Exhibit 99.10
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ADMINISTRATION AGREEMENT
AMONG
CAPITAL AUTO RECEIVABLES ASSET TRUST 2002-5
ISSUER
AND
GENERAL MOTORS ACCEPTANCE CORPORATION
ADMINISTRATOR
AND
BANK ONE, NATIONAL ASSOCIATION
INDENTURE TRUSTEE
DATED AS OF NOVEMBER 13, 2002
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ADMINISTRATION AGREEMENT, dated as of November 13, 2002, among CAPITAL
AUTO RECEIVABLES ASSET TRUST 2002-5, 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 November 13, 2002 (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, 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);
(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
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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 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 applicable state agencies and the transmission of such summaries, as
necessary, to the Noteholders (Section 7.3 of the Indenture);
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(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, 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;
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(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) 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.
(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,
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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
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
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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.
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.
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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 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,
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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;
(ii) to cure any ambiguity or to correct or supplement any
provision herein which may be inconsistent with any other provision herein;
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(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 CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REFERENCE TO ITS
CONFLICT OF LAW PROVISIONS, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE
PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
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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 2002-5
By: DEUTSCHE BANK TRUST COMPANY DELAWARE,
not in its individual capacity, but solely
as Owner Trustee on behalf of the Trust
By:
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Name: Man Wing Li
Title: Attorney-in-fact
BANK ONE, NATIONAL ASSOCIATION, not in its
individual capacity but solely as Indenture
Trustee
By:
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Title: Vice President
GENERAL MOTORS ACCEPTANCE CORPORATION, as
Administrator
By:
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Title: Director Securitization and Cash
Management
Signature Page Administration Agreement