EXHIBIT 99.3
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POOLING AND SERVICING AGREEMENT
BETWEEN
CAPITAL AUTO RECEIVABLES, INC.
AND
GENERAL MOTORS ACCEPTANCE CORPORATION
DATED AS OF AUGUST 14, 2003
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TABLE OF CONTENTS
PAGE
ARTICLE I DEFINITIONS............................................................................................ 1
SECTION 1.01 Definitions.............................................................................. 1
SECTION 1.02 Owner of a Receivable.................................................................... 2
ARTICLE II PURCHASE AND SALE OF RECEIVABLES...................................................................... 2
SECTION 2.01 Purchase and Sale of Receivables......................................................... 2
SECTION 2.02 Receivables Purchase Price............................................................... 4
SECTION 2.03 The Closings............................................................................. 4
SECTION 2.04 Custody of Receivable Files.............................................................. 4
ARTICLE III ADMINISTRATION AND SERVICING OF RECEIVABLES.......................................................... 5
SECTION 3.01 Duties of the Servicer................................................................... 5
SECTION 3.02 Collection of Receivable Payments........................................................ 6
SECTION 3.03 Rebates on Full Prepayments on Scheduled Interest Receivables............................ 6
SECTION 3.04 Realization Upon Liquidating Receivables................................................. 6
SECTION 3.05 Maintenance of Insurance Policies........................................................ 7
SECTION 3.06 Maintenance of Security Interests in Vehicles............................................ 7
SECTION 3.07 Covenants, Representations and Warranties of the Servicer................................ 7
SECTION 3.08 Purchase of Receivables Upon Breach of Covenant.......................................... 9
SECTION 3.09 Total Servicing Fee; Payment of Certain Expenses by Servicer............................. 9
SECTION 3.10 Servicer's Accounting.................................................................... 10
SECTION 3.11 Application of Collections............................................................... 10
ARTICLE IV REPRESENTATIONS AND WARRANTIES........................................................................ 11
SECTION 4.01 Representations and Warranties as to the Receivables..................................... 11
SECTION 4.02 Additional Representations and Warranties of GMAC........................................ 14
SECTION 4.03 Representations and Warranties of XXXX................................................... 15
ARTICLE V ADDITIONAL AGREEMENTS.................................................................................. 16
SECTION 5.01 Conflicts With Further Transfer and Servicing Agreements................................. 16
SECTION 5.02 Protection of Title;..................................................................... 16
SECTION 5.03 Other Liens or Interests................................................................. 17
SECTION 5.04 Repurchase Events........................................................................ 18
SECTION 5.05 Indemnification.......................................................................... 18
SECTION 5.06 Further Assignments...................................................................... 18
SECTION 5.07 Pre-Closing Collections.................................................................. 18
ARTICLE VI CONDITIONS............................................................................................ 18
SECTION 6.01 Conditions to Obligation of XXXX......................................................... 18
SECTION 6.02 Conditions To Obligation of GMAC......................................................... 19
ARTICLE VII MISCELLANEOUS PROVISIONS............................................................................. 20
SECTION 7.01 Amendment................................................................................ 20
SECTION 7.02 Survival................................................................................. 20
SECTION 7.03 Notices.................................................................................. 20
SECTION 7.04 GOVERNING LAW............................................................................ 20
SECTION 7.05 Waivers.................................................................................. 20
SECTION 7.06 Costs and Expenses....................................................................... 20
SECTION 7.07 Confidential Information................................................................. 20
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SECTION 7.08 Headings................................................................................. 21
SECTION 7.09 Counterparts............................................................................. 21
SECTION 7.10 No Petition Covenant..................................................................... 21
SECTION 7.11 Limitations on Rights of Others.......................................................... 21
EXHIBIT A Form of First Step Initial Receivables Assignment
EXHIBIT B Form of First Step Additional Receivables Assignment
APPENDIX A Definitions, Rules of Construction and Notices
APPENDIX B Additional Representations and Warranties
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THIS POOLING AND SERVICING AGREEMENT, dated as of August 14, 2003,
between CAPITAL AUTO RECEIVABLES, INC., a Delaware corporation ("XXXX"), and
GENERAL MOTORS ACCEPTANCE CORPORATION, a Delaware corporation (herein referred
to as "GMAC" in its capacity as seller of the Receivables and as the "Servicer"
in its capacity as servicer of the Receivables).
WHEREAS, XXXX desires to purchase on the date hereof and from time to
time hereafter portfolios of automobile and light truck retail instalment sale
contracts, direct purchase money loans and related rights owned by GMAC;
WHEREAS, GMAC is willing to sell on the date hereof and from time to
time hereafter such contracts and related rights to XXXX;
WHEREAS, XXXX may wish to sell or otherwise transfer on the date hereof
and from time to time hereafter such contracts and related rights, or interests
therein, to a trust, corporation, partnership or other entity (any such entity
being the "Issuer");
WHEREAS, the Issuer may issue debentures, notes, participations,
certificates of beneficial interest, partnership interests or other interests or
securities (collectively, any such issued interests or securities being
"Securities") to fund its acquisition of such contracts and related rights;
WHEREAS, the Issuer may wish to provide in the agreements pursuant to
which it acquires its interest in such contracts and related rights and issues
the Securities (all such agreements, including the Trust Sale and Servicing
Agreement and the Indenture, being collectively the "Further Transfer and
Servicing Agreements") that GMAC shall service such contracts;
WHEREAS, the Servicer is willing to service such contracts in
accordance with the terms hereof for the benefit of XXXX and, by its execution
of the Further Transfer and Servicing Agreements, will be willing to service
such contracts in accordance with the terms of such Further Transfer and
Servicing Agreements for the benefit of the Issuer and each other party
identified or described herein or in the Further Transfer and Servicing
Agreements as having an interest as owner, trustee, secured party, or holder of
Securities (the Issuer and all such parties under the Further Transfer and
Servicing Agreements being "Interested Parties") with respect to such contracts,
and the proceeds thereof, as the interests of such parties may appear from time
to time.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants herein contained, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01 Definitions. Certain capitalized terms used
in this Agreement are defined in and shall have the respective meanings assigned
to them in Part I of Appendix A to this Agreement. All references herein to "the
Agreement" or "this Agreement" are to this Pooling and Servicing Agreement as it
may be amended, supplemented or modified from time to
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time, and all references herein to Articles and Sections are to Articles or
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.
SECTION 1.02 Owner of a Receivable. For purposes of this
Agreement , the "Owner" of a Receivable shall mean XXXX until the sale,
transfer, assignment or other conveyance of such Receivable by XXXX pursuant to
the terms of the Further Transfer and Servicing Agreements, and thereafter shall
mean the Issuer; provided, that GMAC or XXXX, as applicable, shall be the
"Owner" of any Receivable from and after the time that such Person shall acquire
such Receivable, whether pursuant to Section 3.08 or 5.04 of this Agreement, any
provision of the Further Transfer and Servicing Agreements or otherwise.
ARTICLE II
PURCHASE AND SALE OF RECEIVABLES
SECTION 2.01 Purchase and Sale of Receivables.
(a) Initial Purchase. On the Initial Closing Date,
subject to satisfaction of the conditions specified in Article VI and the First
Step Initial Receivables Assignment (and, in any event, immediately prior to
consummation of the related transactions contemplated by the Further Transfer
and Servicing Agreements, if any), GMAC shall sell, transfer, assign and
otherwise convey to XXXX, without recourse:
(i) all right, title and interest of GMAC in, to
and under the Initial Receivables listed on the Schedule of Initial Receivables
and (A) in the case of Initial Receivables that are Scheduled Interest
Receivables, all monies due thereunder on and after the Initial Cutoff Date and
(B) in the case of Initial Receivables that are Simple Interest Receivables, all
monies received thereon on and after the Initial Cutoff Date, in each case,
exclusive of any amounts allocable to the premium for physical damage insurance
force-placed by GMAC covering any related Financed Vehicle;
(ii) the interest of GMAC in the security
interests in the Financed Vehicles granted by Obligors pursuant to the Initial
Receivables and, to the extent permitted by law, any accessions thereto;
(iii) the interest of GMAC in any proceeds from
claims on any physical damage, credit life, credit disability or other insurance
policies covering Financed Vehicles or Obligors;
(iv) the interest of GMAC in any proceeds from
recourse against Dealers on the Initial Receivables;
(v) all right, title and interest of the Seller
in, to and under the First Step Initial Receivables Assignment;
(vi) the right to purchase Additional Receivables
during the Revolving Period at a price equal to the Additional Receivables
Discounted Principal Balance; and
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(vii) the interest of GMAC in any proceeds of the
property described in clauses (i) and (ii) above.
The property described in clauses (i) through (vii) above is referred
to herein collectively as the "Initial Purchased Property."
(b) Additional Purchases. On each Additional Closing
Date, subject to the satisfaction of the conditions specified in Article VI and
the First Step Additional Receivables Assignment (and, in any event, immediately
prior to consummation of the related transactions contemplated by the Further
Transfer and Servicing Agreements, if any), GMAC shall sell, transfer, assign
and otherwise convey to XXXX, without recourse:
(i) all right, title and interest of GMAC in, to
and under the Additional Receivables listed on the Schedule of Additional
Receivables for such Additional Closing Date and (1) in the case of Additional
Receivables that are Scheduled Interest Receivables, all monies received
thereunder on and after the related Additional Cutoff Date, and (2) in the case
of Additional Receivables that are Simple Interest Receivables, all monies
received thereon on and after the related Additional Cutoff Date, in each case,
exclusive of any amounts allocable to the premium for physical damage insurance
force-placed by GMAC covering any related financed Vehicle;
(ii) the interest of GMAC in the security
interests in the Financed Vehicles granted by Obligors pursuant to the
Additional Receivables and, to the extent permitted by law, any accessions
thereto;
(iii) the interest of GMAC in any proceeds from
claims on any physical damage, credit life, credit disability or other insurance
policies covering Financed Vehicles or Obligors;
(iv) the interest of GMAC in any proceeds from
recourse against Dealers on the Additional Receivables;
(v) all right, title and interest of the Seller
in, to and under the related First Step Additional Receivables Assignment; and
(vi) the interest of GMAC in any proceeds of the
property described in clauses (i) and (ii) above.
The property described in clauses (i) through (vii) above is referred
to herein collectively as the "Additional Purchased Property." The Initial
Purchased Property and the Additional Purchased Property are referred to herein
collectively as the "Purchased Property."
(c) It is the intention of GMAC and XXXX that the
transfer and assignment of Receivables contemplated by this Agreement and each
First Step Receivables Assignment shall constitute a sale of the Receivables
from GMAC to XXXX and the beneficial interest in and title to the Receivables
shall not be part of GMAC's estate in the event of the filing of a bankruptcy
petition by or against GMAC under any bankruptcy law.
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(d) The transfer and assignment of Receivables
contemplated by this Agreement and each First Step Receivables Assignment does
not constitute and is not intended to result in any assumption by XXXX of any
obligation of GMAC to the Obligors, Dealers, insurers or any other Person in
connection with the Receivables, any Dealer Agreements, any insurance policies
or any agreement or instrument relating to any of them.
SECTION 2.02 Receivables Purchase Price.
(a) Initial Purchase. In consideration for the Initial
Purchased Property, XXXX shall, on the Initial Closing Date, pay to GMAC an
amount equal to the Initial Aggregate Discounted Principal Balance in respect of
the Initial Receivables and GMAC shall execute and deliver to XXXX an assignment
in the form attached hereto as Exhibit A (the "First Step Initial Receivables
Assignment"). The Initial Aggregate Discounted Principal Balance, which is equal
to $2,943,831,568.24 shall be paid to GMAC in immediately available funds.
(b) Additional Receivables. In consideration for the
Additional Purchased Property to be sold by GMAC to XXXX, XXXX shall, on each
related Additional Closing Date, pay to GMAC an amount equal to the Additional
Receivables Discounted Principal Balance in respect of the Additional
Receivables sold on such date and GMAC shall execute and deliver to XXXX a First
Step Additional Receivables Assignment in the form attached hereto as Exhibit B
(the "First Step Additional Receivables Assignment"). The First Step Initial
Receivables Assignment and each First Step Additional Receivables Assignment are
collectively referred to herein as the "First Step Receivables Assignments."
SECTION 2.03 The Closings.
(a) Initial Purchase. The sale and purchase of the
Initial Receivables shall take place at the offices of Xxxxxxxx & Xxxxx, 000
Xxxx Xxxxxxxx Xxxxx, Xxxxxxx, Xxxxxxxx 00000, on the Initial Closing Date at a
time mutually agreeable to GMAC and XXXX, and will occur simultaneously with the
closing of transactions contemplated by the Further Transfer and Servicing
Agreements.
(b) Additional Purchases. The sale and purchase of the
Additional Receivables shall take place on the Additional Closing Dates at such
locations and at such times as are mutually agreeable to GMAC and XXXX, and will
occur simultaneously with the closing of transactions contemplated by any
Further Transfer and Servicing Agreements.
SECTION 2.04 Custody of Receivable Files. In connection
with the sale, transfer and assignment of the Receivables to XXXX pursuant to
this Agreement and the First Step Receivables Assignments, XXXX, simultaneously
with the execution and delivery of this Agreement, shall enter into the
Custodian Agreement with the Custodian, pursuant to which XXXX shall revocably
appoint the Custodian, and the Custodian shall accept such appointment, to act
as the agent of XXXX as Custodian of the following documents or instruments
which shall be constructively delivered to XXXX with respect to each Receivable:
(a) the fully executed original of the instalment sale
contract or direct purchase money loan, as applicable, for such Receivable;
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(b) documents evidencing or related to any Insurance
Policy;
(c) the original credit application of each Obligor,
fully executed by each such Obligor on GMAC's customary form, or on a form
approved by GMAC, for such application;
(d) where permitted by law, the original certificate of
title (when received) and otherwise such documents, if any, that GMAC keeps on
file in accordance with its customary procedures indicating that the Financed
Vehicle is owned by the Obligor and subject to the interest of GMAC as first
lienholder or secured party; and
(e) any and all other documents that GMAC keeps on file
in accordance with its customary procedures relating to the individual
Receivable, Obligor or Financed Vehicle.
ARTICLE III
ADMINISTRATION AND SERVICING OF RECEIVABLES
SECTION 3.01 Duties of the Servicer. The Servicer is
hereby appointed and authorized to act as agent for the Owner of the Receivables
and in such capacity shall manage, service, administer and make collections on
the Receivables with reasonable care, using that degree of skill and attention
that the Servicer exercises with respect to comparable automotive receivables
that it services for itself or others. The Servicer hereby accepts such
appointment and authorization and agrees to perform the duties of Servicer with
respect to the Receivables set forth herein and in the Further Transfer and
Servicing Agreements. The Servicer's duties shall include collection and posting
of all payments, responding to inquiries of Obligors, investigating
delinquencies, sending payment coupons to Obligors, reporting tax information to
Obligors, policing the collateral, accounting for collections and furnishing
monthly and annual statements to the Owner of any Receivables with respect to
distributions, generating federal income tax information and performing the
other duties specified herein. Subject to the provisions of Section 3.02, the
Servicer shall follow its customary standards, policies and procedures and shall
have full power and authority, acting alone, to do any and all things in
connection with such managing, servicing, administration and collection that it
may deem necessary or desirable. Without limiting the generality of the
foregoing, the Servicer is hereby authorized and empowered by the Owner of the
Receivables, pursuant to this Section 3.01, to execute and deliver, on behalf of
all Interested Parties, or any of them, any and all instruments of satisfaction
or cancellation, or of partial or full release or discharge, and all other
comparable instruments, with respect to the Receivables and the Financed
Vehicles. The Servicer is hereby authorized to commence, in its own name or in
the name of the Owner of such Receivable a legal proceeding to enforce a
Liquidating Receivable as contemplated by Section 3.04, to enforce all
obligations of GMAC and XXXX under this Agreement and under the Further Transfer
and Servicing Agreements or to commence or participate in a legal proceeding
(including without limitation a bankruptcy proceeding) relating to or involving
a Receivable or a Liquidating Receivable. If the Servicer commences or
participates in such a legal proceeding in its own name, the Servicer is hereby
authorized and empowered by the Owner of the Receivables pursuant to this
Section 3.01, to obtain possession of the related Financed Vehicle and
immediately and without further action on the part of the Owner or the Servicer,
the Owner of such Receivable shall thereupon automatically assign in trust such
Receivable and the security interest in the related Financed Vehicle to the
Servicer for the benefit of the Interested Parties for purposes of commencing or
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participating in any such proceeding as a party or claimant. Upon such automatic
assignment, the Servicer will be, and will have all the rights and duties of, a
secured party under the UCC and other applicable law with respect to such
Receivable and the related Financed Vehicle. At the Servicer's request from time
to time, the Owner of a Receivable assigned under this Section 3.01 shall
provide the Servicer with evidence of the assignment in trust for the benefit of
the Interested Parties as may be reasonably necessary for the Servicer to take
any of the actions set forth in the following sentence. The Servicer is hereby
authorized and empowered by the Owner of a Receivable to execute and deliver in
the Servicer's name any notices, demands, claims, complaints, responses,
affidavits or other documents or instruments in connection with any such
proceeding. Any Owner of Receivables shall furnish the Servicer with any powers
of attorney and other documents and take any other steps which the Servicer may
deem necessary or appropriate to enable the Servicer to carry out its servicing
and administrative duties under this Agreement and the Further Transfer and
Servicing Agreements. Except to the extent required by the preceding two
sentences, the authority and rights granted to the Servicer in this Section 3.01
shall be nonexclusive and shall not be construed to be in derogation of the
retention by the Owner of a Receivable of equivalent authority and rights.
SECTION 3.02 Collection of Receivable Payments. The
Servicer shall make reasonable efforts to collect all payments called for under
the terms and provisions of the Receivables as and when the same shall become
due, and shall follow such collection practices, policies and procedures as it
follows with respect to comparable automotive receivables that it services for
itself or others in connection therewith. Except as provided in Section
3.07(a)(iii), the Servicer is hereby authorized to grant extensions, rebates or
adjustments on a Receivable without the prior consent of the Owner of such
Receivable. The Servicer is authorized in its discretion to waive any prepayment
charge, late payment charge or any other fees that may be collected in the
ordinary course of servicing such Receivable.
SECTION 3.03 Rebates on Full Prepayments on Scheduled
Interest Receivables. If the amount of a full Prepayment by an Obligor under a
Scheduled Interest Receivable, after adjustment for the Rebate, is less than the
amount that would be payable under the actuarial method if a full Prepayment
were made at the end of the billing month under such Scheduled Interest
Receivable, either because the Rebate calculated under the terms of such
Receivable is greater than the amount calculable under the actuarial method or
because the Servicer's customary servicing procedure is to credit a greater
Rebate, the Servicer, as part of its servicing duties, shall remit such
difference to the Owner of such Receivable.
SECTION 3.04 Realization Upon Liquidating Receivables.
The Servicer shall use reasonable efforts, consistent with its customary
practices, policies and procedures, to repossess or otherwise comparably convert
the ownership of any Financed Vehicle that it has reasonably determined should
be repossessed or otherwise converted following a default under the Receivable
secured by the Financed Vehicle. The Servicer is authorized to follow such
customary practices, policies and procedures as it follows with respect to
comparable automotive receivables that it services for itself or others, which
practices, policies and procedures may include reasonable efforts to realize
upon any recourse to Dealers, selling the related Financed Vehicle at public or
private sale and other actions by the Servicer in order to realize upon such a
Receivable. The Servicer is hereby authorized to exercise its discretion
consistent with its customary servicing procedures and the terms of this
Agreement, in servicing Liquidating
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Receivables so as to maximize the realization of those Liquidating Receivables,
including the discretion to choose to sell or not to sell any of the Liquidating
Receivables on behalf of XXXX or any other Owner. The Servicer shall not be
liable for any such exercise of its discretion to sell or not to sell such
Receivables made in good faith. The foregoing is subject to the provision that,
in any case in which the Financed Vehicle shall have suffered damage, the
Servicer shall not expend funds in connection with any repair or towards the
repossession of such Financed Vehicle unless it shall determine in its
discretion that such repair and/or repossession shall increase the proceeds of
liquidation of the related Receivable by an amount greater than the amount of
such expenses. The Servicer shall be entitled to receive Liquidation Expenses
with respect to each Liquidating Receivable at such time as the Receivable
becomes a Liquidating Receivable (or as may otherwise be provided in the Further
Transfer and Servicing Agreements).
SECTION 3.05 Maintenance of Insurance Policies. The
Servicer shall , in accordance with its customary servicing procedures, require
that each Obligor shall have obtained physical damage insurance covering the
Financed Vehicle as of the execution of the related Receivable. The Servicer
shall, in accordance with its customary servicing procedures, monitor such
physical damage insurance with respect to each Receivable.
SECTION 3.06 Maintenance of Security Interests in
Vehicles. The Servicer shall, in accordance with its customary servicing
procedures and at its own expense, take such steps as are necessary to maintain
perfection of the security interest created by each Receivable in the related
Financed Vehicle. The Owner of each Receivable hereby authorizes the Servicer to
re-perfect such security interest on behalf of such Owner, as necessary because
of the relocation of a Financed Vehicle, or for any other reason.
SECTION 3.07 Covenants, Representations and Warranties of
the Servicer. As of the Initial Closing Date with respect to the Initial
Receivables and as of each Additional Closing Date with respect to the
Additional Receivables purchased on each such Additional Closing Date, the
Servicer hereby makes the following representations, warranties and covenants on
which XXXX relies in accepting the Receivables hereunder and pursuant to the
First Step Receivables Assignments, and on which the Issuer shall rely in
accepting such Receivables and executing and delivering the Securities under the
Further Transfer and Servicing Agreements.
(a) The Servicer covenants that from and after the
closing hereunder:
(i) Liens in Force. Except as contemplated in
this Agreement or the Further Transfer and Servicing Agreements, the Servicer
shall not release in whole or in part any Financed Vehicle from the security
interest securing the related Receivable;
(ii) No Impairment. The Servicer shall do nothing
to impair the rights or security interest of XXXX or any Interested Party in and
to the Purchased Property; and
(iii) No Modifications. The Servicer shall not
amend or otherwise modify any Receivable such that the Amount Financed, the
Annual Percentage Rate, the total number of Scheduled Payments (in the case of a
Scheduled Interest Receivable) or the number of originally scheduled due dates
(in the case of a Simple Interest Receivable), is altered or such that the last
Scheduled Payment (in the case of a Scheduled Interest Receivable) or the last
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scheduled due date (in the case of a Simple Interest Receivable) occurs after
the Final Scheduled Distribution Date.
(b) Upon the execution of this Agreement and the Further
Transfer and Servicing Agreements, the Servicer represents and warrants to the
Issuer and XXXX that as of the Initial Closing Date with respect to the Initial
Receivables and as of each Additional Closing Date with respect to the
Additional Receivables purchased on each such Additional Closing Date in
addition to the representations and warranties in Sections 4.01 and 4.02 being
true that as of each such Initial Closing Date or Additional Closing Date, as
applicable:
(i) Organization and Good Standing. The Servicer
has been duly organized and is validly existing and in good standing under the
laws of its state of incorporation, with power and authority to own its
properties and to conduct its business as such properties are presently owned
and such business is presently conducted, and had at all relevant times, and now
has, power, authority and legal right to service the Receivables as provided
herein and in the Further Transfer and Servicing Agreements;
(ii) Due Qualification. The Servicer is duly
qualified to do business as a foreign corporation in good standing, and has
obtained all necessary licenses and approvals, in all jurisdictions in which the
ownership or lease of property or the conduct of its business (including the
servicing of the Receivables) requires or shall require such qualification;
(iii) Power and Authority. The Servicer has the
power and authority to execute and deliver this Agreement and the Further
Transfer and Servicing Agreements and to carry out the terms of such agreements;
and the Servicer's execution, delivery and performance of this Agreement and the
Further Transfer and Servicing Agreements have been duly authorized by the
Servicer by all necessary corporate action;
(iv) Binding Obligation. The Further Transfer and
Servicing Agreements and this Agreement, when duly executed and delivered, shall
constitute the legal, valid and binding obligations of the Servicer enforceable
in accordance with their respective terms, except as enforceability may be
limited by bankruptcy, insolvency, reorganization, or other similar laws
affecting the enforcement of creditors' rights in general and by general
principles of equity, regardless of whether such enforceability is considered in
a proceeding in equity or at law;
(v) No Violation. The consummation by the
Servicer of the transactions contemplated by this Agreement and the Further
Transfer and Servicing Agreements, and the fulfillment by the Servicer of the
terms hereof and thereof, shall not conflict with, result in any breach of any
of the terms and provisions of, or constitute (with or without notice or lapse
of time) a default under, the articles of incorporation or by-laws of the
Servicer, or any indenture, agreement, mortgage, deed of trust or other
instrument to which the Servicer is a party or by which it is bound, or result
in the creation or imposition of any Lien upon any of its properties pursuant to
the terms of any such indenture, agreement, mortgage, deed of trust or other
instrument, other than this Agreement and the Further Transfer and Servicing
Agreements, or violate any law or, to the best of the Servicer's knowledge, any
order, rule or regulation applicable to the Servicer of any court or of any
federal or state regulatory body, administrative
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agency or other governmental instrumentality having jurisdiction over the
Servicer or any of its properties;
(vi) No Proceedings. To the Servicer's knowledge,
there are no proceedings or investigations pending, or threatened, before any
court, regulatory body, administrative agency or other tribunal or governmental
instrumentality having jurisdiction over the Servicer or its properties (A)
asserting the invalidity of this Agreement and the Further Transfer and
Servicing Agreements or any Securities issued thereunder, (B) seeking to prevent
the issuance of such Securities or the consummation of any of the transactions
contemplated by the Further Transfer and Servicing Agreements, or (C) seeking
any determination or ruling that might materially and adversely affect this
Agreement, the performance by the Servicer of its obligations under, or the
validity or enforceability of, the Further Transfer and Servicing Agreements;
and
(vii) Reasonable Liquidation Expenses. The amounts
defined as "Liquidation Expenses" are a reasonable estimate of such expenses,
reasonably related to the Servicer's experience for such expenses in servicing
comparable automotive receivables.
SECTION 3.08 Purchase of Receivables Upon Breach of
Covenant. Upon discovery by any of the Servicer, XXXX or any party under the
Further Transfer and Servicing Agreements of a breach of any of the covenants
set forth in Sections 3.06 and 3.07(a), the party discovering such breach shall
give prompt written notice thereof to the others. As of the last day of the
second Monthly Period following its discovering or receiving notice of such
breach (or, at the Servicer's election, the last day of the first Monthly Period
so following), the Servicer shall, unless it shall have cured such breach in all
material respects, purchase from the Owner thereof any Receivable materially and
adversely affected by such breach as determined by such Owner and, on the
related Distribution Date, the Servicer shall pay the Administrative Purchase
Payment, and shall be entitled to receive the Released Administrative Amount, if
any. It is understood and agreed that the obligation of the Servicer to purchase
any Receivable with respect to which such a breach has occurred and is
continuing shall, if such obligation is fulfilled, constitute the sole remedy
against the Servicer for such breach available to XXXX or any Interested Party.
SECTION 3.09 Total Servicing Fee; Payment of Certain
Expenses by Servicer. The Servicer is entitled to receive the Total Servicing
Fee and Supplemental Servicing Fees out of collections in respect of the
Receivables. The Servicer shall also be entitled to Investment Earnings as, and
to the extent, set forth in the Further Transfer and Servicing Agreements.
Subject to any limitations on the Servicer's liability under the Further
Transfer and Servicing Agreements, the Servicer shall be required to pay all
expenses incurred by it in connection with its activities under this Agreement
and under the Further Transfer and Servicing Agreements (including fees and
disbursements of the Issuer, any trustees and independent accountants, taxes
imposed on the Servicer, expenses incurred in connection with distributions and
reports to holders of Securities and all other fees and expenses not expressly
stated under this Agreement or the Further Transfer and Servicing Agreements to
be for the account of the holders of Securities).
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SECTION 3.10 Servicer's Accounting. On each Determination
Date under a Further Transfer and Servicing Agreement, the Servicer shall
deliver to each of the trustees and other applicable parties under the Further
Transfer and Servicing Agreements and to XXXX and the Rating Agencies a
Servicer's Accounting with respect to the immediately preceding Monthly Period
executed by the President or any Vice President of the Servicer containing all
information necessary to each such party for making any distributions required
by the Further Transfer and Servicing Agreements, and all information necessary
to each such party for sending any statements required under the Further
Transfer and Servicing Agreements. Receivables to be purchased by the Servicer
under Sections 3.08 or 5.04 or to be repurchased by XXXX or GMAC under the
Further Transfer and Servicing Agreements as of the last day of any Monthly
Period shall be identified by Receivable number (as set forth in the Schedule of
Receivables). With respect to any Receivables for which XXXX is the Owner, the
Servicer shall deliver to XXXX such accountings relating to such Receivables and
the actions of the Servicer with respect thereto as XXXX may reasonably request.
SECTION 3.11 Application of Collections. For the purposes
of this Agreement and the Further Transfer and Servicing Agreements, no later
than each Distribution Date all collections for the related Monthly Period shall
be applied by the Servicer as follows:
(a) With respect to each Scheduled Interest Receivable
(other than an Administrative Receivable or a Warranty Receivable), payments by
or on behalf of the Obligor which are not Supplemental Servicing Fees shall be
applied first to reduce outstanding advances of shortfalls in collections, if
any, made pursuant to the Further Transfer and Servicing Agreements with respect
to such Receivable. Next, the amount of any such payments in excess of
Supplemental Servicing Fees and any such advances with respect to such
Receivable shall be applied to the Scheduled Payment with respect to such
Receivable. Any amount of such payments remaining after the applications
described in the preceding two sentences constitutes an Excess Payment with
respect to such Receivable, and such Excess Payment (to the extent it does not
constitute a Payment Ahead) shall be applied to prepay such Receivable. If the
amounts applied under the first two sentences of this Section 3.11(a) shall be
less than the Scheduled Payment, whether as a result of any extension granted to
the Obligor or otherwise, then the Deferred Prepayment, if any, with respect to
such Receivable shall be applied by the Servicer to the extent of the shortfall,
and such Deferred Prepayment shall be reduced accordingly.
(b) With respect to all Simple Interest Receivables
(other than Administrative Receivables and Warranty Receivables), payments by or
on behalf of the Obligors which are not Supplemental Servicing Fees shall be
applied first to the payment to the Servicer of Excess Simple Interest
Collections, if any, and next to principal and interest on all such Simple
Interest Receivables.
(c) With respect to each Administrative Receivable and
Warranty Receivable, payments by or on behalf of the Obligor shall be applied in
the same manner, except that any Released Administrative Amount or Released
Warranty Amount shall be remitted to the Servicer or XXXX, as applicable. In the
case of a Scheduled Interest Receivable, a Warranty Payment shall be applied to
reduce any advances described in Section 3.11(a) and such Warranty Payment or an
Administrative Purchase Payment, as applicable, shall be applied to the
Scheduled Payment, in each case to the extent that the payments by or on behalf
of the Obligor shall be
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insufficient, and then to prepay such Receivable in full. In the case of a
Simple Interest Receivable, a Warranty Payment or an Administrative Payment, as
applicable, shall be applied to principal and interest on such Receivable.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.01 Representations and Warranties as to the
Receivables. GMAC makes the following representations and warranties as to the
Receivables on which XXXX relies in accepting the Receivables. Such
representations and warranties speak as of the Initial Closing Date with respect
to the Initial Receivables, and as of each Additional Closing Date with respect
to the Additional Receivables purchased on each such Additional Closing Date,
and shall survive the sale, transfer and assignment of the Receivables to XXXX
and the subsequent assignment and transfer pursuant to the Further Transfer and
Servicing Agreements:
(a) Characteristics of Receivables.
(i) General. Each Receivable:
(1) is secured by a Financed Vehicle,
was originated in the United States by GMAC or one of its subsidiaries or a
Dealer for the retail sale of a Financed Vehicle in the ordinary course of
business, was fully and properly executed by the parties thereto, if not
originated by GMAC, was purchased by GMAC from one of its subsidiaries or from
such Dealer under an existing Dealer Agreement, and was validly assigned by such
subsidiary or such Dealer to GMAC in accordance with its terms,
(2) has created or shall create a
valid, binding and enforceable first priority security interest in favor of GMAC
in the Financed Vehicle, which security interest is assignable by GMAC to XXXX,
(3) contains customary and enforceable
provisions such as to render the rights and remedies of the holder thereof
adequate for realization against the collateral of the benefits of the security,
(4) is a Scheduled Interest Receivable
or a Simple Interest Receivable,
(5) provides for level monthly payments
(provided that the payment in the first month and the final month of the life of
the Receivable may be different from the level payment) that shall amortize the
Amount Financed by maturity and shall yield interest at the Annual Percentage
Rate,
(6) has an original term of not less
than six and not greater than 72 months and a remaining term of not less than
six months,
(7) at least one monthly payment has
been made, and
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(8) has been acquired by GMAC under one
of its "special incentive rate financing programs," as such term is defined by
the Servicer on the date such Receivable was originated, designed to encourage
purchases of new cars and light trucks manufactured by General Motors
Corporation;
(ii) Initial Receivables. In addition to the
characteristics set forth in Section 4.01(a)(i) above, each Initial Receivable
(1) has a first scheduled payment due date on or after November 1, 1998, (2) has
a final scheduled payment that is due no later than January 31, 2010, (3) was
originated on or after October 1, 1998, (4) as of the Initial Cutoff Date, was
not considered past due, that is, the payments due on that Initial Receivable in
excess of $25 have been received within 30 days of the payment date, and was not
a Liquidating Receivable.
In addition, with respect to the Initial Receivables,
Scheduled Interest Receivables represent (based on Principal Balances) 38% of
the Initial Aggregate Principal Balance, with the balance of the Initial
Receivables being Simple Interest Receivables.
(iii) Additional Receivables. In addition to the
characteristics set forth in Section 4.01(a)(i) above, each Additional
Receivable (1) has a final scheduled payment that is due no later than 6 months
prior to the Final Scheduled Distribution Date of the Certificates, (2) as of
the related Additional Cutoff Date, was not considered past due, that is, the
payments due on that Additional Receivable in excess of $25 have been received
within 30 days of the scheduled payment date and such Additional Receivable was
not a Liquidating Receivable and (3) the aggregate Principal Balance of
Additional Receivables to be added on any Additional Closing Date with an
original term of 72 months is not more than 5% of the Additional Receivables
Principal Balance, in each case as of the related Additional Cutoff Date.
(b) Creation, Perfection and Priority of Security
Interests. The representations and warranties regarding creation, perfection and
priority of security interests in the Purchased Property, which are attached to
this Agreement as Appendix B, are true and correct to the extent that they are
applicable.
(c) Schedule of Receivables. The information set forth in
the Schedule of Initial Receivables is, and each Schedule of Additional
Receivables will be, true and correct in all material respects, and no selection
procedures believed to be adverse to XXXX or to holders of the Securities issued
under the Further Transfer and Servicing Agreements were utilized in selecting
the Receivables from those receivables of GMAC which meet the selection criteria
set forth in this Agreement;
(d) Compliance With Law. All requirements of applicable
federal, state and local laws, and regulations thereunder, including, without
limitation, usury laws, the Federal Truth-in-Lending Act, the Equal Credit
Opportunity Act, the Fair Credit Billing Act, the Fair Credit Reporting Act, the
Fair Debt Collection Practices Act, the Federal Trade Commission Act, the
Xxxxxxxx-Xxxx Warranty Act, the Federal Reserve Board's Regulations "B" and "Z",
the Soldiers' and Sailors' Civil Relief Act of 1940, the Texas Consumer Credit
Code, and state adaptations of the National Consumer Act and of the Uniform
Consumer Credit Code and other consumer credit laws and equal credit opportunity
and disclosure laws, in respect of any of the Receivables and other Purchased
Property, have been complied with in all material respects, and
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each Receivable and the sale of the Financed Vehicle evidenced thereby complied
at the time it was originated or made and now complies in all material respects
with all legal requirements of the jurisdiction in which it was originated or
made;
(e) Binding Obligation. Each Receivable represents the
genuine, legal, valid and binding payment obligation in writing of the Obligor
thereon, enforceable by the holder thereof in accordance with its terms, except
as enforceability may be limited by bankruptcy, insolvency, reorganization or
similar laws affecting the enforcement of creditors' rights in general and by
equity, regardless of whether such enforceability is considered in a proceeding
in equity or at law;
(f) Security Interest in Financed Vehicle. Immediately
prior to the sale, transfer and assignment thereof pursuant hereto and the First
Step Receivables Assignments, each Receivable was secured by a validly perfected
first priority security interest in the Financed Vehicle in favor of GMAC as
secured party or all necessary and appropriate action had been commenced that
would result in the valid perfection of a first priority security interest in
the Financed Vehicle in favor of GMAC as secured party;
(g) Receivables In Force. No Receivable has been
satisfied, subordinated or rescinded, and the Financed Vehicle securing each
such Receivable has not been released from the lien of the related Receivable in
whole or in part;
(h) No Waiver. Since the Initial Cutoff Date or any
Additional Cutoff Date, as applicable, no provision of a Receivable has been
waived, altered or modified in any respect;
(i) No Defenses. No right of rescission, setoff,
counterclaim or defense has been asserted or threatened with respect to any
Receivable;
(j) No Liens. To the best of GMAC's knowledge: (1) there
are no liens or claims that have been filed for work, labor or materials
affecting any Financed Vehicle securing any Receivable that are or may be liens
prior to, or equal or coordinate with, the security interest in the Financed
Vehicle granted by the Receivable; (2) no contribution failure has occurred with
respect to any Benefit Plan which is sufficient to give rise to a lien under
Section 302 (f) of ERISA with respect to any Receivable; and (3) no tax lien has
been filed and no claim related thereto is being asserted with respect to any
Receivable;
(k) Insurance. Each Obligor is required to maintain a
physical damage insurance policy of the type that GMAC requires in accordance
with its customary underwriting standards for the purchase of automotive
receivables;
(l) Good Title. No Receivable has been sold, transferred,
assigned or pledged by GMAC to any Person other than XXXX; immediately prior to
the conveyance of the Receivables pursuant to this Agreement and the First Step
Receivables Assignments, GMAC had good and marketable title thereto, free of any
Lien; and, upon execution and delivery of this Agreement by GMAC, XXXX shall
have all of the right, title and interest of GMAC in and to the Receivables, the
unpaid indebtedness evidenced thereby and the collateral security therefor, free
of any Lien;
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(m) Lawful Assignment. No Receivable was originated in,
or is subject to the laws of, any jurisdiction the laws of which would make
unlawful the sale, transfer and assignment of such Receivable under this
Agreement, the Trust Sale and Servicing Agreement or the Indenture, as
applicable;
(n) All Filings Made. All filings (including, without
limitation, UCC filings) necessary in any jurisdiction to give XXXX a first
priority perfected ownership interest in the Receivables shall have been made;
(o) One Original. There is only one original executed
copy of each Receivable;
(p) No Documents or Instruments. No Receivable, or
constituent part thereof, constitutes a "negotiable instrument" or "negotiable
document of title" (as such terms are used in the UCC); and
(q) No Amendment. No Receivable has been amended or
otherwise modified such that the total number of the Obligor's Scheduled
Payments (in the case of a Scheduled Interest Receivable) or the number of
originally scheduled due dates (in the case of a Simple Interest Receivable) is
increased or such that the Amount Financed is increased.
SECTION 4.02 Additional Representations and Warranties of
GMAC. GMAC hereby represents and warrants to XXXX as of the Initial Closing Date
with respect to the Initial Receivables and as of each Additional Closing Date
with respect to the Additional Receivables purchased on each such Additional
Closing Date, both in its capacity as the seller of the Receivables hereunder
and in its capacity as Servicer, that:
(a) Organization and Good Standing. GMAC has been duly
organized and is validly existing as a corporation in good standing under the
laws of the State of Delaware, with power and authority to own its properties
and to conduct its business as such properties are presently owned and such
business is presently conducted;
(b) Due Qualification. GMAC is duly qualified to do
business as a foreign corporation in good standing, and has obtained all
necessary licenses and approvals, in all jurisdictions in which the ownership or
lease of property or the conduct of its business (including the servicing of the
Receivables) requires or shall require such qualification;
(c) Power and Authority. GMAC has the power and authority
to execute and deliver this Agreement and the First Step Receivables Assignments
and to carry out its terms; GMAC has full power and authority to sell and assign
the property to be sold and assigned to XXXX and to service the Receivables as
provided herein and in the Further Transfer and Servicing Agreements, has duly
authorized such sale and assignment to XXXX by all necessary corporate action;
and the execution, delivery and performance of this Agreement and the First Step
Receivables Assignments have been duly authorized by GMAC by all necessary
corporate action;
(d) Valid Sale; Binding Obligation. This Agreement and
the First Step Receivables Assignments, when duly executed and delivered, shall
constitute a valid sale,
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transfer and assignment of the Initial Receivables, and each First Step
Additional Receivables Assignment, when duly executed and delivered, shall
constitute a valid sale, transfer and assignment of the respective Additional
Receivables, in each case, enforceable against creditors of and purchasers from
GMAC; and this Agreement together with the First Step Receivables Assignments,
when duly executed and delivered, shall constitute a legal, valid and binding
obligation of GMAC enforceable in accordance with its terms, except as
enforceability may be limited by bankruptcy, insolvency, reorganization or other
similar laws affecting the enforcement of creditors' rights in general and by
general principles of equity, regardless of whether such enforceability is
considered in a proceeding in equity or at law;
(e) No Violation. The consummation of the transactions
contemplated by this Agreement and the First Step Receivables Assignments and
the fulfillment of the terms of this Agreement and the First Step Receivables
Assignments shall not conflict with, result in any breach of any of the terms
and provisions of, or constitute (with or without notice or lapse of time) a
default under, the articles of incorporation or by-laws of GMAC, or any
indenture, agreement, mortgage, deed of trust or other instrument to which GMAC
is a party or by which it is bound, or result in the creation or imposition of
any Lien upon any of its properties pursuant to the terms of any such indenture,
agreement, mortgage, deed of trust or other instrument, other than this
Agreement and the First Step Receivables Assignments or violate any law or, to
the best of GMAC's knowledge, any order, rule or regulation applicable to GMAC
of any court or of any federal or state regulatory body, administrative agency
or other governmental instrumentality having jurisdiction over GMAC or any of
its properties;
(f) No Proceedings. To GMAC's knowledge, there are no
proceedings or investigations pending, or threatened, before any court,
regulatory body, administrative agency or other tribunal or governmental
instrumentality having jurisdiction over GMAC or its properties (A) asserting
the invalidity of this Agreement and the First Step Receivables Assignments ,
(B) seeking to prevent the consummation of any of the transactions contemplated
by this Agreement and the First Step Receivables Assignments, or (C) seeking any
determination or ruling that might materially and adversely affect the
performance by GMAC of its obligations under, or the validity or enforceability
of, this Agreement and the First Step Receivables Assignments; and
(g) No Insolvency. With respect to the Additional
Receivables as of the related Additional Closing Date, (i) GMAC was not and will
not become insolvent as a result of the transfer of such Additional Receivables,
(ii) GMAC did not intend to or believe that it would incur debts that would be
beyond its ability to pay as such debts matured, (iii) GMAC did not transfer
such Additional Receivables with the actual intent to hinder, delay or defraud
any Person and (iv) the assets of GMAC did not constitute unreasonably small
capital to carry out its business as conducted.
SECTION 4.03 Representations and Warranties of XXXX. XXXX
hereby represents and warrants to GMAC as of the Initial Closing Date and each
Additional Closing Date:
(a) Organization and Good Standing. XXXX has been duly
organized and is validly existing as a corporation in good standing under the
laws of the State of Delaware, with power and authority to own its properties
and to conduct its business as such properties are
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presently owned and such business is presently conducted, and had at all
relevant times, and now has, power, authority and legal right to acquire and own
the Receivables;
(b) Due Qualification. XXXX is duly qualified to do
business as a foreign corporation in good standing, and has obtained all
necessary licenses and approvals in all jurisdictions in which the ownership or
lease of property or the conduct of its business requires such qualification;
(c) Power and Authority. XXXX has the power and authority
to execute and deliver this Agreement and the First Step Receivables Assignments
and to carry out its terms and the execution, delivery and performance of this
Agreement and the First Step Receivables Assignments have been duly authorized
by XXXX by all necessary corporate action;
(d) No Violation. The consummation of the transactions
contemplated by this Agreement and the First Step Receivables Assignments and
the fulfillment of the terms of this Agreement and the First Step Receivables
Assignments shall not conflict with, result in any breach of any of the terms
and provisions of or constitute (with or without notice or lapse of time) a
default under, the certificate of incorporation or by-laws of XXXX, or any
indenture, agreement, mortgage, deed of trust or other instrument to which XXXX
is a party or by which it is bound, or result in the creation or imposition of
any Lien upon any of its properties pursuant to the terms of any such indenture,
agreement or other instrument, other than any Further Transfer and Servicing
Agreement or violate any law or, to the best of CARI's knowledge, any order,
rule or regulation applicable to XXXX of any court or of any federal or state
regulatory body, administrative agency or other governmental instrumentality
having jurisdiction over XXXX or any of its properties; and
(e) No Proceedings. To CARI's knowledge, there are no
proceedings or investigations pending, or threatened, before any court,
regulatory body, administrative agency or other tribunal or governmental
instrumentality having jurisdiction over XXXX or its properties (i) asserting
the invalidity of this Agreement and the First Step Receivables Assignments, or
(ii) seeking any determination or ruling that might materially and adversely
affect the performance by XXXX of its obligations under, or the validity or
enforceability of, this Agreement and the First Step Receivables Assignments.
ARTICLE V
ADDITIONAL AGREEMENTS
SECTION 5.01 Conflicts With Further Transfer and
Servicing Agreements. To the extent that any provision of Sections 5.02 through
5.04 of this Agreement conflicts with any provision of the Further Transfer and
Servicing Agreements, the Further Transfer and Servicing Agreements shall
govern.
SECTION 5.02 Protection of Title; Filings. GMAC shall
authorize and execute, as applicable, and file such financing statements and
cause to be authorized and executed, as applicable, and filed such continuation
and other statements, all in such manner and in such places as may be required
by law fully to preserve, maintain and protect the interest of XXXX under this
Agreement and the First Step Receivables Assignments in the Receivables and the
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other Purchased Property and in the proceeds thereof. GMAC shall deliver (or
cause to be delivered) to XXXX file-stamped copies of, or filing receipts for,
any document filed as provided above, as soon as available following such filing
GMAC hereby authorizes XXXX and its assigns to file all such financing
statements and to file such financing statements without its signature.
(b) Name Change. GMAC shall not change its state of
organization or its name, identity or corporate structure in any manner that
would, could or might make any financing statement or continuation statement
filed by GMAC in accordance with Section 5.02(a) seriously misleading within the
meaning of the UCC, unless it shall have given XXXX at least 60 days prior
written notice thereof.
(c) Executive Office; Maintenance of Offices. GMAC shall
give XXXX at least 60 days prior written notice of any relocation of its
principal executive office if, as a result of such relocation, the applicable
provisions of the UCC would require the filing of any amendment of any
previously filed financing or continuation statement or of any new financing
statement. GMAC shall at all times maintain each office from which it services
Receivables and its principal executive office within the United States of
America.
(d) New Debtor. In the event that GMAC shall change the
jurisdiction in which it is incorporated or otherwise enter into any transaction
which would result in a "new debtor" (as defined in the UCC) succeeding to the
obligations of GMAC hereunder, GMAC shall comply fully with the obligations of
Section 5.02(a).
SECTION 5.03 Other Liens or Interests. Except for the
conveyances hereunder and under the First Step Receivables Assignments and as
contemplated by the Further Transfer and Servicing Agreements, GMAC shall not
sell, pledge, assign or transfer the Receivables or other Purchased Property to
any other Person, or grant, create, incur, assume or suffer to exist any Lien on
any interest therein, and GMAC shall defend the right, title and interest of
XXXX in, to and under such Receivables or other Purchased Property against all
claims of third parties claiming through or under GMAC.
SECTION 5.04 Repurchase Events. By its execution of the
Further Transfer and Servicing Agreements to which it is a party, GMAC shall
acknowledge the assignment by XXXX of such of its right, title and interest in,
to and under this Agreement and the First Step Receivables Assignments to the
Issuer as shall be provided in the Further Transfer and Servicing Agreements.
GMAC hereby covenants and agrees with XXXX for the benefit of XXXX and the
Interested Parties that in the event of a breach of any of GMAC's
representations and warranties contained in Section 4.01 hereof with respect to
any Receivable (a "Repurchase Event"), GMAC will repurchase such Receivable from
the Issuer (if the Issuer is then the Owner of such Receivable) on the date and
for the amount specified in the Further Transfer and Servicing Agreements,
without further notice from XXXX hereunder. Upon the occurrence of a Repurchase
Event with respect to a Receivable for which XXXX is the Owner, GMAC agrees to
repurchase such Receivable from XXXX for an amount and upon the same terms as
GMAC would be obligated to repurchase such Receivable from the Issuer if the
Issuer was then the Owner thereof, and upon payment of such amount, GMAC shall
have such rights with respect to such Receivable as if GMAC had purchased such
Receivable from the Issuer as the Owner thereof. It is understood and agreed
that the obligation of GMAC to repurchase any Receivable as to which
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a breach has occurred and is continuing shall, if such obligation is fulfilled,
constitute the sole remedy against GMAC for such breach available to XXXX or any
Interested Party.
SECTION 5.05 Indemnification. GMAC shall indemnify XXXX
for any liability as a result of the failure of a Receivable to be originated in
compliance with all requirements of law. This indemnity obligation shall be in
addition to any obligation that GMAC may otherwise have.
SECTION 5.06 Further Assignments. GMAC acknowledges that
XXXX may, pursuant to the Further Transfer and Servicing Agreements, sell the
Receivables to the Issuer and assign its rights hereunder and under the First
Step Receivables Assignments to the Issuer, subject to the terms and conditions
of the Further Transfer and Servicing Agreements, and that the Issuer may in
turn further pledge, assign or transfer its rights in the Receivables and this
Agreement and the First Step Receivables Assignments. GMAC further acknowledges
that XXXX may assign its rights under the Custodian Agreement to the Issuer.
SECTION 5.07 Pre-Closing Collections. Within two Business
Days after the Initial Closing Date and each Additional Closing Date, GMAC shall
transfer to the account or accounts designated by XXXX (or by the Issuer under
the Further Transfer and Servicing Agreements) all collections on the
Receivables held by GMAC on the Initial Closing Date or Additional Closing Date,
as applicable, and conveyed to XXXX pursuant to Section 2.01; provided that so
long as the Monthly Remittance Conditions are satisfied, such collections need
not be transferred until the first Distribution Date.
ARTICLE VI
CONDITIONS
SECTION 6.01 Conditions to Obligation of XXXX.. The
obligation of XXXX to purchase the Receivables hereunder and pursuant to the
First Step Receivables Assignments is subject to the satisfaction of the
following conditions:
(a) Representations and Warranties True. The
representations and warranties of GMAC hereunder shall be true and correct at
the time of the Initial Closing Date and each Additional Closing Date with the
same effect as if then made, and GMAC shall have performed all obligations to be
performed by it hereunder on or prior to the Initial Closing Date and each
Additional Closing Date.
(b) No Repurchase Event. No Repurchase Event shall have
occurred on or prior to the Initial Closing Date and each Additional Closing
Date.
(c) Computer Files Marked. GMAC shall, at its own
expense, on or prior to the Initial Closing Date and each Additional Closing
Date, indicate in its computer files created in connection with the Receivables
that the Receivables have been sold to XXXX pursuant to this Agreement and the
First Step Receivables Assignments and deliver to XXXX the Schedule of Initial
Receivables or Schedule of Additional Receivables, as applicable, certified by
an officer of GMAC to be true, correct and complete.
(d) Documents to be Delivered By GMAC.
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(i) The Assignments. On the Initial Closing
Date, GMAC shall execute and deliver the First Step Initial Receivables
Assignment and on each Additional Closing Date, GMAC shall execute and deliver a
First Step Additional Receivables Assignment.
(ii) Evidence of UCC Filing. On or prior to the
Initial Closing Date, GMAC shall record and file, at its own expense, a UCC-1
financing statement in each jurisdiction in which required by applicable law,
authorized by and naming GMAC as seller or debtor, naming XXXX as purchaser or
secured party, naming the Receivables and the other Purchased Property as
collateral, meeting the requirements of the laws of each such jurisdiction and
in such manner as is necessary to perfect the sale, transfer, assignment and
conveyance of such Receivables to XXXX. GMAC shall deliver a file-stamped copy,
or other evidence satisfactory to XXXX of such filing, to XXXX on or prior to
the Initial Closing Date.
(iii) Other Documents. On the Initial Closing Date
and on each Additional Closing Date, GMAC shall provide such other documents as
XXXX may reasonably request.
(e) Other Transactions. The transactions contemplated by
the Further Transfer and Servicing Agreements shall be consummated to the extent
that such transactions are intended to be substantially contemporaneous with the
transactions hereunder.
(f) Conditions to the Purchase of Additional Receivables.
In addition to the conditions set forth in Section 6.01(a), the obligation of
XXXX to purchase Additional Receivables hereunder and pursuant to the related
First Step Additional Receivables Assignment is subject to the satisfaction of
the following conditions:
(i) No Adverse Selection Procedures. No
selection procedures believed by GMAC to be adverse to the interests of XXXX,
the Issuer, the Noteholders or the Certificateholders shall have been utilized
in selecting the Additional Receivables.
(ii) No Material Tax Consequences. The addition
of the Additional Receivables will not result in a material adverse tax
consequence to XXXX, the Issuer, the Noteholders or the Certificateholders.
(iii) Conditions Satisfied. All the conditions to
the transfer of the Additional Receivables from XXXX to the Issuer specified in
Section 2.07 of the Trust Sale and Servicing Agreement shall have been
satisfied.
SECTION 6.02 Conditions To Obligation of GMAC. The
obligation of GMAC to sell the Receivables to XXXX hereunder or pursuant to the
First Step Receivables Assignments is subject to the satisfaction of the
following conditions:
(a) Representations and Warranties True. The
representations and warranties of XXXX hereunder shall be true and correct as of
the Initial Closing Date with respect to the Initial Receivables and as of the
Additional Closing Date with respect to the Additional Receivables with the same
effect as if then made, and XXXX shall have performed all obligations to be
performed by it hereunder or pursuant to the First Step Receivables Assignments
on or prior to the closing hereunder.
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(b) Receivables Purchase Price. On the Initial Closing
Date, XXXX shall pay to GMAC the Initial Aggregate Discounted Principal Balance
and on each Additional Closing Date, XXXX shall pay GMAC the Additional
Receivables Discounted Principal Balance, in each case, as provided in Section
2.02.
ARTICLE VII
MISCELLANEOUS PROVISIONS
SECTION 7.01 Amendment. This Agreement may be amended
from time to time (subject to any expressly applicable amendment provision of
the Further Transfer and Servicing Agreements) by a written amendment duly
executed and delivered by GMAC and XXXX.
SECTION 7.02 Survival. The representations and warranties
of GMAC set forth in Articles IV and V of this Agreement and of Servicer set
forth in Section 3.07 of this Agreement shall remain in full force and effect
and shall survive the Initial Closing Date and each Additional Closing Date
under Section 2.03 hereof and the closing under the Further Transfer and
Servicing Agreements.
SECTION 7.03 Notices. All demands, notices and
communications upon or to GMAC or XXXX under this Agreement shall be delivered
as specified in Part III of Appendix A to this Agreement.
SECTION 7.04 GOVERNING LAW. THIS AGREEMENT AND THE FIRST
STEP RECEIVABLES ASSIGNMENTS SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO THE
PRINCIPLES OF CONFLICTS OF LAWS THEREOF OR OF ANY OTHER JURISDICTION OTHER THAN
SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW, AND THE OBLIGATIONS,
RIGHTS AND REMEDIES OF THE PARTIES UNDER THIS AGREEMENT SHALL BE DETERMINED IN
ACCORDANCE WITH SUCH LAWS.
SECTION 7.05 Waivers. No failure or delay on the part of
XXXX in exercising any power, right or remedy under this Agreement or the First
Step Receivables Assignments shall operate as a waiver thereof, nor shall any
single or partial exercise of any such power, right or remedy preclude any other
or further exercise thereof or the exercise of any other power, right or remedy.
SECTION 7.06 Costs and Expenses. GMAC agrees to pay all
reasonable out-of-pocket costs and expenses of XXXX, including fees and expenses
of counsel, in connection with the perfection as against third parties of CARI's
right, title and interest in, to and under the Receivables and the enforcement
of any obligation of GMAC hereunder.
SECTION 7.07 Confidential Information. XXXX agrees that
it shall neither use nor disclose to any person the names and addresses of the
Obligors, except in connection with the enforcement of CARI's rights hereunder,
under the Receivables, under the Further Transfer and Servicing Agreements or as
required by law.
20
SECTION 7.08 Headings. The headings of the various
Articles and Sections herein are for convenience of reference only and shall not
define or limit any of the terms or provisions hereof.
SECTION 7.09 Counterparts. This Agreement may be executed
in two or more counterparts and by different parties on separate counterparts,
each of which shall be an original, but all of which together shall constitute
one and the same instrument.
SECTION 7.10 No Petition Covenant. Notwithstanding any
prior termination of this Agreement, GMAC shall not, prior to the date which is
one year and one day after the final distribution with respect to the Notes and
the Certificates to the Note Distribution Account or the Certificate
Distribution Account, as applicable, acquiesce, petition or otherwise invoke or
cause XXXX to invoke the process of any court or government authority for the
purpose of commencing or sustaining a case against XXXX under any federal or
state bankruptcy, insolvency or similar law or appointing a receiver,
liquidator, assignee, trustee, custodian, sequestrator or other similar official
of XXXX or any substantial part of its property, or ordering the winding up or
liquidation of the affairs of XXXX.
SECTION 7.11 Limitations on Rights of Others. The
provisions of this Agreement and the First Step Receivables Assignments are
solely for the benefit of GMAC and XXXX and, to the extent expressly provided
herein, the Interested Parties, and nothing in this Agreement, whether express
or implied, shall be construed to give to any other Person any legal or
equitable right, remedy or claim in, under, or in respect of this Agreement or
any covenants, conditions or provisions contained herein.
* * * * *
21
IN WITNESS WHEREOF, the parties hereby have caused this Agreement to be
executed by their respective officers thereunto duly authorized as of the date
and year first above written.
GENERAL MOTORS ACCEPTANCE CORPORATION
By: ____________________________________
Name: Xxxxx X. Xxxxxxxxxx
Title: Director - Securitization and
Cash Management
CAPITAL AUTO RECEIVABLES, INC.
By: ____________________________________
Name: S. N. Richard
Title: Manager - Securitization
Signature Page to Pooling and Servicing Agreement
22
EXHIBIT A
FORM OF
FIRST STEP INITIAL RECEIVABLES ASSIGNMENT
PURSUANT TO POOLING AND SERVICING AGREEMENT
For value received, in accordance with the Pooling and Servicing
Agreement, dated as of August 14, 2003 (the "Pooling and Servicing Agreement"),
between General Motors Acceptance Corporation, a Delaware corporation ("GMAC"),
and Capital Auto Receivables, Inc., a Delaware corporation ("XXXX"), GMAC does
hereby sell, assign, transfer and otherwise convey unto XXXX, without recourse,
(i) all right, title and interest of GMAC in, to and under the Initial
Receivables listed on the Schedule of Initial Receivables attached hereto and
(a) in the case of Initial Receivables that are Scheduled Interest Receivables,
all monies due thereunder on and after the Initial Cutoff Date and (b) in the
case of Initial Receivables that are Simple Interest Receivables, all monies
received thereon on and after the Initial Cutoff Date, in each case exclusive of
any amounts allocable to the premium for physical damage insurance force-placed
by GMAC covering any related Financed Vehicle; (ii) the interest of GMAC in the
security interests in the Financed Vehicles granted by Obligors pursuant to the
Initial Receivables and, to the extent permitted by law, any accessions thereto;
(iii) the interest of GMAC in any proceeds from claims on any physical damage,
credit life, credit disability or other insurance policies covering Financed
Vehicles or Obligors; (iv) the interest of GMAC in any proceeds from recourse
against Dealers on the Initial Receivables; and (v) the interest of GMAC in any
proceeds of the property described in clauses (i) and (ii) above.
It is the intention of GMAC and XXXX that the transfer and assignment
of Receivables contemplated by this First Step Initial Receivables Assignment
shall constitute a sale of the Initial Receivables from GMAC to XXXX and the
beneficial interest in and title to the Initial Receivables shall not be part of
GMAC's estate in the event of the filing of a bankruptcy petition by or against
GMAC under any bankruptcy law.
The foregoing transfer and assignment of Receivables contemplated by
the Pooling and Servicing Agreement and this First Step Initial Receivables
Assignment does not constitute and is not intended to result in any assumption
by XXXX of any obligation of the undersigned to the Obligors, Dealers, insurers
or any other Person in connection with the Initial Receivables, any Dealer
Agreements, any insurance policies or any agreement or instrument relating to
any of them.
This First Step Initial Receivables Assignment is made pursuant to and
upon the representations, warranties and agreements on the part of the
undersigned contained in the Pooling and Servicing Agreement and is to be
governed by the Pooling and Servicing Agreement.
Capitalized terms used herein and not otherwise defined herein shall
have the meaning assigned to them in the Pooling and Servicing Agreement.
* * * * *
A-1
IN WITNESS WHEREOF, the undersigned has caused this First Step Initial
Receivables Assignment to be duly executed as of August 14, 2003.
GENERAL MOTORS ACCEPTANCE CORPORATION
By: _____________________________________
Name: Xxxxx X. Xxxxxxxxxx
Title: Director - Securitization and Cash
Management
EXHIBIT B
FORM OF
FIRST STEP ADDITIONAL RECEIVABLES ASSIGNMENT
PURSUANT TO THE POOLING AND SERVICING AGREEMENT
For value received, in accordance with the Pooling and Servicing
Agreement, dated as of August 14, 2003 (the "Pooling and Servicing Agreement"),
between General Motors Acceptance Corporation, a Delaware corporation ("GMAC"),
and Capital Auto Receivables, Inc., a Delaware corporation ("XXXX"), GMAC does
hereby sell, assign, transfer and otherwise convey unto XXXX, without recourse,
(i) all right, title and interest of GMAC in, to and under the Additional
Receivables listed on the Schedule of Additional Receivables attached hereto and
(a) in the case of Additional Receivables that are Scheduled Interest
Receivables, all monies due thereunder on and after the related Additional
Cutoff Date and (b) in the case of Additional Receivables that are Simple
Interest Receivables, and all monies received thereon on and after the related
Additional Cutoff Date, in each case exclusive of any amounts allocable to the
premium for physical damage insurance force-placed by GMAC covering any related
Financed Vehicle; (ii) the interest of GMAC in the security interests in the
Financed Vehicles granted by Obligors pursuant to the Additional Receivables
and, to the extent permitted by law, any accessions thereto; (iii) the interest
of GMAC in any proceeds from claims on any physical damage, credit life, credit
disability or other insurance policies covering Financed Vehicles or Obligors;
(iv) the interest of GMAC in any proceeds from recourse against Dealers on the
Additional Receivables; and (v) the interest of GMAC in any proceeds of the
property described in clauses (i) and (ii) above.
It is the intention of GMAC and XXXX that the transfer and assignment
contemplated by this First Step Additional Receivables Assignment shall
constitute a sale of the Additional Receivables from GMAC to XXXX and the
beneficial interest in and title to the Additional Receivables shall not be part
of GMAC's estate in the event of the filing of a bankruptcy petition by or
against GMAC under any bankruptcy law.
The foregoing sale does not constitute and is not intended to result in
any assumption by XXXX of any obligation of the undersigned to the Obligors,
Dealers, insurers or any other Person in connection with the Additional
Receivables, the Dealer Agreements, any insurance policies or any agreement or
instrument relating to any of them.
This First Step Additional Receivables Assignment is made pursuant to
and upon the representations, warranties and agreements on the part of the
undersigned contained in the Pooling and Servicing Agreement and is to be
governed by the Pooling and Servicing Agreement.
GMAC hereby represents that as of the Additional Cutoff Date the
Additional Receivables Discounted Principal Balance of the Additional
Receivables conveyed hereby was $[_____].
GMAC and XXXX hereby acknowledge that the Additional Receivables
Discounted Principal Balance for the Additional Receivables assigned hereunder
is $[__________ ].
This Agreement shall be construed in accordance with the laws of the
State of New York and the obligations of the undersigned under this First Step
Additional Receivables Assignment shall be determined in accordance with such
laws.
Capitalized terms used and not otherwise defined herein shall have the
meanings assigned to such terms in, or incorporated by reference into, the
Pooling and Servicing Agreement.
* * * *
4
IN WITNESS WHEREOF, the undersigned has caused this First Step
Additional Receivables Assignment to be duly executed as of _______________,
200__.
GENERAL MOTORS ACCEPTANCE CORPORATION
By: ________________________________
Name:
Title:
5
APPENDIX A
PART I
For ease of reference, capitalized terms defined herein have
been consolidated with and are contained in Appendix A to the Trust Sale and
Servicing Agreement of even date herewith among GMAC, XXXX and Capital Auto
Receivables Asset Trust 2003-3, as amended and supplemented from time to time.
PART II
For ease of reference, the rules of construction have been
consolidated with and are contained in Part II of Appendix A to the Trust Sale
and Servicing Agreement of even date herewith among GMAC, XXXX and Capital Auto
Receivables Asset Trust 2003-3, as amended and supplemented from time to time.
PART III
For ease of reference, the notice addresses and procedures
have been consolidated with and are contained in Appendix B to the Trust Sale
and Servicing Agreement of even date herewith among GMAC, XXXX and Capital Auto
Receivables Asset Trust 2003-3, as amended and supplemented from time to time.
6
APPENDIX B
Additional Representations and Warranties
1. While it is the intention of GMAC and XXXX that the transfer and
assignment contemplated by this Agreement and the First Step
Receivables Assignments shall constitute sales of the Purchased
Property from GMAC to XXXX, this Agreement, the Trust Sale and
Servicing Agreement and the Indenture create a valid and continuing
security interest (as defined in the applicable UCC) in the Purchased
Property in favor of XXXX, the Trust and the Indenture Trustee, as
applicable, which security interest is prior to all other Liens, and is
enforceable as such as against creditors of and purchasers from GMAC,
XXXX and the Issuer, respectively.
2. All steps necessary to perfect GMAC's security interest against each
Obligor in the property securing the Purchased Property have been
taken.
3. Prior to the sale of the Purchased Property to XXXX under this
Agreement, the Receivables constitute "tangible chattel paper" within
the meaning of the applicable UCC.
4. GMAC owns and has good and marketable title to the Purchased Property
free and clear of any Lien, claim or encumbrance of any Person.
5. GMAC has caused or will have caused, within ten days, the filing of all
appropriate financing statements in the proper filing office in the
appropriate jurisdictions under applicable law in order to perfect the
security interest in the Purchased Property Granted to XXXX hereunder,
the Issuer under the Trust Sale and Servicing Agreement and the
Indenture Trustee under the Indenture.
6. Other than the security interest granted to XXXX pursuant to the Basic
Documents, the Issuer under the Trust Sale and Servicing Agreement and
the Indenture Trustee under the Indenture none of GMAC, XXXX or the
Issuer has pledged, assigned, sold, granted a security interest in, or
otherwise conveyed any of the Purchased Property. None of GMAC, XXXX or
the Issuer has authorized the filing of, or is aware of, any financing
statements against GMAC, XXXX or the Issuer that include a description
of collateral covering the Purchased Property other than the financing
statements relating to the security interests granted to XXXX, the
Issuer and the Indenture Trustee under the Basic Documents or any
financing statement that has been terminated. None of GMAC, XXXX or the
Issuer is aware of any judgment or tax lien filings against GMAC, XXXX
or the Issuer.
7. GMAC, as Servicer, has in its possession all original copies of the
Receivables Files and other documents that constitute or evidence the
Receivables and the Purchased Property. The Receivables Files and other
documents that constitute or evidence the Purchase Property do not have
any marks or notations indicating that they have been pledged, assigned
or otherwise conveyed to any Person other than XXXX.
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