EXHIBIT 99.10
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ADMINISTRATION AGREEMENT
AMONG
CAPITAL AUTO RECEIVABLES ASSET TRUST 2003-2
ISSUER
AND
GENERAL MOTORS ACCEPTANCE CORPORATION
ADMINISTRATOR
AND
BANK ONE, NATIONAL ASSOCIATION
INDENTURE TRUSTEE
DATED AS OF JUNE 11, 2003
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ADMINISTRATION AGREEMENT, dated as of June 11, 2003, among CAPITAL AUTO
RECEIVABLES ASSET TRUST 2003-2, a Delaware statutory trust (the "Issuer"),
GENERAL MOTORS ACCEPTANCE CORPORATION, a Delaware corporation, as administrator
(the "Administrator"), and BANK ONE, NATIONAL ASSOCIATION, 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 June 11, 2003 (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 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 Depository Agreements 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 Depository Agreements. 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
Depository Agreements. 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
Depository Agreements. 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 Depository Agreements.
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 the same 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 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 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, assignments,
certificates, 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 Closing Date, in accordance with Section 3.6 of the Indenture, as 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 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 (Section 3.11 of the Indenture);
(O) the delivery of notice to the Indenture
Trustee 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 of an
Officers' Certificate and the obtaining of the Opinion of Counsel and the
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 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);
(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
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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, Officer's Certificates 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 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 Redeemable 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 (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
and the Indenture Trustee of any agreements 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 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,
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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 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 60 days prior to the removal of the Administrator without
cause pursuant to Section 10(b) of the Administration 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 the
Administration 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 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.
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(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.
(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
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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.
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.
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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
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 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 days (or, if such default cannot
be cured in such time, shall not give within ten 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 60 days, in respect of the
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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 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:
(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;
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(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.
15. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT
REFERENCE TO ITS CONFLICT OF LAW PROVISIONS OTHER
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THAN SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW, AND THE
OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER 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 Bank One, National Association, not in
its individual capacity but solely in its capacity as Indenture Trustee and in
no event shall Bank One, National Association have any liability for the
representations, warranties, covenants, agreements or other obligations of the
Issuer hereunder or in any of the certificates, notices or agreements delivered
pursuant hereto, as to all of which recourse shall be had solely to the assets
of the Issuer.
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 2003-2
By: DEUTSCHE BANK TRUST COMPANY DELAWARE,
not in its individual capacity, but solely
as Owner Trustee on behalf of the Trust
By: ________________________________________
Name: Man Wing Li
Title: Attorney-in-fact
BANK ONE, NATIONAL ASSOCIATION,
not in its individual capacity but solely as
Indenture Trustee
By: ________________________________________
Name: Xxxxx X. Xxxxxxxxxx
Title: Vice President
GENERAL MOTORS ACCEPTANCE CORPORATION, as
Administrator
By: ________________________________________
Name: Xxxxx X. Xxxxxxxxxx
Title: Director - Securitization and Cash
Management
Signature Page Administration Agreement
