Exhibit 99.3
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POOLING AND SERVICING AGREEMENT
BETWEEN
CAPITAL AUTO RECEIVABLES, INC.
AND
GENERAL MOTORS ACCEPTANCE CORPORATION
DATED AS OF NOVEMBER 13, 2002
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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............................................................ 3
SECTION 2.03 The Closing........................................................................... 3
SECTION 2.04 Custody of Receivable Files........................................................... 3
ARTICLE III ADMINISTRATION AND SERVICING OF RECEIVABLES....................................................... 3
SECTION 3.01 Duties of the Servicer................................................................ 4
SECTION 3.02 Collection of Receivable Payments..................................................... 5
SECTION 3.03 Rebates on Full Prepayments on Scheduled Interest Receivables......................... 5
SECTION 3.04 Realization Upon Liquidating Receivables.............................................. 5
SECTION 3.05 Maintenance of Insurance Policies..................................................... 5
SECTION 3.06 Maintenance of Security Interests in Vehicles......................................... 6
SECTION 3.07 Covenants, Representations and Warranties of the Servicer............................. 6
SECTION 3.08 Purchase of Receivables Upon Breach of Covenant....................................... 7
SECTION 3.09 Total Servicing Fee; Payment of Certain Expenses by Servicer.......................... 8
SECTION 3.10 Servicer's Accounting................................................................. 8
SECTION 3.11 Application of Collections............................................................ 8
ARTICLE IV REPRESENTATIONS AND WARRANTIES..................................................................... 9
SECTION 4.01 Representations and Warranties as to the Receivables.................................. 9
SECTION 4.02 Additional Representations and Warranties of GMAC..................................... 12
SECTION 4.03 Representations and Warranties of XXXX................................................ 13
ARTICLE V ADDITIONAL AGREEMENTS............................................................................... 14
SECTION 5.01 Conflicts With Further Transfer and Servicing Agreements.............................. 14
SECTION 5.02 Protection of Title;.................................................................. 14
SECTION 5.03 Other Liens or Interests.............................................................. 15
SECTION 5.04 Repurchase Events..................................................................... 15
SECTION 5.05 Indemnification....................................................................... 15
SECTION 5.06 Further Assignments................................................................... 15
SECTION 5.07 Pre-Closing Collections............................................................... 16
ARTICLE VI CONDITIONS......................................................................................... 16
SECTION 6.01 Conditions to Obligation of XXXX...................................................... 16
SECTION 6.02 Conditions To Obligation of GMAC...................................................... 17
ARTICLE VII MISCELLANEOUS PROVISIONS.......................................................................... 17
SECTION 7.01 Amendment............................................................................. 17
SECTION 7.02 Survival.............................................................................. 17
SECTION 7.03 Notices............................................................................... 17
SECTION 7.04 Governing Law......................................................................... 17
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SECTION 7.05 Waivers............................................................................... 17
SECTION 7.06 Costs and Expenses.................................................................... 17
SECTION 7.07 Confidential Information.............................................................. 18
SECTION 7.08 Headings.............................................................................. 18
SECTION 7.09 Counterparts.......................................................................... 18
SECTION 7.10 No Petition Covenant.................................................................. 18
SECTION 7.11 Limitations on Rights of Others....................................................... 18
EXHIBIT A Form of First Step Receivables Assignment
SCHEDULE A Schedule of Receivables
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 November 13, 2002,
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 a portfolio of
automobile and light truck retail instalment sale contracts and related rights
owned by GMAC;
WHEREAS, GMAC is willing to sell such contracts and related rights to XXXX;
WHEREAS, XXXX may wish to sell or otherwise transfer 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 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 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.
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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) Purchase. On such date as is acceptable to XXXX and GMAC, subject
to satisfaction of the conditions specified in Article VI and the First Step
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 Receivables listed on the Schedule of Receivables and (A) in the case of
Receivables that are Scheduled Interest Receivables, all monies due thereunder
on and after the Cutoff Date and (B) in the case of Receivables that are Simple
Interest Receivables, all monies received thereon on and after the 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 Receivables and, to the
extent permitted by law, any accessions thereto;
(iii) except for those Receivables originated in Wisconsin, 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 Receivables;
(v) the interest of GMAC in any proceeds of the property
described in clauses (i) and (ii) above.
The property described in clauses (i) through (v) above is referred to
herein collectively as the "Purchased Property."
(b) [Intentionally Omitted].
(c) It is the intention of GMAC and XXXX that the transfer and
assignment of Receivables contemplated by this Agreement and the First Step
Receivables Assignment shall constitute a sale of the Receivables from GMAC to
XXXX and the beneficial interest in and title
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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.
(d) The transfer and assignment of Receivables contemplated by this
Agreement and the 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. In consideration for the
Purchased Property, XXXX shall, on the Closing Date, pay to GMAC an amount equal
to the Initial Aggregate Discounted Principal Balance in respect of the
Receivables and GMAC shall execute and deliver to XXXX an assignment in the form
attached hereto as Exhibit A (the "First Step Receivables Assignment"). The
Initial Aggregate Discounted Principal Balance, which is equal to
$3,521,771,966.58, shall be paid to GMAC in immediately available funds.
SECTION 2.03 The Closing. The sale and purchase of the Receivables
shall take place at the offices of Xxxxxxxx & Xxxxx, 000 Xxxx Xxxxxxxx Xxxxx,
Xxxxxxx, Xxxxxxxx 00000, on the 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.
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 Assignment, 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 for
such Receivable;
(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.
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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
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
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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. 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 servicing
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 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 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 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
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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 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 Assignment, 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 of XXXX or any Interested Party in and to the Receivables; 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
scheduled due date (in the case of a Simple Interest Receivable) occurs after
the final scheduled payment date that is specified in Section 4.01(r).
(b) Upon the execution of the Further Transfer and Servicing
Agreements, the Servicer represents and warrants to the Issuer and XXXX that as
of the Closing Date in addition to the representations and warranties in
Sections 4.01 and 4.02 being true that as of the Closing Date:
(i) Organization and Good Standing. The Servicer 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) Power and Authority. The Servicer has the power and
authority to execute and deliver the Further Transfer and Servicing Agreements
and to carry out the terms of such agreements; and the Servicer's execution,
delivery and performance of the Further Transfer
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and Servicing Agreements have been duly authorized by the Servicer by all
necessary corporate action;
(iii) Binding Obligation. The Further Transfer and Servicing
Agreements, 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;
(iv) No Violation. The consummation by the Servicer of the
transactions contemplated by the Further Transfer and Servicing Agreements, and
the fulfillment by the Servicer of the terms of the Further Transfer and
Servicing Agreements, 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 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 agency or other governmental instrumentality having
jurisdiction over the Servicer or any of its properties;
(v) 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 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 the performance by the
Servicer of its obligations under, or the validity or enforceability of, the
Further Transfer and Servicing Agreements; and
(vi) 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.
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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).
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
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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 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 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.
Each Receivable:
(i) is secured by a Financed Vehicle, was originated in the
United States by a Dealer for the retail sale of a Financed Vehicle in the
ordinary course of such Dealer's business, was fully and properly executed by
the parties thereto, was purchased by GMAC from such Dealer under an existing
Dealer Agreement, and was validly assigned by such Dealer to GMAC in accordance
with its terms,
(ii) 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,
(iii) 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,
9
(iv) is a Scheduled Interest Receivable or a Simple Interest
Receivable,
(v) 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,
(vi) has an original term of not less than six and not greater
than 60 months and a remaining term of not less than six months,
(vii) 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;
(viii) has a first scheduled payment due date on or after
November 1, 1998;
(ix) has a final scheduled payment that is due no later than
November 8, 2007;
(x) was originated on or after September 1, 1998;
(xi) as of the Cutoff Date, was neither considered past due,
that is, the payments due on that Receivable in excess of $25 have been received
within 30 days of the scheduled payment date, nor was charged-off by GMAC.
In addition, Scheduled Interest Receivables represent (based on
Principal Balances) 25% of the Aggregate Principal Balance, with the balance of
the Receivables being Simple Interest Receivables.
(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 Receivables is 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
10
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, have been complied with in all material
respects, and 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 Assignment, 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 Cutoff Date, 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. There are, to the best of GMAC's knowledge, 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;
(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 Assignment, 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;
(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 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 Assignment 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 Assignment have been duly authorized by GMAC by all necessary
corporate action;
(d) Valid Sale; Binding Obligation. This Agreement and the First Step
Receivables Assignment, when duly executed and delivered, shall constitute a
valid sale, transfer and assignment of the Receivables, enforceable against
creditors of and purchasers from GMAC; and this Agreement together with the
First Step Receivables Assignment, when duly executed and delivered, shall
constitute a legal, valid and binding obligation of GMAC enforceable in
12
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 Assignment and the fulfillment
of the terms of this Agreement and the First Step Receivables Assignment 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 Assignment 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 Assignment, (B) seeking to prevent the
consummation of any of the transactions contemplated by this Agreement and the
First Step Receivables Assignment, 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 Assignment;
SECTION 4.03 Representations and Warranties of XXXX. XXXX hereby
represents and warrants to GMAC as of the 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 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 Assignment and to
carry out its terms and the execution, delivery and performance of this
Agreement and the First Step Receivables Assignment have been duly authorized by
XXXX by all necessary corporate action;
13
(d) No Violation. The consummation of the transactions contemplated
by this Agreement and the First Step Receivables Assignment and the fulfillment
of the terms of this Agreement and the First Step Receivables Assignment 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 Assignment, 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 Assignment.
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 Assignment in the Receivables and the
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
14
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 Assignment and as contemplated by
the Further Transfer and Servicing Agreements, GMAC shall not sell, pledge,
assign or transfer the Receivables 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
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 Assignment 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 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 Assignment 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 Assignment. GMAC further acknowledges
that XXXX may assign its rights under the Custodian Agreement to the Issuer.
15
SECTION 5.07 Pre-Closing Collections. Within two Business Days after
the 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 Closing Date 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
Assignment 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
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 Closing Date.
(b) No Repurchase Event. No Repurchase Event shall have occurred on
or prior to the Closing Date.
(c) Computer Files Marked. GMAC shall, at its own expense, on or
prior to the 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 Assignment and deliver to XXXX the
Schedule of Receivables certified by an officer of GMAC to be true, correct and
complete.
(d) Documents to be Delivered By GMAC.
(1) The Assignment. On the Closing Date, GMAC shall execute
and deliver the First Step Receivables Assignment.
(2) Evidence of UCC Filing. On or prior to the 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 Closing
Date.
(3) Other Documents. On the 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.
16
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 Assignment 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 Closing Date
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 Assignment on or prior to the closing hereunder.
(b) Receivables Purchase Price. On the Closing Date, XXXX shall pay
to GMAC the Initial Aggregate Discounted Principal Balance 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 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 ASSIGNMENT SHALL BE 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 Assignment 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.
17
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.
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 Assignment 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.
* * * * *
18
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: X.X. Xxxxxx
Title: Manager - Securitization
Signature Page to Pooling and Servicing Agreement
19
EXHIBIT A
FIRST STEP RECEIVABLES ASSIGNMENT
PURSUANT TO POOLING AND SERVICING AGREEMENT
For value received, in accordance with the Pooling and Servicing Agreement,
dated as of November 13, 2002 (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 Receivables
listed on the Schedule of Receivables, attached as Schedule A hereto, and (a) in
the case of Receivables that are Scheduled Interest Receivables, all monies due
thereunder on and after the Cutoff Date and (b) in the case of Receivables that
are Simple Interest Receivables, all monies received thereon on and after the
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 Receivables and, to the extent
permitted by law, any accessions thereto; (iii) except for those Receivables
originated in Wisconsin, 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 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 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.
The foregoing transfer and assignment of Receivables contemplated by this
Agreement and the First Step Receivable 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 Receivables, any Dealer Agreements, any insurance policies or any
agreement or instrument relating to any of them.
This First Step 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 Receivables
Assignment to be duly executed as of November 13, 2002.
GENERAL MOTORS ACCEPTANCE CORPORATION
By:
------------------------------------------------
Name: Xxxxx X. Xxxxxxxxxx
Title: Director - Securitization and Cash Management
A-2
SCHEDULE A
SCHEDULE OF RECEIVABLES
The Schedule of Receivables is
on file at the offices of:
1. The Indenture Trustee
2. The Owner Trustee
3. General Motors Acceptance Corporation
4. Capital Auto Receivables, Inc.
* * * * *
A-3
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 2002-5, 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 2002-5, 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 2002-5, as amended and supplemented from time to time.
X-0
XXXXXXXX X
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
Assignment 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, 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.
B-1
