EXHIBIT 99.8
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ADMINISTRATION AGREEMENT
AMONG
CAPITAL AUTO RECEIVABLES ASSET TRUST 2004-2
ISSUER
AND
GENERAL MOTORS ACCEPTANCE CORPORATION
ADMINISTRATOR
AND
JPMORGAN CHASE BANK, N.A.
INDENTURE TRUSTEE
DATED AS OF DECEMBER 9, 2004
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ADMINISTRATION AGREEMENT, dated as of December 9, 2004, among CAPITAL AUTO
RECEIVABLES ASSET TRUST 2004-2, a Delaware statutory trust (the "Issuer"),
GENERAL MOTORS ACCEPTANCE CORPORATION, a Delaware corporation, as administrator
(the "Administrator"), and JPMORGAN CHASE BANK, N.A., not in its individual
capacity but solely as Indenture Trustee (the "Indenture Trustee").
W I T N E S S E T H :
WHEREAS, the Issuer is issuing Notes pursuant to an Indenture, dated as of
December 9, 2004 (as amended and supplemented from time to time, the
"Indenture"), between the Issuer and the Indenture Trustee;
WHEREAS, the Issuer has entered into (or assumed) certain agreements in
connection with the issuance of the Notes and the Certificates, including (i)
the Trust Sale and Servicing Agreement, (ii) the Note Depository Agreement and
(iii) the Indenture;
WHEREAS, pursuant to the Basic Documents, the Issuer and Deutsche Bank
Trust Company Delaware, as Owner Trustee, are required to perform certain duties
in connection with (a) the Notes and the Collateral and (b) the Certificates;
WHEREAS, the Issuer and the Owner Trustee desire to have the Administrator
perform certain of the duties of the Issuer and the Owner Trustee referred to in
the preceding clause, and to provide such additional services consistent with
the terms of this Agreement and the Basic Documents as the Issuer and the Owner
Trustee may from time to time request;
WHEREAS, the Administrator has the capacity to provide the services
required hereby and is willing to perform such services for the Issuer and the
Owner Trustee on the terms set forth herein;
NOW, THEREFORE, in consideration of the premises and the mutual covenants
herein contained, the parties agree as follows:
1. Certain Definitions. Capitalized terms used but not otherwise
defined herein shall have the respective meanings assigned to them in Part I of
Appendix A to the Trust Sale and Servicing Agreement of even date herewith,
among the Issuer, the Seller and General Motors Acceptance Corporation, as
Servicer (as it may be amended, supplemented or modified from time to time, the
"Trust Sale and Servicing Agreement"). All references herein to "the Agreement"
or "this Agreement" are to this Administration Agreement as it may be amended,
supplemented or modified from time to time, and all references herein to
Sections are to Sections 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.
2. Duties of the Administrator.
(a) Duties with Respect to the Note Depository Agreement and the
Indenture.
(i) The Administrator agrees to perform all its duties as
Administrator and the duties of the Issuer under the Indenture, the Swap
Counterparty Rights Agreement and the Note Depository Agreement. In addition,
the Administrator shall consult with the Owner Trustee regarding the duties of
the Issuer under the Indenture, the Swap Counterparty Rights Agreement and the
Note
Depository Agreement. The Administrator shall monitor the performance of
the Issuer and shall advise the Owner Trustee when action is necessary to comply
with the Issuer's duties under the Indenture, the Swap Counterparty Rights
Agreement and the Note Depository Agreement. The Administrator shall prepare for
execution by the Issuer or shall cause the preparation by other appropriate
persons of all such documents, reports, filings, instruments, certificates,
notices and opinions as it shall be the duty of the Issuer to prepare, file or
deliver pursuant to the Indenture, the Swap Counterparty Rights Agreement and
the Note Depository Agreement. In furtherance of the foregoing, the
Administrator shall take all appropriate action that it is the duty of the
Issuer to take pursuant to the Indenture and the Swap Counterparty Rights
Agreement, including, without limitation, such of the foregoing as are required
with respect to the following matters under the Indenture (references are to
sections of the Indenture and the Swap Counterparty Rights Agreement, as
applicable):
(A) the preparation of or obtaining of the documents and
instruments required for authentication of the Notes and delivery of such
documents or instruments to the Indenture Trustee (Section 2.2 of the
Indenture);
(B) the duty to cause the Note Register to be kept and to give
the Indenture Trustee notice of any appointment of a new Note Registrar and the
location, or change in location, of the Note Register (Section 2.4 of the
Indenture);
(C) the notification of Noteholders of the final principal
payment on their Notes (Section 2.7(d) of the Indenture);
(D) the preparation, obtaining or filing of the instruments,
opinions and certificates and other documents required for the release of
Collateral (Section 2.9 of the Indenture);
(E) the preparation of Definitive Notes and arranging the
delivery thereof (Section 2.12 of the Indenture);
(F) the maintenance of an office in the Borough of Manhattan,
the City of New York, for registration of transfer or exchange of Notes (Section
3.2 of the Indenture);
(G) the duty to cause newly appointed Paying Agents, if any,
to deliver to the Indenture Trustee the instrument specified in the Indenture
regarding funds held in trust (Section 3.3(c) of the Indenture);
(H) the direction to the Indenture Trustee to deposit monies
with Paying Agents, if any, other than the Indenture Trustee (Section 3.3(c) of
the Indenture);
(I) the obtaining and preservation of the Issuer's
qualification to do business in each jurisdiction in which such qualification is
or shall be necessary to protect the validity and enforceability of the
Indenture, the Notes, the Collateral and each other instrument and agreement
included in the Trust Estate (Section 3.4 of the Indenture);
(J) the preparation of all supplements, amendments, financing
statements, continuation statements, instruments of further assurance and other
instruments, in accordance with Section 3.5 of the Indenture, necessary to
protect the Trust Estate (Section 3.5 of the Indenture);
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(K) the delivery of the Opinion of Counsel on the Initial
Closing Date, in accordance with Section 3.6(a) of the Indenture, the delivery
of the Opinion of Counsel on or before March 15 in each calendar year, beginning
March 15, 2006 regarding maintenance of security liens and security interests in
accordance with Section 3.6(b) of the Indenture, each of which relates to the
Trust Estate, and the annual delivery of the Officers' Certificate and certain
other statements, in accordance with Section 3.9 of the Indenture, as to
compliance with the Indenture (Sections 3.6(a), 3.6(b) and 3.9 of the
Indenture);
(L) the identification to the Indenture Trustee in an
Officers' Certificate of a Person with whom the Issuer has contracted to perform
its duties under the Indenture (Section 3.7(b) of the Indenture);
(M) the notification of the Indenture Trustee and the Rating
Agencies of a Servicer Default pursuant to the Trust Sale and Servicing
Agreement or the Pooling and Servicing Agreement and, if such Servicer Default
arises from the failure of the Servicer to perform any of its duties under the
Trust Sale and Servicing Agreement, the taking of all reasonable steps available
to remedy such failure (Section 3.7(d) of the Indenture);
(N) the preparation and obtaining of documents and instruments
required for the release of the Issuer from its obligations under the Indenture
(Sections 3.10 and 3.11 of the Indenture);
(O) the delivery of notice to the Indenture Trustee and the
Rating Agencies of each Event of Default under the Indenture, each Servicer
Default, each default by the Seller under the Trust Sale and Servicing Agreement
and each default by GMAC under the Pooling and Servicing Agreement (Section 3.19
of the Indenture);
(P) the monitoring of the Issuer's obligations as to the
satisfaction and discharge of the Indenture and the preparation and delivery of
an Officers' Certificate, and the obtaining of the Opinion of Counsel and an
Independent Certificate relating thereto (Section 4.1 of the Indenture);
(Q) the compliance with any written directive of the Indenture
Trustee with respect to the sale of the Trust Estate in a commercially
reasonable manner if an Event of Default shall have occurred and be continuing
(Section 5.4 of the Indenture);
(R) the preparation and delivery of notice to Noteholders and
the Swap Counterparty of the resignation or removal of the Indenture Trustee and
the appointment of a successor Indenture Trustee (Section 6.8 of the Indenture);
(S) the preparation of any written instruments required to
confirm more fully the authority of any co-trustee or separate trustee and any
written instruments necessary in connection with the resignation or removal of
any co-trustee or separate trustee (Section 6.10 of the Indenture);
(T) the furnishing of the Indenture Trustee with the names and
addresses of Noteholders during any period when the Indenture Trustee is not the
Note Registrar (Section 7.1 of the Indenture);
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(U) the preparation, the execution on behalf of the Issuer and
the filing with the Securities and Exchange Commission, any applicable state
agencies and the Indenture Trustee of documents required to be filed on a
periodic basis with, and summaries thereof as may be required by rules and
regulations prescribed by, the Securities and Exchange Commission and any
applicable state agencies and the transmission of such summaries, as necessary,
to the Noteholders (Section 7.3 of the Indenture);
(V) the opening of one or more accounts in the Trust's name,
the preparation of Issuer Orders and Opinions of Counsel and all other actions
necessary with respect to investment and reinvestment of funds in the Designated
Accounts (Sections 8.2 and 8.3 of the Indenture);
(W) the preparation of an Issuer Request and Officer's
Certificate and the obtaining of an Opinion of Counsel, a Materiality Opinion
and Independent Certificates, if necessary, for the release of the Trust Estate
as defined in the Indenture (Sections 8.4 and 8.5 of the Indenture);
(X) the preparation of Issuer Orders and the obtaining of
Opinions of Counsel with respect to the execution of supplemental indentures and
the mailing to the Noteholders of notices with respect to such supplemental
indentures (Sections 9.1, 9.2 and 9.3 of the Indenture);
(Y) the execution and delivery of new Notes conforming to any
supplemental indenture (Section 9.6 of the Indenture);
(Z) the notification of Noteholders and the Rating Agencies of
redemption of the Notes or the duty to cause the Indenture Trustee to provide
such notification (Sections 10.1 and 10.2 of the Indenture);
(AA) the preparation of all Officer's Certificates, Opinions
of Counsel and Independent Certificates with respect to any requests by the
Issuer to the Indenture Trustee to take any action under the Indenture and
delivery thereof to the Indenture Trustee (Section 11.1(a) of the Indenture);
(BB) the preparation and delivery of Officers' Certificates
and the obtaining of Independent Certificates, if necessary, for the release of
property from the lien of the Indenture (Section 11.1(b) of the Indenture);
(CC) the notification of the Rating Agencies upon the failure
of the Indenture Trustee to give such notification, of the information required
pursuant to Section 11.4 (Section 11.4 of the Indenture);
(DD) the preparation and delivery to Noteholders, the
Indenture Trustee or any Paying Agent of any agreements with any Holder of a
Note with respect to alternate payment and notice provisions (Section 11.6 of
the Indenture);
(EE) the recording of the Indenture, if applicable (Section
11.15 of the Indenture);
(FF) the delivery to the Indenture Trustee of an Officer's
Certificate and an Opinion of Counsel addressed to the Issuer, each stating that
any consolidation or merger of the Issuer and related supplemental indenture
shall have no material adverse tax consequence to the
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Swap Counterparty, as required pursuant to Section 2.01(a) of the Swap
Counterparty Rights Agreement;
(GG) the delivery to the Indenture Trustee of an Officer's
Certificate and an Opinion of Counsel addressed to the Issuer, each stating that
any sale, conveyance, exchange, transfer or disposition of property or assets of
the Issuer and related supplemental indenture shall have no material adverse tax
consequence to the Swap Counterparty, as required pursuant to Section 2.01(b) of
the Swap Counterparty Rights Agreement;
(HH) the delivery of a copy to the Swap Counterparty of any
notice it shall deliver pursuant to Section 3.7(d) of the Indenture in respect
of the occurrence of a Servicer Default under the Trust Sale and Servicing
Agreement (Section 4.02(b) of the Swap Counterparty Rights Agreement);
(II) the delivery of prompt written notice to the Swap
Counterparty of each Event of Default under the Indenture, each Servicer
Default, each default on the part of the Seller of its obligations under the
Trust Sale and Servicing Agreement and each default on the part of GMAC of its
obligations under the Pooling and Servicing Agreement (Section 4.02(c) of the
Swap Counterparty Rights Agreement);
(JJ) the delivery to the Swap Counterparty, within five (5)
Business Days after learning of the occurrence thereof, of a copy of the written
notice in the form of an Officer's Certificate delivered to the Indenture
Trustee, of any event which with the giving of notice and the lapse of time
would become an Event of Default under Section 5.1(d) of the Indenture, its
status and what action the Issuer is taking or proposes to take with respect
thereto (Section 4.02(d) of the Swap Counterparty Rights Agreement);
(KK) the delivery of written notice to the Swap Counterparty
at least sixty (60) days prior to the removal of the Administrator without cause
pursuant to Section 10(d) of this Agreement (Section 4.10(a) of the Swap
Counterparty Rights Agreement);
(LL) the delivery to the Swap Counterparty of a copy of any
written notice from the Issuer to the Administrator effecting the immediate
removal of the Administrator pursuant to Section 10(d) of this Agreement
(Section 4.10(b) of the Swap Counterparty Rights Agreement);
(MM) the prompt transmittal to the Swap Counterparty of any
notice received by the Issuer from the Noteholders to the Swap Counterparty
(Section 4.12 of the Swap Counterparty Rights Agreement);
(NN) the delivery to the Swap Counterparty of summaries of any
information, documents or reports required to be filed by the Issuer pursuant to
Sections 7.3(a)(i) and 7.3(a)(ii) of the Indenture;
(OO) the delivery to the Swap Counterparty of a copy of the
Annual Statement of Compliance required by Section 3.9 of the Indenture (Section
4.13(c) of the Swap Counterparty Rights Agreement); and
(ii) For so long as GMAC is both the Administrator and the Servicer,
the Administrator will perform those payment and indemnity obligations of the
Servicer under Section
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3.01 of the Pooling and Servicing Agreement and Section 6.01 of the Trust Sale
and Servicing Agreement in the event that the Servicer fails to perform such
obligations.
(b) Additional Duties.
(i) In addition to the duties of the Administrator set forth above,
the Administrator shall perform all the duties of the Issuer under the Basic
Documents, including, without limitation, making all calculations and shall
prepare for execution by the Issuer or the Owner Trustee or shall cause the
preparation by other appropriate Persons of all such documents, reports,
filings, instruments, certificates, notices and opinions as it shall be the duty
of the Issuer or the Owner Trustee to prepare, file or deliver pursuant to the
Basic Documents, and at the request of the Owner Trustee shall take all
appropriate action that it is the duty of the Issuer or the Owner Trustee to
take pursuant to the Basic Documents. Subject to Section 7 of this Agreement,
and in accordance with the directions of the Owner Trustee, the Administrator
shall administer, perform or supervise the performance of such other activities
in connection with the Collateral (including the Basic Documents) as are not
covered by any of the foregoing provisions and as are expressly requested by the
Owner Trustee and are reasonably within the capability of the Administrator.
(ii) Notwithstanding anything in this Agreement or the Basic
Documents to the contrary, the Administrator shall be responsible for promptly
notifying the Owner Trustee if any withholding tax is imposed on the Trust's
payments to a Certificateholder as contemplated in Section 5.2(c) of the Trust
Agreement. Any such notice shall specify the amount of any withholding tax
required to be withheld by the Owner Trustee pursuant to such provision.
(iii) Notwithstanding anything in this Agreement or the Basic
Documents to the contrary, the Administrator shall be responsible for
performance of the duties of the Owner Trustee set forth in Section 5.4 of the
Trust Agreement with respect to, among other things, accounting and reports to
Certificateholders; provided, however, that if the Owner Trustee is notified by
the Administrator that the Issuer is deemed to be taxable as a partnership for
federal income tax purposes, the Owner Trustee shall retain responsibility for
the distribution to the Certificateholders of the Schedule K-1s necessary to
enable each Certificateholder to prepare its federal and state income tax
returns.
(iv) The Administrator may satisfy any obligations it may have with
respect to clauses (ii) and (iii) above by retaining, at the expense of the
Trust payable by the Administrator, a firm of independent public accountants
acceptable to the Owner Trustee which shall perform the obligations of the
Administrator thereunder.
(v) The Administrator shall perform the duties of the Administrator
specified in Section 6.10 of the Trust Agreement required to be performed in
connection with the resignation or removal of the Owner Trustee, and any other
duties expressly required to be performed by the Administrator under the Trust
Agreement.
(vi) In carrying out the foregoing duties or any of its other
obligations under this Agreement, the Administrator may enter into transactions
with or otherwise deal with any of its Affiliates; provided, however, that the
terms of any such transactions or dealings shall be in accordance with any
directions received from the Issuer and shall be, in the Administrator's
opinion, no less favorable to the Issuer than would be available from Persons
that are not Affiliates of the Administrator.
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(vii) The Administrator shall indemnify, defend and hold harmless
the Indenture Trustee and the Owner Trustee from and against any and all costs,
expenses, losses, claims, damages, and liabilities to the extent that such cost,
expense, loss, claim, damage, or liability arose out of, or was imposed upon the
Indenture Trustee or the Owner Trustee through the negligence, willful
misfeasance or bad faith of the Administrator in the performance of its duties
under this Agreement or by reason of reckless disregard of its obligations and
duties under this Agreement. Indemnification under this Section 2(b)(vii) shall
include, without limitation, reasonable fees and expenses of counsel and
expenses of litigation. If the Administrator has made any indemnity payments
pursuant to this Section 2(b)(vii) and the recipient thereafter collects any of
such amounts from others, the recipient shall promptly repay such amounts
collected to the Administrator, without interest.
(c) Non-Ministerial Matters.
(i) With respect to matters that in the reasonable judgment of the
Administrator are non-ministerial, the Administrator shall not take any action
unless, within a reasonable time before the taking of such action, the
Administrator shall have notified the Owner Trustee of the proposed action and
the Owner Trustee shall not have withheld consent or provided an alternative
direction. For the purpose of the preceding sentence, "non-ministerial matters"
shall include, without limitation:
(A) the amendment of or any supplement to the Indenture;
(B) the initiation of any claim or lawsuit by the Issuer and
the compromise of any action, claim or lawsuit brought by or against the Issuer;
(C) the amendment, change or modification of any of the Basic
Documents;
(D) the appointment of successor Note Registrars, successor
Paying Agents and successor Indenture Trustees pursuant to the Indenture or the
appointment of successor Administrators or successor Servicers, or the consent
to the assignment by the Note Registrar, Paying Agent or Indenture Trustee of
its obligations under the Indenture; and
(E) the removal of the Indenture Trustee.
(ii) Notwithstanding anything to the contrary in this Agreement, the
Administrator shall not be obligated to, and shall not, (x) make any payments to
the Noteholders under the Basic Documents, (y) sell the Trust Estate pursuant to
Section 5.4 of the Indenture or (z) take any other action that the Issuer
directs the Administrator not to take on its behalf.
3. Successor Servicer and Administrator. The Issuer shall undertake,
as promptly as possible after the giving of notice of termination to the
Servicer of the Servicer's rights and powers pursuant to Section 7.02 of the
Trust Sale and Servicing Agreement, to enforce the provisions of Sections 7.02,
7.03 and 7.04 of the Trust Sale and Servicing Agreement with respect to the
appointment of a successor Servicer. Such successor Servicer shall, upon
compliance with Sections 10(e)(ii) and (iii), become the successor Administrator
hereunder.
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4. Records. The Administrator shall comply with Section 5.4 of the
Trust Agreement, including, without limitation, maintaining appropriate books of
account and records relating to services performed hereunder, which books of
account and records shall be accessible for inspection by the Issuer and the
Seller at any time during normal business hours.
5. Compensation. As compensation for the performance of the
Administrator's obligations under this Agreement and as reimbursement for its
expenses related thereto, the Servicer shall pay the Administrator a monthly fee
in the amount of $1,500.
6. Additional Information To Be Furnished to the Issuer. The
Administrator shall furnish to the Issuer from time to time such additional
information regarding the Collateral as the Issuer shall reasonably request.
7. Independence of the Administrator. For all purposes of this
Agreement, the Administrator shall be an independent contractor and shall not be
subject to the supervision of the Issuer or the Owner Trustee with respect to
the manner in which it accomplishes the performance of its obligations
hereunder. Unless expressly authorized by the Issuer, the Administrator shall
have no authority to act for or represent the Issuer or the Owner Trustee in any
way and shall not otherwise be deemed an agent of the Issuer or the Owner
Trustee.
8. No Joint Venture. Nothing contained in this Agreement (i) shall
constitute the Administrator and either of the Issuer or the Owner Trustee as
members of any partnership, joint venture, association, syndicate,
unincorporated business or other separate entity, (ii) shall be construed to
impose any liability as such on any of them or (iii) shall be deemed to confer
on any of them any express, implied or apparent authority to incur any
obligation or liability on behalf of the others.
9. Other Activities of Administrator. Nothing herein shall prevent
the Administrator or its Affiliates from engaging in other businesses or, in its
sole discretion, from acting in a similar capacity as an administrator for any
other person or entity even though such person or entity may engage in business
activities similar to those of the Issuer, the Owner Trustee or the Indenture
Trustee.
10. Term of Agreement; Resignation and Removal of Administrator.
(a) This Agreement shall continue in force until the termination of the
Issuer, upon which event this Agreement shall automatically terminate.
(b) Subject to Section 10(e), the Administrator may give notice of its
intent to resign its duties hereunder by providing the Issuer with at least
sixty (60) days' prior written notice.
(c) Subject to Section 10(e), the Issuer may remove the Administrator
without cause by providing the Administrator with at least sixty (60) days'
prior written notice.
(d) Subject to Section 10(e), at the sole option of the Issuer, the
Administrator may be removed immediately upon written notice of termination from
the Issuer to the Administrator if any of the following events shall occur:
(i) the Administrator shall default in the performance of any of its
duties under this Agreement and, after notice from the Issuer of such default,
shall not cure such default within ten
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(10) days (or, if such default cannot be cured in such time, shall not give
within ten (10) days such assurance of cure as shall be reasonably satisfactory
to the Issuer);
(ii) a court having jurisdiction in the premises shall enter a
decree or order for relief, and such decree or order shall not have been vacated
within sixty (60) days, in respect of the Administrator in any involuntary case
under any applicable bankruptcy, insolvency or other similar law now or
hereafter in effect or appoint a receiver, liquidator, assignee, custodian,
trustee, sequestrator or similar official for the Administrator or any
substantial part of its property or order the winding-up or liquidation of its
affairs; or
(iii) the Administrator shall commence a voluntary case under any
applicable bankruptcy, insolvency or other similar law now or hereafter in
effect, shall consent to the entry of an order for relief in an involuntary case
under any such law, or shall consent to the appointment of a receiver,
liquidator, assignee, trustee, custodian, sequestrator or similar official for
the Administrator or any substantial part of its property, shall consent to the
taking of possession by any such official of any substantial part of its
property, shall make any general assignment for the benefit of creditors or
shall fail generally to pay its debts as they become due.
The Administrator agrees that if any of the events specified in
clauses (i), (ii) or (iii) of this Section 10(d) shall occur, it shall give
written notice thereof to the Issuer, the Swap Counterparty and the Indenture
Trustee within seven (7) days after the happening of such event.
(e) No resignation or removal of the Administrator pursuant to this
Section 10 shall be effective until (i) a successor Administrator shall have
been appointed by the Issuer, (ii) such successor Administrator shall have
agreed in writing to be bound by the terms of this Agreement in the same manner
as the Administrator is bound hereunder, and (iii) the Rating Agency Condition
has been satisfied with respect to such proposed appointment.
11. Action upon Termination, Resignation or Removal. Promptly upon
the effective date of termination of this Agreement pursuant to Section 10(a) or
the resignation or removal of the Administrator pursuant to Section 10(b) or
(c), respectively, the Administrator shall be entitled to be paid all fees and
reimbursable expenses accruing to it to the effective date of such termination,
resignation or removal. The Administrator shall forthwith upon such termination
pursuant to Section 10(a) deliver to the Issuer all property and documents of or
relating to the Collateral then in the custody of the Administrator. In the
event of the resignation or removal of the Administrator pursuant to Section
10(b) or (c), respectively, the Administrator shall cooperate with the Issuer
and take all reasonable steps requested to assist the Issuer in making an
orderly transfer of the duties of the Administrator.
12. Notices. All demands, notices and communications upon or to the
Issuer, the Administrator or the Indenture Trustee under this Agreement shall be
delivered as specified in Appendix B of the Trust Sale and Servicing Agreement.
13. Amendments.
(a) This Agreement may be amended from time to time with prior notice to
the Rating Agencies by a written amendment duly executed and delivered by the
Issuer, the Administrator and the Indenture Trustee, with the written consent of
the Owner Trustee, without the consent of the Financial Parties, for any of the
following purposes:
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(i) to add provisions hereof for the benefit of the Noteholders and
Certificateholders or to surrender any right or power herein conferred upon the
Administrator;
(ii) to cure any ambiguity or to correct or supplement any provision
herein which may be inconsistent with any other provision herein;
(iii) to evidence and provide for the appointment of a successor
Administrator hereunder and to add to or change any of the provisions of this
Agreement as shall be necessary to facilitate such succession; and
(iv) to add any provisions to or change in any manner or eliminate
any of the provisions of this Agreement or to modify in any manner the rights of
the Noteholders or Certificateholders; provided, however, that such amendment
under this Section 13(a)(iv) shall not, as evidenced by an Opinion of Counsel,
materially and adversely affect in any material respect the interest of any
Noteholder or Certificateholder.
(b) This Agreement may also be amended by the Issuer, the Administrator
and the Indenture Trustee with prior notice to the Rating Agencies and with the
written consent of the Owner Trustee and the holders of Notes evidencing at
least a majority in the Outstanding Amount of the Notes as of the close of the
immediately preceding Distribution Date and the holders of Certificates
evidencing at least a majority of the Voting Interests as of the close of the
preceding Distribution Date for the purpose of adding any provisions to,
changing in any manner or eliminating any of the provisions of this Agreement or
of modifying in any manner the rights of Noteholders or the Certificateholders;
provided, however, that no such amendment may (i) increase or reduce in any
manner the amount of, or accelerate or delay the timing of, collections of
payments on Receivables or distributions that are required to be made for the
benefit of the Noteholders or Certificateholders, (ii) reduce the percentage of
the holders of Notes and Certificates which are required to consent to any
amendment of this Agreement or (iii) modify or alter any provision of this
Section 13, except to provide that certain additional provisions of this
Agreement and the Basic Documents cannot be modified or waived without the
consent of each Noteholder and Certificateholder affected thereby, without, in
any such case, the consent of the holders of all the outstanding Notes and
Certificates.
(c) Notwithstanding Sections 13(a) and (b), the Administrator may not
amend this Agreement without the permission of the Seller, which permission
shall not be unreasonably withheld.
14. Successors and Assigns. This Agreement may not be assigned by
the Administrator unless such assignment is previously consented to in writing
by the Issuer and the Owner Trustee and subject to the satisfaction of the
Rating Agency Condition in respect thereof. An assignment with such consent and
satisfaction, if accepted by the assignee, shall bind the assignee hereunder in
the same manner as the Administrator is bound hereunder. Notwithstanding the
foregoing, this Agreement may be assigned by the Administrator without the
consent of the Issuer or the Owner Trustee to a corporation or other
organization that is a successor (by merger, consolidation or purchase of
assets) to the Administrator, provided that such successor organization executes
and delivers to the Issuer, the Owner Trustee and the Indenture Trustee an
agreement in which such corporation or other organization agrees to be bound
hereunder by the terms of such assignment in the same manner as the
Administrator is bound hereunder. Subject to the foregoing, this Agreement shall
bind any successors or assigns of the parties hereto.
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15. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO
THE PRINCIPLES OF CONFLICT OF LAWS THEREOF OR OF ANY OTHER JURISDICTION OTHER
THAN SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW, AND THE
OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES UNDER THIS AGREEMENT SHALL BE
DETERMINED IN ACCORDANCE WITH SUCH LAWS.
16. Headings. The section headings hereof have been inserted for
convenience of reference only and shall not define or limit any of the terms or
provisions hereof.
17. Separate Counterparts. This Agreement may be executed by the
parties in separate counterparts, each of which when so executed and delivered
shall be an original, but all such counterparts shall together constitute but
one and the same instrument.
18. Severability of Provisions. If any one or more of the covenants,
agreements, provisions or terms of this Agreement shall for any reason
whatsoever be held invalid, then such covenants, agreements, provisions or terms
shall be deemed severable from the remaining covenants, agreements, provisions
or terms of this Agreement and shall in no way affect the validity or
enforceability of the other provisions of this Agreement or of the Certificates
or the rights of the holders thereof.
19. Not Applicable to General Motors Acceptance Corporation in Other
Capacities. Nothing in this Agreement shall affect any obligation General Motors
Acceptance Corporation may have in any other capacity.
20. Limitation of Liability of Owner Trustee and Indenture Trustee.
(a) Notwithstanding anything contained herein to the contrary, this
instrument has been countersigned by Deutsche Bank Trust Company Delaware, not
in its individual capacity but solely as Owner Trustee and in no event shall
Deutsche Bank Trust Company Delaware have any liability for the representations,
warranties, covenants, agreements or other obligations of the Issuer hereunder
or in any of the certificates, notices or agreements delivered pursuant hereto,
as to all of which recourse shall be had solely to the assets of the Issuer. For
all purposes of this Agreement, in the performance of any duties or obligations
of the Issuer hereunder, the Owner Trustee shall be subject to, and entitled to
the benefits of, the terms and provisions of Article VI of the Trust Agreement.
(b) Notwithstanding anything contained herein to the contrary, this
Agreement has been countersigned by JPMorgan Chase Bank, N.A., not in its
individual capacity but solely in its capacity as Indenture Trustee and in no
event shall JPMorgan Chase Bank, N.A. have any liability for the
representations, warranties, covenants, agreements or other obligations of the
Issuer hereunder or in any of the certificates, notices or agreements delivered
pursuant hereto, as to all of which recourse shall be had solely to the assets
of the Issuer. For all purposes of this Agreement, in the performance of any
duties or obligations of the Issuer hereunder, the Indenture Trustee shall be
subject to, and entitled to the benefits of, the terms and provisions of Article
VI of the Indenture.
21. Third-Party Beneficiary. The Owner Trustee is a third-party
beneficiary to this Agreement and is entitled to the rights and benefits
hereunder and may enforce the provisions hereof as if it were a party hereto.
* * * * *
11
IN WITNESS WHEREOF, the parties have caused this Administration
Agreement to be duly executed by their respective officers as of the day and
year first above written.
CAPITAL AUTO RECEIVABLES ASSET
TRUST 2004-2
By: DEUTSCHE BANK TRUST COMPANY
DELAWARE, not in its
individual capacity, but
solely as Owner Trustee on
behalf of the Trust
By: /s/ Xxx Xxxxxxxx
-----------------------------
Name: Xxx Xxxxxxxx
Title: Attorney-In-Fact
JPMORGAN CHASE BANK, N.A., not in
its individual capacity but
solely as Indenture Trustee
By: /s/ Xxxxx X. Xxxxxxxxxx
-----------------------------
Name: Xxxxx X. Xxxxxxxxxx
Title: Attorney-In-Fact
GENERAL MOTORS ACCEPTANCE
CORPORATION, as Administrator
By: /s/ Xxxx X. Xxxxxxxxx
-----------------------------
Name: Xxxx X. Xxxxxxxxx
Title: Director - Global
Securitization
Signature Page Administration Agreement
