Exhibit 99.3
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POOLING AND SERVICING AGREEMENT
BETWEEN
CAPITAL AUTO RECEIVABLES, INC.
AND
GENERAL MOTORS ACCEPTANCE CORPORATION
DATED AS OF AUGUST 8, 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 ............................................. 4
SECTION 2.03 The Closings ........................................................... 4
SECTION 2.04 Custody of Receivable Files ............................................ 4
ARTICLE III ADMINISTRATION AND SERVICING OF RECEIVABLES .................................. 5
SECTION 3.01 Duties of the Servicer ................................................. 5
SECTION 3.02 Collection of Receivable Payments ...................................... 6
SECTION 3.03 Rebates on Full Prepayments on Scheduled Interest Receivables .......... 6
SECTION 3.04 Realization Upon Liquidating Receivables ............................... 6
SECTION 3.05 Maintenance of Insurance Policies ...................................... 6
SECTION 3.06 Maintenance of Security Interests in Vehicles .......................... 7
SECTION 3.07 Covenants, Representations and Warranties of the Servicer .............. 7
SECTION 3.08 Purchase of Receivables Upon Breach of Covenant ........................ 8
SECTION 3.09 Total Servicing Fee; Payment of Certain Expenses by Servicer ........... 9
SECTION 3.10 Servicer's Accounting .................................................. 9
SECTION 3.11 Application of Collections ............................................. 9
ARTICLE IV REPRESENTATIONS AND WARRANTIES ................................................ 10
SECTION 4.01 Representations and Warranties as to the Receivables ................... 10
SECTION 4.02 Additional Representations and Warranties of GMAC ...................... 13
SECTION 4.03 Representations and Warranties of XXXX ................................. 14
ARTICLE V ADDITIONAL AGREEMENTS .......................................................... 15
SECTION 5.01 Conflicts With Second Step Transfer and Servicing Agreements ........... 15
SECTION 5.02 Protection of Title; ................................................... 15
SECTION 5.03 Other Liens or Interests ............................................... 16
SECTION 5.04 Repurchase Events ...................................................... 16
SECTION 5.05 Indemnification ........................................................ 17
SECTION 5.06 Further Assignments .................................................... 17
SECTION 5.07 Pre-Closing Collections ................................................ 17
ARTICLE VI CONDITIONS .................................................................... 17
SECTION 6.01 Conditions to Obligation of XXXX ....................................... 17
SECTION 6.02 Conditions To Obligation of GMAC ....................................... 18
ARTICLE VII MISCELLANEOUS PROVISIONS ..................................................... 19
SECTION 7.01 Amendment .............................................................. 19
SECTION 7.02 Survival ............................................................... 19
SECTION 7.03 Notices ................................................................ 19
SECTION 7.04 Governing Law .......................................................... 19
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SECTION 7.05 Waivers ................................................................ 19
SECTION 7.06 Costs and Expenses ..................................................... 19
SECTION 7.07 Confidential Information ............................................... 19
SECTION 7.08 Headings ............................................................... 20
SECTION 7.09 Counterparts ........................................................... 20
SECTION 7.10 No Petition Covenant ................................................... 20
SECTION 7.11 Limitations on Rights of Others ........................................ 20
EXHIBIT A Form of First Step Initial Receivables Assignment
EXHIBIT B Form of First Step Additional Receivables Assignment
APPENDIX A Definitions, Rules of Construction and Notices
APPENDIX B Additional Representations and Warranties
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THIS POOLING AND SERVICING AGREEMENT, dated as of August 8, 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 and from time to
time hereafter portfolios of automobile and light truck retail instalment sale
contracts 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 being collectively the "Second Step 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 Second Step Transfer and Servicing Agreements, will be willing to service
such contracts in accordance with the terms of such Second Step Transfer and
Servicing Agreements for the benefit of the Issuer and each other party
identified or described herein or in the Second Step 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 Second Step 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
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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
Second Step 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 Second Step 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 such date as is acceptable to XXXX and GMAC, 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 Second Step 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) except for those Initial 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 Initial Receivables;
(v) the right to purchase Additional Receivables during
the Revolving Period at a price equal to the Additional Receivables Discounted
Principal Balance; and
(vi) the interest of GMAC in any proceeds of the property
described in clauses (i) and (ii) above.
The property described in clauses (i) through (vi) above is referred to
herein collectively as the "Initial Purchased Property."
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(b) Additional Purchases. On each Additional Closing Date, subject
to the satisfaction of the conditions specified in Article VI and the First Step
Additional Receivables Assignment (and, in any event, immediately prior to
consummation of the related transactions contemplated by the Second Step
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 and
(1) in the case of Additional Receivables that are Scheduled Interest
Receivables, all monies received thereunder on and after the related Additional
Cutoff Date, and (2) in the case of Additional Receivables that are Simple
Interest Receivables, all monies received thereon on and after the related
Additional Cutoff Date, in each case, exclusive of any amounts allocable to the
premium for physical damage insurance force-placed by GMAC covering any related
financed Vehicle;
(ii) the interest of GMAC in the security interests in the
Financed Vehicles granted by Obligors pursuant to the Additional Receivables
and, to the extent permitted by law, any accessions thereto;
(iii) except for those Additional 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 Additional Receivables;
(v) all right, title and interest of the Seller in, to
and under the related First Step Additional Receivables Assignment; and
(vi) the interest of GMAC in any proceeds of the property
described in clauses (i) and (ii) above.
The property described in clauses (i) through (vi) 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 the First Step
Receivables Assignments 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 the First Step Receivables Assignments 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.
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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 Receivables Discounted
Principal Balance in respect of the Initial Receivables and GMAC shall execute
and deliver to XXXX an assignment in the form attached hereto as Exhibit A (the
"First Step Initial Receivables Assignment"). The Initial Aggregate Discounted
Principal Balance, which is equal to $3,042,177,569.94, 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 the related
Additional Closing Dates, pay to GMAC an amount equal to the Additional
Receivables Discounted Principal Balance in respect of the Additional
Receivables and GMAC shall execute and deliver to XXXX a First Step Additional
Receivables Assignment in the form attached hereto as Exhibit B (the "First Step
Additional Receivables Assignment"). The First Step Initial Receivables
Assignment and each First Step Additional Receivables Assignment are
collectively referred to herein as the "First Step Receivables Assignments."
SECTION 2.03 The Closings.(a) Initial Purchase. The sale and
purchase of the Initial Receivables shall take place at the offices of Xxxxxxxx
& Xxxxx, 000 Xxxx Xxxxxxxx Xxxxx, Xxxxxxx, Xxxxxxxx 00000, on the Initial
Closing Date at a time mutually agreeable to GMAC and XXXX, and will occur
simultaneously with the closing of transactions contemplated by the Second Step
Transfer and Servicing Agreements.
(b) Additional Purchases. The sale and purchase of the Additional
Receivables shall take place on the Additional Closing Dates at such locations
and at such times as are mutually agreeable to GMAC and XXXX, and will occur
simultaneously with the closing of transactions contemplated by any Second Step
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 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
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(e) any and all other documents that GMAC keeps on file in
accordance with its customary procedures relating to the individual Receivable,
Obligor or Financed Vehicle.
ARTICLE III
ADMINISTRATION AND SERVICING OF RECEIVABLES
SECTION 3.01 Duties of the Servicer. The Servicer is hereby
appointed and authorized to act as agent for the Owner of the Receivables and in
such capacity shall manage, service, administer and make collections on the
Receivables with reasonable care, using that degree of skill and attention that
the Servicer exercises with respect to comparable automotive receivables that it
services for itself or others. The Servicer hereby accepts such appointment and
authorization and agrees to perform the duties of Servicer with respect to the
Receivables set forth herein and in the Second Step 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 Second Step
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
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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 Second Step
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. 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 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 Second Step Transfer and Servicing Agreements).
SECTION 3.05 Maintenance of Insurance Policies. The Servicer shall,
in accordance with its customary servicing procedures, require that each Obligor
shall have obtained physical damage insurance covering the Financed Vehicle as
of the execution of the
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related Receivable. The Servicer shall, in accordance with its customary
servicing procedures, monitor such physical damage insurance with respect to
each Receivable.
SECTION 3.06 Maintenance of Security Interests in Vehicles. The
Servicer shall, in accordance with its customary servicing procedures and at its
own expense, take such steps as are necessary to maintain perfection of the
security interest created by each Receivable in the related Financed Vehicle.
The Owner of each Receivable hereby authorizes the Servicer to re-perfect such
security interest on behalf of such Owner, as necessary because of the
relocation of a Financed Vehicle, or for any other reason.
SECTION 3.07 Covenants, Representations and Warranties of the
Servicer. As of the Initial Closing Date with respect to the Initial Receivables
and as of each Additional Closing Date with respect to the Additional
Receivables purchased on each such Additional Closing Date, the Servicer hereby
makes the following representations, warranties and covenants on which XXXX
relies in accepting the Receivables hereunder and pursuant to the First Step
Receivables Assignments, and on which the Issuer shall rely in accepting such
Receivables and executing and delivering the Securities under the Second Step
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 Second Step 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 Second Step Transfer and Servicing
Agreements, the Servicer represents and warrants to the Issuer and XXXX that as
of the Initial Closing Date with respect to the Initial Receivables and as of
each Additional Closing Date with respect to the Additional Receivables
purchased on each such Additional Closing Date in addition to the
representations and warranties in Sections 4.01 and 4.02 being true that as of
each such Initial Closing Date or Additional Closing Date, as applicable:
(i) Organization and Good Standing. The Servicer had at
all relevant times, and now has, power, authority and legal right to service the
Receivables as provided herein and in the Second Step Transfer and Servicing
Agreements;
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(ii) Power and Authority. The Servicer has the power and
authority to execute and deliver the Second Step Transfer and Servicing
Agreements and to carry out the terms of such agreements; and the Servicer's
execution, delivery and performance of the Second Step Transfer and Servicing
Agreements have been duly authorized by the Servicer by all necessary corporate
action;
(iii) Binding Obligation. The Second Step 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 Second Step Transfer and Servicing Agreements,
and the fulfillment by the Servicer of the terms of the Second Step 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 Second Step 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 Second Step 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
Second Step 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
Second Step 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 Second Step
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),
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the Servicer shall, unless it shall have cured such breach in all material
respects, purchase from the Owner thereof any Receivable materially and
adversely affected by such breach as determined by such Owner and, on the
related Distribution Date, the Servicer shall pay the Administrative Purchase
Payment, and shall be entitled to receive the Released Administrative Amount, if
any. It is understood and agreed that the obligation of the Servicer to purchase
any Receivable with respect to which such a breach has occurred and is
continuing shall, if such obligation is fulfilled, constitute the sole remedy
against the Servicer for such breach available to XXXX or any Interested Party.
SECTION 3.09 Total Servicing Fee; Payment of Certain Expenses by Servicer.
The Servicer is entitled to receive the Total Servicing Fee and Supplemental
Servicing Fees out of collections in respect of the Receivables. The Servicer
shall also be entitled to Investment Earnings as, and to the extent, set forth
in the Second Step Transfer and Servicing Agreements. Subject to any limitations
on the Servicer's liability under the Second Step 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 Second Step
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 Second Step 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
Second Step Transfer and Servicing Agreement, the Servicer shall deliver to each
of the trustees and other applicable parties under the Second Step 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 Second
Step Transfer and Servicing Agreements, and all information necessary to each
such party for sending any statements required under the Second Step 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 Second Step
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 Second Step 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 Second Step 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
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applied to the Scheduled Payment with respect to such Receivable. Any amount of
such payments remaining after the applications described in the preceding two
sentences constitutes an Excess Payment with respect to such Receivable, and
such Excess Payment (to the extent it does not constitute a Payment Ahead) shall
be applied to prepay such Receivable. If the amounts applied under the first two
sentences of this Section 3.11(a) shall be less than the Scheduled Payment,
whether as a result of any extension granted to the Obligor or otherwise, then
the Deferred Prepayment, if any, with respect to such Receivable shall be
applied by the Servicer to the extent of the shortfall, and such Deferred
Prepayment shall be reduced accordingly.
(b) With respect to all Simple Interest Receivables (other than
Administrative Receivables and Warranty Receivables), payments by or on behalf
of the Obligors which are not Supplemental Servicing Fees shall be applied first
to the payment to the Servicer of Excess Simple Interest Collections, if any,
and next to principal and interest on all such Simple Interest Receivables.
(c) With respect to each Administrative Receivable and Warranty
Receivable, payments by or on behalf of the Obligor shall be applied in the same
manner, except that any Released Administrative Amount or Released Warranty
Amount shall be remitted to the Servicer or XXXX, as applicable. In the case of
a Scheduled Interest Receivable, a Warranty Payment shall be applied to reduce
any advances described in Section 3.11(a) and such Warranty Payment or an
Administrative Purchase Payment, as applicable, shall be applied to the
Scheduled Payment, in each case to the extent that the payments by or on behalf
of the Obligor shall be insufficient, and then to prepay such Receivable in
full. In the case of a Simple Interest Receivable, a Warranty Payment or an
Administrative Payment, as applicable, shall be applied to principal and
interest on such Receivable.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.01 Representations and Warranties as to the Receivables. GMAC
makes the following representations and warranties as to the Receivables on
which XXXX relies in accepting the Receivables. Such representations and
warranties speak as of the Initial Closing Date with respect to the Initial
Receivables, and as of each Additional Closing Date with respect to the
Additional Receivables purchased on each such Additional Closing Date, and shall
survive the sale, transfer and assignment of the Receivables to XXXX and the
subsequent assignment and transfer pursuant to the Second Step 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 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, (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
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thereof adequate for realization against the collateral of the benefits of the
security, (4) is a Scheduled Interest Receivable or a Simple Interest
Receivable, (4) 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, (5) 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 and (6) has been acquired by GMAC
under one of its special incentive rate financing programs designed to encourage
purchases of new vehicles manufactured by General Motors Corporation.
(ii) Initial Receivables. In addition to the characteristics
set forth in Section 4.01(a)(i) above, each Initial Receivable (1) has a first
scheduled payment due date on or after November 1, 1998, (2) has a final
scheduled payment that is due no later than June 30, 2007, (3) was originated on
or after September 1, 1998, (4) as of the Initial Cutoff Date, was neither
considered past due, that is, the payments due on that Initial Receivable in
excess of $25.00 have been received within 30 days of the scheduled payment
date, nor charged-off by GMAC.
In addition, with respect to the Initial Receivables, Scheduled
Interest Receivables represent (based on Principal Balances) 30% of the Initial
Aggregate Principal Balance, with the balance of the Initial Receivables being
Simple Interest Receivables.
(iii) Additional Receivables. In addition to the
characteristics set forth in Section 4.01(a)(i) above, each Additional
Receivable (1) has a final scheduled payment that is due no later than 6 months
prior to the Final Scheduled Distribution Date of the Certificates and (2) as of
the related Additional Cutoff Date, was neither considered past due, that is,
the payments due on that Initial Receivable in excess of $25.00 have been
received within 30 days of the scheduled payment date, nor charged-off by GMAC.
(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
Second Step Transfer and Servicing Agreements were utilized in selecting the
Receivables from those receivables of GMAC which meet the selection criteria set
forth in this Agreement;
(d) Compliance With Law. All requirements of applicable federal,
state and local laws, and regulations thereunder, including, without limitation,
usury laws, the Federal Truth-in-Lending Act, the Equal Credit Opportunity Act,
the Fair Credit Billing Act, the Fair Credit Reporting Act, the Fair Debt
Collection Practices Act, the Federal Trade Commission Act, the Xxxxxxxx-Xxxx
Warranty Act, the Federal Reserve Board's Regulations "B" and "Z", the Soldiers'
and Sailors' Civil Relief Act of 1940, the Texas Consumer Credit Code, and state
adaptations of the National Consumer Act and of the Uniform Consumer Credit Code
and other
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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 Assignments, each Receivable was secured by a validly perfected
first priority security interest in the Financed Vehicle in favor of GMAC as
secured party or all necessary and appropriate action had been commenced that
would result in the valid perfection of a first priority security interest in
the Financed Vehicle in favor of GMAC as secured party;
(g) Receivables In Force. No Receivable has been satisfied,
subordinated or rescinded, and the Financed Vehicle securing each such
Receivable has not been released from the lien of the related Receivable in
whole or in part;
(h) No Waiver. Since the Initial Cutoff Date or any Additional
Cutoff Date, as applicable, no provision of a Receivable has been, or will be,
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 Assignments, GMAC had good and marketable title thereto, free of any
Lien; and, upon execution and delivery of this Agreement by GMAC, XXXX shall
have all of the right, title and interest of GMAC in and to the Receivables, the
unpaid indebtedness evidenced thereby and the collateral security therefor, free
of any Lien;
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(m) Lawful Assignment. No Receivable was originated in, or is
subject to the laws of, any jurisdiction the laws of which would make unlawful
the sale, transfer and assignment of such Receivable under this Agreement; (n)
All Filings Made. All filings (including, without limitation, UCC filings)
necessary in any jurisdiction to give XXXX a first priority perfected ownership
interest in the Receivables shall have been made;
(o) One Original. There is only one original executed copy of
each Receivable;
(p) No Documents or Instruments. No Receivable, or constituent
part thereof, constitutes a "negotiable instrument" or "negotiable document of
title" (as such terms are used in the UCC); and
(q) No Amendment. No Receivable has been amended or otherwise
modified such that the total number of the Obligor's Scheduled Payments (in the
case of a Scheduled Interest Receivable) or the number of originally scheduled
due dates (in the case of a Simple Interest Receivable) is increased or such
that the Amount Financed is increased.
SECTION 4.02 Additional Representations and Warranties of GMAC. GMAC hereby
represents and warrants to XXXX as of the Initial Closing Date with respect to
the Initial Receivables and as of each Additional Closing Date with respect to
the Additional Receivables purchased on each such Additional Closing Date, both
in its capacity as the seller of the Receivables hereunder and in its capacity
as Servicer, that:
(a) Organization and Good Standing. GMAC has been duly organized
and is validly existing as a corporation in good standing under the laws of the
State of Delaware, with power and authority to own its properties and to conduct
its business as such properties are presently owned and such business is
presently conducted;
(b) Due Qualification. GMAC is duly qualified to do business as a
foreign corporation in good standing, and has obtained all necessary licenses
and approvals, in all jurisdictions in which the ownership or lease of property
or the conduct of its business (including the servicing of the Receivables)
requires or shall require such qualification;
(c) Power and Authority. GMAC has the power and authority to
execute and deliver this Agreement and the First Step Receivables Assignments
and to carry out its terms; GMAC has full power and authority to sell and assign
the property to be sold and assigned to XXXX and to service the Receivables as
provided herein and in the Second Step 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
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Assignment, when duly executed and delivered, shall constitute a valid sale,
transfer and assignment of the respective Additional Receivables, in each case,
enforceable against creditors of and purchasers from GMAC; and this Agreement
together with the First Step Receivables Assignments, when duly executed and
delivered, shall constitute a legal, valid and binding obligation of GMAC
enforceable in accordance with its terms, except as enforceability may be
limited by bankruptcy, insolvency, reorganization or other similar laws
affecting the enforcement of creditors' rights in general and by general
principles of equity, regardless of whether such enforceability is considered in
a proceeding in equity or at law;
(e) No Violation. The consummation of the transactions contemplated
by this Agreement and the First Step Receivables Assignments and the fulfillment
of the terms of this Agreement and the First Step Receivables Assignments shall
not conflict with, result in any breach of any of the terms and provisions of,
or constitute (with or without notice or lapse of time) a default under, the
articles of incorporation or by-laws of GMAC, or any indenture, agreement,
mortgage, deed of trust or other instrument to which GMAC is a party or by which
it is bound, or result in the creation or imposition of any Lien upon any of its
properties pursuant to the terms of any such indenture, agreement, mortgage,
deed of trust or other instrument, other than this Agreement and the First Step
Receivables Assignments or violate any law or, to the best of GMAC's knowledge,
any order, rule or regulation applicable to GMAC of any court or of any federal
or state regulatory body, administrative agency or other governmental
instrumentality having jurisdiction over GMAC or any of its properties;
(f) No Proceedings. To GMAC's knowledge, there are no proceedings or
investigations pending, or threatened, before any court, regulatory body,
administrative agency or other tribunal or governmental instrumentality having
jurisdiction over GMAC or its properties (A) asserting the invalidity of this
Agreement and the First Step Receivables Assignments , (B) seeking to prevent
the consummation of any of the transactions contemplated by this Agreement and
the First Step Receivables Assignments, or (C) seeking any determination or
ruling that might materially and adversely affect the performance by GMAC of its
obligations under, or the validity or enforceability of, this Agreement and the
First Step Receivables Assignments; and
(g) No Insolvency. With respect to the Additional Receivables as of
the related Additional Closing Date, (i) GMAC was not and will not become
insolvent as a result of the transfer of such Additional Receivables, (ii) GMAC
did not intend to or believe that it would incur debts that would be beyond its
ability to pay as such debts matured, (iii) GMAC did not transfer such
Additional Receivables with the actual intent to hinder, delay or defraud any
Person and (iv) the assets of GMAC did not constitute unreasonably small capital
to carry out its business as conducted.
SECTION 4.03 Representations and Warranties of XXXX. XXXX hereby
represents and warrants to GMAC as of the Initial Closing Date and each
Additional Closing Date:
(a) Organization and Good Standing. XXXX has been duly organized and
is validly existing as a corporation in good standing under the laws of the
State of Delaware, with power and authority to own its properties and to conduct
its business as such properties are
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presently owned and such business is presently conducted, and had at all
relevant times, and now has, power, authority and legal right to acquire and own
the Receivables;
(b) Due Qualification. XXXX is duly qualified to do business as a
foreign corporation in good standing, and has obtained all necessary licenses
and approvals in all jurisdictions in which the ownership or lease of property
or the conduct of its business requires such qualification;
(c) Power and Authority. XXXX has the power and authority to execute
and deliver this Agreement and the First Step Receivables Assignments and to
carry out its terms and the execution, delivery and performance of this
Agreement and the First Step Receivables Assignments have been duly authorized
by XXXX by all necessary corporate action;
(d) No Violation. The consummation of the transactions contemplated
by this Agreement and the First Step Receivables Assignments and the fulfillment
of the terms of this Agreement and the First Step Receivables Assignments shall
not conflict with, result in any breach of any of the terms and provisions of or
constitute (with or without notice or lapse of time) a default under, the
certificate of incorporation or by-laws of XXXX, or any indenture, agreement,
mortgage, deed of trust or other instrument to which XXXX is a party or by which
it is bound, or result in the creation or imposition of any Lien upon any of its
properties pursuant to the terms of any such indenture, agreement or other
instrument, other than any Second Step 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 Second Step 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 Second Step Transfer and
Servicing Agreements, the Second Step Transfer and Servicing Agreements shall
govern.
SECTION 5.02 Protection of Title; Filings. GMAC shall authorize and
execute, as applicable, and file such financing statements and cause to be
authorized and executed, as applicable, and filed such continuation and other
statements, all in such manner and in such places as may be required by law
fully to preserve, maintain and protect the interest of XXXX under this
Agreement and the First Step Receivables Assignments in the Receivables and the
15
other Purchased Property and in the proceeds thereof. GMAC shall deliver (or
cause to be delivered) to XXXX file-stamped copies of, or filing receipts for,
any document filed as provided above, as soon as available following such filing
GMAC hereby authorizes XXXX and its assigns to file all such financing
statements and to file such financing statements without its signature.
(b) Name Change. GMAC shall not change its state of organization or
its name, identity or corporate structure in any manner that would, could or
might make any financing statement or continuation statement filed by GMAC in
accordance with Section 5.02(a) seriously misleading within the meaning of the
UCC, unless it shall have given XXXX at least 60 days prior written notice
thereof.
(c) Executive Office; Maintenance of Offices. GMAC shall give XXXX at
least 60 days prior written notice of any relocation of its principal executive
office if, as a result of such relocation, the applicable provisions of the UCC
would require the filing of any amendment of any previously filed financing or
continuation statement or of any new financing statement. GMAC shall at all
times maintain each office from which it services Receivables and its principal
executive office within the United States of America.
(d) New Debtor. In the event that GMAC shall change the jurisdiction
in which it is incorporated or otherwise enter into any transaction which would
result in a "new debtor" (as defined in the UCC) succeeding to the obligations
of GMAC hereunder, GMAC shall comply fully with the obligations of Section
5.02(a).
SECTION 5.03 Other Liens or Interests. Except for the conveyances
hereunder, and the First Step Receivables Assignments and as contemplated by the
Second Step 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 Second Step
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 Second Step 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 Second Step 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,
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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 Second Step Transfer and Servicing Agreements, sell the
Receivables to the Issuer and assign its rights hereunder and the First Step
Receivables Assignments to the Issuer, subject to the terms and conditions of
the Second Step Transfer and Servicing Agreements, and that the Issuer may in
turn further pledge, assign or transfer its rights in the Receivables and this
Agreement and the First Step Receivables Assignments. GMAC further acknowledges
that XXXX may assign its rights under the Custodian Agreement to the Issuer.
SECTION 5.07 Pre-Closing Collections. Within two Business Days after the
Initial Closing Date and each Additional Closing Date, GMAC shall transfer to
the account or accounts designated by XXXX (or by the Issuer under the Second
Step Transfer and Servicing Agreements) all collections on the Receivables held
by GMAC on the Initial Closing Date or Additional Closing Date, as applicable,
and conveyed to XXXX pursuant to Section 2.01; provided that so long as the
Monthly Remittance Conditions are satisfied, such collections need not be
transferred until the first Distribution Date.
ARTICLE VI
CONDITIONS
SECTION 6.01 Conditions to Obligation of XXXX. General. 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:
(i) Representations and Warranties True. The representations
and warranties of GMAC hereunder shall be true and correct at the time of the
Initial Closing Date and each Additional Closing Date with the same effect as if
then made, and GMAC shall have performed all obligations to be performed by it
hereunder on or prior to the Initial Closing Date and each Additional Closing
Date.
(ii) No Repurchase Event. No Repurchase Event shall have
occurred on or prior to the Initial Closing Date and each Additional Closing
Date.
(iii) Computer Files Marked. GMAC shall, at its own expense, on
or prior to the Initial Closing Date and each Additional Closing Date, indicate
in its computer files created in connection with the Receivables that the
Receivables have been sold to XXXX pursuant to this Agreement and the First Step
Receivables Assignments and deliver to XXXX the Schedule of Initial Receivables
or Schedule of Additional Receivables, as applicable, certified by an officer of
GMAC to be true, correct and complete.
(iv) Documents to be Delivered By GMAC.
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(1) The Assignments. On the Initial Closing Date, GMAC
shall execute and deliver the First Step Initial Receivables Assignment and on
each Additional Closing Date, GMAC shall execute and deliver a First Step
Additional Receivables Assignment.
(2) 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.
(3) Other Documents. On the Initial Closing Date and on
each Additional Closing Date, GMAC shall provide such other documents as XXXX
may reasonably request.
(v) Other Transactions. The transactions contemplated by the
Second Step Transfer and Servicing Agreements shall be consummated to the extent
that such transactions are intended to be substantially contemporaneous with the
transactions hereunder.
(b) Conditions to the Purchase of Additional Receivables. In addition
to the conditions set forth in Section 6.01(a), the obligation of XXXX to
purchase Additional Receivables hereunder and pursuant to the related First Step
Additional Receivables Assignment is subject to the satisfaction of the
following conditions:
(i) No Adverse Selection Procedures. No selection procedures
believed by GMAC to be adverse to the interests of XXXX, the Issuer, the Note
Owners or the Certificate Owners 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 Note Owners or the Certificate Owners.
(iii) Conditions Satisfied. All the conditions to the transfer of
the Additional Receivables from XXXX to the Issuer specified in Section 2.06 of
the Trust Sale and Servicing Agreement shall have been satisfied.
SECTION 6.02 Conditions To Obligation of GMAC. The obligation of GMAC to
sell the Receivables to XXXX hereunder or pursuant to the First Step Receivables
Assignments is subject to the satisfaction of the following conditions:
(a) Representations and Warranties True. The representations and
warranties of XXXX hereunder shall be true and correct as of the Initial Closing
Date with respect to the Initial Receivables and as of the Additional Closing
Date with respect to the Additional Receivables with the same effect as if then
made, and XXXX shall have performed all obligations to be performed by it
hereunder or pursuant to the First Step Receivables Assignments on or prior to
the closing hereunder.
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(b) Receivables Purchase Price. On the Initial Closing Date, XXXX
shall pay to GMAC the Initial Receivables Discounted Principal Balance and on
each Additional Closing Date, XXXX shall pay GMAC the Additional Receivables
Discounted Principal Balance, in each case, as provided in Section 2.02.
ARTICLE VII
MISCELLANEOUS PROVISIONS
SECTION 7.01 Amendment. This Agreement may be amended from time to time
(subject to any expressly applicable amendment provision of the Second Step
Transfer and Servicing Agreements) by a written amendment duly executed and
delivered by GMAC and XXXX.
SECTION 7.02 Survival. The representations and warranties of GMAC set
forth in Articles IV and V of this Agreement and of Servicer set forth in
Section 3.07 of this Agreement shall remain in full force and effect and shall
survive the Initial Closing Date and each Additional Closing Date under Section
2.03 hereof and the closing under the Second Step 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 CONSTRUED IN ACCORDANCE WITH THE DOMESTIC LAWS OF THE STATE
OF NEW YORK, WITHOUT REGARD TO THE PRINCIPLES OF CONFLICTS OF LAWS THEREOF OR OF
ANY OTHER JURISDICTION, 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 Second Step Transfer and Servicing Agreements or as
required by law.
19
SECTION 7.08 Headings. The headings of the various Articles and Sections
herein are for convenience of reference only and shall not define or limit any
of the terms or provisions hereof.
SECTION 7.09 Counterparts. This Agreement may be executed in two or more
counterparts and by different parties on separate counterparts, each of which
shall be an original, but all of which together shall constitute one and the
same instrument.
SECTION 7.10 No Petition Covenant. Notwithstanding any prior termination
of this Agreement, GMAC shall not, prior to the date which is one year and one
day after the final distribution with respect to the Notes and the Certificates
to the Note Distribution Account or the Certificate Distribution Account, as
applicable, acquiesce, petition or otherwise invoke or cause XXXX to invoke the
process of any court or government authority for the purpose of commencing or
sustaining a case against XXXX under any federal or state bankruptcy, insolvency
or similar law or appointing a receiver, liquidator, assignee, trustee,
custodian, sequestrator or other similar official of XXXX or any substantial
part of its property, or ordering the winding up or liquidation of the affairs
of XXXX.
SECTION 7.11 Limitations on Rights of Others. The provisions of this
Agreement and the First Step Receivables Assignments are solely for the benefit
of GMAC and XXXX and, to the extent expressly provided herein, the Interested
Parties, and nothing in this Agreement, whether express or implied, shall be
construed to give to any other Person any legal or equitable right, remedy or
claim in, under, or in respect of this Agreement or any covenants, conditions or
provisions contained herein.
* * * * *
20
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/ X. X. Xxxxxx
---------------------------------------
Name: X. X. Xxxxxx
Title: Manager - Securitization
CAPITAL AUTO RECEIVABLES, INC.
By: /s/ S. N. Richard
---------------------------------------
Name: S. N. Richard
Title: Project Manager - Securitization
21
EXHIBIT A
FIRST STEP INITIAL RECEIVABLES ASSIGNMENT
PURSUANT TO POOLING AND SERVICING AGREEMENT
For value received, in accordance with the Pooling and Servicing
Agreement, dated as of August 8, 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 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) except for those Initial 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
Initial Receivables; and (v) the interest of GMAC in any proceeds of the
property described in clauses (i) and (ii) above.
It is the intention of GMAC and XXXX that the transfer and assignment
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 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 Initial
Receivables, the Dealer Agreements, any insurance policies or any agreement or
instrument relating to any of them.
This First Step Initial Receivables Assignment is made pursuant to and
upon the representations, warranties and agreements on the part of the
undersigned contained in the Pooling and Servicing Agreement and is to be
governed by the Pooling and Servicing Agreement.
Capitalized terms used herein and not otherwise defined herein shall
have the meaning assigned to them in the Pooling and Servicing Agreement.
* * * * *
A-1
IN WITNESS WHEREOF, the undersigned has caused this First Step Initial
Receivables Assignment to be duly executed as of August 8, 2002.
GENERAL MOTORS ACCEPTANCE CORPORATION
By: /s/ X. X. Xxxxxx
-------------------------------
Name: X. X. Xxxxxx
Title: Manager - 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 August 8, 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 Additional
Receivables listed on the Schedule of Additional Receivables attached hereto and
(a) in the case of Additional Receivables that are Scheduled Interest
Receivables, all monies due thereunder on and after the related Additional
Cutoff Date and (b) in the case of Additional Receivables that are Simple
Interest Receivables, and all monies received thereon on and after the related
Additional Cutoff Date, in each case exclusive of any amounts allocable to the
premium for physical damage insurance force-placed by GMAC covering any related
Financed Vehicle; (ii) the interest of GMAC in the security interests in the
Financed Vehicles granted by Obligors pursuant to the Additional Receivables
and, to the extent permitted by law, any accessions thereto; (iii) except for
those Additional 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 Additional
Receivables; and (v) the interest of GMAC in any proceeds of the property
described in clauses (i) and (ii) above.
It is the intention of GMAC and XXXX that the transfer and assignment
contemplated by this First Step Additional Receivables Assignment shall
constitute a sale of the Additional Receivables from GMAC to XXXX and the
beneficial interest in and title to the Additional Receivables shall not be part
of GMAC's estate in the event of the filing of a bankruptcy petition by or
against GMAC under any bankruptcy law.
The foregoing sale does not constitute and is not intended to result in
any assumption by XXXX of any obligation of the undersigned to the Obligors,
Dealers, insurers or any other Person in connection with the Additional
Receivables, the Dealer Agreements, any insurance policies or any agreement or
instrument relating to any of them.
This First Step Additional Receivables Assignment is made pursuant to
and upon the representations, warranties and agreements on the part of the
undersigned contained in the Pooling and Servicing Agreement and is to be
governed by the Pooling and Servicing Agreement.
GMAC hereby represents that as of the Additional Cutoff Date the
Additional Receivables Discounted Principal Balance of the Additional
Receivables conveyed hereby was $[_____].
GMAC and XXXX hereby acknowledge that the Additional Receivables
Discounted Principal Balance for the Additional Receivables assigned hereunder
is $[__________ ].
This Agreement shall be construed in accordance with the laws of the
State of New York and the obligations of the undersigned under this First Tier
Additional Receivables Assignment shall be determined in accordance with such
laws.
Capitalized terms used and not otherwise defined herein shall have the
meanings assigned to such terms in, or incorporated by reference into, the
Pooling and Servicing Agreement.
* * * *
4
IN WITNESS WHEREOF, the undersigned has caused this First Step
Additional Receivables Assignment to be duly executed as of _______________,
200__.
GENERAL MOTORS ACCEPTANCE CORPORATION
By: /s/ X. X. Xxxxxx
----------------------------------
Name: X. X. Xxxxxx
Title: Manager - Securitization
5
APPENDIX A
Part I
For ease of reference, capitalized terms defined herein have
been consolidated with and are contained in Appendix A to the Trust Sale and
Servicing Agreement of even date herewith among GMAC, XXXX and Capital Auto
Receivables Asset Trust 2002-3, as amended and supplemented from time to time.
Part II
For ease of reference, the rules of construction have been
consolidated with and are contained in Part II of Appendix A to the Trust Sale
and Servicing Agreement of even date herewith among GMAC, XXXX and Capital Auto
Receivables Asset Trust 2002-3, as amended and supplemented from time to time.
Part III
For ease of reference, the notice addresses and procedures
have been consolidated with and are contained in Appendix B to the Trust Sale
and Servicing Agreement of even date herewith among GMAC, XXXX and Capital Auto
Receivables Asset Trust 2002-3, as amended and supplemented from time to time.
6
APPENDIX B
Additional Representations and Warranties
1. While it is the intention of GMAC and XXXX that the transfer and
assignment contemplated by this Agreement and the First Step
Receivables Assignments shall constitute sales of the Purchased
Property from GMAC to XXXX, this Agreement, the Trust Sale and
Servicing Agreement and the Indenture create a valid and continuing
security interest (as defined in the applicable UCC) in the Purchased
Property in favor of XXXX, 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
