EXHIBIT 99.3
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POOLING AND SERVICING AGREEMENT
BETWEEN
CAPITAL AUTO RECEIVABLES, INC.
AND
GENERAL MOTORS ACCEPTANCE CORPORATION
DATED AS OF DECEMBER 9, 2004
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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................................................... 5
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................. 7
SECTION 3.04 Realization Upon Liquidating Receivables...................................... 7
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..................... 8
SECTION 3.08 Purchase of Receivables Upon Breach of Covenant............................... 9
SECTION 3.09 Total Servicing Fee; Payment of Certain Expenses by Servicer.................. 10
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............................. 15
SECTION 4.03 Representations and Warranties of XXXX........................................ 16
ARTICLE V ADDITIONAL AGREEMENTS....................................................................... 17
SECTION 5.01 Conflicts With Further Transfer and Servicing Agreements...................... 17
SECTION 5.02 Protection of Title........................................................... 17
SECTION 5.03 Other Liens or Interests...................................................... 18
SECTION 5.04 Repurchase Events............................................................. 18
SECTION 5.05 Indemnification............................................................... 18
SECTION 5.06 Further Assignments........................................................... 18
SECTION 5.07 Pre-Closing Collections....................................................... 19
ARTICLE VI CONDITIONS................................................................................. 19
SECTION 6.01 Conditions to Obligation of XXXX.............................................. 19
SECTION 6.02 Conditions to Obligation of GMAC.............................................. 20
ARTICLE VII MISCELLANEOUS PROVISIONS.................................................................. 20
SECTION 7.01 Amendment..................................................................... 20
SECTION 7.02 Survival...................................................................... 21
SECTION 7.03 Notices....................................................................... 21
SECTION 7.04 GOVERNING LAW................................................................. 21
SECTION 7.05 Waivers....................................................................... 21
SECTION 7.06 Costs and Expenses............................................................ 21
SECTION 7.07 Confidential Information...................................................... 21
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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............................................... 22
EXHIBIT A Form of First Step Initial Receivables Assignment
EXHIBIT B Form of First Step Additional 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 December 9, 2004,
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 Aggregate Additional Receivables
Principal Balance on each applicable Distribution Date; and
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(vii) the present and future claims, demands, causes and
choses in action in respect of any or all the foregoing described in clauses (i)
through (vi) above and all payments on or under and all proceeds of every kind
and nature whatsoever in respect of any or all the foregoing, including all
proceeds of the conversion of any or all of the foregoing, voluntary or
involuntary, into cash or other liquid property, all cash proceeds, accounts,
accounts receivable, notes, drafts, acceptances, chattel paper, checks, deposit
accounts, insurance proceeds, investment property, payment intangible, general
intangibles, condemnation awards, rights to payment of any and every kind and
other forms of obligations and receivables, instruments and other property which
at any time constitute all or part of or are included in the proceeds of any of
the foregoing.
The property described in clauses (i) through (vii) above is referred to
herein collectively as the "Initial Purchased Property."
(b) Additional Purchases. On each Subsequent 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
Subsequent Closing Date and (1) in the case of Additional Receivables that are
Scheduled Interest Receivables, all monies received thereunder on and after the
related Subsequent Cutoff Date, and (2) in the case of Additional Receivables
that are Simple Interest Receivables, all monies received thereon on and after
the related Subsequent 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 present and future claims, demands, causes and choses
in action in respect of any or all the foregoing described in clauses (i)
through (v) above and all payments on or under and all proceeds of every kind
and nature whatsoever in respect of any or all the foregoing, including all
proceeds of the conversion of any or all of the foregoing, voluntary or
involuntary, into cash or other liquid property, all cash proceeds, accounts,
accounts
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receivable, notes, drafts, acceptances, chattel paper, checks, deposit accounts,
insurance proceeds, investment property, payment intangible, general
intangibles, condemnation awards, rights to payment of any and every kind and
other forms of obligations and receivables, instruments and other property which
at any time constitute all or part of or are included in the proceeds of any of
the foregoing.
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.
(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 Receivables 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 Receivables Principal Balance, which is equal to
$2,597,263,866.06 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
Subsequent Closing Date, pay to GMAC an amount equal to the Aggregate Additional
Receivables 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 LLP, 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.
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(b) Additional Purchases. The sale and purchase of the Additional
Receivables shall take place on the Subsequent 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;
(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.
(a) 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.
(b) 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
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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.
(c) 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.
(d) 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
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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 customary 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 practices, policies and 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 to sell or not to sell such Liquidating 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 practices, policies and 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 practices, policies and 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 practices, policies and 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
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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 Subsequent Closing Date with respect to the Additional Receivables
purchased on each such Subsequent 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 related 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 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
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 Subsequent Closing Date with respect to the Additional
Receivables purchased on each such Subsequent 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 Subsequent 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;
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(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 agency or other governmental instrumentality
having jurisdiction over the Servicer or any of its properties; and
(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.
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
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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).
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
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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 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 Subsequent Closing Date with respect to the
Additional Receivables purchased on each such Subsequent 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,
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(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 which may vary
from one another by no more than $5, 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, and
(7) at least one monthly payment has been made;
(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 thirty (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) 27.46% of the
Aggregate Amount Financed, 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 October
31, 2011 and (2) as of the related Subsequent Cutoff Date, was not considered
past due, that is, the payments due on that Additional Receivable in excess of
$25 have been received within thirty (30) days of the scheduled payment date and
such Additional Receivable was not a Liquidating Receivable.
(iv) Cumulative Receivables. Following the addition of all
Additional Receivables on each Subsequent Cutoff Date:
(1) the sum of the Amount Financed of each Cumulative
Receivable as of such date that had an original term in excess of 60 months,
measured as of its date of origination, is not greater than 20.0% of the
Aggregate Amount Financed of the Cumulative Receivables as of such date;
(2) the sum of the Amount Financed of each Cumulative
Receivable as of such date that was secured by used Financed Vehicles, measured
as of the
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Applicable Cutoff Date for each such Cumulative Receivable, is not greater than
20.0% of the Aggregate Amount Financed of the Cumulative Receivables as of such
dates; and
(3) the sum of the Amount Financed of each Cumulative
Receivable as of such date that was a Subvented Receivable, measured as of the
Applicable Cutoff Date for each such Cumulative Receivable, is not less than
70.0% of the Aggregate Amount Financed of the Cumulative Receivables as of such
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
Servicemembers Civil Relief Act of 2003, 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 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;
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(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 Subsequent
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;
(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
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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 Subsequent Closing Date with
respect to the Additional Receivables purchased on each such Subsequent 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, 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
15
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 Subsequent 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
Subsequent 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 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
16
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.
(a) 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 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 sixty (60) days prior written
notice thereof.
(c) Executive Office; Maintenance of Offices. GMAC shall give XXXX
at least sixty (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
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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 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.
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SECTION 5.07 Pre-Closing Collections. Within two (2) Business Days after
the Initial Closing Date and each Subsequent 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 Subsequent 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 Subsequent 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 Subsequent Closing
Date.
(b) No Repurchase Event. No Repurchase Event shall have occurred on
or prior to the Initial Closing Date and each Subsequent Closing Date.
(c) Computer Files Marked. GMAC shall, at its own expense, on or
prior to the Initial Closing Date and each Subsequent 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.
(i) The Assignments. On the Initial Closing Date, GMAC shall
execute and deliver the First Step Initial Receivables Assignment and on each
Subsequent 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.
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(iii) Other Documents. On the Initial Closing Date and on each
Subsequent 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 this Section 6.01, 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 Subsequent 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.
(b) Receivables Purchase Price. On the Initial Closing Date, XXXX
shall pay to GMAC the Initial Aggregate Receivables Principal Balance and on
each Subsequent Closing Date, XXXX shall pay GMAC the Aggregate Additional
Receivables 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.
20
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 Subsequent 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.
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 to the Note Distribution
Account, 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
21
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.
* * * * *
22
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: /s/ Xxxx X. Xxxxxxxxx
-----------------------------------------
Name: Xxxx X. Xxxxxxxxx
Title: Director - Global Securitization
CAPITAL AUTO RECEIVABLES, INC.
By: /s/ Xxxxx X. Xxxx
-----------------------------------------
Name: Xxxxx X. Xxxx
Title: Vice President
Signature Page to Pooling and Servicing Agreement
23
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 December 9, 2004 (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) all right, title and
interest of GMAC in, to and under the First Step Initial Receivables Assignment;
and (vi) the present and future claims, demands, causes and choses in action in
respect of any or all the foregoing described in clauses (i), (ii), (iii), (iv),
and (v) above and all payments on or under and all proceeds of every kind and
nature whatsoever in respect of any or all the foregoing, including all proceeds
of the conversion of any or all of the foregoing, voluntary or involuntary, into
cash or other liquid property, all cash proceeds, accounts, accounts receivable,
notes, drafts, acceptances, chattel paper, checks, deposit accounts, insurance
proceeds, investment property, payment intangible, general intangibles,
condemnation awards, rights to payment of any and every kind and other forms of
obligations and receivables, instruments and other property which at any time
constitute all or part of or are included in the proceeds of any of the
foregoing.
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.
A-1
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-2
IN WITNESS WHEREOF, the undersigned has caused this First Step Initial
Receivables Assignment to be duly executed as of December 9, 2004.
GENERAL MOTORS ACCEPTANCE CORPORATION
By: -------------------------------------
Name: Xxxx X. Xxxxxxxxx
Title: Director - Global Securitization
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 December 9, 2004 (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 Subsequent
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
Subsequent 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) all right, title and interest of GMAC in, to and
under the First Step Additional Receivables Assignment; and (vi) the present and
future claims, demands, causes and choses in action in respect of any or all the
foregoing described in clauses (i), (ii), (iii), (iv), and (v) above and all
payments on or under and all proceeds of every kind and nature whatsoever in
respect of any or all the foregoing, including all proceeds of the conversion of
any or all of the foregoing, voluntary or involuntary, into cash or other liquid
property, all cash proceeds, accounts, accounts receivable, notes, drafts,
acceptances, chattel paper, checks, deposit accounts, insurance proceeds,
investment property, payment intangible, general intangibles, condemnation
awards, rights to payment of any and every kind and other forms of obligations
and receivables, instruments and other property which at any time constitute all
or part of or are included in the proceeds of any of the foregoing.
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
B-1
Pooling and Servicing Agreement and is to be governed by the Pooling and
Servicing Agreement.
GMAC hereby represents that as of the Subsequent Cutoff Date the Aggregate
Additional Receivables Principal Balance of the Additional Receivables conveyed
hereby was $[_____].
GMAC and XXXX hereby acknowledge that the Aggregate Additional Receivables
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.
* * * *
B-2
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: Xxxx X. Xxxxxxxxx
Title: Director - Global Securitization
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.
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 2004-2, 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 2004-2, 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 2004-2, as amended and supplemented from time to time.
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 (10) 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, nor is GMAC 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. GMAC is not 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 Purchased Property do not have
any marks or notations indicating that they have been pledged, assigned or
otherwise conveyed to any Person other than XXXX.
