EXHIBIT 99.12
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CARAT ADMINISTRATION AGREEMENT
AMONG
CAPITAL AUTO RECEIVABLES ASSET TRUST 200_-__
ISSUER
AND
GENERAL MOTORS ACCEPTANCE CORPORATION
CARAT ADMINISTRATOR
AND
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CARAT INDENTURE TRUSTEE
DATED AS OF ____ , 200
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CARAT ADMINISTRATION AGREEMENT, dated as of__ , 200_ , among CAPITAL AUTO
RECEIVABLES ASSET TRUST 200_ -___ , a Delaware statutory trust (the "Issuer"),
GENERAL MOTORS ACCEPTANCE CORPORATION, a Delaware corporation, as administrator
(the "CARAT Administrator"), and ______, not in its individual capacity but
solely as CARAT Indenture Trustee (the "CARAT Indenture Trustee").
WHEREAS, the Issuer is issuing CARAT 200_ -___ Notes pursuant to the CARAT
Indenture, dated as of____ , 200_ (as amended and supplemented from time to
time, the "CARAT Indenture"), between the Issuer and the CARAT Indenture
Trustee;
WHEREAS, the Issuer has entered into (or assumed) certain agreements in
connection with the issuance of the CARAT 200_ -____ Notes and CARAT 200_-__
Certificates, including (i) the CARAT Trust Sale and Servicing Agreement, (ii)
the Note Depository Agreement and (iii) the CARAT Indenture;
WHEREAS, pursuant to the CARAT Basic Documents, the Issuer and
____________________, as CARAT Owner Trustee, are required to perform certain
duties in connection with (a) the CARAT 200_-___ Notes and the Collateral and
(b) the CARAT 200_ - Certificates;
WHEREAS, the Issuer and the CARAT Owner Trustee desire to have the CARAT
Administrator perform certain of the duties of the Issuer and the CARAT Owner
Trustee referred to in the preceding clause, and to provide such additional
services consistent with the terms of this Agreement and the CARAT Basic
Documents as the Issuer and the CARAT Owner Trustee may from time to time
request;
WHEREAS, the CARAT Administrator has the capacity to provide the services
required hereby and is willing to perform such services for the Issuer and the
CARAT 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 CARAT 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 "CARAT 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 CARAT Administrator.
(a) Duties with Respect to the Depository Agreements and the CARAT
Indenture.
(i) The CARAT Administrator agrees to perform all its duties
as CARAT Administrator and the duties of the Issuer under the CARAT Indenture,
the Swap Counterparty Rights Agreement and the Depository Agreements. In
addition, the CARAT Administrator shall consult with the CARAT Owner Trustee
regarding the duties of the Issuer under the CARAT Indenture, the Swap
Counterparty Rights Agreement and the Depository Agreements. The CARAT
Administrator shall monitor the performance of the Issuer and shall advise the
CARAT Owner Trustee when action is necessary to comply with the Issuer's duties
under the CARAT Indenture, the Swap Counterparty Rights Agreement and the
Depository Agreements. The CARAT 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 CARAT Indenture, the Swap Counterparty Rights Agreement and the
Depository Agreements. In furtherance of the foregoing, the CARAT Administrator
shall take all appropriate action that it is the duty of the Issuer to take
pursuant to the CARAT Indenture and the Swap Counterparty Rights Agreement,
including such of the foregoing as are required with respect to the following
matters under the CARAT Indenture (references are to sections of the CARAT
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 CARAT 200_-__ Notes and
delivery of the same to the CARAT Indenture Trustee (Section 2.2 of the CARAT
Indenture);
(B) the duty to cause the Note Register to be kept and
to give the CARAT 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 CARAT Indenture);
(C) the notification of the CARAT 200_-__ Noteholders
of the final principal payment on the CARAT 200_-__ Notes (Section 2.7(d) of the
CARAT 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 CARAT Indenture);
(E) the preparation of the Definitive Notes and
arranging the delivery thereof (Section 2.12 of the CARAT Indenture);
(F) the maintenance of an office in the Borough of
Manhattan, the City of New York, for registration of transfer or exchange of the
CARAT 200_-__ Notes (Section 3.2 of the CARAT Indenture);
(G) the duty to cause newly appointed Paying Agents,
if any, to deliver to the CARAT Indenture Trustee the instrument specified in
the CARAT Indenture regarding funds held in trust (Section 3.3(c) of the CARAT
Indenture);
(H) the direction to the CARAT Indenture Trustee to
deposit monies with Paying Agents, if any, other than the CARAT Indenture
Trustee (Section 3.3 of the CARAT Indenture);
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(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 CARAT
Indenture, the CARAT 200_-__ Notes, the Collateral and each other instrument and
agreement included in the CARAT Trust Estate (Section 3.4 of the CARAT
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 CARAT Indenture,
necessary to protect the CARAT Trust Estate (Section 3.5 of the CARAT
Indenture);
(K) the delivery of the Opinion of Counsel on the
Series 200 - Closing Date, in accordance with Section 3.6(a) of the CARAT
Indenture, the delivery of the Opinion of Counsel on or before March 15 in each
calendar year, beginning March 15, 200_ regarding maintenance of security liens
and security interests in accordance with Section 3.6(b) of the CARAT Indenture,
each of which relates to the CARAT Trust Estate, and the annual delivery of the
Officers' Certificate and certain other statements, in accordance with Section
3.9 of the CARAT Indenture, as to compliance with the CARAT Indenture (Sections
3.6(a), 3.6(b) and 3.9 of the CARAT Indenture);
(L) the identification to the CARAT Indenture Trustee
in an Officers' Certificate of a Person with whom the Issuer has contracted to
perform its duties under the CARAT Indenture (Section 3.7(b) of the CARAT
Indenture);
(M) the notification of the CARAT Indenture Trustee
and the Rating Agencies of a Servicer Default pursuant to the CARAT Trust Sale
and Servicing Agreement or the CARAT Pooling and Servicing Agreement and, if
such Servicer Default arises from the failure of the Servicer to perform any of
its duties under the CARAT Trust Sale and Servicing Agreement, the taking of all
reasonable steps available to remedy such failure (Section 3.7(d) of the CARAT
Indenture);
(N) the preparation and obtaining of documents and
instruments required for the release of the Issuer from its obligations under
the CARAT Indenture (Sections 3.10 and 3.11 of the CARAT Indenture);
(O) the delivery of notice to the CARAT Indenture
Trustee and the Rating Agencies of each Event of Default under the CARAT
Indenture, each Servicer Default, each default by the Seller under the CARAT
Trust Sale and Servicing Agreement and each default by GMAC under the CARAT
Pooling and Servicing Agreement (Section 3.19 of the CARAT Indenture);
(P) the monitoring of the Issuer's obligations as to
the satisfaction and discharge of the CARAT Indenture and the preparation and
delivery of an Officers' Certificate and the obtaining of the Opinion of Counsel
and the Independent Certificate relating thereto (Section 4.1 of the CARAT
Indenture);
(Q) the compliance with any written directive of the
CARAT Indenture Trustee with respect to the sale of the CARAT Trust Estate in a
commercially
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reasonable manner if an Event of Default shall have occurred and be continuing
(Section 5.4 of the CARAT Indenture);
(R) the preparation and delivery of notice to the
CARAT 200_-__ Noteholders and the Swap Counterparty of the resignation or
removal of the CARAT Indenture Trustee and the appointment of a successor CARAT
Indenture Trustee (Section 6.8 of the CARAT 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 CARAT
Indenture);
(T) the furnishing of the CARAT Indenture Trustee with
the names and addresses of CARAT 200_-__ Noteholders during any period when the
CARAT Indenture Trustee is not the Note Registrar (Section 7.1 of the CARAT
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 CARAT 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 CARAT 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 CARAT 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 CARAT Trust
Estate as defined in the CARAT Indenture (Sections 8.4 and 8.5 of the CARAT
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 CARAT 200_-__ Noteholders of notices with respect to such
supplemental indentures (Sections 9.1, 9.2 and 9.3 of the CARAT Indenture);
(Y) the execution and delivery of new CARAT 200_-__
Notes conforming to any supplemental indenture (Section 9.6 of the CARAT
Indenture);
(Z) the notification of the CARAT 200_-__ Noteholders
and the Rating Agencies of redemption of the Redeemable Notes or the duty to
cause the CARAT Indenture Trustee to provide such notification (Sections 10.1
and 10.2 of the CARAT 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 CARAT
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Indenture Trustee to take any action under the CARAT Indenture and delivery
thereof to the CARAT Indenture Trustee (Section 11.1(a) of the CARAT 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 CARAT Indenture (Section 11.1(b) of
the CARAT Indenture);
(CC) the notification of the Rating Agencies upon the
failure of the CARAT Indenture Trustee to give such notification, of the
information required pursuant to Section 11.4 of the CARAT Indenture;
(DD) the preparation and delivery to the CARAT 200 -
Noteholders, the CARAT 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 CARAT Indenture);
(EE) the recording of the CARAT Indenture, if
applicable (Section 11.15 of the CARAT Indenture);
(FF) the delivery to the CARAT 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 CARAT 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 of the Swap Counterparty of
any notice it shall deliver pursuant to Section 3.7(d) of the CARAT Indenture in
respect of the occurrence of a Servicer Default under the CARAT 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 CARAT Indenture, each Servicer
Default, each default on the part of the Seller of its obligations under the
CARAT Trust Sale and Servicing Agreement and each default on the part of GMAC of
its obligations under the CARAT 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 CARAT 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
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the CARAT 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 CARAT 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 CARAT 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 CARAT 200_-__ 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 CARAT Indenture;
(OO) the delivery to the Swap Counterparty of a copy of
the Annual Statement of Compliance required by Section 3.9 of the CARAT
Indenture (Section 4.13(c) of the Swap Counterparty Rights Agreement) and
(ii) For so long as GMAC is both the CARAT Administrator and
the Servicer, the CARAT Administrator will perform those payment and indemnity
obligations of the Servicer under Section 3.01 of the CARAT Pooling and
Servicing Agreement and Section 6.01 of the CARAT 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 CARAT Administrator set
forth above, the CARAT Administrator shall perform all the duties of the Issuer
under the CARAT Basic Documents, including making all calculations and shall
prepare for execution by the Issuer or the CARAT 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 CARAT Owner Trustee to prepare, file or deliver pursuant to
the CARAT Basic Documents, and at the request of the CARAT Owner Trustee shall
take all appropriate action that it is the duty of the Issuer or the CARAT Owner
Trustee to take pursuant to the CARAT Basic Documents. Subject to Section 7 of
this Agreement, and in accordance with the directions of the CARAT Owner
Trustee, the CARAT Administrator shall administer, perform or supervise the
performance of such other activities in connection with the Collateral
(including the CARAT Basic Documents) as are not covered by any of the foregoing
provisions and as are expressly requested by the CARAT Owner Trustee and are
reasonably within the capability of the CARAT Administrator.
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(ii) Notwithstanding anything in this Agreement or the CARAT
Basic Documents to the contrary, the CARAT Administrator shall be responsible
for promptly notifying the CARAT Owner Trustee if any withholding tax is imposed
on the Trust's payments to a CARAT 200_-__ Certificateholders 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 CARAT Owner Trustee
pursuant to such provision.
(iii) Notwithstanding anything in this Agreement or the CARAT
Basic Documents to the contrary, the CARAT Administrator shall be responsible
for performance of the duties of the CARAT Owner Trustee set forth in Section
5.4 of the Trust Agreement with respect to, among other things, accounting and
reports to the CARAT 200_-__ Certificateholders; provided, however, that if the
CARAT Owner Trustee is notified by the CARAT Administrator that the Issuer is
deemed to be taxable as a partnership for federal income tax purposes, the CARAT
Owner Trustee shall retain responsibility for the distribution to the CARAT
200_-__ Certificateholders of the Schedule K-1s necessary to enable each CARAT
200_ -__ Certificateholder to prepare its federal and state income tax returns.
(iv) The CARAT 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 CARAT Administrator, a firm of independent
public accountants acceptable to the CARAT Owner Trustee which shall perform the
obligations of the CARAT Administrator thereunder.
(v) The CARAT Administrator shall perform the duties of the
CARAT Administrator specified in Section 6.10 of the Trust Agreement required to
be performed in connection with the resignation or removal of the CARAT Owner
Trustee, and any other duties expressly required to be performed by the CARAT
Administrator under the Trust Agreement.
(vi) In carrying out the foregoing duties or any of its other
obligations under this Agreement, the CARAT 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
CARAT Administrator's opinion, no less favorable to the Issuer than would be
available from Persons that are not Affiliates of the CARAT Administrator.
(vii) The CARAT Administrator shall indemnify, defend and hold
harmless the CARAT Indenture Trustee and the CARAT 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 CARAT Indenture Trustee or the CARAT Owner Trustee
through the negligence, willful misfeasance or bad faith of the CARAT
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 CARAT
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 CARAT
Administrator, without interest.
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(c) Non-Ministerial Matters.
(i) With respect to matters that in the reasonable judgment
of the CARAT Administrator are non-ministerial, the CARAT Administrator shall
not take any action unless, within a reasonable time before the taking of such
action, the CARAT Administrator shall have notified the CARAT Owner Trustee of
the proposed action and the CARAT 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 CARAT
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 CARAT Basic Documents;
(D) the appointment of successor Note Registrars,
successor Paying Agents and successor CARAT Indenture Trustees pursuant to the
CARAT Indenture, or the appointment of successor CARAT Administrators or
successor Servicers, or the consent to the assignment by the Note Registrar,
Paying Agent or CARAT Indenture Trustee of its obligations under the CARAT
Indenture; and
(E) the removal of the CARAT Indenture Trustee.
(ii) Notwithstanding anything to the contrary in this
Agreement, the CARAT Administrator shall not be obligated to, and shall not, (x)
make any payments to the CARAT 200_-__ Noteholders under the CARAT Basic
Documents, (y) sell the CARAT Trust Estate pursuant to Section 5.4 of the CARAT
Indenture or (z) take any other action that the Issuer directs the CARAT
Administrator not to take on its behalf.
3. Successor Servicer and CARAT 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
CARAT Trust Sale and Servicing Agreement, to enforce the provisions of Sections
7.02, 7.03 and 7.04 of the CARAT 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 CARAT
Administrator hereunder.
4. Records. The CARAT 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 CARAT
Administrator's obligations under this Agreement and as reimbursement for its
expenses related thereto, the Servicer shall pay the CARAT Administrator a
monthly fee in the amount of $1,500.
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6. Additional Information To Be Furnished to the Issuer. The CARAT
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 CARAT Administrator. For all purposes of this
Agreement, the CARAT Administrator shall be an independent contractor and shall
not be subject to the supervision of the Issuer or the CARAT Owner Trustee with
respect to the manner in which it accomplishes the performance of its
obligations hereunder. Unless expressly authorized by the Issuer, the CARAT
Administrator shall have no authority to act for or represent the Issuer or the
CARAT Owner Trustee in any way and shall not otherwise be deemed an agent of the
Issuer or the CARAT Owner Trustee.
8. No Joint Venture. Nothing contained in this Agreement (i) shall
constitute the CARAT Administrator and either of the Issuer or the CARAT 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 CARAT Administrator. Nothing herein shall
prevent the CARAT 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 CARAT
Owner Trustee or the CARAT Indenture Trustee.
10. Term of Agreement; Resignation and Removal of CARAT 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 CARAT 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 CARAT
Administrator without cause by providing the CARAT Administrator with at least
60 days' prior written notice.
(d) Subject to Section 10(e), at the sole option of the Issuer,
the CARAT Administrator may be removed immediately upon written notice of
termination from the Issuer to the CARAT Administrator if any of the following
events shall occur:
(i) the CARAT 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);
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(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 CARAT 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 CARAT Administrator or any
substantial part of its property or order the winding-up or liquidation of its
affairs; or
(iii) the CARAT 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 CARAT 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 CARAT 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 CARAT
Indenture Trustee within seven days after the happening of such event.
(e) No resignation or removal of the CARAT Administrator pursuant
to this Section 10 shall be effective until (i) a successor CARAT Administrator
shall have been appointed by the Issuer, (ii) such successor CARAT Administrator
shall have agreed in writing to be bound by the terms of this Agreement in the
same manner as the CARAT 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 CARAT Administrator pursuant to Section 10(b) or
(c), respectively, the CARAT 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 CARAT 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 CARAT Administrator. In the event of the resignation or removal of the CARAT
Administrator pursuant to Section 10(b) or (c), respectively, the CARAT
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 CARAT Administrator.
12. Notices. All demands, notices and communications upon or to the
Issuer, the CARAT Administrator or the CARAT Indenture Trustee under this
Agreement shall be delivered as specified in Appendix B of the CARAT Trust Sale
and Servicing Agreement.
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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 CARAT Administrator and the CARAT Indenture Trustee, with the
written consent of the CARAT 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 CARAT
200_-__ Noteholders and CARAT 200_-__ 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 CARAT 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 CARAT 200_-__ Noteholders or CARAT 200_-__ 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 CARAT 200_-__ Noteholder or CARAT 200_-__
Certificateholder.
(b) This Agreement may also be amended by the Issuer, the CARAT
Administrator and the CARAT Indenture Trustee with prior notice to the Rating
Agencies and with the written consent of the CARAT Owner Trustee and the holders
of CARAT 200_-__ Notes evidencing at least a majority in the Outstanding Amount
of the CARAT 200_-__ Notes as of the close of the immediately preceding
Distribution Date and the holders of CARAT 200_-__ 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 CARAT 200_-__ Noteholders or the CARAT 200_-__
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 COLT 200_-__ Secured Notes or distributions that are
required to be made for the benefit of the CARAT 200_-__ Noteholders or CARAT
200_-__ Certificateholders, (ii) reduce the percentage of the holders of CARAT
200_-__ Notes and CARAT 200_-__ 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 CARAT Basic Documents cannot be modified or waived without the
consent of each CARAT 200_-__ Noteholder and CARAT 200_-__ Certificateholder
affected thereby, without, in any such case, the consent of the holders of all
the outstanding CARAT 200_-__ Notes and CARAT 200_-__ Certificates.
(c) Notwithstanding Sections 13(a) and (b), the CARAT
Administrator may not amend this Agreement without the permission of the Seller,
which permission shall not be unreasonably withheld.
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14. Successors and Assigns. This Agreement may not be assigned by the
CARAT Administrator unless such assignment is previously consented to in writing
by the Issuer and the CARAT Owner Trustee and subject to the satisfaction of the
Rating Agency Condition. An assignment with such consent and satisfaction, if
accepted by the assignee, shall bind the assignee hereunder in the same manner
as the CARAT Administrator is bound hereunder. Notwithstanding the foregoing,
this Agreement may be assigned by the CARAT Administrator without the consent of
the Issuer or the CARAT Owner Trustee to a corporation or other organization
that is a successor (by merger, consolidation or purchase of assets) to the
CARAT Administrator, provided that such successor organization executes and
delivers to the Issuer, the CARAT Owner Trustee and the CARAT 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 CARAT
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 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 SECTIONS 5-1401 AND 5-1402 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 CARAT 200 -
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 CARAT Owner Trustee and CARAT Indenture
Trustee.
(a) Notwithstanding anything contained herein to the contrary,
this instrument has been countersigned by _____________, not in its individual
capacity but solely as CARAT Owner Trustee and in no event shall ______________
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
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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 CARAT 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____ , not in its individual capacity
but solely in its capacity as CARAT Indenture Trustee and in no event shall____
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 CARAT 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.
* * * * *
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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 200 -
By:_____________________________________,
not in its individual capacity, but solely as CARAT
Owner Trustee on behalf of the Trust
By:_____________________________________
Name:
Title:
____________________________, not in its individual
capacity but solely as CARAT Indenture Trustee
By:_____________________________________
Name:_____________________________________
Title:_____________________________________
GENERAL MOTORS ACCEPTANCE
CORPORATION, as CARAT Administrator
By:_____________________________________
Name:
Title:
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