POOLING AND SERVICING AGREEMENT

EXHIBIT 4.3

 

 

POOLING AND SERVICING AGREEMENT

BETWEEN

CAPITAL AUTO RECEIVABLES LLC

AND

GMAC LLC

DATED AS OF MAY 14, 2008

 

 

TABLE OF CONTENTS

		Page
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 [Reserved]			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; Payment of Certain Expenses by Servicer			8
SECTION 3.10 Servicer’s Accounting			8
SECTION 3.11 Application of Collections			9
ARTICLE IV REPRESENTATIONS AND WARRANTIES			9
SECTION 4.01 Representations and Warranties as to the Receivables			9
SECTION 4.02 Additional Representations and Warranties of GMAC			12
SECTION 4.03 Representations and Warranties of CARI			13
ARTICLE V ADDITIONAL AGREEMENTS			14
SECTION 5.01 Conflicts With Further Transfer and Servicing Agreements			14
SECTION 5.02 Protection of Title			14
SECTION 5.03 Other Liens or Interests			15
SECTION 5.04 Repurchase Events			15
SECTION 5.05 Indemnification			15
SECTION 5.06 Further Assignments			15
SECTION 5.07 Pre-Closing Collections			15
ARTICLE VI CONDITIONS			16
SECTION 6.01 Conditions to Obligation of CARI			16
SECTION 6.02 Conditions to Obligation of the Seller			16
ARTICLE VII MISCELLANEOUS PROVISIONS			17
SECTION 7.01 Amendment			17
SECTION 7.02 Survival			17
SECTION 7.03 Notices			17
SECTION 7.04 Governing Law			17
SECTION 7.05 Waivers			17
SECTION 7.06 Costs and Expenses			17
SECTION 7.07 Confidential Information			17

		Page
SECTION 7.08 Headings			18
SECTION 7.09 Counterparts			18
SECTION 7.10 No Petition Covenant			18
SECTION 7.11 Limitations on Rights of Others			18
SECTION 7.12 Merger and Consolidation of GMAC or CARI			18
SECTION 7.13 Assignment			18
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

     THIS POOLING AND SERVICING AGREEMENT, dated as of May 14, 2008, between CAPITAL AUTO RECEIVABLES LLC, a Delaware limited liability company (“ CARI ”), and GMAC LLC, a Delaware limited liability company (“ GMAC ,” also herein referred to as the “ Seller ” 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 the Seller;

     WHEREAS, the Seller 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 “ Issuing Entity ”);

     WHEREAS, the Issuing Entity 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 Issuing Entity may wish to provide in the agreements pursuant to which it acquires its interest in such contracts and related rights and issues the Securities (the Second Step Receivables Assignment, the Trust Agreement, the Notes, the Certificates, the Trust Sale and Servicing Agreement and the Indenture being collectively the “ Further Transfer and Servicing Agreements ”) that the Seller 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 Issuing Entity 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 Issuing Entity 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

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 Issuing Entity; provided , that the Seller, the Servicer 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), the Seller shall sell, transfer, assign and otherwise convey to CARI, without recourse:

                    (i) all right, title and interest of the Seller in, to and under the Receivables listed on the Schedule of Receivables and all monies received thereon on and after the Cutoff Date, exclusive of any amounts allocable to the premium for physical damage collateral protection insurance required by the Seller covering any related Financed Vehicle;

                    (ii) the interest of the Seller 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 the Seller 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 the Seller 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) all 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, 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 (i) through (vi) above is referred to herein collectively as the “ Purchased Property .”

          (b) It is the intention of the Seller 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 the Seller to CARI and the beneficial interest in and title to the Receivables shall not be part of the Seller’s estate in the event of the filing of a bankruptcy petition by or against the Seller 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 the Seller 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 the Seller an amount equal to the Initial Aggregate Receivables Principal Balance in respect of the Receivables and the Seller shall execute and deliver to CARI an assignment in the form attached hereto as Exhibit A (the “ First Step Receivables Assignment ”). A portion of the Initial Aggregate Receivables Principal Balance, which is equal to $1,583,026,484.46, shall be paid to the Seller in immediately available funds, with the balance of such purchase price being either in the form of an advance from the Seller to CARI pursuant to the Intercompany Advance Agreement or in the form of a capital contribution from the Seller to CARI. The amount advanced under the Intercompany Advance Agreement and the amount paid as a capital contribution shall be duly recorded by the Seller and CARI.

     SECTION 2.03 The Closing . The sale and purchase of the Receivables shall take place at the offices of Kirkland & Ellis LLP, 200 East Randolph Drive, Chicago, Illinois 60601, on the Closing Date at a time mutually agreeable to the Seller 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;

          (b) documents evidencing or related to any Insurance Policy;

          (c) the original credit application of each Obligor, fully executed by each such Obligor on the Seller’s customary form, or on a form approved by the Seller, 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 the Seller 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 .

          (a) 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 motor vehicle related 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, whether through judicial process or (with respect to repossession of a Financed Vehicle) non-judicial process, to enforce a Liquidating Receivable as contemplated by Section

3.04 , to enforce all obligations of the Seller, the Servicer and CARI under this Agreement and under the Further Transfer and Servicing Agreements or to commence or participate in a legal proceeding (including a bankruptcy case) 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 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 motor vehicle related 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 [Reserved] .

     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 motor vehicle related 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 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 Issuing Entity 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

                    (iii)  No Modifications . The Servicer shall not amend or otherwise modify any Receivable such that the Amount Financed, the Annual Percentage Rate, or the number of originally scheduled due dates is altered or such that the last scheduled due date 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 Issuing Entity 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 formed and is validly existing and in good standing under the laws of its State of formation, 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 entity 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 limited liability company 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 certificate of formation or limited liability company agreement 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 obligations under, or the validity or enforceability of, the Further Transfer and Servicing Agreements.

     SECTION 3.08 Purchase of Receivables Upon Breach of Covenant . Upon discovery by any of the Servicer, CARI or any party under the Further Transfer and Servicing Agreements of a breach of any of the covenants set forth in Sections 3.06 and 3.07(a) , the party discovering such breach shall give prompt written notice thereof to the others. As of the last day of the second Monthly Period following its discovering or receiving notice of such breach (or, at the Servicer’s election, the last day of the first Monthly Period so following), the Servicer shall, unless it shall have cured such breach in all material respects, purchase from the Owner thereof any Receivable materially and adversely affected by such breach as determined by such Owner and, on the related Distribution Date, the Servicer shall pay the Administrative Purchase Payment. It is understood and agreed that the obligation of the Servicer to purchase any Receivable with respect to which such a breach has occurred and is continuing shall, if such obligation is fulfilled, constitute the sole remedy against the Servicer for such breach available to CARI or any Interested Party.

     SECTION 3.09 Basic Servicing Fee; Payment of Certain Expenses by Servicer . The Servicer is entitled to receive the Basic Servicing Fee out of collections in respect of the Receivables and other available funds, as and to the extent set forth in the Further Transfer and Servicing Agreements. 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 u