EXHIBIT 99.10
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GMACNA SALE AGREEMENT
BETWEEN
GENERAL MOTORS ACCEPTANCE CORPORATION,
NORTH AMERICA
AND
GENERAL MOTORS ACCEPTANCE CORPORATION
DATED AS OF MARCH 2, 2004
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TABLE OF CONTENTS
PAGE
ARTICLE I DEFINITIONS AND USAGE................................................................................... 1
Section 1.1 Definitions............................................................................ 1
ARTICLE II PURCHASE AND SALE OF OHIO RECEIVABLES.................................................................. 2
Section 2.1 Purchase and Sale of Ohio Receivables.................................................. 2
Section 2.2 Ohio Receivables Purchase Price........................................................ 3
Section 2.3 The Closing............................................................................ 3
ARTICLE III REPRESENTATIONS AND WARRANTIES........................................................................ 3
Section 3.1 Representations and Warranties of GMACNA............................................... 3
Section 3.2 Additional Representations and Warranties of GMACNA.................................... 7
Section 3.3 Representations and Warranties of GMAC................................................. 8
ARTICLE IV ADDITIONAL AGREEMENTS.................................................................................. 9
Section 4.1 Protection of Title; Filings........................................................... 9
Section 4.2 Other Liens or Interests............................................................... 9
Section 4.3 Repurchase Events...................................................................... 9
Section 4.4 Indemnification........................................................................ 10
Section 4.5 Further Assignments.................................................................... 10
ARTICLE V CONDITIONS.............................................................................................. 10
Section 5.1 Conditions to Obligation of GMAC....................................................... 10
Section 5.2 Conditions to Obligation of GMACNA..................................................... 11
ARTICLE VI MISCELLANEOUS PROVISIONS............................................................................... 11
Section 6.1 Amendment.............................................................................. 11
Section 6.2 Survival............................................................................... 11
Section 6.3 Notices................................................................................ 11
Section 6.4 GOVERNING LAW.......................................................................... 11
Section 6.5 Waivers................................................................................ 12
Section 6.6 Costs and Expenses..................................................................... 12
Section 6.7 Confidential Information............................................................... 12
Section 6.8 Headings............................................................................... 12
Section 6.9 Counterparts........................................................................... 12
Section 6.10 Limitations on Rights of Others........................................................ 12
EXHIBIT A FORM OF OHIO RECEIVABLES ASSIGNMENT
EXHIBIT B SCHEDULE OF OHIO RECEIVABLES
THIS GMACNA SALE AGREEMENT, dated as of March 2, 2004, between GENERAL
MOTORS ACCEPTANCE CORPORATION, NORTH AMERICA, a Delaware corporation ("GMACNA"),
and GENERAL MOTORS ACCEPTANCE CORPORATION, a Delaware corporation ("GMAC").
WHEREAS, in the regular course of its business, GMACNA makes direct
purchase money loans secured by new and used automobiles and light trucks to
motor vehicle consumers;
WHEREAS, GMACNA wishes to sell and GMAC wishes to purchase from GMACNA
the Ohio Receivables (as defined below) and related property pursuant to the
terms of this Agreement;
WHEREAS, GMACNA and GMAC wish to provide in this Agreement the terms on
which the Ohio Receivables and related property are to be sold by GMACNA to
GMAC.
NOW, THEREFORE, in consideration of the premises and the mutual terms
and covenants herein contained, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS AND USAGE
Section 1.1 Definitions. Unless defined herein, capitalized terms used
in the above recitals and in this Agreement are defined in and shall have the
respective meanings assigned to them in Part I of Appendix A to the Pooling and
Servicing Agreement, dated as of the date hereof, among Capital Auto
Receivables, Inc., Capital Auto Receivables Asset Trust 2004-1, and GMAC. All
references herein to "the Agreement" or "this Agreement" are to this GMACNA Sale
Agreement as it may be amended, supplemented or modified from time to time, the
Exhibits and Attachments hereto and the capitalized terms used herein which are
defined in such Appendix A, and all references herein to Articles, Sections and
subsections are to Articles, Sections or subsections of this Agreement unless
otherwise specified. The rules of construction set forth in Part II of such
Appendix A shall be applicable to this Agreement. Additionally, for purposes of
this Agreement, the following terms shall have the following meanings:
"Ohio Purchased Property" has the meaning specified in Section 2.1
herein.
"Ohio Receivables" means the direct purchase money loans made to
consumers in Ohio and any amendments, modifications or supplements to such
direct purchase money loans, that are included in the Schedule of Ohio
Receivables, and all rights and obligations thereunder.
"Ohio Receivables Assignment" has the meaning specified in Section 2.2
herein.
"Ohio Receivable File" means the documents listed in Section 2.04 of
the Pooling and Servicing Agreement pertaining to a particular Ohio Receivable.
"Ohio Receivables Purchase Price" means the amount specified in Section
2.2 herein.
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"Schedule of Ohio Receivables" means the list identifying the Ohio
Receivables attached as Exhibit B hereto (which list may be in the form of
electronic file, microfiche, disk or other means acceptable to GMAC).
ARTICLE II
PURCHASE AND SALE OF OHIO RECEIVABLES
Section 2.1 Purchase and Sale of Ohio Receivables.
(a) Purchase. On the Closing Date, subject to the terms and
conditions of this Agreement and the Ohio Receivables Assignment, GMACNA shall
sell, transfer, assign and otherwise convey to GMAC, without recourse:
(i) all right, title and interest of GMACNA in, to and
under the Ohio Receivables listed on the Schedule of Ohio Receivables
and (A) in the case of Ohio Receivables that are Scheduled Interest
Receivables, all monies due thereunder on and after the Cutoff Date and
(B) in the case of Ohio 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, as Servicer, covering
any related Financed Vehicle;
(ii) the interest of GMACNA in the security interests in
the Financed Vehicles granted by Obligors pursuant to the Ohio
Receivables and, to the extent permitted by law, any accessions
thereto;
(iii) the interest of GMACNA in any proceeds from claims on
any physical damage, credit life, credit disability, or other insurance
policies covering Financed Vehicles or Obligors; and
(iv) all present and future claims, demands, causes and
choses in action in respect of any or all of the foregoing described
above and all payments on or under and all proceeds of every kind and
nature whatsoever in respect of any or all of the foregoing, including
all proceeds of the conversion of any or all of the foregoing,
voluntary or involuntary, into cash or other liquid property, all cash
proceeds, accounts, accounts receivable, notes, drafts, acceptances,
chattel paper, checks, deposit accounts, insurance proceeds, investment
property, payment intangibles, general intangibles, condemnation
awards, rights to payment of any and every kind and other forms of
obligations and receivables, instruments and other property which ay
any time constitute all or part or are included in the proceeds of any
of the foregoing.
The property described in clauses (i) through (iv) above is referred to
herein collectively as the "Ohio Purchased Property."
(b) It is the intention of GMACNA and GMAC that the sale,
assignment and transfer of the Ohio Receivables contemplated by this Agreement
and the Ohio Receivables Assignment shall constitute a sale of the Ohio
Receivables from GMACNA to GMAC and the beneficial
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interest in and title to the Ohio Receivables shall not be a part of GMACNA's
estate in the event of the filing of a bankruptcy petition by or against GMACNA
under any bankruptcy law.
(c) The transfer and assignment of Ohio Receivables contemplated
by this Agreement and the Ohio Receivables Assignment does not constitute and is
not intended to result in any assumption by GMAC of any obligation of GMAC to
the Obligors, insurers or any other Person in connection with the Ohio
Receivables, any insurance policies or any agreement or instrument relating to
any of them.
Section 2.2 Ohio Receivables Purchase Price. In consideration for the
Ohio Purchased Property, GMAC shall, on the Closing Date, pay to GMACNA, in
immediately available funds, an amount equal to $133,158,008.00 (the "Ohio
Receivables Purchase Price") and GMACNA shall execute and deliver to GMAC an
assignment in the form attached hereto as Exhibit A (the "Ohio Receivables
Assignment").
Section 2.3 The Closing. The sale and purchase of the Ohio Receivables
shall take place at the offices of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLP, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, on the Closing Date, or at such other time, date
and place as the parties shall agree upon.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
Section 3.1 Representations and Warranties of GMACNA. GMACNA makes the
following representations and warranties as to the Ohio Receivables on which
GMAC relies in accepting the Ohio Receivables. Such representations and
warranties speak as of the Closing Date, and shall survive the sale, transfer
and assignment of the Ohio Receivables to GMAC:
(a) Characteristics of Ohio Receivables.
(i) Each Ohio Receivable:
(1) is secured by a Financed Vehicle, was
originated in the United States by GMACNA to finance the
retail sale of a Financed Vehicle in the ordinary course of
GMACNA's business and was fully and properly executed by the
parties thereto,
(2) has created or shall create a valid, binding
and enforceable first priority security interest in favor of
GMACNA in the Financed Vehicle, which security interest is
assignable by GMACNA to GMAC,
(3) contains customary and enforceable
provisions such as to render the rights and remedies of the
holder thereof adequate for realization against the collateral
of the benefits of the security,
(4) is a Scheduled Interest Receivable or a
Simple Interest Receivable,
(5) provides for level monthly payments
(provided that the payment in the first month and the final
month of the life of the Ohio Receivable may be
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different from the level payment) that shall amortize the
Amount Financed by maturity and shall yield interest at the
Annual Percentage Rate,
(6) has an original term of not less than six
and not greater than 72 months and a remaining term of not
less than six months, and
(7) at least one monthly payment has been made,
and
(8) has been originated by GMACNA under one of
its "special incentive rate financing programs," as such term
is defined by the Servicer on the date such Receivable was
originated, designed to encourage purchases of new cars and
light trucks manufactured by General Motors Corporation;
(ii) Ohio Receivables. In addition to the characteristics
set forth in Section 3.1(a)(i) above, each Ohio Receivable (1) has a
first scheduled payment due date on or after November 1, 1998, (2) has
a final scheduled payment that is due no later than January 31, 2010,
(3) was originated on or after October 1, 1998, (4) as of the 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.
(b) Creation, Perfection and Priority of Security Interests. The
following representations and warranties regarding creation, perfection and
priority of security interests in the Ohio Purchased Property are true and
correct to the extent that they are applicable:
(i) While it is the intention of GMACNA and GMAC that the
transfer and assignment contemplated by this Agreement and the Ohio
Receivables Assignment shall constitute sales of the Ohio Purchased
Property from GMACNA to GMAC, this Agreement shall create a valid and
continuing security interest (as defined in the applicable UCC) in the
Ohio Purchased Property in favor of GMAC, which security interest is
prior to all other Liens, and is enforceable as such as against
creditors of and purchasers from GMACNA and GMAC.
(ii) All steps necessary to perfect GMACNA's security
interest against each Obligor in the property securing the Ohio
Purchased Property have been taken.
(iii) Prior to the sale of the Ohio Purchased Property to
GMAC under this Agreement, the Ohio Receivables constitute "tangible
chattel paper" within the meaning of the applicable UCC.
(iv) GMACNA owns and has good title to the Ohio Purchased
Property free and clear of any Lien, claim or encumbrance of any
Person.
(v) GMACNA 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 Ohio Purchased Property
sold to GMAC hereunder.
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(vi) GMACNA has in its possession all original copies of
the Ohio Receivables Files and other documents that constitute or
evidence the Ohio Receivables and the Ohio Purchased Property. The Ohio
Receivables Files and other documents that constitute or evidence the
Ohio Purchased Property do not have any marks or notations indicating
that they have been pledged, assigned or otherwise conveyed to any
Person other than GMAC.
(vii) Other than the security interest granted to GMAC
pursuant to this Agreement, ▇▇▇▇ pursuant to the Basic Documents, the
Issuer under the Trust Sale and Servicing Agreement and the Indenture
Trustee under the Indenture, none of GMACNA, GMAC, ▇▇▇▇ or the Issuer
has pledged, assigned, sold, granted a security interest in, or
otherwise conveyed any of the Ohio Purchased Property. None of GMACNA,
GMAC, ▇▇▇▇ or the Issuer has authorized the filing of, nor is GMACNA
aware of, any financing statements against GMACNA, GMAC, ▇▇▇▇ or the
Issuer that include a description of collateral covering the Ohio
Purchased Property other than the financing statements relating to the
security interests granted to GMAC, ▇▇▇▇, the Issuer and the Indenture
Trustee under this Agreement and the Basic Documents or any financing
statement that has been terminated. GMACNA is not aware of any judgment
or tax lien filings against GMACNA, GMAC, ▇▇▇▇ or the Issuer.
(c) Schedule of Ohio Receivables. The information set forth in the
Schedule of Ohio Receivables is true and correct in all material respects, and
no selection procedures believed to be adverse to GMAC were utilized in
selecting the Ohio Receivables from those receivables of GMACNA 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, 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
Ohio Receivables and other Ohio Purchased Property, have been complied with in
all material respects, and each Ohio 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 Ohio 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 Ohio
Receivables Assignment, each Ohio Receivable
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was secured by a validly perfected first priority security interest in the
Financed Vehicle in favor of GMACNA 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 GMACNA
as secured party.
(g) Receivables In Force. No Ohio Receivable has been satisfied,
subordinated or rescinded, and the Financed Vehicle securing each such Ohio
Receivable has not been released from the lien of the related Ohio Receivable in
whole or in part.
(h) No Waiver. Since the Cutoff Date, no provision of an Ohio
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 Ohio Receivable.
(j) No Liens. To the best of GMACNA's knowledge: (1) there are no
liens or claims that have been filed for work, labor or materials affecting any
Financed Vehicle securing any Ohio Receivable that are or may be liens prior to,
or equal or coordinate with, the security interest in the Financed Vehicle
granted by the Ohio Receivable; (2) no contribution failure has occurred with
respect to any Benefit Plan which is sufficient to give rise to a lien under
Section 302(f) of ERISA with respect to any Ohio Receivable; and (3) no tax lien
has been filed and no claim related thereto is being asserted with respect to
any Ohio Receivable.
(k) Insurance. Each Obligor is required to maintain a physical
damage insurance policy of the type that GMACNA requires in accordance with its
customary underwriting standards for the making of automotive direct purchase
money loans.
(l) Good Title. No Ohio Receivable has been sold, transferred,
assigned or pledged by GMACNA to any Person other than GMAC; immediately prior
to the conveyance of the Ohio Receivables pursuant to this Agreement and the
Ohio Receivables Assignment, GMACNA had good and marketable title thereto, free
of any Lien; and, upon execution and delivery of this Agreement by GMACNA, GMAC
shall have all of the right, title and interest of GMACNA in and to the Ohio
Receivables, the unpaid indebtedness evidenced thereby and the collateral
security therefor, free of any Lien.
(m) Lawful Assignment. No Ohio 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 Ohio Receivable under this Agreement.
(n) All Filings Made. All filings (including, without limitation,
UCC filings) necessary in any jurisdiction to give GMAC a first priority
perfected ownership interest in the Ohio Receivables shall have been made.
(o) One Original. There is only one original executed copy of each
Ohio Receivable.
(p) No Documents or Instruments. No Ohio Receivable, or
constituent part thereof, constitutes a "negotiable instrument" or "negotiable
document of title" (as such terms are used in the UCC).
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(q) No Amendment. No Ohio Receivable has been amended or otherwise
modified such that the total number of 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 3.2 Additional Representations and Warranties of GMACNA. GMACNA
hereby represents and warrants to GMAC as of the Closing Date that:
(a) Organization and Good Standing. GMACNA has been duly organized
and validly exists 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. GMACNA 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. GMACNA has the power and authority to
execute and deliver this Agreement and the Ohio Receivables Assignment and to
carry out its terms; GMACNA has full power and authority to sell and assign the
property to be sold and assigned to GMAC; has duly authorized such sale and
assignment to GMAC by all necessary corporate action; and the execution,
delivery and performance of this Agreement and the Ohio Receivables Assignment
have been duly authorized by GMACNA by all necessary corporate action.
(d) Valid Sale; Binding Obligation. This Agreement and the Ohio
Receivables Assignment, when duly executed and delivered, shall constitute a
valid sale, transfer and assignment of the Ohio Receivables, enforceable against
creditors of and purchasers from GMACNA; and this Agreement together with the
Ohio Receivables Assignment, when duly executed and delivered, shall constitute
a legal, valid and binding obligation of GMACNA 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 Ohio Receivables Assignment and the
fulfillment of the terms of this Agreement and the Ohio 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 GMACNA, or any indenture, agreement,
mortgage, deed of trust or other instrument to which GMACNA 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
Ohio Receivables Assignment or violate any law or, to the best of GMACNA's
knowledge, any order, rule or regulation applicable to GMACNA of any court or of
any federal or state regulatory body, administrative agency or other
governmental instrumentality having jurisdiction over GMACNA or any of its
properties.
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(f) No Proceedings. To GMACNA'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 GMACNA or its properties (A) asserting
the invalidity of this Agreement and the Ohio Receivables Assignment, (B)
seeking to prevent the consummation of any of the transactions contemplated by
this Agreement and the Ohio Receivables Assignment, or (C) seeking any
determination or ruling that might materially and adversely affect the
performance by GMACNA of its obligations under, or the validity or
enforceability of, this Agreement and the Ohio Receivables Assignment.
Section 3.3 Representations and Warranties of GMAC. GMAC represents and
warrants to GMACNA as of the Closing Date that:
(a) Organization; 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, and had at all relevant times, and now has the power,
authority and legal right to acquire and own the Ohio Receivables.
(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 requires such qualification.
(c) Power and Authority. GMAC has the power and authority to
execute and deliver this Agreement and the Ohio Receivables Assignment and to
carry out its terms and the execution, delivery and performance of this
Agreement and the Ohio Receivables Assignment have been duly authorized by GMAC
by all necessary corporate action.
(d) No Violation. The consummation of the transactions
contemplated by this Agreement and the Ohio Receivables Assignment and the
fulfillment of the terms of this Agreement and the Ohio 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 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 or other
instrument, 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.
(e) 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 (i) asserting the invalidity of this
Agreement and the Ohio Receivables Assignment, or (ii) 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 Ohio Receivables Assignment.
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ARTICLE IV
ADDITIONAL AGREEMENTS
Section 4.1 Protection of Title; Filings.
(a) GMACNA 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 GMAC under this Agreement and the Ohio Receivables
Assignment in the Ohio Receivables and the other Ohio Purchased Property and in
the proceeds thereof. GMACNA shall deliver (or cause to be delivered) to GMAC
file-stamped copies of, or filing receipts for, any document filed as provided
above, as soon as available following such filing GMACNA hereby authorizes GMAC
and its assigns to file all such financing statements and to file such financing
statements without its signature.
(b) Name Change. GMACNA 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 GMACNA in
accordance with Section 4.1(a) seriously misleading within the meaning of the
UCC, unless it shall have given GMAC at least 60 days prior written notice
thereof.
(c) Executive Office; Maintenance of Offices. GMACNA shall give
GMAC 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 Ohio Receivables
and its principal executive office within the United States of America.
(d) New Debtor. In the event that GMACNA 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 GMACNA hereunder, GMACNA shall comply fully with the obligations
of Section 4.1(a).
Section 4.2 Other Liens or Interests. Except for the conveyances
hereunder and under the Ohio Receivables Assignment, GMACNA shall not sell,
pledge, assign or transfer the Ohio Receivables or other Ohio Purchased Property
to any other Person, or grant, create, incur, assume or suffer to exist any Lien
on any interest therein, and GMACNA shall defend the right, title and interest
of GMAC in, to and under such Ohio Receivables or other Ohio Purchased Property
against all claims of third parties claiming through or under GMACNA.
Section 4.3 Repurchase Events. GMACNA hereby covenants and agrees with
GMAC that in the event of a breach of any of GMACNA's representations and
warranties contained in Section 3.1 hereof with respect to any Ohio Receivable
(a "Repurchase Event"), GMACNA will repurchase such Ohio Receivable from GMAC
for an amount and upon the same terms as GMAC is obligated to repurchase such
Ohio Receivable from ▇▇▇▇ or the Issuer. It is understood and agreed that the
obligation of GMACNA to repurchase any Ohio Receivable as to
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which a breach has occurred and is continuing shall, if such obligation is
fulfilled, constitute the sole remedy against GMACNA for such breach available
to GMAC or any other Person.
Section 4.4 Indemnification. GMACNA shall indemnify GMAC for any
liability as a result of the failure of an Ohio Receivable to be originated in
compliance with all requirements of law. This indemnity obligation shall be in
addition to any obligation that GMACNA may otherwise have.
Section 4.5 Further Assignments. GMACNA acknowledges that GMAC may,
pursuant to the Pooling and Servicing Agreement, sell the Ohio Receivables to
▇▇▇▇ and assign all of its rights, title and interest hereunder and under the
Ohio Receivables Assignment to ▇▇▇▇, who may further transfer such assets.
ARTICLE V
CONDITIONS
Section 5.1 Conditions to Obligation of GMAC. The obligation of GMAC to
purchase the Ohio Receivables hereunder and pursuant to the Ohio Receivables
Assignment is subject to the satisfaction of the following conditions:
(a) Representations and Warranties True. The representations and
warranties of GMACNA hereunder shall be true and correct at the time of the
Closing Date with the same effect as if then made, and GMACNA 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. GMACNA shall, at its own expense, on or
prior to the Closing Date, indicate in its computer files created in connection
with the Ohio Receivables, that the Ohio Receivables have been sold to GMAC
pursuant to this Agreement and the Ohio Receivables Assignment and will deliver
to GMAC the Schedule of Ohio Receivables.
(d) Documents to be Delivered By GMACNA.
(i) The Ohio Receivables Assignment. On the Closing Date,
GMACNA shall execute and deliver the Ohio Receivables Assignment.
(ii) Evidence of UCC Filing. On or prior to the Closing
Date, GMACNA 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 GMACNA as seller or debtor,
naming GMAC as purchaser or secured party, naming the Ohio Receivables
and the other Ohio 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 Ohio Receivables to GMAC. GMACNA shall deliver a
file, stamped copy, or other evidence satisfactory to GMAC of such
filing to GMAC on or prior to the Closing Date.
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(iii) Other Documents. On the Closing Date, GMACNA will
provide such other documents as GMAC may reasonably request.
Section 5.2 Conditions to Obligation of GMACNA. The obligation of
GMACNA to sell the Ohio Receivables to GMAC hereunder or pursuant to the Ohio
Receivables Assignment is subject to the satisfaction of the following
conditions:
(a) Representations and Warranties True. The representations and
warranties of GMAC under this Agreement will be true and correct as of the
Closing Date with the same effect as if then made, and GMAC will have performed
all obligations to be performed by it hereunder or pursuant to the Ohio
Receivables Assignment on or prior to the closing hereunder.
(b) Ohio Receivables Purchase Price. On the Closing Date, GMAC
shall pay to GMACNA the Ohio Receivables Purchase Price, in accordance with
Section 2.2 of this Agreement.
ARTICLE VI
MISCELLANEOUS PROVISIONS
Section 6.1 Amendment. This Agreement may be amended from time to time
by a written amendment duly executed and delivered by GMACNA and GMAC.
Section 6.2 Survival. The representations and warranties of GMACNA set
forth in Articles III and IV of this Agreement shall remain in full force and
effect and shall survive the Closing Date.
Section 6.3 Notices. All communications and notices pursuant hereto to
either GMACNA or GMAC must be in writing personally delivered, sent by facsimile
with a copy to follow via first class mail or mailed by certified mail-return
receipt requested, and shall be deemed to have been duly given at the address or
fax number for each party set forth below.
To GMACNA: General Motors Acceptance Corporation, North America
c/o General Motors Acceptance Corporation
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇: 482-B12-C24
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
To GMAC: General Motors Acceptance Corporation
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇: 482-B12-C24
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
Section 6.4 GOVERNING LAW. THIS AGREEMENT AND THE OHIO 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
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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 6.5 Waivers. No failure or delay on the part of GMAC in
exercising any power, right or remedy under this Agreement or the Ohio
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 6.6 Costs and Expenses. GMACNA agrees to pay all reasonable
out-of-pocket costs and expenses of GMAC, including fees and expenses of
counsel, in connection with the perfection as against third parties of GMAC's
right, title and interest in, to and under the Ohio Receivables and the
enforcement of any obligation of GMACNA hereunder.
Section 6.7 Confidential Information. GMAC 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 GMAC's rights hereunder, under the Ohio
Receivables or as required by law.
Section 6.8 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 6.9 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 6.10 Limitations on Rights of Others. The provisions of this
Agreement and the Ohio Receivables Assignment are solely for the benefit of
GMACNA and GMAC 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.
* * * * *
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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, NORTH AMERICA
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
----------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Treasurer
GENERAL MOTORS ACCEPTANCE
CORPORATION
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
----------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Title: Director - Securitization and Cash
Management
GMACNA Sale Agreement
EXHIBIT A
FORM OF OHIO RECEIVABLES ASSIGNMENT
For value received, in accordance with the GMACNA Sale
Agreement dated as of March 2, 2004 (the "GMACNA Sale Agreement"), between the
undersigned and General Motors Acceptance Corporation ("GMAC"), the undersigned
does hereby sell, assign, transfer and otherwise convey to GMAC, without
recourse, the following (collectively, the "Ohio Purchased Property"):
(i) all right, title and interest of GMACNA in, to and
under the Ohio Receivables listed on the Schedule of Ohio Receivables
attached hereto and (A) in the case of Ohio Receivables that are
Scheduled Interest Receivables, all monies due thereunder on and after
the Cutoff Date and (B) in the case of Ohio 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 GMACNA covering
any related Financed Vehicle;
(ii) the interest of GMACNA in the security interests in
the Financed Vehicles granted by Obligors pursuant to the Ohio
Receivables and, to the extent permitted by law, any accessions
thereto;
(iii) the interest of GMACNA in any proceeds from claims on
any physical damage, credit life, credit disability, or other insurance
policies covering such Financed Vehicles or Obligors; and
(iv) all present and future claims, demands, causes and
choses in action in respect of any or all of the foregoing described
above and all payments on or under and all proceeds of every kind and
nature whatsoever in respect of any or all of the foregoing, including
all proceeds of the conversion of any or all of the foregoing,
voluntary or involuntary, into cash or other liquid property, all cash
proceeds, accounts, accounts receivable, notes, drafts, acceptances,
chattel paper, checks, deposit accounts, insurance proceeds, investment
property, payment intangibles, general intangibles, condemnation
awards, rights to payment of any and every kind and other forms of
obligations and receivables, instruments and other property which ay
any time constitute all or part or are included in the proceeds of any
of the foregoing.
It is the intention of GMACNA and GMAC that the sale, assignment and
transfer of the Ohio Receivables contemplated by this Ohio Receivables
Assignment shall constitute a sale of the Ohio Receivables from GMACNA to GMAC
and the beneficial interest in and title to the Ohio Receivables shall not be a
part of GMACNA's estate in the event of the filing of a bankruptcy petition by
or against GMACNA under any bankruptcy law.
The foregoing conveyance does not constitute and is not
intended to result in any assumption by GMAC of any obligation of the
undersigned to the Obligors, insurers or any other
Person in connection with the Ohio Receivables, Ohio Receivable Files, any
insurance policies or any agreement or instrument relating to any of them.
This Ohio Receivables Assignment is made pursuant to and upon
the representations, warranties and agreements on the part of the undersigned
contained in the GMACNA Sale Agreement and is to be governed by the GMACNA Sale
Agreement.
Capitalized terms used herein and not otherwise defined will
have the meaning assigned to them in the GMACNA Sale Agreement.
IN WITNESS WHEREOF, the undersigned has caused this Ohio
Receivables Assignment to be duly executed as of the date and year first above
written.
GENERAL MOTORS ACCEPTANCE CORPORATION,
NORTH AMERICA
By: ___________________________________
Name:
Title:
Sale Agreement