EXHIBIT 99.3
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POOLING AND SERVICING AGREEMENT
BETWEEN
CAPITAL AUTO RECEIVABLES, INC.
AND
GENERAL MOTORS ACCEPTANCE CORPORATION
DATED AS OF JUNE 11, 2003
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TABLE OF CONTENTS
PAGE
ARTICLE I DEFINITIONS.................................................................... 1
SECTION 1.01 Definitions...................................................... 1
SECTION 1.02 Owner of a Receivable............................................ 2
ARTICLE II PURCHASE AND SALE OF RECEIVABLES.............................................. 2
SECTION 2.01 Purchase and Sale of Receivables................................. 2
SECTION 2.02 Receivables Purchase Price....................................... 3
SECTION 2.03 The Closing...................................................... 3
SECTION 2.04 Custody of Receivable Files...................................... 3
ARTICLE III ADMINISTRATION AND SERVICING OF RECEIVABLES.................................. 4
SECTION 3.01 Duties of the Servicer........................................... 4
SECTION 3.02 Collection of Receivable Payments................................ 5
SECTION 3.03 Rebates on Full Prepayments on Scheduled Interest Receivables.... 5
SECTION 3.04 Realization Upon Liquidating Receivables......................... 5
SECTION 3.05 Maintenance of Insurance Policies................................ 6
SECTION 3.06 Maintenance of Security Interests in Vehicles.................... 6
SECTION 3.07 Covenants, Representations and Warranties of the Servicer........ 6
SECTION 3.08 Purchase of Receivables Upon Breach of Covenant.................. 8
SECTION 3.09 Total Servicing Fee; Payment of Certain Expenses by Servicer..... 8
SECTION 3.10 Servicer's Accounting............................................ 8
SECTION 3.11 Application of Collections....................................... 9
ARTICLE IV REPRESENTATIONS AND WARRANTIES................................................ 9
SECTION 4.01 Representations and Warranties as to the Receivables............. 9
SECTION 4.02 Additional Representations and Warranties of GMAC................ 12
SECTION 4.03 Representations and Warranties of ▇▇▇▇........................... 13
ARTICLE V ADDITIONAL AGREEMENTS.......................................................... 14
SECTION 5.01 Conflicts With Further Transfer and Servicing Agreements......... 14
SECTION 5.02 Protection of Title;............................................. 14
SECTION 5.03 Other Liens or Interests......................................... 15
SECTION 5.04 Repurchase Events................................................ 15
SECTION 5.05 Indemnification.................................................. 16
SECTION 5.06 Further Assignments.............................................. 16
SECTION 5.07 Pre-Closing Collections.......................................... 16
ARTICLE VI CONDITIONS.................................................................... 16
SECTION 6.01 Conditions to Obligation of ▇▇▇▇................................. 16
SECTION 6.02 Conditions To Obligation of GMAC................................. 17
ARTICLE VII MISCELLANEOUS PROVISIONS..................................................... 17
SECTION 7.01 Amendment........................................................ 17
SECTION 7.02 Survival......................................................... 17
SECTION 7.03 Notices.......................................................... 17
SECTION 7.04 GOVERNING LAW.................................................... 18
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SECTION 7.05 Waivers.......................................................... 18
SECTION 7.06 Costs and Expenses............................................... 18
SECTION 7.07 Confidential Information......................................... 18
SECTION 7.08 Headings......................................................... 18
SECTION 7.09 Counterparts..................................................... 18
SECTION 7.10 No Petition Covenant............................................. 18
SECTION 7.11 Limitations on Rights of Others.................................. 18
EXHIBIT A Form of First Step Receivables Assignment
SCHEDULE A Schedule of Receivables
APPENDIX A Definitions, Rules of Construction and Notices
APPENDIX B Additional Representations and Warranties
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THIS POOLING AND SERVICING AGREEMENT, dated as of June 11, 2003,
between CAPITAL AUTO RECEIVABLES, INC., a Delaware corporation ("▇▇▇▇"), 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, ▇▇▇▇ desires to purchase on the date hereof a portfolio of
automobile and light truck retail instalment sale contracts and related rights
owned by GMAC;
WHEREAS, GMAC is willing to sell such contracts and related rights to
▇▇▇▇;
WHEREAS, ▇▇▇▇ may wish to sell or otherwise transfer on the date hereof
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 ▇▇▇▇ and, by its execution
of the Further Transfer and Servicing Agreements, will be willing to service
such contracts in accordance with the terms of such Further Transfer and
Servicing Agreements for the benefit of the Issuer and each other party
identified or described herein or in the Further Transfer and Servicing
Agreements as having an interest as owner, trustee, secured party, or holder of
Securities (the Issuer and all such parties under the Further Transfer and
Servicing Agreements being "Interested Parties") with respect to such contracts,
and the proceeds thereof, as the interests of such parties may appear from time
to time.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants herein contained, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01 Definitions. Certain capitalized terms used in this
Agreement are defined in and shall have the respective meanings assigned to them
in Part I of Appendix A to this Agreement. All references herein to "the
Agreement" or "this Agreement" are to this Pooling and Servicing Agreement as it
may be amended, supplemented or modified from time to time, and all references
herein to Articles and Sections are to Articles or Sections of this
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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 ▇▇▇▇ until the sale, transfer, assignment or
other conveyance of such Receivable by ▇▇▇▇ pursuant to the terms of the Further
Transfer and Servicing Agreements, and thereafter shall mean the Issuer;
provided, that GMAC or ▇▇▇▇, as applicable, shall be the "Owner" of any
Receivable from and after the time that such Person shall acquire such
Receivable, whether pursuant to Section 3.08 or 5.04 of this Agreement, any
provision of the Further Transfer and Servicing Agreements or otherwise.
ARTICLE II
PURCHASE AND SALE OF RECEIVABLES
SECTION 2.01 Purchase and Sale of Receivables.
(a) Purchase. On the Closing Date, subject to
satisfaction of the conditions specified in Article VI and the First Step
Receivables Assignment (and, in any event, immediately prior to consummation of
the related transactions contemplated by the Further Transfer and Servicing
Agreements, if any), GMAC shall sell, transfer, assign and otherwise convey to
▇▇▇▇, without recourse:
(i) all right, title and interest of GMAC in, to
and under the Receivables listed on the Schedule of Receivables and (A) in the
case of Receivables that are Scheduled Interest Receivables, all monies due
thereunder on and after the Cutoff Date and (B) in the case of Receivables that
are Simple Interest Receivables, all monies received thereon on and after the
Cutoff Date, in each case, exclusive of any amounts allocable to the premium for
physical damage insurance force-placed by GMAC covering any related Financed
Vehicle;
(ii) the interest of GMAC in the security
interests in the Financed Vehicles granted by Obligors pursuant to the
Receivables and, to the extent permitted by law, any accessions thereto;
(iii) the interest of GMAC in any proceeds from
claims on any physical damage, credit life, credit disability or other insurance
policies covering Financed Vehicles or Obligors;
(iv) the interest of GMAC in any proceeds from
recourse against Dealers on the Receivables;
(v) all right, title and interest of the Seller
in, to and under the First Step 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 "Purchased Property."
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(b) [Intentionally Omitted].
(c) It is the intention of GMAC and ▇▇▇▇ that the
transfer and assignment of Receivables contemplated by this Agreement and the
First Step Receivables Assignment shall constitute a sale of the Receivables
from GMAC to ▇▇▇▇ 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 Assignment does
not constitute and is not intended to result in any assumption by ▇▇▇▇ of any
obligation of GMAC to the Obligors, Dealers, insurers or any other Person in
connection with the Receivables, any Dealer Agreements, any insurance policies
or any agreement or instrument relating to any of them.
SECTION 2.02 Receivables Purchase Price. In consideration for the
Purchased Property, ▇▇▇▇ shall, on the Closing Date, pay to GMAC an amount equal
to the Initial Aggregate Discounted Principal Balance in respect of the
Receivables and GMAC shall execute and deliver to ▇▇▇▇ an assignment in the form
attached hereto as Exhibit A (the "First Step Receivables Assignment"). The
Initial Aggregate Discounted Principal Balance, which is equal to
$3,008,661,344.19, shall be paid to GMAC in immediately available funds.
SECTION 2.03 The Closing. The sale and purchase of the Receivables
shall take place at the offices of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇, on the Closing Date at a time mutually agreeable to GMAC and
▇▇▇▇, and will occur simultaneously with the closing of transactions
contemplated by the Further Transfer and Servicing Agreements.
SECTION 2.04 Custody of Receivable Files. In connection with the sale,
transfer and assignment of the Receivables to ▇▇▇▇ pursuant to this Agreement
and the First Step Receivables Assignment, ▇▇▇▇, simultaneously with the
execution and delivery of this Agreement, shall enter into the Custodian
Agreement with the Custodian, pursuant to which ▇▇▇▇ shall revocably appoint the
Custodian, and the Custodian shall accept such appointment, to act as the agent
of ▇▇▇▇ as Custodian of the following documents or instruments which shall be
constructively delivered to ▇▇▇▇ 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 Further Transfer and Servicing
Agreements. The Servicer's duties shall include collection and posting of all
payments, responding to inquiries of Obligors, investigating delinquencies,
sending payment coupons to Obligors, reporting tax information to Obligors,
policing the collateral, accounting for collections and furnishing monthly and
annual statements to the Owner of any Receivables with respect to distributions,
generating federal income tax information and performing the other duties
specified herein. Subject to the provisions of Section 3.02, the Servicer shall
follow its customary standards, policies and procedures and shall have full
power and authority, acting alone, to do any and all things in connection with
such managing, servicing, administration and collection that it may deem
necessary or desirable. Without limiting the generality of the foregoing, the
Servicer is hereby authorized and empowered by the Owner of the Receivables,
pursuant to this Section 3.01, to execute and deliver, on behalf of all
Interested Parties, or any of them, any and all instruments of satisfaction or
cancellation, or of partial or full release or discharge, and all other
comparable instruments, with respect to the Receivables and the Financed
Vehicles. The Servicer is hereby authorized to commence, in its own name or in
the name of the Owner of such Receivable a legal proceeding to enforce a
Liquidating Receivable as contemplated by Section 3.04, to enforce all
obligations of GMAC and ▇▇▇▇ under this Agreement and under the Further Transfer
and Servicing Agreements or to commence or participate in a legal proceeding
(including without limitation a bankruptcy proceeding) relating to or involving
a Receivable or a Liquidating Receivable. If the Servicer commences or
participates in such a legal proceeding in its own name, the Servicer is hereby
authorized and empowered by the Owner of the Receivables pursuant to this
Section 3.01, to obtain possession of the related Financed Vehicle and
immediately and without further action on the part of the Owner or the Servicer,
the Owner of such Receivable shall thereupon automatically assign in trust such
Receivable and the security interest in the related Financed Vehicle to the
Servicer for the benefit of the Interested Parties for purposes of commencing or
participating in any such proceeding as a party or claimant. Upon such automatic
assignment, the Servicer will be, and will have all the rights and duties of, a
secured party under the UCC and other applicable law with respect to such
Receivable and the related Financed Vehicle. At the Servicer's request from time
to time, the Owner of a Receivable assigned under this Section 3.01 shall
provide the Servicer with evidence of the assignment in trust for the benefit of
the Interested Parties as may be reasonably necessary for the Servicer to take
any of the actions set forth in the following sentence. The Servicer is hereby
authorized and empowered by the Owner of a Receivable to execute and deliver in
the Servicer's name any notices, demands, claims, complaints, responses,
affidavits or other documents or instruments in connection with any such
proceeding. Any Owner of Receivables shall furnish the Servicer with any powers
of attorney
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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. Except as provided in Section 3.07(a)(iii), the Servicer is hereby
authorized to grant extensions, rebates or adjustments on a Receivable without
the prior consent of the Owner of such Receivable. The Servicer is authorized in
its discretion to waive any prepayment charge, late payment charge or any other
fees that may be collected in the ordinary course of servicing such Receivable.
SECTION 3.03 Rebates on Full Prepayments on Scheduled Interest
Receivables. If the amount of a full Prepayment by an Obligor under a Scheduled
Interest Receivable, after adjustment for the Rebate, is less than the amount
that would be payable under the actuarial method if a full Prepayment were made
at the end of the billing month under such Scheduled Interest Receivable, either
because the Rebate calculated under the terms of such Receivable is greater than
the amount calculable under the actuarial method or because the Servicer's
customary servicing procedure is to credit a greater Rebate, the Servicer, as
part of its servicing duties, shall remit such difference to the Owner of such
Receivable.
SECTION 3.04 Realization Upon Liquidating Receivables. The Servicer
shall use reasonable efforts, consistent with its customary servicing
procedures, to repossess or otherwise comparably convert the ownership of any
Financed Vehicle that it has reasonably determined should be repossessed or
otherwise converted following a default under the Receivable secured by the
Financed Vehicle. The Servicer is authorized to follow such practices, policies
and procedures as it follows with respect to comparable automotive receivables
that it services for itself or others, which practices, policies and procedures
may include reasonable efforts to realize upon any recourse to Dealers, selling
the related Financed Vehicle at public or private sale and other actions by the
Servicer in order to realize upon such a Receivable. The Servicer is hereby
authorized to exercise its discretion consistent with its customary servicing
procedures and the terms of this Agreement, in servicing Liquidating Receivables
so as to maximize the realization of those Liquidating Receivables, including
the discretion to choose to sell or not to sell any of the Liquidating
Receivables on behalf of ▇▇▇▇ or any other Owner. The Servicer shall not be
liable for any such exercise of its discretion made in good faith. The foregoing
is subject to the provision that, in any case in which the Financed Vehicle
shall have suffered damage, the Servicer shall not expend funds in connection
with any repair or towards the repossession of such Financed Vehicle unless it
shall determine in its discretion that such repair and/or repossession shall
increase the proceeds of liquidation of the related Receivable by an amount
greater than the amount of such expenses. The Servicer shall be entitled to
receive Liquidation Expenses with respect to each Liquidating Receivable at such
time as the Receivable becomes a
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Liquidating Receivable (or as may otherwise be provided in the Further Transfer
and Servicing Agreements).
SECTION 3.05 Maintenance of Insurance Policies. The Servicer shall, in
accordance with its customary servicing procedures, require that each Obligor
shall have obtained physical damage insurance covering the Financed Vehicle as
of the execution of the related Receivable. The Servicer shall, in accordance
with its customary servicing procedures, monitor such physical damage insurance
with respect to each Receivable.
SECTION 3.06 Maintenance of Security Interests in Vehicles. The
Servicer shall, in accordance with its customary servicing procedures and at its
own expense, take such steps as are necessary to maintain perfection of the
security interest created by each Receivable in the related Financed Vehicle.
The Owner of each Receivable hereby authorizes the Servicer to re-perfect such
security interest on behalf of such Owner, as necessary because of the
relocation of a Financed Vehicle, or for any other reason.
SECTION 3.07 Covenants, Representations and Warranties of the Servicer.
As of the Closing Date, the Servicer hereby makes the following representations,
warranties and covenants on which ▇▇▇▇ relies in accepting the Receivables
hereunder and pursuant to the First Step Receivables Assignment, and on which
the Issuer shall rely in accepting such Receivables and executing and delivering
the Securities under the Further Transfer and Servicing Agreements.
(a) The Servicer covenants that from and after the closing
hereunder:
(i) Liens in Force. Except as contemplated in
this Agreement or the Further Transfer and Servicing Agreements, the Servicer
shall not release in whole or in part any Financed Vehicle from the security
interest securing the related Receivable;
(ii) No Impairment. The Servicer shall do nothing
to impair the rights or security interest of ▇▇▇▇ 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 ▇▇▇▇ that as of the Closing Date in addition to the representations
and warranties in Sections 4.01 and 4.02 being true that as of the Closing Date:
(i) Organization and Good Standing. The Servicer
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
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properties are presently owned and such business is presently conducted, and had
at all relevant times, and now has, power, authority and legal right to service
the Receivables as provided herein and in the Further Transfer and Servicing
Agreements;
(ii) Due Qualification. The Servicer is duly
qualified to do business as a foreign corporation in good standing, and has
obtained all necessary licenses and approvals, in all jurisdictions in which the
ownership or lease of property or the conduct of its business (including the
servicing of the Receivables) requires or shall require such qualification;
(iii) Power and Authority. The Servicer has the
power and authority to execute and deliver this Agreement and the Further
Transfer and Servicing Agreements and to carry out the terms of such agreements;
and the Servicer's execution, delivery and performance of this Agreement and the
Further Transfer and Servicing Agreements have been duly authorized by the
Servicer by all necessary corporate action;
(iv) Binding Obligation. The Further Transfer and
Servicing Agreements and this Agreement, when duly executed and delivered, shall
constitute the legal, valid and binding obligations of the Servicer enforceable
in accordance with their respective terms, except as enforceability may be
limited by bankruptcy, insolvency, reorganization, or other similar laws
affecting the enforcement of creditors' rights in general and by general
principles of equity, regardless of whether such enforceability is considered in
a proceeding in equity or at law;
(v) No Violation. The consummation by the
Servicer of the transactions contemplated by this Agreement and the Further
Transfer and Servicing Agreements, and the fulfillment by the Servicer of the
terms hereof and thereof, shall not conflict with, result in any breach of any
of the terms and provisions of, or constitute (with or without notice or lapse
of time) a default under, the articles of incorporation or by-laws of the
Servicer, or any indenture, agreement, mortgage, deed of trust or other
instrument to which the Servicer is a party or by which it is bound, or result
in the creation or imposition of any Lien upon any of its properties pursuant to
the terms of any such indenture, agreement, mortgage, deed of trust or other
instrument, other than this Agreement and the Further Transfer and Servicing
Agreements, or violate any law or, to the best of the Servicer's knowledge, any
order, rule or regulation applicable to the Servicer of any court or of any
federal or state regulatory body, administrative agency or other governmental
instrumentality having jurisdiction over the Servicer or any of its properties;
(vi) No Proceedings. To the Servicer's knowledge,
there are no proceedings or investigations pending, or threatened, before any
court, regulatory body, administrative agency or other tribunal or governmental
instrumentality having jurisdiction over the Servicer or its properties (A)
asserting the invalidity of this Agreement and the Further Transfer and
Servicing Agreements or any Securities issued thereunder, (B) seeking to prevent
the issuance of such Securities or the consummation of any of the transactions
contemplated by the Further Transfer and Servicing Agreements, or (C) seeking
any determination or ruling that might materially and adversely affect this
Agreement, the performance by the Servicer of its obligations under, or the
validity or enforceability of, the Further Transfer and Servicing Agreements;
and
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(vii) Reasonable Liquidation Expenses. The amounts
defined as "Liquidation Expenses" are a reasonable estimate of such expenses,
reasonably related to the Servicer's experience for such expenses in servicing
comparable automotive receivables.
SECTION 3.08 Purchase of Receivables Upon Breach of Covenant. Upon
discovery by any of the Servicer, ▇▇▇▇ or any party under the Further Transfer
and Servicing Agreements of a breach of any of the covenants set forth in
Sections 3.06 and 3.07(a), the party discovering such breach shall give prompt
written notice thereof to the others. As of the last day of the second Monthly
Period following its discovering or receiving notice of such breach (or, at the
Servicer's election, the last day of the first Monthly Period so following), the
Servicer shall, unless it shall have cured such breach in all material respects,
purchase from the Owner thereof any Receivable materially and adversely affected
by such breach as determined by such Owner and, on the related Distribution
Date, the Servicer shall pay the Administrative Purchase Payment, and shall be
entitled to receive the Released Administrative Amount, if any. It is understood
and agreed that the obligation of the Servicer to purchase any Receivable with
respect to which such a breach has occurred and is continuing shall, if such
obligation is fulfilled, constitute the sole remedy against the Servicer for
such breach available to ▇▇▇▇ 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 ▇▇▇▇ 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 ▇▇▇▇ 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 ▇▇▇▇ is the Owner, the Servicer shall
deliver to ▇▇▇▇ such accountings relating to such Receivables and the actions of
the Servicer with respect thereto as ▇▇▇▇ may reasonably request.
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SECTION 3.11 Application of Collections. For the purposes of this
Agreement and the Further Transfer and Servicing Agreements, no later than each
Distribution Date all collections for the related Monthly Period shall be
applied by the Servicer as follows:
(a) With respect to each Scheduled Interest Receivable
(other than an Administrative Receivable or a Warranty Receivable), payments by
or on behalf of the Obligor which are not Supplemental Servicing Fees shall be
applied first to reduce outstanding advances of shortfalls in collections, if
any, made pursuant to the Further Transfer and Servicing Agreements with respect
to such Receivable. Next, the amount of any such payments in excess of
Supplemental Servicing Fees and any such advances with respect to such
Receivable shall be applied to the Scheduled Payment with respect to such
Receivable. Any amount of such payments remaining after the applications
described in the preceding two sentences constitutes an Excess Payment with
respect to such Receivable, and such Excess Payment (to the extent it does not
constitute a Payment Ahead) shall be applied to prepay such Receivable. If the
amounts applied under the first two sentences of this Section 3.11(a) shall be
less than the Scheduled Payment, whether as a result of any extension granted to
the Obligor or otherwise, then the Deferred Prepayment, if any, with respect to
such Receivable shall be applied by the Servicer to the extent of the shortfall,
and such Deferred Prepayment shall be reduced accordingly.
(b) With respect to all Simple Interest Receivables
(other than Administrative Receivables and Warranty Receivables), payments by or
on behalf of the Obligors which are not Supplemental Servicing Fees shall be
applied first to the payment to the Servicer of Excess Simple Interest
Collections, if any, and next to principal and interest on all such Simple
Interest Receivables.
(c) With respect to each Administrative Receivable and
Warranty Receivable, payments by or on behalf of the Obligor shall be applied in
the same manner, except that any Released Administrative Amount or Released
Warranty Amount shall be remitted to the Servicer or ▇▇▇▇, 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 ▇▇▇▇ relies in accepting the Receivables. Such representations and
warranties speak as of the Closing Date, and shall survive the sale, transfer
and assignment of the Receivables to ▇▇▇▇ and the subsequent assignment and
transfer pursuant to the Further Transfer and Servicing Agreements:
(a) Characteristics of Receivables.
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Each Receivable:
(i) is secured by a Financed Vehicle, was
originated in the United States by a Dealer for the retail sale of a Financed
Vehicle in the ordinary course of such Dealer's business, was fully and properly
executed by the parties thereto, was purchased by GMAC from such Dealer under an
existing Dealer Agreement, and was validly assigned by such Dealer to GMAC in
accordance with its terms,
(ii) has created or shall create a valid, binding
and enforceable first priority security interest in favor of GMAC in the
Financed Vehicle, which security interest is assignable by GMAC to ▇▇▇▇,
(iii) contains customary and enforceable
provisions such as to render the rights and remedies of the holder thereof
adequate for realization against the collateral of the benefits of the security,
(iv) is a Scheduled Interest Receivable or a
Simple Interest Receivable,
(v) provides for level monthly payments
(provided that the payment in the first month and the final month of the life of
the Receivable may be different from the level payment) that shall amortize the
Amount Financed by maturity and shall yield interest at the Annual Percentage
Rate,
(vi) has an original term of not less than six
and not greater than 60 months and a remaining term of not less than six months,
(vii) has been acquired by GMAC under one of its
"special incentive rate financing programs," as such term is defined by the
Servicer on the date such Receivable was originated, designed to encourage
purchases of new cars and light trucks manufactured by General Motors
Corporation;
(viii) has a first payment due date on or after
November 1, 1998;
(ix) was originated on or after September 1,
1998;
(x) as of the Cutoff Date, was not considered
past due, that is, the payments due on that Receivable in excess of $25 have
been received within 30 days of the payment date, and was not a Liquidating
Receivable.
In addition, Scheduled Interest Receivables represent (based
on Principal Balances) 10% of the Aggregate Principal Balance, with the balance
of the Receivables being Simple Interest Receivables.
(b) Creation, Perfection and Priority of Security
Interests. The representations and warranties regarding creation, perfection and
priority of security interests in the Purchased Property, which are attached to
this Agreement as Appendix B, are true and correct to the extent that they are
applicable.
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(c) Schedule of Receivables. The information set forth in
the Schedule of Receivables is true and correct in all material respects, and no
selection procedures believed to be adverse to ▇▇▇▇ 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
▇▇▇▇▇▇▇▇-▇▇▇▇ Warranty Act, the Federal Reserve Board's Regulations "B" and "Z",
the Soldiers' and Sailors' Civil Relief Act of 1940, the Texas Consumer Credit
Code, and state adaptations of the National Consumer Act and of the Uniform
Consumer Credit Code and other consumer credit laws and equal credit opportunity
and disclosure laws, in respect of any of the Receivables and other Purchased
Property, have been complied with in all material respects, and each Receivable
and the sale of the Financed Vehicle evidenced thereby complied at the time it
was originated or made and now complies in all material respects with all legal
requirements of the jurisdiction in which it was originated or made;
(e) Binding Obligation. Each Receivable represents the
genuine, legal, valid and binding payment obligation in writing of the Obligor
thereon, enforceable by the holder thereof in accordance with its terms, except
as enforceability may be limited by bankruptcy, insolvency, reorganization or
similar laws affecting the enforcement of creditors' rights in general and by
equity, regardless of whether such enforceability is considered in a proceeding
in equity or at law;
(f) Security Interest in Financed Vehicle. Immediately
prior to the sale, transfer and assignment thereof pursuant hereto and the First
Step Receivables Assignment, each Receivable was secured by a validly perfected
first priority security interest in the Financed Vehicle in favor of GMAC as
secured party or all necessary and appropriate action had been commenced that
would result in the valid perfection of a first priority security interest in
the Financed Vehicle in favor of GMAC as secured party;
(g) Receivables In Force. No Receivable has been
satisfied, subordinated or rescinded, and the Financed Vehicle securing each
such Receivable has not been released from the lien of the related Receivable in
whole or in part;
(h) No Waiver. Since the Cutoff Date, no provision of a
Receivable has been waived, altered or modified in any respect;
(i) No Defenses. No right of rescission, setoff,
counterclaim or defense has been asserted or threatened with respect to any
Receivable;
(j) No Liens. 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
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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 ▇▇▇▇; immediately prior to
the conveyance of the Receivables pursuant to this Agreement and the First Step
Receivables Assignment, GMAC had good and marketable title thereto, free of any
Lien; and, upon execution and delivery of this Agreement by GMAC, ▇▇▇▇ 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 ▇▇▇▇ 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 ▇▇▇▇ as of the Closing Date, both in its
capacity as the seller of the Receivables hereunder and in its capacity as
Servicer, that:
(a) Organization and Good Standing. GMAC has been duly
organized and is validly existing as a corporation in good standing under the
laws of the State of Delaware, with power and authority to own its properties
and to conduct its business as such properties are presently owned and such
business is presently conducted;
(b) Due Qualification. GMAC is duly qualified to do
business as a foreign corporation in good standing, and has obtained all
necessary licenses and approvals, in all
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jurisdictions in which the ownership or lease of property or the conduct of its
business (including the servicing of the Receivables) requires or shall require
such qualification;
(c) Power and Authority. GMAC has the power and authority
to execute and deliver this Agreement and the First Step Receivables Assignment
and to carry out its terms; GMAC has full power and authority to sell and assign
the property to be sold and assigned to ▇▇▇▇ and to service the Receivables as
provided herein and in the Further Transfer and Servicing Agreements, has duly
authorized such sale and assignment to ▇▇▇▇ by all necessary corporate action;
and the execution, delivery and performance of this Agreement and the First Step
Receivables Assignment have been duly authorized by GMAC by all necessary
corporate action;
(d) Valid Sale; Binding Obligation. This Agreement and
the First Step Receivables Assignment, when duly executed and delivered, shall
constitute a valid sale, transfer and assignment of the Receivables, enforceable
against creditors of and purchasers from GMAC; and this Agreement together with
the First Step Receivables Assignment, when duly executed and delivered, shall
constitute a legal, valid and binding obligation of GMAC enforceable in
accordance with its terms, except as enforceability may be limited by
bankruptcy, insolvency, reorganization or other similar laws affecting the
enforcement of creditors' rights in general and by general principles of equity,
regardless of whether such enforceability is considered in a proceeding in
equity or at law;
(e) No Violation. The consummation of the transactions
contemplated by this Agreement and the First Step Receivables Assignment and the
fulfillment of the terms of this Agreement and the First Step Receivables
Assignment shall not conflict with, result in any breach of any of the terms and
provisions of, or constitute (with or without notice or lapse of time) a default
under, the articles of incorporation or by-laws of GMAC, or any indenture,
agreement, mortgage, deed of trust or other instrument to which GMAC is a party
or by which it is bound, or result in the creation or imposition of any Lien
upon any of its properties pursuant to the terms of any such indenture,
agreement, mortgage, deed of trust or other instrument, other than this
Agreement and the First Step Receivables Assignment or violate any law or, to
the best of GMAC's knowledge, any order, rule or regulation applicable to GMAC
of any court or of any federal or state regulatory body, administrative agency
or other governmental instrumentality having jurisdiction over GMAC or any of
its properties;
(f) No Proceedings. To GMAC's knowledge, there are no
proceedings or investigations pending, or threatened, before any court,
regulatory body, administrative agency or other tribunal or governmental
instrumentality having jurisdiction over GMAC or its properties (A) asserting
the invalidity of this Agreement and the First Step Receivables Assignment, (B)
seeking to prevent the consummation of any of the transactions contemplated by
this Agreement and the First Step Receivables Assignment, or (C) seeking any
determination or ruling that might materially and adversely affect the
performance by GMAC of its obligations under, or the validity or enforceability
of, this Agreement and the First Step Receivables Assignment;
SECTION 4.03 Representations and Warranties of ▇▇▇▇. ▇▇▇▇ hereby
represents and warrants to GMAC as of the Closing Date:
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(a) Organization and Good Standing. ▇▇▇▇ 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. ▇▇▇▇ 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. ▇▇▇▇ has the power and authority
to execute and deliver this Agreement and the First Step Receivables Assignment
and to carry out its terms and the execution, delivery and performance of this
Agreement and the First Step Receivables Assignment have been duly authorized by
▇▇▇▇ by all necessary corporate action;
(d) No Violation. The consummation of the transactions
contemplated by this Agreement and the First Step Receivables Assignment and the
fulfillment of the terms of this Agreement and the First Step Receivables
Assignment shall not conflict with, result in any breach of any of the terms and
provisions of or constitute (with or without notice or lapse of time) a default
under, the certificate of incorporation or by-laws of ▇▇▇▇, or any indenture,
agreement, mortgage, deed of trust or other instrument to which ▇▇▇▇ 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 ▇▇▇▇ of any court or of any federal or state
regulatory body, administrative agency or other governmental instrumentality
having jurisdiction over ▇▇▇▇ 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 ▇▇▇▇ or its properties (i) asserting
the invalidity of this Agreement and the First Step Receivables Assignment, or
(ii) seeking any determination or ruling that might materially and adversely
affect the performance by ▇▇▇▇ of its obligations under, or the validity or
enforceability of, this Agreement and the First Step Receivables Assignment.
ARTICLE V
ADDITIONAL AGREEMENTS
SECTION 5.01 Conflicts With Further Transfer and Servicing Agreements.
To the extent that any provision of Sections 5.02 through 5.04 of this Agreement
conflicts with any provision of the Further Transfer and Servicing Agreements,
the Further Transfer and Servicing Agreements shall govern.
SECTION 5.02 Protection of Title; Filings. GMAC shall authorize and
execute, as applicable, and file such financing statements and cause to be
authorized and executed, as
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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 ▇▇▇▇ under this Agreement and the First Step Receivables
Assignment in the Receivables and the other Purchased Property and in the
proceeds thereof. GMAC shall deliver (or cause to be delivered) to ▇▇▇▇
file-stamped copies of, or filing receipts for, any document filed as provided
above, as soon as available following such filing GMAC hereby authorizes ▇▇▇▇
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 ▇▇▇▇ at least 60 days prior
written notice thereof.
(c) Executive Office; Maintenance of Offices. GMAC shall
give ▇▇▇▇ at least 60 days prior written notice of any relocation of its
principal executive office if, as a result of such relocation, the applicable
provisions of the UCC would require the filing of any amendment of any
previously filed financing or continuation statement or of any new financing
statement. GMAC shall at all times maintain each office from which it services
Receivables and its principal executive office within the United States of
America.
(d) New Debtor. In the event that GMAC shall change the
jurisdiction in which it is incorporated or otherwise enter into any transaction
which would result in a "new debtor" (as defined in the UCC) succeeding to the
obligations of GMAC hereunder, GMAC shall comply fully with the obligations of
Section 5.02(a).
SECTION 5.03 Other Liens or Interests. Except for the conveyances
hereunder and under the First Step Receivables Assignment 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 ▇▇▇▇
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 ▇▇▇▇ of such of its right, title and interest in, to and under
this Agreement and the First Step Receivables Assignment to the Issuer as shall
be provided in the Further Transfer and Servicing Agreements. GMAC hereby
covenants and agrees with ▇▇▇▇ for the benefit of ▇▇▇▇ 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 ▇▇▇▇ hereunder. Upon the occurrence of a Repurchase Event with
respect to a Receivable for which ▇▇▇▇ is the Owner, GMAC agrees to repurchase
such Receivable from ▇▇▇▇ 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,
15
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 ▇▇▇▇ or any Interested Party.
SECTION 5.05 Indemnification. GMAC shall indemnify ▇▇▇▇ 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 ▇▇▇▇ may,
pursuant to the Further Transfer and Servicing Agreements, sell the Receivables
to the Issuer and assign its rights hereunder and under the First Step
Receivables Assignment to the Issuer, subject to the terms and conditions of the
Further Transfer and Servicing Agreements, and that the Issuer may in turn
further pledge, assign or transfer its rights in the Receivables and this
Agreement and the First Step Receivables Assignment. GMAC further acknowledges
that ▇▇▇▇ may assign its rights under the Custodian Agreement to the Issuer.
SECTION 5.07 Pre-Closing Collections. Within two Business Days after
the Closing Date, GMAC shall transfer to the account or accounts designated by
▇▇▇▇ (or by the Issuer under the Further Transfer and Servicing Agreements) all
collections on the Receivables held by GMAC on the Closing Date and conveyed to
▇▇▇▇ 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 ▇▇▇▇. The obligation of ▇▇▇▇
to purchase the Receivables hereunder and pursuant to the First Step Receivables
Assignment is subject to the satisfaction of the following conditions:
(a) Representations and Warranties True. The
representations and warranties of GMAC hereunder shall be true and correct at
the time of the Closing Date with the same effect as if then made, and GMAC
shall have performed all obligations to be performed by it hereunder on or prior
to the Closing Date.
(b) No Repurchase Event. No Repurchase Event shall have
occurred on or prior to the Closing Date.
(c) Computer Files Marked. GMAC shall, at its own
expense, on or prior to the Closing Date, indicate in its computer files created
in connection with the Receivables that the Receivables have been sold to ▇▇▇▇
pursuant to this Agreement and the First Step Receivables Assignment and deliver
to ▇▇▇▇ the Schedule of Receivables certified by an officer of GMAC to be true,
correct and complete.
(d) Documents to be Delivered By GMAC.
16
(1) The Assignment. On the Closing
Date, GMAC shall execute and deliver the First Step Receivables Assignment.
(2) Evidence of UCC Filing. On or prior
to the Closing Date, GMAC shall record and file, at its own expense, a UCC-1
financing statement in each jurisdiction in which required by applicable law,
authorized by and naming GMAC as seller or debtor, naming ▇▇▇▇ 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 ▇▇▇▇. GMAC shall deliver a file-stamped copy,
or other evidence satisfactory to ▇▇▇▇ of such filing, to ▇▇▇▇ on or prior to
the Closing Date.
(3) Other Documents. On the Closing
Date, GMAC shall provide such other documents as ▇▇▇▇ 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.
SECTION 6.02 Conditions To Obligation of GMAC. The obligation of GMAC
to sell the Receivables to ▇▇▇▇ hereunder or pursuant to the First Step
Receivables Assignment is subject to the satisfaction of the following
conditions:
(a) Representations and Warranties True. The
representations and warranties of ▇▇▇▇ hereunder shall be true and correct as of
the Closing Date with the same effect as if then made, and ▇▇▇▇ shall have
performed all obligations to be performed by it hereunder or pursuant to the
First Step Receivables Assignment on or prior to the closing hereunder.
(b) Receivables Purchase Price. On the Closing Date, ▇▇▇▇
shall pay to GMAC the Initial Aggregate Discounted Principal Balance as provided
in Section 2.02.
ARTICLE VII
MISCELLANEOUS PROVISIONS
SECTION 7.01 Amendment. This Agreement may be amended from time to time
(subject to any expressly applicable amendment provision of the Further Transfer
and Servicing Agreements) by a written amendment duly executed and delivered by
GMAC and ▇▇▇▇.
SECTION 7.02 Survival. The representations and warranties of GMAC set
forth in Articles IV and V of this Agreement and of Servicer set forth in
Section 3.07 of this Agreement shall remain in full force and effect and shall
survive the Closing Date under Section 2.03 hereof and the closing under the
Further Transfer and Servicing Agreements.
SECTION 7.03 Notices. All demands, notices and communications upon or
to GMAC or ▇▇▇▇ under this Agreement shall be delivered as specified in Part III
of Appendix A to this Agreement.
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SECTION 7.04 GOVERNING LAW. THIS AGREEMENT AND THE FIRST STEP
RECEIVABLES ASSIGNMENT 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 ▇▇▇▇ in
exercising any power, right or remedy under this Agreement or the First Step
Receivables Assignment shall operate as a waiver thereof, nor shall any single
or partial exercise of any such power, right or remedy preclude any other or
further exercise thereof or the exercise of any other power, right or remedy.
SECTION 7.06 Costs and Expenses. GMAC agrees to pay all reasonable
out-of-pocket costs and expenses of ▇▇▇▇, 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. ▇▇▇▇ agrees that it shall
neither use nor disclose to any person the names and addresses of the Obligors,
except in connection with the enforcement of CARI's rights hereunder, under the
Receivables, under the Further Transfer and Servicing Agreements or as required
by law.
SECTION 7.08 Headings. The headings of the various Articles and
Sections herein are for convenience of reference only and shall not define or
limit any of the terms or provisions hereof.
SECTION 7.09 Counterparts. This Agreement may be executed in two or
more counterparts and by different parties on separate counterparts, each of
which shall be an original, but all of which together shall constitute one and
the same instrument.
SECTION 7.10 No Petition Covenant. Notwithstanding any prior
termination of this Agreement, GMAC shall not, prior to the date which is one
year and one day after the final distribution with respect to the Notes and the
Certificates to the Note Distribution Account or the Certificate Distribution
Account, as applicable, acquiesce, petition or otherwise invoke or cause ▇▇▇▇ to
invoke the process of any court or government authority for the purpose of
commencing or sustaining a case against ▇▇▇▇ under any federal or state
bankruptcy, insolvency or similar law or appointing a receiver, liquidator,
assignee, trustee, custodian, sequestrator or other similar official of ▇▇▇▇ or
any substantial part of its property, or ordering the winding up or liquidation
of the affairs of ▇▇▇▇.
SECTION 7.11 Limitations on Rights of Others. The provisions of this
Agreement and the First Step Receivables Assignment are solely for the benefit
of GMAC and ▇▇▇▇ 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
18
right, remedy or claim in, under, or in respect of this Agreement or any
covenants, conditions or provisions contained herein.
* * * * *
19
IN WITNESS WHEREOF, the parties hereby have caused this Agreement to be
executed by their respective officers thereunto duly authorized as of the date
and year first above written.
GENERAL MOTORS ACCEPTANCE CORPORATION
By: ____________________________________
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Title: Director - Securitization and
Cash Management
CAPITAL AUTO RECEIVABLES, INC.
By: ____________________________________
Name: S. N. Richard
Title: Manager - Securitization
Signature Page to Pooling and Servicing Agreement
20
EXHIBIT A
FIRST STEP RECEIVABLES ASSIGNMENT
PURSUANT TO POOLING AND SERVICING AGREEMENT
For value received, in accordance with the Pooling and Servicing
Agreement, dated as of June 11, 2003 (the "Pooling and Servicing Agreement"),
between General Motors Acceptance Corporation, a Delaware corporation ("GMAC"),
and Capital Auto Receivables, Inc., a Delaware corporation ("▇▇▇▇"), GMAC does
hereby sell, assign, transfer and otherwise convey unto ▇▇▇▇, without recourse,
(i) all right, title and interest of GMAC in, to and under the Receivables
listed on the Schedule of Receivables, attached as Schedule A hereto, and (a) in
the case of Receivables that are Scheduled Interest Receivables, all monies due
thereunder on and after the Cutoff Date and (b) in the case of Receivables that
are Simple Interest Receivables, all monies received thereon on and after the
Cutoff Date, in each case exclusive of any amounts allocable to the premium for
physical damage insurance force-placed by GMAC covering any related Financed
Vehicle; (ii) the interest of GMAC in the security interests in the Financed
Vehicles granted by Obligors pursuant to the Receivables and, to the extent
permitted by law, any accessions thereto; (iii) the interest of GMAC in any
proceeds from claims on any physical damage, credit life, credit disability or
other insurance policies covering Financed Vehicles or Obligors; (iv) the
interest of GMAC in any proceeds from recourse against Dealers on the
Receivables; and (v) the interest of GMAC in any proceeds of the property
described in clauses (i) and (ii) above.
It is the intention of GMAC and ▇▇▇▇ that the transfer and assignment
of Receivables contemplated by this First Step Receivables Assignment shall
constitute a sale of the Receivables from GMAC to ▇▇▇▇ and the beneficial
interest in and title to the Receivables shall not be part of GMAC's estate in
the event of the filing of a bankruptcy petition by or against GMAC under any
bankruptcy law.
The foregoing transfer and assignment of Receivables contemplated by
the Pooling and Servicing Agreement and this First Step Receivables Assignment
does not constitute and is not intended to result in any assumption by ▇▇▇▇ of
any obligation of the undersigned to the Obligors, Dealers, insurers or any
other Person in connection with the Receivables, any Dealer Agreements, any
insurance policies or any agreement or instrument relating to any of them.
This First Step Receivables Assignment is made pursuant to and upon the
representations, warranties and agreements on the part of the undersigned
contained in the Pooling and Servicing Agreement and is to be governed by the
Pooling and Servicing Agreement.
Capitalized terms used herein and not otherwise defined herein shall
have the meaning assigned to them in the Pooling and Servicing Agreement.
* * * * *
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IN WITNESS WHEREOF, the undersigned has caused this First Step
Receivables Assignment to be duly executed as of June 11, 2003.
GENERAL MOTORS ACCEPTANCE CORPORATION
By: ________________________________________________
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Title: Director - Securitization and Cash Management
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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.
* * * * *
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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, ▇▇▇▇ and Capital Auto
Receivables Asset Trust 2003-2, 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, ▇▇▇▇ and Capital Auto
Receivables Asset Trust 2003-2, 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, ▇▇▇▇ and Capital Auto
Receivables Asset Trust 2003-2, as amended and supplemented from time to time.
▇-▇
▇▇▇▇▇▇▇▇ ▇
Additional Representations and Warranties
1. While it is the intention of GMAC and ▇▇▇▇ that the transfer and
assignment contemplated by this Agreement and the First Step
Receivables Assignment shall constitute sales of the Purchased Property
from GMAC to ▇▇▇▇, 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 ▇▇▇▇, 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, ▇▇▇▇ 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 ▇▇▇▇ 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 ▇▇▇▇ 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 ▇▇▇▇ pursuant to the Basic
Documents, the Issuer under the Trust Sale and Servicing Agreement and
the Indenture Trustee under the Indenture none of GMAC, ▇▇▇▇ or the
Issuer has pledged, assigned, sold, granted a security interest in, or
otherwise conveyed any of the Purchased Property. None of GMAC, ▇▇▇▇ or
the Issuer has authorized the filing of, or is aware of, any financing
statements against GMAC, ▇▇▇▇ 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 ▇▇▇▇, the
Issuer and the Indenture Trustee under the Basic Documents or any
financing statement that has been terminated. None of GMAC, ▇▇▇▇ or the
Issuer is aware of any judgment or tax lien filings against GMAC, ▇▇▇▇
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 ▇▇▇▇.
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