EXHIBIT 99.11
TRUST SALE AND ADMINISTRATION AGREEMENT
AMONG
GENERAL MOTORS ACCEPTANCE CORPORATION
TRUST ADMINISTRATOR
CAPITAL AUTO RECEIVABLES, INC.
SELLER
AND
CAPITAL AUTO RECEIVABLES ASSET TRUST 2005-SN1
ISSUER
DATED AS OF APRIL 28, 2005
TABLE OF CONTENTS
PAGE
ARTICLE I CERTAIN DEFINITIONS.................................................... 1
Section 1.01. Definitions.................................................... 1
ARTICLE II CONVEYANCE OF COLT 2005-SN1 SECURED NOTES;
ISSUANCE OF SECURITIES................................................. 1
Section 2.01. Conveyance of COLT 2005-SN1 Secured Notes...................... 1
Section 2.02. Acceptance by Issuer........................................... 3
Section 2.03. Representations and Warranties as to the COLT 2005-SN1
Secured Notes.................................................. 3
Section 2.04. Repurchase of COLT 2005-SN1 Secured Notes Upon Breach
of Warranty.................................................... 3
ARTICLE III THE SELLER............................................................. 4
Section 3.01. Representations of Seller...................................... 4
Section 3.02. Liability of Seller............................................ 6
Section 3.03. Merger or Consolidation of, or Assumption of the Obligations
of Seller; Amendment of Certificate of Incorporation........... 6
Section 3.04. Limitation on Liability of Seller and Others................... 7
Section 3.05. Seller May Own CARAT 2005-SN1 Notes or CARAT 2005-SN1
Certificates................................................... 7
ARTICLE IV TRUST ADMINISTRATOR'S COVENANTS; DISTRIBUTIONS;
STATEMENTS TO CARAT 2005-SN1 NOTEHOLDERS AND
CARAT 2005-SN1 CERTIFICATEHOLDERS...................................... 7
Section 4.01. Annual Statement as to Compliance; Notice of Trust
Administrator Default.......................................... 7
Section 4.02. Annual Independent Accountants' Report......................... 8
Section 4.03. Access to Certain Documentation and Information Regarding
the COLT 2005-SN1 Secured Notes................................ 9
Section 4.04. Assignment of Administrative Secured Notes and Warranty
Secured Notes.................................................. 9
Section 4.05. Distributions.................................................. 10
Section 4.06. Net Deposits................................................... 12
Section 4.07. Statements to Securityholders.................................. 12
Section 4.08. Additional Duties of the Trust Administrator................... 14
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TABLE OF CONTENTS
(continued)
PAGE
ARTICLE V NOTEHOLDER ACCOUNTS; COLLECTIONS, DEPOSITS AND
INVESTMENTS............................................................ 20
Section 5.01. Establishment of Accounts...................................... 20
Section 5.02. Investment Earnings............................................ 24
Section 5.03. Additional Deposits............................................ 24
ARTICLE VI LIABILITIES OF TRUST ADMINISTRATOR AND OTHERS.......................... 24
Section 6.01. Liability of Trust Administrator; Indemnities.................. 24
Section 6.02. Merger or Consolidation of, or Assumption of the Obligations
of the Trust Administrator..................................... 26
Section 6.03. Limitation on Liability of Trust Administrator and Others...... 26
Section 6.04. Delegation of Duties........................................... 27
Section 6.05. Trust Administrator Not to Resign.............................. 27
ARTICLE VII DEFAULT................................................................ 28
Section 7.01. Trust Administrator Defaults................................... 28
Section 7.02. Consequences of a Trust Administrator Default.................. 29
Section 7.03. CARAT Indenture Trustee to Act; Appointment of Successor....... 29
Section 7.04. Notification to CARAT 2005-SN1 Noteholders and CARAT
2005-SN1 Certificateholders.................................... 30
Section 7.05. Waiver of Past Defaults........................................ 30
ARTICLE VIII TERMINATION............................................................ 31
Section 8.01. Optional Purchase of All COLT 2005-SN1 Secured Notes;
Insolvency of Seller; Termination of Trust..................... 31
ARTICLE IX MISCELLANEOUS PROVISIONS............................................... 34
Section 9.01. Amendment...................................................... 34
Section 9.02. Protection of Title to Trust................................... 35
Section 9.03. Notices........................................................ 37
Section 9.04. GOVERNING LAW.................................................. 37
Section 9.05. Severability of Provisions..................................... 38
Section 9.06. Assignment..................................................... 38
Section 9.07. Third-Party Beneficiaries...................................... 38
Section 9.08. Separate Counterparts.......................................... 38
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TABLE OF CONTENTS
(continued)
PAGE
Section 9.09. Headings and Cross-References.................................. 38
Section 9.10. Assignment to CARAT Indenture Trustee.......................... 38
Section 9.11. No Petition Covenants.......................................... 38
Section 9.12. Limitation of Liability of CARAT Indenture Trustee and
CARAT Owner Trustee............................................ 39
Section 9.13. Tax Treatment.................................................. 39
Section 9.14. Furnishing Documents........................................... 39
Section 9.15. Independence of the Trust Administrator........................ 39
Section 9.16. No Joint Venture............................................... 40
Section 9.17. Other Activities of Trust Administrator........................ 40
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TABLE OF CONTENTS
(continued)
EXHIBIT A Schedule of Secured Notes
EXHIBIT B Form of Second Step Secured Notes Assignment
APPENDIX A Definitions and Rules of Construction
APPENDIX B Notices Addresses and Procedures
APPENDIX C Perfection Representations
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THIS TRUST SALE AND ADMINISTRATION AGREEMENT is made as of April 28, 2005
by and among General Motors Acceptance Corporation, a Delaware corporation
("GMAC") and in its capacity as Trust Administrator under the Pooling and
Administration Agreement described below (the "Trust Administrator"), Capital
Auto Receivables, Inc., a Delaware corporation (the "Seller"), and Capital Auto
Receivables Asset Trust 2005-SN1, a Delaware statutory trust (the "Issuer").
WHEREAS, GMAC has sold the COLT 2005-SN1 Secured Notes to the Seller and
the Trust Administrator has agreed to administer the COLT 2005-SN1 Secured Notes
pursuant to the Pooling and Administration Agreement;
WHEREAS, the Seller desires to sell the COLT 2005-SN1 Secured Notes to the
Issuer in exchange for the CARAT 2005-SN1 Notes and CARAT 2005-SN1 Certificates
pursuant to the terms of this Agreement and the Trust Administrator desires to
perform the administration obligations set forth herein for and in consideration
of the fees and other benefits set forth in this Agreement and in the Pooling
and Administration Agreement; and
WHEREAS, the Seller and the Issuer wish to set forth the terms pursuant to
which the COLT 2005-SN1 Secured Notes are to be sold by the Seller to the Issuer
and administered by the Trust Administrator.
NOW, THEREFORE, in consideration of the foregoing, the other good and
valuable consideration and the mutual terms and covenants contained herein, the
parties hereto agree as follows:
ARTICLE I
CERTAIN DEFINITIONS
Section 1.01 Definitions. Certain capitalized terms used in the above
recitals and in this Agreement are defined in and shall have the respective
meanings assigned to them in Part I of Appendix A to this Agreement. All
references herein to "the Agreement" or "this Agreement" are to this Trust Sale
and Administration Agreement as it may be amended, supplemented or modified from
time to time, the exhibits hereto and the capitalized terms used herein which
are defined in such Appendix A, and all references herein to Articles, Sections
and subsections are to Articles, Sections or subsections of this Agreement
unless otherwise specified. The rules of construction set forth in Part II of
such Appendix A shall be applicable to this Agreement.
ARTICLE II
CONVEYANCE OF COLT 2005-SN1 SECURED NOTES; ISSUANCE OF SECURITIES
Section 2.01 Conveyance of COLT 2005-SN1 Secured Notes. In consideration
of the Issuer's delivery of the CARAT 2005-SN1 Notes and the CARAT 2005-SN1
Certificates to, or upon the order of, the Seller, the Seller does hereby enter
into this Agreement and the related Second Step Secured Notes Assignment in the
form attached as Exhibit B to this Agreement (the "Second Step Secured Notes
Assignment") and agrees to fulfill all of its obligations hereunder and
thereunder and to sell, transfer, assign and otherwise convey to the Issuer,
without recourse:
(a) all right, title and interest of the Seller in, to and under the
COLT 2005-SN1 Secured Notes and all monies due thereunder on and after the
Series 2005-SN1 Closing Date;
(b) all right, title and interest of the Seller in, to and under the
COLT 2005-SN1 Trust Estate securing the COLT 2005-SN1 Secured Notes,
including: (i) the Series 2005-SN1 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 the Seller 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 the Seller in any proceeds
from recourse against Dealers on the Series 2005-SN1 Lease Assets;
(c) all right, title and interest of the Seller in, to and under the
Second Step Secured Notes Assignment;
(d) all right, title and interest of the Seller in, to and under (i)
the VAULT Trust Agreement (solely with respect to the Vehicles related to
Series 2005-SN1 Lease Assets), (ii) the Pooling and Administration
Agreement and the First Step Secured Notes Assignment (including the right
of the Seller to cause GMAC to repurchase COLT 2005-SN1 Secured Notes
under certain circumstances), (iii) the COLT Indenture, (iv) the COLT Sale
and Contribution Agreement, (v) the COLT Custodian Agreement and (vi) the
COLT Servicing Agreement; and
(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 the Seller and the Issuer that the transfer and
assignment contemplated by this Agreement and the related Second Step Secured
Notes Assignment shall constitute a sale of the COLT 2005-SN1 Secured Notes and
the other Purchased Property from the Seller to the Issuer and the beneficial
interest in and title to the COLT 2005-SN1 Secured Notes and the other Purchased
Property 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.
The foregoing sale does not constitute and is not intended to result in
any assumption by the Issuer of any obligation of GMAC or the Seller to the
Lessees, Dealers, insurers or any other
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Person in connection with the COLT 2005-SN1 Secured Notes, Series 2005-SN1 Lease
Assets, any Dealer Agreements, any insurance policies or any agreement or
instrument relating to any of them.
Section 2.02. Acceptance by Issuer. The Issuer does hereby accept all
consideration conveyed by the Seller pursuant to Section 2.01, and declares that
the Issuer shall hold such consideration upon the trust set forth in the Trust
Agreement for the benefit of the CARAT 2005-SN1 Certificateholders, subject to
the terms and conditions of the CARAT Indenture and this Agreement and the
related Second Step Secured Notes Assignment and the rights of the CARAT
2005-SN1 Noteholders with respect thereto. The Issuer hereby agrees to and
accepts the appointment and authorization of GMAC as Trust Administrator under
Section 3.01 of the Pooling and Administration Agreement. The parties agree that
this Agreement, the Second Step Secured Notes Assignment, the CARAT Indenture,
the Trust Agreement, the CARAT 2005-SN1 Notes and the CARAT 2005-SN1
Certificates constitute the Further Transfer and Administration Agreements for
purposes of the Pooling and Administration Agreement and that the rights, duties
and obligations of GMAC as Trust Administrator under the Pooling and
Administration Agreement are subject to the provisions of Sections 6.02, 6.04,
6.05, 9.01 and Article VII.
Section 2.03. Representations and Warranties as to the COLT 2005-SN1
Secured Notes. Pursuant to Section 2.01(d), the Seller assigns to the Issuer all
of its right, title and interest in, to and under the Pooling and Administration
Agreement. Such assigned right, title and interest includes the benefit of
representations and warranties of GMAC made to the Seller pursuant to Section
4.01 of the Pooling and Administration Agreement. The Seller hereby represents
and warrants to the Issuer that the Seller has taken no action which would cause
such representations and warranties of GMAC to be false in any material respect
as of the Series 2005-SN1 Closing Date. The Seller further acknowledges that the
Issuer and its permitted assigns rely on the representations and warranties of
the Seller under this Agreement and of GMAC under the Pooling and Administration
Agreement in accepting the COLT 2005-SN1 Secured Notes and the other Purchased
Property in trust and executing and delivering the CARAT 2005-SN1 Notes and the
CARAT 2005-SN1 Certificates. The foregoing representation and warranty speaks as
of the Series 2005-SN1 Closing Date, but shall survive the sale, transfer and
assignment of the COLT 2005-SN1 Secured Notes and the other Purchased Property
to the Issuer and the pledge thereof to the CARAT Indenture Trustee pursuant to
the CARAT Indenture.
Section 2.04. Repurchase of COLT 2005-SN1 Secured Notes Upon Breach of
Warranty. Upon discovery by the Seller, the Trust Administrator, the CARAT Owner
Trustee or the CARAT Indenture Trustee of a breach of any of the representations
and warranties in Section 4.01 of the Pooling and Administration Agreement or in
Section 2.03 or Section 3.01 of this Agreement that materially and adversely
affects the interests of the CARAT 2005-SN1 Noteholders or the CARAT 2005-SN1
Certificateholders in any COLT 2005-SN1 Secured Note, 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 discovery or its receipt of
notice of breach (or, at the Seller's election, the last day of the first
Monthly Period following such discovery), unless such breach shall have been
cured in all material respects, in the event of a breach of the representations
and warranties made by the Seller in Section 2.03 or Section 3.01, the Seller
shall repurchase, or in the event of a breach of a representation and warranty
under Section 4.01 of the Pooling and Administration Agreement, the Seller and
the Trust
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Administrator shall use all reasonable efforts to enforce the obligation of GMAC
under Section 5.04 of the Pooling and Administration Agreement to repurchase
such COLT 2005-SN1 Secured Note from the Issuer on the related Distribution
Date. The repurchase price to be paid by the breaching party (the "Warranty
Purchaser") shall be an amount equal to the Warranty Payment calculated as of
the last day of the related Monthly Period and shall be paid on such
Distribution Date. It is understood and agreed that the obligation of the
Warranty Purchaser to repurchase any COLT 2005-SN1 Secured Note as to which a
breach has occurred and is continuing, and the obligation of the Seller and the
Trust Administrator to enforce GMAC's obligation to repurchase such COLT
2005-SN1 Secured Notes pursuant to the Pooling and Administration Agreement
shall, if such obligations are fulfilled, constitute the sole remedy against the
Seller, the Trust Administrator or GMAC for such breach available to the Issuer,
the Financial Parties, the CARAT Owner Trustee or the CARAT Indenture Trustee.
The Trust Administrator also acknowledges its obligations to repurchase
Administrative Secured Notes from the Issuer pursuant to Section 3.04 of the
Pooling and Administration Agreement.
ARTICLE III
THE SELLER
Section 3.01. Representations of Seller. The Seller makes the following
representations on which the Issuer is relying in acquiring the Purchased
Property and issuing the CARAT 2005-SN1 Notes and the CARAT 2005-SN1
Certificates. The following representations speak as of the Series 2005-SN1
Closing Date, but such representations shall survive the sale, transfer and
assignment of the Purchased Property to the Issuer.
(a) Representations and Warranties as to the Seller.
(i) Organization and Good Standing. The Seller 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 Purchased Property;
(ii) Due Qualification. The Seller 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;
(iii) Power and Authority. The Seller has the power and
authority to execute and deliver the CARAT Basic Documents to which
it is a party and to carry out their terms, the Seller has full
power and authority to sell and assign the property to be sold and
assigned to and deposited with the Issuer as part of the Trust and
has duly authorized such sale and assignment to the Issuer by all
necessary corporate action; and the execution, delivery and
performance of the CARAT Basic Documents to which it is a party have
been duly authorized by the Seller by all necessary corporate
action;
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(iv) Valid Sale; Binding Obligations. This Agreement and the
Second Step Secured Notes Assignment, when duly executed and
delivered, shall constitute a valid sale, transfer and assignment of
the Purchased Property, enforceable against creditors of and
purchasers from the Seller; and CARAT Basic Documents to which the
Seller is a party, when duly executed and delivered, shall
constitute legal, valid and binding obligations of the Seller
enforceable in accordance with their 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; Consents. The consummation of the
transactions contemplated by the CARAT Basic Documents to which the
Seller is a party and the fulfillment of the terms of the CARAT
Basic Documents to which the Seller is a party 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 the Seller, or
any indenture, agreement or other instrument to which the Seller 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 this Agreement and the Second Step Secured Notes Assignment, or
violate any law or, to the best of the Seller's knowledge any order,
rule or regulation applicable to the Seller of any court or of any
federal or state regulatory body, administrative agency or other
governmental instrumentality having jurisdiction over the Seller or
any of its properties; and
(vi) No Proceedings. To the Seller'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 Seller or
its properties (i) asserting the invalidity of any CARAT Basic
Document (ii) seeking to prevent the issuance of the CARAT 2005-SN1
Notes or the CARAT 2005-SN1 Certificates or the consummation of any
of the transactions contemplated by any CARAT Basic Document (iii)
seeking any determination or ruling that might materially and
adversely affect the performance by the Seller of its obligations
under, or the validity or enforceability of, any CARAT Basic
Document or (iv) seeking to adversely affect the federal income tax
attributes of the CARAT 2005-SN1 Notes or the CARAT 2005-SN1
Certificates.
(b) Representations and Warranties as to the COLT 2005-SN1 Secured
Notes.
(i) Good Title. No COLT 2005-SN1 Secured Note has been sold,
transferred, assigned or pledged by the Seller to any Person other
than the Issuer; immediately prior to the conveyance of the COLT
2005-SN1 Secured Notes pursuant to this Agreement and the Second
Step Secured Notes Assignment, the Seller had good and marketable
title thereto, free of any Lien;
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and, upon execution and delivery of this Agreement and the Second
Step Secured Notes Assignment by the Seller, the Issuer shall have
all of the right, title and interest of the Seller in, to and under
the COLT 2005-SN1 Secured Notes, the unpaid indebtedness evidenced
thereby and the collateral security therefor, free of any Lien.
(ii) All Filings Made. All filings (including UCC filings)
necessary in any jurisdiction to give the Issuer a first priority
perfected ownership interest in the Purchased Property shall have
been made.
(iii) Creation, Perfection and Priority of Security Interests.
The Perfection Representations, which are attached to this Agreement
as Appendix C, are true and correct to the extent they are
applicable.
Section 3.02. Liability of Seller. The Seller shall be liable in
accordance with this Agreement and the Second Step Secured Notes Assignment only
to the extent of the obligations in this Agreement and the Second Step Secured
Notes Assignment specifically undertaken by the Seller.
Section 3.03. Merger or Consolidation of, or Assumption of the Obligations
of Seller; Amendment of Certificate of Incorporation.
(a) Any corporation or other entity (i) into which the Seller may be
merged or consolidated, (ii) resulting from any merger or consolidation to
which the Seller shall be a party, (iii) succeeding to the business of the
Seller, or (iv) more than 50% of the voting stock (or, if not a
corporation, other voting interests) of which is owned directly or
indirectly by General Motors, which corporation in any of the foregoing
cases executes an agreement of assumption to perform every obligation of
the Seller under this Agreement and the other CARAT Basic Documents to
which it is a party, shall be the successor to the Seller under this
Agreement without the execution or filing of any document or any further
act on the part of any of the parties to this Agreement. The Seller shall
provide 10 days prior notice of any merger, consolidation or succession
pursuant to this Section 3.03 to the Rating Agencies.
(b) The Seller hereby agrees that during the term of this Agreement
it shall not (i) take any action prohibited by Article Fourth of its
certificate of incorporation, (ii) without the prior written consent of
the CARAT Indenture Trustee and the CARAT Owner Trustee and without giving
prior written notice to the Rating Agencies, amend Article Third or Fourth
of its certificate of incorporation or (iii) incur any indebtedness or
assume or guaranty indebtedness of any other entity, other than pursuant
to the Intercompany Note and the Intercompany Advance Agreement (without
giving effect to any amendment to the Intercompany Note or the
Intercompany Advance Agreement after the date hereof, unless the Rating
Agency Condition was satisfied in connection therewith), if such action
would result in a downgrading of the then current rating of any class of
the CARAT 2005-SN1 Notes.
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Section 3.04. Limitation on Liability of Seller and Others. The Seller and
any director or officer or employee or agent of the Seller may rely in good
faith on the advice of counsel or on any document of any kind prima facie
properly executed and submitted by any Person respecting any matters arising
under this Agreement and the Second Step Secured Notes Assignment. The Seller
and any director or officer or employee or agent of the Seller shall be
reimbursed by the CARAT Indenture Trustee or CARAT Owner Trustee, as applicable,
for any contractual damages, liability or expense incurred by reason of such
trustee's willful misfeasance, bad faith or gross negligence (except errors in
judgment) in the performance of its duties under this Agreement, the Second Step
Secured Notes Assignment, the CARAT Indenture or the Trust Agreement, or by
reason of reckless disregard of its obligations and duties under this Agreement,
the Second Step Secured Notes Assignment, the CARAT Indenture or the Trust
Agreement. In no event, however, shall the CARAT Indenture Trustee or the CARAT
Owner Trustee be liable to the Seller for any damages in the nature of special,
indirect or consequential damages, however styled, including lost profits, even
if either or both of them have been advised of the likelihood of such loss or
damage. The Seller shall not be under any obligation to appear in, prosecute or
defend any legal action that is not incidental to its obligations as Seller of
the COLT 2005-SN1 Secured Notes and other Purchased Property under this
Agreement and the Second Step Secured Notes Assignment and that in its opinion
may involve it in any expense or liability.
Section 3.05. Seller May Own CARAT 2005-SN1 Notes or CARAT 2005-SN1
Certificates. Each of the Seller and any Person controlling, controlled by or
under common control with the Seller may in its individual or any other capacity
become the owner or pledgee of CARAT 2005-SN1 Notes or CARAT 2005-SN1
Certificates with the same rights as it would have if it were not the Seller or
an affiliate thereof, except as otherwise specifically provided herein. Except
as otherwise provided herein, CARAT 2005-SN1 Notes or CARAT 2005-SN1
Certificates so owned by or pledged to the Seller or such controlling or
commonly controlled Person shall have an equal and proportionate benefit under
the provisions of this Agreement, without preference, priority or distinction as
among all of such CARAT 2005-SN1 Notes or CARAT 2005-SN1 Certificates,
respectively.
ARTICLE IV
TRUST ADMINISTRATOR'S COVENANTS; DISTRIBUTIONS; STATEMENTS TO
CARAT 2005-SN1 NOTEHOLDERS AND CARAT 2005-SN1 CERTIFICATEHOLDERS
Section 4.01. Annual Statement as to Compliance; Notice of Trust
Administrator Default.
(a) The Trust Administrator shall deliver to the CARAT Indenture
Trustee and the CARAT Owner Trustee, on or before March 15 of each year,
beginning March 15, 2006, an officer's certificate signed by the President
or any Vice President of the Trust Administrator, dated as of December 31
of the immediately preceding year, in each instance, stating that (i) a
review of the activities of the Trust Administrator during the preceding
12-month period (or, with respect to the first such certificate, such
period as shall have elapsed from the Series 2005-SN1 Closing Date to the
date of such certificate) and of its performance under this Agreement and
under the Pooling and Administration Agreement has been made under such
officer's supervision, and (ii) to such officer's
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knowledge, based on such review, the Trust Administrator has fulfilled in
all material respects all its obligations under such agreements throughout
such period, or, if there has been a default in the fulfillment of any
such obligation, specifying each such default known to such officer and
the nature and status thereof, and attaching a copy of the Trust
Administrator's assertion with respect to compliance in all material
respects with the Minimum Servicing Standards throughout such period. A
copy of such certificate, to the extent delivered to the CARAT Indenture
Trustee or CARAT Owner Trustee, may be obtained by any CARAT 2005-SN1
Noteholder or CARAT 2005-SN1 Certificateholder by a request in writing to
the CARAT Indenture Trustee or CARAT Owner Trustee, respectively,
addressed to the applicable Corporate Trust Office.
(b) The Trust Administrator shall deliver to the CARAT Indenture
Trustee, the CARAT Owner Trustee and to the Rating Agencies promptly after
having obtained knowledge thereof, but in no event later than five
Business Days thereafter, written notice in an officer's certificate of
any event which with the giving of notice or lapse of time, or both, would
become a Trust Administrator Default under Section 7.01. The Seller shall
deliver to the CARAT Indenture Trustee, the CARAT Owner Trustee, the Trust
Administrator and the Rating Agencies promptly after having obtained
knowledge thereof, but in no event later than five Business Days
thereafter, written notice in an officer's certificate of any event which
with the giving of notice or lapse of time, or both, would become a Trust
Administrator Default under Section 7.01(b).
(c) The Trust Administrator shall prepare, execute and deliver, or
shall cause the Servicer to execute and deliver, all certificates or other
documents required to be delivered by the Issuer pursuant to the
Sarbanes-Oxley Act of 2002 or the rules and regulations promulgated
pursuant thereto.
Section 4.02. Annual Independent Accountants' Report.
(a) The Trust Administrator shall, at its expense, cause a firm of
independent accountants, who may also render other services to the Trust
Administrator or the Seller, to address and deliver to the Issuer and the
Board of Directors of the Trust Administrator, on or before March 15 of
each year, beginning March 15, 2006, with respect to the twelve months
ended on the immediately preceding December 31 (or with respect to the
first such report, such period as shall have elapsed from the Series
2005-SN1 Closing Date to the date of such report), a report (the
"Accountants' Report") to the effect that such firm has examined (a) the
Trust Administrator's assertion that the Trust Administrator has complied
with its Minimum Servicing Standards with respect to this Agreement and
the Pooling and Administration Agreement and (b) the Servicer's assertion
that the Servicer has complied with its Minimum Servicing Standards with
respect to the COLT Servicing Agreement and that such examination: (i) was
conducted in accordance with the Attestation Protocol and (ii) included
examining, on a test basis, evidence regarding the Trust Administrator's
compliance with its Minimum Servicing Standards and the Servicer's
compliance with its Minimum Servicing Standards. The Accountant's Report
shall include an opinion that the Trust Administrator's assertion with
respect to compliance with its Minimum Servicing Standards and the
Servicer's assertion with respect to compliance with its Minimum Servicing
Standards are fairly
8
stated in all material respects or shall report the exceptions that do not
permit such opinion. In the event that such firm requires the Issuer, or
the CARAT Owner Trustee to agree to the examination performed by such
firm, the Trust Administrator shall direct the Issuer or the CARAT Owner
Trustee, as applicable, in writing to so agree; it being understood and
agreed that the Issuer or the CARAT Owner Trustee, as the case may be,
will deliver such letter of agreement in conclusive reliance upon the
direction of the Trust Administrator, and neither the Issuer nor the CARAT
Owner Trustee makes any independent inquiry or investigation as to, and
shall have no obligation or liability in respect of, the sufficiency,
validity or correctness of such examination. The Accountants' Report
required by this Section 4.02(a) may be replaced at the election of the
Trust Administrator by any similar report or certification using standards
other than the Minimum Servicing Standards or the Attestation Protocol
that are now or in the future in use by servicers and administrators of
automobile and light duty truck leases and related Vehicles or that
otherwise comply with any rule, regulation, "no action" letter or similar
guidance promulgated by the Securities and Exchange Commission.
(b) A copy of the Accountants' Report received pursuant to Section
4.02(a) shall be delivered by the Trust Administrator to the Rating
Agencies, the CARAT Indenture Trustee and the CARAT Owner Trustee on or
before March 15 of each year, beginning March 15, 2006.
(c) A copy of the Accountants' Report, to the extent delivered to
the CARAT Indenture Trustee or the CARAT Owner Trustee, may be obtained by
any CARAT 2005-SN1 Noteholder or CARAT 2005-SN1 Certificateholder by a
request in writing to the CARAT Indenture Trustee or the CARAT Owner
Trustee, respectively, addressed to the applicable Corporate Trust Office.
Section 4.03. Access to Certain Documentation and Information Regarding
the COLT 2005-SN1 Secured Notes. The Trust Administrator shall provide to the
CARAT Indenture Trustee and the CARAT Owner Trustee reasonable access to the
documentation regarding the COLT 2005-SN1 Secured Notes. The Trust Administrator
shall provide such access to any CARAT 2005-SN1 Noteholder or CARAT 2005-SN1
Certificateholder only in such cases where a CARAT 2005-SN1 Noteholder or a
CARAT 2005-SN1 Certificateholder is required by applicable statutes or
regulations to review such documentation. In each case, such access shall be
afforded without charge but only upon reasonable request and during normal
business hours at offices of the Trust Administrator designated by the Trust
Administrator. Nothing in this Section 4.03 shall derogate from the obligation
of the Trust Administrator to observe any applicable law prohibiting disclosure
of information regarding Lessees, and the failure of the Trust Administrator to
provide access as provided in this Section 4.03 as a result of such obligation
shall not constitute a breach of this Section 4.03.
Section 4.04. Assignment of Administrative Secured Notes and Warranty
Secured Notes. Upon receipt of the Administrative Purchase Payment or the
Warranty Payment with respect to an Administrative Secured Note or a Warranty
Secured Note, respectively, each of the CARAT Indenture Trustee and the CARAT
Owner Trustee shall assign, without recourse, representation or warranty, to the
Trust Administrator or the Warranty Purchaser, as applicable, all of such
Person's right, title and interest in, to and under such Administrative Secured
Note or
9
Warranty Secured Note, the collateral therefor and the related rights assigned
thereunder. The Trust Administrator or the Warranty Purchaser, as applicable,
shall thereupon own such COLT 2005-SN1 Secured Note, and all such security and
documents, free of any further obligations to the CARAT Indenture Trustee, the
CARAT Owner Trustee, the CARAT 2005-SN1 Noteholders or the CARAT 2005-SN1
Certificateholders with respect thereto. If in any Proceeding it is held that
the Trust Administrator may not enforce a COLT 2005-SN1 Secured Note on the
ground that it is not a real party in interest or a holder entitled to enforce
the COLT 2005-SN1 Secured Note, the CARAT Indenture Trustee or the CARAT Owner
Trustee, as applicable, shall, at the Trust Administrator's expense, take such
steps as the Trust Administrator deems necessary to enforce the COLT 2005-SN1
Secured Note, including bringing suit in the name of such Person or the names of
the CARAT 2005-SN1 Noteholders or the CARAT 2005-SN1 Certificateholders.
Section 4.05. Distributions.
(a) On or before each Determination Date, the Trust Administrator
shall calculate the Total Available Amount, the Administration Fee, the
Aggregate Noteholders' Interest Distributable Amount (including the
Aggregate Class A Interest Distributable Amount, the Aggregate Class B
Interest Distributable Amount and the Aggregate Class C Interest
Distributable Amount), the First Priority Principal Distributable Amount,
the Second Priority Principal Distributable Amount, the Noteholders'
Regular Principal Distributable Amount, the net amount, if any, payable by
the Trust under any Interest Rate Swaps, the amount, if any, of any
payments due in respect of an Early Termination Date payable by the Trust
under any Interest Rate Swap and all other amounts required to determine
the amounts, if any, to be deposited in or paid from each of the CARAT
Collection Account and the Note Distribution Account and all amounts to be
paid to the Reserve Account and to the CARAT 2005-SN-1 Certificateholders
on or before the related Distribution Date.
(b) Except as otherwise provided in Section 4.05(c), on each
Distribution Date, the CARAT Indenture Trustee (based solely on the
information contained in the Trust Administrator's Accounting delivered on
the related Determination Date pursuant to Section 3.06 of the Pooling and
Administration Agreement) shall make the following distributions from the
CARAT Collection Account in the following order of priority:
(i) first, to the Trust Administrator, to the extent of the
Total Available Amount, the Administration Fee for such Distribution
Date and any unpaid Administration Fee from any preceding
Distribution Date;
(ii) second, to the Swap Counterparty, to the extent of the
Total Available Amount (as such amount has been reduced by the
distribution described in clause (i) above), the net amount, if any,
due under all Interest Rate Swaps (exclusive of payments due in
respect of an Early Termination Date of any Interest Rate Swaps);
(iii) third, to the extent of the Total Available Amount (as
such amount has been reduced by the distributions described in
clauses (i) and (ii)
10
above) (a) to the Note Distribution Account in respect of the
Aggregate Class A Interest Distributable Amount, and (b) to the Swap
Counterparty in respect of any payments due to the Swap Counterparty
in connection with an Early Termination Date of any Interest Rate
Swap related to the Class A-2b Notes, Class A-2c Notes, Class A-3b
Notes, Class A-3c Notes or Class A-4 Notes, allocated between the
Note Distribution Account and the Swap Counterparty in proportion to
the amounts owing to the Swap Counterparty in connection with such
Early Termination Date and in respect of the Aggregate Class A
Interest Distributable Amount;
(iv) fourth, to the extent of the Total Available Amount (as
such amount has been reduced by the distributions described in
clauses (i) through (iii) above), to the Note Distribution Account
for the payment of principal on the CARAT 2005-SN1 Notes in the
priority specified in Section 8.2(c) of the CARAT Indenture, the
First Priority Principal Distributable Amount;
(v) fifth, to the extent of the Total Available Amount (as
such amount has been reduced by the distributions described in
clauses (i) through (iv) above), (a) to the Note Distribution
Account in respect of the Aggregate Class B Interest Distributable
Amount; and (b) to the Swap Counterparty in respect of any payments
due to the Swap Counterparty in connection with an Early Termination
Date of any Interest Rate Swap related to the Class B-2 Notes,
allocated between the Note Distribution Account and the Swap
Counterparty in proportion to the amounts owing to the Swap
Counterparty in connection with such Early Termination Date and in
respect of the Aggregate Class B Interest Distributable Amount;
(vi) sixth, to the extent of the Total Available Amount (as
such amount has been reduced by the distributions described in
clauses (i) through (v) above), to the Note Distribution Account for
the payment of principal on the CARAT 2005-SN1 Notes in the priority
specified in Section 8.2(c) of the CARAT Indenture, the Second
Priority Principal Distributable Amount;
(vii) seventh, to the extent of the Total Available Amount (as
such amount has been reduced by the distributions described in
clauses (i) through (vi) above), (a) to the Note Distribution
Account in respect of the Aggregate Class C Interest Distributable
Amount; and (b) to the Swap Counterparty in respect of any payments
due to the Swap Counterparty in connection with an Early Termination
Date of any Interest Rate Swap related to the Class C Notes,
allocated between the Note Distribution Account and the Swap
Counterparty in proportion to the amounts owing to the Swap
Counterparty in connection with such Early Termination Date and in
respect of the Aggregate Class C Interest Distributable Amount;
(viii) eighth, to the extent of the Total Available Amount (as
such amount has been reduced by the distributions described in
clauses (i) through (vii) above), to the Note Distribution Account
for the payment of principal on
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the CARAT 2005-SN1 Notes in the priority specified in Section 8.2(c)
of the CARAT Indenture, the Noteholders' Regular Principal
Distributable Amount;
(ix) ninth, to the Reserve Account, to the extent of the Total
Available Amount (as such amount has been reduced by the
distributions described in clauses (i) through (viii) above), the
amount required to bring the amount on deposit therein up to the
Reserve Account Required Amount (after giving effect to all
distributions to the Reserve Account described in Section 3.03 of
the COLT Servicing Agreement); and
(x) tenth, to the CARAT 2005-SN1 Certificateholders (if the
Certificate Distribution Account has been established pursuant to
Section 5.1 of the Trust Agreement, then to such Certificate
Distribution Account for distribution to the CARAT 2005-SN1
Certificateholders), any portion of the Total Available Amount
remaining after the distributions described in clauses (i) through
(ix) above.
(c) Notwithstanding the foregoing, at any time that the CARAT
2005-SN1 Notes have not been paid in full and the principal balance of the
CARAT 2005-SN1 Notes has been declared immediately due and payable
following the occurrence of an Event of Default under the CARAT Indenture,
then until such time as the CARAT 2005-SN1 Notes have been paid in full
and the CARAT Indenture has been discharged or the foregoing Events of
Default have been cured or waived as provided in Section 5.2(b) of the
CARAT Indenture, distributions from the CARAT Collection Account shall be
made in the priority set forth in Section 8.01(b) and the order in which
payments to CARAT 2005-SN1 Noteholders shall be made or on amounts
deposited into the Note Distribution Account shall be as specified in
Section 2.7(c) of the CARAT Indenture.
Section 4.06. Net Deposits. At any time that GMAC shall be the Trust
Administrator, the Trust Administrator, the Seller, the CARAT Indenture Trustee
and the CARAT Owner Trustee may make any remittances pursuant to this Article IV
net of amounts to be distributed by the applicable recipient to such remitting
party. Nonetheless, each such party shall account for all of the above described
remittances and distributions as if the amounts were deposited and/or
transferred separately.
Section 4.07. Statements to Securityholders.
(a) On each Distribution Date, the CARAT Owner Trustee shall (except
as otherwise provided in the Trust Agreement) deliver to each CARAT
2005-SN1 Certificateholder, and the CARAT Indenture Trustee shall make
available to each CARAT 2005-SN1 Noteholder, a statement (which statement
shall also be provided to the Rating Agencies) prepared by the Trust
Administrator based on information in the Trust Administrator's Accounting
furnished pursuant to Section 3.06 of the Pooling and Administration
Agreement. Each such statement to be made available to CARAT 2005-SN1
Certificateholders and CARAT 2005-SN1 Noteholders, respectively, shall set
forth the following information, based solely upon the information
provided to it by the Trust Administrator in the Trust Administrator's
Accounting, concerning the CARAT 2005-
12
SN1 Certificates or the CARAT 2005-SN1 Notes, as appropriate, with respect
to such Distribution Date or the preceding Monthly Period:
(i) the amount of such distribution allocable to principal of
each class of the CARAT 2005-SN1 Notes and the amount of any
distribution to the CARAT 2005-SN1 Certificates;
(ii) the amount of the distribution, if any, allocable to
interest on or with respect to each class of the CARAT 2005-SN1
Notes;
(iii) the net amount, if any, of any payments due by the
Issuer or to be received by the Issuer under any Interest Rate Swap;
(iv) the net amount, if any, of any payments due by the Issuer
or to be received by the Issuer in respect of an Early Termination
Date payable under any Interest Rate Swap;
(v) the Note Principal Balance for each class of CARAT
2005-SN1 Notes, the Aggregate Note Principal Balance and the Note
Pool Factor for each class of CARAT 2005-SN1 Notes, each as of such
Distribution Date after giving effect to all payments described
under clause (i) above;
(vi) the First Priority Principal Distributable Amount, the
Second Priority Principal Distributable Amount and the Noteholders'
Regular Principal Distributable Amount for such Distribution Date;
(vii) the amount of the Class A Notes Interest Carryover
Shortfall, the Class B Notes Interest Carryover Shortfall and the
Class C Notes Interest Carryover Shortfall, if any, and the change
in each of such amounts from the preceding Distribution Date;
(viii) the amount of the Administration Fee paid to the Trust
Administrator with respect to the related Monthly Period;
(ix) the LIBOR for such Distribution Date and the
corresponding interest rate on each class of Floating Rate Notes for
such Distribution Date;
(x) the amount on deposit in the Reserve Account, if any, on
such Distribution Date, after giving effect to any withdrawals or
deposits on such date, and the Reserve Account Required Amount on
such date;
(xi) the aggregate amount of Advances made by the Servicer
under the COLT Servicing Agreement with respect to the related
Monthly Period;
(xii) the amount of any Pull Ahead Payments made by GMAC, in
its capacity as agent for General Motors Corporation, under the COLT
Pull Ahead Funding Agreement and the number of Series 2005-SN1 Lease
Assets that became Pull Ahead Lease Assets during the related
Monthly Period; and
13
(xiii) the amount of residual or credit losses on the Series
2005-SN1 Lease Assets during the related Monthly Period and the
aggregate amount of residual or credit losses on the Series 2005-SN1
Lease Assets since the Cutoff Date.
Each amount set forth pursuant to clauses (i), (ii), (vii) and (viii) above
shall be expressed as a dollar amount per $1,000 of initial principal amount of
the CARAT 2005-SN1 Notes.
(b) Within the prescribed period of time for tax reporting purposes
after the end of each calendar year during the term of this Agreement, the
CARAT Indenture Trustee and the CARAT Owner Trustee shall mail, to each
Person who at any time during such calendar year shall have been a holder
of CARAT 2005-SN1 Notes or CARAT 2005-SN1 Certificates, respectively, and
received any payments thereon, a statement containing such information as
may be required by the Code and applicable Treasury Regulations to enable
such securityholder to prepare its federal income tax returns.
Section 4.08. Additional Duties of the Trust Administrator.
(a) The Trust Administrator agrees to perform all its duties as
Trust Administrator and the duties of the Issuer under the CARAT Indenture, the
Swap Counterparty Rights Agreement and the Note Depository Agreement. In
addition, the Trust Administrator shall consult with the CARAT Owner Trustee
regarding the duties of the Issuer under the CARAT Indenture, the Swap
Counterparty Rights Agreement and the Note Depository Agreement. The Trust
Administrator shall monitor the performance of the Issuer and shall advise the
CARAT Owner Trustee when action is necessary to comply with the Issuer's duties
under the CARAT Indenture, the Swap Counterparty Rights Agreement and the Note
Depository Agreement. The Trust Administrator shall prepare for execution by the
Issuer or shall cause the preparation by other appropriate persons of all such
documents, reports, filings, instruments, certificates, notices and opinions as
it shall be the duty of the Issuer to prepare, file or deliver pursuant to the
CARAT Indenture, the Swap Counterparty Rights Agreement and the Note Depository
Agreement. In furtherance of the foregoing, the Trust Administrator shall take
all appropriate action that it is the duty of the Issuer to take pursuant to the
CARAT Indenture and the Swap Counterparty Rights Agreement, including such of
the foregoing as are required with respect to the following matters under the
CARAT Indenture (references are to sections of the CARAT Indenture and the Swap
Counterparty Rights Agreement, as applicable):
(A) the preparation of or obtaining of the documents and
instruments required for authentication of the CARAT 2005-SN1 Notes and delivery
of such documents or instruments to the CARAT Indenture Trustee (Section 2.2 of
the CARAT Indenture);
(B) the duty to cause the Note Register to be kept and to give
the CARAT Indenture Trustee notice of any appointment of a new Note Registrar
and the location, or change in location, of the Note Register (Section 2.4 of
the CARAT Indenture);
14
(C) the notification of the CARAT 2005-SN1 Noteholders of the
final principal payment on their CARAT 2005-SN1 Notes (Section 2.7(d) of the
CARAT Indenture);
(D) the preparation, obtaining or filing of the instruments,
opinions and certificates and other documents required for the release of
Collateral (Section 2.9 of the CARAT Indenture);
(E) the preparation of Definitive Notes and arranging the
delivery thereof (Section 2.12 of the CARAT Indenture);
(F) the maintenance of an office in the Borough of Manhattan,
the City of New York, for registration of transfer or exchange of the CARAT
2005-SN1 Notes (Section 3.2 of the CARAT Indenture);
(G) the duty to cause newly appointed Paying Agents, if any,
to deliver to the CARAT Indenture Trustee the instrument specified in the CARAT
Indenture regarding funds held in trust (Section 3.3(c) of the CARAT Indenture);
(H) the direction to the CARAT Indenture Trustee to deposit
monies with Paying Agents, if any, other than the CARAT Indenture Trustee
(Section 3.3 of the CARAT Indenture);
(I) the obtaining and preservation of the Issuer's
qualification to do business in each jurisdiction in which such qualification is
or shall be necessary to protect the validity and enforceability of the CARAT
Indenture, the CARAT 2005-SN1 Notes, the Collateral and each other instrument
and agreement included in the CARAT Trust Estate (Section 3.4 of the CARAT
Indenture);
(J) the preparation and filing of all supplements, amendments,
financing statements, continuation statements, instruments of further assurance
and other instruments, in accordance with Section 3.5 of the CARAT Indenture,
necessary to protect the CARAT Trust Estate (Section 3.5 of the CARAT
Indenture);
(K) the delivery of the Opinion of Counsel on the Series
2005-SN1 Closing Date, in accordance with Section 3.6(a) of the CARAT Indenture,
the delivery of the Opinion of Counsel on or before March 15 in each calendar
year, beginning March 15, 2006 regarding maintenance of security liens and
security interests in accordance with Section 3.6(b) of the CARAT Indenture,
each of which relates to the CARAT Trust Estate, and the annual delivery of the
Officers' Certificate and certain other statements, in accordance with Section
3.9 of the CARAT Indenture, as to compliance with the CARAT Indenture (Sections
3.6(a), 3.6(b) and 3.9 of the CARAT Indenture);
(L) the identification to the CARAT Indenture Trustee in an
Officers' Certificate of a Person with whom the Issuer has contracted to perform
its duties under the CARAT Indenture (Section 3.7(b) of the CARAT Indenture);
15
(M) the notification of the CARAT Indenture Trustee and the
Rating Agencies of an Administrator Default pursuant to the Trust Sale and
Administration Agreement or the Pooling and Administration Agreement and the
taking of all reasonable steps available to remedy such failure (Section 3.7(d)
of the CARAT Indenture);
(N) the preparation and obtaining of documents and instruments
required for the release of the Issuer from its obligations under the CARAT
Indenture (Sections 3.10 and 3.11 of the CARAT Indenture);
(O) the delivery of notice to the CARAT Indenture Trustee and
the Rating Agencies of each Event of Default under the CARAT Indenture, each
Administrator Default, each default by the Seller under the Trust Sale and
Administration Agreement and each default by GMAC under the Pooling and
Administration Agreement (Section 3.18 of the CARAT Indenture);
(P) the monitoring of the Issuer's obligations as to the
satisfaction and discharge of the CARAT Indenture and the preparation and
delivery of an Officers' Certificate and the obtaining of the Opinion of Counsel
and an Independent Certificate relating thereto (Section 4.1 of the CARAT
Indenture);
(Q) the compliance with any written directive of the CARAT
Indenture Trustee with respect to the sale of the CARAT Trust Estate in a
commercially reasonable manner if an Event of Default shall have occurred and be
continuing (Section 5.4 of the CARAT Indenture);
(R) the preparation and delivery of notice to the CARAT
2005-SN1 Noteholders and the Swap Counterparty of the resignation or removal of
the CARAT Indenture Trustee and the appointment of a successor CARAT Indenture
Trustee (Section 6.8 of the CARAT Indenture);
(S) the preparation of any written instruments required to
confirm more fully the authority of any co-trustee or separate trustee and any
written instruments necessary in connection with the resignation or removal of
any co-trustee or separate trustee (Section 6.10 of the CARAT Indenture);
(T) the furnishing of the CARAT Indenture Trustee with the
names and addresses of CARAT 2005-SN1 Noteholders during any period when the
CARAT Indenture Trustee is not the Note Registrar (Section 7.1 of the CARAT
Indenture);
(U) the preparation, the execution on behalf of the Issuer and
the filing with the Securities and Exchange Commission, any applicable state
agencies and the CARAT Indenture Trustee of documents required to be filed on a
periodic basis with, and summaries thereof as may be required by rules and
regulations prescribed by, the Securities and Exchange Commission and any
applicable state agencies and the transmission of such summaries, as necessary,
to the Noteholders (Section 7.3 of the CARAT Indenture);
(V) the opening of one or more accounts in the Trust's name,
the preparation of Issuer Orders and Opinions of Counsel and all other actions
necessary with
16
respect to investment and reinvestment of funds in the Designated Accounts
(Sections 8.2 and 8.3 of the CARAT Indenture);
(W) the preparation of an Issuer Request and Officer's
Certificate and the obtaining of an Opinion of Counsel, a Materiality Opinion
and Independent Certificates, if necessary, for the release of the CARAT Trust
Estate as defined in the CARAT Indenture (Sections 8.4 and 8.5 of the CARAT
Indenture);
(X) the preparation of Issuer Orders and the obtaining of
Opinions of Counsel with respect to the execution of supplemental indentures and
the mailing to the CARAT 2005-SN1 Noteholders of notices with respect to such
supplemental indentures (Sections 9.1, 9.2 and 9.3 of the CARAT Indenture);
(Y) the execution and delivery of new CARAT 2005-SN1 Notes
conforming to any supplemental indenture (Section 9.6 of the CARAT Indenture);
(Z) the notification of the CARAT 2005-SN1 Noteholders and the
Rating Agencies of redemption of the CARAT 2005-SN1 Notes or the duty to cause
the CARAT Indenture Trustee to provide such notification (Sections 10.1 and 10.2
of the CARAT Indenture);
(AA) the preparation of all Officer's Certificates, Opinions
of Counsel and Independent Certificates with respect to any requests by the
Issuer to the CARAT Indenture Trustee to take any action under the CARAT
Indenture and delivery thereof to the CARAT Indenture Trustee (Section 11.1(a)
of the CARAT Indenture);
(BB) the preparation and delivery of Officers' Certificates
and the obtaining of Independent Certificates, if necessary, for the release of
property from the lien of the CARAT Indenture (Section 11.1(b) of the CARAT
Indenture);
(CC) the notification of the Rating Agencies upon the failure
of the CARAT Indenture Trustee to give such notification, of the information
required pursuant to Section 11.4 of the CARAT Indenture (Section 11.4 of the
CARAT Indenture);
(DD) the preparation and delivery to the CARAT 2005-SN1
Noteholders, the CARAT Indenture Trustee or any Paying Agent of any agreements
with any Holder of a CARAT 205-SN1 Note with respect to alternate payment and
notice provisions (Section 11.6 of the CARAT Indenture);
(EE) the recording of the CARAT Indenture, if applicable
(Section 11.15 of the CARAT Indenture);
(FF) the delivery to the CARAT Indenture Trustee of an
Officer's Certificate and an Opinion of Counsel addressed to the Issuer, each
stating that any consolidation or merger of the Issuer and related supplemental
indenture shall have no material adverse tax consequence to the Swap
Counterparty, as required pursuant to Section 2.01(a) of the Swap Counterparty
Rights Agreement;
17
(GG) the delivery to the CARAT Indenture Trustee of an
Officer's Certificate and an Opinion of Counsel addressed to the Issuer, each
stating that any sale, conveyance, exchange, transfer or disposition of property
or assets of the Issuer and related supplemental indenture shall have no
material adverse tax consequence to the Swap Counterparty, as required pursuant
to Section 2.01(b) of the Swap Counterparty Rights Agreement;
(HH) the delivery of a copy to the Swap Counterparty of any
notice it shall deliver pursuant to Section 3.7(d) of the CARAT Indenture in
respect of the occurrence of a Administrator Default under the Trust Sale and
Administration Agreement (Section 4.02(b) or the Swap Counterparty Rights
Agreement);
(II) the delivery of prompt written notice to the Swap
Counterparty of each Event of Default under the CARAT Indenture, each
Administrator Default, each default on the part of the Seller of its obligations
under the Trust Sale and Administration Agreement and each default on the part
of GMAC of its obligations under the Pooling and Administration Agreement
(Section 4.02(c) of the Swap Counterparty Rights Agreement);
(JJ) the delivery to the Swap Counterparty, within five (5)
Business Days after learning of the occurrence thereof, of a copy of the written
notice in the form of an Officer's Certificate delivered to the CARAT Indenture
Trustee, of any event which with the giving of notice and the lapse of time
would become an Event of Default under Section 5.1(d) of the CARAT Indenture,
its status and what action the Issuer is taking or proposes to take with respect
thereto (Section 4.02(d) of the Swap Counterparty Rights Agreement);
(KK) the prompt transmittal to the Swap Counterparty of any
notice received by the Issuer from the CARAT 2005-SN1 Noteholders to the Swap
Counterparty (Section 4.12 of the Swap Counterparty Rights Agreement);
(LL) the delivery to the Swap Counterparty of summaries of any
information, documents or reports required to be filed by the Issuer pursuant to
Sections 7.3(a)(i) and 7.3(a)(ii) of the CARAT Indenture;
(MM) the delivery to the Swap Counterparty of a copy of the
Annual Statement of Compliance required by Section 3.9 of the CARAT Indenture
and Section 4.17(c) of the Swap Counterparty Rights Agreement; and
(b) Additional Duties.
(i) In addition to the duties of the Trust Administrator set
forth above, the Trust Administrator shall perform all the duties of the Issuer
under the CARAT Basic Documents, including making all calculations and shall
prepare for execution by the Issuer or the CARAT Owner Trustee or shall cause
the preparation by other appropriate Persons of all such documents, reports,
filings, instruments, certificates, notices and opinions as it shall be the duty
of the Issuer or the CARAT Owner Trustee to prepare, file or deliver pursuant to
the CARAT Basic Documents, and at the request of the CARAT Owner Trustee shall
take all appropriate action that it is the duty of the Issuer or the CARAT Owner
Trustee to take pursuant to the CARAT Basic Documents. Subject to Section 9.15
of this Agreement, and in accordance with
18
the directions of the CARAT Owner Trustee, the Trust Administrator shall
administer, perform or supervise the performance of such other activities in
connection with the Collateral (including the CARAT Basic Documents) as are not
covered by any of the foregoing provisions and as are expressly requested by the
CARAT Owner Trustee and are reasonably within the capability of the Trust
Administrator.
(ii) Notwithstanding anything in this Agreement or the CARAT
Basic Documents to the contrary, the Trust Administrator shall be responsible
for promptly notifying the CARAT Owner Trustee if any withholding tax is imposed
on the Trust's payments to a CARAT 2005-SN1 Certificateholder as contemplated in
Section 5.2(c) of the Trust Agreement. Any such notice shall specify the amount
of any withholding tax required to be withheld by the CARAT Owner Trustee
pursuant to such provision.
(iii) Notwithstanding anything in this Agreement or the CARAT
Basic Documents to the contrary, the Trust Administrator shall be responsible
for performance of the duties of the CARAT Owner Trustee set forth in Section
5.4 of the Trust Agreement with respect to, among other things, accounting and
reports to the CARAT 2005-SN1 Certificateholders; provided, however, that if the
CARAT Owner Trustee is notified by the Trust Administrator that the Issuer is
deemed to be taxable as a partnership for federal income tax purposes, the CARAT
Owner Trustee shall retain responsibility for the distribution to the CARAT
2005-SN1 Certificateholders of the Schedule K-1s necessary to enable each CARAT
2005-SN1 Certificateholder to prepare its federal and state income tax returns.
(iv) The Trust Administrator may satisfy any obligations it
may have with respect to clauses (ii) and (iii) above by retaining, at the
expense of the Trust payable by the Trust Administrator, a firm of independent
public accountants acceptable to the CARAT Owner Trustee which shall perform the
obligations of the Trust Administrator thereunder.
(v) The Trust Administrator shall perform the duties of the
Trust Administrator specified in Section 6.10 of the Trust Agreement required to
be performed in connection with the resignation or removal of the CARAT Owner
Trustee, and any other duties expressly required to be performed by the Trust
Administrator under the Trust Agreement.
(vi) In carrying out the foregoing duties or any of its other
obligations under this Agreement, the Trust Administrator may enter into
transactions with or otherwise deal with any of its Affiliates; provided,
however, that the terms of any such transactions or dealings shall be in
accordance with any directions received from the Issuer and shall be, in the
Trust Administrator's opinion, no less favorable to the Issuer than would be
available from Persons that are not Affiliates of the Trust Administrator.
(c) Non-Ministerial Matters.
(i) With respect to matters described under this Section 4.08
that in the reasonable judgment of the Trust Administrator are non-ministerial,
the Trust Administrator shall not take any action unless, within a reasonable
time before the taking of such action, the Trust Administrator shall have
notified the CARAT Owner Trustee of the proposed action and
19
the CARAT Owner Trustee shall not have withheld consent or provided an
alternative direction. For the purpose of the preceding sentence,
"non-ministerial matters" shall include:
(A) the amendment, change, or modification of or any
supplement to the CARAT Indenture or the other CARAT Basic Documents;
(B) the initiation of any claim or lawsuit by the Issuer
and the compromise of any action, claim or lawsuit brought by or against the
Issuer;
(C) the appointment of successor Note Registrars,
successor Paying Agents and successor CARAT Indenture Trustees pursuant to the
CARAT Indenture, or the appointment of successor Trust Administrators, or the
consent to the assignment by the Note Registrar, Paying Agent or CARAT Indenture
Trustee of its obligations under the CARAT Indenture; and
(D) the removal of the CARAT Indenture Trustee.
(ii) Notwithstanding anything to the contrary in this Agreement,
the Trust Administrator shall not be obligated to, and shall not, (x) make any
payments to the CARAT 2005-SN1 Noteholders under the CARAT Basic Documents, (y)
sell the CARAT Trust Estate pursuant to Section 5.4 of the CARAT Indenture or
(z) take any other action that the Issuer directs the Trust Administrator not to
take on its behalf.
(d) The Trust Administrator shall comply with Section 5.4 of the
Trust Agreement, including, without limitation, maintaining appropriate books of
account and records relating to services performed hereunder, which books of
account and records shall be accessible for inspection by the Issuer and the
Seller at any time during normal business hours.
ARTICLE V
NOTEHOLDER ACCOUNTS; COLLECTIONS, DEPOSITS AND INVESTMENTS
Section 5.01. Establishment of Accounts.
(a) (i) The Trust Administrator, for the benefit of the Financial
Parties, shall establish and maintain in the name of the CARAT Indenture
Trustee an Eligible Deposit Account known as the Capital Auto Receivables
Asset Trust 2005-SN1 Collection Account (the "CARAT Collection Account"),
bearing an additional designation clearly indicating that the funds
deposited therein are held for the benefit of the Financial Parties.
(ii) The Trust Administrator, for the benefit of the CARAT
2005-SN1 Noteholders, shall establish and maintain in the name of the
CARAT Indenture Trustee an Eligible Deposit Account known as the Capital
Auto Receivables Asset Trust 2005-SN1 Note Distribution Account (the "Note
Distribution Account"), bearing an additional designation clearly
indicating that the funds deposited therein are held for the benefit of
the CARAT 2005-SN1 Noteholders.
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(b) (i) Each of the Designated Accounts shall be initially
established with the CARAT Indenture Trustee, who shall be the initial
Account Holder. At any time after the Series 2005-SN1 Closing Date, the
Trust Administrator, upon thirty (30) days prior written notice to the
Account Holder, shall have the right to instruct an Account Holder to
transfer any or all of the Designated Accounts to another Eligible
Institution designated by the Trust Administrator in such notice. No
Designated Account shall be maintained with an Account Holder if the
short-term unsecured debt obligations of such Account Holder cease to have
the Required Deposit Rating (except that any Designated Account may be
maintained with an Account Holder even if the short-term unsecured debt
obligations of such Account Holder do not have the Required Deposit
Rating, if such Account Holder maintains such Designated Account as a
segregated account in its corporate trust department). Should an Account
Holder no longer satisfy the requirements in the preceding sentence with
respect to any Designated Account, then the Trust Administrator shall,
within ten (10) Business Days (or such longer period, not to exceed thirty
(30) calendar days, as to which each Rating Agency shall consent), with
the Account Holder's assistance as necessary, cause each affected
Designated Account (A) to be moved to an Account Holder that is an
Eligible Institution with the Required Deposit Rating or (B) to be moved
to a segregated account in the corporate trust department of the Account
Holder. All amounts held in such accounts shall, to the extent permitted
by applicable laws, rules and regulations, be invested, at the written
direction of the Trust Administrator, by such Account Holder in Eligible
Investments. Such written direction shall constitute certification by the
Trust Administrator that any such investment is authorized by this Section
5.01. In the absence of such prior written instruction from the Trust
Administrator to such Account Holder, the Account Holder shall invest any
uninvested funds in "Citi Institutional Liquid Reserves, Fund #349."
Investments in Eligible Investments shall be made in the name of the CARAT
Indenture Trustee or its nominee, and such investments shall not be sold
or disposed of prior to their maturity. Investment Earnings on funds
deposited in the Designated Accounts shall be payable to the Trust
Administrator. Each Account Holder holding a Designated Account as
provided in this Section 5.01(b)(i), shall be a "Securities Intermediary."
If a Securities Intermediary shall be a Person other than the CARAT
Indenture Trustee, the Trust Administrator shall obtain the express
agreement of such Person to the obligations of the Securities Intermediary
set forth in this Section 5.01 and an Opinion of Counsel that such Person
can perform such obligations.
(ii) With respect to the Designated Account Property, the
Account Holder agrees, by its acceptance hereof, that:
(A) Any Designated Account Property that is held in
deposit accounts shall be held solely in Eligible Deposit
Accounts. The Designated Accounts are accounts to which
Financial Assets will be credited.
(B) All securities or other property underlying any
Financial Assets credited to the Designated Accounts shall be
registered in the name of the Securities Intermediary, indorsed
to the Securities Intermediary or in blank or credited to
another securities account maintained in the name
21
of the Securities Intermediary and in no case will any
Financial Asset credited to any of the Designated Accounts be
registered in the name of the Issuer, the Trust Administrator
or the Seller, payable to the order of the Issuer, the Trust
Administrator or the Seller or specially indorsed to the
Issuer, the Trust Administrator or the Seller except to the
extent the foregoing have been specially indorsed to the
Securities Intermediary or in blank.
(C) All property delivered to the Securities
Intermediary pursuant to this Agreement will be credited upon
receipt of such property to the appropriate Designated
Account.
(D) Each item of property (whether investments,
investment property, Financial Asset, security, instrument or
cash) credited to a Designated Account shall be treated as a
"financial asset" within the meaning of Section 8-102(a)(9) of
the New York UCC.
(E) If at any time the Securities Intermediary shall
receive any order from the CARAT Indenture Trustee directing
transfer or redemption of any Financial Asset relating to the
Designated Accounts, the Securities Intermediary shall comply
with such order without further consent by the Trust, the
Trust Administrator, the Seller or any other Person.
(F) The Designated Accounts shall be governed by the
laws of the State of New York, regardless of any provision in
any other agreement. For purposes of the UCC, New York shall
be deemed to be the Securities Intermediary's jurisdiction and
the Designated Accounts (as well as the Security Entitlements
related thereto) shall be governed by the laws of the State of
New York.
(G) The Securities Intermediary has not entered into,
and until the termination of this Agreement will not enter
into, any agreement with any other Person relating to the
Designated Accounts and/or any Financial Assets or other
property credited thereto pursuant to which it has agreed to
comply with entitlement orders (as defined in Section
8-102(a)(8) of the New York UCC) of such other Person and the
Securities Intermediary has not entered into, and until the
termination of this Agreement will not enter into, any
agreement with the Issuer, the Seller, the Trust
Administrator, the Account Holder or the CARAT Indenture
Trustee purporting to limit or condition the obligation of the
Securities Intermediary to comply with entitlement orders as
set forth in Section 5.01(b)(ii)(E) hereof.
(H) Except for the claims and interest of the CARAT
Indenture Trustee in the Designated Accounts, the Securities
Intermediary has no knowledge of claims to, or interests in,
the Designated Accounts or in any Financial Asset credited
thereto. If any other Person asserts any Lien, encumbrance or
adverse claim (including any writ, garnishment,
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judgment, warrant of attachment, execution or similar process)
against the Designated Accounts or in any Financial Asset
carried therein, the Securities Intermediary will promptly
notify the CARAT Indenture Trustee, the Trust Administrator
and the Issuer thereof.
(I) The Securities Intermediary will promptly send
copies of all statements, confirmations and other
correspondence concerning the Designated Accounts and/or any
Designated Account Property simultaneously to each of the
Trust Administrator and the CARAT Indenture Trustee, at the
addresses set forth in Appendix B to this Agreement.
(J) The Account Holder shall maintain each item of
Designated Account Property in the particular Designated
Account to which such item originated and shall not commingle
items from different Designated Accounts.
(iii) The Trust Administrator shall have the power, revocable
by the CARAT Indenture Trustee (or by the CARAT Owner Trustee with the
consent of the CARAT Indenture Trustee) to instruct the CARAT Indenture
Trustee to make withdrawals and payments from the Designated Accounts for
the purpose of permitting the Trust Administrator or the CARAT Owner
Trustee to carry out its respective duties hereunder or permitting the
CARAT Indenture Trustee to carry out its duties under the CARAT Indenture.
(iv) The CARAT Indenture Trustee shall possess all right,
title and interest in and to all funds on deposit from time to time in the
Designated Accounts and in all proceeds thereof (except Investment
Earnings). Except as otherwise provided herein or in the CARAT Indenture,
the Designated Accounts shall be under the exclusive dominion and control
of the CARAT Indenture Trustee for the benefit of the Securityholders and
the CARAT Indenture Trustee shall have sole signature power and authority
with respect thereto.
(v) The Trust Administrator shall not direct the Account
Holder to make any investment of any funds or to sell any investment held
in any of the Designated Accounts unless the security interest granted and
perfected in such account shall continue to be perfected in such
investment or the proceeds of such sale, in either case without any
further action by any Person, and, in connection with any direction to the
Account Holder to make any such investment or sale, if requested by the
Account Holder, the Trust Administrator shall deliver to the Account
Holder an Opinion of Counsel, acceptable to the Account Holder, to such
effect.
(c) Pursuant to the Trust Agreement, the Issuer shall possess all
right, title and interest in and to all funds on deposit from time to time
in the Certificate Distribution Account and in all proceeds thereof
(except Investment Earnings). Except as otherwise provided herein or in
the Trust Agreement, the Certificate Distribution Account shall be under
the sole dominion and control of the CARAT Owner Trustee for the benefit
of the
23
CARAT 2005-SN1 Certificateholder. If, at any time, the Certificate
Distribution Account ceases to be an Eligible Deposit Account, the CARAT
Owner Trustee (or the Seller on behalf of the CARAT Owner Trustee, if the
Certificate Distribution Account is not then held by the CARAT Owner
Trustee or an Affiliate thereof) shall within ten Business Days (or such
longer period, not to exceed 30 calendar days, as to which the
Administrative Agent may consent) establish a new Certificate Distribution
Account as an Eligible Deposit Account and shall transfer any cash and/or
any investments to such new Certificate Distribution Account.
(d) The CARAT Indenture Trustee, the CARAT Owner Trustee, the
Securities Intermediary, each Account Holder and each other Eligible
Deposit Institution with whom a Designated Account or the Certificate
Distribution Account is maintained waives any right of set-off,
counterclaim, security interest or bankers' lien to which it might
otherwise be entitled.
Section 5.02. Investment Earnings. The Trust Administrator shall be
entitled to receive all Investment Earnings when and as paid without any
obligation to the CARAT Owner Trustee, the CARAT Indenture Trustee or the Seller
in respect thereof, and the Trust Administrator shall have no obligation to
deposit any such amount in any account established hereunder. To the extent that
any such amount shall be held in any account held by the CARAT Indenture Trustee
or the CARAT Owner Trustee, or otherwise established hereunder, such amount will
be withdrawn therefrom and paid to the Trust Administrator upon presentation of
a certificate signed by a Responsible Officer of the Trust Administrator setting
forth, in reasonable detail, the amount of such Investment Earnings.
Section 5.03. Additional Deposits. The Trust Administrator and the Seller
shall deposit in the CARAT Collection Account the aggregate Administrative
Purchase Payments and Warranty Payments with respect to Administrative Secured
Notes and Warranty Secured Notes, respectively. All such deposits with respect
to a Monthly Period shall be made in immediately available funds on or before
the Distribution Date related to such Monthly Period.
ARTICLE VI
LIABILITIES OF TRUST ADMINISTRATOR AND OTHERS
Section 6.01. Liability of Trust Administrator; Indemnities.
(a) The Trust Administrator shall be liable in accordance with this
Agreement and the Second Step Secured Notes Assignment only to the extent
of the obligations in this Agreement and the Pooling and Administration
Agreement specifically undertaken by the Trust Administrator. Such
obligations shall include the following:
(i) The Trust Administrator shall indemnify, defend and hold
harmless the CARAT Indenture Trustee, the CARAT Owner Trustee and
the Issuer from and against any taxes that may at any time be
asserted against any such Person with respect to the transactions
contemplated in this Agreement, including any sales, gross receipts,
general corporation, tangible personal property, privilege or
license taxes (but not including any taxes asserted with
24
respect to, and as of the date of, the sale of the COLT 2005-SN1
Secured Notes to the Issuer or the issuance and original sale of the
CARAT 2005-SN1 Notes and the CARAT 2005-SN1 Certificates, or
asserted with respect to ownership of the COLT 2005-SN1 Secured
Notes, or federal or other income taxes arising out of distributions
on the CARAT 2005-SN1 Notes or the CARAT 2005-SN1 Certificates, or
any fees or other compensation payable to any such Person) and costs
and expenses in defending against the same;
(ii) The Trust Administrator shall indemnify, defend and hold
harmless the CARAT Indenture Trustee, the CARAT Owner Trustee, the
Issuer, the CARAT 2005-SN1 Noteholders and the CARAT 2005-SN1
Certificateholders from and against any and all costs, expenses,
losses, claims, damages, and liabilities to the extent that such
cost, expense, loss, claim, damage, or liability arose out of, or
was imposed upon the CARAT Indenture Trustee, the CARAT Owner
Trustee, the Issuer, the CARAT 2005-SN1 Noteholders or the CARAT
2005-SN1 Certificateholders through the negligence, willful
misfeasance or bad faith of the Trust Administrator in the
performance of its duties under this Agreement, the Pooling and
Administration Agreement, the CARAT Indenture or the Trust Agreement
or any other CARAT Basic Document or by reason of reckless disregard
of its obligations and duties under this Agreement, the Pooling and
Administration Agreement, the CARAT Indenture or the Trust Agreement
or any other CARAT Basic Document; and
(iii) The Trust Administrator shall indemnify, defend and hold
harmless the CARAT Indenture Trustee and the CARAT Owner Trustee,
and their respective agents and servants, from and against all
costs, expenses, losses, claims, damages and liabilities arising out
of or incurred in connection with (x) in the case of the CARAT Owner
Trustee, the CARAT Indenture Trustee's performance of its duties
under the CARAT Indenture or any other CARAT Basic Document, (y) in
the case of the CARAT Indenture Trustee, the CARAT Owner Trustee's
performance of its duties under the Trust Agreement or (z) the
acceptance, administration or performance by, or action or inaction
of, the CARAT Indenture Trustee or the CARAT Owner Trustee, as
applicable, of the trusts and duties contained in this Agreement,
the CARAT Basic Documents, the CARAT Indenture (in the case of the
CARAT Indenture Trustee), including the administration of the Trust
Estate, and the Trust Agreement (in case of the CARAT Owner
Trustee), including the administration of the CARAT Owner Trust
Estate, except in each case to the extent that such cost, expense,
loss, claim, damage or liability: (A) is due to the willful
misfeasance, bad faith or negligence (except for errors in judgment)
of the Person indemnified, (B) to the extent otherwise payable to
the CARAT Indenture Trustee, arises from the CARAT Indenture
Trustee's breach of any of its representations or warranties in
Section 6.13 of the CARAT Indenture, (C) to the extent otherwise
payable to the CARAT Owner Trustee, arises from the CARAT Owner
Trustee's breach of any of its representations or warranties set
forth in Section 6.6 of the Trust Agreement, or (D) shall arise out
of or be
25
incurred in connection with the performance by the CARAT Indenture
Trustee of the duties of successor Trust Administrator hereunder.
(b) Indemnification under this Section 6.01 shall include reasonable
fees and expenses of external counsel and expenses of litigation. If the
Trust Administrator has made any indemnity payments pursuant to this
Section 6.01 and the recipient thereafter collects any of such amounts
from others, the recipient shall promptly repay such amounts collected to
the Trust Administrator, without interest.
Section 6.02. Merger or Consolidation of, or Assumption of the Obligations
of the Trust Administrator. Any corporation or other entity (a) into which the
Trust Administrator may be merged or consolidated, (b) resulting from any
merger, conversion or consolidation to which the Trust Administrator shall be a
party, (c) succeeding to the business of the Trust Administrator, or (d) more
than 50% of the voting stock (or, if not a corporation, other voting interests)
of which is owned directly or indirectly by General Motors and which is
otherwise servicing the Seller's automotive loans, leases or similar notes or
receivables, which corporation in any of the foregoing cases executes an
agreement of assumption to perform every obligation of the Trust Administrator
under this Agreement and the Pooling and Administration Agreement, shall be the
successor to the Trust Administrator under this Agreement and the Pooling and
Administration Agreement without the execution or filing of any paper or any
further act on the part of any of the parties to this Agreement, anything in
this Agreement or in the Pooling and Administration Agreement to the contrary
notwithstanding. The Trust Administrator shall provide notice of any merger,
consolidation or succession pursuant to this Section 6.02 to the Rating
Agencies.
Section 6.03. Limitation on Liability of Trust Administrator and Others.
(a) Neither the Trust Administrator nor any of the directors or
officers or employees or agents of the Trust Administrator shall be under
any liability to the Issuer, the CARAT 2005-SN1 Noteholders or the CARAT
2005-SN1 Certificateholders, except as specifically provided in this
Agreement and in the Pooling and Administration Agreement, for any action
taken or for refraining from the taking of any action pursuant to this
Agreement, the Pooling and Administration Agreement, the CARAT Indenture
or the Trust Agreement or for errors in judgment; provided, however, that
this provision shall not protect the Trust Administrator or any such
Person against any liability that would otherwise be imposed by reason of
willful misfeasance, bad faith or negligence (except errors in judgment)
in the performance of duties or by reason of reckless disregard of
obligations and duties under this Agreement, the Pooling and
Administration Agreement, the CARAT Indenture, the Trust Agreement or any
other CARAT Basic Document. The Trust Administrator and any director,
officer or employee or agent of the Trust Administrator may rely in good
faith on the advice of counsel or on any document of any kind prima facie
properly executed and submitted by any Person respecting any matters
arising under this Agreement or the Pooling and Administration Agreement.
(b) The Trust Administrator and any director or officer or employee
or agent of the Trust Administrator shall be reimbursed by the CARAT
Indenture Trustee or the CARAT Owner Trustee, as applicable, for any
contractual damages, liability or expense (including any obligation of the
Trust Administrator to the CARAT Indenture Trustee or
26
the CARAT Owner Trustee, as applicable, pursuant to Section
6.01(a)(iii)(x) or (y)) incurred by reason of such trustee's willful
misfeasance, bad faith or gross negligence (except errors in judgment) in
the performance of such trustee's duties under this Agreement, the CARAT
Indenture or the Trust Agreement or by reason of reckless disregard of its
obligations and duties under this Agreement. In no event, however, shall
the CARAT Indenture Trustee or the CARAT Owner Trustee be liable to the
Trust Administrator for any damages in the nature of special, indirect or
consequential damages, however styled, including lost profits, even if
either or both of them have been advised of the likelihood of such loss or
damage.
(c) Except as provided in this Agreement or in the Pooling and
Administration Agreement, the Trust Administrator shall not be under any
obligation to appear in, prosecute or defend any legal action that is not
incidental to its duties to administer the COLT 2005-SN1 Secured Notes in
accordance with this Agreement and the Pooling and Administration
Agreement and that in its opinion may involve it in any expense or
liability; provided, however, that the Trust Administrator may undertake
any reasonable action that it may deem necessary or desirable in respect
of this Agreement or the Pooling and Administration Agreement and the
rights and duties of the parties to this Agreement or the Pooling and
Administration Agreement and the interests of the CARAT 2005-SN1
Noteholders and CARAT 2005-SN1 - Certificateholders under this Agreement
and the Pooling and Administration Agreement, the interests of the CARAT
2005-SN1 Noteholders under the CARAT - Indenture and the interests of the
CARAT 2005-SN1 Certificateholders under the Trust Agreement. In such
event, the legal expenses and costs for such action and any liability
resulting therefrom shall be expenses, costs and liabilities of the Trust
and the Trust Administrator shall be entitled to be reimbursed therefor.
(d) The Applicable Trustee shall distribute out of the CARAT
Collection Account on a Distribution Date any amounts permitted for
reimbursement pursuant to Section 6.03(c) not previously reimbursed.
Section 6.04. Delegation of Duties. So long as GMAC acts as Trust
Administrator, the Trust Administrator may, at any time without notice or
consent, delegate any duties under this Agreement or under the Pooling and
Administration Agreement to any corporation or other Person more than 50% of the
voting stock (or, if not a corporation, other voting interests) of which is
owned, directly or indirectly, by General Motors. The Trust Administrator may at
any time perform specific duties as Trust Administrator through sub-contractors
who are in the business of servicing automotive receivables. No such delegation
or sub-contracting shall relieve the Trust Administrator of its responsibility
with respect to such duties.
Section 6.05. Trust Administrator Not to Resign. Subject to the provisions
of Section 7.02, the Trust Administrator shall not resign from the obligations
and duties imposed on it by this Agreement and the Pooling and Administration
Agreement as Trust Administrator except upon determination that the performance
of its duties under this Agreement or under the Pooling and Administration
Agreement, as the case may be, is no longer permissible under applicable law.
Any such determination permitting the resignation of the Trust Administrator
shall be evidenced by an Opinion of Counsel to such effect delivered to the
CARAT Indenture Trustee and the CARAT Owner Trustee. No such resignation shall
become effective until the CARAT
27
Indenture Trustee or a successor Trust Administrator shall have assumed the
responsibilities and obligations of the Trust Administrator in accordance with
Section 7.02.
ARTICLE VII
DEFAULT
Section 7.01. Trust Administrator Defaults. Each of the following shall
constitute a "Trust Administrator Default":
(a) any failure by the Trust Administrator to deliver to the CARAT
Indenture Trustee for deposit in any of the Designated Accounts any
required payment or to direct the CARAT Indenture Trustee to make any
required distributions therefrom, which failure continues unremedied for a
period of five Business Days after (x) written notice thereof is received
by the Trust Administrator from the CARAT Indenture Trustee or the CARAT
Owner Trustee or (y) discovery of such failure by an officer of the Trust
Administrator;
(b) any failure on the part of the Seller or the Trust Administrator
to duly observe or perform in any material respect any other covenants or
agreements of the Seller or the Trust Administrator set forth in this
Agreement, the Pooling and Administration Agreement, the CARAT Indenture
or the Trust Agreement which failure (i) materially and adversely affects
the rights of CARAT 2005-SN1 Noteholders or CARAT 2005-SN1
Certificateholders, and (ii) continues unremedied for a period of 90 days
after the date on which written notice of such failure, requiring the same
to be remedied, shall have been given to the Seller or the Trust
Administrator, as applicable, by the CARAT Indenture Trustee or the CARAT
Owner Trustee, or to the Seller or the Trust Administrator, as applicable,
and to the CARAT Indenture Trustee or the CARAT Owner Trustee by CARAT
Noteholders whose CARAT 2005-SN1 Notes evidence not less than 25% of the
Outstanding Amount of the Controlling Class as of the close of the
preceding Distribution Date or by CARAT 2005-SN1 Certificateholders whose
CARAT 2005-SN1 Certificates evidence not less than 25% of the Voting
Interests as of the close of the preceding Distribution Date;
(c) the entry of a decree or order by a court or agency or
supervisory authority having jurisdiction in the premises for the
appointment of a conservator, receiver or liquidator for the Seller or the
Trust Administrator, in any insolvency, readjustment of debt, marshalling
of assets and liabilities or similar proceedings, or for the winding up or
liquidation of their respective affairs, and the continuance of any such
decree or order unstayed and in effect for a period of 90 consecutive
days; or
(d) the consent by the Seller or the Trust Administrator to the
appointment of a conservator or receiver or liquidator in any insolvency,
readjustment of debt, marshalling of assets and liabilities, or similar
proceedings of or relating to the Seller or the Trust Administrator or of
or relating to substantially all of their respective property; or the
Seller or the Trust Administrator shall admit in writing its inability to
pay its debts generally as they become due, file a petition to take
advantage of any applicable
28
insolvency or reorganization statute, make an assignment for the benefit
of its creditors or voluntarily suspend payment of its obligations.
Notwithstanding the foregoing, there shall be no Trust Administrator Default
where a Trust Administrator Default would otherwise exist under clause (a) above
for a period of ten business days or under clause (b) for a period of 60 days if
the delay or failure giving rise to the Trust Administrator Default was caused
by an act of God or other similar occurrence. Upon the occurrence of any of
those events, the Trust Administrator shall not be relieved from using its best
efforts to perform its obligations in a timely manner in accordance with the
terms of the Pooling and Administration Agreement and this Agreement and the
Trust Administrator shall provide the CARAT Indenture Trustee, the CARAT Owner
Trustee, the Seller and the Securityholders prompt notice of the failure or
delay by it, together with a description of its efforts to so perform its
obligations.
Section 7.02. Consequences of a Trust Administrator Default. If a Trust
Administrator Default shall occur and be continuing, either the CARAT Indenture
Trustee or the CARAT 2005-SN1 Noteholders whose CARAT 2005-SN1 Notes evidence
not less than a majority of the Outstanding Amount of the Controlling Class as
of the close of the preceding Distribution Date (or, if the CARAT 2005-SN1 Notes
have been paid in full and the CARAT Indenture has been discharged in accordance
with its terms, by the CARAT Owner Trustee or CARAT 2005-SN1 Certificateholders
whose CARAT 2005-SN1 Certificates evidence not less than a majority of the
Voting Interests as of the close of the preceding Distribution Date) by notice
then given in writing to the Trust Administrator and the CARAT Owner Trustee
(and to the CARAT Indenture Trustee if given by the CARAT 2005-SN1 Noteholders
or the CARAT 2005-SN1 Certificateholders) may terminate all of the rights and
obligations of the Trust Administrator under this Agreement and the Pooling and
Administration Agreement. On or after the receipt by the Trust Administrator of
such written notice, all authority and power of the Trust Administrator under
this Agreement and the Pooling and Administration Agreement, whether with
respect to the CARAT 2005-SN1 Notes, the CARAT 2005-SN1 Certificates or the
CARAT 2005-SN1 Secured Notes or otherwise, shall pass to and be vested in the
Indenture Trustee pursuant to and under this Section 7.02. The CARAT Indenture
Trustee is hereby authorized and empowered to execute and deliver, on behalf of
the Trust Administrator, as attorney-in-fact or otherwise, any and all documents
and other instruments, and to do or accomplish all other acts or things
necessary or appropriate to effect the purposes of such notice of termination,
whether to complete the transfer and endorsement of the COLT 2005-SN1 Secured
Notes and related documents, or otherwise. The Trust Administrator agrees to
cooperate with the CARAT Indenture Trustee and the CARAT Owner Trustee in
effecting the termination of the responsibilities and rights of the Trust
Administrator under this Agreement and the Pooling and Administration Agreement
including the transfer to the CARAT Indenture Trustee or the CARAT Owner Trustee
for administration by it of all cash amounts that shall at the time be held by
the Trust Administrator for deposit, or that shall have been deposited by the
Trust Administrator in the CARAT Collection Account, the Note Distribution
Account or the Certificate Distribution Account or thereafter received with
respect to the COLT 2005-SN1 Secured Notes that shall at that time be held by
the Trust Administrator.
Section 7.03. CARAT Indenture Trustee to Act; Appointment of Successor. On
and after the time the Trust Administrator receives a notice of termination
pursuant to Section 7.02,
29
the CARAT Indenture Trustee shall be the successor in all respects to the Trust
Administrator in its capacity as Trust Administrator under this Agreement and
the Pooling and Administration Agreement and the transactions set forth or
provided for in this Agreement and the Pooling and Administration Agreement and
shall be subject to all the responsibilities, restrictions, duties and
liabilities relating thereto placed on the Trust Administrator by the terms and
provisions of this Agreement and the Pooling and Administration Agreement. As
compensation therefor, the CARAT Indenture Trustee shall be entitled to such
compensation (whether payable out of the CARAT Collection Account or otherwise)
as the Trust Administrator would have been entitled to under this Agreement if
no such notice of termination had been given including the Administration Fee
and Investment Earnings. Notwithstanding the above, the CARAT Indenture Trustee
may, if it shall be unwilling so to act, or shall, if it is legally unable so to
act, appoint, or petition a court of competent jurisdiction to appoint, a
successor (i) having a net worth of not less than $100,000,000, (ii) a long-term
unsecured debt rating from Moody's of at least Baa3 (unless such requirement is
expressly waived by Moody's) and (iii) whose regular business includes the
servicing of automotive loans, leases or similar notes or receivables, as the
successor to the Trust Administrator under this Agreement, the Pooling and
Administration Agreement in the assumption of all or any part of the
responsibilities, duties or liabilities of the Trust Administrator under this
Agreement and the Pooling and Administration Agreement. In connection with such
appointment and assumption, the CARAT Indenture Trustee may make such
arrangements for the compensation of such successor out of payments on COLT
2005-SN1 Secured Notes as it and such successor shall agree; provided, however,
that no such compensation shall be in excess of that permitted the Trust
Administrator under this Agreement and the Pooling and Administration Agreement.
The CARAT Indenture Trustee and such successor shall take such action,
consistent with this Agreement and the Pooling and Administration Agreement, as
shall be necessary to effectuate any such succession.
Section 7.04. Notification to CARAT 2005-SN1 Noteholders and CARAT
2005-SN1 Certificateholders. Upon any termination of, or appointment of a
successor to, the Trust Administrator pursuant to this Article VII, the CARAT
Indenture Trustee shall give prompt written notice thereof to the CARAT 2005-SN1
Noteholders and the Rating Agencies, and the CARAT Owner Trustee shall give
prompt written notice thereof to the CARAT 2005-SN1 Certificateholders.
Section 7.05. Waiver of Past Defaults. Noteholders whose CARAT 2005-SN1
Notes evidence not less than a majority of the Outstanding Amount of the
Controlling Class as of the close of the preceding Distribution Date (or, if all
of the Notes have been paid in full and the CARAT Indenture has been discharged
in accordance with its terms), CARAT 2005-SN1 Certificateholders whose CARAT
2005- SN1 Certificates evidence not less than a majority of the Voting Interests
as of the close of the preceding Distribution Date) may, on behalf of all CARAT
2005-SN1 Noteholders and CARAT 2005-SN1 Certificateholders, waive any default by
the Trust Administrator in the performance of its obligations hereunder and its
consequences, except a default in making any required deposits to or payments
from any of the accounts in accordance with this Agreement. Upon any such waiver
of a past default, such default shall cease to exist, and any Trust
Administrator Default arising therefrom shall be deemed to have been remedied
for every purpose of this Agreement and the Pooling and Administration
Agreement. No such waiver shall extend to any subsequent or other default or
impair any right consequent thereon.
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ARTICLE VIII
TERMINATION
Section 8.01. Optional Purchase of All COLT 2005-SN1 Secured Notes;
Insolvency of Seller; Termination of Trust.
(a) (i) The Seller shall have the option to purchase all but not
less than all of the assets of the Trust (other than the Designated
Accounts and the Certificate Account) on any Distribution Date (the
"Optional Purchase Date") following the last day of any Monthly Period as
of which the Aggregate ABS Value is 10% or less of the Aggregate Initial
ABS Value. To exercise such option, the Seller shall (A) furnish to the
Issuer and the CARAT Indenture Trustee notice of its intention to exercise
such option and of the Optional Purchase Date (such notice to be furnished
not later than 25 days prior to the Optional Purchase Date) and (B)
deposit in the CARAT Collection Account when required pursuant to clause
(ii) below an amount equal to the aggregate Administrative Purchase
Payments for the COLT 2005-SN1 Secured Notes, plus the appraised value of
any other property held by the Trust, provided, that such amount (when
added to any funds then on deposit in the Designated Accounts and the
Certificate Distribution Account) must be at least equal to the sum of (1)
the Administration Fee for the related Monthly Period, (2) the aggregate
Redemption Price of all then Outstanding Notes, and (3) any amounts
payable to the Swap Counterparty under any Interest Rate Swap. Such
appraised value shall be determined by an appraiser mutually satisfactory
to the Seller, the CARAT Owner Trustee and the CARAT Indenture Trustee.
(ii) The Seller shall make the deposit set forth in clause
(i)(B) above in immediately available funds on the Optional Purchase Date.
Upon the making of such deposit, the CARAT 2005-SN1 Notes and the CARAT
Indenture shall be deemed satisfied and discharged, and the Seller shall
succeed to all interests in and to the Trust (other than the Designated
Accounts and the rights of the Trust under the Interest Rate Swaps).
(b) Upon any sale or other disposition of the assets of the Trust
pursuant to Article V of the CARAT Indenture (an "Event of Default Sale"),
the Trust Administrator shall instruct the Applicable CARAT Trustee to
deposit into the CARAT Collection Account from the proceeds of such
disposition the amount specified in clause SECOND of Section 5.4(b) of the
CARAT Indenture (the "Event of Default Proceeds"). On the Distribution
Date (i) on which the Event of Default Proceeds are deposited in the CARAT
Collection Account (or, if such proceeds are not so deposited on a
Distribution Date, on the Distribution Date immediately following such
deposit), or (ii) at any time that the CARAT 2005-SN1 Notes have not been
paid in full and the principal balance of the CARAT 2005-SN1 Notes has
been declared immediately due and payable following the occurrence of an
Event of Default under the CARAT Indenture, then until such time as the
CARAT 2005-SN1 Notes have been paid in full and the CARAT Indenture has
been discharged or the foregoing Events of Default have been cured or
waived as provided in Section 5.2(b) of the CARAT Indenture, the Trust
Administrator shall instruct the CARAT Indenture Trustee (after taking
into account the application on such Distribution Date of the Total
Available Amount pursuant to Section 4.05(a)) shall make
31
the following distributions from the CARAT Collection Account in the
following priority:
(i) first, to the Trust Administrator, the Administration Fee
for such Distribution Date and any unpaid Administration Fee from
any preceding Distribution Date;
(ii) second, to the Swap Counterparty, the net amount, if any,
then due to the Swap Counterparty under all Interest Rate Swaps
(exclusive of payments due to the Swap Counterparty in respect of an
Early Termination Date under such Interest Rate Swaps);
(iii) third, to (a) the Note Distribution Account, for payment
of interest pro rata on the Class A Notes, the Aggregate Class A
Interest Distributable Amount and (b) to the Swap Counterparty in
respect of any payments due to the Swap Counterparty in connection
with any Early Termination Date of any Interest Rate Swaps related
to the Class A-2b Notes, Class A-2c Notes, Class A-3b Notes, Class
A-3c Notes or Class A-4 Notes allocated between the Note
Distribution Account and the Swap Counterparty in proportion to the
amounts owing in respect of the Aggregate Class A Interest
Distributable Amount and the amounts owing to the Swap Counterparty
in connection with such Early Termination Date;
(iv) fourth, to the Note Distribution Account, an amount equal
to the Note Principal Balance of the Class A Notes (after giving
effect to the reduction in the Note Principal Balance to result from
the deposits made in the Note Distribution Account on such
Distribution Date and on each prior Distribution Date) for payment
of principal pro rata on the Class A Notes;
(v) fifth, to (a) the Note Distribution Account, an amount
equal to the Aggregate Class B Interest Distributable Amount for
payment of interest on the Class B Notes and (b) the Swap
Counterparty in respect of any payments due to the Swap Counterparty
in connection with any Early Termination Date of any Interest Rate
Swaps related to the Class B-2 Notes, allocated between the Note
Distribution Account and the Swap Counterparty in proportion to the
amounts owing in respect of the Aggregate Class B Interest
Distributable Amount and the amounts owing to the Swap Counterparty
in connection with such Early Termination Date;
(vi) sixth, to the Note Distribution Account, an amount equal
to the Note Principal Balance of the Class B Notes (after giving
effect to the reduction in the Note Principal Balance to result from
the deposits made in the Note Distribution Account on such
Distribution Date and on each prior Distribution Date) for payment
of principal on the Class B Notes;
(vii) seventh, to (a) the Note Distribution Account, an amount
equal to the Aggregate Class C Interest Distributable Amount for
payment of interest
32
on the Class C Notes and (b) the Swap Counterparty in respect of any
payments due to the Swap Counterparty in connection with any Early
Termination Date of any Interest Rate Swaps related to the Class C
Notes, allocated between the Note Distribution Account and the Swap
Counterparty in proportion to the amounts owing in respect of the
Aggregate Class C Interest Distributable Amount and the amounts
owing to the Swap Counterparty in connection with such Early
Termination Date;
(viii) eighth, to the Note Distribution Account, an amount
equal to the Note Principal Balance of the Class C Notes (after
giving effect to the reduction in the Note Principal Balance to
result from the deposits made in the Note Distribution Account on
such Distribution Date and on each prior Distribution Date) for
payment of principal on the Class C Notes; and
(ix) ninth, to the CARAT 2005-SN1 Certificateholders (if the
Certificate Distribution Account has been established pursuant to
Section 5.1 of the Trust Agreement, then to such Certificate
Distribution Account for distribution to the Certificateholders) any
remaining amounts after the distributions described in clauses (i)
through (x) above.
Any Event of Default Proceeds remaining after all the deposits and other
payments described above have been made in full, shall be paid to the Seller.
(c) Notice of any termination of the Trust shall be given by the
Trust Administrator to the CARAT Owner Trustee and the CARAT Indenture
Trustee as soon as practicable after the Trust Administrator has received
notice thereof.
(d) Following the satisfaction and discharge of the CARAT Indenture
with respect to the CARAT 2005-SN1 Notes, and the payment in full of the
principal and interest on the CARAT 2005-SN1 Notes, the CARAT 2005-SN1
Certificateholders shall succeed to the rights of the CARAT 2005-SN1
Noteholders hereunder and the CARAT Owner Trustee shall succeed to the
rights of, and assume the obligations (other than those under Section 7.03
which shall remain obligations of the CARAT Indenture Trustee) of, the
CARAT Indenture Trustee pursuant to this Agreement (subject to the
continuing obligations of the CARAT Indenture Trustee set forth in Section
4.4 of the CARAT Indenture).
(e) After indefeasible payment in full to the CARAT Indenture
Trustee, the CARAT Owner Trustee, the Swap Counterparty, the CARAT
2005-SN1 Noteholders, the CARAT 2005-SN1 Certificateholders and the Trust
Administrator of all amounts required to be paid under this Agreement, the
CARAT Indenture, the Interest Rate Swaps and the Trust Agreement
(including as contemplated by this Section 8.01), (i) any amounts on
deposit in the CARAT Collection Account (after all other distributions
required to be made from such accounts have been made and provision for
the payment of all liabilities of the Trust as required by Section 3808 of
the Statutory Trust Act) shall be paid to the Seller and (ii) any other
assets remaining in the Trust shall be distributed to the Seller.
33
ARTICLE IX
MISCELLANEOUS PROVISIONS
Section 9.01. Amendment.
(a) This Agreement may be amended by the Seller, the Trust
Administrator and the CARAT Owner Trustee with the consent of the CARAT
Indenture Trustee, but without the consent of any of the Financial
Parties, (i) to cure any ambiguity, (ii) to correct or supplement any
provision in this Agreement that may be defective or inconsistent with any
other provision in this Agreement or any other CARAT Basic Documents,
(iii) to add or supplement any credit enhancement for the benefit of the
CARAT 2005-SN1 Noteholders of any class or the CARAT 2005-SN1
Certificateholders (provided that if any such addition shall affect any
class of CARAT 2005-SN1 Noteholders or CARAT 2005-SN1 Certificateholders
differently than any other class of CARAT 2005-SN1 Noteholders or CARAT
2005-SN1 Certificateholders, then such addition shall not, as evidenced by
an Opinion of Counsel, adversely affect in any material respect the
interests of any class of CARAT 2005-SN1 Noteholders or the CARAT 2005-SN1
Certificateholders), (iv) add to the covenants, restrictions or
obligations of the Seller, the Trust Administrator, the CARAT Owner
Trustee or the CARAT Indenture Trustee or (v) add, change or eliminate any
other provision of this Agreement in any manner that shall not, as
evidenced by an Opinion of Counsel, adversely affect in any material
respect the interests of the Financial Parties.
(b) This Agreement may also be amended from time to time by the
Seller, the Trust Administrator and the CARAT Owner Trustee with the
consent of the CARAT Indenture Trustee, the consent of CARAT 2005-SN1
Noteholders whose Notes evidence not less than a majority of the
Outstanding Amount of the Controlling Class as of the close of the
preceding Distribution Date and, if any Person other than the Seller or an
Affiliate of the Seller holds any Certificates, the consent of CARAT
2005-SN1 Certificateholders whose CARAT 2005-SN1 Certificates evidence not
less than a majority of the Voting Interests as of the close of the
preceding Distribution Date (which consent, whether given pursuant to this
Section 9.01 or pursuant to any other provision of this Agreement, shall
be conclusive and binding on such Person and on all future holders of such
CARAT 2005-SN1 Notes or CARAT 2005-SN1 Certificates and of any CARAT
2005-SN1 Notes or CARAT 2005-SN1 Certificates issued upon the transfer
thereof or in exchange thereof or in lieu thereof whether or not notation
of such consent is made upon the CARAT 2005-SN1 Notes or CARAT 2005-SN1
Certificates) for the purpose of adding any provisions to or changing in
any manner or eliminating any of the provisions of this Agreement, or of
modifying in any manner the rights of the CARAT 2005-SN1 Noteholders or
the CARAT 2005-SN1 Certificateholders; provided, however, that no such
amendment shall (i) increase or reduce in any manner the amount of, or
accelerate or delay the timing of, collections of payments on CARAT
2005-SN1 Notes or distributions that shall be required to be made on any
CARAT 2005-SN1 Notes or the Interest Rate for any class of CARAT 2005-SN1
Notes, or (ii) reduce the aforesaid percentage required to consent to any
such amendment, without the consent of the holders of all CARAT 2005-SN1
Notes and CARAT 2005-SN1 Certificates then outstanding.
34
(c) Prior to the execution of any such amendment or consent, the
CARAT Indenture Trustee shall furnish written notification of the
substance of such amendment or consent to the Rating Agencies.
(d) Promptly after the execution of any such amendment or consent,
the CARAT Owner Trustee shall furnish written notification of the
substance of such amendment or consent to each Financial Party.
(e) It shall not be necessary for the consent of CARAT 2005-SN1
Noteholders or CARAT 2005-SN1 Certificateholders pursuant to Section
9.01(b) to approve the particular form of any proposed amendment or
consent, but it shall be sufficient if such consent shall approve the
substance thereof. The manner of obtaining such consents (and any other
consents of CARAT 2005-SN1 Noteholders or CARAT 2005-SN1
Certificateholders provided for in this Agreement) and of evidencing the
authorization of the execution thereof by CARAT 2005-SN1 Noteholders and
CARAT 2005-SN1 Certificateholders shall be subject to such reasonable
requirements as the CARAT Indenture Trustee or the CARAT Owner Trustee may
prescribe, including the establishment of record dates pursuant to
paragraph number 2 of the Note Depository Agreement.
(f) Prior to the execution of any amendment to this Agreement, the
CARAT Indenture Trustee and the CARAT Owner Trustee shall be entitled to
receive and conclusively rely upon an Opinion of Counsel stating that the
execution of such amendment is authorized or permitted by this Section
9.01 and the Opinion of Counsel referred to in Section 9.02(j). The CARAT
Indenture Trustee and the CARAT Owner Trustee, may, but shall not be
obligated to, enter into any such amendment which affects such trustee's
own rights, duties or immunities under this Agreement or otherwise.
(g) Each of GMAC and the Seller agrees that such Person shall not
amend or agree to any amendment of the Pooling and Administration
Agreement unless such amendment would be permissible under the terms of
this Section 9.01 as if this Section 9.01 were contained in the Pooling
and Administration Agreement.
Section 9.02. Protection of Title to Trust.
(a) The Seller or the Trust Administrator or both shall authorize
and/or execute, as applicable, and file such financing statements and
cause to be authorized and/or 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 the CARAT 2005-SN1 Noteholders, the CARAT 2005-SN1
Certificateholders, the CARAT Indenture Trustee and the CARAT Owner
Trustee under this Agreement and the Second Step Secured Notes Assignment
in the Purchased Property and in the proceeds thereof. The Seller or the
Trust Administrator or both shall deliver (or cause to be delivered) to
the CARAT Indenture Trustee and the CARAT Owner Trustee file-stamped
copies of, or filing receipts for, any document filed as provided above,
as soon as available following such filing.
35
(b) Neither the Seller nor the Trust Administrator shall 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 in accordance with Section 9.02(a) above
seriously misleading within the meaning of the UCC, unless it shall have
given the CARAT Indenture Trustee and the CARAT Owner Trustee at least 60
days prior written notice thereof.
(c) Each of the Seller and the Trust Administrator shall give the
CARAT Indenture Trustee and the CARAT Owner Trustee at least 60 days prior
written notice of any relocation of its principal executive office or
change of its jurisdiction of incorporation if, as a result of such
relocation or change of jurisdiction, 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. The
Trust Administrator shall at all times maintain each office from which it
administers COLT 2005-SN1 Secured Notes and its principal executive office
within the United States of America.
(d) The Trust Administrator shall maintain accounts and records as
to each COLT 2005-SN1 Secured Note accurately and in sufficient detail to
permit (i) the reader thereof to know at any time the status of such COLT
2005-SN1 Secured Note, including payments made and payments owing (and the
nature of each), and (ii) reconciliation between payments on (or with
respect to) each COLT 2005-SN1 Secured Note and the amounts from time to
time deposited in the CARAT Collection Account and Note Distribution
Account.
(e) The Trust Administrator shall maintain its computer systems so
that, from and after the time of sale under this Agreement and the Second
Step Secured Notes Assignment of the COLT 2005-SN1 Secured Notes, the
Trust Administrator's master computer records (including any back-up
archives) that refer to any COLT 2005-SN1 Secured Note indicate clearly
that the COLT 2005-SN1 Secured Note is owned by the Issuer. Indication of
the Issuer's ownership of a COLT 2005-SN1 Secured Note shall be deleted
from or modified on the Trust Administrator's computer systems when, and
only when, the COLT 2005-SN1 Secured Note has been paid in full or
repurchased by the Seller or purchased by the Trust Administrator in
accordance with the terms of the CARAT Basic Documents.
(f) 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
9.02(a).
(g) If at any time the Seller or the Trust Administrator proposes to
sell, grant a security interest in, or otherwise transfer any interest in
secured notes to any prospective purchaser, lender or other transferee,
the Trust Administrator and the Seller shall give to such prospective
purchaser, lender or other transferee computer tapes, records or
print-outs (including any restored from back-up archives) that, if they
refer in any manner whatsoever to any COLT 2005-SN1 Secured Note, indicate
clearly that such COLT
36
2005-SN1 Secured Note has been sold and is owned by the Issuer unless such
COLT 2005-SN1 Secured Note has been paid in full or repurchased by the
Seller or purchased by the Trust Administrator.
(h) The Trust Administrator shall permit the CARAT Indenture Trustee
and the CARAT Owner Trustee and their respective agents at any time to
inspect, audit and make copies of and abstracts from the Trust
Administrator's records regarding any CARAT 2005-SN1 Notes then or
previously included in the Owner Trust Estate.
(i) The Trust Administrator shall furnish to the CARAT Indenture
Trustee and the CARAT Owner Trustee at any time upon request a list of all
COLT 2005-SN1 Secured Notes then held as part of the Trust, together with
a reconciliation of such list to the Schedule of Secured Notes and to each
of the Trust Administrator's Accountings furnished before such request
indicating removal of COLT 2005-SN1 Secured Notes from the Trust. Upon
request, the Trust Administrator shall furnish a copy of any such list to
the Seller. The CARAT Indenture Trustee, the CARAT Owner Trustee and the
Seller shall hold any such list and the Schedule of Secured Notes for
examination by interested parties during normal business hours at their
respective offices located at the addresses specified in Section 9.03.
(j) The Trust Administrator shall deliver to the CARAT Indenture
Trustee and the CARAT Owner Trustee promptly after the execution and
delivery of this Agreement and of each amendment thereto, an Opinion of
Counsel either (a) stating that, in the opinion of such counsel, all
financing statements and continuation statements have been authorized and
filed as necessary to fully preserve and protect the interest of the CARAT
Indenture Trustee and the CARAT Owner Trustee in the COLT 2005-SN1 Secured
Notes, and reciting the details of such filings or referring to prior
Opinions of Counsel in which such details are given, or (b) stating that,
in the opinion of such counsel, no such action is necessary to preserve
and protect such interest.
(k) To the extent required by law, the Seller shall cause the CARAT
2005-SN1 Notes and the CARAT 2005-SN1 Certificates to be registered with
the Securities and Exchange Commission pursuant to Section 12(b) or
Section 12(g) of the Exchange Act within the time periods specified in
such sections.
Section 9.03. Notices. All demands, notices and communications upon or to
the Seller, the Trust Administrator, the CARAT Indenture Trustee, the Issuer,
the CARAT Owner Trustee, or the Rating Agencies under this Agreement shall be
delivered in writing as specified in Appendix B hereto.
Section 9.04. GOVERNING LAW. THIS AGREEMENT 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 (EXCEPT 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.
37
Section 9.05. Severability of Provisions. If any one or more of the
covenants, agreements, provisions or terms of this Agreement shall be for any
reason whatsoever held invalid, then such covenants, agreements, provisions or
terms shall be deemed severable from the remaining covenants, agreements,
provisions or terms of this Agreement and shall in no way affect the validity or
enforceability of the other provisions of this Agreement or of the CARAT
2005-SN1 Certificates, the CARAT 2005-SN1 Notes or the rights of the holders
thereof.
Section 9.06. Assignment. Notwithstanding anything to the contrary
contained in this Agreement, this Agreement may not be assigned by the Seller
without the prior written consent of CARAT 2005-SN1 Noteholders whose CARAT
2005-SN1 Notes evidence not less than 66% of the Outstanding Amount of the CARAT
2005-SN1 Notes as of the close of the preceding Distribution Date of CARAT
2005-SN1 Certificateholders whose CARAT 2005-SN1 Certificates evidence not less
than 66% of the Voting Interests as of the close of the preceding Distribution
Date. The Seller shall provide notice of any such assignment to the Rating
Agencies.
Section 9.07. Third-Party Beneficiaries. This Agreement and the Second
Step Secured Notes Assignment and any officer's certificates delivered in
connection therewith shall inure to the benefit of and be binding upon the
parties hereto and, to the extent expressly provided herein, the CARAT 2005-SN1
Noteholders, the CARAT 2005-SN1 Certificateholders, the Swap Counterparty, the
CARAT Indenture Trustee, the CARAT Owner Trustee and their respective successors
and permitted assigns. The Swap Counterparty shall be a third party beneficiary
to this Agreement only to the extent that it has any rights specified herein or
rights with respect to this Agreement specified under the Swap Counterparty
Rights Agreement. Except as otherwise provided in Section 4.08, Section 6.01,
the Swap Counterparty Rights Agreement or this Article IX, no other Person shall
have any right or obligation hereunder.
Section 9.08. Separate Counterparts. This Agreement may be executed by the
parties hereto in separate counterparts, each of which when so executed and
delivered shall be an original, but all such counterparts shall together
constitute but one and the same instrument.
Section 9.09. Headings and Cross-References. The various headings in this
Agreement are included for convenience only and shall not affect the meaning or
interpretation of any provision of this Agreement.
Section 9.10. Assignment to CARAT Indenture Trustee. The Seller hereby
acknowledges and consents to any mortgage, pledge, assignment and grant of a
security interest by the Issuer pursuant to the CARAT Indenture for the benefit
of the CARAT 2005-SN1 Noteholders and (only to the extent expressly provided in
the CARAT Indenture) the CARAT 2005-SN1 Certificateholders of all right, title
and interest of the Issuer in, to and under the COLT 2005-SN1 Secured Notes
and/or the assignment of any or all of the Issuer's rights and obligations
hereunder to the CARAT Indenture Trustee.
Section 9.11. No Petition Covenants. Notwithstanding any prior termination
of this Agreement, the Trust Administrator and the Seller shall not, prior to
the date which is one year and one day after the final distribution with respect
to the CARAT 2005-SN1 Notes and the CARAT 2005-SN1 Certificates to the Note
Distribution Account or the Certificate Distribution Account, as applicable,
acquiesce, petition or otherwise invoke or cause the Issuer or COLT to
38
invoke the process of any court or government authority for the purpose of
commencing or sustaining a case against the Issuer or COLT under any federal or
state bankruptcy, insolvency or similar law or appointing a receiver,
liquidator, assignee, trustee, custodian, sequestrator or other similar official
of the Issuer or COLT or any substantial part of its property, or ordering the
winding up or liquidation of the affairs of the Issuer.
Section 9.12. Limitation of Liability of CARAT Indenture Trustee and CARAT
Owner Trustee.
(a) Notwithstanding anything contained herein to the contrary, this
Agreement has been acknowledged and accepted by Citibank, N.A., not in its
individual capacity but solely as CARAT Indenture Trustee and in no event
shall Citibank, N.A. have any liability for the representations,
warranties, covenants, agreements or other obligations of the Issuer
hereunder or in any of the certificates, notices or agreements delivered
pursuant hereto, as to all of which recourse shall be had solely to the
assets of the Issuer. For all purposes of this Agreement, in the
performance of its duties or obligations hereunder or in the performance
of any duties or obligations of the Issuer hereunder, the CARAT Indenture
Trustee shall be subject to, and entitled to the benefits of, the terms
and provisions of Article VI of the CARAT Indenture.
(b) Notwithstanding anything contained herein to the contrary, this
Agreement has been executed by Deutsche Bank Trust Company Delaware not in
its individual capacity but solely in its capacity as CARAT Owner Trustee
of the Issuer and in no event shall Deutsche Bank Trust Company Delaware
in its individual capacity or, except as expressly provided in the Trust
Agreement, as CARAT Owner Trustee of the Issuer have any liability for the
representations, warranties, covenants, agreements or other obligations of
the Issuer hereunder or in any of the certificates, notices or agreements
delivered pursuant hereto, as to all of which recourse shall be had solely
to the assets of the Issuer. For all purposes of this Agreement, in the
performance of its duties or obligations hereunder or in the performance
of any duties or obligations of the Issuer hereunder, the CARAT Owner
Trustee shall be subject to, and entitled to the benefits of, the terms
and provisions of Article VI of the Trust Agreement.
Section 9.13. Tax Treatment. The Trust Administrator covenants that for
all tax purposes the Trust Administrator shall regard and treat the CARAT
2005-SN1 Notes and the CARAT 2005-SN1 Certificates in a manner consistent with
the agreements (i) among the Seller, the CARAT Owner Trustee and the CARAT
2005-SN1 Certificateholders in Section 2.11 of the Trust Agreement and (ii)
among the Seller, the CARAT Indenture Trustee and the CARAT 2005-SN1 Noteholders
in Section 2.14 of the CARAT Indenture.
Section 9.14. Furnishing Documents. The CARAT Indenture Trustee shall
furnish to CARAT 2005-SN1 Noteholders, promptly upon receipt of a written
request therefor, copies of the Pooling and Administration Agreement, the Trust
Agreement, the CARAT Indenture and this Agreement.
Section 9.15. Independence of the Trust Administrator. For all purposes of
this Agreement, the Trust Administrator shall be an independent contractor and
shall not be subject
39
to the supervision of the Issuer or the CARAT Owner Trustee with respect to the
manner in which it accomplishes the performance of its obligations hereunder.
Unless expressly authorized by the Issuer, the Trust Administrator shall have no
authority to act for or represent the Issuer or the CARAT Owner Trustee in any
way and shall not otherwise be deemed an agent of the Issuer or the CARAT Owner
Trustee.
Section 9.16. No Joint Venture. Nothing contained in this Agreement (i)
shall constitute the Trust Administrator and either of the Issuer or the CARAT
Owner Trustee as members of any partnership, joint venture, association,
syndicate, unincorporated business or other separate entity, (ii) shall be
construed to impose any liability as such on any of them or (iii) shall be
deemed to confer on any of them any express, implied or apparent authority to
incur any obligation or liability on behalf of the others.
Section 9.17. Other Activities of Trust Administrator. Nothing herein
shall prevent the Trust Administrator or its Affiliates from engaging in other
businesses or, in its sole discretion, from acting in a similar capacity as an
administrator for any other person or entity even though such person or entity
may engage in business activities similar to those of the Issuer, the CARAT
Owner Trustee or the CARAT Indenture Trustee.
40
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their respective officers as of the day and year first above
written.
CAPITAL AUTO RECEIVABLES ASSET TRUST 2005-SN1
By: DEUTSCHE BANK TRUST COMPANY DELAWARE, not in
its individual capacity but solely as CARAT
Owner Trustee on behalf of the
Trust,
By: /s/ Eva Aryeetey
Name: Eva Aryeetey
Title: Attorney-in-Fact
CAPITAL AUTO RECEIVABLES, INC.,
Seller
By: /s/ C.J. Vannatter
Name: C.J. Vannatter
Title: Vice President
GENERAL MOTORS ACCEPTANCE CORPORATION
By: /s/ N.L. Bugg
Name: N.L. Bugg
Title: Director - U.S. Securitization
Acknowledged and Accepted:
CITIBANK, N.A.,
not in its individual capacity but solely as CARAT Indenture Trustee,
By: /s/ Kristen Driscoll
Name: Kristen Driscoll
Title: Vice President
CARAT 2005-SN1
Trust Sale and Administration Agreement
S-1
EXHIBIT A
SCHEDULE OF SECURED NOTES
The Schedule of Secured Notes is
on file at the offices of:
1. The CARAT Indenture Trustee
2. The CARAT Owner Trustee
3. The COLT Indenture Trustee
4. General Motors Acceptance Corporation
5. Capital Auto Receivables, Inc.
EXHIBIT B
FORM OF SECOND STEP SECURED NOTES ASSIGNMENT
PURSUANT TO TRUST SALE AND ADMINISTRATION AGREEMENT
For value received in accordance with and subject to the Trust Sale and
Administration Agreement, dated as of April 28, 2005 (the "Trust Sale and
Administration Agreement"), by and among General Motors Acceptance Corporation,
a Delaware corporation and in its capacity as Trust Administrator under the
Pooling and Administration Agreement described below (the "Trust
Administrator"), Capital Auto Receivables, Inc., a Delaware corporation (the
"Seller"), and Capital Auto Receivables Asset Trust 2005-SN1, a Delaware
statutory trust (the "Issuer"), the Seller hereby irrevocably sells, transfers,
assigns and otherwise conveys to the Trust, without recourse (subject to the
obligations herein), all right, title and interest of the Seller, whether now
owned or hereafter acquired, in, to and under the following:
(a) all right, title and interest of the Seller in, to and under the
COLT 2005-SN1 Secured Notes and all monies due thereunder on and after the
Series 2005-SN1 Closing Date;
(b) all right, title and interest of the Seller in, to and under the
COLT 2005-SN1 Trust Estate securing the COLT 2005-SN1 Secured Notes,
including: (i) the Series 2005-SN1 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 the Seller 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 the Seller in any proceeds
from recourse against Dealers on the Series 2005-SN1 Lease Assets;
(c) all right, title and interest of the Seller in, to and under (i)
the VAULT Trust Agreement (solely with respect to the Vehicles related to
Series 2005-SN1 Lease Assets), (ii) the Pooling and Administration
Agreement and the First Step Secured Notes Assignment (including the right
of the Seller to cause GMAC to repurchase COLT 2005-SN1 Secured Notes
under certain circumstances), (iii) the COLT Indenture, (iv) the COLT Sale
and Contribution Agreement, (v) the COLT Custodian Agreement and (vi) the
COLT Servicing Agreement; and
(d) 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 (clauses (a) through (d) collectively, the "Purchased
Property").
B-1
It is the intention of the Seller and the Issuer that the transfer and
assignment contemplated by this Second Step Secured Notes Assignment shall
constitute a sale of the COLT 2005-SN1 Secured Notes and the other Purchased
Property from the Seller to the Issuer and the beneficial interest in and title
to the COLT 2005-SN1 Secured Notes and the other Purchased Property 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.
The foregoing sale does not constitute and is not intended to result in
any assumption by the Issuer of any obligation of GMAC or the Seller to the
Lessees, Dealers, insurers or any other Person in connection with the COLT
2005-SN1 Secured Notes, Series 2005-SN1 Lease Assets, any Dealer Agreements, any
insurance policies or any agreement or instrument relating to any of them.
The Seller hereby represents that as of the Series 2005-SN1 Closing
Date, the Initial Aggregate Secured Note Principal Balance was $_____ and
acknowledges that in consideration of such COLT 2005-SN1 Secured Notes, the
Trust has delivered to or upon the order of the Seller the CARAT 2005-SN1 Notes
and the CARAT 2005-SN1 Certificate.
THIS SECOND 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 (EXCEPT 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.
This Second Step Secured Notes Assignment is made pursuant to and upon the
representations, warranties and agreements on the part of the Seller contained
in the Trust Sale and Administration Agreement (including the Officer's
Certificate of the Seller accompanying this Second Step Secured Notes
Assignment) and is to be governed in all respects by the Trust Sale and
Administration Agreement. Capitalized terms used but not otherwise defined
herein shall have the meanings assigned to them in the Trust Sale and
Administration Agreement.
B-2
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their respective officers as of the date first above written.
CAPITAL AUTO RECEIVABLES, INC.,
as Seller
By:_________________________________________
Name:
Title:
B-3
APPENDIX C
PERFECTION REPRESENTATIONS
1. While it is the intention of GMAC and the Seller that the transfer and
assignment contemplated by the Pooling and Administration Agreement and the
First Step Secured Notes Assignment shall constitute the sale of the COLT
2005-SN1 Secured Notes and the other First Step Purchased Property from GMAC to
the Seller and that the transfer and assignment contemplated by the Trust Sale
and Administration Agreement shall constitute the sale of the COLT 2005-SN1
Secured Notes and the other Purchased Property from the Seller to the Issuer,
the Pooling and Administration Agreement, the Trust Sale and Administration
Agreement and the CARAT Indenture create a valid and continuing security
interest (as defined in the applicable UCC) in the COLT 2005-SN1 Secured Notes
and the other Purchased Property in favor of the Seller, the Trust and the CARAT
Indenture Trustee, as applicable, which security interest is prior to all other
Liens, and is enforceable as such as against creditors of and purchasers from
GMAC, the Seller and the Issuer, respectively.
2. All steps necessary to perfect the Seller's security interest against
the account debtors in the property securing the COLT 2005-SN1 Secured Notes
that constitute chattel paper will have been taken within ten days of the Series
2005-SN1 Closing Date.
3. Prior to the sale of the COLT 2005-SN1 Secured Notes to the Issuer
under this Agreement, the COLT 2005-SN1 Secured Notes constitute "chattel
paper," "payment intangibles," "instruments," "certificated securities" or
"uncertificated securities" within the meaning of the applicable UCC.
4. The Seller owns and has good and marketable title to the COLT 2005-SN1
Secured Notes and the other Purchased Property free and clear of any Lien, claim
or encumbrance of any Person.
5. The Seller has caused or will have caused, within ten days, the filing
of all appropriate financing statements in the proper filing offices in the
appropriate jurisdictions under applicable law in order to perfect the security
interest in the COLT 2005-SN1 Secured Notes and the other First Step Purchased
Property granted to the Seller under the Pooling and Administration Agreement,
in the COLT 2005-SN1 Secured Notes and the other Purchased Property granted to
the Issuer under the Trust Sale and Administration Agreement and in the
Collateral granted to the CARAT Indenture Trustee under the CARAT Indenture.
6. Other than the security interest granted to the Seller pursuant to the
CARAT Basic Documents, the Issuer under the Trust Sale and Administration
Agreement and the CARAT Indenture Trustee under the CARAT Indenture, none of
GMAC, the Seller or the Issuer has pledged, assigned, sold, granted a security
interest in, or otherwise conveyed any of the COLT 2005-SN1 Secured Notes and
the other Purchased Property. None of GMAC, the Seller or the Issuer has
authorized the filing of, or is aware of, any financing statements against GMAC,
the Seller or the Issuer that include a description of collateral covering any
of the COLT 2005-SN1 Secured Notes and the other Purchased Property other than
the financing statements relating to the security interests granted to the
Seller, the Issuer and the CARAT Indenture Trustee under the
CARAT Basic Documents or any financing statement that has been terminated. None
of GMAC, the Seller or the Issuer is aware of any judgment or tax lien filings
or lien filings by the Pension Benefit Guaranty Corporation against GMAC, the
Seller or the Issuer.
APPENDIX A
PART I - DEFINITIONS
All terms defined in this Appendix shall have the defined meanings when
used in the CARAT Basic Documents, unless otherwise defined therein.
Account Holder: A bank or trust company whose short-term unsecured debt
obligations have the Required Deposit Rating that holds one or more of the
Designated Accounts.
Accountants' Report: The report described in Section 4.02 of the Trust
Sale and Administration Agreement.
Act: An Act as specified in Section 11.3(a) of the CARAT Indenture.
Administration Fee: With respect to a Distribution Date, the basic fee
payable to the Trust Administrator for administration services rendered during
the related Monthly Period, which shall be equal to one-twelfth (1/12th) of the
Administration Fee Rate multiplied by the Aggregate Secured Note Principal
Balance of all COLT 2005-SN1 Secured Notes held by the Trust as of the opening
of business on the first day of such Monthly Period (or, for the first
Distribution Date, the Administration Fee Rate multiplied by a fraction, the
numerator of which is 60 and the denominator of which is 360, multiplied by the
Aggregate Secured Note Principal Balance as of the Series 2005-SN1 Closing
Date).
Administration Fee Rate: 0.01% per annum.
Administrative Purchase Payment: with respect to an Administrative Secured
Note, an amount equal to the Secured Note Principal Balance, plus accrued
interest calculated at the COLT 2005-SN1 Secured Note Rate, determined as of the
close of business on the last day of the Monthly Period prior to the Monthly
Period as of which the Trust Administrator is required to (or, if earlier,
elects to) purchase such Administrative Secured Note.
Administrative Secured Note: A COLT 2005-SN1 Secured Note which the Trust
Administrator is required to purchase pursuant to Section 3.04 of the Pooling
and Administration Agreement or which the Trust Administrator has elected to
repurchase pursuant to Section 8.01(a) of the Trust Sale and Administration
Agreement.
Affiliate: With respect to any specified Person, any other Person
controlling, controlled by or under common control with such specified Person.
For the purposes of this definition, "control" when used with respect to any
specified Person means the power to direct the management and policies of such
Person, directly or indirectly, whether through the ownership of voting
securities, by contract or otherwise; and the terms "controlling" and
"controlled" have meanings correlative to the foregoing.
Agency Office: The office of the Issuer maintained pursuant Section 3.2 of
the CARAT Indenture.
Aggregate ABS Value: As defined in Exhibit A of the COLT Servicing
Agreement.
Appendix A-1
Aggregate Class Interest Distributable Amounts: The Aggregate Class A
Interest Distributable Amount, the Aggregate Class B Interest Distributable
Amount and the Aggregate Class C Interest Distributable Amount, as the context
requires.
Aggregate Class A Interest Distributable Amount: With respect to any
Distribution Date, the sum of (i) the aggregate of the Note Class Interest
Distributable Amount for each class of the Class A Notes as of such Distribution
Date and (ii) the Class A Interest Carryover Shortfall as of the close of
business on the preceding Distribution Date.
Aggregate Class B Interest Distributable Amount: With respect to any
Distribution Date, the sum of (i) the Note Class Interest Distributable Amount
for the Class B Notes as of such Distribution Date and (ii) the Class B Interest
Carryover Shortfall as of the close of business on the preceding Distribution
Date.
Aggregate Class C Interest Distributable Amount: With respect to any
Distribution Date, the sum of (i) the Note Class Interest Distributable Amount
for the Class C Notes as of such Distribution Date and (ii) the Class C Interest
Carryover Shortfall as of the close of business on the preceding Distribution
Date.
Aggregate Initial ABS Value: As defined in Exhibit A to the COLT Servicing
Agreement.
Aggregate Noteholders' Interest Distributable Amount: With respect to any
Distribution Date, the sum of (i) the Aggregate Class A Interest Distributable
Amount as of such Distribution Date, (ii) the Aggregate Class B Interest
Distributable Amount as of such Distribution Date, and (iii) the Aggregate Class
C Interest Distributable Amount as of such Distribution Date.
Aggregate Noteholders' Principal Distributable Amount: With respect to any
Distribution Date, the sum of (i) the Noteholders' Regular Principal
Distributable Amount as of such Distribution Date and (ii) the Aggregate
Noteholders' Priority Principal Distributable Amount as of such Distribution
Date.
Aggregate Noteholders' Priority Principal Distributable Amount: With
respect to any Distribution Date, the sum of (i) the First Priority Principal
Distributable Amount and (ii) the Second Priority Principal Distributable
Amount, each as of such Distribution Date.
Aggregate Note Principal Balance: With respect to the close of business on
a Distribution Date, the sum of the Note Principal Balances for all classes of
CARAT 2005-SN1 Notes.
Aggregate Overcollateralization Amount: $60,005,298.81, which is the
excess of the Aggregate Initial ABS Value over the initial Aggregate Note
Principal Balance.
Aggregate Secured Note Principal Balance: As defined in Exhibit A to the
COLT Servicing Agreement.
Annual Statement of Compliance: The Officer's Certificate required to be
delivered by the Issuer, pursuant to Section 3.9 of the CARAT Indenture or the
Officer's Certificate required
Appendix A-2
to be delivered by the Trust Administrator pursuant to Section 4.01(a) of the
Trust Sale and Administration Agreement, as applicable.
Applicable CARAT Trustee: So long as the Aggregate Note Principal Balance
is greater than zero and the CARAT Indenture has not been discharged in
accordance with its terms, the CARAT Indenture Trustee, and thereafter, the
CARAT Owner Trustee.
Attestation Protocol: The procedures, standards, guidance, explanatory
materials and exhibits with respect to the conduct of an attestation program
that are set forth in the preface, introduction and exhibits to The Uniform
Single Attestation Program for Mortgage Bankers effective for fiscal years ended
on or after December 15, 1995 or in any successor program (including pursuant to
Item 1122 of Regulation AB under the Exchange Act, when applicable), to the
extent such procedures, standards, guidance, explanatory materials and exhibits
are applicable to the servicing obligations of the Servicer set forth in the
COLT Servicing Agreement and the administration obligations of the Trust
Administrator set forth in the Trust Sale and Administration Agreement and the
Pooling and Administration Agreement.
Authorized Officer: With respect to the Issuer, any officer or agent
acting under power of attorney of the CARAT Owner Trustee who is authorized to
act for the CARAT Owner Trustee in matters relating to the Issuer and who is
identified on the list of Authorized Officers delivered by the CARAT Owner
Trustee to the CARAT Indenture Trustee on the Series 2005-SN1 Closing Date (as
such list may be modified or supplemented from time to time thereafter) or the
power of attorney and, so long as the Trust Sale and Administration Agreement is
in effect, any officer of the Trust Administrator who is authorized to act for
the Trust Administrator in matters relating to the Issuer and to be acted upon
by the Trust Administrator pursuant to the Trust Sale and Administration
Agreement and who is identified on the list of Authorized Officers delivered by
the Trust Administrator to the CARAT Indenture Trustee on the Series 2005-SN1
Closing Date (as such list may be modified or supplemented from time to time
thereafter).
Bankruptcy Code: Title 11 of the United States Code, as the same may be
amended from time to time.
Benefit Plan: Any of (i) an "employee benefit plan" (as defined in Section
3(3) of ERISA) that is subject to the provisions of Title I of ERISA, (ii) a
"plan" described in Section 4975(e)(1) of the Code or (iii) any entity whose
underlying assets include plan assets by reason of investment by an employee
benefit plan or plan in such entity.
Book-Entry Notes: A beneficial interest in the CARAT 2005-SN1 Notes,
ownership and transfers of which shall be made through book entries by a
Clearing Agency as described in Section 2.10 of the CARAT Indenture.
Business Day: Any day other than a Saturday, a Sunday or any other day on
which banks in Wilmington Delaware; New York, New York; Detroit, Michigan or
Chicago, Illinois may, or are required to, remain closed.
CARAT 2005-SN1 Certificate: Any one of the CARAT 2005-SN1 Asset Backed
Certificates executed by the CARAT Owner Trustee and authenticated by the CARAT
Owner Trustee in substantially the form set forth in Exhibit A to the Trust
Agreement.
Appendix A-3
CARAT 2005-SN1 Certificate of Trust: The certificate of trust of the
Issuer substantially in the form of Exhibit B to the Trust Agreement filed for
the Trust pursuant to Section 3810(a) of the Statutory Trust Act.
CARAT 2005-SN1 Certificateholder: A Person in whose name a CARAT 2005-SN1
Certificate is registered pursuant to the terms of the Trust Agreement.
CARAT 2005-SN1 Certificate Owner: If the CARAT 2005-SN1 Certificate is
delivered as a book-entry certificate pursuant to Section 3.4(c) of the Trust
Agreement, the Person who is the beneficial owner of such book-entry
certificate, as reflected on the books of the Clearing Agency, or on the books
of a Person maintaining an account with such Clearing Agency (directly as a
Clearing Agency Participant or as an indirect participant, in each case in
accordance with the rules of such Clearing Agency).
CARAT 2005-SN1 Noteholders: Holders of record of the CARAT 2005-SN1 Notes
pursuant to the CARAT Indenture and with respect to any class of CARAT 2005-SN1
Notes, holders of record of such class of CARAT 2005-SN1 Notes pursuant to the
CARAT Indenture.
CARAT 2005-SN1 Notes: The Class A-1 Notes, the Class A-2a Notes, the Class
A-2b Notes, the Class A-2c Notes, the Class A-3a Notes, the Class A-3b Notes,
the Class A-3c Notes, the Class A-4 Notes, the Class B-1 Notes, the Class B-2
Notes and the Class C Notes issued by the Trust pursuant to the CARAT Indenture.
CARAT Basic Documents: The CARAT 2005-SN1 Certificate of Trust, the Trust
Agreement, the Pooling and Administration Agreement (including the First Step
Secured Notes Assignment), the Trust Sale and Administration Agreement
(including the Second Step Secured Notes Assignment), the Triparty Agreement,
the CARAT Indenture, any Interest Rate Swap, the Swap Counterparty Rights
Agreement, the Note Depository Agreement, the CARAT 2005-SN1 Notes and the CARAT
2005-SN1 Certificates.
CARAT Collection Account: The account designated as such, established and
maintained pursuant to Section 5.01(a)(i) of the Trust Sale and Administration
Agreement.
CARAT Indenture: The CARAT Indenture, dated as of the Series 2005-SN1
Closing Date, between the Issuer and the CARAT Indenture Trustee, as the same
may be amended, supplemented or otherwise modified from time to time.
CARAT Indenture Trustee: Citibank, N.A., not in its individual capacity
but solely as trustee under the CARAT Indenture, or any successor trustee under
the CARAT Indenture.
CARAT Owner Trust Estate: All right, title and interest of the Trust in
and to the property and rights assigned to the Trust pursuant to Article II of
the Trust Sale and Administration Agreement, all funds on deposit from time to
time in the CARAT Collection Account and the Certificate Distribution Account
and all other property of the Trust from time to time, including any rights of
the CARAT Owner Trustee and the Trust pursuant to the Trust Sale and
Administration Agreement.
Appendix A-4
CARAT Owner Trustee: Deutsche Bank Trust Company Delaware, not in its
individual capacity but solely as trustee, or any successor trustee under the
Trust Agreement.
CARAT Trust Estate: All money, instruments, rights and other property that
are subject or intended to be subject to the lien and security interest of the
CARAT Indenture for the benefit of the Secured Parties (including all property
and interests Granted to the CARAT Indenture Trustee), including all proceeds
thereof, pledged to the CARAT Indenture Trustee pursuant to the Trust Sale and
Administration Agreement.
CARI: Capital Auto Receivables, Inc., a Delaware corporation.
Certificate Distribution Account: The account, if applicable, designated
as such, established and maintained pursuant to Section 5.1(a) of the Trust
Agreement.
Certificate Register: The register of CARAT 2005-SN1 Certificates
specified in Section 3.4 of the Trust Agreement.
Certificate Registrar: The registrar at any time of the Certificate
Register, appointed pursuant to Section 3.4(a) of the Trust Agreement.
Certificateholder: A Person in whose name a CARAT 2005-SN1 Certificate is
registered pursuant to the terms of the Trust Agreement.
Class A Interest Carryover Shortfall: With respect to any Distribution
Date, as of the close of business on such Distribution Date, the excess of (i)
the Aggregate Class A Interest Distributable Amount for such Distribution Date
over (ii) the amount that was actually deposited in the Note Distribution
Account on such Distribution Date in respect of interest for the Class A Notes.
Class A Notes: Collectively, the Class A-1 Notes, the Class A-2a Notes,
the Class A-2b, the Class A-2c Notes, the Class A-3a Notes, the Class A-3b
Notes, the Class A-3c Notes and the Class A-4 Notes.
Class A-1 Notes: The 3.327% Asset Backed Notes, Class A-1 in the initial
aggregate principal balance of $440,000,000 issued pursuant to the CARAT
Indenture.
Class A-2 Notes: Collectively, the Class A-2a Notes, the Class A-2b Notes
and the Class A-2c Notes.
Class A-2a Notes: The 3.850% Asset Backed Notes, Class A-2a in the initial
aggregate principal balance of $185,000,000 issued pursuant to the CARAT
Indenture.
Class A-2b Notes: The Floating Rate Asset Backed Notes, Class A-2b in the
initial aggregate principal balance of $329,000,000 issued pursuant to the CARAT
Indenture.
Class A-2c Notes: The Floating Rate Asset Backed Notes, Class A-2c in the
initial aggregate principal balance of $104,000,000 issued pursuant to the CARAT
Indenture.
Appendix A-5
Class A-3 Notes: Collectively, the Class A-3a Notes, the Class A-3b Notes
and the Class A-3c Notes.
Class A-3a Notes: The 4.100% Asset Backed Notes, Class A-3a in the initial
aggregate principal balance of $160,000,000 issued pursuant to the CARAT
Indenture.
Class A-3b Notes: The Floating Rate Asset Backed Notes, Class A-3b in the
initial aggregate principal balance of $315,000,000 issued pursuant to the CARAT
Indenture.
Class A-3c Notes: The Floating Rate Asset Backed Notes, Class A-3c in the
initial aggregate principal balance of $36,000,000 issued pursuant to the CARAT
Indenture.
Class A-4 Notes: The Floating Rate Asset Backed Notes, Class A-4 in the
initial aggregate principal balance of $221,000,000 issued pursuant to the CARAT
Indenture.
Class B Interest Carryover Shortfall: With respect to any Distribution
Date, as of the close of business on such Distribution Date, the excess of (i)
the Aggregate Class B Interest Distributable Amount for such Distribution Date
over (ii) the amount that was actually deposited in the Note Distribution
Account on such current Distribution Date in respect of interest for the Class B
Notes.
Class B Notes: Collectively, the Class B-1 Notes and the Class B-2 Notes.
Class B-1 Notes: The 4.830% Asset Backed Notes, Class B-1 in the initial
aggregate principal balance of $10,000,000 issued pursuant to the CARAT
Indenture.
Class B-2 Notes: The Floating Rate Asset Backed Notes, Class B-2 in the
initial aggregate principal balance of $70,000,000 issued pursuant to the CARAT
Indenture.
Class C Interest Carryover Shortfall: With respect to any Distribution
Date, as of the close of business on such Distribution Date, the excess of (i)
the Aggregate Class C Interest Distributable Amount for such Distribution Date
over (ii) the amount that was actually deposited in the Note Distribution
Account on such current Distribution Date in respect of interest for the Class C
Notes.
Class C Notes: The Floating Rate Asset Backed Notes, Class C in the
initial aggregate principal balance of $70,000,000 issued pursuant to the CARAT
Indenture.
Clearing Agency: An organization registered as a "clearing agency"
pursuant to Section 17A of the Exchange Act. The initial Clearing Agency shall
be The Depository Trust Company.
Clearing Agency Participant: A securities broker, dealer, bank, trust
company, clearing corporation or other financial institution or other Person for
whom from time to time a Clearing Agency effects book entry transfers and
pledges of securities deposited with the Clearing Agency.
Clearstream: Clearstream, Luxembourg, societe anonyme (formerly known as
Cedelbank), a corporation organized under the laws of the Duchy of Luxembourg.
Appendix A-6
Code: The Internal Revenue Code of 1986, as amended from time to time, and
the Treasury Regulations promulgated thereunder.
Collateral: The collateral specified in the Granting Clause of the CARAT
Indenture.
COLT: The trust created by the Declaration of Trust known as the "Central
Originating Lease Trust," "COLT" or "C.O.L. Trust," a Delaware statutory trust.
COLT 2005-SN1 Secured Note Rate: With respect to each COLT 2005-SN1
Secured Note, the interest rate set forth on that COLT 2005-SN1 Secured Note.
COLT 2005-SN1 Secured Notes: The non-recourse secured notes issued by COLT
and listed on the Schedule of Secured Notes.
COLT 2005-SN1 Trust Estate: As defined in Exhibit A of the COLT Servicing
Agreement.
COLT Indenture: The COLT 2005-SN1 Indenture, dated as of the Series
2005-SN1 Closing Date, between COLT and the COLT Indenture Trustee, as the same
may be amended, supplemented or otherwise modified from time to time.
COLT Indenture Trustee: Citibank, N.A., or any successor thereto under the
COLT Indenture.
COLT Owner Trustee: Deutsche Bank Trust Company Delaware, a Delaware
banking corporation, not in its individual capacity but solely as trustee, or
any successor thereto.
COLT Pull Ahead Funding Agreement: As defined in Exhibit A of the COLT
Servicing Agreement.
COLT Sale and Contribution Agreement: The COLT 2005-SN1 Sale and
Contribution Agreement, dated as of the Series 2005-SN1 Closing Date, between
COLT and GMAC, as the Seller, as the same may be amended, supplemented or
otherwise modified from time to time.
COLT Servicing Agreement: The COLT 2005-SN1 Servicing Agreement, dated as
of the Series 2005-SN1 Closing Date, between COLT and GMAC, as Servicer, as the
same may be amended, supplemented or otherwise modified from time to time.
Contingent Interest Rate Swap: Each interest rate swap agreement,
including the schedule and confirmation related thereto, between GMAC and the
Trust, as executed and delivered on the Series 2005-SN1 Closing Date, as the
same may become effective as provided in the Triparty Agreement or be amended,
supplemented, renewed, extended or replaced from time to time.
Controlling Class: Shall be (a) so long as the Class A Notes are
outstanding, the Class A Notes, (b) if the Class A Notes are no longer
outstanding but the Class B Notes are outstanding, the Class B Notes and (c) if
the Class A Notes and the Class B Notes are no longer outstanding but the Class
C Notes are outstanding, the Class C Notes.
Appendix A-7
Corporate Trust Office: With respect to the CARAT Indenture Trustee or the
CARAT Owner Trustee, the principal office at which at any particular time the
corporate trust business of the CARAT Indenture Trustee or CARAT Owner Trustee,
respectively, shall be administered, which offices at the Series 2005-SN1
Closing Date are located, in the case of the CARAT Indenture Trustee, at 388
Greenwich Street, 14th Floor, New York, New York, 10013, Attn: Structured
Finance -- Capital Auto Receivables Asset Trust 2005-SN1, and in the case of the
CARAT Owner Trustee, at Montgomery Building, 1011 Centre Road, Suite 200,
Wilmington, Delaware 19805, Attn: Corporate Trust Department.
Cutoff Date: As defined in Exhibit A of the COLT Servicing Agreement.
Dealer: As defined in Exhibit I to the Declaration.
Dealer Agreement: An existing agreement between GMAC and a Dealer with
respect to a Series 2005-SN1 Lease Asset.
Declaration of Trust or Declaration: the Third Amended and Restated
Declaration of Trust by Deutsche Bank Trust Company Delaware, as COLT Owner
Trustee, dated as of March 25, 2004, acknowledged, accepted and agreed to by
Central Originating Lease, LLC and GMAC, as the same may be amended,
supplemented or otherwise modified from time to time.
Default: Any occurrence that is, or with notice or the lapse of time or
both would become, an Event of Default.
Definitive Notes: The CARAT 2005-SN1 Notes issued in the form of
definitive notes pursuant to Section 2.12 or Section 2.15 of the CARAT
Indenture.
Designated Account Property: The Designated Accounts, all cash,
investments, Financial Assets, securities and investment property held from time
to time in any Designated Account (whether in the form of deposit accounts,
Physical Property, book-entry securities, Uncertificated Securities or
otherwise) and all proceeds of the foregoing but excluding all Investment
Earnings thereon.
Designated Accounts: The CARAT Collection Account and the Note
Distribution Account, collectively.
Determination Date: The tenth day of each calendar month, or if such tenth
day is not a Business Day, the next succeeding Business Day.
Distribution Date: With respect to a Monthly Period, the 15th day of the
next succeeding calendar month or, if such 15th day is not a Business Day, the
next succeeding Business Day, commencing May 16, 2005.
Early Termination Date: As defined in each Interest Rate Swap.
Eligible Deposit Account: Either (i) a segregated account with an Eligible
Institution or (ii) a segregated trust account with the corporate trust
department of a depository institution organized under the laws of the United
States of America or any one of the states thereof or the
Appendix A-8
District of Columbia (or any domestic branch of a foreign bank), having
corporate trust powers and acting as trustee for funds deposited in such
account, so long as any of the securities of such depository institution have a
credit rating from each Rating Agency in one of its generic rating categories
which signifies investment grade.
Eligible Institution: Either (i) the corporate trust department of the
CARAT Indenture Trustee or the CARAT Owner Trustee or (ii) a depository
institution organized under the laws of the United States of America or any one
of the states thereof or the District of Columbia (or any domestic branch of a
foreign bank), (A) which has either (1) a long-term unsecured debt rating
acceptable to the Rating Agencies or (2) a short-term unsecured debt rating or
certificate of deposit rating acceptable to the Rating Agencies and (B) whose
deposits are insured by the FDIC.
Eligible Investments: Book-entry securities, negotiable instruments or
securities represented by instruments in bearer or registered form which
evidence:
(i) direct obligations of, and obligations fully guaranteed as to
timely payment of principal and interest by, the United States of America;
(ii) demand deposits, time deposits or certificates of deposit of
any depository institution or trust company incorporated under the laws of
the United States of America or any state thereof (or any domestic branch
of a foreign bank) and subject to supervision and examination by Federal
or State banking or depository institution authorities; provided, however,
that at the time of the investment or contractual commitment to invest
therein, the commercial paper or other short-term unsecured debt
obligations (other than such obligations the rating of which is based on
the credit of a Person other than such depository institution or trust
company) thereof shall have a credit rating from each of the Rating
Agencies in the highest investment category for short-term unsecured debt
obligations or certificates of deposit granted thereby;
(iii) commercial paper having, at the time of the investment or
contractual commitment to invest therein, a rating from each of the Rating
Agencies in the highest investment category for short-term unsecured debt
obligations or certificates of deposit granted thereby;
(iv) investments in money market or common trust funds having a
rating from each of the Rating Agencies in the highest investment category
for short-term unsecured debt obligations or certificates of deposit
granted thereby (including funds for which the CARAT Indenture Trustee or
the CARAT Owner Trustee or any of their respective affiliates is
investment manager or advisor, so long as such fund shall have such
rating);
(v) bankers' acceptances issued by any depository institution or
trust company referred to in clause (ii) above;
(vi) repurchase obligations with respect to any security that is a
direct obligation of, or fully guaranteed by, the United States of America
or any agency or instrumentality thereof the obligations of which are
backed by the full faith and credit of the United States of America, in
either case entered into with (A) a depository institution
Appendix A-9
or trust company (acting as principal) described in clause (ii) or (B) a
depository institution or trust company (x) the deposits of which are
insured by FDIC or (y) the counterparty for which has a rating from each
of the Rating Agencies in the highest investment category for short-term
unsecured debt obligations, the collateral for which is held by a
custodial bank for the benefit of the Trust or the CARAT Indenture
Trustee, is marked to market daily and is maintained in an amount that
exceeds the amount of such repurchase obligation, and which is required to
be liquidated immediately upon the amount of such collateral being less
than the amount of such repurchase obligation (unless the counterparty
immediately satisfies the repurchase obligation upon being notified of
such shortfall); and
(vii) any other investment permitted by each of the Rating Agencies;
in each case, unless otherwise permitted by the Rating Agencies, maturing
(A) not later than the Business Day immediately preceding the next
Distribution Date or (B) on such next Distribution Date if either (x) such
investment is issued by the institution with which the Note Distribution
Account is then maintained or (y) the CARAT Indenture Trustee (so long as
the short-term unsecured debt obligations of the CARAT Indenture Trustee
are rated at least P-1 by Moody's and A-1 by S&P on the date such
investment is made) shall advance funds on such Distribution Date to the
Note Distribution Account in the amount payable on such investment on such
Distribution Date pending receipt thereof to the extent necessary to make
distributions on the CARAT 2005-SN1 Notes on such Distribution Date. The
provisions in clauses (ii), (iii), (iv), (vi) and (vii) above requiring
that certain investments be rated in the highest investment category
granted by each Rating Agency require such rating from S&P and Moody's,
and from Fitch, Inc. only if Fitch, Inc. is then rating such investment.
For purposes of the foregoing, unless the CARAT Indenture Trustee objects
at the time an investment is made, the CARAT Indenture Trustee shall be
deemed to have agreed to make such advance with respect to such
investment.
Entitlement Holder: Has the meaning given such term in Section 8-102(a)(7)
of the New York UCC.
ERISA: The Employee Retirement Income Security Act of 1974, as amended.
ERISA Affiliate: As defined in Exhibit A of the COLT Servicing Agreement.
Euroclear: Euroclear Bank SA/NV, Brussels office, as operator of the
Euroclear system.
Event of Default: An event described in Section 5.1 of the CARAT
Indenture.
Event of Default Proceeds: As defined in Section 8.01(b) of the Trust Sale
and Administration Agreement.
Event of Default Sale: As defined in Section 8.01(b) of the Trust Sale and
Administration Agreement.
Exchange Act: The Securities Exchange Act of 1934, as amended.
Appendix A-10
Exchange Date: As defined in Section 2.1(b) of the CARAT Indenture.
Executive Officer: With respect to any corporation, the Chief Executive
Officer, Chief Operating Officer, Chief Financial Officer, President, Executive
Vice President, any Vice President, the Secretary or the Treasurer of such
corporation; and with respect to any partnership, any general partner thereof.
Expenses: The expenses described in Section 6.9 of the Trust Agreement.
FDIC: Federal Deposit Insurance Corporation or any successor agency.
Final Scheduled Distribution Date: With respect to any CARAT 2005-SN1
Notes, the Distribution Date in the month and year set forth below opposite such
CARAT 2005-SN1 Notes:
Class A-1 Notes: May 15, 2006;
Class A-2 Notes: July 16, 2007;
Class A-3 Notes: June 16, 2008;
Class A-4 Notes: November 17, 2008;
Class B Notes: February 17, 2009; and
Class C Notes: December 15, 2009.
Financial Asset: Has the meaning given such term in Article 8 of the New
York UCC. As used herein, the Financial Asset "related to" a Security
Entitlement is the Financial Asset in which the entitlement holder (as defined
in Article 8 of the New York UCC) holding such Security Entitlement has the
rights and property interest specified in Article 8 of the New York UCC.
Financial Parties: The CARAT 2005-SN1 Noteholders, the CARAT 2005-SN1
Certificateholders and, so long as any Interest Rate Swaps are in effect, the
Swap Counterparty.
First Priority Principal Distributable Amount: With respect to any
Distribution Date, an amount equal to the excess, if any, of (i) the aggregate
Note Principal Balance of the Class A Notes as of the preceding Distribution
Date (after giving effect to any principal payments made on the Class A Notes on
such preceding Distribution Date) (or with respect to the first Distribution
Date, on the Series 2005-SN1 Closing Date) over (ii) the Aggregate ABS Value at
the close of business on the last day of the related Monthly Period.
First Step Purchased Property: As defined in Section 2.01 of the Pooling
and Administration Agreement.
First Step Secured Notes Assignment: As defined in Section 2.02 of the
Pooling and Administration Agreement.
Fitch: Fitch, Inc., or any successor thereto.
Fixed Rate Notes: Together, the Class A-2a Notes, the Class A-3a Notes and
the Class B-1 Notes.
Appendix A-11
Floating Rate Notes: Collectively, the Class A-2b Notes, the Class A-2c
Notes, the Class A-3b Notes, the Class A-3c Notes, the Class A-4 Notes, the
Class B-2 Notes and the Class C Notes.
Further Transfer and Administration Agreements: As defined in the recitals
to the Pooling and Administration Agreement.
General Motors: General Motors Corporation, a Delaware corporation.
GMAC: General Motors Acceptance Corporation, a Delaware corporation.
GMAC Interest Rate Swap: Each interest rate swap agreement, including the
schedule and confirmation related thereto, between GMAC and the Swap
Counterparty in effect on the Series 2005-SN1 Closing Date, as the same may be
amended, supplemented, renewed, extended or replaced from time to time.
Grant: To mortgage, pledge, bargain, sell, warrant, alienate, remise,
release, convey, assign, transfer, create, and grant a lien upon, a security
interest in and right of set-off against, deposit, set over and confirm pursuant
to the CARAT Indenture. A Grant of the Collateral or of any other agreement or
instrument shall include all rights, powers and options (but none of the
obligations) of the Granting party thereunder, including the immediate and
continuing right to claim for, collect, receive and give receipt for principal
and interest payments in respect of, the Collateral and all other moneys payable
thereunder, to give and receive notices and other communications, to make
waivers or other agreements, to exercise all rights and options, to bring
Proceedings in the name of the Granting party or otherwise and generally to do
and receive anything that the Granting party is or may be entitled to do or
receive thereunder or with respect thereto.
Holder: The Person in whose name a CARAT 2005-SN1 Note or CARAT 2005-SN1
Certificate is registered on the Note Register or the Certificate Register, as
applicable.
Indemnified Parties: The Persons specified in Section 6.9 of the Trust
Agreement.
Independent: When used with respect to any specified Person, that the
Person (i) is in fact independent of the Issuer, any other obligor upon the
CARAT 2005-SN1 Notes, the Seller and any Affiliate of any of the foregoing
Persons, (ii) does not have any direct financial interest or any material
indirect financial interest in the Issuer, any such other obligor, the Seller or
any Affiliate of any of the foregoing Persons and (iii) is not connected with
the Issuer, any such other obligor, the Seller or any Affiliate of any of the
foregoing Persons as an officer, employee, promoter, underwriter, trustee,
partner, director or person performing similar functions.
Independent Certificate: A certificate or opinion to be delivered to the
CARAT Indenture Trustee under the circumstances described in, and otherwise
complying with, the applicable requirements of Section 11.1 of the CARAT
Indenture, made by an Independent appraiser or other expert appointed by an
Issuer Order and approved by the CARAT Indenture Trustee in the exercise of
reasonable care, and stating that the signer has read the definition of
"Independent" in the CARAT Indenture and that the signer is Independent within
the meaning thereof.
Appendix A-12
Indirect Participant: A securities broker, dealer, bank, trust company or
other Person that clears through or maintains a custodial relationship with a
Clearing Agency Participant, either directly or indirectly.
Initial Aggregate Secured Note Principal Balance: $1,970,005,219.32.
Intercompany Advance Agreement: The CARI Intercompany Advance Agreement
dated as of March 25, 2004, between CARI and GMAC, as amended and supplemented
from time to time.
Intercompany Note: The Intercompany Note issued by CARI to GMAC under the
Intercompany Advance Agreement.
Interest Rate: With respect to each class of CARAT 2005-SN1 Notes, the per
annum rate set forth below:
Class A-1 Notes: 3.327%
Class A-2a Notes: 3.850%
Class A-2b Notes: LIBOR + 0.080%
Class A-2c Notes: LIBOR + 0.080%
Class A-3a Notes: 4.100%
Class A-3b Notes: LIBOR + 0.100%
Class A-3c Notes: LIBOR + 0.100%
Class A-4 Notes: LIBOR + 0.150%
Class B-1 Notes: 4.830%
Class B-2 Notes: LIBOR + 0.750%
Class C Notes: LIBOR + 1.250%
Interest Rate Swap: Each interest rate swap agreement, including all
schedules and confirmations related thereto, between the Issuer and the Swap
Counterparty, in effect on the Series 2005-SN1 Closing Date, as the same may be
amended, supplemented, renewed, extended or replaced from time to time. From and
after the date, if any, on which any Contingent Interest Rate Swaps become
effective as provided in the Triparty Agreement, each shall constitute an
"Interest Rate Swap" for all purposes under the CARAT Basic Documents.
Interested Parties: As defined in the recitals to the Pooling and
Administration Agreement.
Investment Company Act: The Investment Company Act of 1940, as the same
may be amended from time to time.
Investment Earnings: Investment earnings on funds deposited in the
Designated Accounts and the Certificate Distribution Account, net of losses and
investment expenses.
Issuer: The party named as such in the Trust Sale and Administration
Agreement and in the CARAT Indenture until a successor replaces it and,
thereafter, means the successor and, for purposes of any provision contained
herein and required by the TIA, each other obligor on the CARAT 2005-SN1 Notes.
Appendix A-13
Issuer Order: A written order signed in the name of the Issuer by any one
of its Authorized Officers and delivered to the CARAT Indenture Trustee.
Issuer Request: A written request signed in the name of the Issuer by any
one of its Authorized Officers and delivered to the CARAT Indenture Trustee.
Lease: Any automobile and light truck lease sold, assigned, transferred or
conveyed to COLT, including all other agreements related thereto and all rights
and obligations thereunder.
Lease Asset: A Lease and the Vehicle related thereto.
Lessee: With respect to any Series 2005-SN1 Lease Asset, the lessee or the
co-lessees of the Vehicle and any guarantor of the Lease comprising such Lease
Asset.
LIBOR: With respect to the initial Distribution Date, 3.060%; with respect
to each Distribution Date other than the initial Distribution Date, the rate for
deposits in U.S. Dollars for a period of one month which appears on Telerate
Service Page 3750 as of 11:00 a.m., London time, on the day that is two LIBOR
Business Days prior to the preceding Distribution Date. If such rate does not
appear on that date on Telerate Service Page 3750 (or any other page as may
replace that page on that service, or if that service is no longer offered, any
other service for displaying LIBOR or comparable rates as may be selected by the
CARAT Indenture Trustee after consultation with the Seller), then LIBOR will be
the Reference Bank Rate.
LIBOR Business Day: Any day other than a Saturday, Sunday or any other day
on which banks in London are required or authorized to be closed.
Lien: Any security interest, lien, charge, pledge, equity, encumbrance or
adverse claim of any kind other than tax liens, mechanics' liens and any liens
that attach by operation of law.
Materiality Opinion: A written opinion of Kirkland & Ellis LLP, Mayer,
Brown, Rowe & Maw LLP or another nationally recognized law firm experienced in
securitization matters reasonably acceptable to the Swap Counterparty, addressed
to the Swap Counterparty and in form and substance reasonably satisfactory to
the Swap Counterparty.
Minimum Servicing Standards: Servicing standards identified as "Minimum
Servicing Standards" in The Uniform Single Attestation Program for Mortgage
Bankers effective for fiscal years ended on or after December 15, 1995 or in any
successor program (including pursuant to Item 1122 of Regulation AB under the
Exchange Act, when applicable), to the extent such standards are applicable to
the servicing obligations of the Servicer set forth in the COLT Servicing
Agreement and the administration obligations of the Trust Administrator set
forth in the Trust Sale and Administration Agreement and the Pooling and
Administration Agreement.
Monthly Period: Each calendar month (or, in the case of the first Monthly
Period, the period from and including the Series 2005-SN1 Closing Date to and
including April 30, 2005). With respect to any Distribution Date, the "related
Monthly Period" is the Monthly Period preceding the calendar month in which such
Distribution Date occurs.
Moody's: Moody's Investors Service, Inc., or any successor thereto.
Appendix A-14
New York UCC: The UCC as in effect on the Series 2005-SN1 Closing Date in
the State of New York, and as it may be amended from time to time.
Note Class Interest Distributable Amount: With respect to any class of
CARAT 2005-SN1 Notes and any Distribution Date, the product of (i) the
outstanding principal balance of such class of CARAT 2005-SN1 Notes as of the
close of business on the preceding Distribution Date (or, in the case of the
first Distribution Date, the outstanding principal balance of such class of
CARAT 2005-SN1 Notes on the Series 2005-SN1 Closing Date) and (ii) in the case
of (a) the Fixed Rate Notes (other than the Class A-1 Notes), one-twelfth of the
Interest Rate for such class (or, in the case of the first Distribution Date,
the Interest Rate for such class, multiplied by a fraction, the numerator of
which is 17 and the denominator of which is 360) and (b) the Floating Rate Notes
and the Class A-1 Notes, the product of the Interest Rate for such class of
CARAT 2005-SN1 Notes for such Distribution Date and a fraction, the numerator of
which is the number of days elapsed from and including the prior Distribution
Date (or, in the case of the first Distribution Date, from and including the
Series 2005-SN1 Closing Date), to but excluding that Distribution Date and the
denominator of which is 360.
Note Depository: The depository from time to time selected by the CARAT
Indenture Trustee on behalf of the Trust in whose name the CARAT 2005-SN1 Notes
are registered prior to the issue of Definitive Notes. The first Note Depository
shall be Cede & Co., the nominee of the initial Clearing Agency.
Note Depository Agreement: The agreement, dated as of the Series 2005-SN1
Closing Date, between the Issuer and The Depository Trust Company, as the
initial Clearing Agency relating to the CARAT 2005-SN1 Notes, substantially in
the form of Exhibit B to the CARAT Indenture, as the same may be amended and
supplemented from time to time.
Note Distribution Account: The account designated as such, established and
maintained pursuant to Section 5.01(a)(ii) of the Trust Sale and Administration
Agreement.
Note Owner: With respect to a Book-Entry Note, the Person who is the
beneficial owner of such Book-Entry Note, as reflected on the books of the
Clearing Agency, or on the books of a Person maintaining an account with such
Clearing Agency (directly as a Clearing Agency Participant or as an Indirect
Participant, in each case in accordance with the rules of such Clearing Agency).
Note Pool Factor: With respect to any class of CARAT 2005-SN1 Notes and
any Distribution Date, an amount expressed to the seventh decimal place and
computed by the Trust Administrator which is equal to the Note Principal Balance
for such class as of the close of business on such Distribution Date divided by
the initial Note Principal Balance for such class.
Note Principal Balance: With respect to any class of the CARAT 2005-SN1
Notes and any Distribution Date, the initial aggregate principal balance of such
class of the CARAT 2005-SN1 Notes, reduced by all previous payments to the CARAT
2005-SN1 Noteholders of such class in respect of principal of such CARAT
2005-SN1 Notes.
Note Register: With respect to any class of the CARAT 2005-SN1 Notes, the
register of such CARAT 2005-SN1 Notes specified in Section 2.4 of the CARAT
Indenture.
Note Registrar: The registrar at any time of the Note Register, appointed
pursuant to Section 2.4 of the CARAT Indenture.
Appendix A-15
Noteholders' Interest Distributable Amount: For any Distribution Date, the
Aggregate Class Interest Distributable Amount for the Controlling Class.
Noteholders' Regular Principal Distributable Amount: For any Distribution
Date, the lesser of:
(A) the Aggregate Note Principal Balance as of the close of the
immediately preceding Distribution Date or in the case of the first
Distribution Date, the Aggregate Note Principal Balance on the Series
2005-SN1 Closing Date; and
(B) the excess, if any, of (i) the Aggregate Note Principal Balance
on such Distribution Date (after giving effect to any Aggregate
Noteholders Priority Principal Distributable Amount with respect to such
Distribution Date), over (ii) the result of the Aggregate ABS Value at the
close of business on the last day of the related Monthly Period, minus the
Aggregate Overcollateralization Amount.
Notwithstanding the foregoing, on the Final Scheduled Distribution Date
for any class of the CARAT 2005-SN1 Notes, the Noteholders' Regular Principal
Distributable Amount shall equal the greater of (i) the amount specified above
and (ii) the excess of (x) the Note Principal Balance of such class of CARAT
2005-SN1 Notes as of the close of business on the preceding Distribution Date,
over (y) the Aggregate Noteholders' Priority Principal Distributable Amount
allocable to such class on such Distribution Date in accordance with the
priorities specified in Section 8.2(c) of the CARAT Indenture.
Offered Notes: Collectively, the Class A-2a Notes, the Class A-2b Notes,
the Class A-3a Notes, the Class A-3b Notes, the Class A-4 Notes, the Class B-1
Notes, the Class B-2 Notes and the Class C Notes.
Officer's Certificate: A certificate signed by any Authorized Officer of
the Issuer, under the circumstances described in, and otherwise complying with,
the applicable requirements of Section 11.1 of the CARAT Indenture, and
delivered to the CARAT Indenture Trustee. Unless otherwise specified in the
CARAT Indenture, any reference in the CARAT Indenture to an officer's
certificate shall be to an Officer's Certificate of any Authorized Officer of
the Issuer.
Opinion of Counsel: A written opinion of counsel, who may, except as
otherwise expressly provided, be an employee of the Seller or the Trust
Administrator. In addition, for purposes of the CARAT Indenture: (i) such
counsel shall be satisfactory to the CARAT Indenture Trustee; (ii) the opinion
shall be addressed to the CARAT Indenture Trustee as Trustee and (iii) the
opinion shall comply with any applicable requirements of Section 11.1 of the
CARAT Indenture and shall be in form and substance satisfactory to the CARAT
Indenture Trustee.
Optional Purchase Date: As defined in Section 8.01(a) of the Trust Sale
and Administration Agreement.
Appendix A-16
Optional Purchase Percentage: 10%.
Outstanding: With respect to the CARAT 2005-SN1 Notes, as of any date of
determination, all CARAT 2005-SN1 Notes theretofore authenticated and delivered
under the CARAT Indenture except:
(i) CARAT 2005-SN1 Notes theretofore cancelled by the CARAT
Indenture Trustee or delivered to the CARAT Indenture Trustee for
cancellation;
(ii) CARAT 2005-SN1 Notes or portions thereof the payment for which
money in the necessary amount has been theretofore deposited with the
CARAT Indenture Trustee or any Paying Agent in trust for the Holders of
such CARAT 2005-SN1 Notes; provided, however, that if such CARAT 2005-SN1
Notes are to be redeemed, notice of such redemption has been duly given
pursuant to the CARAT Indenture or provision therefor, satisfactory to the
CARAT Indenture Trustee, has been made; and
(iii) CARAT 2005-SN1 Notes in exchange for or in lieu of other CARAT
2005-SN1 Notes which have been authenticated and delivered pursuant to the
CARAT Indenture unless proof satisfactory to the CARAT Indenture Trustee
is presented that any such CARAT 2005-SN1 Notes are held by a bona fide
purchaser;
provided, however, that in determining whether the Holders of the requisite
Outstanding Amount of the CARAT 2005-SN1 Notes or of the Controlling Class have
given any request, demand, authorization, direction, notice, consent or waiver
hereunder or under any CARAT Basic Document, CARAT 2005-SN1 Notes both legally
and beneficially owned by the Issuer, any other obligor upon the CARAT 2005-SN1
Notes, the Seller or any Affiliate of any of the foregoing Persons shall be
disregarded and deemed not to be Outstanding, except that, in determining
whether the CARAT Indenture Trustee shall be protected in relying upon any such
request, demand, authorization, direction, notice, consent or waiver, only CARAT
2005-SN1 Notes that the CARAT Indenture Trustee knows to be so owned shall be so
disregarded. CARAT 2005-SN1 Notes so owned that have been pledged in good faith
may be regarded as Outstanding if the pledgee establishes to the satisfaction of
the CARAT Indenture Trustee the pledgor's right so to act with respect to such
CARAT 2005-SN1 Notes and that the pledgee is not the Issuer, any other obligor
upon the CARAT 2005-SN1 Notes, the Seller or any Affiliate of any of the
foregoing Persons.
Outstanding Amount: As of any date, the aggregate principal amount of all
CARAT 2005-SN1 Notes or a class of CARAT 2005-SN1 Notes, as applicable,
Outstanding at such date.
Owner: As defined in Section 1.02 of the Pooling and Administration
Agreement.
Paying Agent: With respect to the CARAT Indenture, the CARAT Indenture
Trustee or any other Person that meets the eligibility standards for the CARAT
Indenture Trustee specified in Section 6.11 of the CARAT Indenture and is
authorized by the Issuer to make the payments to and distributions from the
CARAT Collection Account and the Note Distribution Account, including payment of
principal of or interest on the CARAT 2005-SN1 Notes on behalf of the Issuer.
With respect to the Trust Agreement, any paying agent or co-paying agent
appointed pursuant to Section 3.9 of the Trust Agreement that meets the
eligibility standards for the
Appendix A-17
CARAT Owner Trustee specified in Section 6.13 of the Trust Agreement. The
initial Paying Agent under the CARAT Indenture shall be the CARAT Indenture
Trustee.
Perfection Representations: The representations, warranties and covenants
set forth in Appendix C to the Trust Sale and Administration Agreement.
Permanent Regulation S Global Class A-1 Note: As defined in Section 2.1(b)
of the CARAT Indenture.
Pension Plan: A "pension plan" as such term is defined in Section 3(2) of
ERISA, which is subject to Title IV of ERISA (other than any "multiemployer
plan" as such term is defined in Section 4201(a)(3) of ERISA) and to which GMAC
or any ERISA Affiliate may have any liability.
Person: Any legal person, including any individual, corporation,
partnership, joint venture, association, limited liability company, joint stock
company, trust, unincorporated organization or government or any agency or
political subdivision thereof.
Physical Property: (i) Bankers' acceptances, commercial paper, negotiable
certificates of deposit and other obligations that constitute "instruments"
within the meaning of Section 9-102(47) of the New York UCC and are susceptible
of physical delivery and (ii) Security Certificates.
Pooling and Administration Agreement: The Pooling and Administration
Agreement, dated as of the Series 2005-SN1 Closing Date, between GMAC and the
Seller, as the same may be amended, supplemented or otherwise modified from time
to time.
Predecessor Note: With respect to any particular CARAT 2005-SN1 Note,
every previous CARAT 2005-SN1 Note evidencing all or a portion of the same debt
as that evidenced by such particular CARAT 2005-SN1 Note; and, for the purpose
of this definition, any CARAT 2005-SN1 Note authenticated and delivered under
Section 2.5 of the CARAT Indenture in lieu of a mutilated, lost, destroyed or
stolen CARAT 2005-SN1 Note shall be deemed to evidence the same debt as the
mutilated, lost, destroyed or stolen CARAT 2005-SN1 Note.
Private Notes: Collectively, the Class A-2c Notes and the Class A-3c
Notes.
Proceeding: Any suit in equity, action at law or other judicial or
administrative proceeding.
Pull Ahead Lease Asset: As defined in Exhibit A of the COLT Servicing
Agreement.
Pull Ahead Payment: As defined in Exhibit A of the COLT Servicing
Agreement.
Purchased Property: As defined in Section 2.01 of the Trust Sale and
Administration Agreement.
Rating Agencies: As of any date, the nationally recognized statistical
rating organizations requested by the Seller to provide ratings on the CARAT
2005-SN1 Notes or the
Appendix A-18
CARAT 2005-SN1 Certificates which are rating the CARAT 2005-SN1 Notes or the
CARAT 2005-SN1 Certificates on such date.
Rating Agency Condition: With respect to any action, the condition that
each Rating Agency shall have been given at least 10 days prior notice thereof
and that each of the Rating Agencies shall have notified the Seller, the Trust
Administrator, the Issuer and the CARAT Indenture Trustee in writing that such
action shall not result in a downgrade or withdrawal of the then current rating
of the CARAT 2005-SN1 Notes.
Record Date: With respect to (i) the CARAT 2005-SN1 Notes and with respect
to any Distribution Date, the close of business on the day immediately preceding
such Distribution Date, or if Definitive Notes are issued for any class of CARAT
2005-SN1 Notes, with respect to such class of CARAT 2005-SN1 Notes the last day
of the preceding Monthly Period; and (ii) the CARAT 2005-SN1 Certificates and
with respect to any Distribution Date, the close of business on the date
immediately preceding such Distribution Date, or if Definitive Certificates are
issued, the last day of the preceding Monthly Period.
Redemption Date: As defined in Section 10.1 of the CARAT Indenture.
Redemption Price: With respect to the CARAT 2005-SN1 Notes, the unpaid
principal amount of such CARAT 2005-SN1 Notes, plus accrued and unpaid interest
thereon.
Reference Bank Rate: For any Distribution Date other than the initial
Distribution Date, a rate determined on the basis of the rates at which deposits
in United States dollars are offered by reference banks as of 11:00 a.m., London
time, on the day that is two LIBOR Business Days prior to the immediately
preceding Distribution Date to prime banks in the London interbank market for a
period of one month, in amounts approximately equal to the then Note Principal
Balance of the applicable class of the then outstanding Floating Rate Notes. The
reference banks shall be four major banks that are engaged in transactions in
the London interbank market, selected by the Indenture Trustee after
consultation with the Seller. The CARAT Indenture Trustee will request the
principal London office of each of the reference banks to provide a quotation of
its rate. If at least two quotations are provided, the rate will be the
arithmetic mean of the quotations, rounded upwards to the nearest one-sixteenth
of one percent. If on that date fewer than two quotations are provided as
requested, the rate will be the arithmetic mean, rounded upwards to the nearest
one-sixteenth of one percent, of the rates quoted by one or more major banks in
New York City, selected by the CARAT Indenture Trustee after consultation with
the Seller, as of 11:00 a.m., New York City time, on that date to leading
European banks for United States dollar deposits for a period of one month in
amounts approximately equal to the then Note Principal Balance of the applicable
class of the then outstanding Floating Rate Notes. If no quotation can be
obtained, then the Reference Bank Rate will be the rate from the prior
Distribution Date.
Registered Holder: The Person in whose name a CARAT 2005-SN1 Note is
registered on the Note Register on the applicable Record Date.
Required Deposit Rating: A rating on short-term unsecured debt obligations
of P-1 by Moody's; A-1+ by S&P: and if rated by Fitch, F-1 by Fitch. Any
requirement that short-term
Appendix A-19
unsecured debt obligations have the "Required Deposit Rating" shall mean that
such short-term unsecured debt obligations have the foregoing required ratings
from each of such rating agencies.
Reserve Account: As defined in Exhibit A of the COLT Servicing Agreement.
Reserve Account Required Amount: As defined in Exhibit A of the COLT
Servicing Agreement.
Responsible Officer: With respect to the CARAT Indenture Trustee or the
CARAT Owner Trustee, any officer within the Corporate Trust Office of such
trustee having direct responsibility for the administration of the CARAT
Indenture or the Trust Agreement, respectively, or with respect to the CARAT
Owner Trustee, any agent of the CARAT Owner Trustee acting under a power of
attorney, and, with respect to the Trust Administrator, the President, any Vice
President, Assistant Vice President, Secretary, Assistant Secretary or any other
officer or assistant officer of such Person customarily performing functions
similar to those performed by any of the above designated officers and also,
with respect to a particular matter, any other officer to whom such matter is
referred because of such officer's knowledge of and familiarity with the
particular subject.
Retained Certificates: The CARAT 2005-SN1 Certificates retained by the
Seller pursuant to the Trust Agreement.
Rule 144A Global Class A-1 Note: As defined in Section 2.1(b) of the CARAT
Indenture.
S&P: Standard & Poor's, a division of The McGraw-Hill Companies, Inc., or
any successor thereto.
Schedule of Secured Notes: The schedule of all COLT 2005-SN1 Secured
Notes originally held as part of the Trust and on file at the locations listed
on Exhibit A of the Trust Sale and Administration Agreement, as such schedule
may be amended from time to time.
Second Priority Principal Distributable Amount: With respect to any
Distribution Date, an amount, not less than zero, equal to the difference
between (i) the excess, if any, of (a) the Aggregate Note Principal Balance of
the Class A Notes and the Class B Notes as of the preceding Distribution Date
(after giving effect to any principal payments made on the Class A Notes and the
Class B Notes on such preceding Distribution Date) (or with respect to the first
Distribution Date, on the Series 2005-SN1 Closing Date) over (b) the Aggregate
ABS Value at the close of business on the last day of the related Monthly
Period, and (ii) the First Priority Principal Distributable Amount, if any, with
respect to such Distribution Date.
Second Step Secured Notes Assignment: As defined in Section 2.01 of the
Trust Sale and Administration Agreement.
Secretary of State: The Secretary of State of the State of Delaware.
Secured Note Interest Distributable Amount: As defined in Exhibit A of the
COLT Servicing Agreement.
Secured Note Principal Balance: As defined in Exhibit A of the COLT
Servicing Agreement.
Appendix A-20
Secured Note Principal Distributable Amount: As defined in Exhibit A of
the COLT Servicing Agreement.
Secured Note Register: As defined in Exhibit A of the COLT Servicing
Agreement.
Secured Note Registrar: As defined in Exhibit A of the COLT Servicing
Agreement.
Secured Notes Purchase Price: The amount described in Section 2.02 of the
Pooling and Administration Agreement.
Secured Obligations: Obligations consisting of the principal of and
interest on, and any other amounts owing in respect of, the CARAT 2005-SN1 Notes
and amounts allocable pursuant to the CARAT Indenture with respect to the CARAT
2005-SN1 Certificates.
Secured Parties: Each CARAT 2005-SN1 Noteholder.
Securities: The CARAT 2005-SN1 Notes and the CARAT 2005-SN1 Certificates.
Securities Act: As defined in Section 2.15(a) of the CARAT Indenture.
Securities Intermediary: As defined in Section 5.01(b)(i) of the Trust
Sale and Administration Agreement.
Security Certificate: Has the meaning given such term in Section
8-102(a)(16) of the New York UCC.
Security Entitlement: Has the meaning given such term in Section
8-102(a)(17) of the New York UCC.
Securityholder: A Holder of a CARAT 2005-SN1 Note or a CARAT 2005-SN1
Certificate.
Seller: The Person executing the Trust Sale and Administration Agreement
as the Seller, or its successor in interest pursuant to Section 3.03 of the
Trust Sale and Administration Agreement.
Series 2005-SN1 Closing Date: April 28, 2005.
Series 2005-SN1 Lease Asset Schedule: As set forth in Section 2.18 of the
COLT Servicing Agreement.
Series 2005-SN1 Lease Assets: As defined in Exhibit A of the COLT
Servicing Agreement.
Series 2005-SN1 Leases: As defined in Exhibit A of the COLT Servicing
Agreement.
Appendix A-21
Servicer: GMAC, as servicer under the COLT Servicing Agreement, or any
successor servicer under the COLT Servicing Agreement.
State: Any one of the 50 states of the United States of America or the
District of Columbia.
Stated Maturity: The date specified in each COLT 2005-SN1 Secured Note as
the fixed date on which the principal of, and interest on, such COLT 2005-SN1
Secured Note is due and payable.
Statutory Trust Act: Chapter 38 of Title 12 of the Delaware Code, 12 Del.
Code Section 3801 et seq., as the same may be amended from time to time.
Swap Counterparty: Bank of America, National Association, as swap
counterparty under each Interest Rate Swap, or any successor or replacement Swap
Counterparty from time to time under each Interest Rate Swap.
Swap Counterparty Rights Agreement: The Swap Counterparty Rights
Agreement, dated as of the Series 2005-SN1 Closing Date, among the Swap
Counterparty, the Issuer, GMAC, as Trust Administrator, the Seller, the CARAT
Indenture Trustee, and the Owner Trustee, as amended and supplemented from time
to time.
Temporary Notes: The Notes specified in Section 2.3 of the CARAT
Indenture.
Temporary Regulation S Global Class A-1 Note: As defined in Section 2.1(b)
of the CARAT Indenture.
Third Party Instrument: Each Interest Rate Swap, each Contingent Interest
Rate Swap and the Triparty Agreement.
Total Available Amount: With respect to any Distribution Date, the sum of:
(i) amounts deposited into the CARAT Collection Account on or before
such Distribution Date pursuant to Section 3.03(c)(iv) of the COLT
Servicing Agreement;
(ii) all collections on the COLT 2005-SN1 Secured Notes held by the
Trust during the period from the last Distribution Date to but excluding
the current Distribution Date;
(iv) the amount, if any, paid by the Swap Counterparty to the Trust
pursuant to any Interest Rate Swap;
(v) the Warranty Payment or the Administrative Purchase Payment for
each COLT 2005-SN1 Secured Note that the Seller repurchased or the Trust
Administrator purchased as of the last day of the related Monthly Period;
and
Appendix A-22
(vi) if such Distribution Date is the Optional Purchase Date, all
amounts deposited into the CARAT Collection Account by the Trust
Administrator pursuant to Section 8.01(a) of the Trust Sale and
Administration Agreement.
Treasury Regulations: The regulations, including proposed or temporary
regulations, promulgated under the Code. References herein to specific
provisions of proposed or temporary regulations shall include analogous
provisions of final Treasury Regulations or other successor Treasury
Regulations.
Triparty Agreement: The Triparty Contingent Assignment Agreement, dated as
of the Series 2005-SN1 Closing Date, including all schedules, and confirmations
thereto, among the Trust, the Swap Counterparty and GMAC, as the same may be
amended, supplemented, renewed, extended or replaced from time to time.
Trust: Capital Auto Receivables Asset Trust 2005-SN1, a Delaware statutory
trust described in the Trust Agreement.
Trust Administrator: The Person executing the Trust Sale and
Administration Agreement as the Trust Administrator, or its successor in
interest pursuant to Section 6.02 of the Trust Sale and Administration
Agreement.
Trust Administrator Default: An event described in Section 7.01 of the
Trust Sale and Administration Agreement.
Trust Administrator's Accounting: A certificate, completed by and executed
on behalf of the Trust Administrator, in accordance with Section 3.06 of the
Pooling and Administration Agreement.
Trust Agreement: The Trust Agreement, dated as of the Series 2005-SN1
Closing Date, between the Seller and the CARAT Owner Trustee, as the same may be
amended, supplemented or otherwise modified from time to time.
Trust Indenture Act or TIA: The Trust Indenture Act of 1939 as in force on
the date hereof, unless otherwise specifically provided.
Trust Sale and Administration Agreement: The Trust Sale and Administration
Agreement, dated as of the Series 2005-SN1 Closing Date, between the Seller, the
Trust Administrator and the Trust, as the same may be amended, supplemented or
otherwise modified from time to time.
UCC: The Uniform Commercial Code as in effect in the relevant jurisdiction
from time to time.
Unaffiliated Certificateholder: Shall mean any CARAT 2005-SN1
Certificateholder other than the Seller or an Affiliate of the Seller.
Uncertificated Security: Has the meaning given to such term in Section
8-102(a)(18) of the New York UCC.
Appendix A-23
VAULT: Vehicle Asset Universal Leasing Trust, a Delaware statutory trust
created under the Statutory Trust Act pursuant to the VAULT Trust Agreement.
VAULT Trust Agreement: The Second Amended and Restated Trust and Servicing
Agreement, dated as of March 25, 2004, between GMAC, as Servicer and Initial
Beneficiary, and the VAULT Trustee, as the same may be amended, supplemented or
otherwise modified from time to time.
VAULT Trustee: Chase Bank USA, National Association (f/k/a Chase Manhattan
Bank USA, National Association), as trustee of VAULT under the VAULT Trust
Agreement.
Vehicle: As defined in Exhibit I to the Declaration.
Voting Interests: The voting interests in the CARAT 2005-SN1 Certificates.
Until such time, if any, as the Seller shall transfer any interest in the CARAT
2005-SN1 Certificates, the Seller shall hold 100% of the Voting Interests. Upon
and after any such transfer, the Voting Interests shall be determined as
provided in Section 3.4(b) of the Trust Agreement.
Warranty Payment: With respect to each Warranty Secured Note, an amount
equal to the Secured Note Principal Balance, plus accrued interest calculated at
the COLT 2005-SN1 Secured Note Rate, determined as of the close of business on
the last day of the Monthly Period prior to the Monthly Period as of which the
Seller is required to (or, if earlier, elects to) repurchase such Warranty
Secured Note.
Warranty Purchaser: The Person described in Section 2.04 of the Trust Sale
and Administration Agreement.
Warranty Secured Note: A COLT 2005-SN1 Secured Note that the Warranty
Purchaser has become obligated to repurchase pursuant to Section 2.04 of the
Trust Sale and Administration Agreement.
Appendix A-24
PART II - RULES OF CONSTRUCTION
(a) Accounting Terms. As used in this Appendix or the CARAT Basic Documents,
accounting terms which are not defined, and accounting terms partly
defined, herein or therein shall have the respective meanings given to
them under generally accepted accounting principles. To the extent that
the definitions of accounting terms in this Appendix or the CARAT Basic
Documents are inconsistent with the meanings of such terms under generally
accepted accounting principles, the definitions contained in this Appendix
or the CARAT Basic Documents will control.
(b) "Hereof," etc. The words "hereof," "herein" and "hereunder" and words of
similar import when used in this Appendix or any CARAT Basic Document will
refer to this Appendix or such CARAT Basic Document as a whole and not to
any particular provision of this Appendix or such CARAT Basic Document;
and Section, Schedule and Exhibit references contained in this Appendix or
any CARAT Basic Document are references to Sections, Schedules and
Exhibits in or to this Appendix or such CARAT Basic Document unless
otherwise specified. The word "or" is not exclusive.
(c) Reference to Distribution Dates. With respect to any Distribution Date,
the "related Monthly Period," and the "related Record Date," will mean the
Monthly Period and Record Date, respectively, immediately preceding such
Distribution Date, and the relationships among Monthly Periods and Record
Dates will be correlative to the foregoing relationships.
(d) Number and Gender. Each defined term used in this Appendix or the CARAT
Basic Documents has a comparable meaning when used in its plural or
singular form. Each gender-specific term used in this Appendix or the
CARAT Basic Documents has a comparable meaning whether used in a
masculine, feminine or gender-neutral form.
(e) Including. Whenever the term "including" (whether or not that term is
followed by the phrase "but not limited to" or "without limitation" or
words of similar effect) is used in this Appendix or the CARAT Basic
Documents in connection with a listing of items within a particular
classification, that listing will be interpreted to be illustrative only
and will not be interpreted as a limitation on, or exclusive listing of,
the items within that classification.
Part II
APPENDIX B
Notice Addresses and Procedures
All requests, demands, directions, consents, waivers, notices,
authorizations and communications provided or permitted under any CARAT Basic
Document to be made upon, given or furnished to or filed with the Seller, the
Trust Administrator, the CARAT Indenture Trustee, the Issuer, the CARAT Owner
Trustee or the Rating Agencies shall be in writing, personally delivered, sent
by facsimile with a copy to follow via first class mail or mailed by certified
mail-return receipt requested, and shall be deemed to have been duly given upon
receipt:
(a) in the case of the Seller, at the following address:
Capital Auto Receivables, Inc.
Corporation Trust Center
1209 Orange Street
Wilmington, Delaware 19801,
with a copy to:
Manager - Securitization,
General Motors Acceptance Corporation
200 Renaissance Center
12th Floor, MC: 482-B12-C24
Detroit, MI 48265,
(b) in the case of the Servicer and the Trust Administrator, at the
following address:
Director - Global Securitization
General Motors Acceptance Corporation
200 Renaissance Center
12th Floor, MC: 482-B12-C24
Detroit, MI 48265,
(c) in the case of the CARAT Indenture Trustee, at its Corporate
Trust Office,
and
(d) in the case of the Issuer or the CARAT Owner Trustee, to the
CARAT Owner Trustee at its Corporate Trust Office,
Appendix B-1
with a copy to:
Deutsche Bank Trust Company Americas
Attention: Corporate Trust & Agency Services -
Structural Financial Services
60 Wall Street, 26th Floor
New York, New York 10005
and with a copy to:
Capital Auto Receivables, Inc.,
Attention: Manager-Securitization
200 Renaissance Center
12th Floor, MC: 482-B12-C24
Detroit, MI 48265
The Issuer shall promptly transmit any notice received by it from the CARAT
2005-SN1 Noteholders to the CARAT Indenture Trustee and the CARAT Indenture
Trustee shall likewise promptly transmit any notice received by it from the
CARAT 2005-SN1 Noteholders to the Issuer:
(e) in the case of Moody's Investors Service, Inc., to
Moody's Investors Service, Inc.
ABS Monitoring Department,
99 Church Street,
New York, New York 10007,
(f) in the case of Standard & Poor's Ratings Services, to
Standard & Poor's Ratings Services,
55 Water Street
40th Floor
New York, New York 10041
Attention: Asset Backed Surveillance Department,
(g) in the case of Fitch, Inc., to
Fitch, Inc.,
One State Street Plaza,
New York, New York 10004,
Attention: Asset-Backed Surveillance, and
Appendix B-2
(h) in the case of Swap Counterparty, to
Bank of America, N.A.
Sears Tower
233 South Wacker Drive, Suite 2800
Chicago, Illinois 60606
Attention: Swap Operations
with a copy to:
Bank of America, N.A.
100 N. Tryon Street, NC1-007-13-01
Charlotte, NC 28255
Attention: Capital Markets Documentation
Facsimile: 704-386-4113
or at such other address as shall be designated by such Person in a written
notice to the other parties to this Agreement.
Where any CARAT Basic Document provides for notice to CARAT 2005-SN1
Noteholders or CARAT 2005-SN1 Certificateholders of any condition or event, such
notice shall be sufficiently given (unless otherwise herein expressly provided)
if it is in writing and mailed, first-class, postage prepaid to each CARAT
2005-SN1 Noteholder or CARAT 2005-SN1 Certificateholders affected by such
condition or event, at such Person's address as it appears on the Note Register
or CARAT 2005-SN1 Certificate Register, as applicable, not later than the latest
date, and not earlier than the earliest date, prescribed in such CARAT Basic
Document for the giving of such notice. If notice to CARAT 2005-SN1 Noteholders
or CARAT 2005-SN1 Certificateholders is given by mail, neither the failure to
mail such notice nor any defect in any notice so mailed to any particular CARAT
2005-SN1 Noteholders or CARAT 2005-SN1 Certificateholders shall affect the
sufficiency of such notice with respect to other CARAT 2005-SN1 Noteholders or
CARAT 2005-SN1 Certificateholders, and any notice that is mailed in the manner
herein provided shall conclusively be presumed to have been duly given
regardless of whether such notice is in fact actually received.
Appendix B-3