EXHIBIT 99.13
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GMACNA SALE AGREEMENT
BETWEEN
GENERAL MOTORS ACCEPTANCE CORPORATION,
NORTH AMERICA
AND
GENERAL MOTORS ACCEPTANCE CORPORATION
DATED AS OF AUGUST 14, 2003
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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.................................. 4
Section 2.3 The Closing...................................................... 4
ARTICLE III REPRESENTATIONS AND WARRANTIES.................................................. 5
Section 3.1 Representations and Warranties of GMACNA......................... 5
Section 3.2 Additional Representations and Warranties of GMACNA.............. 9
Section 3.3 Representations and Warranties of GMAC........................... 10
ARTICLE IV ADDITIONAL AGREEMENTS............................................................ 11
Section 4.1 Protection of Title; Filings..................................... 11
Section 4.2 Other Liens or Interests......................................... 12
Section 4.3 Repurchase Events................................................ 12
Section 4.4 Indemnification.................................................. 12
Section 4.5 Further Assignments.............................................. 12
ARTICLE V CONDITIONS........................................................................ 12
Section 5.1 Conditions to Obligation of GMAC................................. 12
Section 5.2 Conditions to Obligation of GMACNA............................... 13
ARTICLE VI MISCELLANEOUS PROVISIONS......................................................... 14
Section 6.1 Amendment........................................................ 14
Section 6.2 Survival......................................................... 14
Section 6.3 Notices.......................................................... 14
Section 6.4 GOVERNING LAW.................................................... 14
Section 6.5 Waivers.......................................................... 14
Section 6.6 Costs and Expenses............................................... 14
Section 6.7 Confidential Information......................................... 15
Section 6.8 Headings......................................................... 15
Section 6.9 Counterparts..................................................... 15
Section 6.10 Limitations on Rights of Others.................................. 15
EXHIBIT A FORM OF INITIAL OHIO RECEIVABLES ASSIGNMENT
EXHIBIT B FORM OF ADDITIONAL OHIO RECEIVABLES ASSIGNMENT
THIS GMACNA SALE AGREEMENT, dated as of August 14, 2003, 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 2003-3, 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:
"Additional Ohio Purchased Property" has the meaning specified in
Section 2.1 herein.
"Additional Ohio Receivables" means a purchase money loan made to a
consumer in Ohio and any amendments, modifications or supplements to such direct
purchase money loans, that are included in the Schedule of Additional Ohio
Receivables attached to an Additional Ohio Receivables Assignment, and all
rights and obligations thereunder.
"Additional Ohio Receivables Assignment" has the meaning specified in
Section 2.2 herein.
"Additional Ohio Receivables Purchase Price" means, with respect to any
Additional Ohio Receivables to be purchased by GMAC on a Distribution Date
during the Revolving Period, an amount equal to the present value as of the
close of business on the applicable Additional Cutoff Date of all scheduled
payments due on those Additional Ohio Receivables that have not been applied on
or prior to the applicable Cutoff Date, discounted from the last day of
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the calendar month in which payments are to become due to that date at the
Discount Rate. For any Distribution Date during the Revolving Period, the
Additional Receivables Discounted Principal Balance for the Additional Ohio
Receivables shall, to the extent sufficient Additional Ohio Receivables are
available for sale and purchase, be reasonably proximate to, but not in excess
of, the Reinvestment Amount, for any such Distribution Date. During the
Amortization Period and for the related Distribution Dates, the Additional
Receivables Discounted Principal Balance for the Ohio Receivables shall be zero.
"Initial Ohio Purchased Property" has the meaning specified in Section
2.1 herein.
"Initial Ohio Receivables Purchase Price" means the amount specified in
Section 2.2 herein.
"Initial Ohio Receivables" means a direct purchase money loan made to a
consumer in Ohio and any amendments, modifications or supplements to such direct
purchase money loans, that are included in the Schedule of Initial Ohio
Receivables attached to an Initial Ohio Receivables Assignment, and all rights
and obligations thereunder.
"Initial Ohio Receivables Assignment" has the meaning specified in
Section 2.2 herein.
"Ohio Purchased Property" has the meaning specified in Section 2.1
herein.
"Ohio Receivable" means a direct purchase money loan made to a consumer
in Ohio and any amendments, modifications or supplements to such direct purchase
money loans, that is included in the Schedule of Initial Ohio Receivables and
any Additional Ohio Receivable that is included in a Schedule of Additional Ohio
Receivables, and all rights and obligations thereunder.
"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 Assignments" has the meaning specified in Section 2.2
herein.
"Schedule of Initial Ohio Receivables" means the list identifying the
Initial Ohio Receivables attached as Exhibit C hereto (which list may be in the
form of electronic file, microfiche, disk or other means acceptable to GMAC).
"Schedule of Additional Ohio Receivables" means the list identifying
the Additional Ohio Receivables attached to any Additional Ohio Receivables
Assignment (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.
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(a) Initial Purchase. On the Initial Closing Date, subject to the
terms and conditions of this Agreement and the Initial 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 Initial Ohio Receivables listed on the Schedule of Initial
Ohio Receivables and (A) in the case of Initial Ohio Receivables that
are Scheduled Interest Receivables, all monies due thereunder on and
after the Initial Cutoff Date and (B) in the case of Initial Ohio
Receivables that are Simple Interest Receivables, all monies received
thereon on and after the Initial Cutoff Date, in each case, exclusive
of any amounts allocable to the premium for physical damage insurance
force-placed by GMAC, 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 Initial 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) the interest of GMACNA in any proceeds of the
property described in clauses (i) and (ii) above.
The property described in clauses (i) through (iv) above is referred to
herein collectively as the "Initial Ohio Purchased Property".
(b) Additional Purchases. On each Additional Closing Date, subject
to the terms and conditions of this Agreement and the applicable Additional 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 Additional Ohio Receivables listed on the Schedule of
Additional Ohio Receivables for such Additional Closing Date and (A) in
the case of Additional Ohio Receivables that are Scheduled Interest
Receivables, all monies received thereunder on and after the related
Additional Cutoff Date, and (B) in the case of Additional Ohio
Receivables that are Simple Interest Receivables, all monies received
thereon on and after the related Additional Cutoff Date, in each case,
exclusive of any amounts allocable to the premium for physical damage
insurance force-placed by GMAC, 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 Additional
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
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(iv) the interest of GMACNA in any proceeds of the
property described in clauses (i) and (ii) above.
The property described in clauses (i) through (iv) above is referred to
herein collectively as the "Additional Ohio Purchased Property." The Initial
Ohio Purchased Property and the Additional Ohio Purchased Property are referred
to herein collectively as the "Ohio Purchased Property."
(c) It is the intention of GMACNA and GMAC that the sale,
assignment and transfer of the Ohio Receivables contemplated by this Agreement
and each 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.
(d) The transfer and assignment of Ohio Receivables contemplated
by this Agreement and each 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.
(a) Initial Purchase. In consideration for the Initial Ohio
Purchased Property, GMAC shall, on the Initial Closing Date, pay to GMACNA, in
immediately available funds, an amount equal to $284,603,700.29 (the "Initial
Ohio Receivables Purchase Price") and GMACNA shall execute and deliver to GMAC
an assignment in the form attached hereto as Exhibit A (the "Initial Ohio
Receivables Assignment").
(b) Additional Ohio Receivables. In consideration for the
Additional Ohio Purchased Property, GMAC shall, on each related Additional
Closing Date, pay to GMACNA, an amount equal to the Additional Ohio Receivables
Purchase Price in respect of the Additional Ohio Receivables sold on such date
and GMACNA shall execute and deliver to GMAC an assignment in the form attached
hereto as Exhibit B (the "Additional Ohio Receivables Assignment"). The Initial
Ohio Receivables Assignment and each Additional Ohio Receivables Assignment are
collectively referred to herein as the "Ohio Receivables Assignments."
Section 2.3 The Closing.
(a) Initial Purchase. The sale and purchase of the Initial Ohio
Receivables shall take place at the offices of Kirkland & Ellis LLP, 200 East
Randolph Drive, Chicago, Illinois 60601, on the Initial Closing Date, or at such
other time, date and place as the parties shall agree upon.
(b) Additional Purchases. The sale and purchase of the Additional
Ohio Receivables shall take place on the Additional Closing Dates at such
locations and at such times as are mutually agreeable to GMACNA and GMAC.
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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 Initial Closing Date with respect
to the Initial Ohio Receivables, and as of each Additional Closing Date with
respect to the Additional Ohio Receivables purchased on each Additional 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 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) Initial Ohio Receivables. In addition to the
characteristics set forth in Section 3.1(a)(i) above, each Initial Ohio
Receivable (1) has a first scheduled payment
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due date on or after November 1, 1998, (2) has a final scheduled
payment that is due no later than January 31, 2010, (3) was originated
on or after October 1, 1998, (4) as of the Initial Cutoff Date, was not
considered past due, that is, the payments due on that Initial
Receivable in excess of $25 have been received within 30 days of the
payment date, and was not a Liquidating Receivable.
(iii) Additional Ohio Receivables. In addition to the
characteristics set forth in Section 3.1(a)(i) above, each Additional
Ohio Receivable (1) has a final scheduled payment that is due no later
than 6 months prior to the Final Scheduled Distribution Date of the
Certificates, and (2) as of the related Additional Cutoff Date, was not
considered past due, that is, the payments due on that Additional Ohio
Receivable in excess of $25 have been received within 30 days of the
scheduled payment date and such Additional Ohio Receivable 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 Assignments 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.
(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.
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(vii) Other than the security interest granted to GMAC
pursuant to this Agreement, CARI 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, CARI 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, CARI or the Issuer has authorized the filing of, or is aware of,
any financing statements against GMACNA, GMAC, CARI 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, CARI, the Issuer and the Indenture Trustee
under this Agreement and the Basic Documents or any financing statement
that has been terminated. None of GMACNA, GMAC, CARI or the Issuer is
aware of any judgment or tax lien filings against GMACNA, GMAC, CARI or
the Issuer.
(c) Schedule of Ohio Receivables. The information set forth in the
Schedule of Initial Ohio Receivables is, and each Schedule of Additional Ohio
Receivables will be, 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 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, 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 Assignments, each Ohio Receivable 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.
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(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 Initial Cutoff Date or any Additional
Cutoff Date, as applicable, 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 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 Assignments, 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).
(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
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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 Initial Closing
Date with respect to the Initial Ohio Receivables and as of each Additional
Closing Date with respect to the Additional Ohio Receivables purchased on each
such Additional 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 Assignments 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 Assignments
have been duly authorized by GMACNA by all necessary corporate action.
(d) Valid Sale; Binding Obligation. This Agreement and the Initial
Ohio Receivables Assignment, when duly executed and delivered, shall constitute
a valid sale, transfer and assignment of the Initial Ohio Receivables; and each
Additional Ohio Receivables Assignment, when duly executed and delivered, shall
constitute a valid sale, transfer and assignment of the respective Additional
Ohio Receivables, in each case, enforceable against creditors of and purchasers
from GMACNA; and this Agreement together with the Ohio Receivables Assignments,
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 Assignments and the
fulfillment of the terms of this Agreement and the Ohio Receivables Assignments
shall not conflict with, result in any breach of any of the terms and provisions
of, or constitute (with or without notice or lapse of time) a default under, the
articles of incorporation or by-laws of 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 Assignments or violate any law
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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.
(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 Assignments, (B)
seeking to prevent the consummation of any of the transactions contemplated by
this Agreement and the Ohio Receivables Assignments, 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 Assignments.
(g) No Insolvency. With respect to the Additional Ohio Receivables
as of the related Additional Closing Date, (i) GMACNA was not and will not
become insolvent as a result of the transfer of such Additional Ohio
Receivables, (ii) GMACNA did not intend to or believe that it would incur debts
that would be beyond its ability to pay as such debts matured, (iii) GMACNA did
not transfer such Additional Ohio Receivables with the actual intent to hinder,
delay or defraud any Person and (iv) the assets of GMACNA did not constitute
unreasonably small capital to carry out its business as conducted.
Section 3.3 Representations and Warranties of GMAC. GMAC represents and
warrants to GMACNA as of the Initial Closing Date and each Additional 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 Assignments and to
carry out its terms and the execution, delivery and performance of this
Agreement and the Ohio Receivables Assignments 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 Assignments and the
fulfillment of the terms of this Agreement and the Ohio Receivables Assignments
shall not conflict with, result in any breach of any of the terms and provisions
of or constitute (with or without notice or lapse of time) a default under, the
certificate of incorporation or by-laws of 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
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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 Assignments, 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 Assignments.
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
Assignments 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).
11
Section 4.2 Other Liens or Interests.Except for the conveyances
hereunder and under the Ohio Receivables Assignments, 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 CARI or the Issuer. It is understood and agreed that the
obligation of GMACNA to repurchase any Ohio Receivable as to 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
CARI and assign all of its rights, title and interest hereunder and under the
Ohio Receivables Assignments to CARI, 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
Assignments 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
Initial Closing Date and each Additional 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 Initial Closing Date and each Additional Closing
Date.
(b) No Repurchase Event. No Repurchase Event shall have occurred
on or prior to the Initial Closing Date and each Additional Closing Date.
(c) Computer Files Marked. GMACNA shall, at its own expense, on or
prior to the Initial Closing Date and each Additional Closing Date, indicate in
its computer files created in connection with the Ohio Receivables, that the
Ohio Receivables have been sold to GMAC pursuant to this Agreement and the Ohio
Receivables Assignments and will deliver to GMAC the Schedule of Initial Ohio
Receivables or Schedule of Additional Ohio Receivables, as applicable.
12
(d) Documents to be Delivered By GMACNA.
(i) The Ohio Receivables Assignments. On the Initial
Closing Date, GMACNA shall execute and deliver the Initial Ohio
Receivables Assignment and on each Additional Closing Date, GMACNA
shall execute and deliver an Additional Ohio Receivables Assignment.
(ii) Evidence of UCC Filing. On or prior to the Initial
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 Initial Closing Date.
(iii) Other Documents. On the Initial Closing Date and on
each Additional Closing Date, GMACNA will provide such other documents
as GMAC may reasonably request.
(e) Conditions to the Purchase of Additional Ohio Receivables. In
addition to the conditions set forth in Section 5.1(a), the obligation of GMAC
to purchase Additional Ohio Receivables hereunder and pursuant to the related
Additional Ohio Receivables Assignment is subject to the satisfaction of the
following conditions:
(i) No Adverse Selection Procedures. No selection
procedures believed by GMACNA to be adverse to the interests of GMAC
shall have been utilized in selecting the Additional Ohio Receivables.
(ii) No Material Tax Consequences. The addition of the
Additional Ohio Receivables will not result in a material adverse tax
consequence to GMAC.
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 Assignments 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
Initial Closing Date with respect to the Initial Ohio Receivables and as of the
Additional Closing Date with respect to the Additional Ohio Receivables 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 Assignments on or
prior to the closing hereunder.
(b) Ohio Receivables Purchase Price. On the Initial Closing Date,
GMAC shall pay to GMACNA the Initial Ohio Receivables Purchase Price and on each
Additional Closing Date, GMAC shall pay to GMACNA the Additional Ohio
Receivables Purchase Price, in accordance with Section 2.2 of this Agreement.
13
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 Initial Closing Date and each Additional 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
200 Renaissance Center
12th Floor, MC: 482-B12-C24
Detroit, Michigan 48265
Fax No.: (313) 665-6351
To GMAC: General Motors Acceptance Corporation
200 Renaissance Center
12th Floor, MC: 482-B12-C24
Detroit, Michigan 48265
Fax No.: (313) 665-6351
Section 6.4 GOVERNING LAW. THIS AGREEMENT AND THE OHIO RECEIVABLES
ASSIGNMENTS SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL
LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO THE PRINCIPLES OF CONFLICTS OF
LAWS THEREOF OR OF ANY OTHER JURISDICTION OTHER THAN SECTION 5-1401 OF THE NEW
YORK GENERAL OBLIGATIONS LAW, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE
PARTIES UNDER THIS AGREEMENT SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
Section 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 Assignments shall operate as a waiver thereof, nor shall any single
or partial exercise of any such power, right or remedy preclude any other or
further exercise thereof or the exercise of any other power, right or remedy.
Section 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.
14
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 Assignments 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.
* * * * *
15
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:____________________________________
Name:
Title:
GENERAL MOTORS ACCEPTANCE
CORPORATION
By:____________________________________
Name: Karen A. Sabatowski
Title: Director - Securitization and Cash
Management
GMACNA Sale Agreement
EXHIBIT A
FORM OF INITIAL OHIO RECEIVABLES ASSIGNMENT
For value received, in accordance with the GMACNA Sale
Agreement dated as of August 14, 2003 (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 "Initial Ohio Purchased Property"):
(i) all right, title and interest of GMACNA in, to and
under the Initial Ohio Receivables listed on the Schedule of Initial
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 Initial Cutoff Date and (B) in the case of
Ohio Receivables that are Simple Interest Receivables, all monies
received thereon on and after the Initial Cutoff Date, in each case,
exclusive of any amounts allocable to the premium for physical damage
insurance force-placed by 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 Initial 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) the interest of GMACNA in any proceeds of the
property described in clauses (i) and (ii) above.
It is the intention of GMACNA and GMAC that the sale, assignment and
transfer of the Initial Ohio Receivables contemplated by this Initial Ohio
Receivables Assignment shall constitute a sale of the Initial Ohio Receivables
from GMACNA to GMAC and the beneficial interest in and title to the Initial 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
Initial Ohio Receivables, Ohio Receivable Files, any insurance policies or any
agreement or instrument relating to any of them.
This Initial 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.
A-1
IN WITNESS WHEREOF, the undersigned has caused this Initial
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:
A-2
EXHIBIT B
FORM OF ADDITIONAL OHIO RECEIVABLES ASSIGNMENT
For value received, in accordance with the GMACNA Sale
Agreement dated as of August 14, 2003 (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 "Additional Ohio Purchased
Property"):
(i) all right, title and interest of GMACNA in, to and
under the Additional Ohio Receivables listed on the Schedule of
Additional Ohio Receivables for such Additional Closing Date attached
hereto and (A) in the case of Additional Ohio Receivables that are
Scheduled Interest Receivables, all monies received thereunder on and
after the related Additional Cutoff Date, and (B) in the case of
Additional Ohio Receivables that are Simple Interest Receivables, all
monies received thereon on and after the related Additional Cutoff
Date, in each case, exclusive of any amounts allocable to the premium
for physical damage insurance force-placed by 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 Additional
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) the interest of GMACNA in any proceeds of the
property described in clauses (i) and (ii) above.
It is the intention of GMACNA and GMAC that the sale, assignment and
transfer of the Additional Ohio Receivables contemplated by this Additional Ohio
Receivables Assignment shall constitute a sale of the Additional Ohio
Receivables from GMACNA to GMAC and the beneficial interest in and title to the
Additional 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
Additional Ohio Receivables, Ohio Receivable Files, any insurance policies or
any agreement or instrument relating to any of them.
This Additional 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 Additional
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