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EXECUTION COPY
EXHIBIT 99.2
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POOLING AND SERVICING AGREEMENT
BETWEEN
CAPITAL AUTO RECEIVABLES, INC.
AND
GENERAL MOTORS ACCEPTANCE CORPORATION
DATED AS OF JUNE 2, 2005
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TABLE OF CONTENTS
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ARTICLE I
DEFINITIONS...........................................................................................
1
SECTION 1.01
Definitions.............................................................................
1
SECTION 1.02
Owner of a
Receivable...................................................................
2
ARTICLE II PURCHASE AND SALE OF
RECEIVABLES.....................................................................
2
SECTION 2.01
Purchase and Sale of
Receivables........................................................
2
SECTION 2.02
Receivables Purchase
Price..............................................................
3
SECTION 2.03
The
Closing.............................................................................
3
SECTION 2.04
Custody of Receivable
Files.............................................................
3
ARTICLE III ADMINISTRATION AND SERVICING OF
RECEIVABLES.........................................................
4
SECTION 3.01
Duties of the
Servicer..................................................................
4
SECTION 3.02
Collection of Receivable
Payments.......................................................
5
SECTION 3.03
Rebates on Full Prepayments on Scheduled Interest
Receivables...........................
5
SECTION 3.04
Realization Upon Liquidating
Receivables................................................
5
SECTION 3.05
Maintenance of Insurance
Policies.......................................................
6
SECTION 3.06
Maintenance of Security Interests in
Vehicles...........................................
6
SECTION 3.07
Covenants, Representations and Warranties of the
Servicer...............................
6
SECTION 3.08
Purchase of Receivables Upon Breach of
Covenant.........................................
8
SECTION 3.09
Basic Servicing Fee; Additional Servicing Fee; Payment of Certain
Expenses by Servicer..
8
SECTION 3.10
Servicer's
Accounting...................................................................
9
SECTION 3.11
Application of
Collections..............................................................
9
ARTICLE IV REPRESENTATIONS AND
WARRANTIES.......................................................................
10
SECTION 4.01
Representations and Warranties as to the
Receivables.................................... 10
SECTION 4.02
Additional Representations and Warranties of
GMAC....................................... 13
SECTION 4.03
Representations and Warranties of
CARI.................................................. 14
ARTICLE V ADDITIONAL
AGREEMENTS.................................................................................
15
SECTION 5.01
Conflicts With Further Transfer and Servicing
Agreements................................ 15
SECTION 5.02
Protection of
Title.....................................................................
15
SECTION 5.03
Other Liens or
Interests................................................................
15
SECTION 5.04
Repurchase
Events.......................................................................
16
SECTION 5.05
Indemnification.........................................................................
16
SECTION 5.06
Further
Assignments.....................................................................
16
SECTION 5.07
Pre-Closing
Collections.................................................................
16
ARTICLE VI
CONDITIONS...........................................................................................
16
SECTION 6.01
Conditions to Obligation of
CARI........................................................
17
SECTION 6.02
Conditions to Obligation of
GMAC........................................................
17
ARTICLE VII MISCELLANEOUS
PROVISIONS............................................................................
18
SECTION 7.01
Amendment...............................................................................
18
SECTION 7.02
Survival................................................................................
18
SECTION 7.03
Notices.................................................................................
18
SECTION 7.04
Governing
Law...........................................................................
18
SECTION 7.05
Waivers.................................................................................
18
SECTION 7.06
Costs and
Expenses......................................................................
18
SECTION 7.07
Confidential
Information................................................................
18
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SECTION 7.08
Headings................................................................................
18
SECTION 7.09
Counterparts............................................................................
19
SECTION 7.10
No Petition
Covenant....................................................................
19
SECTION 7.11
Limitations on Rights of
Others.........................................................
19
EXHIBIT A
Form of First Step Receivables Assignment
SCHEDULE A
Schedule of Receivables
APPENDIX A
Definitions, Rules of Construction and Notices
APPENDIX B
Additional Representations and Warranties
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THIS
POOLING AND SERVICING AGREEMENT, dated as of June 2, 2005,
between
CAPITAL AUTO RECEIVABLES, INC., a Delaware
corporation ("CARI"), and GENERAL
MOTORS ACCEPTANCE CORPORATION, a Delaware
corporation (herein referred to as
"GMAC" in its capacity as seller of the
Receivables and as the "Servicer" in its
capacity as servicer of the
Receivables).
WHEREAS,
CARI desires to purchase on the date hereof a portfolio of
automobile and light truck retail
instalment sale contracts, direct purchase
money loans and related rights owned by
GMAC;
WHEREAS,
GMAC is willing to sell on the date hereof such contracts and
related rights to CARI;
WHEREAS,
CARI may wish to sell or otherwise transfer on the date hereof
such contracts and related rights, or
interests therein, to a trust,
corporation, partnership or other entity
(any such entity being the "Issuer");
WHEREAS,
the Issuer may issue debentures, notes, participations,
certificates of beneficial interest,
partnership interests or other interests or
securities (collectively, any such issued
interests or securities being
"Securities") to fund its acquisition of
such contracts and related rights;
WHEREAS,
the Issuer may wish to provide in the agreements pursuant to
which it acquires its interest in such
contracts and related rights and issues
the Securities (all such agreements,
including the Trust Sale and Servicing
Agreement and the Indenture, being
collectively the "Further Transfer and
Servicing Agreements") that GMAC shall
service such contracts;
WHEREAS,
the Servicer is willing to service such contracts in accordance
with the terms hereof for the benefit of
CARI and, by its execution of the
Further Transfer and Servicing Agreements,
will be willing to service such
contracts in accordance with the terms of
such Further Transfer and Servicing
Agreements for the benefit of the Issuer
and each other party identified or
described herein or in the Further Transfer
and Servicing Agreements as having
an interest as owner, trustee, secured
party, or holder of Securities (the
Issuer and all such parties under the
Further Transfer and Servicing Agreements
being "Interested Parties") with respect to
such contracts, and the proceeds
thereof, as the interests of such parties
may appear from time to time.
NOW,
THEREFORE, in consideration of the premises and the mutual
covenants
herein contained, the parties hereto agree
as follows:
ARTICLE I
DEFINITIONS
SECTION
1.01 Definitions. Certain capitalized terms used in this
Agreement
are defined in and shall have the
respective meanings assigned to them in Part I
of Appendix A to this Agreement. All
references herein to "the Agreement" or
"this Agreement" are to this Pooling and
Servicing Agreement as it may be
amended, supplemented or modified from time
to
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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 Receivable. For purposes of this Agreement, the
"Owner" of a Receivable shall mean CARI
until the sale, transfer, assignment or
other conveyance of such Receivable by CARI
pursuant to the terms of the Further
Transfer and Servicing Agreements, and
thereafter shall mean the Issuer;
provided, that GMAC or CARI, as applicable,
shall be the "Owner" of any
Receivable from and after the time that
such Person shall acquire such
Receivable, whether pursuant to Section
3.08 or 5.04 of this Agreement, any
provision of the Further Transfer and
Servicing Agreements or otherwise.
ARTICLE II
PURCHASE AND SALE OF RECEIVABLES
SECTION
2.01 Purchase and Sale of Receivables.
(a) Purchase. On the Closing Date, subject to satisfaction of
the
conditions specified in Article VI and the
First Step Receivables Assignment
(and, in any event, immediately prior to
consummation of the related
transactions contemplated by the Further
Transfer and Servicing Agreements, if
any), GMAC shall sell, transfer, assign and
otherwise convey to CARI, without
recourse:
(i) all right, title and interest of GMAC in, to and under the
Receivables listed on the Schedule of
Receivables and (A) in the case of
Receivables that are Scheduled Interest
Receivables, all monies due thereunder
on and after the Cutoff Date and (B) in the
case of Receivables that are Simple
Interest Receivables, all monies received
thereon on and after the Cutoff Date,
in each case, exclusive of any amounts
allocable to the premium for physical
damage insurance force-placed by GMAC
covering any related Financed Vehicle;
(ii) the interest of GMAC in the security interests in the
Financed Vehicles granted by Obligors
pursuant to the Receivables and, to the
extent permitted by law, any accessions
thereto;
(iii) the interest of GMAC in any proceeds from claims on any
physical damage, credit life, credit
disability or other insurance policies
covering Financed Vehicles or Obligors;
(iv) the interest of GMAC in any proceeds from recourse
against Dealers on the Receivables;
(v) all right, title and interest of the Seller in, to and
under the First Step Receivables
Assignment; and
(vi) the present and future claims, demands, causes and choses
in action in respect of any or all the
foregoing described in clauses (i)
through (v) above 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,
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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
intangible, 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 (i) through (vi) above is referred
to
herein collectively as the "Purchased
Property."
(b) It is the intention of GMAC and CARI that the transfer and
assignment of Receivables contemplated by
this Agreement and the First Step
Receivables Assignment shall constitute a
sale of the Receivables from GMAC to
CARI and the beneficial interest in and
title to the Receivables shall not be
part of GMAC's estate in the event of the
filing of a bankruptcy petition by or
against GMAC under any bankruptcy law.
(c) The transfer and assignment of Receivables contemplated by
this
Agreement and the First Step Receivables
Assignment does not constitute and is
not intended to result in any assumption by
CARI of any obligation of GMAC to
the Obligors, Dealers, insurers or any
other Person in connection with the
Receivables, any Dealer Agreements, any
insurance policies or any agreement or
instrument relating to any of them.
SECTION
2.02 Receivables Purchase Price.
In
consideration for the Purchased Property, CARI shall, on the
Closing
Date, pay to GMAC an amount equal to the
Initial Aggregate Receivables Principal
Balance in respect of the Receivables and
GMAC shall execute and deliver to CARI
an assignment in the form attached hereto
as Exhibit A (the "First Step
Receivables Assignment"). The Initial
Aggregate Receivables Principal Balance,
which is equal to $3,070,081,224.17 shall
be paid to GMAC in immediately
available funds.
SECTION
2.03 The Closing.
The sale
and purchase of the Receivables shall take place at the offices
of Kirkland & Ellis LLP, Citigroup
Center, 153 East 53rd Street, New York, New
York, 10022, on the Closing Date at a time
mutually agreeable to GMAC and CARI,
and will occur simultaneously with the
closing of transactions contemplated by
the Further Transfer and Servicing
Agreements.
SECTION
2.04 Custody of Receivable Files. In connection with the sale,
transfer and assignment of the Receivables
to CARI pursuant to this Agreement
and the First Step Receivables Assignment,
CARI, simultaneously with the
execution and delivery of this Agreement,
shall enter into the Custodian
Agreement with the Custodian, pursuant to
which CARI shall revocably appoint the
Custodian, and the Custodian shall accept
such appointment, to act as the agent
of CARI as Custodian of the following
documents or instruments which shall be
constructively delivered to CARI with
respect to each Receivable:
(a) the fully executed original of the instalment sale contract
or
direct purchase money loan, as applicable,
for such Receivable;
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(b) documents evidencing or related to any Insurance Policy;
(c) the original credit application of each Obligor, fully
executed
by each such Obligor on GMAC's customary
form, or on a form approved by GMAC,
for such application;
(d) where permitted by law, the original certificate of title
(when
received) and otherwise such documents, if
any, that GMAC keeps on file in
accordance with its customary procedures
indicating that the Financed Vehicle is
owned by the Obligor and subject to the
interest of GMAC as first lienholder or
secured party; and
(e) any and all other documents that GMAC keeps on file in
accordance with its customary procedures
relating to the individual Receivable,
Obligor or Financed Vehicle.
ARTICLE III
ADMINISTRATION AND SERVICING OF RECEIVABLES
SECTION
3.01 Duties of the Servicer. The Servicer is hereby appointed
and
authorized to act as agent for the Owner of
the Receivables and in such capacity
shall manage, service, administer and make
collections on the Receivables with
reasonable care, using that degree of skill
and attention that the Servicer
exercises with respect to comparable
automotive receivables that it services for
itself or others. The Servicer hereby
accepts such appointment and authorization
and agrees to perform the duties of
Servicer with respect to the Receivables set
forth herein and in the Further Transfer
and Servicing Agreements.
(b) The Servicer's duties shall include collection and posting
of
all payments, responding to inquiries of
Obligors, investigating delinquencies,
sending payment coupons to Obligors,
reporting tax information to Obligors,
policing the collateral, accounting for
collections and furnishing monthly and
annual statements to the Owner of any
Receivables with respect to distributions,
generating federal income tax information
and performing the other duties
specified herein. Subject to the provisions
of Section 3.02, the Servicer shall
follow its customary standards, policies
and procedures and shall have full
power and authority, acting alone, to do
any and all things in connection with
such managing, servicing, administration
and collection that it may deem
necessary or desirable.
(c) Without limiting the generality of the foregoing, the
Servicer
is hereby authorized and empowered by the
Owner of the Receivables, pursuant to
this Section 3.01, to execute and deliver,
on behalf of all Interested Parties,
or any of them, any and all instruments of
satisfaction or cancellation, or of
partial or full release or discharge, and
all other comparable instruments, with
respect to the Receivables and the Financed
Vehicles. The Servicer is hereby
authorized to commence, in its own name or
in the name of the Owner of such
Receivable a legal proceeding to enforce a
Liquidating Receivable as
contemplated by Section 3.04, to enforce
all obligations of GMAC and CARI under
this Agreement and under the Further
Transfer and Servicing Agreements or to
commence or participate in a legal
proceeding (including without limitation a
bankruptcy proceeding) relating to or
involving a Receivable or a Liquidating
Receivable. If the Servicer commences or
participates in such a legal proceeding
in its own name, the Servicer is hereby
authorized and empowered by the Owner of
the Receivables pursuant to this Section
3.01, to obtain possession of the
related Financed Vehicle and
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immediately and without further action on
the part of the Owner or the Servicer,
the Owner of such Receivable shall
thereupon automatically assign in trust such
Receivable and the security interest in the
related Financed Vehicle to the
Servicer for the benefit of the Interested
Parties for purposes of commencing or
participating in any such proceeding as a
party or claimant. Upon such automatic
assignment, the Servicer will be, and will
have all the rights and duties of, a
secured party under the UCC and other
applicable law with respect to such
Receivable and the related Financed
Vehicle. At the Servicer's request from time
to time, the Owner of a Receivable assigned
under this Section 3.01 shall
provide the Servicer with evidence of the
assignment in trust for the benefit of
the Interested Parties as may be reasonably
necessary for the Servicer to take
any of the actions set forth in the
following sentence.
(d) The Servicer is hereby authorized and empowered by the Owner
of
a Receivable to execute and deliver in the
Servicer's name any notices, demands,
claims, complaints, responses, affidavits
or other documents or instruments in
connection with any such proceeding. Any
Owner of Receivables shall furnish the
Servicer with any powers of attorney and
other documents and take any other
steps which the Servicer may deem necessary
or appropriate to enable the
Servicer to carry out its servicing and
administrative duties under this
Agreement and the Further Transfer and
Servicing Agreements. Except to the
extent required by the preceding two
sentences, the authority and rights granted
to the Servicer in this Section 3.01 shall
be nonexclusive and shall not be
construed to be in derogation of the
retention by the Owner of a Receivable of
equivalent authority and rights.
SECTION
3.02 Collection of Receivable Payments. The Servicer shall make
reasonable efforts to collect all payments
called for under the terms and
provisions of the Receivables as and when
the same shall become due, and shall
follow such collection practices, policies
and procedures as it follows with
respect to comparable automotive
receivables that it services for itself or
others in connection therewith. Except as
provided in Section 3.07(a)(iii), the
Servicer is hereby authorized to grant
extensions, rebates or adjustments on a
Receivable without the prior consent of the
Owner of such Receivable. The
Servicer is authorized in its discretion to
waive any prepayment charge, late
payment charge or any other fees that may
be collected in the ordinary course of
servicing such Receivable.
SECTION
3.03 Rebates on Full Prepayments on Scheduled Interest
Receivables. If the amount of a full
Prepayment by an Obligor under a Scheduled
Interest Receivable, after adjustment for
the Rebate, is less than the amount
that would be payable under the actuarial
method if a full Prepayment were made
at the end of the billing month under such
Scheduled Interest Receivable, either
because the Rebate calculated under the
terms of such Receivable is greater than
the amount calculable under the actuarial
method or because the Servicer's
customary servicing procedure is to credit
a greater Rebate, the Servicer, as
part of its servicing duties, shall remit
such difference to the Owner of such
Receivable.
SECTION
3.04 Realization Upon Liquidating Receivables. The Servicer
shall
use reasonable efforts, consistent with its
customary practices, policies and
procedures, to repossess or otherwise
comparably convert the ownership of any
Financed Vehicle that it has reasonably
determined should be repossessed or
otherwise converted following a default
under the Receivable secured by the
Financed Vehicle. The Servicer is
authorized to follow such customary practices,
policies and procedures as it follows with
respect to comparable automotive
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receivables that it services for itself or
others, which customary practices,
policies and procedures may include
reasonable efforts to realize upon any
recourse to Dealers, selling the related
Financed Vehicle at public or private
sale and other actions by the Servicer in
order to realize upon such a
Receivable. The Servicer is hereby
authorized to exercise its discretion
consistent with its customary practices,
policies and procedures and the terms
of this Agreement, in servicing Liquidating
Receivables so as to maximize the
realization of those Liquidating
Receivables. The Servicer shall not be liable
for any such exercise of its discretion to
sell or not to sell such Liquidating
Receivables made in good faith. The
foregoing is subject to the provision that,
in any case in which the Financed Vehicle
shall have suffered damage, the
Servicer shall not expend funds in
connection with any repair or towards the
repossession of such Financed Vehicle
unless it shall determine in its
discretion that such repair and/or
repossession shall increase the proceeds of
liquidation of the related Receivable by an
amount greater than the amount of
such expenses. The Servicer shall be
entitled to receive Liquidation Expenses
with respect to each Liquidating Receivable
at such time as the Receivable
becomes a Liquidating Receivable (or as may
otherwise be provided in the Further
Transfer and Servicing Agreements).
SECTION
3.05 Maintenance of Insurance Policies. The Servicer shall, in
accordance with its customary practices,
policies and procedures, require that
each Obligor shall have obtained physical
damage insurance covering the Financed
Vehicle as of the execution of the related
Receivable. The Servicer shall, in
accordance with its customary practices,
policies and procedures, monitor such
physical damage insurance with respect to
each Receivable.
SECTION 3.06 Maintenance of
Security Interests in Vehicles. The Servicer
shall, in accordance with its customary
practices, policies and procedures and
at its own expense, take such steps as are
necessary to maintain perfection of
the security interest created by each
Receivable in the related Financed
Vehicle. The Owner of each Receivable
hereby authorizes the Servicer to
re-perfect such security interest on behalf
of such Owner, as necessary because
of the relocation of a Financed Vehicle, or
for any other reason.
SECTION
3.07 Covenants, Representations and Warranties of the Servicer.
As
of the Closing Date, the Servicer hereby
makes the following representations,
warranties and covenants on which CARI
relies in accepting the Receivables
hereunder and pursuant to the related First
Step Receivables Assignment, and on
which the Issuer shall rely in accepting
such Receivables and executing and
delivering the Securities under the Further
Transfer and Servicing Agreements.
(a) The Servicer covenants that from and after the closing
hereunder:
(i) Liens in Force. Except as contemplated in this Agreement
or the Further Transfer and Servicing
Agreements, the Servicer shall not release
in whole or in part any Financed Vehicle
from the security interest securing the
related Receivable;
(ii) No Impairment. The Servicer shall do nothing to impair
the rights or security interest of CARI or
any Interested Party in and to the
Purchased Property; and
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(iii) No Modifications. The Servicer shall not amend or
otherwise modify any Receivable such that
the Amount Financed, the Annual
Percentage Rate, the total number of
Scheduled Payments (in the case of a
Scheduled Interest Receivable) or the
number of originally scheduled due dates
(in the case of a Simple Interest
Receivable), is altered or such that the last
Scheduled Payment (in the case of a
Scheduled Interest Receivable) or the last
scheduled due date (in the case of a Simple
Interest Receivable) occurs after
the Final Scheduled Distribution Date.
(b) Upon the execution of this Agreement and the Further
Transfer
and Servicing Agreements, the Servicer
represents and warrants to the Issuer and
CARI that as of the Closing Date, in
addition to the representations and
warranties in Sections 4.01 and 4.02 being
true:
(i) Organization and Good Standing. The Servicer has been duly
organized and is validly existing and in
good standing under the laws of its
state of incorporation, with power and
authority to own its properties and to
conduct its business as such properties are
presently owned and such business is
presently conducted, and had at all
relevant times, and now has, power,
authority and legal right to service the
Receivables as provided herein and in
the Further Transfer and Servicing
Agreements;
(ii) Due Qualification. The Servicer is duly qualified to do
business as a foreign corporation in good
standing, and has obtained all
necessary licenses and approvals, in all
jurisdictions in which the ownership or
lease of property or the conduct of its
business (including the servicing of the
Receivables) requires or shall require such
qualification;
(iii) Power and Authority. The Servicer has the power and
authority to execute and deliver this
Agreement and the Further Transfer and
Servicing Agreements and to carry out the
terms of such agreements; and the
Servicer's execution, delivery and
performance of this Agreement and the Further
Transfer and Servicing Agreements have been
duly authorized by the Servicer by
all necessary corporate action;
(iv) Binding Obligation. The Further Transfer and Servicing
Agreements and this Agreement, when duly
executed and delivered, shall
constitute the legal, valid and binding
obligations of the Servicer enforceable
in accordance with their respective terms,
except as enforceability may be
limited by bankruptcy, insolvency,
reorganization, or other similar laws
affecting the enforcement of creditors'
rights in general and by general
principles of equity, regardless of whether
such enforceability is considered in
a proceeding in equity or at law;
(v) No Violation. The consummation by the Servicer of the
transactions contemplated by this Agreement
and the Further Transfer and
Servicing Agreements, and the fulfillment
by the Servicer of the terms hereof
and thereof, shall not conflict with,
result in any breach of any of the terms
and provisions of, or constitute (with or
without notice or lapse of time) a
default under, the articles of
incorporation or by-laws of the Servicer, or any
indenture, agreement, mortgage, deed of
trust or other instrument to which the
Servicer is a party or by which it is
bound, or result in the creation or
imposition of any Lien upon any of its
properties pursuant to the terms of any
such indenture, agreement, mortgage, deed
of trust or
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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
