EXHIBIT 99.3
POOLING AND SERVICING AGREEMENT
BETWEEN
CAPITAL AUTO RECEIVABLES, INC.
AND
GENERAL MOTORS ACCEPTANCE CORPORATION
DATED AS OF MARCH 11, 1999
TABLE OF CONTENTS
PAGE
ARTICLE I
DEFINITIONS
SECTION 1.01 Definitions 2
SECTION 1.02 Owner of a Receivable 2
ARTICLE II
PURCHASE AND SALE OF RECEIVABLES
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
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
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 CARI 13
ARTICLE V
ADDITIONAL AGREEMENTS
SECTION 5.01 Conflicts With Further Transfer and
Servicing Agreements 14
SECTION 5.02 Protection of Title 14
SECTION 5.03 Other Liens or Interests 15
SECTION 5.04 Repurchase Events 15
SECTION 5.05 Indemnification 15
SECTION 5.06 Further Assignments 15
SECTION 5.07 Pre-Closing Collections 16
ARTICLE VI
CONDITIONS
SECTION 6.01 Conditions to Obligation of CARI 16
SECTION 6.02 Conditions To Obligation of GMAC 17
ARTICLE VII
MISCELLANEOUS PROVISIONS
SECTION 7.01 Amendment 17
SECTION 7.02 Survival 17
SECTION 7.03 Notices 17
SECTION 7.04 GOVERNING LAW 17
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
EXHIBIT A - Form of Assignment
APPENDIX A - Definitions, Rules of Construction and Notices
POOLING AND SERVICING AGREEMENT, dated as of March 11, 1999, between
CAPITAL AUTO RECEIVABLES, INC., a Delaware corporation ("CARI"), 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, CARI desires to purchase 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 CARI;
WHEREAS, CARI may wish to sell or otherwise transfer such contracts and
related rights, or interests therein, to a trust, corporation, partnership or
other entity (any such entity being the "ISSUER");
WHEREAS, the Issuer may issue debentures, notes, participations,
certificates of beneficial interest, partnership interests or other interests or
securities (collectively, any such issued interests or securities being
"SECURITIES") to fund its acquisition of such contracts and related rights;
WHEREAS, the Issuer may wish to provide in the agreements pursuant to
which it acquires its interest in such contracts and related rights and issues
the Securities (all such agreements being collectively the "FURTHER TRANSFER AND
SERVICING AGREEMENTS") that GMAC shall service such contracts;
WHEREAS, the Servicer is willing to service such contracts in accordance
with the terms hereof for the benefit of CARI 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
ARTICLE 1.1 DEFINITIONS . Certain capitalized terms used in this Agreement are
defined in and shall have the respective meanings assigned 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, 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.
ARTICLE 1.1 OWNER OF A RECEIVABLE . For purposes of this Agreement, the "Owner"
of a Receivable shall mean CARI until the execution and delivery of the Further
Transfer and Servicing Agreements and thereafter shall mean the Issuer;
PROVIDED, that GMAC or CARI, as applicable, shall be the "Owner" of any
Receivable from and after the time that such Person shall acquire such
Receivable, whether pursuant to SECTIONS 3.08 OR 5.04 of this Agreement, any
provision of the Further Transfer and Servicing Agreements or otherwise.
ARTICLE 1.2
ARTICLE 1.3
ARTICLE II
PURCHASE AND SALE OF RECEIVABLES
ARTICLE 1.1 PURCHASE AND SALE OF RECEIVABLES . On such date as is acceptable to
CARI and GMAC by which the conditions specified in Article VI have been
satisfied (and in any event immediately prior to consummation of the
transactions contemplated by the Further Transfer and Servicing Agreements, if
any), GMAC shall sell, transfer, assign and otherwise convey to CARI, without
recourse:
ARTICLE 1.2
(a) all right, title and interest of GMAC in, to and under the Receivables
listed on the Schedule of Receivables and (i) in the case of Scheduled
Interest Receivables, all monies due thereunder on and after the
Cutoff Date and (ii) in the case of 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;
(b)
(c) 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;
(d)
(e) except for those Receivables originated in Wisconsin, the interest of
GMAC in any proceeds from claims on any physical damage, credit life,
credit disability or other insurance policies covering Financed
Vehicles or Obligors;
(f)
(g) the interest of GMAC in any proceeds from recourse against Dealers on
Receivables; and
(h)
(i) the interest of GMAC in any proceeds of the property described in
clauses (a) and (b) above.
(j)
(k) The property described in clauses (a) through (e) is referred to
herein collectively as the "PURCHASED PROPERTY."
(l)
(m) It is the intention of GMAC and CARI that the transfer and assignment
contemplated by this Agreement shall constitute a sale of the
Receivables from GMAC to CARI 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.
(n)
(o) The foregoing sale does not constitute and is not intended to result
in any assumption by CARI 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.
(p)
ARTICLE 1.3 RECEIVABLES PURCHASE PRICE . In consideration for the Purchased
Property, CARI shall, at the closing hereunder, pay to GMAC an amount equal to
the Initial Aggregate Discounted Principal Balance in respect of the Receivables
(the "RECEIVABLES PURCHASE PRICE") and GMAC shall execute and deliver to CARI an
assignment in the form attached hereto as EXHIBIT A. A portion of the
Receivables Purchase Price equal to $2,487,750,363 shall be paid to GMAC in
immediately available funds, and the balance of the Receivables Purchase Price
shall be recorded as an advance from GMAC to CARI pursuant to the Intercompany
Advance Agreement.
ARTICLE 1.4
ARTICLE 1.5 THE CLOSING . The sale and purchase of the Receivables shall take
place at the offices of GMAC, 3031 West Grand Boulevard, Detroit, Michigan
48202, at a date and time mutually agreeable to GMAC and CARI, and may occur
simultaneously with the closing of transactions contemplated by the Further
Transfer and Servicing Agreements.
ARTICLE 1.6
ARTICLE 1.7 CUSTODY OF RECEIVABLE FILES . In connection with the sale, transfer
and assignment of the Receivables to CARI pursuant to this Agreement, CARI,
simultaneously with the execution and delivery of this Agreement, shall enter
into the Custodian Agreement with the Custodian, pursuant to which CARI shall
revocably appoint the Custodian, and the Custodian shall accept such
appointment, to act as the agent of CARI as Custodian of the following documents
or instruments which shall be constructively delivered to CARI with respect to
each Receivable:
ARTICLE 1.8
(a) the fully executed original of the instalment sale contract for such
Receivable;
(b)
(c) documents evidencing or related to any Insurance Policy;
(d)
(e) 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;
(f)
(g) 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
(h)
(i) 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.
(j)
(k)
ARTICLE III
ADMINISTRATION AND SERVICING OF RECEIVABLES
ARTICLE 1.1 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 CARI 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 Owner of such
Receivable shall thereupon be deemed to have automatically assigned such
Receivable to the Servicer for purposes of commencing or participating in any
such proceeding as a party or claimant, and the Servicer is hereby authorized
and empowered by the Owner of a Receivable to execute and deliver in the
Servicer's name any notices, demands, claims, complaints, responses, affidavits
or other documents or instruments in connection with any such proceeding. Any
Owner of Receivables shall furnish the Servicer with any powers of attorney and
other documents and take any other steps which the Servicer may deem necessary
or appropriate to enable the Servicer to carry out its servicing and
administrative duties under this Agreement and the Further Transfer and
Servicing Agreements. Except to the extent required by the preceding two
sentences, the authority and rights granted to the Servicer in this SECTION 3.01
shall be nonexclusive and shall not be construed to be in derogation of the
retention by the Owner of a Receivable of equivalent authority and rights.
ARTICLE 1.2
ARTICLE 1.3 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 SUBSECTION 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.
ARTICLE 1.4
ARTICLE 1.5 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.
ARTICLE 1.6
ARTICLE 1.7 REALIZATION UPON LIQUIDATING RECEIVABLES . The Servicer shall use
reasonable efforts, consistent with its customary servicing procedures, to
repossess or otherwise comparably convert the ownership of any Financed Vehicle
that it has reasonably determined should be repossessed or otherwise converted
following a default under the Receivable secured by the Financed Vehicle. The
Servicer is authorized to follow such practices, policies and procedures as it
follows with respect to comparable automotive receivables that it services for
itself or others, which practices, policies and procedures may include
reasonable efforts to realize upon any recourse to Dealers, selling the related
Financed Vehicle at public or private sale and other actions by the Servicer in
order to realize upon such a Receivable. The foregoing is subject to the
provision that, in any case in which the Financed Vehicle shall have suffered
damage, the Servicer shall not expend funds in connection with any repair or
towards the repossession of such Financed Vehicle unless it shall determine in
its discretion that such repair and/or repossession shall increase the proceeds
of liquidation of the related Receivable by an amount greater than the amount of
such expenses. The Servicer shall be entitled to receive Liquidation Expenses
with respect to each Liquidating Receivable at such time as the Receivable
becomes a Liquidating Receivable (or as may otherwise be provided in the Further
Transfer and Servicing Agreements).
ARTICLE 1.8
ARTICLE 1.9 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.
ARTICLE 1.10
ARTICLE 1.11 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.
ARTICLE 1.12
ARTICLE 1.13 COVENANTS, REPRESENTATIONS AND WARRANTIES OF THE SERVICER . As of
the closing hereunder, the Servicer hereby makes the following representations,
warranties and covenants on which CARI relies in accepting the Receivables
hereunder and on which the Issuer shall rely in accepting the Receivables and
executing and delivering the Securities under the Further Transfer and Servicing
Agreements.
ARTICLE 1.14
(a) The Servicer covenants that from and after the closing hereunder:
(b)
(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;
(i) NO IMPAIRMENT. The Servicer shall do nothing to impair the rights
of CARI or any Interested Party in and to the Receivables; and
(i) NO MODIFICATIONS. The Servicer shall not amend or otherwise
modify any Receivable such that the Amount Financed, the Annual
Percentage Rate, the total number of Scheduled Payments (in the
case of a Scheduled Interest Receivable) or the number of
originally scheduled due dates (in the case of a Simple Interest
Receivable), is altered or such that the last Scheduled Payment
(in the case of a Scheduled Interest Receivable) or the last
scheduled due date (in the case of a Simple Interest Receivable)
occurs after the final scheduled payment date that is specified
in SECTION 4.01(R).
(a) Upon the execution of the Further Transfer and Servicing Agreements,
the Servicer represents and warrants to the Issuer and CARI that in
addition to the representations and warranties in SECTIONS 4.01 AND
4.02 being true as of the date of the closing thereunder that as of
such closing:
(b)
(i) ORGANIZATION AND GOOD STANDING. The Servicer had at all relevant
times, and now has, power, authority and legal right to service
the Receivables as provided herein and in the Further Transfer
and Servicing Agreements;
(i) POWER AND AUTHORITY. The Servicer has the power and authority to
execute and deliver the Further Transfer and Servicing Agreements
and to carry out the terms of such agreements; and the Servicer's
execution, delivery and performance of the Further Transfer and
Servicing Agreements have been duly authorized by the Servicer by
all necessary corporate action;
(i) BINDING OBLIGATION. The Further Transfer and Servicing
Agreements, when duly executed and delivered, shall constitute
the legal, valid and binding obligations of the Servicer
enforceable in accordance with their respective terms, except as
enforceability may be limited by bankruptcy, insolvency,
reorganization, or other similar laws affecting the enforcement
of creditors' rights in general and by general principles of
equity, regardless of whether such enforceability is considered
in a proceeding in equity or at law;
(i) NO VIOLATION. The consummation by the Servicer of the
transactions contemplated by the Further Transfer and Servicing
Agreements, and the fulfillment by the Servicer of the terms of
the Further Transfer and Servicing Agreements, shall not conflict
with, result in any breach of any of the terms and provisions of,
or constitute (with or without notice or lapse of time) a default
under, the articles of incorporation or by-laws of the Servicer,
or any indenture, agreement, mortgage, deed of trust or other
instrument to which the Servicer is a party or by which it is
bound, or result in the creation or imposition of any Lien upon
any of its properties pursuant to the terms of any such
indenture, agreement, mortgage, deed of trust or other
instrument, other than the Further Transfer and Servicing
Agreements, or violate any law or, to the best of the Servicer's
knowledge, any order, rule or regulation applicable to the
Servicer of any court or of any federal or state regulatory body,
administrative agency or other governmental instrumentality
having jurisdiction over the Servicer or any of its properties;
(i) NO PROCEEDINGS. To the Servicer's knowledge, there are no
proceedings or investigations pending, or threatened, before any
court, regulatory body, administrative agency or other tribunal
or governmental instrumentality having jurisdiction over the
Servicer or its properties (A) asserting the invalidity of the
Further Transfer and Servicing Agreements or any Securities
issued thereunder, (B) seeking to prevent the issuance of such
Securities or the consummation of any of the transactions
contemplated by the Further Transfer and Servicing Agreements, or
(C) seeking any determination or ruling that might materially and
adversely affect the performance by the Servicer of its
obligations under, or the validity or enforceability of, the
Further Transfer and Servicing Agreements; and
(i) 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.
ARTICLE 1.1 PURCHASE OF RECEIVABLES UPON BREACH OF COVENANT . Upon discovery by
any of the Servicer, CARI 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 CARI or any Interested Party.
ARTICLE 1.2
ARTICLE 1.3 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 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).
ARTICLE 1.4
ARTICLE 1.5 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 CARI 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 CARI 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 CARI is the Owner, the Servicer shall
deliver to CARI such accountings relating to such Receivables and the actions of
the Servicer with respect thereto as CARI may reasonably request.
ARTICLE 1.6
ARTICLE 1.7 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:
ARTICLE 1.8
(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 SUBSECTION 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)
(c) 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.
(d)
(e) 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 CARI, 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.
(f)
(g)
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
ARTICLE 1.1 REPRESENTATIONS AND WARRANTIES AS TO THE RECEIVABLES . GMAC makes
the following representations and warranties as to the Receivables on which CARI
relies in accepting the Receivables. Such representations and warranties speak
as of the date hereof, as of the closing hereunder and as of the closing under
the Further Transfer and Servicing Agreements, and shall survive the sale,
transfer and assignment of the Receivables to CARI and the subsequent assignment
and transfer pursuant to the Further Transfer and Servicing Agreements:
(a) CHARACTERISTICS OF RECEIVABLES. Each Receivable (i) was originated 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 CARI, (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) 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 and (v) is a Simple Interest
Receivable;
(b)
(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 CARI 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 under this
Agreement;
(d)
(e) 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 Magnuson-Moss 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,
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;
(f)
(g) 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;
(h)
(i) SECURITY INTEREST IN FINANCED VEHICLE. Immediately prior to the sale,
transfer and assignment thereof pursuant hereto, 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;
(j)
(k) 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;
(l)
(m) NO WAIVER. Since the Cutoff Date, no provision of a Receivable has
been waived, altered or modified in any respect;
(n)
(o) NO DEFENSES. No right of rescission, setoff, counterclaim or defense
has been asserted or threatened with respect to any Receivable;
(p)
(q) NO LIENS. There are, to the best of GMAC's knowledge, no liens or
claims that have been filed for work, labor or materials affecting any
Financed Vehicle securing any Receivable that are or may be liens
prior to, or equal or coordinate with, the security interest in the
Financed Vehicle granted by the Receivable;
(r)
(s) 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;
(t)
(u) GOOD TITLE. No Receivable has been sold, transferred, assigned or
pledged by GMAC to any Person other than CARI; immediately prior to
the conveyance of the Receivables pursuant to this Agreement GMAC had
good and marketable title thereto, free of any Lien; and, upon
execution and delivery of this Agreement by GMAC, CARI 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;
(v)
(w) 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;
(x)
(y) ALL FILINGS MADE. All filings (including, without limitation, UCC
filings) necessary in any jurisdiction to give CARI a first priority
perfected ownership interest in the Receivables shall have been made;
(z)
(aa) ONE ORIGINAL. There is only one original executed copy of each
Receivable;
(bb)
(cc) 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);
(dd)
(ee) MATURITY OF RECEIVABLES. Each Receivable has an original maturity of
not less than 24 months and not greater than 60 months;
(ff)
(gg) LOWEST ANNUAL PERCENTAGE RATE. The lowest Annual Percentage Rate of
any Receivable is 0.01%;
(hh)
(ii) SCHEDULED PAYMENTS; DELINQUENCY. Each Receivable was originated on or
after December 1, 1996, has a first scheduled payment that is due on
or after January 1, 1997, has a final scheduled payment that is due no
later than July 31, 2004, and has neither a payment that is more than
29 days overdue as of the Cutoff Date nor been charged-off by GMAC;
(jj)
(kk) VEHICLES. Each Financed Vehicle shall be a new automobile or light
truck;
(ll)
(mm) ORIGIN. Each Receivable shall have been originated in the United
States; and
(nn)
(oo) 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.
(pp)
ARTICLE 1.2 ADDITIONAL REPRESENTATIONS AND WARRANTIES OF GMAC . GMAC hereby
represents and warrants to CARI as of the date hereof, as of the closing
hereunder and as of the closing under the Further Transfer and Servicing
Agreements, both in its capacity as the seller of the Receivables hereunder and
in its capacity as Servicer, that:
ARTICLE 1.3
(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)
(c) DUE QUALIFICATION. GMAC is duly qualified to do business as a foreign
corporation in good standing, and has obtained all necessary licenses
and approvals, in all jurisdictions in which the ownership or lease of
property or the conduct of its business (including the servicing of
the Receivables) requires or shall require such qualification;
(d)
(e) POWER AND AUTHORITY. GMAC has the power and authority to execute and
deliver this Agreement and to carry out its terms; GMAC has full power
and authority to sell and assign the property to be sold and assigned
to CARI and to service the Receivables as provided herein and in the
Further Transfer and Servicing Agreements, has duly authorized such
sale and assignment to CARI by all necessary corporate action; and the
execution, delivery and performance of this Agreement have been duly
authorized by GMAC by all necessary corporate action;
(f)
(g) VALID SALE; BINDING OBLIGATION. This Agreement, 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, 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;
(h)
(i) NO VIOLATION. The consummation of the transactions contemplated by
this Agreement and the fulfillment of the terms of this Agreement
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 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; and
(j)
(k) 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, (B) seeking to prevent the
consummation of any of the transactions contemplated by this
Agreement, 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.
(l)
ARTICLE 1.4 REPRESENTATIONS AND WARRANTIES OF CARI . CARI hereby represents and
warrants to GMAC as of the date hereof and as of the closing hereunder:
ARTICLE 1.5
(a) ORGANIZATION AND GOOD STANDING. CARI 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)
(c) DUE QUALIFICATION. CARI 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;
(d)
(e) POWER AND AUTHORITY. CARI has the power and authority to execute and
deliver this Agreement and to carry out its terms and the execution,
delivery and performance of this Agreement have been duly authorized
by CARI by all necessary corporate action;
(f)
(g) NO VIOLATION. The consummation of the transactions contemplated by
this Agreement and the fulfillment of the terms of this Agreement
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 CARI,
or any indenture, agreement, mortgage, deed of trust or other
instrument to which CARI 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 CARI of any court or of any federal or
state regulatory body, administrative agency or other governmental
instrumentality having jurisdiction over CARI or any of its
properties; and
(h)
(i) 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 CARI or its properties (i)
asserting the invalidity of this Agreement, or (ii) seeking any
determination or ruling that might materially and adversely affect the
performance by CARI of its obligations under, or the validity or
enforceability of, this Agreement.
(j)
(k)
ARTICLE V
ADDITIONAL AGREEMENTS
The Servicer agrees with CARI as follows:
ARTICLE 1.1 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.
ARTICLE 1.1 PROTECTION OF TITLE .
ARTICLE 1.2
(a) FILINGS. GMAC shall execute and file such financing statements and
cause to be executed 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 CARI under this
Agreement in the Receivables and the other Purchased Property and in
the proceeds thereof. GMAC shall deliver (or cause to be delivered) to
CARI file-stamped copies of, or filing receipts for, any document
filed as provided above, as soon as available following such filing.
(a) NAME CHANGE. GMAC shall not change 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 Section
9-402(7) of the UCC, unless it shall have given CARI at least 60 days
prior written notice thereof.
(b)
(c) EXECUTIVE OFFICE; MAINTENANCE OF OFFICES. GMAC shall give CARI 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)
ARTICLE 1.2 OTHER LIENS OR INTERESTS . Except for the conveyances hereunder and
as contemplated by the Further Transfer and Servicing Agreements, GMAC shall not
sell, pledge, assign or transfer the Receivables to any other Person, or grant,
create, incur, assume or suffer to exist any Lien on any interest therein, and
GMAC shall defend the right, title and interest of CARI in, to and under such
Receivables against all claims of third parties claiming through or under GMAC.
ARTICLE 1.3
ARTICLE 1.4 REPURCHASE EVENTS . By its execution of the Further Transfer and
Servicing Agreements to which it is a party, GMAC shall acknowledge the
assignment by CARI of such of its right, title and interest in, to and under
this Agreement to the Issuer as shall be provided in the Further Transfer and
Servicing Agreements. GMAC hereby covenants and agrees with CARI for the benefit
of CARI 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 CARI hereunder. Upon the occurrence of a
Repurchase Event with respect to a Receivable for which CARI is the Owner, GMAC
agrees to repurchase such Receivable from CARI for an amount and upon the same
terms as GMAC would be obligated to repurchase such Receivable from the Issuer
if the Issuer was then the Owner thereof, and upon payment of such amount, GMAC
shall have such rights with respect to such Receivable as if GMAC had purchased
such Receivable from the Issuer as the Owner thereof. It is understood and
agreed that the obligation of GMAC to repurchase any Receivable as to which a
breach has occurred and is continuing shall, if such obligation is fulfilled,
constitute the sole remedy against GMAC for such breach available to CARI or any
Interested Party.
ARTICLE 1.5
ARTICLE 1.6 INDEMNIFICATION . GMAC shall indemnify CARI 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.
ARTICLE 1.7
ARTICLE 1.8 FURTHER ASSIGNMENTS . GMAC acknowledges that CARI may, pursuant to
the Further Transfer and Servicing Agreements, sell the Receivables to the
Issuer and assign its rights hereunder 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. GMAC further acknowledges that CARI may assign its rights under
the Custodian Agreement to the Issuer.
ARTICLE 1.9
ARTICLE 1.10 PRE-CLOSING COLLECTIONS . Within two Business Days after the
closing hereunder, GMAC shall transfer to the account or accounts designated by
CARI (or by the Issuer under the Further Transfer and Servicing Agreements) all
collections on the Receivables held by GMAC at the time of such closing and
conveyed to CARI pursuant to SECTION 2.01(A); provided that so long as the
Monthly Remittance Conditions are satisfied, such collections need not be
transferred until the first Distribution Date.
ARTICLE 1.11
ARTICLE 1.12
ARTICLE VI
CONDITIONS
ARTICLE 1.1 CONDITIONS TO OBLIGATION OF CARI . The obligation of CARI to
purchase the Receivables hereunder is subject to the satisfaction of the
following conditions:
ARTICLE 1.2
(a) REPRESENTATIONS AND WARRANTIES TRUE. The representations and
warranties of GMAC hereunder shall be true and correct at the time of
the closing hereunder 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 hereunder.
(b)
(c) NO REPURCHASE EVENT. No Repurchase Event shall have occurred on or
prior to the closing hereunder.
(d)
(e) COMPUTER FILES MARKED. GMAC shall, at its own expense, on or prior to
the closing hereunder, indicate in its computer files created in
connection with the Receivables that the Receivables have been sold to
CARI pursuant to this Agreement and deliver to CARI the Schedule of
Receivables certified by an officer of GMAC to be true, correct and
complete.
(a) DOCUMENTS TO BE DELIVERED BY GMAC AT THE CLOSING.
(b)
(i) THE ASSIGNMENT. At the Closing, GMAC shall execute and deliver an
assignment in the form attached hereto as EXHIBIT A.
(i) EVIDENCE OF UCC FILING. On or prior to the closing hereunder,
GMAC shall record and file, at its own expense, a UCC-1 financing
statement in each jurisdiction in which required by applicable
law, executed by GMAC as seller or debtor, naming CARI 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 CARI. GMAC shall deliver a file-stamped copy, or
other evidence satisfactory to CARI of such filing, to CARI on or
prior to the closing hereunder.
(i) OTHER DOCUMENTS. At the closing hereunder, GMAC shall provide
such other documents as CARI may reasonably request.
(a) 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.
(b)
ARTICLE 1.2 CONDITIONS TO OBLIGATION OF GMAC . The obligation of GMAC to sell
the Receivables to CARI hereunder is subject to the satisfaction of the
following conditions:
ARTICLE 1.3
(a) REPRESENTATIONS AND WARRANTIES TRUE. The representations and
warranties of CARI hereunder shall be true and correct at the time of
the closing hereunder with the same effect as if then made, and CARI
shall have performed all obligations to be performed by it hereunder
on or prior to the closing hereunder.
(b)
(c) RECEIVABLES PURCHASE PRICE. At the closing hereunder, CARI shall pay
to GMAC the Receivables Purchase Price as provided in SECTION 2.02.
(d)
(e)
ARTICLE VII
MISCELLANEOUS PROVISIONS
ARTICLE 1.1 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 CARI.
ARTICLE 1.2
ARTICLE 1.3 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 under SECTION 2.03 hereof and the closing under the Further Transfer and
Servicing Agreements.
ARTICLE 1.4
ARTICLE 1.5 NOTICES . All demands, notices and communications upon or to GMAC or
CARI under this Agreement shall be delivered as specified in Part III of
APPENDIX A to this Agreement.
ARTICLE 1.6
ARTICLE 1.7 GOVERNING LAW . THIS AGREEMENT AND THE ASSIGNMENT SHALL BE CONSTRUED
IN ACCORDANCE WITH THE DOMESTIC LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO
THE PRINCIPLES OF CONFLICTS OF LAWS THEREOF OR OF ANY OTHER JURISDICTION, AND
THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES UNDER THIS AGREEMENT SHALL
BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
ARTICLE 1.8
ARTICLE 1.9 WAIVERS . No failure or delay on the part of CARI in exercising any
power, right or remedy under this Agreement or the 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.
ARTICLE 1.10
ARTICLE 1.11 COSTS AND EXPENSES . GMAC agrees to pay all reasonable
out-of-pocket costs and expenses of CARI, 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.
ARTICLE 1.12
ARTICLE 1.13 CONFIDENTIAL INFORMATION . CARI 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.
ARTICLE 1.14
ARTICLE 1.15 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.
ARTICLE 1.16
ARTICLE 1.17 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.
ARTICLE 1.18
ARTICLE 1.19 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 CARI to invoke the
process of any court or government authority for the purpose of commencing or
sustaining a case against CARI under any federal or state bankruptcy, insolvency
or similar law or appointing a receiver, liquidator, assignee, trustee,
custodian, sequestrator or other similar official of CARI or any substantial
part of its property, or ordering the winding up or liquidation of the affairs
of CARI.
ARTICLE 1.20
* * * * *
IN WITNESS WHEREOF, the parties hereby have caused this Agreement to be
executed by their respective officers thereunto duly authorized as of the date
and year first above written.
GENERAL MOTORS ACCEPTANCE CORPORATION
By: __________________________________
Name: P. D. Bull
Title: Vice President
CAPITAL AUTO RECEIVABLES, INC.
By: _________________________________
Name: D. C. Walker
Title: Vice President
EXHIBIT A
ASSIGNMENT PURSUANT TO POOLING AND SERVICING AGREEMENT
For value received, in accordance with the Pooling and Servicing Agreement,
dated as of March 11, 1999 (the "POOLING AND SERVICING AGREEMENT"), between
General Motors Acceptance Corporation, a Delaware corporation ("GMAC"), and
Capital Auto Receivables, Inc., a Delaware corporation ("CARI"), GMAC does
hereby sell, assign, transfer and otherwise convey unto CARI, 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 Scheduled Interest
Receivables, all monies due thereunder on and after the Cutoff Date and (b) in
the case of Simple Interest Receivables, and all monies received thereon on and
after the Cutoff Date, in each case exclusive of any amounts allocable to the
premium for physical damage insurance force-placed by GMAC covering any related
Financed Vehicle; (ii) the interest of GMAC in the security interests in the
Financed Vehicles granted by Obligors pursuant to the Receivables and, to the
extent permitted by law, any accessions thereto; (iii) except for those
Receivables originated in Wisconsin, the interest of GMAC in any proceeds from
claims on any physical damage, credit life, credit disability or other insurance
policies covering Financed Vehicles or Obligors; (iv) the interest of GMAC in
any proceeds from recourse against Dealers on 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 CARI that the transfer and assignment
contemplated by this Agreement shall constitute a sale of the Receivables from
GMAC to CARI 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 sale does not constitute and is not intended to result in
any assumption by CARI of any obligation of the undersigned to the Obligors,
Dealers, insurers or any other Person in connection with the Receivables, the
Dealer Agreements, any insurance policies or any agreement or instrument
relating to any of them.
This 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 shall have the
meaning assigned to them in the Pooling and Servicing Agreement.
* * * * *
IN WITNESS WHEREOF, the undersigned has caused this Assignment to be
duly executed as of March 11, 1999.
GENERAL MOTORS ACCEPTANCE CORPORATION
By: _________________________________
Name: P.D. Bull
Title: Vice President
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, CARI and Capital Auto
Receivables Asset Trust 1999-1.
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, CARI and Capital Auto Receivables
Asset Trust 1999-1.
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, CARI and Capital Auto
Receivables Asset Trust 1999-1.