EXHIBIT 99.10
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CAPITAL AUTO RECEIVABLES ASSET TRUST 200_-__
CARAT POOLING AND SERVICING AGREEMENT
BETWEEN
CAPITAL AUTO RECEIVABLES, INC.
AND
GENERAL MOTORS ACCEPTANCE CORPORATION
DATED AS OF ____, 200_
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TABLE OF CONTENTS
PAGE
ARTICLE I DEFINITIONS........................................................................................ 2
SECTION 1.01 Definitions.............................................................................. 2
SECTION 1.02 Owner of a COLT 200 - Secured Note.................................................... 2
ARTICLE II PURCHASE AND SALE OF COLT 200 - SECURED NOTES................................................... 2
SECTION 2.01 Purchase and Sale of COLT 200 - Secured Notes......................................... 2
SECTION 2.02 Secured Notes Purchase Price............................................................. 3
SECTION 2.03 The Closing.............................................................................. 3
ARTICLE III ADMINISTRATION AND SERVICING OF COLT 200 - SECURED NOTES........................................ 3
SECTION 3.01 Duties of the Servicer................................................................... 3
SECTION 3.02 Collection of Secured Note Payments...................................................... 5
SECTION 3.03 Realization Upon Liquidating Secured Notes............................................... 5
SECTION 3.04 [RESERVED]............................................................................... 5
SECTION 3.05 Maintenance of Security Interests in COLT 200 - Secured Notes......................... 5
SECTION 3.06 Covenants, Representations and Warranties of the Servicer................................ 5
SECTION 3.07 Purchase of COLT 200 - Secured Notes Upon Breach of Covenant.......................... 7
SECTION 3.08 Servicing Fee; Payment of Certain Expenses by Servicer................................... 7
SECTION 3.09 Servicer's Accounting.................................................................... 7
SECTION 3.10 Application of Collections............................................................... 8
ARTICLE IV REPRESENTATIONS AND WARRANTIES..................................................................... 8
SECTION 4.01 Representations and Warranties as to the COLT 200 - Secured Notes..................... 8
SECTION 4.02 Additional Representations and Warranties of GMAC........................................ 10
SECTION 4.03 Representations and Warranties of ▇▇▇▇................................................... 11
ARTICLE V ADDITIONAL AGREEMENTS.............................................................................. 12
SECTION 5.01 Conflicts With Further Transfer and Servicing Agreements................................. 12
SECTION 5.02 Protection of Title; Filings............................................................. 12
SECTION 5.03 Other Liens or Interests................................................................. 12
SECTION 5.04 Repurchase Events........................................................................ 13
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TABLE OF CONTENTS
(continued)
PAGE
SECTION 5.05 Indemnification.......................................................................... 13
SECTION 5.06 Further Assignments...................................................................... 13
ARTICLE VI CONDITIONS......................................................................................... 13
SECTION 6.01 Conditions to Obligation of ▇▇▇▇......................................................... 13
SECTION 6.02 Documents to be Delivered By GMAC at the Closing......................................... 14
SECTION 6.03 Conditions To Obligation of GMAC......................................................... 14
ARTICLE VII MISCELLANEOUS PROVISIONS........................................................................... 15
SECTION 7.01 Amendment................................................................................ 15
SECTION 7.02 Survival................................................................................. 15
SECTION 7.03 Notices.................................................................................. 15
SECTION 7.04 Governing Law............................................................................ 15
SECTION 7.05 Waivers.................................................................................. 15
SECTION 7.06 Costs and Expenses....................................................................... 15
SECTION 7.07 Confidential Information................................................................. 15
SECTION 7.08 Headings................................................................................. 15
SECTION 7.09 Counterparts............................................................................. 16
SECTION 7.10 No Petition Covenant..................................................................... 16
SECTION 7.11 Limitations on Rights of Others.......................................................... 16
EXHIBIT A Form of First Step Secured Notes Assignment
APPENDIX A Definitions, Rules of Construction and Notices
-ii-
THIS CARAT POOLING AND SERVICING AGREEMENT, dated as of _____, 200_,
between CAPITAL AUTO RECEIVABLES, INC., a Delaware corporation ("▇▇▇▇"), and
GENERAL MOTORS ACCEPTANCE CORPORATION, a Delaware corporation (in its capacity
as seller of the COLT 200_-__ Secured Notes, "GMAC" and in its capacity as
servicer of the COLT 200_-__ Secured Notes, the "Servicer").
WHEREAS, GMAC desires to sell a portfolio of secured notes, each of which
is secured by a lien on and security interest in the Vehicle and Series 200 -
Lease described by such secured note, all proceeds thereof, including insurance
proceeds and any and all rights under any guarantees or similar obligations
relating to such Series 200_-__ Lease, Vehicle or proceeds thereof;
WHEREAS, GMAC, as holder of secured notes, has certain rights to receive
payments with respect to each related Vehicle and Series 200_-__ Lease, and to
the other proceeds and rights described herein;
WHEREAS, ▇▇▇▇ desires to purchase a portfolio of secured notes and related
rights owned by GMAC and GMAC is willing to sell such secured notes and related
rights to ▇▇▇▇;
WHEREAS, ▇▇▇▇ may wish to sell or otherwise transfer such secured notes
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 secured notes and related rights;
WHEREAS, the Issuer may wish to provide in the agreements pursuant to
which it acquires its interest in such secured notes and related rights and
issues the Securities (all such agreements, including, the CARAT Trust Sale and
Servicing Agreement or the CARAT Indenture, being collectively the "Further
Transfer and Servicing Agreements") that GMAC shall service such secured notes;
WHEREAS, the Servicer is willing to service such secured notes in
accordance with the terms hereof for the benefit of ▇▇▇▇ and, by its execution
of the Further Transfer and Servicing Agreements, will be willing to service
such secured notes 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 secured
notes, and the proceeds thereof, as the interests of such parties may appear
from time to time.
NOW, THEREFORE, in consideration of the premises and the mutual covenants
herein contained, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01 Definitions. Certain capitalized terms used in this Agreement
are defined in and shall have the respective meanings assigned to them in Part I
of Appendix A to this Agreement. All references herein to "the Agreement" or
"this Agreement" are to this CARAT Pooling and Servicing Agreement as it may be
amended, supplemented or modified from time to time, and all references herein
to Articles and Sections are to Articles or Sections of this Agreement unless
otherwise specified. The rules of construction set forth in Part II of such
Appendix A shall be applicable to this Agreement.
SECTION 1.02 Owner of a COLT 200 - Secured Note. For purposes of this
Agreement, the "Owner" of a COLT 200_-__ Secured Note shall mean ▇▇▇▇ until the
execution and delivery of the Further Transfer and Servicing Agreements, and
thereafter shall mean the Issuer; provided, however, that GMAC or ▇▇▇▇, as
applicable, shall be the "Owner" of any COLT 200_-__ Secured Note from and after
the time that such Person shall acquire such COLT 200_-__ Secured Note, whether
pursuant to Section 3.07 or 5.04 of this Agreement, any provision of the Further
Transfer and Servicing Agreements or otherwise.
ARTICLE II
PURCHASE AND SALE OF COLT 200_-__ SECURED NOTES
SECTION 2.01 Purchase and Sale of COLT 200 - Secured Notes. On such date
as is acceptable to ▇▇▇▇ and GMAC, subject to satisfaction of the conditions
specified in Article VI and the First Step Secured Notes Assignment (and, in any
event, immediately prior to consummation of the related transactions
contemplated by the Further Transfer and Servicing Agreements, if any), and in
consideration of CARI's payment to GMAC of the Secured Notes Purchase Price,
GMAC shall sell, transfer, assign and otherwise convey to ▇▇▇▇, without
recourse:
(a) all right, title and interest of GMAC in, to and under the COLT
200_-__ Secured Notes and all monies due thereunder on and after the Series
200_-__ Closing Date;
(b) all right, title and interest of GMAC in, to and under the COLT
200_-__ Trust Estate securing the COLT 200_-__ Secured Notes, including: (i) the
Series 200_-__ Lease Assets and all monies due thereunder on and after the
Cutoff Date and with respect to the Vehicles and, to the extent permitted by
law, any accessions thereto, (ii) the interest of GMAC in any proceeds from
claims on any physical damage, credit life, credit disability or other insurance
policies covering Vehicles or Lessees and (iii) the interest of GMAC in any
proceeds from recourse against Dealers on the Series 200_-__ Lease Assets;
(c) all right, title and interest of GMAC in, to and under the First
Step Secured Notes Assignment;
(d) all right, title and interest of GMAC in, to and under (i) the
VAULT Trust Agreement (solely with respect to the Vehicles related to Series
200_-__ Lease Assets), (ii) the COLT Indenture, (iii) the COLT Sale and
Contribution Agreement, (iv) the COLT Custodian Agreement and (v) the COLT
Servicing Agreement; and
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(e) the present and future claims, demands, causes and choses in
action in respect of any or all the foregoing and all payments on or under and
all proceeds of every kind and nature whatsoever in respect of any or all the
foregoing, including all proceeds of the conversion of any or all of the
foregoing, voluntary or involuntary, into cash or other liquid property, all
cash proceeds, accounts, accounts receivable, notes, drafts, acceptances,
chattel paper, checks, deposit accounts, insurance proceeds, investment
property, payment intangibles, general intangibles, condemnation awards, rights
to payment of any and every kind and other forms of obligations and receivables,
instruments and other property which at any time constitute all or part of or
are included in the proceeds of any of the foregoing.
The property described in clauses (a) through (e) is referred to herein
collectively as the "Purchased Property."
It is the intention of GMAC and ▇▇▇▇ that the transfer and assignment
contemplated by this Agreement and the First Step Secured Notes Assignment shall
constitute a sale of the COLT 200_-__ Secured Notes and the other Purchased
Property from GMAC to ▇▇▇▇ and the beneficial interest in and title to the COLT
200_-__ Secured Notes and the other Purchased Property 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 ▇▇▇▇ of (i) any obligation of GMAC to the Lessees, Dealers,
insurers or any other Person in connection with the COLT 200_-__ Secured Notes,
Series 200_-__ Leases, Vehicles, any Dealer Agreements, any insurance policies
or any agreement or instrument relating to any of them and (ii) any obligation
or liability of COLT or ownership of the Series 200_-__ Leases on related
Vehicles.
SECTION 2.02 Secured Notes Purchase Price. In consideration for the
Purchased Property, ▇▇▇▇ shall, on or about the Series 200_-__ Closing Date, pay
to GMAC an amount equal to the Initial Aggregate Secured Notes Principal Balance
in respect of the COLT 200_-__ Secured Notes (the "Secured Notes Purchase
Price"), and GMAC shall execute and deliver to ▇▇▇▇ an assignment in the form
attached as Exhibit A (the "First Step Secured Notes Assignment"). A portion of
the Secured Notes Purchase Price equal to $_______ shall be paid to GMAC in
immediately available funds.
SECTION 2.03 The Closing. The sale and purchase of the COLT 200_-__
Secured Notes shall take place at the offices of Mayer, Brown, ▇▇▇▇ & Maw LLP,
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, at a date and time mutually
agreeable to GMAC and ▇▇▇▇, and may occur simultaneously with the closing of
transactions contemplated by the Further Transfer and Servicing Agreements.
ARTICLE III
ADMINISTRATION AND SERVICING OF COLT 200_-__ SECURED NOTES
SECTION 3.01 Duties of the Servicer. (a) The Servicer is hereby appointed
and authorized to act as agent for the Owner of the COLT 200_-__ Secured Notes
and in such capacity shall manage, service, administer and make collections on
the COLT 200_-__ Secured Notes with
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reasonable care, using that degree of skill and attention that the Servicer
exercises with respect to comparable property 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 COLT 200_-__
Secured Notes set forth herein and in the Further Transfer and Servicing
Agreements.
(b) The Servicer's duties shall include collection and posting of
all payments on the COLT 200_-__ Secured Notes, investigating delinquencies in
payment on the COLT 200_-__ Secured Notes, accounting for collections and
furnishing monthly and annual statements to ▇▇▇▇ and any other Persons
designated herein with respect to distributions, generating federal income tax
information, giving any required notices or instructions to ▇▇▇▇ or the CARAT
Owner Trustee 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.
(c) Without limiting the generality of the foregoing, the Servicer
is hereby authorized and empowered by the Owner of the COLT 200_-__ Secured
Notes, 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 COLT 200_-__ Secured Notes.
(d) The Servicer is hereby authorized to commence, in its own name
or in the name of the Owner of such COLT 200_-__ Secured Note a legal proceeding
to enforce a Liquidating Secured Note as contemplated by Section 3.03, to
enforce all obligations of GMAC and ▇▇▇▇ under this Agreement and under the
Further Transfer and Servicing Agreements or to commence or participate in a
legal proceeding (including a bankruptcy proceeding) relating to or involving a
COLT 200_-__ Secured Note or a Liquidating Secured Note. If the Servicer
commences or participates in such a legal proceeding in its own name, the Owner
of such COLT 200_-__ Secured Note shall be deemed to have automatically assigned
such COLT 200 - Secured Note to the Servicer for purposes of commencing or
participating in any such proceeding as a party or claimant. Upon such automatic
assignment, the Servicer will be, and will have all the rights and duties of, a
secured party under the UCC and other applicable law with respect to such COLT
200_-__ Secured Note. At the Servicer's request from time to time, the Owner of
a COLT 200_-__ Secured Note assigned under this Section 3.01 shall provide the
Servicer with evidence of the assignment in trust for the benefit of the
Interested Parties as may be reasonably necessary for the Servicer to take any
of the actions set forth in the following sentence. The Servicer is hereby
authorized and empowered by the Owner of a COLT 200_-__ Secured Note 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 COLT 200_-__ Secured Notes 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 COLT 200_-__
Secured Note of equivalent authority and rights.
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SECTION 3.02 Collection of Secured Note Payments. The Servicer shall make
commercially reasonable efforts to collect all payments called for under the
terms and provisions of the COLT 200_-__ Secured Notes as and when the same
shall become due, and shall follow such collection practices, policies and
procedures as it follows with respect to comparable property that it services
for itself or others.
SECTION 3.03 Realization Upon Liquidating Secured Notes. The Servicer
shall use reasonable efforts, consistent with its customary servicing
procedures, to collect on a COLT 200_-__ Secured Note following a default
thereunder. The Servicer is authorized to follow such practices, policies and
procedures as it follows with respect to comparable property that it services
for itself or others, which practices, policies and procedures may include
enforcing the rights of a holder of COLT 200_-__ Secured Notes under the COLT
Servicing Agreement.
SECTION 3.04 [RESERVED].
SECTION 3.05 Maintenance of Security Interests in COLT 200 - Secured
Notes. 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 COLT 200_-__ Secured Note in the
related Series 200_-__ Lease Asset, the related Vehicle and other Purchased
Property as set forth in Section 2.10 of the COLT Servicing Agreement. The Owner
of each COLT 200_-__ Secured Note hereby authorizes the Servicer to re-perfect
such security interest on behalf of such Owner, as necessary for any reason.
SECTION 3.06 Covenants, Representations and Warranties of the Servicer. As
of the Series 200_-__ Closing Date, the Servicer hereby makes the following
representations, warranties and covenants on which ▇▇▇▇ relies in accepting the
COLT 200_-__ Secured Notes hereunder and pursuant to the First Step Secured
Notes Assignment, and on which the Issuer shall rely in accepting the COLT 200 -
Secured Notes and executing and delivering the Securities under the Further
Transfer and Servicing Agreements.
(a) The Servicer covenants that from and after the Series 200_-__
Closing Date:
(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 part of the COLT 200_-__ Trust Estate from the security
interest securing the related COLT 200_-__ Secured Note; and
(ii) No Impairment. The Servicer shall do nothing to impair
the rights or security interest of ▇▇▇▇ or any Interested Party in and to the
Purchased Property.
(b) Upon the execution hereof and of the Further Transfer and
Servicing Agreements, the Servicer represents and warrants to the Issuer and
▇▇▇▇, 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:
(i) Organization and Good Standing. The Servicer has been duly
organized and is validly existing and in good standing under the laws of its
state of
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incorporation, 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 service the COLT 200_-__ Secured Notes as provided herein and in
the Further Transfer and Servicing Agreements;
(ii) Due Qualification. The Servicer is duly qualified to do
business as a foreign corporation in good standing, and has obtained all
necessary licenses and approvals, in all jurisdictions in which the ownership or
lease of property or the conduct of its business (including the servicing of the
COLT 200_-__ Secured Notes) requires or shall require such qualification;
(iii) Power and Authority. The Servicer has the power and
authority to execute and deliver this Agreement and the Further Transfer and
Servicing Agreements and to carry out the terms of such agreements; and the
Servicer's execution, delivery and performance of this Agreement and the Further
Transfer and Servicing Agreements have been duly authorized by the Servicer by
all necessary corporate action;
(iv) Binding Obligation. The Further Transfer and Servicing
Agreements and this Agreement, when duly executed and delivered, shall
constitute the legal, valid and binding obligations of the Servicer enforceable
in accordance with their respective terms, except as enforceability may be
limited by bankruptcy, insolvency, reorganization, or other similar laws
affecting the enforcement of creditors' rights in general and by general
principles of equity, regardless of whether such enforceability is considered in
a proceeding in equity or at law;
(v) No Violation. The consummation by the Servicer of the
transactions contemplated by this Agreement and the Further Transfer and
Servicing Agreements, and the fulfillment by the Servicer of the terms hereof
and thereof, shall not conflict with, result in any breach of any of the terms
and provisions of, or constitute (with or without notice or lapse of time) a
default under, the articles of incorporation or by-laws of the Servicer, or any
indenture, agreement, mortgage, deed of trust or other instrument to which the
Servicer is a party or by which it is bound, or result in the creation or
imposition of any Lien upon any of its properties pursuant to the terms of any
such indenture, agreement, mortgage, deed of trust or other instrument, other
than this Agreement and the Further Transfer and Servicing Agreements, or
violate any law or, to the best of the Servicer's knowledge, any order, rule or
regulation applicable to the Servicer of any court or of any federal or state
regulatory body, administrative agency or other governmental instrumentality
having jurisdiction over the Servicer or any of its properties; and
(vi) No Proceedings. To the Servicer's knowledge, there are no
proceedings or investigations pending, or threatened, before any court,
regulatory body, administrative agency or other tribunal or governmental
instrumentality having jurisdiction over the Servicer or its properties (A)
asserting the invalidity of this Agreement and the Further Transfer and
Servicing Agreements or any Securities issued thereunder, (B) seeking to prevent
the issuance of such Securities or the consummation of any of the transactions
contemplated by the Further Transfer and Servicing Agreements, or (C) seeking
any determination or ruling that might materially and adversely affect this
Agreement, the performance by the Servicer of its
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obligations under, or the validity or enforceability of, the Further Transfer
and Servicing Agreements.
SECTION 3.07 Purchase of COLT 200 - Secured Notes Upon Breach of Covenant.
Upon discovery by any of the Servicer, ▇▇▇▇ or any party under any Further
Transfer and Servicing Agreements of a breach of any of the covenants set forth
in Sections 3.05 and 3.06(a), the party discovering such breach shall give
prompt written notice thereof to the other parties thereto. 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 COLT 200_-__
Secured Note 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. It is understood and agreed that the obligation
of the Servicer to purchase any COLT 200_-__ Secured Note with respect to which
such a breach has occurred and is continuing shall, if such obligation is
fulfilled, constitute the sole remedy against the Servicer for such breach
available to ▇▇▇▇ or any Interested Party.
SECTION 3.08 Servicing Fee; Payment of Certain Expenses by Servicer. The
Servicer is entitled to receive the Servicing Fee out of collections in respect
of the COLT 200_-__ Secured Notes. The Servicer shall also be entitled to
Investment Earnings as, and to the extent, set forth in the Further Transfer and
Servicing Agreements. Subject to any limitations on the Servicer's liability
under the Further Transfer and Servicing Agreements, the Servicer shall be
required to pay all expenses incurred by it in connection with its activities
under this Agreement and under the Further Transfer and Servicing Agreements
(including fees and disbursements of the Issuer, any trustees and independent
accountants, taxes imposed on the Servicer, expenses incurred in connection with
distributions and reports to holders of Securities and all other fees and
expenses not expressly stated under this Agreement or the Further Transfer and
Servicing Agreements to be for the account of the holders of Securities).
SECTION 3.09 Servicer's Accounting. On each Distribution Date under a
Further Transfer and Servicing Agreement, the Servicer shall deliver to each of
the trustees and other applicable parties under the Further Transfer and
Servicing Agreements and to ▇▇▇▇ and the Rating Agencies a Servicer's Accounting
with respect to the immediately preceding Monthly Period executed by the
President or any Vice President of the Servicer containing all information
necessary to each such party for making any distributions required by the
Further Transfer and Servicing Agreements, and all information necessary to each
such party for sending any statements required under the Further Transfer and
Servicing Agreements. COLT 200_-__ Secured Notes to be purchased by the Servicer
under Sections 3.07 or 5.04 or to be repurchased by ▇▇▇▇ or GMAC under the
Further Transfer and Servicing Agreements as of the last day of any Monthly
Period shall be identified by the [NAME OF THE STATE] identified on such COLT
200 - Secured Note (as set forth in the Schedule of Secured Notes). With respect
to any COLT 200_-__ Secured Notes for which ▇▇▇▇ is the Owner, the Servicer
shall deliver to ▇▇▇▇ such accountings relating to such COLT 200_-__ Secured
Notes and the actions of the Servicer with respect thereto as ▇▇▇▇ may
reasonably request.
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SECTION 3.10 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 described in Section 4.06 of the CARAT Trust Sale and
Servicing Agreement. With respect to each Administrative Secured Note and
Warranty Secured Note, payments by or on behalf of the COLT shall be applied in
the same manner.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.01 Representations and Warranties as to the COLT 200 - Secured
Notes. GMAC makes the following representations and warranties as to the COLT
200_-__ Secured Notes related thereto on which ▇▇▇▇ relies in accepting the COLT
200_-__ Secured Notes. Such representations and warranties speak as of the
Series 200_-__ Closing Date, and shall survive the sale, transfer and assignment
of the COLT 200_-__ Secured Notes and the other Purchased Property to ▇▇▇▇ and
the subsequent assignment and transfer pursuant to the Further Transfer and
Servicing Agreements:
(a) Custody of COLT 200 - Secured Notes. GMAC has instructed the
Secured Note Registrar to identify the CARAT Indenture Trustee as the registered
holder of the COLT 200_-__ Secured Notes, in each case in the Secured Note
Register.
(b) Characteristics of COLT 200 - Secured Notes. Each COLT 200_-__
Secured Note: (i) was issued by COLT to fund a portion of the purchase price of
the related pool of Series 200_-__ Leases and Vehicles, (ii) has created or
shall create a valid, binding and enforceable first priority security interest
in favor of GMAC or the COLT Indenture Trustee on behalf of GMAC in the related
pool of Series 200_-__ Leases and Vehicles, which security interest is
assignable by GMAC to ▇▇▇▇, (iii) contains customary and enforceable provisions
such as to render the rights and remedies of the holder thereof adequate for
realization against the collateral of the benefits of the security, (iv) shall
yield interest at the rate set forth in such COLT 200 - Secured Note and (v)
prior to the sale of the COLT 200_-__ Secured Notes to ▇▇▇▇ under this
Agreement, the COLT 200_-__ Secured Notes constitute "chattel paper," "payment
intangibles," "promissory notes" or "certificated securities" within the meaning
of the applicable UCC.
(c) Binding Obligation. Each COLT 200_-__ Secured Note represents
the genuine legal, valid and binding payment obligation of COLT thereon, in each
case 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;
(d) COLT 200 - Secured Notes in Force. No COLT 200 - Secured Note
has been satisfied, subordinated or rescinded, and the related Series 200_-__
Lease and Vehicle securing each such COLT 200 - Secured Note has not been
released from the Lien of the related COLT 200 - Secured Note in whole or in
part;
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(e) No Waiver or Amendment. Since the Series 200_-__ Closing Date,
no provision of a COLT 200_-__ Secured Note has been waived, amended or modified
in any respect.
(f) No Defenses. No right of rescission, setoff, counterclaim or
defense has been asserted or threatened with respect to any COLT 200_-__ Secured
Note.
(g) No Liens. To the best of GMAC's knowledge: (1) there are no
liens or claims that have been filed for work, labor or materials affecting any
Series 200_-__ Lease securing any COLT 200_-__ Secured Note that are or may be
liens prior to, or equal or coordinate with, the security interest in the Series
200_-__ Leases granted by the COLT 200_-__ Secured Note; and (2) no tax lien has
been filed and no claim related thereto is being asserted with respect to any
COLT 200_-__ Secured Note. 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 COLT 200_-__ Secured Note;
(h) Good Title. No COLT 200_-__ Secured Note has been sold,
transferred, assigned or pledged by GMAC to any Person other than ▇▇▇▇.
Immediately prior to the conveyance of the COLT 200_-__ Secured Notes pursuant
to this Agreement and the First Step Secured Notes Assignment, GMAC had good and
marketable title thereto, free of any Lien. Upon execution and delivery of this
Agreement by GMAC, ▇▇▇▇ shall have all of the right, title and interest of GMAC
in and to the COLT 200_-__ Secured Notes, the unpaid indebtedness evidenced
thereby and the collateral security therefor, free of any Lien.
(i) Lawful Assignment. No COLT 200_-__ Secured Note 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 COLT 200_-__ Secured Note
under this Agreement, the CARAT Trust Sale and Servicing Agreement and the CARAT
Indenture, as applicable.
(j) All Filings Made. All filings (including UCC filings) necessary
in any jurisdiction to give ▇▇▇▇ a first priority perfected ownership interest
in the Purchased Property have been made. Other than the security interest
granted to ▇▇▇▇ pursuant to this Agreement, GMAC has not pledged, assigned,
sold, granted a security interest in, or otherwise conveyed any of the COLT
200_-__ Secured Notes. GMAC has not authorized the filing of, and is not aware
of, any financing statements against GMAC that include a description of
collateral covering the COLT 200_-__ Secured Notes other than the financing
statements relating to the security interests granted to ▇▇▇▇ under this
Agreement, or any financing statement that has been terminated. GMAC is not
aware of any judgment or tax lien filings against it.
(k) Maturity of COLT 200 - Secured Notes. Each COLT 200_-__ Secured
Note has an original maturity of [not less than 12 and] not more than [60]
months.
(l) While it is the intention of GMAC and ▇▇▇▇ that the transfer and
assignment contemplated by the CARAT Pooling and Servicing Agreement and the
First Step Secured Notes Assignment shall constitute the sale of the COLT
200_-__ Secured Notes from GMAC to ▇▇▇▇, the CARAT Pooling and Servicing
Agreement creates a valid and continuing security interest (as defined in the
applicable UCC) in the COLT 200_-__ Secured Notes in favor
9
of ▇▇▇▇ which security interest is prior to all other Liens, and is enforceable
as such as against creditors of and purchasers from GMAC.
SECTION 4.02 Additional Representations and Warranties of GMAC. GMAC
hereby represents and warrants to ▇▇▇▇ as of the Series 200_-__ Closing Date,
both in its capacity as the seller of the COLT 200_-__ Secured Notes hereunder
and in its capacity as Servicer, that:
(a) Organization and Good Standing. GMAC has been duly organized and
is validly existing as a corporation in good standing under the laws of the
State of Delaware, with power and authority to own its properties and to conduct
its business as such properties are presently owned and such business is
presently conducted;
(b) Due Qualification. GMAC is duly qualified to do business as a
foreign corporation in good standing, and has obtained all necessary licenses
and approvals, in all jurisdictions in which the ownership or lease of property
or the conduct of its business (including the servicing of the COLT 200_-__
Secured Notes) requires or shall require such qualification;
(c) Power and Authority. GMAC has the power and authority to execute
and deliver this Agreement and the First Step Secured Notes Assignment and to
carry out its terms; GMAC has full power and authority to sell and assign the
property to be sold and assigned to ▇▇▇▇ and to service the COLT 200_-__ Secured
Notes as provided herein and in the Further Transfer and Servicing Agreements,
has duly authorized such sale and assignment to ▇▇▇▇ by all necessary corporate
action; and the execution, delivery and performance of this Agreement and the
First Step Secured Notes Assignment have been duly authorized by GMAC by all
necessary corporate action;
(d) Valid Sale; Binding Obligation. This Agreement and the First
Step Secured Notes Assignment, when duly executed and delivered, shall
constitute a valid sale, transfer and assignment of the COLT 200_-__ Secured
Notes and other Purchased Property enforceable against creditors of and
purchasers from GMAC; and this Agreement together with the First Step Secured
Notes Assignment, when duly executed and delivered, shall constitute a legal,
valid and binding obligation of GMAC enforceable in accordance with its terms,
except as enforceability may be limited by bankruptcy, insolvency,
reorganization or other similar laws affecting the enforcement of creditors'
rights in general and by general principles of equity, regardless of whether
such enforceability is considered in a proceeding in equity or at law;
(e) No Violation. The consummation of the transactions contemplated
by this Agreement and the First Step Secured Notes Assignment and the
fulfillment of the terms of this Agreement and the First Step Secured Notes
Assignment shall not conflict with, result in any breach of any of the terms and
provisions of, or constitute (with or without notice or lapse of time) a default
under, the articles of incorporation or by-laws of GMAC, or any indenture,
agreement, mortgage, deed of trust or other instrument to which GMAC is a party
or by which it is bound, or result in the creation or imposition of any Lien
upon any of its properties pursuant to the terms of any such indenture,
agreement, mortgage, deed of trust or other instrument, other than this
Agreement and the First Step Secured Notes Assignment or violate any law or, to
the best of GMAC's knowledge, any order, rule or regulation applicable to GMAC
of any court or of
10
any federal or state regulatory body, administrative agency or other
governmental instrumentality having jurisdiction over GMAC or any of its
properties; and
(f) No Proceedings. To GMAC's knowledge, there are no proceedings or
investigations pending, or threatened, before any court, regulatory body,
administrative agency or other tribunal or governmental instrumentality having
jurisdiction over GMAC or its properties (A) asserting the invalidity of this
Agreement and the First Step Secured Notes Assignment, (B) seeking to prevent
the consummation of any of the transactions contemplated by this Agreement and
the First Step Secured Notes Assignment, or (C) seeking any determination or
ruling that might materially and adversely affect the performance by GMAC of its
obligations under, or the validity or enforceability of, this Agreement and the
First Step Secured Notes Assignment.
SECTION 4.03 Representations and Warranties of ▇▇▇▇. ▇▇▇▇ hereby
represents and warrants to GMAC as of the Series 200_-__ Closing Date:
(a) Organization and Good Standing. ▇▇▇▇ has been duly organized and
is validly existing as a corporation in good standing under the laws of the
State of Delaware, with power and authority to own its properties and to conduct
its business as such properties are presently owned and such business is
presently conducted, and had at all relevant times, and now has, power,
authority and legal right to acquire and own the COLT 200_-__ Secured Notes;
(b) Due Qualification. ▇▇▇▇ is duly qualified to do business as a
foreign corporation in good standing, and has obtained all necessary licenses
and approvals in all jurisdictions in which the ownership or lease of property
or the conduct of its business requires such qualification;
(c) Power and Authority. ▇▇▇▇ has the power and authority to execute
and deliver this Agreement and the First Step Secured Notes Assignment and to
carry out its terms and the execution, delivery and performance of this
Agreement and the First Step Secured Notes Assignment have been duly authorized
by ▇▇▇▇ by all necessary corporate action;
(d) No Violation. The consummation of the transactions contemplated
by this Agreement and the First Step Secured Notes Assignment and the
fulfillment of the terms of this Agreement and the First Step Secured Notes
Assignment shall not conflict with, result in any breach of any of the terms and
provisions of or constitute (with or without notice or lapse of time) a default
under, the certificate of incorporation or by-laws of ▇▇▇▇, or any indenture,
agreement, mortgage, deed of trust or other instrument to which ▇▇▇▇ is a party
or by which it is bound, or result in the creation or imposition of any Lien
upon any of its properties pursuant to the terms of any such indenture,
agreement or other instrument, other than any Further Transfer and Servicing
Agreement or violate any law or, to the best of CARI's knowledge, any order,
rule or regulation applicable to ▇▇▇▇ of any court or of any federal or state
regulatory body, administrative agency or other governmental instrumentality
having jurisdiction over ▇▇▇▇ or any of its properties; and
(e) No Proceedings. To CARI's knowledge, there are no proceedings or
investigations pending, or threatened, before any court, regulatory body,
administrative agency
11
or other tribunal or governmental instrumentality having jurisdiction over ▇▇▇▇
or its properties (i) asserting the invalidity of this Agreement and the First
Step Secured Notes Assignment, or (ii) seeking any determination or ruling that
might materially and adversely affect the performance by ▇▇▇▇ of its obligations
under, or the validity or enforceability of, this Agreement and the First Step
Secured Notes Assignment.
ARTICLE V
ADDITIONAL AGREEMENTS
SECTION 5.01 Conflicts With Further Transfer and Servicing Agreements. To
the extent that any provision of Sections 5.02 through 5.04 of this Agreement
conflicts with any provision of the Further Transfer and Servicing Agreements,
the Further Transfer and Servicing Agreements shall govern.
SECTION 5.02 Protection of Title; Filings. (a) GMAC shall authorize and
execute, as applicable, and file such financing statements and cause to be
authorized and executed, as applicable, and filed such continuation and other
statements, all in such manner and in such places as may be required by law
fully to preserve, maintain and protect the interest of ▇▇▇▇ under this
Agreement and the First Step Secured Notes Assignment in the COLT 200 - Secured
Notes and the other Purchased Property and in the proceeds thereof. GMAC shall
deliver (or cause to be delivered) to ▇▇▇▇ file-stamped copies of, or filing
receipts for, any document filed as provided above, as soon as available
following such filing GMAC hereby authorizes ▇▇▇▇ and its assigns to file all
such financing statements.
(b) Name Change. GMAC shall not change its state of organization or
its name, identity or corporate structure in any manner that would, could or
might make any financing statement or continuation statement filed by GMAC in
accordance with Section 5.02(a) seriously misleading within the meaning of the
UCC, unless it shall have given ▇▇▇▇ at least 60 days prior written notice
thereof.
(c) Executive Office; Maintenance of Offices. GMAC shall give ▇▇▇▇
at least 60 days prior written notice of any relocation of its principal
executive office if, as a result of such relocation, the applicable provisions
of the UCC would require the filing of any amendment of any previously filed
financing or continuation statement or of any new financing statement. GMAC
shall at all times maintain each office from which it services COLT 200_-__
Secured Notes and its principal executive office within the United States of
America.
(d) New Debtor. In the event that GMAC shall change the jurisdiction
in which it is incorporated or otherwise enter into any transaction which would
result in a "new debtor" (as defined in the UCC) succeeding to the obligations
of GMAC hereunder, GMAC shall comply fully with the obligations of Section
5.02(a).
SECTION 5.03 Other Liens or Interests. Except for the conveyances
hereunder and under the First Step Secured Notes Assignment and as contemplated
by the Further Transfer and Servicing Agreements, GMAC shall not sell, pledge,
assign or transfer the COLT 200_-__ Secured Notes and the Purchased Property to
any other Person, or grant, create, incur, assume or suffer to exist any Lien on
any interest therein, and GMAC shall defend the right, title and
12
interest of ▇▇▇▇ in, to and under such COLT 200_-__ Secured Notes against all
claims of third parties claiming through or under GMAC.
SECTION 5.04 Repurchase Events. By its execution of the Further Transfer
and Servicing Agreements to which it is a party, GMAC shall acknowledge the
assignment by ▇▇▇▇ of such of its right, title and interest in, to and under
this Agreement and the First Step Secured Notes Assignment to the Issuer as
shall be provided in the Further Transfer and Servicing Agreements. GMAC hereby
covenants and agrees with ▇▇▇▇ for the benefit of ▇▇▇▇ and the Interested
Parties that in the event of a breach of (i) any of GMAC's representations and
warranties contained in Section 4.01 hereof with respect to any COLT 200_-__
Secured Note (a "Repurchase Event"), GMAC shall repurchase such COLT 200_-__
Secured Note from the Issuer (if the Issuer is then the Owner of such COLT
200_-__ Secured Note) on the date and for the amount specified in the Further
Transfer and Servicing Agreements, without further notice from ▇▇▇▇ hereunder.
Upon the occurrence of a Repurchase Event with respect to a COLT 200 - Secured
Note for which ▇▇▇▇ is the Owner, GMAC agrees to repurchase such COLT 200_-__
Secured Note from ▇▇▇▇ for an amount and upon the same terms as GMAC would be
obligated to repurchase such COLT 200_-__ Secured Note 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 COLT 200_-__ Secured Note as if GMAC had
purchased such COLT 200 - Secured Note from the Issuer as the Owner thereof. It
is understood and agreed that the obligation of GMAC to repurchase any COLT
200_-__ Secured Note as to which a breach has occurred and is continuing shall,
if such obligation is fulfilled, constitute the sole remedy against GMAC for
such breach available to ▇▇▇▇ or any Interested Party.
SECTION 5.05 Indemnification. GMAC shall indemnify ▇▇▇▇ for any liability
as a result of the failure of a COLT 200_-__ Secured Note to be issued in
compliance with all requirements of law. This indemnity obligation shall be in
addition to any obligation that GMAC may otherwise have.
SECTION 5.06 Further Assignments. GMAC acknowledges that ▇▇▇▇ may,
pursuant to the Further Transfer and Servicing Agreements, sell the COLT 200 -
Secured Notes and the other Purchased Property to the Issuer and assign its
rights hereunder and under the First Step Secured Notes Assignment to the
Issuer, subject to the applicable 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 COLT 200_-__ Secured Notes and the other Purchased
Property and this Agreement and the First Step Secured Notes Assignment.
ARTICLE VI
CONDITIONS
SECTION 6.01 Conditions to Obligation of ▇▇▇▇. The obligation of ▇▇▇▇ to
purchase the COLT 200_-__ Secured Notes hereunder and pursuant to the First Step
Secured Notes Assignment is subject to the satisfaction of the following
conditions:
(a) Representations and Warranties True. The representations and
warranties of GMAC hereunder shall be true and correct as of the Series 200_-__
Closing Date, with the
13
same effect as if then made, and GMAC shall have performed all obligations to be
performed by it hereunder on or prior to the Series 200_-__ Closing Date.
(b) No Repurchase Event. No Repurchase Event shall have occurred on
or prior to the Series 200_-__ Closing Date.
(c) Computer Files Marked. GMAC shall, at its own expense, on or
prior to the Series 200_-__ Closing Date, indicate in its computer files created
in connection with the COLT 200_-__ Secured Notes that the COLT 200_-__ Secured
Notes have been sold to ▇▇▇▇ pursuant to this Agreement and the First Step
Secured Notes Assignment and deliver to ▇▇▇▇ the Schedule of COLT 200_-__
Secured Notes certified by an officer of GMAC to be true, correct and complete.
SECTION 6.02 Documents to be Delivered By GMAC at the Closing.
(i) The Assignment. At the closing, GMAC shall execute and
deliver the First Step Secured Notes Assignment.
(ii) Evidence of UCC Filing. On or prior to the Series 200_-__
Closing Date, GMAC shall record and file, at its own expense, a UCC-1 financing
statement in each jurisdiction in which required by applicable law, authorized
by and naming GMAC as seller or debtor, naming ▇▇▇▇ as purchaser or secured
party, naming the COLT 200_-__ Secured Notes 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 COLT 200_-__ Secured Notes and other Purchased Property to
▇▇▇▇. GMAC shall deliver a file-stamped copy, or other evidence satisfactory to
▇▇▇▇ of such filing, to ▇▇▇▇ on or prior to the Series 200_-__ Closing Date.
(iii) Other Documents. At the Series 200_-__ Closing Date,
GMAC shall provide such other documents as ▇▇▇▇ may reasonably request.
SECTION 6.03 Conditions To Obligation of GMAC. The obligation of GMAC to
sell the COLT 200_-__ Secured Notes to ▇▇▇▇ hereunder is subject to the
satisfaction of the following conditions:
(a) Representations and Warranties True. The representations and
warranties of ▇▇▇▇ hereunder shall be true and correct as of the Series 200_-__
Closing Date with the same effect as if then made, and ▇▇▇▇ shall have performed
all obligations to be performed by it hereunder on or prior to the Series
200_-__ Closing Date.
(b) Secured Notes Purchase Price. At the Series 200_-__ Closing
Date, ▇▇▇▇ shall pay to GMAC the Secured Notes Purchase Price as provided in
Section 2.02.
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ARTICLE VII
MISCELLANEOUS PROVISIONS
SECTION 7.01 Amendment. This Agreement may be amended from time to time
(subject to any expressly applicable amendment provision of the Further Transfer
and Servicing Agreements) by a written amendment duly executed and delivered by
GMAC and ▇▇▇▇.
SECTION 7.02 Survival. The representations and warranties of GMAC set
forth in Articles IV and V of this Agreement and of Servicer set forth in
Section 3.06 of this Agreement shall remain in full force and effect and shall
survive the closing under Section 2.03 and the closing under the Further
Transfer and Servicing Agreements.
SECTION 7.03 Notices. All demands, notices and communications upon or to
GMAC or ▇▇▇▇ under this Agreement shall be delivered as specified in Part III of
Appendix A to this Agreement.
SECTION 7.04 GOVERNING LAW. THIS AGREEMENT AND THE FIRST STEP SECURED
NOTES ASSIGNMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
INTERNAL LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO THE PRINCIPLES OF
CONFLICTS OF LAWS THEREOF OR OF ANY OTHER JURISDICTION OTHER THAN SECTIONS
5-1401 AND 5-1402 OF THE NEW YORK GENERAL OBLIGATIONS LAW, AND THE OBLIGATIONS,
RIGHTS AND REMEDIES OF THE PARTIES UNDER THIS AGREEMENT SHALL BE DETERMINED IN
ACCORDANCE WITH SUCH LAWS.
SECTION 7.05 Waivers. No failure or delay on the part of ▇▇▇▇ in
exercising any power, right or remedy under this Agreement or the First Step
Secured Notes Assignment shall operate as a waiver thereof, nor shall any single
or partial exercise of any such power, right or remedy preclude any other or
further exercise thereof or the exercise of any other power, right or remedy.
SECTION 7.06 Costs and Expenses. GMAC agrees to pay all reasonable
out-of-pocket costs and expenses of ▇▇▇▇, including fees and expenses of
counsel, in connection with the perfection as against third parties of CARI's
right, title and interest in, to and under the COLT 200 - Secured Notes and the
other Purchased Property and the enforcement of any obligation of GMAC
hereunder.
SECTION 7.07 Confidential Information. ▇▇▇▇ agrees that it shall neither
use nor disclose to any person the names and addresses of the Lessees, except in
connection with the enforcement of CARI's rights hereunder, under the COLT
200_-__ Secured Notes, under any Further Transfer and Servicing Agreements or as
required by law.
SECTION 7.08 Headings. The headings of the various Articles and Sections
herein are for convenience of reference only and shall not define or limit any
of the terms or provisions hereof.
15
SECTION 7.09 Counterparts. This Agreement may be executed in two or more
counterparts and by different parties on separate counterparts, each of which
shall be an original, but all of which together shall constitute one and the
same instrument.
SECTION 7.10 No Petition Covenant. Notwithstanding any prior termination
of this Agreement, GMAC shall not, prior to the date which is one year and one
day after the final distribution with respect to the CARAT 200_-__ Notes and the
CARAT 200_-__ Certificates to the Note Distribution Account or the Certificate
Distribution Account, as applicable, acquiesce, petition or otherwise invoke or
cause ▇▇▇▇ to invoke the process of any court or government authority for the
purpose of commencing or sustaining a case against ▇▇▇▇ under any federal or
state bankruptcy, insolvency or similar law or appointing a receiver,
liquidator, assignee, trustee, custodian, sequestrator or other similar official
of ▇▇▇▇ or any substantial part of its property, or ordering the winding up or
liquidation of the affairs of ▇▇▇▇.
SECTION 7.11 Limitations on Rights of Others. The provisions of this
Agreement and the First Step Secured Notes Assignment are solely for the benefit
of GMAC and ▇▇▇▇ and, to the extent expressly provided herein, the Interested
Parties, and nothing in this Agreement, whether express or implied, shall be
construed to give to any other Person any legal or equitable right, remedy or
claim in, under, or in respect of this Agreement or any covenants, conditions or
provisions contained herein.
* * * * *
16
IN WITNESS WHEREOF, the parties hereby have caused this Agreement to be
executed by their respective officers thereunto duly authorized as of the date
and year first above written.
GENERAL MOTORS ACCEPTANCE CORPORATION
By:_____________________________________
Name:
Title:
CAPITAL AUTO RECEIVABLES, INC.
By:_____________________________________
Name:
Title:
Signature Page to CARAT Pooling and Servicing Agreement
17
EXHIBIT A
FIRST STEP SECURED NOTES ASSIGNMENT PURSUANT TO CARAT
CARAT POOLING AND SERVICING AGREEMENT
(a) For value received, in accordance with the CARAT Pooling and
Servicing Agreement, dated as of ____, 200 (the "CARAT Pooling and Servicing
Agreement"), between General Motors Acceptance Corporation, a Delaware
corporation ("GMAC"), and Capital Auto Receivables, Inc., a Delaware corporation
("▇▇▇▇"), GMAC does hereby sell, assign, transfer and otherwise convey unto
▇▇▇▇, without recourse, (i) all right, title and interest of GMAC in, to and
under the COLT 200_-__ Secured Notes and all monies due thereunder on and after
the Cutoff Date, (ii) all right, title and interest of GMAC in, to and under the
COLT 200_-__ Trust Estate securing the COLT 200_-__ Secured Notes, including:
(A) the Series 200 - Lease Assets and all monies due thereunder on and after the
Series 200_-__ Closing Date, (B) the interest of GMAC in the Vehicles and, to
the extent permitted by law, any accessions thereto, (C) the interest of GMAC in
any proceeds from claims on any physical damage, credit life, credit disability
or other insurance policies covering Vehicles or Lessees and (D) the interest of
GMAC in any proceeds from recourse against Dealers on the Series 200_-__ Lease
Assets, (iii) all right, title and interest of GMAC in, to and under the First
Step Secured Notes Assignment, (iv) all right, title and interest of GMAC in, to
and under (A) the VAULT Trust Agreement (solely with respect to the Vehicles
related to Series 200_-__ Lease Assets), (B) the COLT Indenture, (C) the COLT
Sale and Contribution Agreement, (D) the COLT Custodian Agreement and (E) the
COLT Servicing Agreement and (v) the interest of GMAC in any proceeds of the
property described in clauses (i) and (ii) above.
It is the intention of GMAC and ▇▇▇▇ that the transfer and assignment
contemplated by this First Step Secured Notes Assignment shall constitute a sale
of the COLT 200_-__ Secured Notes and the other property described in the
preceding paragraph from GMAC to ▇▇▇▇ and the beneficial interest in and title
to the COLT 200_-__ Secured Notes and such other property 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 ▇▇▇▇ of any obligations of the undersigned to the Lessees,
Dealers, insurers or any other Person in connection with the COLT 200_-__
Secured Notes, Series 200_-__ Leases, Vehicles, 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 CARAT
Pooling and Servicing Agreement and is to be governed by the CARAT Pooling and
Servicing Agreement.
Capitalized terms used herein and not otherwise defined shall have the
meaning assigned to them in the CARAT Pooling and Servicing Agreement.
* * * * *
IN WITNESS WHEREOF, the undersigned has caused this Assignment to be duly
executed as of
GENERAL MOTORS ACCEPTANCE CORPORATION
By:_____________________________________
Name:
Title:
APPENDIX A
PART I
For ease of reference, capitalized terms defined herein have been
consolidated with and are contained in Appendix A to the CARAT Trust Sale and
Servicing Agreement of even date herewith among GMAC, ▇▇▇▇ and Capital Auto
Receivables Asset Trust 200_-__, as amended and supplemented from time to time.
PART II
For ease of reference, the rules of construction have been
consolidated with and are contained in Part II of Appendix A to the CARAT Trust
Sale and Servicing Agreement of even date herewith among GMAC, ▇▇▇▇ and Capital
Auto Receivables Asset Trust 200_-__, as amended and supplemented from time to
time.
PART III
For ease of reference, the notice addresses and procedures have been
consolidated with and are contained in Appendix B to the CARAT Trust Sale and
Servicing Agreement of even date herewith among GMAC, ▇▇▇▇ and Capital Auto
Receivables Asset Trust 200_-__, as amended and supplemented from time to time.
