture Trustee's performance of its duties
under the Indenture or any other Basic Document, (y) in the case of the
Indenture Trustee, the Owner Trustee's performance of its duties under the Trust
Agreement or (z) the acceptance, administration or performance by, or action or
inaction of, the Indenture Trustee or the Owner Trustee, as applicable, of the
trusts and duties contained in this Agreement, the Basic Documents, the
Indenture (in the case of the Indenture Trustee), including the administration
of 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
25
obligation of the Servicer under this Agreement and the Pooling and Servicing
Agreement, shall be the successor to the Servicer under this Agreement and the
Pooling and Servicing Agreement without the execution or filing of any paper or
any further act on the part of any of the parties to this Agreement, anything in
this Agreement or in the Pooling and Servicing Agreement to the contrary
notwithstanding. The Servicer shall provide notice of any merger, consolidation
or succession pursuant to this Section 6.02 to the Rating Agencies.
Section 6.03 Limitation on Liability of Servicer and Others.
(a) Neither the Servicer nor any of the directors or
officers or employees or agents of the Servicer shall be under any liability to
the Issuer, the Noteholders or the Certificateholders, except as specifically
provided in this Agreement and in the Pooling and Servicing Agreement, for any
action taken or for refraining from the taking of any action pursuant to this
Agreement, the Pooling and Servicing Agreement, the Indenture or the Trust
Agreement or for errors in judgment; provided, however, that this provision
shall not protect the Servicer or any such Person against any liability that
would otherwise be imposed by reason of willful misfeasance, bad faith or
negligence (except errors in judgment) in the performance of duties or by reason
of reckless disregard of obligations and duties under this Agreement, the
Pooling and Servicing Agreement, the Indenture, the Trust Agreement or any other
Basic Document. The Servicer and any director, officer or employee or agent of
the Servicer may rely in good faith on the advice of counsel or on any document
of any kind prima facie properly executed and submitted by any Person respecting
any matters arising under this Agreement or the Pooling and Servicing Agreement.
(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.
26
(d) The Applicable Trustee shall distribute out of the
Collection Account on a Distribution Date any amounts permitted for
reimbursement pursuant to Section 6.03(c) not therefor reimbursed; provided,
however, that the Applicable Trustee shall not distribute such amounts if the
amount on deposit in the Reserve Account (after giving effect to all deposits
and withdrawals pursuant to Sections 4.06(b) and (c) and Section 4.07(e), on
such Distribution Date) is greater than zero but less than the Specified Reserve
Account Balance for such Distribution Date.
Section 6.04 Delegation of Duties. So long as GMAC acts as
Servicer, the Servicer may, at any time without notice or consent, delegate any
duties under this Agreement or under the Pooling and Servicing Agreement to any
corporation or other Person more than 50% of the voting stock (or, if not a
corporation, other voting interests) of which is owned, directly or indirectly,
by General Motors. The Servicer may at any time perform specific duties as
Servicer through sub-contractors who are in the business of servicing automotive
receivables; provided, however, that no such delegation shall relieve the
Servicer of its responsibility with respect to such duties.
Section 6.05 Servicer Not to Resign. Subject to the provisions of
Section 7.02, the Servicer shall not resign from the obligations and duties
imposed on it by this Agreement and the Pooling and Servicing Agreement as
Servicer except upon determination that the performance of its duties under 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
27
Servicer, as applicable, and to the Indenture Trustee or the Owner Trustee by
Noteholders whose Notes evidence not less than 25% of the Outstanding Amount of
the Notes as of the close of the preceding Distribution Date or by
Certificateholders whose Certificates evidence not less than 25% of the Voting
Interests as of the close of the preceding Distribution Date;
(c) the entry of a decree or order by a court or agency
or supervisory authority having jurisdiction in the premises for the appointment
of a conservator, receiver or liquidator for the Seller or the Servicer, in any
insolvency, readjustment of debt, marshalling of assets and liabilities or
similar proceedings, or for the winding up or liquidation of their respective
affairs, and the continuance of any such decree or order unstayed and in effect
for a period of 90 consecutive days; or
(d) the consent by the Seller or the Servicer to the
appointment of a conservator or receiver or liquidator in any insolvency,
readjustment of debt, marshalling of assets and liabilities, or similar
proceedings of or relating to the Seller or the Servicer or of or relating to
substantially all of their respective property; or the Seller or the Servicer
shall admit in writing its inability to pay its debts generally as they become
due, file a petition to take advantage of any applicable insolvency or
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
28
made during the period prior to the notice pursuant to this Section 7.02 which
terminates the obligation and rights of the Servicer under this Agreement.
Section 7.03 Indenture Trustee to Act; Appointment of Successor.
On and after the time the Servicer receives a notice of termination pursuant to
Section 7.02, the Indenture Trustee shall be the successor in all respects to
the Servicer in its capacity as servicer under this Agreement and the Pooling
and Servicing Agreement and the transactions set forth or provided for in this
Agreement and the Pooling and Servicing Agreement, and shall be subject to all
the responsibilities, restrictions, duties and liabilities relating thereto
placed on the Servicer by the terms and provisions of this Agreement and the
Pooling and Servicing Agreement. As compensation therefor, the Indenture Trustee
shall be entitled to such compensation (whether payable out of the Collection
Account or otherwise) as the Servicer would have been entitled to under this
Agreement if no such notice of termination had been given including, but not
limited to, the Total Servicing Fee, Investment Earnings and Supplemental
Servicing Fees. Notwithstanding the above, the Indenture Trustee may, if it
shall be unwilling so to act, or shall, if it is legally unable so to act,
appoint, or petition a court of competent jurisdiction to appoint, a successor
(i) having a net worth of not less than $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.
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Section 7.06 Repayment of Advances. If the identity of the
Servicer shall change, the predecessor Servicer shall be entitled to receive, to
the extent of available funds, reimbursement for Outstanding Monthly Advances
pursuant to Section 5.04 in the manner specified in Section 4.06 with respect to
all Monthly Advances made by such predecessor Servicer.
ARTICLE VIII
TERMINATION
Section 8.01 Optional Purchase of All 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 (A) furnish to the Issuer and the
Indenture Trustee notice of its intention to exercise such option and of the
Optional Purchase Date (such notice to be furnished not later than 25 days prior
to the Distribution Date related to such Optional Purchase Date) and (B) deposit
in the Collection Account when required pursuant to (ii) below an amount equal
to the aggregate Administrative Purchase Payments for the Receivables (including
Liquidating Receivables), plus the appraised value of any other property held by
the Trust (less the Liquidation Expenses to be incurred in connection with the
recovery thereof), provided, that such amount (when added to any funds then on
deposit in the Designated Accounts and the Certificate Distribution Account and
to amounts payable by the Swap Counterparty on the Business Day preceding the
related Distribution Date) must be at least equal to the sum (1) the Basic
Servicing Fee for the related Monthly Period, (2) the aggregate Redemption Price
of the Redeemable Notes, (3) the Certificate Balance plus accrued and unpaid
interest on all outstanding Certificates through, but excluding, the related
Distribution Date, and (4) any amounts payable to the Swap Counterparty under
any Interest Rate Swap, on the Business Day preceding the related Distribution
Date. Such appraised value shall be determined by an appraiser mutually
satisfactory to the Seller, the Servicer, the Owner Trustee and the Indenture
Trustee.
(i) The Servicer shall make such deposit set forth in
(i)(B) above in immediately available funds on the Distribution Date related to
the Optional Purchase Date, except that if any Monthly Remittance Condition is
not satisfied on the Optional Purchase Date, such deposit shall instead be made
on the Optional Purchase Date. Upon the making of such deposit, the Servicer
shall succeed to all interests in and to the Trust (other than the Designated
Accounts, the Certificate Account and the rights of the Trust under the Interest
Rate Swaps).
(b) Upon any sale or other disposition of the assets of
the Trust pursuant to Article V of the Indenture (an "Event of Default Sale"),
the Servicer shall instruct the Applicable Trustee to deposit into the
Collection Account from the proceeds of such disposition the amount specified in
clause SECOND of Section 5.4(b) of the Indenture (the "Event of Default
Proceeds"). On the Distribution Date on which the Event of Default Proceeds are
deposited in the Collection Account (or, if such proceeds are not so deposited
on a Distribution Date, on the Distribution Date immediately following such
deposit), the Servicer shall instruct the Applicable
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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) first, to the Swap Counterparty, the net
amount, if any, then due to the Swap Counterparty under any Interest Rate Swaps
(exclusive of payments due to the Swap Counterparty in respect of an Early
Termination Date under any Interest Rate Swaps);
(ii) second, to (a) the Note Distribution Account
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 related
to the Notes, allocated between the Note Distribution Account and the Swap
Counterparty in proportion to the amounts owing in respect of the Aggregate
Noteholders' Interest Distributable Amount and the amounts owing to the Swap
Counterparty in connection with such Early Termination Date;
(iii) third, to the Swap Counterparty in respect
of any payments due to the Swap Counterparty in connection with any Early
Termination Date of any Interest Rate Swaps related to the Certificates;
(iv) fourth, 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) fifth, 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) sixth, 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 and
applied as set forth above. Any Event of Default Proceeds remaining after all
the deposits and other payments described above have been paid in full shall be
paid to the Seller.
(c) Notice of any termination of the Trust shall be given
by the Servicer to the Owner Trustee and the Indenture Trustee as soon as
practicable after the Servicer has received notice thereof.
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(d) Following the satisfaction and discharge of the
Indenture with respect to the Notes, and the payment in full of the principal
and interest on the Notes, the Certificateholders shall succeed to the rights of
the Noteholders hereunder and the Owner Trustee shall succeed to the rights of,
and assume the obligations (other than those under Section 7.03 which shall
remain obligations of the Indenture Trustee) of, the Indenture Trustee pursuant
to this Agreement (subject to the continuing obligations of the Indenture
Trustee set forth in Section 4.4 of the Indenture).
(e) After indefeasible payment in full to the Indenture
Trustee, the Owner Trustee, the Swap Counterparty, the Noteholders, the
Certificateholders and the Servicer of all amounts required to be paid under
this Agreement, the Indenture, any Interest Rate Swaps and the Trust Agreement
(including as contemplated by this Section 8.01), (i) any amounts on deposit in
the Reserve Account, the Payment Ahead Servicing Account and the Collection
Account (after all other distributions required to be made from such accounts
have been made and provision for the payment of all liabilities of the Trust as
required by Section 3808 of the Statutory Trust Statute) shall be paid to the
Seller and (ii) any other assets remaining in the Trust shall be distributed to
the Seller.
ARTICLE IX
MISCELLANEOUS PROVISIONS
Section 9.01 Amendment.
(a) This Agreement may be amended by the Seller, the
Servicer and the Owner Trustee with the consent of the Indenture Trustee, but
without the consent of any of the Financial Parties, (i) to cure any ambiguity,
(ii) to correct or supplement any provision in this Agreement that may be
defective or inconsistent with any other provision in this Agreement or any
other Basic Documents, (iii) to add or supplement any credit enhancement for the
benefit of the Noteholders of any class or the Certificateholders ( provided
that if any such addition shall affect any class of Noteholders or
Certificateholders differently than any other class of Noteholders or
Certificateholders, then such addition shall not, as evidenced by an Opinion of
Counsel, adversely affect in any material respect the interests of any class of
Noteholders or the Certificateholders), (iv) add to the covenants, restrictions
or obligations of the Seller, the Servicer, the Owner Trustee or the Indenture
Trustee or (v) add, change or eliminate any other provision of this Agreement in
any manner that shall not, as evidenced by an Opinion of Counsel, adversely
affect in any material respect the interests of the Financial Parties.
(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
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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.
(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
33
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.
(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 in accordance with the
terms of the Basic Documents.
(f) In the event that GMAC shall change the jurisdiction
in which it is incorporated or otherwise enter into any transaction which would
result in a "new debtor" (as defined in the UCC) succeeding to the obligations
of GMAC hereunder, GMAC shall comply fully with the obligations of Section
9.02(a).
(g) If at any time the Seller or the Servicer proposes to
sell, grant a security interest in, or otherwise transfer any interest in
automotive receivables to any prospective purchaser, lender or other transferee,
the Servicer and the Seller shall give to such prospective purchaser, lender or
other transferee computer tapes, records or print-outs (including any restored
from back-up archives) that, if they refer in any manner whatsoever to any
Receivable, indicate clearly that such Receivable has been sold and is owned by
the Issuer unless such Receivable has been paid in full or repurchased by the
Seller or purchased by the Servicer.
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(h) The Servicer shall permit the Indenture Trustee and
the Owner Trustee and their respective agents at any time to inspect, audit and
make copies of and abstracts from the Servicer's records regarding any
Receivables then or previously included in the Owner Trust Estate.
(i) The Servicer shall furnish to the Indenture Trustee
and the Owner Trustee at any time upon request a list of all Receivables then
held as part of the Trust, together with a reconciliation of such list to the
Schedule of Receivables and to each of the Servicer's Accountings furnished
before such request indicating removal of Receivables from the Trust. Upon
request, the Servicer shall furnish a copy of any such list to the Seller. The
Indenture Trustee, the Owner Trustee and the Seller shall hold any such list and
the Schedule of Receivables for examination by interested parties during normal
business hours at their respective offices located at the addresses specified in
Section 9.03.
(j) The Servicer shall deliver to the Indenture Trustee
and the Owner Trustee promptly after the execution and delivery of this
Agreement and of each amendment thereto, an Opinion of Counsel either (a)
stating that, in the opinion of such counsel, all financing statements and
continuation statements have been authorized and filed as necessary to fully
preserve and protect the interest of the Indenture Trustee and the Owner Trustee
in the Receivables, and reciting the details of such filings or referring to
prior Opinions of Counsel in which such details are given, or (b) stating that,
in the opinion of such counsel, no such action is necessary to preserve and
protect such interest.
(k) To the extent required by law, the Seller shall cause
the Notes and the Certificates to be registered with the Securities and Exchange
Commission pursuant to Section 12(b) or Section 12(g) of the Securities Exchange
Act of 1934 within the time periods specified in such sections.
Section 9.03 Notices. All demands, notices and communications upon
or to the Seller, the Servicer, the Indenture Trustee, the Owner Trustee or the
Rating Agencies under this Agreement shall be delivered as specified in Appendix
B hereto.
Section 9.04 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK,
WITHOUT REGARD TO THE PRINCIPLES OF CONFLICTS OF LAWS THEREOF OR OF ANY OTHER
JURISDICTION OTHER THAN SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW,
AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES UNDER THIS AGREEMENT
SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
Section 9.05 Severability of Provisions. If any one or more of the
covenants, agreements, provisions or terms of this Agreement shall be for any
reason whatsoever held invalid, then such covenants, agreements, provisions or
terms shall be deemed severable from the remaining covenants, agreements,
provisions or terms of this Agreement and shall in no way affect the validity or
enforceability of the other provisions of this Agreement or of the Certificates
or the rights of the holders thereof.
35
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
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
36
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 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.
* * * * *
37
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 2003-3
By: DEUTSCHE BANK TRUST COMPANY
DELAWARE, not in its individual capacity
but solely as Owner Trustee on behalf of
the Trust,
By: ____________________________________
Name: Man Wing Li
Title: Attorney-In-Fact
CAPITAL AUTO RECEIVABLES, INC.,
Seller
By: ________________________________________
Name: S. N. Richard
Title: Manager - Securitization
GENERAL MOTORS ACCEPTANCE CORPORATION
By: ________________________________________
Name: Xxxxx X. Xxxxxxxxxx
Title: Director - Securitization and
Cash Management
Acknowledged and Accepted:
BANK ONE, NATIONAL ASSOCIATION,
not in its individual capacity but solely as Indenture Trustee,
By: ______________________________
Name: Xxxxx X. Xxxxxxxxxx
Title: Vice President
Signature Page to Trust Sale and Servicing Agreement
EXHIBIT A
SCHEDULE OF RECEIVABLES
The Schedule of Receivables is
on file at the offices of:
1. The Indenture Trustee
2. The Owner Trustee
3. General Motors Acceptance Corporation
4. Capital Auto Receivables, Inc.
EXHIBIT B
SECOND STEP INITIAL RECEIVABLES ASSIGNMENT
PURSUANT TO TRUST SALE AND SERVICING AGREEMENT
For value received in accordance with and subject to the Trust Sale and
Servicing Agreement, dated as of August 14, 2003 (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
2003-3, a Delaware statutory trust (the "Issuer"), the Seller hereby irrevocably
sells, transfers, assigns and otherwise conveys to the Trust, without recourse
(subject to the obligations herein), all right, title and interest of the
Seller, whether now owned or hereafter acquired, in, to and under the following:
(i) all right, title and interest of the Seller in, to
and under the Initial Receivables listed on the Schedule of Initial Receivables,
attached as Exhibit A hereto, and (a) in the case of Initial Receivables that
are Scheduled Interest Receivables, all monies due thereunder on and after the
Initial Cutoff Date and (b) in the case of Initial Receivables that are Simple
Interest Receivables, all monies received thereon on and after the Initial
Cutoff Date, in each case exclusive of any amounts allocable to the premium for
physical damage insurance force-placed by the Servicer covering any related
Financed Vehicle;
(ii) the interest of the Seller in the security interests
in the Financed Vehicles granted by Obligors pursuant to the Initial Receivables
and, to the extent permitted by law, any accessions thereto;
(iii) the interest of the Seller in any proceeds from
claims on any physical damage, credit life, credit disability or other insurance
policies covering Financed Vehicles or Obligors;
(iv) the interest of the Seller in any proceeds from
recourse against Dealers on Initial Receivables;
(v) all right, title and interest of the Seller in, to
and under the Pooling and Servicing Agreement, the First Step Receivables
Assignments, and the Custodian Agreement, including the right of the Seller to
cause GMAC to repurchase Receivables under certain circumstances;
(vi) the right to purchase Additional Receivables during
the Revolving Period at a price equal to the Additional Receivables Discounted
Principal Balance of such Additional Receivables; 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 Discounted Principal Balance was $2,943,831,568.24
and acknowledges that in consideration of such Initial Receivables, the Trust
has paid to the Seller an amount equal to $2,943,831,568.24.
THIS SECOND STEP INITIAL RECEIVABLES ASSIGNMENT SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK,
WITHOUT REGARD TO THE PRINCIPLES OF CONFLICTS OF LAWS THEREOF OR OF ANY OTHER
JURISDICTION OTHER THAN SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW,
AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES UNDER THIS AGREEMENT
SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
This Second Step Initial Receivables Assignment is made pursuant to and
upon the representations, warranties and agreements on the part of the Seller
contained in the Trust Sale and Servicing Agreement (including the Officer's
Certificate of the Seller accompanying this Second Step Initial Receivables
Assignment) and is to be governed in all respects by the Trust Sale and
Servicing Agreement. Capitalized terms used but not otherwise defined herein
shall have the meanings assigned to them in the Trust Sale and Servicing
Agreement.
* * * *
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their respective officers as of the day and year first above
written.
CAPITAL AUTO RECEIVABLES, INC.,
as Seller
By: ___________________________________
Name: S. N. Richard
Title: Manager - Securitization
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 14, 2003 (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
2003-3, a Delaware statutory trust (the "Issuer"), the Seller hereby irrevocably
sells, transfers, assigns and otherwise conveys to the Trust, without recourse
(subject to the obligations herein), all right, title and interest of the
Seller, whether now owned or hereafter acquired, in, to and under the following:
(i) all right, title and interest of the Seller in, to
and under the Additional Receivables listed on the Schedule of Additional
Receivables and (a) in the case of Additional Receivables that are Scheduled
Interest Receivables, all monies due thereunder on and after the Additional
Cutoff Date and (b) in the case of Additional Receivables that are Simple
Interest Receivables, all monies received thereon on and after the Additional
Cutoff Date, in each case exclusive of any amounts allocable to the premium for
physical damage insurance force-placed by the Servicer covering any related
Financed Vehicle;
(ii) the interest of the Seller in the security interests
in the Financed Vehicles granted by Obligors pursuant to the Additional
Receivables and, to the extent permitted by law, any accessions thereto;
(iii) the interest of the Seller in any proceeds from
claims on any physical damage, credit life, credit disability or other insurance
policies covering Financed Vehicles or Obligors;
(iv) the interest of the Seller in any proceeds from
recourse against Dealers on Additional Receivables;
(v) all right, title and interest of the Seller in, to
and under the related First Step Additional Receivables Assignment dated as of
the date hereof; and
(vi) 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 Receivables 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 REGARD TO THE PRINCIPLES OF CONFLICTS OF LAWS THEREOF OR OF ANY OTHER
JURISDICTION OTHER THAN SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW,
AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES UNDER THIS AGREEMENT
SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
This Second Step Additional Receivables Assignment is made pursuant to
and upon the representations, warranties and agreements on the part of the
Seller contained in the Trust Sale and Servicing Agreement (including the
Officer's Certificate of the Seller accompanying this Second Step Additional
Receivables Assignment) and is to be governed in all respects by the Trust Sale
and Servicing Agreement. Capitalized terms used but not otherwise defined herein
shall have the meanings assigned to them in the Trust Sale and Servicing
Agreement.
* * * *
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their respective officers this __ day of ______.
CAPITAL AUTO RECEIVABLES, INC.,
as Seller
By: ___________________________________
Name: S. N. Richard
Title: 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
2.07(k) of the Trust Sale and Servicing Agreement, dated as of August 14, 2003
(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 2003-3, a Delaware statutory trust (the
"Issuer"), that all of the conditions to the transfer to the Trust of the
Additional Receivables listed on the Second Step Additional Receivables
Assignment delivered herewith and the other property and rights related to such
Additional Receivables, as described in Section 2.07 of the Trust Sale and
Servicing Agreement, have been satisfied on or prior to the related 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: ___________________________________
Name: S. N. Richard
Title: Manager - Securitization
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 as of 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 related to the Revolving Period on which such Additional
Receivable is sold, transferred, assigned or otherwise conveyed (i) from GMAC to
the Seller and (ii) from the Seller to the Issuer.
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 or direct
purchase money loan for a Financed Vehicle that is included in the Schedule of
Additional Receivables attached to a First Step Additional Receivables
Assignment and all rights and obligations thereunder.
Additional 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 and for the related Distribution Dates, the
Additional Receivables Discounted Principal Balance shall be zero.
Additional Receivables Principal Balance: With respect to any
Additional Receivables to be purchased by the Trust on a Distribution Date
related to the Revolving Period, an amount equal to the sum of all scheduled
payments allocable to principal due on those Additional Receivables that have
not been applied on or prior to the applicable Cutoff Date.
Additional Servicing Fee: 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 Fee 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 Fee and payments to the Seller) exceeds
the Specified Reserve Account Balance.
For purposes of this definition, it is understood that Additional Servicing Fee
equals zero on any Distribution Date unless all payments described in Sections
4.06(d)(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 the related
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
as of the last day of such Monthly Period;
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(B) any reimbursement made on or prior to the
last day of such Monthly Period pursuant to the last sentence of
Section 5.04(a) of the Trust Sale and Servicing Agreement with respect
to such Receivable; and
(C) all past due Scheduled Payments with respect
to which a Scheduled Interest Advance has not been made on or prior to
the last day of such Monthly Period; or
(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: $3,300,059,139.23, which represents the
aggregate of the Amount Financed under all of the Receivables.
Aggregate Certificateholders' Interest Distributable Amount: With
respect to any Distribution Date, the sum of the Certificateholders' Interest
Distributable Amounts for all tranches of Certificates.
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 or tranches of Notes and (ii) the Noteholders' Interest
Carryover Shortfall as of the close of the preceding Distribution Date.
3
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 and for the related Distribution
Dates, 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.
Aggregate Principal Balance: As of any date, the sum of the Principal
Balances of all outstanding Receivables (other than Liquidating Receivables)
held by the Trust on such date.
Amortization Date: The earlier of (i) July 1, 2004 and (ii) the date on
which an Early Amortization Event occurs.
Amortization Period: The period beginning on the Amortization Date and
ending on the date that all classes of Notes 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.
Annual Statement of Compliance: The Officer's Certificate required to
be delivered by the Issuer, pursuant to Section 3.9 of the Indenture or the
Officer's Certificate required to be delivered by the Servicer pursuant to
Section 4.01 of the Trust Sale and Servicing Agreement, as applicable.
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.
4
Authorized Officer: With respect to the Issuer, any officer or agent
acting under power of attorney of the Owner Trustee who is authorized to act for
the Owner Trustee in matters relating to the Issuer and who is identified on the
list of Authorized Officers delivered by the Owner Trustee to the Indenture
Trustee on the Initial Closing Date (as such list may be modified or
supplemented from time to time thereafter) or the power of attorney and, so long
as the Administration Agreement is in effect, any officer of the Administrator
who is authorized to act for the Administrator in matters relating to the Issuer
and to be acted upon by the Administrator pursuant to the Administration
Agreement and who is identified on the list of Authorized Officers delivered by
the Administrator to the Indenture Trustee on the Initial Closing Date (as such
list may be modified or supplemented from time to time thereafter).
Available Interest: With respect to any Distribution Date, the sum of
the following amounts with respect to the prior Monthly Period:
(i) that portion of all collections on the Receivables held by the
Trust (other than Liquidating Receivables) allocable to interest or Prepayment
Surplus (including, in the case of Scheduled Interest Receivables, the interest
portion of Applied Payments Ahead but excluding Excess Payments made during such
Monthly Period that are treated as Payments Ahead);
(ii) Liquidation Proceeds to the extent allocable to interest;
(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;
5
(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. All of the preceding allocations shall be made in accordance with the
Servicer's customary servicing procedures.
Available Principal: With respect to any Distribution Date, the sum of
the following amounts with respect to the prior Monthly Period:
(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;
(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 paid to the Servicer to reimburse Outstanding Scheduled Interest
Advances pursuant to Section 5.04 of the Trust Sale and Servicing Agreement;
(D) all Liquidation Proceeds with respect to Scheduled Interest
Receivables to the extent of the Outstanding Scheduled Interest Advances
allocable to principal; and
(E) amounts representing reimbursement for Liquidation Expenses
pursuant to Section 3.04 of the Pooling and Servicing Agreement.
6
For purposes of this definition, references to the prior Monthly Period
shall include, for the initial Distribution Date, the period since the Cutoff
Date. All of the preceding allocations shall be made in accordance with the
Servicer's customary servicing procedures.
Basic Documents: The Certificate of Trust, the Certificate Depository
Agreement, the Trust Agreement, the Pooling and Servicing Agreement (including
the First Step Receivables Assignments), the Trust Sale and Servicing Agreement
(including the Second Step Receivables Assignments), the Triparty Agreement, the
Custodian Agreement, the Administration Agreement, the Indenture, any Interest
Rate Swaps, the Swap Counterparty Rights Agreement, the Note Depository
Agreement, the Notes, the Certificates and the other documents and certificates
delivered in connection therewith.
Basic Servicing Fee: With respect to a Distribution Date, the basic fee
payable to the Servicer for services rendered during the related Monthly Period,
which shall be equal to 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 31 and the denominator of which is 360, multiplied by the Aggregate
Principal Balance as of the Initial 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 investment by an
employee benefit plan or plan in such entity.
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.
XXXX: Capital Auto Receivables, Inc., a Delaware corporation.
Certificate: Any one of the Class B-1 Certificates or Class B-2
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 Initial Closing Date, with
respect to the Class B-1 Certificates, $58,331,568.24 and, with respect to the
Class B-2 Certificates, $30,000,000.00, and on any Distribution Date thereafter,
for any class or tranche of the Certificates, the initial
7
Certificate Balance of that class or tranche of Certificates reduced by (i) all
distributions in respect of the Certificate Balance on that class or tranche of
the Certificates actually made on or prior to such date to Certificateholders,
(ii) that class or tranche of the Certificates' pro rata share based on
Certificate Balance of the Noteholders' Principal Carryover Shortfall as of the
close of the preceding Distribution Date, and (iii) that class or tranche of the
Certificates' pro rata share based on Certificate Balance of 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 Aggregate 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, for any tranche of Certificates, the sum of (i) the
Certificateholders' Monthly Interest Distributable Amount for that tranche of
the Certificates and for such Distribution Date, (ii) that tranche of the
Certificates' share of the Certificateholders' Interest Carryover Shortfall as
of the close of the preceding Distribution Date and (iii) one month's interest
at the Pass Through Rate for that tranche of the Certificates on the sum of (a)
that tranche of the Certificates' pro rata share based on Certificate Balance of
any outstanding Noteholders' Principal Carryover Shortfall and (b) that tranche
of the Certificates' pro rata share based on Certificate Balance of 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 for any tranche of the Certificates, 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) of that tranche of the Certificates, and (ii) in the case
of the (A) Class B-1 Certificates, one-twelfth of the Pass Through Rate for that
tranche, or, in the case of the first distribution date, the Pass Through Rate
for that tranche multiplied by a fraction, the numerator of which is 31 and the
denominator of which is 360, and (B) the Class B-2 Certificates, the product of
the Pass Through Rate for that tranche for that 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
8
Initial Closing Date) to but excluding such Distribution Date, and 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 on all classes of
tranches of Certificates.
Certificateholders' Principal Distributable Amount: With respect to any
Distribution Date related to the Amortization Period, the sum of:
(i) the lesser of
(A) the Principal Distributable Amount minus the
Noteholders' Principal Distributable Amounts for all classes of the Notes; and
(B) the Certificate Balance on all classes or tranches of
Certificates;
plus
(ii) the 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 Statutory Trust Statute.
Certificate Owner: With respect to a Book-Entry Certificate, the Person
who is the beneficial owner of such Book-Entry Certificate, as reflected on the
books of the Clearing Agency, or on the books of a Person maintaining an account
with such Clearing Agency (directly as a Clearing Agency Participant or as an
indirect participant, in each case in accordance with the rules of such Clearing
Agency).
Certificate Pool Factor: With respect to any Distribution Date, a
seven-digit decimal figure computed by the Servicer equal to the remaining
Certificate Balance as of the close of such Distribution Date divided by the
initial Certificate Balance.
Certificate Register: The register of Certificates specified in Section
3.4 of the Trust Agreement.
9
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: Collectively, the Class A-1a Notes and the Class A-1b
Notes.
Class A-1a Notes: The Class A-1a 1.77% Asset Backed Notes in the
initial aggregate principal amount of $150,000,000 issued pursuant to the
Indenture.
Class A-1b Notes: The Class A-1b Floating Rate Asset Backed Notes in
the initial aggregate principal amount of $980,000,000 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 2.35% Asset Backed Notes in the
initial aggregate principal amount of $125,000,000 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 $525,000,000 issued pursuant to the
Indenture.
Class A-3 Notes: Collectively, the Class A-3a Notes and the Class A-3b
Notes.
Class A-3a Notes: The Class A-3a 2.96% Asset Backed Notes in the
initial aggregate principal amount of $350,000,000 issued pursuant to the
Indenture.
Class A-3b Notes: The Class A-3b Floating Rate Asset Backed Notes in
the initial aggregate principal amount of $470,000,000 issued pursuant to the
Indenture.
Class A-4 Notes: Collectively, the Class A-4a Notes and the Class A-4b
Notes.
Class A-4a Notes: The Class A-4a 3.40% Asset Backed Notes in the
initial aggregate principal amount of $150,500,000 issued pursuant to the
Indenture.
Class A-4b Notes: The Class A-1b Floating Rate Asset Backed Notes in
the initial aggregate principal amount of $105,000,000 issued pursuant to the
Indenture.
Class B-1 Certificates: The Class B-1 3.71% Asset Backed Certificates
with an initial Outstanding Certificate Balance of $58,331,568.24 issued
pursuant to the Trust Agreement .
Class B-2 Certificates: The Class B-2 Floating Rate Asset Backed
Certificates with an initial outstanding Certificate Balance of $30,000,000
issued pursuant to the Trust Agreement.
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
10
Agency effects book entry transfers and pledges of securities deposited with the
Clearing Agency.
Code: The Internal Revenue Code of 1986, as amended from time to time,
and the Treasury Regulations promulgated thereunder.
Collateral: The collateral specified in the Granting Clause of the
Indenture.
Collection Account: The account designated as such, established and
maintained pursuant to Section 5.01(a)(i) of the Trust Sale and Servicing
Agreement.
Contingent Interest Rate Swap: Each interest rate swap agreement,
including the schedule and confirmation related thereto, between GMAC and the
Trust, as executed and delivered on the Initial Closing Date, as the same may
become effective as provided in the Triparty Agreement or be amended,
supplemented, renewed, extended or replaced from time to time.
Corporate Trust Office: With respect to the Indenture Trustee or the
Owner Trustee, the principal office at which at any particular time the
corporate trust business of the Indenture Trustee or Owner Trustee,
respectively, shall be administered, which offices at the Initial Closing Date
are located, in the case of the Indenture Trustee, at 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.
11
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 Securities or
otherwise), including the Reserve Account Initial Deposit, and all proceeds of
the foregoing but excluding all Investment Earnings thereon.
Designated Accounts: The Accumulation Account, the Collection Account,
the Note Distribution Account and the Reserve Account, collectively.
Determination Date: The tenth day of each calendar month, or if such
tenth day is not a Business Day, the next succeeding Business Day.
Discount Rate: 6.50% 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 15, 2003.
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 (1.00%) of the Initial 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
12
Rating Agencies or (2) a short-term unsecured debt rating or certificate of
deposit rating acceptable to the Rating Agencies and (B) whose deposits are
insured by the FDIC.
Eligible Investments: Book-entry securities, negotiable instruments or
securities represented by instruments in bearer or registered form which
evidence:
(i) direct obligations of, and obligations fully
guaranteed as to timely payment of principal and interest by, the
United States of America;
(ii) demand deposits, time deposits or certificates of
deposit of any depository institution or trust company incorporated
under the laws of the United States of America or any state thereof (or
any domestic branch of a foreign bank) and subject to supervision and
examination by Federal or State banking or depository institution
authorities; provided, however, that at the time of the investment or
contractual commitment to invest therein, the commercial paper or other
short-term unsecured debt obligations (other than such obligations the
rating of which is based on the credit of a Person other than such
depository institution or trust company) thereof shall have a credit
rating from each of the Rating Agencies in the highest investment
category for short-term unsecured debt obligations or certificates of
deposit granted thereby;
(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
13
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 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.
14
Exchange Act: The Securities Exchange Act of 1934, as amended.
Executive Officer: With respect to any corporation, the Chief Executive
Officer, Chief Operating Officer, Chief Financial Officer, President, Executive
Vice President, any Vice President, the Secretary or the Treasurer of such
corporation; and with respect to any partnership, any general partner thereof.
Expenses: The expenses described in Section 6.9 of the Trust Agreement.
FDIC: Federal Deposit Insurance Corporation or any successor agency.
Final Scheduled Distribution Date:
(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: January 2006
Class A-2 Notes: October 2006;
Class A-3 Notes: January 2008;
Class A-4 Notes: August 2008; and
(ii) with respect to the Certificates, the Distribution Date in
January 2011.
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-1a Notes, the Class A-2a Notes,
the Class A-3a Notes and the Class A-4a Notes.
15
Floating Rate Notes: Together, the Class A-1b Notes, the Class A-2b
Notes, the Class A-3b Notes and the Class A-4b Notes.
Further Transfer and Servicing Agreements: As defined in the recitals
to the Pooling and Servicing Agreement.
General Motors: General Motors Corporation, a Delaware corporation.
GMAC: General Motors Acceptance Corporation, a Delaware corporation.
GMAC Interest Rate Swap: Each interest rate swap agreement, including
the schedule and confirmation related thereto, between GMAC and the Swap
Counterparty in effect on the Initial Closing Date, as the same may be amended,
supplemented, renewed, extended or replaced from time to time.
GMACNA means General Motors Acceptance Corporation, North America.
GMACNA Sale Agreement means the GMACNA Sale Agreement dated as of the
Initial Closing Date, by and between GMACNA and GMAC.
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 Initial 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
16
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: $2,943,831,568.24.
Initial Book-Entry Certificates: As defined in Section 3.11 of the
Trust Agreement.
Initial Closing Date: August 14, 2003.
Initial Cutoff Date: July 1, 2003.
Initial Purchased Property: As defined in Section 2.01(a) of the
Pooling and Servicing Agreement.
Initial Receivables: Any retail instalment sale contract or direct
purchase money loan for a Financed Vehicle that is included in the Schedule of
Initial Receivables attached to the First Step Initial Receivables Assignment
and all rights and obligations thereunder.
Insurance Policy: With respect to a Receivable, an insurance policy
covering physical damage, credit life, credit disability, theft, mechanical
breakdown or similar event with respect to the related Financed Vehicle.
Intercompany Advance Agreement: The Amended and Restated Intercompany
Advance Agreement dated as of February 22, 1996 between 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-1a Notes: 1.77%;
Class A-1b Notes: LIBOR plus 0.05%;
Class A-2a Notes: 2.35%;
Class A-2b Notes: LIBOR plus 0.06%;
Class A-3a Notes: 2.96%;
Class A-3b Notes: LIBOR plus 0.08%;
Class A-4a Notes: 3.40%; and
Class A-4b Notes: LIBOR plus 0.09%.
17
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: A written order signed in the name of the Issuer by any
one of its Authorized Officers and delivered to the Indenture Trustee.
Issuer Request: A written request signed in the name of the Issuer by
any one of its Authorized Officers and delivered to the Indenture Trustee.
LIBOR: With respect to 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.
18
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 & Xxxxx LLP, Xxxxx
Xxxxx Xxxx & Maw LLP or another nationally recognized law firm experienced in
securitization matters reasonably acceptable to the Swap Counterparty, addressed
to the Swap Counterparty and in form and substance reasonably satisfactory to
the Swap Counterparty.
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;
(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 on the Initial Closing Date in the
State of New York, and as may be amended from time to time.
Note Depository: The depository from time to time selected by the
Indenture Trustee on behalf of the Trust in whose name the Notes are registered
prior to the issue of Definitive Notes. The first Note Depository shall be Cede
& Co., the nominee of the initial Clearing Agency.
Note Depository Agreement: The agreement, dated as of the Initial
Closing Date, 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.
19
Note Owner: With respect to a Book-Entry Note, the Person who is the
beneficial owner of such Book-Entry Note, as reflected on the books of the
Clearing Agency, or on the books of a Person maintaining an account with such
Clearing Agency (directly as a Clearing Agency Participant or as an Indirect
Participant, in each case in accordance with the rules of such Clearing Agency).
Note Pool Factor: With respect to any class of Notes and any
Distribution Date, an amount expressed to the seventh decimal place and computed
by the Servicer which is equal to the Note Principal Balance for such class as
of the close of such Distribution Date divided by the initial Note Principal
Balance for such class.
Note Principal Balance: With respect to a class of 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' 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
or tranche of Notes and any Distribution Date, the product of (i) the
outstanding principal balance of such class or tranche of Notes as of the close
of the preceding Distribution Date (or, in the case of the first Distribution
Date, the outstanding principal balance of such class or tranche of Notes on the
Initial Closing Date) and (ii) in the case of (a) the Fixed Rate Notes,
one-twelfth of the Interest Rate for such class or tranche (or, in the case of
the first Distribution Date, the Interest Rate for such class multiplied by a
fraction, the numerator of which is 31 and the denominator of which is 360) and
(b) the Floating Rate Notes, the product of the Interest Rate for such class or
tranche of Notes for such Distribution Date and a fraction, the numerator of
which is the number of days elapsed from and including the prior Distribution
Date (or, in the case of the first Distribution Date, from and including the
Initial Closing Date), to but excluding that Distribution Date and the
denominator of which is 360.
Noteholders' Percentage: With respect to any Distribution Date related
to the Amoritization Period 100% until the notes are paid in full, then 0%.
Notwithstanding the
20
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 related to 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.
For any Distribution Date related to 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
21
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
(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.
22
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
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, 3.71% per annum for the Class B-1
Certificates and LIBOR plus 0.35% per annum for the Class B -2 Certificates.
Paying Agent: With respect to the Indenture, the Indenture Trustee or
any other Person that meets the eligibility standards for the Indenture Trustee
specified in Section 6.11 of the Indenture and is authorized by the Issuer to
make the payments to and distributions from the Collection Account and the Note
Distribution Account, including payment of principal of or interest on the Notes
on behalf of the Issuer. With respect to the Trust Agreement, any paying agent
or co-paying agent appointed pursuant to Section 3.9 of the Trust Agreement that
meets the eligibility standards for the Owner Trustee specified in Section 6.13
of the Trust Agreement. The initial Paying Agent under the Trust Agreement shall
be Deutsche Bank Trust Company Americas.
23
Payment Ahead: With respect to a Distribution Date and to a Scheduled
Interest Receivable, any Excess Payment (not representing prepayment in full of
such Receivable) that is of an amount such that the sum of such Excess Payment
and the Deferred Prepayment is equal to or less than three times the Scheduled
Payment.
Payment Ahead Servicing Account: The account designated as such,
established and maintained pursuant to Section 5.01(a)(iv) of the Trust Sale and
Servicing Agreement.
Person: Any legal person, including any individual, corporation,
partnership, joint venture, association, limited liability company, joint stock
company, trust, unincorporated organization or government or any agency or
political subdivision thereof.
Physical Property: (i) Bankers' acceptances, commercial paper,
negotiable certificates of deposit and other obligations that constitute
"instruments" within the meaning of Section 9-102(47) of the New York UCC and
are susceptible of physical delivery and (ii) Security Certificates.
Pooling and Servicing Agreement: The Pooling and Servicing Agreement,
dated as of the Initial Closing Date, between GMAC and the Seller, as amended
and supplemented from time to time.
Predecessor Note: With respect to any particular Note, every previous
Note evidencing all or a portion of the same debt as that evidenced by such
particular Note; and, for the purpose of this definition, any Note authenticated
and delivered under Section 2.5 of the Indenture in lieu of a mutilated, lost,
destroyed or stolen Note shall be deemed to evidence the same debt as the
mutilated, lost, destroyed or stolen Note.
Prepayment: Any Excess Payment other than a Payment Ahead.
Prepayment Surplus: With respect to any Distribution Date on which a
Prepayment is to be applied with respect to a Scheduled Interest Receivable,
that portion of such Prepayment, net of any Rebate.
Principal Balance: With respect to any Scheduled Interest Receivable,
as of any date, the Amount Financed minus the sum of the following amounts:
(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:
24
(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 related to 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: As defined in Section 2.01(b) of the Pooling and
Servicing Agreement.
Rating Agencies: As of any date, the nationally recognized statistical
rating organizations requested by the Seller to provide ratings on the Notes or
the Certificates which are rating the Notes or the Certificates on such date.
Rating Agency Condition: With respect to any action, the condition that
each Rating Agency shall have been given at least 10 days prior notice thereof
and that each of the Rating Agencies shall have notified the Seller, the
Servicer and the Issuer in writing that such action shall not result in a
downgrade or withdrawal of the then current rating of the Notes or the
Certificates.
Rebate: With respect to a given date and a Scheduled Interest
Receivable, the rebate under such Receivable that is or would be payable to the
Obligor for unearned finance charges or any other charges rebatable to the
Obligor upon the payment on such date of all remaining Scheduled Payments.
Receivable: A retail instalment sale contract or direct purchase money
loan for a Financed Vehicle that is included in the Schedule of Initial
Receivables and any Additional Receivable that is included in a Schedule of
Additional Receivables and all rights and obligations thereunder.
Receivable File: The documents listed in Section 2.04 of the Pooling
and Servicing Agreement pertaining to a particular Receivable.
25
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 and the
Certificates, the unpaid principal amount of such Notes and Certificates, 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 United States dollars are offered by
reference banks as of 11:00 a.m., London time, on the day that is two LIBOR
Business Days prior to the immediately preceding Distribution Date to prime
banks in the London interbank market for a period of one month, in amounts
approximately equal to the then Outstanding Amount of the applicable class or
tranche of the then outstanding Floating Rate Notes and Floating Rate
Certificates. The reference banks shall be four major banks that are engaged in
transactions in the London interbank market, selected by the Indenture Trustee
after consultation with the Seller. The Indenture Trustee will request the
principal London office of each of the reference banks to provide a quotation of
its rate. If at least two quotations are provided, the rate will be the
arithmetic mean of the quotations, rounded upwards to the nearest one-sixteenth
of one percent. If on that date fewer than two quotations are provided as
requested, the rate will be the arithmetic mean, rounded upwards to the nearest
one-sixteenth of one percent, of the rates quoted by one or more major banks in
New York City, selected by the Indenture Trustee after consultation with the
Seller, as of 11:00 a.m., New York City time, on that date to leading European
banks for United States dollar deposits for a period of one month in amounts
approximately equal to the Outstanding Amount of each class or tranche of the
then outstanding Floating Rate Notes and Floating Rate Certificates. 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 related to the Revolving
Period, the Principal Distributable Amount plus the Accumulation Amount. During
the Amortization Period and for the related Distribution Dates, 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.
26
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 $44,157,473.52.
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 Class B-1 Certificates retained by the
Seller pursuant to the Trust Agreement, with an initial Certificate Balance of
$891,568.24.
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 Amortization Date.
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.
27
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.
Secretary of State: The Secretary of State of the State of Delaware.
Secured Obligations: Obligations consisting of the principal of and
interest on, and any other amounts owing in respect of, the Notes and amounts
allocable pursuant to the Indenture with respect to the Certificates and each
Interest Rate Swap.
Secured Parties: Each Noteholder, Certificateholder and the Swap
Counterparty.
Securities: The Notes and the Certificates.
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.
28
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
(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) $22,078,736.76
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) for each Distribution Date related to 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
29
(b) the excess of (1) the Weighted Average Note
and Certificate Rate plus 1.00% over (2) LIBOR;
divided by
(c) 12.
State: Any one of the 50 states of the United States of America or the
District of Columbia.
Statutory Trust Statute: Chapter 38 of Title 12 of the Delaware Code,
12 Del. Code Section 3801 et seq., as the same may be amended from time to time.
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: HSBC Bank USA. will serve as swap counterparty under
each Interest Rate Swap, or any successor or replacement Swap Counterparty from
time to time under each Interest Rate Swap.
Swap Counterparty Rights Agreement: The Swap Counterparty Rights
Agreement, dated as of the Initial Closing Date, among the Swap Counterparty,
the Issuer, GMAC, as Servicer, 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 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 Fee 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.
30
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 2003-3, a Delaware
statutory trust created by the Certificate of Trust and described in the Trust
Agreement.
Trust Agreement: The Trust Agreement, dated as of the Initial Closing
Date, between the Seller and the Owner Trustee, as amended and supplemented from
time to time.
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 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 to be repurchased as of the last day of the related Monthly Period:
31
(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 as of
the last day of such Monthly Period;
(B) all past due Scheduled Payments with respect
to which a Scheduled Interest Advance has not been made on or
prior to the last day of such Monthly Period;
(C) any reimbursement made on or prior to the
last day of such Monthly Period pursuant to the last sentence
of subsection 5.04(a) of the Trust Sale and Servicing
Agreement with respect to such Receivable; and
(D) all Outstanding Scheduled Interest Advances
made on or prior to the last day of such Monthly Period with
respect to such Receivable, minus any Liquidation Proceeds (to
the extent applied to reduce the Principal Balance of such
Receivable) previously received on or prior to the last day of
such Monthly Period with respect to such Receivable; or
(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: 2.443% per annum.
32
PART II - RULES OF CONSTRUCTION
(a) Accounting Terms. As used in this Appendix or the Basic
Documents, accounting terms which are not defined, and
accounting terms partly defined, herein or therein shall have
the respective meanings given to them under generally accepted
accounting principles. To the extent that the definitions of
accounting terms in this Appendix or the Basic Documents are
inconsistent with the meanings of such terms under generally
accepted accounting principles, the definitions contained in
this Appendix or the Basic Documents will control.
(b) "Hereof," etc. The words "hereof," "herein" and "hereunder"
and words of similar import when used in this Appendix or any
Basic Document will refer to this Appendix or such Basic
Document as a whole and not to any particular provision of
this Appendix or such Basic Document; and Section, Schedule
and Exhibit references contained in this Appendix or any Basic
Document are references to Sections, Schedules and Exhibits in
or to this Appendix or such Basic Document unless otherwise
specified. The word "or" is not exclusive.
(c) Reference to Distribution Dates. With respect to any
Distribution Date, the "related Monthly Period," and the
"related Record Date," will mean the Monthly Period and Record
Date, respectively, immediately preceding such Distribution
Date, and the relationships among Monthly Periods and Record
Dates will be correlative to the foregoing relationships.
(d) Number and Gender. Each defined term used in this Appendix or
the Basic Documents has a comparable meaning when used in its
plural or singular form. Each gender-specific term used in
this Appendix or the Basic Documents has a comparable meaning
whether used in a masculine, feminine or gender-neutral form.
(e) Including. Whenever the term "including" (whether or not that
term is followed by the phrase "but not limited to" or
"without limitation" or words of similar effect) is used in
this Appendix or the Basic Documents in connection with a
listing of items within a particular classification, that
listing will be interpreted to be illustrative only and will
not be interpreted as a limitation on, or exclusive listing
of, the items within that classification.
(f) Reference to a Class of Notes. Unless otherwise specified,
references to a Class of Notes, includes all the tranches
included in such class of Notes.
00
XXXXXXXX X
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
00 Xxxx Xxxxxx , 00xx Xxxxx
Mail Stop: NYC60-2606
Xxx Xxxx, XX 00000
Phone: 000-000-0000
Fax: 000-000-0000/8607
34
and with a copy to:
Capital Auto Receivables, Inc.,
Attention: Manager Securitization
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
HSBC Bank USA
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
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
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address as it appears on the Note Register or Certificate Register, as
applicable, not later than the latest date, and not earlier than the earliest
date, prescribed in such Basic Document for the giving of such notice. If notice
to Noteholders or Certificateholders is given by mail, neither the failure to
mail such notice nor any defect in any notice so mailed to any particular
Noteholders or Certificateholders shall affect the sufficiency of such notice
with respect to other Noteholders or Certificateholders, and any notice that is
mailed in the manner herein provided shall conclusively be presumed to have been
duly given regardless of whether such notice is in fact actually received.
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