EXHIBIT 99.1
TRUST SALE AND SERVICING AGREEMENT
AMONG
GENERAL MOTORS ACCEPTANCE CORPORATION
SERVICER
CAPITAL AUTO RECEIVABLES, INC.
SELLER
AND
CAPITAL AUTO RECEIVABLES ASSET TRUST 1999-1
ISSUER
DATED AS OF MARCH 11, 1999
TABLE OF CONTENTS
Page
ARTICLE I
CERTAIN DEFINITIONS
SECTION 1.01. Definitions 1
ARTICLE II
CONVEYANCE OF RECEIVABLES; ORIGINAL ISSUANCE OF SECURITIES
SECTION 2.01. Conveyance of Receivables 1
SECTION 2.02. Custody of Receivable Files 2
SECTION 2.03. Acceptance by Issuer 2
SECTION 2.04. Representations and Warranties as to the
Receivables 3
SECTION 2.05. Repurchase of Receivables Upon Breach of
Warranty 3
ARTICLE III
THE SELLER
SECTION 3.01. Representations of Seller 4
SECTION 3.02. Liability of Seller 5
SECTION 3.03. Merger or Consolidation of, or Assumption
of the Obligations of, Seller; Amendment
of Certificate of Incorporation 6
SECTION 3.04. Limitation on Liability of Seller and Others 6
SECTION 3.05. Seller May Own Notes or Certificates 6
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 7
SECTION 4.02. Annual Independent Accountants' Report 7
SECTION 4.03. Access to Certain Documentation and
Information Regarding Receivables 8
SECTION 4.04. Amendments to Schedule of Receivables 8
SECTION 4.05. Assignment of Administrative Receivables and
Warranty Receivables 8
SECTION 4.06. Distributions 9
SECTION 4.07. Reserve Account 11
SECTION 4.08. Net Deposits 12
SECTION 4.09. Statements to Securityholders 12
ARTICLE V
CERTIFICATEHOLDER AND NOTEHOLDER STATEMENTS AND ACCOUNTS;
COLLECTIONS, DEPOSITS AND INVESTMENTS; ADVANCES
SECTION 5.01. Establishment of Accounts 14
SECTION 5.02. Collections 18
SECTION 5.03. Investment Earnings and Supplemental
Servicing Fees 18
SECTION 5.04. Monthly Advances 19
SECTION 5.05. Additional Deposits 19
ARTICLE VI
LIABILITIES OF SERVICER AND OTHERS
SECTION 6.01. Liability of Servicer; Indemnities 20
SECTION 6.02. Merger or Consolidation of, or Assumption
of the Obligations of, the Servicer 21
SECTION 6.03. Limitation on Liability of Servicer and Others 21
SECTION 6.04. Delegation of Duties 22
SECTION 6.05. Servicer Not to Resign 22
ARTICLE VII
DEFAULT
SECTION 7.01. Servicer Defaults 23
SECTION 7.02. Consequences of a Servicer Default 24
SECTION 7.03. Indenture Trustee to Act; Appointment
of Successor 24
SECTION 7.04. Notification to Noteholders and
Certificateholders 25
SECTION 7.05. Waiver of Past Defaults 25
SECTION 7.06. Repayment of Advances 25
ARTICLE VIII
TERMINATION
SECTION 8.01. Optional Purchase of All Receivables;
Insolvency of Seller; Termination of Trust 26
ARTICLE IX
MISCELLANEOUS PROVISIONS
SECTION 9.01. Amendment 28
SECTION 9.02. Protection of Title to Trust 29
SECTION 9.03. Notices 31
SECTION 9.05. Severability of Provisions 31
SECTION 9.06. Assignment 31
SECTION 9.07. Third-Party Beneficiaries 31
SECTION 9.08. Separate Counterparts 32
SECTION 9.09. Headings and Cross-References 32
SECTION 9.10. Assignment to Indenture Trustee 32
SECTION 9.11. No Petition Covenants 32
SECTION 9.12. Limitation of Liability of Indenture Trustee
and Owner Trustee 32
SECTION 9.13. Tax Treatment 33
SECTION 9.14. Furnishing Documents 33
EXHIBIT A Locations of Schedule of Receivables
APPENDIX A Definitions and Rules of Construction
APPENDIX B Notices Addresses and Procedures
THIS TRUST SALE AND SERVICING AGREEMENT is made as of March 11, 1999, by
and among General Motors Acceptance Corporation, a Delaware corporation and in
its capacity as Servicer under the Pooling and Servicing Agreement described
below (the "SERVICER"), Capital Auto Receivables, Inc., a Delaware corporation
(the "SELLER"), and Capital Auto Receivables Asset Trust 1999-1, a Delaware
business trust (the "ISSUER").
WHEREAS, General Motors Acceptance Corporation has sold the Receivables to
Seller and, as Servicer, has agreed to service the Receivables pursuant to the
Pooling and Servicing Agreement.
WHEREAS, Seller desires to sell the Receivables to Issuer in exchange for
the Notes and Certificates pursuant to the terms of this Agreement, and the
Servicer desires to perform the servicing obligations set forth herein for and
in consideration of the fees and other benefits set forth in this Agreement and
in the Pooling and Servicing Agreement.
WHEREAS, Seller and the Issuer wish to set forth the terms pursuant to
which the Receivables are to be sold by the Seller to the Issuer and serviced by
the Servicer.
NOW, THEREFORE, in consideration of the foregoing, the other good and
valuable consideration and the mutual terms and covenants contained herein, the
parties hereto agree as follows:
ARTICLE I
CERTAIN DEFINITIONS
1.1. Section DEFINITIONS . Certain capitalized terms used in the above recitals
and in this Agreement are defined in and shall have the respective meanings
assigned them in PART I of APPENDIX A to this Agreement. All references herein
to "the Agreement" or "this Agreement" are to this Trust Sale and Servicing
Agreement as it may be amended, supplemented or modified from time to time, the
exhibits hereto and the capitalized terms used herein which are defined in such
APPENDIX A, and all references herein to Articles, Sections and subsections are
to Articles, Sections or subsections of this Agreement unless otherwise
specified. The rules of construction set forth in PART II of such APPENDIX A
shall be applicable to this Agreement.
ARTICLE II
CONVEYANCE OF RECEIVABLES; ORIGINAL ISSUANCE OF SECURITIES
1.1. Section CONVEYANCE OF RECEIVABLES . In consideration of the Issuer's
delivery of the Notes and the Certificates to, or upon the order of, the Seller,
the Seller does hereby enter into this Agreement and agree to fulfill all of its
obligations hereunder and to sell, transfer, assign and otherwise convey to the
Issuer, without recourse:
(a) all right, title and interest of the Seller in, to and under the
Receivables listed on the SCHEDULE OF RECEIVABLES which is on file at
the locations listed on EXHIBIT A hereto and (i) in the case of
Scheduled Interest Receivables, all monies due thereunder on and after
the Cutoff Date and (ii) in the case of Simple Interest Receivables,
all monies received thereon on and after the Cutoff Date, in each case
exclusive of any amounts allocable to the premium for physical damage
insurance force-placed by the Servicer covering any related Financed
Vehicle;
(b)
(c) the interest of the Seller in the security interests in the Financed
Vehicles granted by Obligors pursuant to the Receivables and, to the
extent permitted by law, any accessions thereto;
(d)
(e) except for those Receivables originated in Wisconsin, the interest of
the Seller in any proceeds from claims on any physical damage, credit
life, credit disability or other insurance policies covering Financed
Vehicles or Obligors;
(f)
(g) the interest of the Seller in any proceeds from recourse against
Dealers on Receivables;
(h)
(i) all right, title and interest of the Seller in, to and under the
Pooling and Servicing Agreement and the Custodian Agreement, including
the right of the Seller to cause GMAC to repurchase Receivables under
certain circumstances; and
(j)
(k) the interest of the Seller in any proceeds of the property described
in clauses (a), (b) and (e) above.
(l)
(m) It is the intention of the Seller and the Issuer that the transfer and
assignment contemplated by this Agreement shall constitute a sale of
the Receivables from the Seller to the Issuer and the beneficial
interest in and title to the Receivables shall not be part of the
Seller's estate in the event of the filing of a bankruptcy petition by
or against the Seller under any bankruptcy law. The foregoing sale
does not constitute and is not intended to result in any assumption by
the Issuer of any obligation of the Seller to the Obligors, Dealers,
insurers or any other Person in connection with the Receivables, any
Dealer Agreements, any insurance policies or any agreement or
instrument relating to any of them. Within two Business Days after the
Closing Date, GMAC shall cause to be deposited into the Collection
Account the collections on the Receivables described in SECTION 5.07
of the Pooling and Servicing Agreement; provided, that so long as the
Monthly Remittance Conditions are satisfied, such collections need not
be deposited until the first Distribution Date.
(n)
1.2. Section CUSTODY OF RECEIVABLE FILES. In connection with the sale, transfer
and assignment of the Receivables to the Issuer pursuant to this Agreement,
GMAC, as Custodian under the Custodian Agreement, agrees to act as Custodian
thereunder for the benefit of the Issuer. The Issuer hereby accepts and agrees
to the terms and provisions of the Custodian Agreement and designates GMAC as
custodian with respect to the Receivables Files.
1.3.
1.4. Section ACCEPTANCE BY ISSUER . The Issuer does
hereby accept all consideration conveyed by the Seller pursuant to SECTION 2.01,
and declares that the Issuer shall hold such consideration upon the trust set
forth in the Trust Agreement for the benefit of Certificateholders, subject to
the terms and conditions of the Indenture and this Agreement. The Issuer hereby
agrees and accepts the appointment and authorization of General Motors
Acceptance Corporation as Servicer under SECTION 3.01 of the Pooling and
Servicing Agreement. The parties agree that this Agreement, the Indenture and
the Trust Agreement constitute the Further Transfer and Servicing Agreements for
purposes of the Pooling and Servicing Agreement and that the rights, duties and
obligations of GMAC as Servicer under the Pooling and Servicing Agreement are
subject to the provisions of SECTIONS 6.02, 6.04, 6.05, 9.01 and ARTICLE VII
hereof.
1.5.
1.6. Section REPRESENTATIONS AND WARRANTIES AS TO THE RECEIVABLES . Pursuant to
SECTION 2.01(E), the Seller assigns to the Issuer all of its right,
title and interest in, to and under the Pooling and Servicing Agreement. Such
assigned right, title and interest includes the representations and warranties
of GMAC made to the Seller pursuant to SECTION 4.01 of the Pooling and Servicing
Agreement. The Seller hereby represents and warrants to the Issuer that the
Seller has taken no action which would cause such representations and warranties
of GMAC to be false in any material respect as of the Closing Date. The Seller
further acknowledges that the Issuer relies on the representations and
warranties of the Seller under this Agreement and of GMAC under the Pooling and
Servicing Agreement in accepting the Receivables in trust and executing and
delivering the Notes and the Certificates. The foregoing representation and
warranty speaks as of the Closing Date, but shall survive the sale, transfer and
assignment of the Receivables to the Issuer and the pledge thereof to the
Indenture Trustee pursuant to the Indenture.
1.7.
1.8. Section REPURCHASE OF RECEIVABLES UPON BREACH OF WARRANTY . Upon discovery
by the Seller, the Servicer, the Owner Trustee or the Indenture Trustee of a
breach of any of the representations and warranties in SECTION 4.01 of the
Pooling and Servicing Agreement or in SECTION 2.04 or SECTION 3.01 of this
Agreement that materially and adversely affects the interests of the Noteholders
or the Certificateholders in any Receivable, the party discovering such breach
shall give prompt written notice thereof to the others. As of the last day of
the second Monthly Period following its discovery or its receipt of notice of
breach (or, at the Seller's election, the last day of the first Monthly Period
following such discovery), unless such breach shall have been cured in all
material respects, in the event of a breach of the representations and
warranties made by the Seller in SECTION 2.04 or SECTION 3.01, the Seller shall
repurchase, or in the event of a breach of a representation and warranty under
SECTION 4.01 of the Pooling and Servicing Agreement the Seller and the Servicer
shall use reasonable efforts to enforce the obligation of GMAC under SECTION
5.04 of the Pooling and Servicing Agreement to repurchase, such Receivable from
the Issuer on the related Distribution Date. The repurchase price to be paid by
the breaching party (the "WARRANTY PURCHASER") shall be an amount equal to the
Warranty Payment. Upon repurchase, the Warranty Purchaser shall be entitled to
receive the Released Warranty Amount, if any. It is understood and agreed that
the obligation of the Warranty Purchaser to repurchase any Receivable as to
which a breach has occurred and is continuing, and the obligation of the Seller
and the Servicer to enforce GMAC's obligation to repurchase such Receivables
pursuant to the Pooling and Servicing Agreement shall, if such obligations are
fulfilled, constitute the sole remedy against the Seller, the Servicer or GMAC
for such breach available to the Issuer, Noteholders, Certificateholders, 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.
1.9.
ARTICLE III
THE SELLER
1.1. Section REPRESENTATIONS OF SELLER . The Seller makes the following
representations on which the Issuer is relying in acquiring the Receivables and
issuing the Notes and the Certificates. The following representations speak as
of the Closing Date but shall survive the sale, transfer and assignment of the
Receivables to the Issuer.
(a) REPRESENTATIONS AND WARRANTIES AS TO THE SELLER.
(b)
(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;
(i) 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;
(i) POWER AND AUTHORITY. The Seller has the power and authority to
execute and deliver this Agreement and to carry out its terms,
the Seller has full power and authority to sell and assign the
property to be sold and assigned to and deposited with the Issuer
as part of the Trust and has duly authorized such sale and
assignment to the Issuer by all necessary corporate action; and
the execution, delivery and performance of this Agreement have
been duly authorized by the Seller by all necessary corporate
action;
(i) VALID SALE; BINDING OBLIGATIONS. This Agreement, when duly
executed and delivered, shall constitute a valid sale, transfer
and assignment of the Receivables, enforceable against creditors
of and purchasers from the Seller; and this Agreement when duly
executed and delivered, shall constitute a legal, valid and
binding obligation of the Seller enforceable in accordance with
its terms, except as enforceability may be limited by bankruptcy,
insolvency, reorganization or other similar laws affecting the
enforcement of creditors' rights in general and by general
principles of equity, regardless of whether such enforceability
is considered in a proceeding in equity or at law;
(i) NO VIOLATION. The consummation of the transactions contemplated
by this Agreement by the Seller and the fulfillment of the terms
of this Agreement by the Seller shall not conflict with, result
in any breach of any of the terms and provisions of or constitute
(with or without notice or lapse of time) a default under, the
certificate of incorporation or by-laws of the Seller, or any
indenture, agreement or other instrument to which the Seller is a
party or by which it is bound, or result in the creation or
imposition of any Lien upon any of its properties pursuant to the
terms of any such indenture, agreement or other instrument, other
than this Agreement, or violate any law or, to the best of the
Seller's knowledge, any order, rule or regulation applicable to
the Seller of any court or of any federal or state regulatory
body, administrative agency or other governmental instrumentality
having jurisdiction over the Seller or any of its properties; and
(i) NO PROCEEDINGS. To the Seller's knowledge, there are no
proceedings or investigations pending, or threatened, before any
court, regulatory body, administrative agency or other tribunal
or governmental instrumentality having jurisdiction over the
Seller or its properties (i) asserting the invalidity of this
Agreement, the Notes, the Certificates, the Indenture, the Trust
Agreement, the Custodian Agreement or the Administration
Agreement, (ii) seeking to prevent the issuance of the Notes or
the Certificates or the consummation of any of the transactions
contemplated by this Agreement, the Pooling and Servicing
Agreement, the Indenture, the Trust Agreement, the Custodian
Agreement or the Administration Agreement, (iii) seeking any
determination or ruling that might materially and adversely
affect the performance by the Seller of its obligations under, or
the validity or enforceability of, this Agreement, the Pooling
and Servicing Agreement, the Notes, the Certificates, the
Indenture, the Trust Agreement, the Custodian Agreement or the
Administration Agreement, or (iv) seeking to adversely affect the
federal income tax attributes of the Notes or the Certificates.
(a) REPRESENTATIONS AND WARRANTIES AS TO THE RECEIVABLES.
(b)
(i) GOOD TITLE. No Receivable has been sold, transferred, assigned or
pledged by the Seller to any Person other than the Issuer;
immediately prior to the conveyance of the Receivables pursuant
to this Agreement the Seller had good and marketable title
thereto, free of any Lien; and, upon execution and delivery of
this Agreement by the Seller, the Issuer shall have all of the
right, title and interest of the Seller in, to and under the
Receivables, the unpaid indebtedness evidenced thereby and the
collateral security therefor, free of any Lien.
(i) 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.
1.1. Section LIABILITY OF SELLER . The Seller shall be liable in accordance with
this Agreement only to the extent of the obligations in this Agreement
specifically undertaken by the Seller.
1.1. Section MERGER OR CONSOLIDATION OF, OR ASSUMPTION OF THE OBLIGATIONS OF,
SELLER; AMENDMENT OF CERTIFICATE OF INCORPORATION .
1.2.
(a) Any corporation or other entity (i) into which the Seller may be
merged or consolidated, (ii) resulting from any merger or
consolidation to which the Seller shall be a party, (iii) succeeding
to the business of the Seller, or (iv) more than 50% of the voting
stock (or, if not a corporation, other voting interests) of which is
owned directly or indirectly by General Motors, which corporation in
any of the foregoing cases executes an agreement of assumption to
perform every obligation of the Seller under this Agreement, shall be
the successor to the Seller under this Agreement without the execution
or filing of any document or any further act on the part of any of the
parties to this Agreement. The Seller shall provide 10 days prior
notice of any merger, consolidation or succession pursuant to this
SECTION 3.03 to the Rating Agencies.
(a) 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.
(b)
1.2. Section LIMITATION ON LIABILITY OF SELLER AND OTHERS . The Seller and any
director or officer or employee or agent of the Seller may rely in good faith on
the advice of counsel or on any document of any kind prima facie properly
executed and submitted by any Person respecting any matters arising under this
Agreement. The Seller and any director or officer or employee or agent of the
Seller shall be reimbursed by the Indenture Trustee or Owner Trustee, as
applicable, for any contractual damages, liability or expense incurred by reason
of such trustee's willful misfeasance, bad faith or gross negligence (except
errors in judgment) in the performance of its duties under this Agreement, the
Indenture or the Trust Agreement, or by reason of reckless disregard of its
obligations and duties under this Agreement, the Indenture or the Trust
Agreement. The Seller shall not be under any obligation to appear in, prosecute
or defend any legal action that is not incidental to its obligations as Seller
of the Receivables under this Agreement and that in its opinion may involve it
in any expense or liability.
1.3.
1.4. Section 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.
1.5.
ARTICLE IV
SERVICER'S COVENANTS; DISTRIBUTIONS; RESERVE ACCOUNT;
STATEMENTS TO NOTEHOLDERS AND CERTIFICATEHOLDERS
1.1. Section ANNUAL STATEMENT AS TO COMPLIANCE; NOTICE OF SERVICER DEFAULT.
1.2.
(a) The Servicer shall deliver to the Indenture Trustee and the Owner
Trustee, on or before August 15 of each year, beginning August 15,
2000, 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.
1.1. Section ANNUAL INDEPENDENT ACCOUNTANTS' REPORT .
1.2.
(a) The Servicer shall cause a firm of independent accountants, who may
also render other services to the Servicer or the Seller, to deliver
to the Issuer and the Rating Agencies, on or before August 15 of each
year, beginning August 15, 2000 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)
(c) 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.
(d)
(e) 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.
(f)
1.3. Section ACCESS TO CERTAIN DOCUMENTATION AND INFORMATION REGARDING
RECEIVABLES . The Servicer shall provide to the Indenture Trustee and the Owner
Trustee reasonable access to the documentation regarding the Receivables. The
Servicer shall provide such access to any Noteholder or Certificateholder only
in such cases where a Noteholder or a Certificateholder is required by
applicable statutes or regulations to review such documentation. In each case,
such access shall be afforded without charge but only upon reasonable request
and during normal business hours at offices of the Servicer designated by the
Servicer. Nothing in this SECTION 4.03 shall derogate from the obligation of the
Servicer to observe any applicable law prohibiting disclosure of information
regarding Obligors, and the failure of the Servicer to provide access as
provided in this SECTION 4.03 as a result of such obligation shall not
constitute a breach of this SECTION 4.03.
1.4.
1.5. Section AMENDMENTS TO SCHEDULE OF RECEIVABLES . If the Servicer, during a
Monthly Period, assigns to a Receivable an account number that differs from the
account number previously identifying such Receivable on the SCHEDULE OF
RECEIVABLES, the Servicer shall deliver to the Seller, the Indenture Trustee and
the Owner Trustee on or before the Distribution Date related to such Monthly
Period an amendment to the SCHEDULE OF RECEIVABLES to report the newly assigned
account number. Each such amendment shall list all new account numbers assigned
to Receivables during such Monthly Period and shall show by cross reference the
prior account numbers identifying such Receivables on the SCHEDULE OF
RECEIVABLES.
1.6.
1.7. Section 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.
1.1. Section DISTRIBUTIONS .
1.2.
(a) On or before each Determination Date, the Servicer shall calculate the
Total Available Amount, the Available Interest, the Available
Principal, the Total Servicing Fee, the Aggregate Noteholders'
Interest Distributable Amount, the Aggregate Noteholders' Principal
Distributable Amount, the Certificateholders' Interest Distributable
Amount, the Certificateholders' Principal Distributable Amount, and
all other amounts required to determine the amounts to be deposited in
or paid from each of the Collection Account, the Note Distribution
Account, the Certificate Distribution Account, the Reserve Account
and, if applicable, the Payment Ahead Servicing Account on the related
Distribution Date.
(i) On or before each Distribution Date, the Indenture Trustee shall
cause collections made during the related Monthly Period which
constitute Payments Ahead to be transferred from the Collection
Account to the Servicer, or to the Payment Ahead Servicing
Account, if required pursuant to SECTION 5.01(E).
(ii)
(iii)On or before each Distribution Date, the Indenture Trustee
shall transfer from the Payment Ahead Servicing Account (or,
if the Servicer is not required to make deposits to the
Payment Ahead Servicing Account on a daily basis pursuant to
SECTION 5.01(E), the Servicer shall deposit) to the
Collection Account the aggregate Applied Payments Ahead.
(i) 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 SUBSECTION
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.
(i) On or before each Distribution Date, the Indenture Trustee shall
withdraw from the Reserve Account and deposit in the Collection
Account the lesser of (A) the amount of cash or other immediately
available funds deposited therein and (B) the amount, if any, by
which (x) the sum of the Total Servicing Fee, the Aggregate
Noteholders' Interest Distributable Amount, the
Certificateholders' Interest Distributable Amount, the Aggregate
Noteholders' Principal Distributable Amount and the
Certificateholders' Principal Distributable Amount for such
Distribution Date exceeds (y) the sum of the Available Interest
and Available Principal for such Distribution Date.
(c) Except as otherwise provided in SECTION 4.06(D), on each Distribution
Date the Indenture Trustee (based on the information contained in the
Servicer's Accounting delivered on the related Determination Date
pursuant to SECTION 3.10 of the Pooling and Servicing Agreement) shall
make the following distributions from the Collection Account (after
the withdrawals, deposits and transfers specified in SECTION 4.06(B)
have been made) in the following order of priority:
(d)
(i) first, to the Servicer, to the extent of the Total Available
Amount, the Total Servicing Fee;
(i) second, to the Note Distribution Account, to the extent of the
Total Available Amount (as such amount has been reduced by the
distributions described in clause (i) above), the Aggregate
Noteholders' Interest Distributable Amount;
(i) third, 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) and (ii) above), the
Certificateholders' Interest Distributable Amount;
(i) fourth, to the Note Distribution Account, to the extent of the
Total Available Amount (as such amount has been reduced by the
distributions described in clauses (i), (ii) and (iii) above),
the Aggregate Noteholders' Principal Distributable Amount;
(i) fifth, 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 (iv) above),
the Certificateholders' Principal Distributable Amount; and
(i) sixth, to the Reserve Account, any portion of the Total Available
Amount remaining after the distributions described in CLAUSES
(i) through (v) above.
(c) Notwithstanding the foregoing, at any time that the Notes have not
been paid in full and the principal balance of the Notes has been
declared immediately due and payable following the occurrence of an
Event of Default specified in SECTIONS 5.1(A), (B) OR (C) of the
Indenture, then until such time as the Notes have been paid in full
and the Indenture has been discharged or all Events of Default have
been cured or waived as provided in SECTION 5.2(B) of the Indenture,
no amounts shall be deposited in or distributed to the Certificate
Distribution Account. Any such amounts otherwise distributable to the
Certificate Distribution Account shall be deposited instead into the
Note Distribution Account for payment of principal on the Notes.
5.7. Section RESERVE ACCOUNT .
5.8.
(c) There shall be established in the name of and maintained with the
Indenture Trustee an Eligible Deposit Account known as the Capital
Auto Receivables Asset Trust 1999-1 Reserve Account (the "RESERVE
ACCOUNT") to include the money and other property deposited and held
therein pursuant to this SECTION 4.07(A), SECTION 4.07(E) and SECTION
4.06(C). On the Closing Date, the Seller shall deposit the Reserve
Account Initial Deposit into the Reserve Account. The Reserve Account
shall not under any circumstances be deemed to be part of or otherwise
included in the Trust.
(c) 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.
(d)
(e) 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 right, title
and interest in and to the Reserve Account Property, to have and to
hold all such property, rights and privileges unto the Indenture
Trustee, its successors and assigns, in trust for the uses and
purposes, and subject to the terms and provisions, set forth in this
SECTION 4.07. The Indenture Trustee hereby acknowledges such transfer
and accepts the trust hereunder and shall hold and distribute the
Reserve Account Property in accordance with the terms and provisions
of this Agreement.
(f)
(g) Each of the Seller and the Servicer agree to take or cause to be taken
such further actions, to execute, deliver and file or cause to be
executed, delivered and filed such further documents and instruments
(including, without limitation, any UCC financing statements or this
Agreement) as may be determined to be necessary, in an Opinion of
Counsel to the Seller delivered to the Indenture Trustee, in order to
perfect the interests created by this SECTION 4.07 and otherwise fully
to effectuate the purposes, terms and conditions of this SECTION 4.07.
The Seller shall:
(h)
(i) promptly execute, deliver and file any financing statements,
amendments, continuation statements, assignments, certificates
and other documents with respect to such interests and perform
all such other acts as may be necessary in order to perfect or to
maintain the perfection of the Indenture Trustee's security
interest; and
(i) make the necessary filings of financing statements or amendments
thereto within thirty days after the occurrence of any of the
following: (A) any change in their respective corporate names or
any trade names, (B) any change in the location of their
respective chief executive offices or principal places of
business and (C) any merger or consolidation or other change in
their respective identities or corporate structures; and shall
promptly notify the Indenture Trustee of any such filings.
(c) 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.
(d)
5.8. Section 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
SUBSECTION 5.01(E) to remit Payments Ahead on a basis other than on a daily
basis, the Servicer, the Seller, the Indenture Trustee and the Owner Trustee may
make any remittances pursuant to this ARTICLE IV net of amounts to be
distributed by the applicable recipient to such remitting party. Nonetheless,
each such party shall account for all of the above described remittances and
distributions as if the amounts were deposited and/or transferred separately.
5.7. Section STATEMENTS TO SECURITYHOLDERS .
5.8.
(c) 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;
(i) the amount of the distribution, if any, allocable to interest on
or with respect to each class of securities;
(i) the Aggregate 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;
(i) 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;
(i) 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;
(i) 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;
(i) the amount of Outstanding Monthly Advances on such Distribution
Date;
(i) the amount of the Total Servicing Fee paid to the Servicer with
respect to the related Monthly Period;
(i) the amount, if any, distributed to Noteholders and
Certificateholders from amounts on deposit in the Reserve
Account; and
(i) the balance of the Reserve Account on such Distribution Date
(after giving effect to changes therein on such Distribution
Date).
Each amount set forth pursuant to CLAUSES (I), (II), (V), (VIII) and (IX) above
shall be expressed as a dollar amount per $1,000 of initial principal amount of
the Notes or of the Certificate Balance, as applicable.
(c) 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.
(d)
ARTICLE V
CERTIFICATEHOLDER AND NOTEHOLDER STATEMENTS AND ACCOUNTS;
COLLECTIONS, DEPOSITS AND INVESTMENTS; ADVANCES
5.7. Section ESTABLISHMENT OF ACCOUNTS .
5.8.
(i) The Servicer, for the benefit of the Noteholders and the
Certificateholders, shall establish and maintain in the name of
the Indenture Trustee an Eligible Deposit Account known as the
Capital Auto Receivables Asset Trust 1999-1 Collection Account
(the "COLLECTION ACCOUNT"), bearing an additional designation
clearly indicating that the funds deposited therein are held for
the benefit of the Noteholders and the Certificateholders.
(i) The Servicer, for the benefit of the Noteholders, shall establish
and maintain in the name of the Indenture Trustee an Eligible
Deposit Account known as the Capital Auto Receivables Asset Trust
1999-1 Note Distribution Account (the "NOTE DISTRIBUTION
ACCOUNT"), bearing an additional designation clearly indicating
that the funds deposited therein are held for the benefit of the
Noteholders.
(i) If and as required pursuant to the Trust Agreement, the Servicer,
for the benefit of the Certificateholders, shall establish and
maintain at Bankers Trust Company in the name of the Issuer an
Eligible Deposit Account known as the Capital Auto Receivables
Asset Trust 1999-1 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.
(i) 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 1999-1 Payment
Ahead Servicing Account (the "PAYMENT AHEAD SERVICING ACCOUNT").
The Payment Ahead Servicing Account shall not be property of the
Issuer.
(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 except, and then only to the
extent, as shall be otherwise permitted by the Rating Agencies.
Investments in Eligible Investments shall be made in the name of
the Indenture Trustee or its nominee, and such investments shall
not be sold or disposed of prior to their maturity; PROVIDED,
HOWEVER, that Notes held in the Reserve Account may be sold or
disposed of prior to their maturity so long as (x) the Servicer
directs the Indenture Trustee to make such sale or disposition,
(y) the Indenture Trustee gives reasonable prior notice of such
disposition to the Administrator and (z) such Notes are sold at a
price equal to or greater than the unpaid principal balance
thereof if, following such sale, the amount on deposit in the
Reserve Account would be less than the Specified Reserve Account
Balance. Should the short-term unsecured debt obligations of the
Indenture Trustee (or any other bank or trust company with which
the Designated Accounts or Payment Ahead Servicing Account are
maintained) no longer have the Required Deposit Rating, then the
Servicer shall within 10 Business Days (or such longer period,
not to exceed 30 calendar days, as to which each Rating Agency
shall consent), with the Indenture Trustee's assistance as
necessary, cause the Designated Accounts and the Payment Ahead
Servicing Account (A) to be moved to a bank or trust company, the
short-term unsecured debt obligations of which shall have the
Required Deposit Rating, or (B) with respect to the Designated
Accounts, to be moved to the corporate trust department of the
Indenture Trustee. Investment Earnings on funds deposited in the
Designated Accounts and the Payment Ahead Servicing Account shall
be payable to the Servicer. The Indenture Trustee or the other
Person holding the Designated Accounts as provided in this
SECTION 5.01(B)(I) shall be the "SECURITIES INTERMEDIARY." If the
Securities Intermediary shall be a Person other than the
Indenture Trustee, the Servicer shall obtain the express
agreement of such Person to the obligations of the Securities
Intermediary set forth in this SECTION 5.01 and an Opinion of
Counsel that such Person can perform such Obligations.
(ii)
(iii)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.
(A) 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.
(A) All property delivered to the Securities Intermediary pursuant to
this Agreement will be credited upon receipt of such property to
the appropriate Designated Account.
(A) 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.
(A) 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.
(A) 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.
(A) The Securities Intermediary has not entered into, and until the
termination of this Agreement will not enter into, any agreement
with any other Person relating to the Designated Accounts and/or
any Financial Assets or other property credited thereto pursuant
to which it has agreed to comply with entitlement orders (as
defined in Section 8-102(a)(8) of the New York UCC) of such other
Person and the Securities Intermediary has not entered into, and
until the termination of this Agreement will not enter into, any
agreement with the Issuer, the Seller, the Servicer or the
Indenture Trustee purporting to limit or condition the obligation
of the Securities Intermediary to comply with entitlement orders
as set forth in SECTION 5.01(B)(II)(E) hereof.
(A) 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.
(A) 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.
(A) 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.
(i) 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.
(i) 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.
(i) 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.
(b) Pursuant to the Trust Agreement, the Issuer shall possess all right,
title and interest in and to all funds on deposit from time to time in
the Certificate Distribution Account and in all proceeds thereof
(except Investment Earnings). Except as otherwise provided herein or
in the Trust Agreement, the Certificate Distribution Account shall be
under the sole dominion and control of the Owner Trustee for the
benefit of the Certificateholders. If, at any time, the Certificate
Distribution Account ceases to be an Eligible Deposit Account, the
Owner Trustee (or the Seller on behalf of the Owner Trustee, if the
Certificate Distribution Account is not then held by the Owner Trustee
or an Affiliate thereof) shall within 10 Business Days (or such longer
period, not to exceed 30 calendar days, as to which each Rating Agency
may consent) establish a new Certificate Distribution Account as an
Eligible Deposit Account and shall transfer any cash and/or any
investments to such new Certificate Distribution Account.
(c)
(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)
(f) At any time that each Monthly Remittance Condition is satisfied, then
(x) Payments Ahead need not be remitted to and deposited in the
Payment Ahead Servicing Account but instead may be remitted to and
held by the Servicer and (y) the Servicer shall not be required to
segregate or otherwise hold separate any Payments Ahead, but the
Servicer shall be required to remit Applied Payments Ahead to the
Collection Account in accordance with SECTION 4.06(B)(II). The
Servicer shall promptly notify the Indenture Trustee if any Monthly
Remittance Condition ceases to be satisfied such that the Payments
Ahead will not be remitted in accordance with the prior sentence.
Commencing with the first day of the first Monthly Period that begins
at least two Business Days after the day on which any Monthly
Remittance Condition ceases to be satisfied, the Servicer shall
deposit in the Payment Ahead Servicing Account the amount of any
Payments Ahead then held by it, and thereafter, for so long as a
Monthly Remittance Condition continues to be unsatisfied, the Servicer
shall deposit any additional Payments Ahead in the Payments Ahead
Servicing Account within two Business Days after receipt thereof.
Notwithstanding the foregoing, if a Monthly Remittance Condition is
unsatisfied the Servicer may utilize, with respect to the Payments
Ahead, an alternative remittance schedule (which may include a
remittance schedule utilized by the Servicer at a time when the
Monthly Remittance Conditions were satisfied), if the Servicer
provides to the Indenture Trustee written confirmation from the Rating
Agencies that such alternative remittance schedule will not result in
the downgrading or withdrawal by the Rating Agencies of the ratings
then assigned to the Notes and the Certificates. Neither the Indenture
Trustee nor the Owner Trustee shall be deemed to have knowledge of any
Servicer Default unless such trustee has received notice of such event
or circumstance from the other trustee, the Seller or the Servicer in
an officer's certificate or from Certificateholders whose Certificates
evidence not less than 25% of the Voting Interests as of the close of
the preceding Distribution Date or from Noteholders whose Notes
evidence not less than 25% of the Outstanding Amount of the Notes as
of the close of the preceding Distribution Date or unless a
Responsible Officer in the Corporate Trust Office of the Indenture
Trustee with knowledge hereof and familiarity herewith has actual
knowledge of such event or circumstance.
(g)
1.8. Section COLLECTIONS . If a Monthly Remittance Condition is not satisfied,
commencing with the first day of the first Monthly Period that begins at least
two Business Days after the day on which any Monthly Remittance Condition ceases
to be satisfied, the Servicer shall remit to the Collection Account all payments
by or on behalf of the Obligors (including Payments Ahead in accordance with
SECTION 5.01(E)) on the Receivables and all Liquidation Proceeds within two
Business Days after receipt thereof. Notwithstanding the foregoing, if a Monthly
Remittance Condition is unsatisfied, the Servicer may utilize an alternative
remittance schedule (which may include a remittance schedule utilized by the
Servicer at a time when the Monthly Remittance Conditions were satisfied), if
the Servicer provides to the Indenture Trustee written confirmation from the
Rating Agencies that such alternative remittance schedule will not result in the
downgrading or withdrawal by the Rating Agencies of the ratings then assigned to
the Notes or the Certificates. At all times when all Monthly Remittance
Conditions are satisfied, the Servicer (i) shall not be required to segregate or
otherwise hold separate any Payments Ahead remitted to the Servicer and (ii)
shall remit collections received during a Monthly Period to the Collection
Account in immediately available funds on the related Distribution Date
1.9.
1.10. Section INVESTMENT EARNINGS AND SUPPLEMENTAL SERVICING FEES . The Servicer
shall be entitled to receive all Investment Earnings and Supplemental Servicing
Fees when and as paid without any obligation to the Owner Trustee, the Indenture
Trustee or the Seller in respect thereof. The Servicer will have no obligation
to deposit any such amount in any account established hereunder. To the extent
that any such amount shall be held in any account held by the Indenture Trustee
or the Owner Trustee, or otherwise established hereunder, such amount will be
withdrawn therefrom and paid to the Servicer upon presentation of a certificate
signed by a Responsible Officer of the Servicer setting forth, in reasonable
detail, the amount of such Investment Earnings or Supplemental Servicing Fees.
6.2. Section MONTHLY ADVANCES .
6.3.
(b) 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 SUBSECTION
3.11(A) of the Pooling and Servicing Agreement, the Servicer shall
advance an amount equal to such shortfall (such amount, a "SCHEDULED
INTEREST ADVANCE"). The Servicer shall be obligated to make a
Scheduled Interest Advance in respect of a Scheduled Interest
Receivable only to the extent that the Servicer, in its sole
discretion, shall determine that such advance shall be recoverable
from subsequent collections or recoveries on any Receivable. The
Servicer shall be reimbursed for Outstanding Scheduled Interest
Advances with respect to a Receivable from the following sources with
respect to such Receivable, in each case as set forth in the Pooling
and Servicing Agreement: (i) subsequent payments by or on behalf of
the Obligor, (ii) collections of Liquidation Proceeds, and (iii) the
Warranty Payment. At such time as the Servicer shall determine that
any Outstanding Scheduled Interest Advances with respect to any
Scheduled Interest Receivable shall not be recoverable from payments
with respect to such Receivable, the Servicer shall be reimbursed from
any collections made on other Receivables held by the Issuer.
(b) As of the last day of each Monthly Period, the Servicer shall advance
an amount equal to the excess, if any, of (i) the amount of interest
that would be due during such Monthly Period on all Simple Interest
Receivables held by the Issuer (assuming that the payment on each such
Receivable was received on its respective due date) over (ii) all
payments received during such Monthly Period on all Simple Interest
Receivables held by the Issuer to the extent allocable to interest
(such excess, a "SIMPLE INTEREST ADVANCE"). In addition, Liquidation
Proceeds with respect to a Simple Interest Receivable allocable to
accrued and unpaid interest thereon (but not including interest for
the then current Monthly Period) shall be paid to the Servicer but
only to the extent of any Outstanding Simple Interest Advances. The
Servicer shall not make any advance with respect to principal of any
Simple Interest Receivable. Excess Simple Interest Collections shall
be paid to the Servicer as provided in SECTION 3.11(B) of the Pooling
and Servicing Agreement.
(c)
6.3. Section ADDITIONAL DEPOSITS . The Servicer shall deposit in the Collection
Account the aggregate Monthly Advances pursuant to SECTIONS 5.04(A) AND (B) and
the aggregate amounts to be paid to the Issuer pursuant to SECTION 3.03 of the
Pooling and Servicing Agreement. The Servicer and the Seller shall deposit in
the Collection Account the aggregate Administrative Purchase Payments and
Warranty Payments with respect to Administrative Receivables and Warranty
Receivables, respectively. All such deposits with respect to a Monthly Period
shall be made in immediately available funds on the Distribution Date related to
such Monthly Period.
6.4.
ARTICLE VI
LIABILITIES OF SERVICER AND OTHERS
6.2. Section LIABILITY OF SERVICER; INDEMNITIES .
6.3.
(b) The Servicer shall be liable in accordance with this Agreement only to
the extent of the obligations in this Agreement and the Pooling and
Servicing Agreement specifically undertaken by the Servicer. Such
obligations shall include the following:
(i) The Servicer shall defend, indemnify and hold harmless the
Indenture Trustee, the Owner Trustee, the Issuer, the 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;
(i) The Servicer shall indemnify, defend and hold harmless the
Indenture Trustee, the Owner Trustee and the Issuer from and
against any taxes that may at any time be asserted against any
such Person with respect to the transactions contemplated in this
Agreement, including, without limitation, any sales, gross
receipts, general corporation, tangible personal property,
privilege or license taxes (but not including any taxes asserted
with respect to, and as of the date of, the sale of the
Receivables to the Issuer or the issuance and original sale of
the Notes and the Certificates, or asserted with respect to
ownership of the Receivables, or federal or other income taxes
arising out of distributions on the Notes or the Certificates, or
any fees or other compensation payable to any such Person) and
costs and expenses in defending against the same;
(i) 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 or the Trust
Agreement; and
(i) 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 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.
(c)
6.3. Section MERGER OR CONSOLIDATION OF, OR ASSUMPTION OF THE OBLIGATIONS
OF, THE SERVICER . Any corporation or other entity (a) into which the Servicer
may be merged or consolidated, (b) resulting from any merger, conversion or
consolidation to which the Servicer shall be a party, (c) succeeding to the
business of the Servicer, or (d) more than 50% of the voting stock (or, if not a
corporation, other voting interests) of which is owned directly or indirectly by
General Motors and which is otherwise servicing the Seller's receivables, which
corporation in any of the foregoing cases executes an agreement of assumption to
perform every obligation of the Servicer under this Agreement and the Pooling
and Servicing Agreement, shall be the successor to the Servicer under this
Agreement and the Pooling and Servicing Agreement without the execution or
filing of any paper or any further act on the part of any of the parties to this
Agreement, anything in this Agreement or in the Pooling and Servicing Agreement
to the contrary notwithstanding. The Servicer shall provide notice of any
merger, consolidation or succession pursuant to this SECTION 6.02 to the Rating
Agencies.
6.2. Section LIMITATION ON LIABILITY OF SERVICER AND OTHERS .
6.3.
(b) Neither the Servicer nor any of the directors or officers or employees
or agents of the Servicer shall be under any liability to the Issuer,
the Noteholders or the Certificateholders, except as specifically
provided in this Agreement and in the Pooling and Servicing Agreement,
for any action taken or for refraining from the taking of any action
pursuant to this Agreement, the Pooling and Servicing Agreement, the
Indenture or the Trust Agreement or for errors in judgment; PROVIDED,
HOWEVER, that this provision shall not protect the Servicer or any
such Person against any liability that would otherwise be imposed by
reason of willful misfeasance, bad faith or negligence (except errors
in judgment) in the performance of duties or by reason of reckless
disregard of obligations and duties under this Agreement, the Pooling
and Servicing Agreement, the Indenture or the Trust Agreement. The
Servicer and any director, officer or employee or agent of the
Servicer may rely in good faith on 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 SUBSECTION 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)
(d) 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.
(e)
(f) The Applicable Trustee shall distribute out of the Collection Account
on a Distribution Date any amounts permitted for reimbursement
pursuant to SUBSECTION 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.
(g)
6.3. Section 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.
6.4.
6.5. Section 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.
6.6.
ARTICLE VII
DEFAULT
6.2. Section SERVICER DEFAULTS . Each of the following shall constitute a
"SERVICER DEFAULT":
(b) 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;
(c)
(d) failure on the part of the Seller or the Servicer to duly observe or
perform in any material respect any other covenants or agreements of
the Seller or the Servicer set forth in this Agreement, the Pooling
and Servicing Agreement, the Indenture or the Trust Agreement which
failure (i) materially and adversely affects the rights of Noteholders
or Certificateholders, and (ii) continues unremedied for a period of
90 days after the date on which written notice of such failure,
requiring the same to be remedied, shall have been given to the Seller
or the Servicer, as applicable, by the Indenture Trustee or the Owner
Trustee, or to the Seller or the Servicer, as applicable, and to the
Indenture Trustee or the Owner Trustee by Noteholders whose Notes
evidence not less than 25% of the Outstanding Amount of the Notes as
of the close of the preceding Distribution Date or by
Certificateholders whose Certificates evidence not less than 25% of
the Voting Interests as of the close of the preceding Distribution
Date;
(e)
(f) 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
(g)
(h) 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.
(i)
6.3. Section CONSEQUENCES OF A SERVICER DEFAULT . If a Servicer Default shall
occur and be continuing, either the Indenture Trustee or the Noteholders whose
Notes evidence not less than a majority of the Outstanding Amount of the Notes
as of the close of the preceding Distribution Date (or, if the Notes have been
paid in full and the Indenture has been discharged in accordance with its terms,
by the Owner Trustee or Certificateholders whose Certificates evidence not less
than a majority of the Voting Interests as of the close of the preceding
Distribution Date) by notice then given in writing to the Servicer and the Owner
Trustee (and to the Indenture Trustee if given by the Noteholders or the
Certificateholders) may terminate all of the rights and obligations of the
Servicer under this Agreement and the Pooling and Servicing Agreement. On or
after the receipt by the Servicer of such written notice, all authority and
power of the Servicer under this Agreement and the Pooling and Servicing
Agreement, whether with respect to the Notes, the Certificates or the
Receivables or otherwise, shall pass to and be vested in the Indenture Trustee
pursuant to and under this SECTION 7.02. The Indenture Trustee is hereby
authorized and empowered to execute and deliver, on behalf of the Servicer, as
attorney-in-fact or otherwise, any and all documents and other instruments, and
to do or accomplish all other acts or things necessary or appropriate to effect
the purposes of such notice of termination, whether to complete the transfer and
endorsement of the Receivables and related documents, or otherwise. The Servicer
agrees to cooperate with the Indenture Trustee and the Owner Trustee in
effecting the termination of the responsibilities and rights of the Servicer
under this Agreement and the Pooling and Servicing Agreement, including, without
limitation, the transfer to the Indenture Trustee or the Owner Trustee for
administration by it of all cash amounts that shall at the time be held by the
Servicer for deposit, or that shall have been deposited by the Servicer in the
Collection Account, the Note Distribution Account, the Certificate Distribution
Account or the Payment Ahead Servicing Account or thereafter received with
respect to the Receivables and all Payments Ahead that shall at that time be
held by the Servicer. In addition to any other amounts that are then payable to
the Servicer under this Agreement, the Servicer shall be entitled to receive
from the successor Servicer reimbursements for any Outstanding Monthly Advances
made during the period prior to the notice pursuant to this SECTION 7.02 which
terminates the obligation and rights of the Servicer under this Agreement.
6.4.
6.5. Section 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.
6.6.
6.7. Section 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.
6.8.
6.9. Section 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.
6.10.
6.11. Section 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.
6.12.
ARTICLE VIII
TERMINATION
6.2. Section OPTIONAL PURCHASE OF ALL RECEIVABLES; INSOLVENCY OF SELLER;
TERMINATION OF TRUST .
(b) The Servicer shall have the option to purchase the assets of the Trust
(other than the Designated Accounts and the Certificate Account) as of
any date (the "OPTIONAL PURCHASE DATE") which is the last day of any
Monthly Period as of which the Aggregate Principal Balance is 10% or
less of the Aggregate Amount Financed. To exercise such option, the
Servicer shall (i) furnish to the Issuer and the Indenture Trustee
notice of its intention to exercise such option and of the Optional
Purchase Date (such notice to be furnished not later than 25 days
prior to the Distribution Date related to such Optional Purchase Date)
and (ii) deposit in the Collection Account an amount equal to the
aggregate Administrative Purchase Payments for the Receivables
(including Liquidating Receivables), plus the appraised value of any
other property held by the Trust (less the Liquidation Expenses to be
incurred in connection with the recovery thereof), provided, that such
amount (when added to any funds then on deposit in the Designated
Accounts and the Certificate Distribution Account) must be at least
equal to the aggregate Redemption Price of the outstanding Notes to be
redeemed and the Certificate Balance plus accrued and unpaid interest
on all Certificates to be retired early with such proceeds on the
Distribution Date related to the Monthly Period in which such option
is exercised. Such appraised value shall be determined by an appraiser
mutually satisfactory to the Servicer, the Owner Trustee and the
Indenture Trustee. The Servicer shall make such deposit in immediately
available funds on the Distribution Date related to the Optional
Purchase Date, except that if any Monthly Remittance Condition is not
satisfied on the Optional Purchase Date, such deposit shall instead be
made on the Optional Purchase Date. Upon the making of such deposit,
the Servicer shall succeed to all interests in and to the Trust (other
than the Designated Accounts and the Certificate Account).
(b) Upon any sale or other disposition of the assets of the Trust pursuant
to ARTICLE V of the Indenture (an "EVENT OF DEFAULT SALE"), the
Servicer shall instruct the Applicable Trustee to deposit into the
Collection Account from the proceeds of such disposition the amount
specified in clause SECOND of SECTION 5.4(B) of the Indenture (the
"EVENT OF DEFAULT PROCEEDS"). On the Distribution Date on which the
Event of Default Proceeds are deposited in the Collection Account (or,
if such proceeds are not so deposited on a Distribution Date, on the
Distribution Date immediately following such deposit), the Servicer
shall instruct the Applicable Trustee to make the following deposits
(after the application on such Distribution Date of the Available
Principal and the Available Interest and funds on deposit in the
Reserve Account pursuant to SECTIONS 4.06 AND 4.07) from the Event of
Default Proceeds and any funds remaining on deposit in the Reserve
Account (including the proceeds of any sale of investments therein as
described in the following sentence) in the following priority:
(c)
(i) to the Note Distribution Account, any portion of the Aggregate
Noteholders' Interest Distributable Amount not otherwise
deposited into the Note Distribution Account on such Distribution
Date for payment of interest on the Notes;
(i) if such Event of Default Sale results from the occurrence of an
Event of Default specified in SECTION 5.1(A), (B) OR (C) of the
Indenture, to the Note Distribution Account, an amount equal to
the Note Principal Balance of the Notes (after giving effect to
the reduction in the Aggregate Note Principal Balance to result
from the deposits made in the Note Distribution Account on such
Distribution Date and on each prior Distribution Date) for
payment of principal of the Notes;
(i) 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;
(i) if such Event of Default Sale does not result from the
circumstances specified in SECTION 8.01(B)(II), to the Note
Distribution Account, an amount equal to the Note Principal
Balance of the Notes (after giving effect to the reduction in the
Aggregate Note Principal Balance to result from the deposits made
in the Note Distribution Account on such Distribution Date and on
each prior Distribution Date) for payment of principal of the
Notes; and
(i) to the Certificate Distribution Account, an amount equal to the
Certificate Balance of the Certificates (after giving effect to
the reduction therein to result from the deposits made in the
Certificate Distribution Account on such Distribution Date and on
each prior Distribution Date) for payment of the Certificate
Balance on the Certificates.
Subject to SECTION 5.01(B), any investments on deposit in the Reserve Account
which shall not mature on or before such Distribution Date shall be sold by the
Indenture Trustee at such time as shall result in the Indenture Trustee
receiving the proceeds from such sale not later than such Distribution Date. Any
Event of Default Proceeds remaining after the deposits described above shall be
paid to the Seller.
(c) Notice of any termination of the Trust shall be given by the Servicer
to the Owner Trustee and the Indenture Trustee as soon as practicable
after the Servicer has received notice thereof.
(d) Following the satisfaction and discharge of the Indenture with respect
to the Notes, and the payment in full of the principal and interest on
the Notes, the Certificateholders shall succeed to the rights of the
Noteholders hereunder and the Owner Trustee shall succeed to the
rights of, and assume the obligations (other than those under SECTION
7.03 which shall remain obligations of the Indenture Trustee) of, the
Indenture Trustee pursuant to this Agreement (subject to the
continuing obligations of the Indenture Trustee set forth in SECTION
4.4 of the Indenture).
(e) After indefeasible payment in full to the Indenture Trustee, the Owner
Trustee, the Noteholders, the Certificateholders and the Servicer of
all amounts required to be paid under this Agreement, the Indenture
and the Trust Agreement (including as contemplated by this SECTION
8.01), (i) any amounts on deposit in the Reserve Account, the Payment
Ahead Servicing Account and the Collection Account (after all other
distributions required to be made from such accounts have been made
and provision for the payment of all liabilities of the Trust as
required by Section 3808 of the Business Trust Statute) shall be paid
to the Seller and (ii) any other assets remaining in the Trust shall
be distributed to the Seller.
ARTICLE IX
MISCELLANEOUS PROVISIONS
6.2. Section AMENDMENT .
6.3.
(b) This Agreement may be amended by the Seller, the Servicer and the
Owner Trustee with the consent of the Indenture Trustee, but without
the consent of any of the Noteholders or the Certificateholders, (i)
to cure any ambiguity, (ii) to correct or supplement any provision in
this Agreement that may be defective or inconsistent with any other
provision in this Agreement or any other Basic Documents, (iii) to add
or supplement any credit enhancement for the benefit of the
Noteholders of any class or the Certificateholders (provided that if
any such addition shall affect any class of Noteholders or
Certificateholders differently than any other class of Noteholders or
Certificateholders, then such addition shall not, as evidenced by an
Opinion of Counsel, adversely affect in any material respect the
interests of any class of Noteholders or the Certificateholders), (iv)
add to the covenants, restrictions or obligations of the Seller, the
Servicer, the Owner Trustee or the Indenture Trustee or (v) add,
change or eliminate any other provision of this Agreement in any
manner that shall not, as evidenced by an Opinion of Counsel,
adversely affect in any material respect the interests of the
Noteholders or the Certificateholders.
(b) This Agreement may also be amended from time to time by the Seller,
the Servicer and the Owner Trustee with the consent of the Indenture
Trustee, the consent of Noteholders whose Notes evidence not less than
a majority of the Outstanding Amount of the Notes as of the close of
the preceding Distribution Date, the consent of Certificateholders
whose Certificates evidence not less than a majority of the Voting
Interests as of the close of the preceding Distribution Date (which
consent, whether given pursuant to this SECTION 9.01 or pursuant to
any other provision of this Agreement, shall be conclusive and binding
on such Person and on all future holders of such Note or Certificate
and of any Note or Certificate issued upon the transfer thereof or in
exchange thereof or in lieu thereof whether or not notation of such
consent is made upon the Note or Certificate) for the purpose of
adding any provisions to or changing in any manner or eliminating any
of the provisions of this Agreement, or of modifying in any manner the
rights of the Noteholders or the Certificateholders; PROVIDED,
HOWEVER, that no such amendment shall (i) increase or reduce in any
manner the amount of, or accelerate or delay the timing of,
collections of payments on Receivables or distributions that shall be
required to be made on any Note or Certificate, the Interest Rate for
any class of Notes, the Pass Through Rate or the Specified Reserve
Account Balance or (ii) reduce the aforesaid percentage required to
consent to any such amendment, without the consent of the holders of
all Notes and Certificates then outstanding.
(c)
(d) 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.
(e)
(f) Promptly after the execution of any such amendment or consent, the
Owner Trustee shall furnish written notification of the substance of
such amendment or consent to each Noteholder and Certificateholder.
(g)
(h) It shall not be necessary for the consent of Noteholders or
Certificateholders pursuant to SUBSECTION 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.
(i)
(j) 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 SUBSECTION
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.
(k)
(l) 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.
6.2. Section PROTECTION OF TITLE TO TRUST .
6.3.
(b) The Seller or the Servicer or both shall execute and file such
financing statements and cause to be executed and filed such
continuation and other statements, all in such manner and in such
places as may be required by law fully to preserve, maintain and
protect the interest of the Noteholders, the Certificateholders and
the Indenture Trustee and the Owner Trustee under this Agreement in
the Receivables and in the proceeds thereof. The Seller or the
Servicer or both shall deliver (or cause to be delivered) to the
Indenture Trustee and the Owner Trustee file-stamped copies of, or
filing receipts for, any document filed as provided above, as soon as
available following such filing.
(b) Neither the Seller nor the Servicer shall change its name, identity or
corporate structure in any manner that would, could or might make any
financing statement or continuation statement filed in accordance with
paragraph (a) above seriously misleading within the meaning of Section
9-402(7) of the UCC, unless it shall have given the Indenture Trustee
and the Owner Trustee at least 60 days prior written notice thereof.
(c)
(d) Each of the Seller and the Servicer shall give the Indenture Trustee
and the Owner Trustee at least 60 days prior written notice of any
relocation of its principal executive office if, as a result of such
relocation, the applicable provisions of the UCC would require the
filing of any amendment of any previously filed financing or
continuation statement or of any new financing statement. The Servicer
shall at all times maintain each office from which it services
Receivables and its principal executive office within the United
States of America.
(e)
(f) 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.
(g)
(h) The Servicer shall maintain its computer systems so that, from and
after the time of sale under this Agreement of the Receivables, the
Servicer's master computer records (including any back-up archives)
that refer to any Receivable indicate clearly that the Receivable is
owned by the Issuer. Indication of the Issuer's ownership of a
Receivable shall be deleted from or modified on the Servicer's
computer systems when, and only when, the Receivable has been paid in
full or repurchased by the Seller or purchased by the Servicer.
(i)
(j) If at any time the Seller or the Servicer proposes to sell, grant a
security interest in, or otherwise transfer any interest in automotive
receivables to any prospective purchaser, lender or other transferee,
the Servicer shall give to such prospective purchaser, lender or other
transferee computer tapes, records or print-outs (including any
restored from back-up archives) that, if they refer in any manner
whatsoever to any Receivable, indicate clearly that such Receivable
has been sold and is owned by the Issuer unless such Receivable has
been paid in full or repurchased by the Seller or purchased by the
Servicer.
(k)
(l) 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.
(m)
(n) 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.
(o)
(p) 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 executed and filed that are
necessary fully to preserve and protect the interest of the Indenture
Trustee and the Owner Trustee in the Receivables, and reciting the
details of such filings or referring to prior Opinions of Counsel in
which such details are given, or (b) stating that, in the opinion of
such counsel, no such action is necessary to preserve and protect such
interest.
(q)
(r) 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.
(s)
6.3. Section 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.
6.4.
6.5. Section GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK, WITHOUT REFERENCE TO
ITS CONFLICT OF LAWS PROVISIONS AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE
PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
6.6.
6.7. Section 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.
6.8.
6.9. Section 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.
6.10.
6.11. Section THIRD-PARTY BENEFICIARIES . This Agreement shall inure to the
benefit of and be binding upon the parties hereto, the Noteholders, the
Certificateholders and their respective successors and permitted assigns. Except
as otherwise provided in SECTION 6.01 or in this ARTICLE IX, no other person
shall have any right or obligation hereunder.
6.12.
6.13. Section 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.
6.14.
6.15. Section 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.
6.16.
6.17. Section ASSIGNMENT TO INDENTURE TRUSTEE . The Seller hereby acknowledges
and consents to any mortgage, pledge, assignment and grant of a security
interest by the Issuer to the Indenture Trustee pursuant to the Indenture for
the benefit of the Noteholders 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.
6.18.
6.19. Section 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.
6.2. Section LIMITATION OF LIABILITY OF INDENTURE TRUSTEE AND OWNER TRUSTEE .
6.3.
(b) Notwithstanding anything contained herein to the contrary, this
Agreement has been acknowledged and accepted by The First National
Bank of Chicago not in its individual capacity but solely as Indenture
Trustee and in no event shall The First National Bank of Chicago have
any liability for the representations, warranties, covenants,
agreements or other obligations of the Issuer hereunder or in any of
the certificates, notices or agreements delivered pursuant hereto, as
to all of which recourse shall be had solely to the assets of the
Issuer.
(b) Notwithstanding anything contained herein to the contrary, this
Agreement has been executed by Bankers Trust (Delaware) not in its
individual capacity but solely in its capacity as Owner Trustee of the
Issuer and in no event shall Bankers Trust (Delaware) in its
individual capacity or, except as expressly provided in the Trust
Agreement, as Owner Trustee of the Issuer have any liability for the
representations, warranties, covenants, agreements or other
obligations of the Issuer hereunder or in any of the certificates,
notices or agreements delivered pursuant hereto, as to all of which
recourse shall be had solely to the assets of the Issuer. For all
purposes of this Agreement, in the performance of its duties or
obligations hereunder or in the performance of any duties or
obligations of the Issuer hereunder, the Owner Trustee shall be
subject to, and entitled to the benefits of, the terms and provisions
of ARTICLE VI of the Trust Agreement.
(c)
6.3. Section 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.
6.4.
6.5. Section 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.
6.6.
* * * * *
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their respective officers as of the day and year first above
written.
CAPITAL AUTO RECEIVABLES
ASSET TRUST 1999-1
By: BANKERS TRUST (DELAWARE), not in its individual
capacity but solely as Owner Trustee on behalf
of the Trust,
By: ______________________________
Name: Xxxxxxx Xxxxx
Title: Attorney-in-Fact
CAPITAL AUTO RECEIVABLES, INC.,
Seller
By: ___________________________________
Name: X. X. Xxxxxx
Title: Vice President
GENERAL MOTORS ACCEPTANCE CORPORATION
By: ___________________________________
Name: P. D. Bull
Title: Vice President
Acknowledged and Accepted:
THE FIRST NATIONAL BANK OF CHICAGO,
not in its individual capacity
but solely as Indenture Trustee,
By: ______________________________
Name: Xxxxxx X. Xxxxxx
Title: First Vice President
EXHIBIT A
LOCATIONS OF SCHEDULE OF RECEIVABLES
The SCHEDULE OF RECEIVABLES is
on file at the offices of:
1. The Indenture Trustee
2. The Owner Trustee
3. General Motors Acceptance Corporation
4. Capital Auto Receivables, Inc.
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.
ACT: An Act as specified in SECTION 11.3(A) of the Indenture.
ACTUAL PAYMENT: With respect to a Distribution Date and to a Scheduled
Interest Receivable, all payments received by the Servicer from or for the
account of the Obligor during the related Monthly Period (and, in the case of
the first Monthly Period, all payments received by the Servicer from or for the
account of the Obligor on or after the Cutoff Date) except for any Overdue
Payments or Supplemental Servicing Fees. Actual Payments do not include Applied
Payments Ahead.
ADDITIONAL SERVICING: With respect to any Distribution Date, an amount (not
less than zero) equal to the LESSER OF:
(i) the amount if any by which:
(A) the amount equal to the aggregate amount of the Basic Servicing Fee
for such Distribution Date and all prior Distribution Dates EXCEEDS
(B) the aggregate amount of Additional Servicing paid to the Servicer on
all prior Distribution Dates; AND
(ii) the amount, if any, by which the amount on deposit in the Reserve
Account on such Distribution Date (after giving effect to all
deposits, withdrawals and payments affecting the Reserve Account
other than Additional Servicing and payments to the Seller)
EXCEEDS the Specified Reserve Account Balance.
For purposes of this definition, it is understood that Additional Servicing
equals zero on any Distribution Date unless all payments described in SECTIONS
4.06(c)(ii) through (vi) of the Trust Sale and Servicing Agreement have
been paid or provided for.
ADMINISTRATION AGREEMENT: That certain Administration Agreement, dated as
of the Closing Date, among GMAC, as Administrator, the Trust and the Indenture
Trustee, as amended and supplemented from time to time.
ADMINISTRATIVE PURCHASE PAYMENT: With respect to a Distribution Date and to
an Administrative Receivable purchased as of the last day of a Monthly Period:
(i) in the case of a Scheduled Interest Receivable, a release of all
claims for reimbursement of Scheduled Interest Advances made on
such Receivable PLUS a payment equal to the SUM OF:
(A) the Scheduled Payments on such Receivable due after the last day of
the related Monthly Period minus the Rebate,
(B) any reimbursement made pursuant to the last sentence of SUBSECTION
5.04(A) of the Trust Sale and Servicing Agreement with respect to such
Receivable; AND
(C) all past due Scheduled Payments with respect to which a Scheduled
Interest Advance has not been made OR
(ii) in the case of a Simple Interest Receivable, a payment equal to
the Amount Financed MINUS that portion of all payments made by or
on behalf of the related Obligor on or prior to the last day of
the related Monthly Period allocable to principal.
ADMINISTRATIVE RECEIVABLE: A Receivable which the Servicer is required to
purchase pursuant to SECTION 3.08 of the Pooling and Servicing Agreement or
which the Servicer has elected to repurchase pursuant to SECTION 8.01(A) of the
Trust Sale and Servicing Agreement.
ADMINISTRATOR: GMAC or any successor Administrator under the Administration
Agreement.
AFFILIATE: With respect to any specified Person, any other Person
controlling, controlled by or under common control with such specified Person.
For the purposes of this definition, "control" when used with respect to any
specified Person means the power to direct the management and policies of such
Person, directly or indirectly, whether through the ownership of voting
securities, by contract or otherwise; and the terms "controlling" and
"controlled" have meanings correlative to the foregoing.
AGENCY OFFICE: The office of the Issuer maintained pursuant SECTION 3.2 of
the Indenture.
AGGREGATE AMOUNT FINANCED: $2,809,779,024.75, which represents the
aggregate of the Amount Financed under all of the Receivables.
AGGREGATE DISCOUNTED PRINCIPAL BALANCE: As of any date, the present value
as of such date of all scheduled monthly payments on all the Receivables (other
than Liquidating Receivables) held by the Trust on such date which have not been
received 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 to such date at the Discount Rate.
AGGREGATE NOTEHOLDERS' INTEREST DISTRIBUTABLE AMOUNT: With respect to any
Distribution Date, the sum of (i) the Noteholders' Interest Distributable
Amounts for all classes of Notes and (ii) the Noteholders' Interest Carryover
Shortfall as of the close of the preceding Distribution Date.
AGGREGATE NOTEHOLDERS' PRINCIPAL DISTRIBUTABLE AMOUNT: With respect to any
Distribution Date, the sum of (i) the Noteholders' Principal Distributable
Amounts for all classes of Notes and (ii) the Noteholders' Principal Carryover
Shortfall as of the close of the preceding Distribution Date.
AGGREGATE NOTE PRINCIPAL BALANCE: With respect to the close of a
Distribution Date, the sum of the Note Principal Balances for all classes of
Notes.
AGGREGATE PRINCIPAL BALANCE: As of any date, the sum of the Principal
Balances of all outstanding Receivables (other than Liquidating Receivables)
held by the Trust on such date.
AMOUNT FINANCED: With respect to a Receivable, the aggregate amount
advanced under such Receivable toward the purchase price of the Financed
Vehicle, including accessories, insurance premiums, service and warranty
contracts and other items customarily financed as part of retail automobile
instalment sale contracts and related costs, LESS:
(i) (A) in the case of a Scheduled Interest Receivable, payments due
from the related Obligor prior to the Cutoff Date allocable to
principal and (B) in the case of a Simple Interest Receivable, payments
received from the related Obligor prior to the Cutoff Date allocable to
principal AND
(ii) any amount allocable to the premium for physical damage insurance
covering the Financed Vehicle force-placed by the Servicer.
ANNUAL PERCENTAGE RATE: With respect to a Receivable, the annual rate of
finance charges stated in such Receivable.
APPLICABLE TRUSTEE: So long as the Aggregate Note Principal Balance is
greater than zero and the Indenture has not been discharged in accordance with
its terms, the Indenture Trustee, and thereafter, the Owner Trustee.
APPLIED PAYMENT AHEAD: With respect to a Distribution Date and to a
Scheduled Interest Receivable on which the Actual Payment is less than the
Scheduled Payment, the Deferred Prepayment to the extent the Scheduled Payment
exceeds the Actual Payment.
AUTHORIZED OFFICER: With respect to the Issuer, any officer of the
Owner Trustee who is authorized to act for the Owner Trustee in matters relating
to the Issuer and who is identified on the list of Authorized Officers delivered
by the Owner Trustee to the Indenture Trustee on the Closing Date (as such list
may be modified or supplemented from time to time thereafter) and, so long as
the Administration Agreement is in effect, any Vice President or more senior
officer of the Administrator who is authorized to act for the Administrator in
matters relating to the Issuer and to be acted upon by the Administrator
pursuant to the Administration Agreement and who is identified on the list of
Authorized Officers delivered by the Administrator to the Indenture Trustee on
the Closing Date (as such list may be modified or supplemented from time to time
thereafter).
AVAILABLE INTEREST: With respect to any Distribution Date, the SUM of the
following amounts with respect to the related Monthly Period:
(i) that portion of all collections on Receivables held by the Trust
(other than Liquidating Receivables) allocable to interest or
Prepayment Surplus (including, in the case of Scheduled Interest
Receivables, the interest portion of Applied Payments Ahead but
excluding Excess Payments made during such Monthly Period that
are treated as Payments Ahead),
(ii) Liquidation Proceeds to the extent allocable to interest in
accordance with the Servicer's customary servicing procedures,
(iii) all Simple Interest Advances,
(iv) all Scheduled Interest Advances to the extent allocable to
interest, and
(v) the Warranty Payment or the Administrative Purchase Payment for
each Receivable that the Seller repurchased or the Servicer
purchased during such Monthly Period to the extent allocable to
accrued interest or Prepayment Surplus; LESS an amount equal to
the SUM of the following amounts with respect to the related
Monthly Period:
(i) all amounts received on any Scheduled Interest Receivable
(other than a Liquidating Receivable) to the extent of the
Outstanding Scheduled Interest Advances allocable to
interest with respect to such Receivable,
(ii) all Liquidation Proceeds with respect to Scheduled Interest
Receivables to the extent of the Outstanding Scheduled Interest
Advances thereon allocable to interest,
(iii) any Excess Simple Interest Collections and
(iv) Liquidation Proceeds with respect to Simple Interest Receivables
allocable to accrued and unpaid interest thereon (but not
including interest for the then current Monthly Period), but only
to the extent of any Outstanding Simple Interest Advances.
AVAILABLE PRINCIPAL: With respect to any Distribution Date, the SUM of the
following amounts with respect to the related Monthly Period:
(i) that portion of all collections on Receivables held by the Trust
(other than Liquidating Receivables) allocable to principal
(including, in the case of Scheduled Interest Receivables, the
principal portion of Applied Payments Ahead but excluding Excess
Payments made during such Monthly Period that are treated as
Payments Ahead),
(ii) Liquidation Proceeds to the extent allocable to principal in
accordance with the Servicer's customary servicing procedures,
(iii)all Scheduled Interest Advances to the extent allocable to
principal,
(iv) to the extent allocable to principal, the Warranty Payment or the
Administrative Purchase Payment for each Receivable that the
Seller repurchased or the Servicer purchased during such Monthly
Period, and
(v) all Prepayments to the extent allocable to principal; LESS an
amount equal to the SUM of the following amounts with respect to
the related Monthly Period:
(i) all amounts received on any Scheduled Interest Receivable
(other than a Liquidating Receivable) to the extent of the
Outstanding Scheduled Interest Advances allocable to
principal with respect to such Receivable,
(ii) all Liquidation Proceeds with respect to Scheduled Interest
Receivables to the extent of the Outstanding Scheduled
Interest Advances allocable to principal, and
(iii)amounts representing reimbursement for Liquidation Expenses
pursuant to SUBSECTION 4.06(B)(III) of the Trust Sale and
Servicing Agreement.
BASIC DOCUMENTS: The Certificate of Trust, the Trust Agreement, the Pooling
and Servicing Agreement, the Trust Sale and Servicing Agreement, the Custodian
Agreement, the Administration Agreement, the Indenture and the Note Depository
Agreement and the other documents and certificates delivered in connection
therewith.
BASIC SERVICING FEE: With respect to a Distribution Date, the basic fee
payable to the Servicer for services rendered during the related Monthly Period,
which shall be equal to one-twelfth (1/12th) (or, for the first Distribution
Date, 2/12ths) of the Basic Servicing Fee Rate multiplied by the Aggregate
Principal Balance of all Receivables held by the Trust as of the first day of
such Monthly Period (or, for the first Distribution Date, the Aggregate
Principal Balance as of the Closing Date.
BASIC SERVICING FEE RATE: 1.0% per annum.
BENEFIT PLAN: Any of (i) an employee benefit plan (as defined in Section
3(3) of ERISA) that is subject to the provisions of Title I of ERISA, (ii) a
plan described in Section 4975 (e)(1) of the Code or (iii) any entity whose
underlying assets include plan assets by reason of a plan's investment in the
Trust.
BOOK-ENTRY NOTES: A beneficial interest in the Notes, ownership and
transfers of which shall be made through book entries by a Clearing Agency as
described in SECTION 2.10 of the Indenture.
BUSINESS DAY: Any day other than a Saturday, a Sunday or any other day on
which banks in New York, New York; Detroit, Michigan; or Chicago, Illinois may,
or are required to, remain closed.
BUSINESS TRUST STATUTE: Chapter 38 of Title 12 of the Delaware Code, 12
DEL. CODEss. 3801 ET SEQ., as the same may be amended from time to time.
XXXX: Capital Auto Receivables, Inc., a Delaware corporation.
CERTIFICATEHOLDER: A Person in whose name a Certificate is registered
pursuant to the terms of the Trust Agreement.
CERTIFICATEHOLDERS' INTEREST CARRYOVER SHORTFALL: As of the close of any
Distribution Date, the excess of (i) the Certificateholders' Interest
Distributable Amount for such Distribution Date over (ii) the amount that was
actually deposited in the Certificate Distribution Account on such current
Distribution Date in respect of interest on the Certificates.
CERTIFICATEHOLDERS' INTEREST DISTRIBUTABLE AMOUNT: With respect to any
Distribution Date, the sum of (i) the Certificateholders' Monthly Interest
Distributable Amount for such Distribution Date and (ii) the Certificateholders'
Interest Carryover Shortfall as of the close of the preceding Distribution Date.
CERTIFICATEHOLDERS' MONTHLY INTEREST DISTRIBUTABLE AMOUNT: With respect
to any Distribution Date, interest equal to the product of (i) one-twelfth of
the Pass Through Rate (or, in the case of the first Distribution Date, the Pass
Through Rate MULTIPLIED BY a fraction, the numerator of which is 34 and the
denominator of which is 360) multiplied by (ii) the Certificate Balance as of
the close of the preceding Distribution Date (or, in the case of the first
Distribution Date, the Certificate Balance on the Closing Date).
CERTIFICATEHOLDERS' MONTHLY PRINCIPAL DISTRIBUTABLE AMOUNT: With respect to
any Distribution Date, the lesser of (i) the Certificateholders' Percentage of
the Principal Distributable Amount for such Distribution Date and (ii) the
Certificate Balance as of the close of the preceding Distribution Date.
CERTIFICATEHOLDERS' PERCENTAGE: With respect to any Distribution Date, 100%
MINUS the Noteholders' Percentage.
CERTIFICATEHOLDERS' PRINCIPAL CARRYOVER SHORTFALL: As of the close of
any Distribution Date, the excess of (i) the Certificateholders' Principal
Distributable Amount for such Distribution Date OVER (ii) the amount that was
actually deposited in the Certificate Distribution Account on such current
Distribution Date in respect of Certificate Balance.
CERTIFICATEHOLDERS' PRINCIPAL DISTRIBUTABLE AMOUNT: With respect to any
Distribution Date, the SUM of:
(a) the LESSER of
(i) the Certificateholders' Percentage of the Principal Distributable
Amount and
(ii) the Certificate Balance PLUS
(b) any outstanding Certificateholders' Principal Carryover Shortfall as
of the close of the preceding Distribution Date.
In addition, on the Final Scheduled Distribution Date for the Certificates, the
amount required to be distributed to Certificateholders in respect of the
Certificate Balance and Certificateholders' Principal Carryover Shortfall shall
include the LESSER of:
(a) the SUM of
(i) the principal portion of any Scheduled Payments of principal due
and remaining unpaid on each Scheduled Interest Receivable and
(ii) any principal due and remaining unpaid on each Simple Interest
Receivable, in each case in the Trust as of the last day of the
related Monthly Period; and
(b) the amount that is necessary (after giving effect to the other amounts
to be deposited in the Certificate Distribution Account on such
Distribution Date and allocable to payments in respect of the
Certificate Balance and Certificateholders' Principal Carryover
Shortfall) to reduce the Certificate Balance and Certificateholders'
Principal Carryover Shortfall to zero, in either case after giving
effect to any required distribution of the Aggregate Noteholders'
Principal Distributable Amount to the Note Distribution Account.
In addition, on any Distribution Date on which, after giving effect to all
distributions to the Servicer (other than Additional Servicing), the Noteholders
and the Certificateholders on such Distribution Date, (i) the outstanding
principal balance of the Notes is zero and (ii) the amount on deposit in the
Reserve Account is equal to or greater than the Certificate Balance and
Certificateholders' Principal Carryover Shortfall, Certificateholders' Principal
Distributable Amount shall include an amount equal to such Certificate Balance
and Certificateholders' Principal Carryover Shortfall.
CERTIFICATE: Any one of the 6.090% Asset Backed Certificates executed by
the Owner Trustee and authenticated by the Owner Trustee in substantially the
form set forth in EXHIBIT A to the Trust Agreement.
CERTIFICATE BALANCE: Initially, as of the Closing Date, $137,981,417.23
and, on any Distribution Date thereafter, will equal the initial Certificate
Balance reduced by (i) all distributions in respect of the Certificateholders'
Principal Distributable Amount actually made on or prior to such date to
Certificateholders, (ii) the Noteholders' Principal Carryover Shortfall as of
the close of the preceding Distribution Date and (iii) the Certificateholders'
Principal Carryover Shortfall as of the close of the preceding Distribution
Date.
CERTIFICATE DISTRIBUTION ACCOUNT: The account, if any, designated as such,
established and maintained pursuant to SECTION 5.1(A) of the Trust Agreement and
Section 5.1(a)(iii) of the Trust Sale and Servicing Agreement.
CERTIFICATE POOL FACTOR: With respect to any Distribution Date, a
seven-digit decimal figure computed by the Servicer equal to the remaining
Certificate Balance as of the close of such Distribution Date divided by the
initial Certificate Balance.
CERTIFICATE REGISTER: The register of Certificates specified in SECTION 3.4
of the Trust Agreement.
CERTIFICATE REGISTRAR: The registrar at any time of the Certificate
Register, appointed pursuant to SECTION 3.4(A) of the Trust Agreement.
CERTIFICATE OF TRUST: The certificate of trust of the Issuer substantially
in the form of EXHIBIT B to the Trust Agreement to be filed for the Trust
pursuant to Section 3810(a) of the Business Trust Statute.
CLASS A-1 NOTES: The Class A-1 5.364% Asset Backed Notes in the aggregate
principal amount of $1,352,200,000 issued pursuant to the Indenture.
CLASS A-2 NOTES: The Class A-2 5.580% Asset Backed Notes in the aggregate
principal amount of $735,000,000 issued pursuant to the Indenture.
CLASS A-3 NOTES: The Class A-3 5.680% Asset Backed Notes in the aggregate
principal amount of $403,000,000 issued pursuant to the Indenture.
CLEARING AGENCY: An organization registered as a "clearing agency" pursuant
to Section 17A of the Exchange Act. The initial Clearing Agency shall be The
Depository Trust Company.
CLEARING AGENCY PARTICIPANT: A securities broker, dealer, bank, trust
company, clearing corporation or other financial institution or other Person for
whom from time to time a Clearing Agency effects book entry transfers and
pledges of securities deposited with the Clearing Agency.
CLOSING DATE: March 11, 1999.
CODE: The Internal Revenue Code of 1986, as amended from time to time, and
the Treasury Regulations promulgated thereunder.
COLLATERAL: The collateral specified in the Granting Clause of the
Indenture.
COLLECTION ACCOUNT: The account designated as such, established and
maintained pursuant to SECTION 5.01(A)(I) of the Trust Sale and Servicing
Agreement.
CORPORATE TRUST OFFICE: With respect to the Indenture Trustee or the Owner
Trustee, the principal office at which at any particular time the corporate
trust business of the Indenture Trustee or Owner Trustee, respectively, shall be
administered, which offices at the Closing Date are located, in the case of the
Indenture Trustee, at Xxx Xxxxx Xxxxxxxx Xxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxx
00000-0000, Attn: Corporate Trust Division, and in the case of the Owner
Trustee, at 0000 Xxxxxx Xxxx, Xxxxx 000, Xxxxxxxxxx, Xxxxxxxx 00000, Attn:
Corporate Trust and Agency Group.
CUSTODIAN: GMAC, as Servicer, or another custodian named from time to time
in the Custodian Agreement.
CUSTODIAN AGREEMENT: The Custodian Agreement, dated as of the Closing Date,
between the Custodian and XXXX, as amended or supplemented from time to time.
CUTOFF DATE: February 1, 1999.
DEALER: The seller of automobiles or light trucks that originated one or
more of the Receivables and assigned the respective Receivable, directly or
indirectly, to GMAC under an existing agreement between such seller and GMAC or
between such seller and General Motors, as applicable.
DEALER AGREEMENT: An existing agreement between GMAC and a Dealer with
respect to a Receivable.
DEFAULT: Any occurrence that is, or with notice or the lapse of time or
both would become, an Event of Default.
DEFERRED PREPAYMENT: With respect to the opening of business on a
Distribution Date and to a Scheduled Interest Receivable, the amount, if any,
held by the Servicer pursuant to SUBSECTION 5.01(E) of the Trust Sale and
Servicing Agreement or in the Payment Ahead Servicing Account with respect to
such Receivable.
DEFINITIVE NOTES: The Notes issued in the form of definitive notes pursuant
to SECTION 2.12 or SECTION 2.15 of the Indenture.
DESIGNATED ACCOUNT PROPERTY: The Designated Accounts, all cash,
investments, Financial Assets, securities and investment property held from time
to time in any Designated Account (whether in the form of deposit accounts,
Physical Property, book-entry securities, Uncertificated Securities or
otherwise), including the Reserve Account Initial Deposit, and all proceeds of
the foregoing but excluding all Investment Earnings thereon.
DESIGNATED ACCOUNTS: The 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: 8.0% 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 April 15, 1999.
ELIGIBLE DEPOSIT ACCOUNT: Either (i) a segregated account with an Eligible
Institution or (ii) a segregated trust account with the corporate trust
department of a depository institution organized under the laws of the United
States of America or any one of the states thereof or the District of Columbia
(or any domestic branch of a foreign bank), having corporate trust powers and
acting as trustee for funds deposited in such account, so long as any of the
securities of such depository institution have a credit rating from each Rating
Agency in one of its generic rating categories which signifies investment grade.
ELIGIBLE INSTITUTION: Either (i) the corporate trust department of the
Indenture Trustee or the Owner Trustee or (ii) a depository institution
organized under the laws of the United States of America or any one of the
states thereof or the District of Columbia (or any domestic branch of a foreign
bank), (A) which has either (1) a long-term unsecured debt rating acceptable to
the Rating Agencies or (2) a short-term unsecured debt rating or certificate of
deposit rating acceptable to the Rating Agencies and (B) whose deposits are
insured by the FDIC.
ELIGIBLE INVESTMENTS: Book-entry securities, negotiable instruments or
securities represented by instruments in bearer or registered form which
evidence:
(i) direct obligations of, and obligations fully guaranteed as to
timely payment of principal and interest by, the United States of
America;
(i) 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;
(i) 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;
(i) 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);
(i) bankers' acceptances issued by any depository institution or
trust company referred to in clause (ii) above;
(i) repurchase obligations with respect to any security that is a
direct obligation of, or fully guaranteed by, the United States
of America or any agency or instrumentality thereof the
obligations of which are backed by the full faith and credit of
the United States of America, in either case entered into with
(A) a depository institution or trust company (acting as
principal) described in clause (ii) or (B) a depository
institution or trust company (x) the deposits of which are
insured by FDIC or (y) the counterparty for which has a rating
from each of the Rating Agencies in the highest investment
category for short-term unsecured debt obligations, the
collateral for which is held by a custodial bank for the benefit
of the Trust or the Indenture Trustee, is marked to market daily
and is maintained in an amount that exceeds the amount of such
repurchase obligation, and which requires liquidation of the
collateral immediately upon the amount of such collateral being
less than the amount of such repurchase obligation (unless the
counterparty immediately satisfies the repurchase obligation upon
being notified of such shortfall);
(i) 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;
(i) (solely in the case of the Reserve Account) the Notes; and
(i) any other investment permitted by each of the Rating Agencies,
in each case, other than as permitted by the Rating Agencies, maturing not later
than the Business Day immediately preceding the next Distribution Date or (B) on
such next Distribution Date if either (x) such investment is in the institution
with which the Note Distribution Account or the Certificate Distribution
Account, as the case may be, is then maintained or (y) the Indenture Trustee (so
long as the short-term unsecured debt obligations of the Indenture Trustee are
rated at least P-1 by 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 (a) such rating from
Fitch IBCA, Inc. only if Fitch IBCA, Inc. is then rating such investment and (b)
such rating from Duff & Xxxxxx Credit Rating Co. only if Duff & Xxxxxx Credit
Rating Co. is then rating such investment. For purposes of the foregoing, unless
the Indenture Trustee objects at the time an investment is made, the Indenture
Trustee shall be deemed to have agreed to make such advance with respect to such
investment.
ERISA: The Employee Retirement Income Security Act of 1974, as amended.
EVENT OF DEFAULT: An event described in SECTION 5.1 of the Indenture.
EVENT OF DEFAULT PROCEEDS: As defined in SECTION 8.01(B) of the Trust Sale
and Servicing Agreement.
EVENT OF DEFAULT SALE: As defined in SECTION 8.01(B) of the Trust Sale and
Servicing Agreement.
EXCESS PAYMENT: With respect to a Distribution Date and a Scheduled
Interest Receivable, the portion of an Actual Payment on such Receivable in
excess of the Scheduled Payment thereon.
EXCESS SIMPLE INTEREST COLLECTIONS: With respect to a Distribution Date,
the excess, if any, of (i) all payments received during the related Monthly
Period on all Simple Interest Receivables to the extent allocable to interest
over (ii) the amount of interest that would be due during the related Monthly
Period on all Simple Interest Receivables assuming that the payment on each such
Receivable was received on its respective due date. EXCHANGE ACT: The Securities
Exchange Act of 1934, as amended.
EXECUTIVE OFFICER: With respect to any corporation, the Chief Executive
Officer, Chief Operating Officer, Chief Financial Officer, President, Executive
Vice President, any Vice President, the Secretary or the Treasurer of such
corporation; and with respect to any partnership, any general partner thereof.
EXPENSES: The expenses described in SECTION 6.9 of the Trust Agreement.
FDIC: Federal Deposit Insurance Corporation or any successor agency.
FINAL SCHEDULED DISTRIBUTION DATE: (i) With respect to a class of Notes,
the Distribution Date in the month set forth below opposite such Notes:
Class A-1 Notes: May 2001;
Class A-2 Notes: June 2002;
Class A-3 Notes: August 2004; and
(ii) with respect to the Certificates, the Distribution Date in August
2004.
FINANCED VEHICLE: An automobile or light truck, together with all
accessories thereto, securing an Obligor's indebtedness under a Receivable.
FINANCIAL ASSET: Has the meaning given such term in Article 8 of the New
York UCC. As used herein, the Financial Asset "related to" a Security
Entitlement is the Financial Asset in which the entitlement holder (as defined
in Article 8 of the New York UCC) holding such Security Entitlement has the
rights and property interest specified in Article 8 of the New York UCC.
GENERAL MOTORS: General Motors Corporation, a Delaware corporation.
GMAC: General Motors Acceptance Corporation, a Delaware corporation.
GRANT: To mortgage, pledge, bargain, sell, warrant, alienate, remise,
release, convey, assign, transfer, create, and xxxxx x xxxx upon, a security
interest in and right of set-off against, deposit, set over and confirm pursuant
to the Indenture. A Grant of the Collateral or of any other agreement or
instrument shall include all rights, powers and options (but none of the
obligations) of the Granting party thereunder, including the immediate and
continuing right to claim for, collect, receive and give receipt for principal
and interest payments in respect of, the Collateral and all other moneys payable
thereunder, to give and receive notices and other communications, to make
waivers or other agreements, to exercise all rights and options, to bring
Proceedings in the name of the Granting party or otherwise and generally to do
and receive anything that the Granting party is or may be entitled to do or
receive thereunder or with respect thereto.
HOLDER: The Person in whose name a Note or Certificate is registered on the
Note Register or the Certificate Register, as applicable.
INDEMNIFIED PARTIES: The Persons specified in SECTION 6.9 of the Trust
Agreement.
INDENTURE: The Indenture, dated as of the Closing Date, between the Issuer
and the Indenture Trustee, as amended and supplemented from time to time.
INDENTURE TRUSTEE: The First National Bank of Chicago, a national banking
association, not in its individual capacity but solely as trustee under the
Indenture, or any successor trustee under the Indenture.
INDEPENDENT: When used with respect to any specified Person, that the
Person (i) is in fact independent of the Issuer, any other obligor upon the
Notes, the Seller and any Affiliate of any of the foregoing Persons, (ii) does
not have any direct financial interest or any material indirect financial
interest in the Issuer, any such other obligor, the Seller or any Affiliate of
any of the foregoing Persons and (iii) is not connected with the Issuer, any
such other obligor, the Seller or any Affiliate of any of the foregoing Persons
as an officer, employee, promoter, underwriter, trustee, partner, director or
person performing similar functions.
INDEPENDENT CERTIFICATE: A certificate or opinion to be delivered to the
Indenture Trustee under the circumstances described in, and otherwise complying
with, the applicable requirements of SECTION 11.1 of the Indenture, made by an
Independent appraiser or other expert appointed by an Issuer Order and approved
by the Indenture Trustee in the exercise of reasonable care, and such opinion or
certificate shall state that the signer has read the definition of "Independent"
in the Indenture and that the signer is Independent within the meaning thereof.
INDIRECT PARTICIPANT: A securities broker, dealer, bank, trust company or
other Person that clears through or maintains a custodial relationship with a
Clearing Agency Participant, either directly or indirectly.
INITIAL AGGREGATE DISCOUNTED PRINCIPAL BALANCE: $2,628,181,417.23.
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 Notes, the per annum rate set
forth below:
Class A-1 Notes: 5.364%
Class A-2 Notes: 5.580%
Class A-3 Notes: 5.680%
INVESTMENT COMPANY ACT: The Investment Company Act of 1940, as the same may
be amended from time to time.
INVESTMENT EARNINGS: Investment earnings on funds deposited in the
Designated Accounts, the Payment Ahead Servicing Account and Certificate
Distribution Account, net of losses and investment expenses.
ISSUER: The party named as such in the Trust Sale and Servicing Agreement
and in the Indenture until a successor replaces it and, thereafter, means the
successor and, for purposes of any provision contained herein and required by
the TIA, each other obligor on the Notes.
ISSUER ORDER and ISSUER REQUEST: A written order or request signed in the
name of the Issuer by any one of its Authorized Officers and delivered to the
Indenture Trustee.
LIEN: Any security interest, lien, charge, pledge, equity, encumbrance or
adverse claim of any kind other than tax liens, mechanics' liens and any liens
that attach by operation of law.
LIQUIDATING RECEIVABLE: A Receivable as to which the Servicer (i) has
reasonably determined, in accordance with its customary servicing procedures,
that eventual payment of amounts owing on such Receivable is unlikely, or (ii)
has repossessed and disposed of the Financed Vehicle.
LIQUIDATION EXPENSES: With respect to a Liquidating Receivable without
recourse to a Dealer, $300.00 (or such greater amount as the Servicer determines
necessary in accordance with its customary procedures to refurbish and dispense
of a repurchased Financed Vehicle) as an allowance for amounts charged to the
account of the Obligor, in keeping with the Servicer's customary procedures, for
refurbishing and disposition of the Financed Vehicle and other out-of-pocket
costs related to the liquidation; with respect to a Liquidating Receivable with
recourse to a Dealer, $0.
LIQUIDATION PROCEEDS: With respect to a Liquidating Receivable, all amounts
realized with respect to such Receivable net of amounts that are required to be
refunded to the Obligor on such Receivable.
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 and, for the first
Distribution Date, the two calendar months preceding the month in which such
Distribution Date occurs.
MONTHLY REMITTANCE CONDITION: Each of the following conditions:
(i) GMAC is the Servicer,
(ii) the rating of GMAC's short-term unsecured debt is at least A-1 by
Standard & Poor's Ratings Services and P-1 by Xxxxx'x Investors
Service, Inc., and
(iii) a Servicer Default shall not have occurred and be continuing.
NEW YORK UCC: The UCC as in effect in the State of New York.
NOTEHOLDERS: Holders of record of the Notes pursuant to the Indenture and,
with respect to any class of Notes, holders of record of such class of Notes
pursuant to the Indenture.
NOTEHOLDERS' INTEREST CARRYOVER SHORTFALL: As of the close of any
Distribution Date, the excess of (i) the Aggregate Noteholders' Interest
Distributable Amount for such Distribution Date over (ii) the amount that was
actually deposited in the Note Distribution Account on such current Distribution
Date in respect of interest.
NOTEHOLDERS' INTEREST DISTRIBUTABLE AMOUNT: With respect to any class of
Notes and any Distribution Date, the product of (i) the outstanding principal
balance of such class of Notes as of the close of the preceding Distribution
Date (or, in the case of the first Distribution Date, the outstanding principal
balance on the Closing Date) and (ii) one-twelfth of the Interest Rate for such
class (or, in the case of the first Distribution Date, the Interest Rate for
such class multiplied by a fraction, the numerator of which is 34 and the
denominator of which is 360).
NOTEHOLDERS' PERCENTAGE: 100% until the principal balance of all of the
Notes is paid (or provided for) in full, and zero thereafter.
NOTEHOLDERS' PRINCIPAL CARRYOVER SHORTFALL: As of the close of any
Distribution Date, the excess of (i) Aggregate Noteholders' Principal
Distributable Amount for such Distribution Date OVER (ii) the amount that was
actually deposited in the Note Distribution Account on such current Distribution
Date in respect of principal.
NOTEHOLDERS' PRINCIPAL DISTRIBUTABLE AMOUNT: With respect to a class of
Notes on a Distribution Date, the LESSER of:
(i) the REMAINDER of
(A) the Noteholders' Percentage of the Principal Distributable Amount
MINUS
(B) the Noteholders' Principal Distributable Amount for each class of
Notes having priority of payment (as described in SECTION 8.2(c) (ii)
of the Indenture) over such class of Notes and
(ii) the outstanding principal balance of such class of Notes.
In addition, on the Final Scheduled Distribution Date for any class of Notes,
the Noteholders' Principal Distributable Amount for such class of Notes will
also include the amount that is necessary (after giving effect to the other
amounts to be deposited in 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.
NOTES: The Class A-1 Notes, the Class A-2 Notes and the Class A-3 Notes.
NOTE DEPOSITORY: The depository from time to time selected by the Indenture
Trustee on behalf of the Trust in whose name the Notes are registered prior to
the issue of Definitive Notes. The first Note Depository shall be Cede & Co.,
the nominee of the initial Clearing Agency.
NOTE DEPOSITORY AGREEMENT: The agreement, dated as of the Closing Date,
among the Issuer, the Indenture Trustee and The Depository Trust Company, as the
initial Clearing Agency relating to the Notes, substantially in the form of
EXHIBIT B to the Indenture, as the same may be amended and supplemented from
time to time.
NOTE DISTRIBUTION ACCOUNT: The account designated as such, established and
maintained pursuant to SECTION 5.01(A)(II) of the Trust Sale and Servicing
Agreement.
NOTE OWNER: With respect to a Book-Entry Note, the Person who is the
beneficial owner of such Book-Entry Note, as reflected on the books of the
Clearing Agency, or on the books of a Person maintaining an account with such
Clearing Agency (directly as a Clearing Agency Participant or as an Indirect
Participant, in each case in accordance with the rules of such Clearing Agency).
NOTE POOL FACTOR: With respect to any class of Notes and any Distribution
Date, a seven-digit decimal figure computed by the Servicer which is equal to
the Note Principal Balance for such class as of the close of such Distribution
Date divided by the initial Note Principal Balance for such class.
NOTE PRINCIPAL BALANCE: With respect to any class of Notes and any
Distribution Date, the initial aggregate principal balance of such class of
Notes, reduced by all previous payments to the Noteholders of such class in
respect of principal of such Notes.
NOTE REGISTER: With respect to any class of Notes, the register of such
Notes specified in SECTION 2.4 of the Indenture.
NOTE REGISTRAR: The registrar at any time of the Note Register, appointed
pursuant to SECTION 2.4 of the Indenture.
OBLIGOR: The purchaser or the co-purchasers of the Financed Vehicle or
other person who owes payments under a Receivable.
OFFICER'S CERTIFICATE: A certificate signed by any Authorized Officer of
the Issuer, under the circumstances described in, and otherwise complying with,
the applicable requirements of SECTION 11.1 of the Indenture, and delivered to
the Indenture Trustee. Unless otherwise specified, any reference in the
Indenture to an officer's certificate shall be to an Officer's Certificate of
any Authorized Officer of the Issuer.
OPINION OF COUNSEL: A written opinion of counsel, who may, except as
otherwise expressly provided, be an employee of the Seller or the Servicer. In
addition, for purposes of the Indenture: (i) such counsel shall be satisfactory
to the Indenture Trustee; (ii) the opinion shall be addressed to the Indenture
Trustee as Trustee and (iii) the opinion shall comply with any applicable
requirements of SECTION 11.1 of the Indenture and shall be in form and substance
satisfactory to the Indenture Trustee.
OPTIONAL PURCHASE DATE: As defined in SECTION 8.01 (A) of the Trust Sale
and Servicing Agreement.
OPTIONAL PURCHASE PERCENTAGE: 10%.
OUTSTANDING: With respect to the Notes, as of the date of determination,
all Notes theretofore authenticated and delivered under the Indenture except:
(i) Notes theretofore cancelled by the Indenture Trustee or delivered
to the Indenture Trustee for cancellation;
(i) 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
(i) Notes in exchange for or in lieu of other Notes which have been
authenticated and delivered pursuant to this Indenture unless
proof satisfactory to the Indenture Trustee is presented that any
such Notes are held by a bona fide purchaser;
PROVIDED, HOWEVER, that in determining whether the Holders of the requisite
Outstanding Amount of the Notes have given any request, demand, authorization,
direction, notice, consent or waiver hereunder or under any Basic Document,
Notes both legally and beneficially owned by the Issuer, any other obligor upon
the Notes, the Seller or any Affiliate of any of the foregoing Persons shall be
disregarded and deemed not to be Outstanding, except that, in determining
whether the Indenture Trustee shall be protected in relying upon any such
request, demand, authorization, direction, notice, consent or waiver, only Notes
that the Indenture Trustee knows to be so owned shall be so disregarded. Notes
so owned that have been pledged in good faith may be regarded as Outstanding if
the pledgee establishes to the satisfaction of the Indenture Trustee the
pledgor's right so to act with respect to such Notes and that the pledgee is not
the Issuer, any other obligor upon the Notes, the Seller or any Affiliate of any
of the foregoing Persons.
OUTSTANDING AMOUNT: As of any date, the aggregate principal amount of all
Notes, or a class of Notes, as applicable, Outstanding at such date.
OUTSTANDING MONTHLY ADVANCES: Outstanding Scheduled Interest Advances and
Outstanding Simple Interest Advances, collectively.
OUTSTANDING SCHEDULED INTEREST ADVANCES: As of the last day of a Monthly
Period and with respect to a Scheduled Interest Receivable, the sum of all
Scheduled Interest Advances made as of or prior to such date minus all payments
or collections as of or prior to such date which are specified in SUBSECTION
5.04(a) of the Trust Sale and Servicing Agreement as reducing Outstanding
Scheduled Interest Advances with respect to such Receivable.
OUTSTANDING SIMPLE INTEREST ADVANCES: As of the last day of a Monthly
Period, the sum of all Simple Interest Advances made as of or prior to such date
minus the sum of (i) all payments to the Servicer as of or prior to such date
pursuant to SUBSECTION 5.04(b) of the Trust Sale and Servicing Agreement and
(ii) all Excess Simple Interest Collections paid to the Servicer as of or prior
to such date; PROVIDED, HOWEVER, that Outstanding Simple Interest Advances shall
never be deemed to be less than zero.
OVERDUE PAYMENT: With respect to a Distribution Date and to a Scheduled
Interest Receivable, all payments received by the Servicer from or for the
account of the related Obligor during the related Monthly Period in excess of
any Supplemental Servicing Fees (excluding any Investment Earnings during the
related Monthly Period), to the extent of the Outstanding Scheduled Interest
Advances relating to such Receivable.
OWNER TRUST ESTATE: All right, title and interest of the Trust in and to
the property and rights assigned to the Trust pursuant to ARTICLE II of the
Trust Sale and Servicing Agreement, all funds on deposit from time to time in
the Collection Account and the Certificate Distribution Account and all other
property of the Trust from time to time, including any rights of the Owner
Trustee and the Trust pursuant to the Trust Sale and Servicing Agreement and the
Administration Agreement.
OWNER TRUSTEE: Bankers Trust (Delaware), a Delaware banking corporation, or
any successor trustee under the Trust Agreement.
PASS THROUGH RATE: 6.09% per annum.
PAYING AGENT: With respect to the Indenture, the Indenture Trustee or any
other Person that meets the eligibility standards for the Indenture Trustee
specified in SECTION 6.11 of the Indenture and is authorized by the Issuer to
make the payments to and distributions from the Collection Account and the Note
Distribution Account, including payment of principal of or interest on the Notes
on behalf of the Issuer. With respect to the Trust Agreement, any paying agent
or co-paying agent appointed pursuant to SECTION 3.9 of the Trust Agreement that
meets the eligibility standards for the Owner Trustee specified in SECTION 6.13
of the Trust Agreement, and initially Bankers Trust Company.
PAYMENT AHEAD: With respect to a Distribution Date and to a Scheduled
Interest Receivable, any Excess Payment (not representing prepayment in full of
such Receivable) that is of an amount such that the sum of such Excess Payment
and the Deferred Prepayment is equal to or less than three times the Scheduled
Payment.
PAYMENT AHEAD SERVICING ACCOUNT: The account designated as such,
established and maintained pursuant to SECTION 5.01(A)(IV) of the Trust Sale and
Servicing Agreement.
PERSON: Any legal person, including any individual, corporation,
partnership, joint venture, association, joint stock company, trust,
unincorporated organization or government or any agency or political subdivision
thereof.
PHYSICAL PROPERTY: (i) bankers' acceptances, commercial paper, negotiable
certificates of deposit and other obligations that constitute "instruments"
within the meaning of Section 9-105(1)(i) of the New York UCC and are
susceptible of physical delivery and (ii) Security Certificates.
POOLING AND SERVICING AGREEMENT: The Pooling and Servicing Agreement, dated
as of the Closing Date, between GMAC and the Seller, as amended and supplemented
from time to time.
PREDECESSOR NOTE: With respect to any particular Note, every previous Note
evidencing all or a portion of the same debt as that evidenced by such
particular Note; and, for the purpose of this definition, any Note authenticated
and delivered under SECTION 2.5 of the Indenture in lieu of a mutilated, lost,
destroyed or stolen Note shall be deemed to evidence the same debt as the
mutilated, lost, destroyed or stolen Note.
PREPAYMENT: Any Excess Payment other than a Payment Ahead.
PREPAYMENT SURPLUS: With respect to any Distribution Date on which a
Prepayment is to be applied with respect to a Scheduled Interest Receivable,
that portion of such Prepayment, net of any Rebate.
PRINCIPAL BALANCE: With respect to any Scheduled Interest Receivable, as of
any date, the Amount Financed MINUS the SUM of the following amounts:
(i) that portion of all Scheduled Payments due on or after the Cutoff
Date and on or prior to such date allocable to principal,
(ii) any Warranty Payment or Administrative Purchase Payment to the
extent allocable to principal, and
(iii)any Prepayments applied by the Servicer to reduce the Principal
Balance of such Receivable.
With respect to any Simple Interest Receivable, as of any date, the Amount
Financed MINUS the SUM of the following amounts:
(i) that portion of all payments received from the related Obligor on
or prior to such date allocable to principal and
(ii) any Warranty Payment or Administrative Purchase Payment to the
extent allocable to principal.
PRINCIPAL DISTRIBUTABLE AMOUNT: With respect to any Distribution Date, the
excess of (i) the 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 first Distribution Date, the excess of
the Initial Aggregate Discounted Principal Balance) 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.
PROCEEDING: Any suit in equity, action at law or other judicial or
administrative proceeding.
PURCHASED PROPERTY: The property described in SECTION 2.01 of the Pooling
and Servicing Agreement.
RATING AGENCIES: As of any date, the nationally recognized statistical
rating organizations requested by the Seller to provide ratings on the Notes or
the Certificates which are rating the Notes or the Certificates on such date.
RATING AGENCY CONDITION: With respect to any action, the condition that
each Rating Agency shall have been given at least 10 days prior notice thereof
and that each of the Rating Agencies shall have notified the Seller, the
Servicer and the Issuer in writing that such action shall not result in a
downgrade or withdrawal of the then current rating of the Notes or the
Certificates.
REBATE: With respect to a given date and to a Scheduled Interest
Receivable, the rebate under such Receivable that is or would be payable to the
Obligor for unearned finance charges or any other charges rebatable to the
Obligor upon the payment on such date of all remaining Scheduled Payments.
RECEIVABLE: A retail instalment sale contract for a Financed Vehicle that
is included in the Schedule of Receivables and all rights and obligations
thereunder.
RECEIVABLE FILE: The documents listed in SECTION 2.04 of the Pooling and
Servicing Agreement pertaining to a particular Receivable.
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 last day of the preceding Monthly Period.
REDEEMABLE NOTES: The Class A-3 Notes.
REDEMPTION DATE: As defined in SECTION 10.1 of the Indenture.
REDEMPTION PRICE: With respect to the Redeemable Notes, the unpaid
principal amount of such Notes, plus accrued and unpaid interest thereon.
REGISTERED HOLDER: The Person in whose name a Note is registered on the
Note Register on the applicable Record Date.
RELEASED ADMINISTRATIVE AMOUNT: With respect to a Distribution Date and to
a purchased Administrative Receivable, the Deferred Prepayment on such
Receivable.
RELEASED WARRANTY AMOUNT: With respect to a Distribution Date and to a
repurchased Warranty Receivable, the Deferred Prepayment on such Receivable.
REQUIRED DEPOSIT RATING: A rating on short-term unsecured debt obligations
of P-1 by Xxxxx'x Investors Service, Inc.; A-1+ by Standard & Poor's Ratings
Services; if rated by Fitch Investors Service, Inc., F-1+ by Fitch IBCA, Inc.;
and, if rated by Duff & Xxxxxx Credit Rating Co., D-1+ by Duff & Xxxxxx Credit
Rating Co. Any requirement that short-term unsecured debt obligations have the
"Required Deposit Rating" shall mean that such short-term unsecured debt
obligations have the foregoing required ratings from each of such rating
agencies.
RESERVE ACCOUNT: The account designated as such, established and maintained
pursuant to SECTION 4.07(A) of the Trust Sale and Servicing Agreement.
RESERVE ACCOUNT INITIAL DEPOSIT: Cash or Eligible Investments having a
value of at least $19,711,360.63.
RESERVE ACCOUNT PROPERTY: (i) the Reserve Account and all proceeds thereof
(other than the Investment Earnings thereon) including all cash, investments,
investment property and other amounts held from time to time in the Reserve
Account (whether in the form of deposit accounts, Physical Property, book-entry
securities, uncertificated securities, Financial Assets or otherwise) and (ii)
the Reserve Account Initial Deposit and all proceeds thereof (other than the
Investment Earnings thereon).
RESPONSIBLE OFFICER: With respect to the Indenture Trustee or the Owner
Trustee, any officer within the Corporate Trust Office of such trustee or agent
of the Owner Trustee acting under a power of attorney, and, with respect to the
Servicer, the President, any Vice President, Assistant Vice President,
Secretary, Assistant Secretary or any other officer or assistant officer of such
Person customarily performing functions similar to those performed by any of the
above designated officers and also, with respect to a particular matter, any
other officer to whom such matter is referred because of such officer's
knowledge of and familiarity with the particular subject.
REVOLVING NOTE: The Revolving Note issued by XXXX to GMAC under the
Intercompany Advance Agreement.
SCHEDULED INTEREST ADVANCE: With respect to a Scheduled Interest
Receivable, the amount, as of the last day of the related Monthly Period, which
the Servicer is required to advance pursuant to SUBSECTION 5.04(A) of the Trust
Sale and Servicing Agreement.
SCHEDULED INTEREST RECEIVABLE: Any Receivable that is not a Simple Interest
Receivable. For purposes hereof, all payments with respect to a Scheduled
Interest Receivable shall be allocated to principal and interest in accordance
with the actuarial method.
SCHEDULED PAYMENT: With respect to a Distribution Date and to a Scheduled
Interest Receivable, the payment set forth in such Receivable due from the
Obligor in the related Monthly Period.
SCHEDULE OF RECEIVABLES: The schedule of all Receivables originally held as
part of the Trust and on file at the locations listed on EXHIBIT A of the Trust
Sale and Servicing Agreement, as it may be amended from time to time.
SECRETARY OF STATE: The Secretary of State of the State of Delaware.
SECURITY CERTIFICATE: Has the meaning given such term in Section
8-102(a)(16) of the New York UCC.
SECURITY ENTITLEMENT: Has the meaning given such term in Section
8-102(a)(17) of the New York UCC.
SECURITYHOLDER: A Holder of a Note or a Certificate.
SELLER: The Person executing the Trust Sale and Servicing Agreement as the
Seller, or its successor in interest pursuant to SECTION 3.03 of the Trust Sale
and Servicing Agreement.
SERVICER: The Person executing the Trust Sale and Servicing Agreement as
the Servicer, or its successor in interest pursuant to SECTION 6.02 of the Trust
Sale and Servicing Agreement.
SERVICER DEFAULT: An event described in SECTION 7.01 of the Trust Sale and
Servicing Agreement.
SERVICER'S ACCOUNTING: A certificate, completed by and executed on behalf
of the Servicer, in accordance with SECTION 3.10 of the Pooling and Servicing
Agreement.
SIMPLE INTEREST ADVANCE: The amount, as of the last day of the related
Monthly Period, which the Servicer is required to advance pursuant to SUBSECTION
5.04(b) of the Trust Sale and Servicing Agreement.
SIMPLE INTEREST METHOD: The method of allocating each monthly payment on a
Simple Interest Receivable to principal and interest pursuant to which the
portion of such payment that is allocated to interest is equal to the product of
the outstanding principal balance thereon multiplied by the fixed rate of
interest applicable to such Receivable multiplied by the period of time elapsed
(expressed as a fraction of a calendar year) since the preceding payment of
interest with respect to such principal balance was made.
SIMPLE INTEREST RECEIVABLE: Any Receivable under which the portion of each
monthly payment allocable to earned interest and the portion allocable to the
Amount Financed is determined in accordance with the Simple Interest Method. For
purposes hereof, all payments with respect to a Simple Interest Receivable shall
be allocated to principal and interest in accordance with the Simple Interest
Method.
SPECIFIED RESERVE ACCOUNT BALANCE: With respect to any Distribution Date,
the lesser of (i) $19,711,360.63 and (ii) the remaining outstanding principal
balance of the Notes and the Certificate Balance as of the close of business on
the last day of the related Monthly Period.
STATE: Any one of the 00 Xxxxxx xx xxx Xxxxxx Xxxxxx xx Xxxxxxx or the
District of Columbia.
SUPPLEMENTAL SERVICING FEES: With respect to a Distribution Date, all late
fees, prepayment charges and other administrative fees and expenses or similar
charges allowed by applicable law with respect to Receivables, collected (from
whatever source) on the Receivables held by the Trust during the related Monthly
Period.
TEMPORARY NOTES: The Notes specified in SECTION 2.3 of the Indenture.
TOTAL AVAILABLE AMOUNT: With respect to any Distribution Date, the sum of
the Available Interest and the Available Principal for such Distribution Date
and the amount of all cash or other immediately available funds on deposit in
the Reserve Account immediately prior to such Distribution Date.
TOTAL SERVICING FEE: With respect to a Distribution Date, the sum of the
Basic Servicing Fee for such Distribution Date, any unpaid Basic Servicing Fee
for all prior Distribution Dates and Additional Servicing for such Distribution
Date
TREASURY REGULATIONS: The regulations, including proposed or temporary
regulations, promulgated under the Code. References herein to specific
provisions of proposed or temporary regulations shall include analogous
provisions of final Treasury Regulations or other successor Treasury
Regulations.
TRUST: Capital Auto Receivables Asset Trust 1999-1, a Delaware business
trust created by the Trust Agreement.
TRUST AGREEMENT: The Trust Agreement, dated as of the Closing Date, between
the Seller and the Owner Trustee, as amended and supplemented from time to time.
TRUST ESTATE: All money, instruments, rights and other property that are
subject or intended to be subject to the lien and security interest of the
Indenture for the benefit of the Noteholders (including, without limitation, all
property and interests Granted to the Indenture Trustee), including all proceeds
thereof, and the Reserve Account and the Reserve Account Property pledged to the
Indenture Trustee pursuant to the Trust Sale and Servicing Agreement.
TRUST INDENTURE ACT or TIA: The Trust Indenture Act of 1939 as in force on
the date hereof, unless otherwise specifically provided.
TRUST SALE AND SERVICING AGREEMENT: The Trust Sale and Servicing
Agreement, dated as of the Closing Date, between the Seller, the Servicer and
the Trust, as amended and supplemented from time to time.
UCC: The Uniform Commercial Code as in effect in the relevant jurisdiction.
UNCERTIFICATED SECURITY: Has the meaning given to such term in Section
8-102(a)(18) of the New York UCC.
VOTING INTERESTS: As of any date, the aggregate Certificate Balance of all
Certificates outstanding; PROVIDED, HOWEVER, that Certificates owned by the
Issuer, the Seller or any Affiliate of any of the foregoing Persons (each, an
"INSIDER") shall be disregarded and deemed not to be outstanding (unless all
Certificates are owned by insiders), except that, in determining whether the
Owner Trustee shall be protected in relying upon any such request, demand,
authorization, direction, notice, consent or waiver, only Certificates that the
Owner Trustee knows to be so owned shall be so disregarded. Certificates so
owned that have been pledged in good faith may be regarded as outstanding if the
pledgee establishes to the satisfaction of the Owner Trustee the pledgor's right
so to act with respect to such Certificates and that the pledgee is not the
Issuer, the Seller or any Affiliate of any of the foregoing Persons (unless all
Certificates are owned by insiders).
WARRANTY PAYMENT: With respect to a Distribution Date and to a Warranty
Receivable repurchased as of the last day of a Monthly Period,
(i) in the case of a Scheduled Interest Receivable, a payment equal
to the SUM of:
(A) the sum of all remaining Scheduled Payments on such Receivable minus
the Rebate,
(B) all past due Scheduled Payments with respect to which a Scheduled
Interest Advance has not been made,
(C) any reimbursement made pursuant to the last sentence of SUBSECTION
5.04(a) of the Trust Sale and Servicing Agreement with respect to such
Receivable, and
(D) all Outstanding Scheduled Interest Advances with respect to such
Receivable, minus any Liquidation Proceeds (to the extent applied to
reduce the Principal Balance of such Receivable) previously received
with respect to such Receivable, or
(ii) in the case of a Simple Interest Receivable, a payment equal to
the Amount Financed minus that portion of all payments received
from the related Obligor on or prior to the last day of the
related Monthly Period allocable to principal and minus any
Liquidation Proceeds (to the extent applied to reduce the
Principal Balance of such Receivable) previously received with
respect to such Receivable.
WARRANTY PURCHASER: The Person described in SECTION 2.05 of the Trust Sale
and Servicing Agreement.
WARRANTY RECEIVABLE: A Receivable which the Warranty Purchaser has become
obligated to repurchase pursuant to SECTION 2.05 of the Trust Sale and Servicing
Agreement.
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)
(c) "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.
(d)
(e) 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.
(f)
(g) 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.
(h)
(i) 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.
(j)
APPENDIX B
NOTICE ADDRESSES AND PROCEDURES
All requests, demands, directions, consents, waivers, notices,
authorizations and communications provided or permitted under any Basic Document
to be made upon, given or furnished to or filed with the Seller, the Servicer,
the Administrator, the Indenture Trustee, the Issuer, the Owner Trustee, the
Custodian or the Rating Agencies shall be in writing, personally delivered, sent
by facsimile with a copy to follow via first class mail or mailed by certified
mail-return receipt requested, and shall be deemed to have been duly given upon
receipt:
(a) in the case of the Seller, at the following address:
Capital Auto Receivables, Inc.,
Corporation Trust Center,
0000 Xxxxxx Xxxxxx,
Xxxxxxxxxx, Xxxxxxxx 00000
with a copy to:
X.X. Xxxxxx, Vice President,
0000 Xxxx Xxxxx Xxxxxxxxx,
Xxxxxxx, Xxxxxxxx 00000,
(a) in the case of the Servicer, the Administrator or the Custodian, at
the following address:
P. D. Bull, Vice President,
General Motors Acceptance Corporation,
0000 Xxxx Xxxxx Xxxxxxxxx,
Xxxxxxx, Xxxxxxxx 00000,
(a) in the case of the Indenture Trustee, at its Corporate Trust Office,
(a) in the case of the Issuer or the Owner Trustee, to the Owner Trustee
at its Corporate Trust Office, with a copy to
Bankers Trust Company,
Four Albany Street, 10th Floor
New York, New York 10006,
Attention: Corporate Trust and Agency Group,
and with a copy to:
Capital Auto Receivables, Inc.,
Attention: X. X. Xxxxxx, Vice President
0000 Xxxx Xxxxx Xxxxxxxxx,
Xxxxxxx, Xxxxxxxx 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.
(a) 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,
(a) in the case of Standard & Poor's Ratings Services, to
Standard & Poor's Ratings Services,
00 Xxxxxxxx,
Xxx Xxxx, Xxx Xxxx 00000,
Attention: Asset Backed Surveillance Department,
(a) in the case of Fitch IBCA, Inc., to
Fitch IBCA, Inc.,
Xxx Xxxxx Xxxxxx Xxxxx,
Xxx Xxxx, Xxx Xxxx 00000,
Attention: Asset-Backed Surveillance, and
(a) in the case of Duff & Xxxxxx Credit Rating Co., to
Duff & Xxxxxx Credit Rating Co.,
00 X. Xxxxxx Xxxxxx,
Xxxxxxx, Xxxxxxxx 00000,
Attention: Structured Finance Research & Monitoring,
or at such other address as shall be designated by such Person in a written
notice to the other parties to this Agreement.
Where any Basic Document provides for notice to Noteholders or
Certificateholders of any condition or event, such notice shall be sufficiently
given (unless otherwise herein expressly provided) if it is in writing and
mailed, first-class, postage prepaid to each Noteholder or Certificateholder
affected by such condition or event, at such Person's address as it appears on
the Note Register or Certificate Register, as applicable, not later than the
latest date, and not earlier than the earliest date, prescribed in such Basic
Document for the giving of such notice. If notice to Noteholders or
Certificateholders is given by mail, neither the failure to mail such notice nor
any defect in any notice so mailed to any particular Noteholders or
Certificateholders shall affect the sufficiency of such notice with respect to
other Noteholders or Certificateholders, and any notice that is mailed in the
manner herein provided shall conclusively be presumed to have been duly given
regardless of whether such notice is in fact actually received.
