EXHIBIT 4.7
================================================================================
CAPITAL AUTO RECEIVABLES ASSET TRUST 2005-SN1
CLASS A-1 3.327%ASSET BACKED NOTES
CLASS A-2a 3.850% ASSET BACKED NOTES
CLASS A-2b FLOATING RATE ASSET BACKED NOTES
CLASS A-2c FLOATING RATE ASSET BACKED NOTES
CLASS A-3a 4.100% ASSET BACKED NOTES
CLASS A-3b FLOATING RATE ASSET BACKED NOTES
CLASS A-3c FLOATING RATE ASSET BACKED NOTES
CLASS A-4 FLOATING RATE ASSET BACKED NOTES
CLASS B-1 4.830% ASSET BACKED NOTES
CLASS B-2 FLOATING RATE ASSET BACKED NOTES
CLASS C FLOATING RATE ASSET BACKED NOTES
--------------------------------------
CARAT INDENTURE
DATED AS OF APRIL 28, 2005
----------------------------------------
CITIBANK, N.A.
----------------------------------------
CARAT INDENTURE TRUSTEE
================================================================================
TABLE OF CONTENTS
PAGE
ARTICLE I DEFINITIONS AND INCORPORATION BY REFERENCE................................................ 2
SECTION 1.1 Definitions...................................................................... 2
SECTION 1.2 Incorporation by Reference of Trust Indenture Act................................ 2
ARTICLE II THE CARAT 2005-SN1 NOTES.................................................................. 3
SECTION 2.1 Form............................................................................. 3
SECTION 2.2 Execution, Authentication and Delivery........................................... 4
SECTION 2.3 Temporary Notes.................................................................. 4
SECTION 2.4 Registration; Registration of Transfer and Exchange of CARAT 2005-SN1
Notes............................................................................ 5
SECTION 2.5 Mutilated, Destroyed, Lost or Stolen CARAT 2005-SN1 Notes........................ 6
SECTION 2.6 Persons Deemed CARAT 2005-SN1 Noteholders........................................ 7
SECTION 2.7 Payment of Principal and Interest................................................ 8
SECTION 2.8 Cancellation of CARAT 2005-SN1 Notes............................................. 10
SECTION 2.9 Release of Collateral............................................................ 10
SECTION 2.10 Book-Entry Notes................................................................. 10
SECTION 2.11 Notices to Clearing Agency....................................................... 11
SECTION 2.12 Definitive Notes................................................................. 11
SECTION 2.13 Seller as CARAT 2005-SN1 Noteholder.............................................. 12
SECTION 2.14 Tax Treatment.................................................................... 12
SECTION 2.15 Special Terms Applicable to Private Notes and Class A-1 Notes; Transfer
of Beneficial Interest in Private Notes and Class A-1 Notes...................... 12
ARTICLE III COVENANTS................................................................................. 14
SECTION 3.1 Payment of Principal and Interest................................................ 14
SECTION 3.2 Maintenance of Agency Office..................................................... 15
SECTION 3.3 Money for Payments To Be Held in Trust........................................... 15
SECTION 3.4 Existence........................................................................ 17
SECTION 3.5 Protection of CARAT Trust Estate; Acknowledgment of Pledge....................... 17
SECTION 3.6 Opinions as to CARAT Trust Estate................................................ 18
SECTION 3.7 Performance of Obligations; Administration of COLT 2005-SN1 Secured Notes........ 18
-i-
TABLE OF CONTENTS
(continued)
PAGE
SECTION 3.8 Negative Covenants............................................................... 19
SECTION 3.9 Annual Statement as to Compliance................................................ 20
SECTION 3.10 Consolidation, Merger, etc., of Issuer; Disposition of Trust Assets.............. 20
SECTION 3.11 Successor or Transferee.......................................................... 22
SECTION 3.12 No Other Business................................................................ 22
SECTION 3.13 No Borrowing..................................................................... 23
SECTION 3.14 Guarantees, Loans, Advances and Other Liabilities................................ 23
SECTION 3.15 Trust Administrator's Obligations................................................ 23
SECTION 3.16 Capital Expenditures............................................................. 23
SECTION 3.17 Restricted Payments.............................................................. 23
SECTION 3.18 Notice of Events of Default...................................................... 23
SECTION 3.19 Further Instruments and Acts..................................................... 24
SECTION 3.20 CARAT Indenture Trustee's Assignment of Administrative Secured Notes and
Warranty Secured Notes........................................................... 24
SECTION 3.21 Representations and Warranties by the Issuer to the CARAT Indenture
Trustee.......................................................................... 24
ARTICLE IV SATISFACTION AND DISCHARGE................................................................ 25
SECTION 4.1 Satisfaction and Discharge of CARAT Indenture.................................... 25
SECTION 4.2 Application of Trust Money....................................................... 26
SECTION 4.3 Repayment of Monies Held by Paying Agent......................................... 26
SECTION 4.4 Duration of Position of CARAT Indenture Trustee.................................. 26
ARTICLE V DEFAULT AND REMEDIES...................................................................... 27
SECTION 5.1 Events of Default................................................................ 27
SECTION 5.2 Acceleration of Maturity; Rescission and Annulment............................... 28
SECTION 5.3 Collection of Indebtedness and Suits for Enforcement by CARAT Indenture
Trustee.......................................................................... 28
SECTION 5.4 Remedies; Priorities............................................................. 31
SECTION 5.5 Optional Preservation of the CARAT Trust Estate.................................. 32
SECTION 5.6 Limitation of Suits.............................................................. 32
SECTION 5.7 Unconditional Rights of CARAT 2005-SN1 Noteholders To Receive Principal
and Interest..................................................................... 33
-ii-
TABLE OF CONTENTS
(continued)
PAGE
SECTION 5.8 Restoration of Rights and Remedies............................................... 33
SECTION 5.9 Rights and Remedies Cumulative................................................... 33
SECTION 5.10 Delay or Omission Not a Waiver................................................... 33
SECTION 5.11 Control by CARAT 2005-SN1 Noteholders............................................ 34
SECTION 5.12 Waiver of Past Defaults.......................................................... 34
SECTION 5.13 Undertaking for Costs............................................................ 35
SECTION 5.14 Waiver of Stay or Extension Laws................................................. 35
SECTION 5.15 Action on CARAT 2005-SN1 Notes................................................... 35
SECTION 5.16 Performance and Enforcement of Certain Obligations............................... 36
ARTICLE VI THE CARAT INDENTURE TRUSTEE............................................................... 37
SECTION 6.1 Duties of CARAT Indenture Trustee................................................ 37
SECTION 6.2 Rights of CARAT Indenture Trustee................................................ 38
SECTION 6.3 CARAT Indenture Trustee May Own CARAT 2005-SN1 Notes............................. 39
SECTION 6.4 CARAT Indenture Trustee's Disclaimer............................................. 39
SECTION 6.5 Notice of Default................................................................ 39
SECTION 6.6 Reports by CARAT Indenture Trustee to Holders.................................... 39
SECTION 6.7 Compensation; Indemnity.......................................................... 40
SECTION 6.8 Replacement of CARAT Indenture Trustee........................................... 40
SECTION 6.9 Merger or Consolidation of CARAT Indenture Trustee............................... 41
SECTION 6.10 Appointment of Co-CARAT Indenture Trustee or Separate CARAT Indenture
Trustee.......................................................................... 42
SECTION 6.11 Eligibility; Disqualification.................................................... 43
SECTION 6.12 Preferential Collection of Claims Against Issuer................................. 43
SECTION 6.13 Representations and Warranties of CARAT Indenture Trustee........................ 43
SECTION 6.14 CARAT Indenture Trustee May Enforce Claims Without Possession of CARAT
2005-SN1 Notes................................................................... 44
SECTION 6.15 Suit for Enforcement............................................................. 44
SECTION 6.16 Rights of CARAT 2005-SN1 Noteholders to Direct CARAT Indenture Trustee........... 44
ARTICLE VII CARAT NOTEHOLDERS' LISTS AND REPORTS...................................................... 45
-iii-
TABLE OF CONTENTS
(continued)
PAGE
SECTION 7.1 Issuer To Furnish CARAT Indenture Trustee Names and Addresses of CARAT
2005-SN1 Noteholders............................................................. 45
SECTION 7.2 Preservation of Information, Communications to CARAT 2005-SN1 Noteholders........ 45
SECTION 7.3 Reports by Issuer................................................................ 45
SECTION 7.4 Reports by Trustee............................................................... 46
ARTICLE VIII ACCOUNTS, DISBURSEMENTS AND RELEASES...................................................... 46
SECTION 8.1 Collection of Money.............................................................. 46
SECTION 8.2 Designated Accounts; Payments.................................................... 47
SECTION 8.3 General Provisions Regarding Accounts............................................ 48
SECTION 8.4 Release of CARAT Trust Estate.................................................... 49
SECTION 8.5 Opinion of Counsel............................................................... 49
ARTICLE IX SUPPLEMENTAL INDENTURES................................................................... 50
SECTION 9.1 Supplemental Indentures Without Consent of CARAT 2005-SN1 Noteholders............ 50
SECTION 9.2 Supplemental Indentures With Consent of CARAT 2005-SN1 Noteholders............... 51
SECTION 9.3 Execution of Supplemental Indentures............................................. 52
SECTION 9.4 Effect of Supplemental Indenture................................................. 53
SECTION 9.5 Conformity with Trust Indenture Act.............................................. 53
SECTION 9.6 Reference in CARAT 2005-SN1 Notes to Supplemental Indentures..................... 53
ARTICLE X REDEMPTION OF CARAT NOTES................................................................. 53
SECTION 10.1 Redemption....................................................................... 53
SECTION 10.2 Form of Redemption Notice........................................................ 54
SECTION 10.3 CARAT 2005-SN1 Notes Payable on Redemption Date.................................. 54
ARTICLE XI MISCELLANEOUS............................................................................. 54
SECTION 11.1 Compliance Certificates and Opinions, etc........................................ 54
SECTION 11.2 Form of Documents Delivered to CARAT Indenture Trustee........................... 56
SECTION 11.3 Acts of CARAT 2005-SN1 Noteholders............................................... 57
SECTION 11.4 Notices, etc., to CARAT Indenture Trustee, Issuer and Rating Agencies............ 57
-iv-
TABLE OF CONTENTS
(continued)
PAGE
SECTION 11.5 Notices to CARAT 2005-SN1 Noteholders; Waiver.................................... 58
SECTION 11.6 Alternate Payment and Notice Provisions.......................................... 59
SECTION 11.7 Conflict with Trust Indenture Act................................................ 59
SECTION 11.8 Effect of Headings and Table of Contents......................................... 59
SECTION 11.9 Successors and Assigns........................................................... 59
SECTION 11.10 Severability..................................................................... 59
SECTION 11.11 Benefits of CARAT Indenture...................................................... 59
SECTION 11.12 Legal Holidays................................................................... 60
SECTION 11.13 GOVERNING LAW.................................................................... 60
SECTION 11.14 Counterparts..................................................................... 60
SECTION 11.15 Recording of CARAT Indenture..................................................... 60
SECTION 11.16 No Recourse...................................................................... 60
SECTION 11.17 No Petition...................................................................... 61
SECTION 11.18 Inspection....................................................................... 61
SECTION 11.19 Indemnification by and Reimbursement of the Trust Administrator.................. 61
Exhibits
- --------
Exhibit A Location of Schedule of Receivables
Exhibit B Form of Note Depository Agreement
Exhibit C-1 Form of Fixed Rate Asset Backed Note
Exhibit C-2 Form of Floating Rate Asset Backed Note
Exhibit C-3 Form of Rule 144A Global Class A-1 Note
Exhibit C-4 Form of Temporary Regulation S Global Class A-1 Note
Exhibit C-5 Form of Permanent Regulation S Global Class A-1 Note
Exhibit C-6 Form of Private Note
Exhibit D-1 Form of Transferor Certificate for Transfers of the Rule 144A
Global Class A-1 Notes
Exhibit D-2 Form of Transferee Certificate for Transfers of the Rule 144A
Global Class A-1 Notes
Exhibit D-3 Form of Regulation S Transfer Certificate
Exhibit D-4 Form of Rule 144A Transfer Certificate
Exhibit D-5 Form of Clearing System Certificate
Exhibit E Rule 144A Certificate
-v-
THIS CARAT INDENTURE, dated as of April 28, 2005, between CAPITAL AUTO
RECEIVABLES ASSET TRUST 2005-SN1, a Delaware statutory trust (the "Issuer"), and
CITIBANK, N.A., as indenture trustee and not in its individual capacity (the
"CARAT Indenture Trustee").
Each party agrees as follows for the benefit of the other party and for
the equal and ratable benefit of the Secured Parties (only to the extent
expressly provided herein):
GRANTING CLAUSE
The Issuer hereby Grants to the CARAT Indenture Trustee at the Series
2005-SN1 Closing Date, as trustee for the ratable benefit of the Secured Parties
(only to the extent expressly provided herein), (a) all right, title and
interest of the Issuer in, to and under the COLT 2005-SN1 Secured Notes (which
COLT 2005-SN1 Secured Notes have been issued pursuant to the COLT Indenture and
executed by COLT and authenticated by the COLT Indenture Trustee pursuant to the
COLT Indenture) and all monies due thereunder on and after the Series 2005-SN1
Closing Date; (b) all right, title and interest of the Issuer 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 Issuer 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 Issuer in any proceeds from recourse against Dealers on the Series 2005-SN1
Lease Assets; (c) all right, title and interest of the Issuer 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,
(iii) the Trust Sale and Administration Agreement (including the right of the
Issuer to cause CARI to repurchase COLT 2005-SN1 Secured Notes under certain
circumstances), (iv) the COLT Indenture, (v) the COLT Sale and Contribution
Agreement, (vi) the COLT Custodian Agreement, (vii) the COLT Servicing Agreement
and (viii) any Third Party Instrument, 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
(collectively, the "Collateral").
The foregoing Grant is made in trust to secure the Secured Obligations,
equally and ratably without prejudice, priority or distinction, and to secure
compliance with the provisions of this CARAT Indenture, all as provided in this
CARAT Indenture. This CARAT Indenture constitutes a security agreement under the
UCC.
The foregoing Grant includes all rights, powers and options (but none of
the obligations, if any) of the Issuer under any agreement or instrument
included in the Collateral, including the immediate and continuing right to
claim for, collect, receive and give receipt for principal and
-1-
interest payments in respect of the COLT 2005-SN1 Secured Notes included in the
Collateral and all other monies payable under the Collateral, 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
Issuer or otherwise and generally to do and receive anything that the Issuer is
or may be entitled to do or receive under or with respect to the Collateral.
The CARAT Indenture Trustee, as indenture trustee on behalf of the Secured
Parties and (only to the extent expressly provided herein) the CARAT 2005-SN1
Certificateholders, acknowledges such Grant and accepts the trusts under this
CARAT Indenture in accordance with the provisions of this CARAT Indenture.
ARTICLE I
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.1 Definitions. Certain capitalized terms used in this CARAT
Indenture shall have the respective meanings assigned them in Part I of Appendix
A to the Trust Sale and Administration Agreement, dated as of the date hereof
(as amended from time to time, the "Trust Sale and Administration Agreement"),
between the Issuer, CARI and General Motors Acceptance Corporation ("GMAC"). All
references in this CARAT Indenture to Articles, Sections, subsections and
exhibits are to the same contained in or attached to this CARAT Indenture unless
otherwise specified. All terms defined in this CARAT Indenture shall have the
defined meanings when used in any certificate, notice, CARAT 2005-SN1 Note or
other document made or delivered pursuant hereto unless otherwise defined
therein. The rules of construction set forth in Part II of such Appendix A shall
be applicable to this CARAT Indenture.
SECTION 1.2 Incorporation by Reference of Trust Indenture Act. Whenever
this CARAT Indenture refers to a provision of the TIA, such provision is
incorporated by reference in and made a part of this CARAT Indenture. The
following TIA terms used in this CARAT Indenture have the following meanings:
"Commission" means the Securities and Exchange Commission.
"indenture securities" means the CARAT 2005-SN1 Notes.
"indenture security holder" means a CARAT 2005-SN1 Noteholder.
"indenture to be qualified" means this CARAT Indenture.
"indenture trustee" means the CARAT Indenture Trustee.
"obligor" on the indenture securities means the Issuer and any other
obligor on the indenture securities.
All other TIA terms used in this CARAT Indenture that are defined by the
TIA, defined by reference to another statute or defined by a Commission rule
have the respective meanings assigned to them by such definitions.
-2-
ARTICLE II
THE CARAT 2005-SN1 NOTES
SECTION 2.1 Form.
(a) Each of the Class A-2a Notes, the Class A-3a Notes and the Class
B-1 Notes, together, in each case, with the CARAT Indenture Trustee's
certificate of authentication, shall be substantially in the form set forth in
Exhibit C-1, each of the Class A-2b Notes, the Class A-3b Notes, the Class A-4
Notes, the Class B-2 Notes and the Class C Notes, together, in each case, with
the CARAT Indenture Trustee's certificate of authentication shall be
substantially in the form set forth in Exhibit C-2, the Rule 144A Global Class
A-1 Note, together with the CARAT Indenture Trustee's certificate of
authentication, shall be substantially in the form set forth in Exhibit C-3, the
Temporary Regulation S Global Class A-1 Note, together with the CARAT Indenture
Trustee's certificate of authentication, shall be substantially in the form set
forth in Exhibit C-4, the Permanent Regulation S Global Class A-1 Note, together
with the CARAT Indenture Trustee's certificate of authentication, shall be
substantially in the form set forth in Exhibit C-5, and each of the Class A-2c
Notes and the Class A-3c Notes together, in each case, with the CARAT Indenture
Trustee's certificate of authentication, shall be substantially in the form set
forth in Exhibit C-6, in each case with such appropriate insertions, omissions,
substitutions and other variations as are required or permitted by this CARAT
Indenture, and each such CARAT 2005-SN1 Note may have such letters, numbers or
other marks of identification and such legends or endorsements placed thereon as
may, consistently herewith, be determined by the officers executing such CARAT
2005-SN1 Notes, as evidenced by their execution of the CARAT 2005-SN1 Notes. Any
portion of the text of any CARAT 2005-SN1 Note may be set forth on the reverse
thereof, with an appropriate reference thereto on the face of the CARAT 2005-SN1
Note.
(b) The Class A-1 Notes shall be offered (i) to U.S. persons sold in
reliance on the exemption from registration under Rule 144A under the Securities
Act (the "Rule 144A Global Class A-1 Note") and (ii) to non-U.S. persons in
reliance on Regulation S under the Securities Act (initially, the "Temporary
Regulation S Global Class A-1 Note"). After the expiration of the 40-day
restricted period specified in Regulation S (the "Exchange Date"), beneficial
interests in the Temporary Regulation S Global Note shall be exchangeable for
interests in a corresponding permanent Global certificate (the "Permanent
Regulation S Global Class A-1 Note") upon certification of non-U.S. ownership.
(c) The CARAT 2005-SN1 Notes shall be typewritten, printed,
lithographed or engraved or produced by any combination of these methods (with
or without steel engraved borders), all as determined by the officers executing
such CARAT 2005-SN1 Notes, as evidenced by their execution of such CARAT
2005-SN1 Notes.
(d) The terms of each class of CARAT 2005-SN1 Notes as provided for
in Exhibits C-1 through C-6 hereto are part of the terms of this CARAT
Indenture.
-3-
SECTION 2.2 Execution, Authentication and Delivery.
(a) Each CARAT 2005-SN1 Note shall be dated the date of its
authentication and shall be issuable as a registered CARAT 2005-SN1 Note in the
minimum denomination of $1,000 and in integral multiples thereof (except, if
applicable, for one CARAT 2005-SN1 Note representing a residual portion of each
class which may be issued in a different denomination).
(b) The CARAT 2005-SN1 Notes shall be executed on behalf of the
Issuer by any of its Authorized Officers. The signature of any such Authorized
Officer on the CARAT 2005-SN1 Notes may be manual or facsimile.
(c) CARAT 2005-SN1 Notes bearing the manual or facsimile signature
of individuals who were at any time Authorized Officers of the Issuer shall bind
the Issuer, notwithstanding that such individuals or any of them have ceased to
hold such office prior to the authentication and delivery of such CARAT 2005-SN1
Notes or did not hold such office at the date of such CARAT 2005-SN1 Notes.
(d) The CARAT Indenture Trustee, in exchange for the Grant of the
COLT 2005-SN1 Secured Notes and the other components of the Trust,
simultaneously with the Grant to the CARAT Indenture Trustee of the COLT
2005-SN1 Secured Notes, and the constructive delivery to the CARAT Indenture
Trustee of the COLT 2005-SN1 Secured Notes and the other components and assets
of the Trust, shall cause to be authenticated and delivered to or upon the order
of the Issuer, CARAT 2005-SN1 Notes for original issue in aggregate principal
amount of $1,940,000,000 in the following classes (i) Class A-1 Notes in the
aggregate principal amount of $440,000,000, (ii) Class A-2a Notes in the
aggregate principal amount of $185,000,000, (iii) Class A-2b Notes in the
aggregate principal amount of $329,000,000, (iv) Class A-2c Notes in the
aggregate principal amount of $104,000,000, (v) Class A-3a Notes in the
aggregate principal amount of $160,000,000, (vi) Class A-3b Notes in the
aggregate principal amount of $315,000,000, (vii) Class A-3c Notes in the
aggregate principal amount of $36,000,000, (viii) Class A-4 Notes in the
aggregate principal amount of $221,000,000, (ix) Class B-1 Notes in the
aggregate principal amount of $10,000,000, (x) Class B-2 Notes in the aggregate
principal amount of $70,000,000 and (xi) Class C Notes in the aggregate
principal amount of $70,000,000.
(e) No CARAT 2005-SN1 Notes shall be entitled to any benefit under
this CARAT Indenture or be valid or obligatory for any purpose, unless there
appears on such CARAT 2005-SN1 Note a certificate of authentication
substantially in the form set forth in Exhibit C-1, Exhibit C-2, Exhibit C-3,
Exhibit C-4, Exhibit C-5 or Exhibit C-6, as applicable, executed by the CARAT
Indenture Trustee by the manual signature of one of its Authorized Officers, and
such certificate upon any CARAT 2005-SN1 Note shall be conclusive evidence, and
the only evidence, that such CARAT 2005-SN1 Note has been duly authenticated and
delivered hereunder.
SECTION 2.3 Temporary Notes.
(a) Pending the preparation of Definitive Notes, if any, the Issuer
may execute, and upon receipt of an Issuer Order the CARAT Indenture Trustee
shall authenticate and deliver, such Temporary Notes which are printed,
lithographed, typewritten, mimeographed
-4-
or otherwise produced, of the tenor of the Definitive Notes in lieu of which
they are issued and with such variations as are consistent with the terms of
this CARAT Indenture as the officers executing such Notes may determine, as
evidenced by their execution of such CARAT 2005-SN1 Notes.
(b) If Temporary Notes are issued, the Issuer shall cause Definitive
Notes to be prepared without unreasonable delay. After the preparation of
Definitive Notes, the Temporary Notes shall be exchangeable for Definitive Notes
upon surrender of the Temporary Notes at the Agency Office of the Issuer to be
maintained as provided in Section 3.2, without charge to the CARAT 2005-SN1
Noteholder. Upon surrender for cancellation of any one or more Temporary Notes,
the Issuer shall execute and the CARAT Indenture Trustee shall authenticate and
deliver in exchange therefor a like principal amount of Definitive Notes of
authorized denominations. Until so delivered in exchange, the Temporary Notes
shall in all respects be entitled to the same benefits under this CARAT
Indenture as Definitive Notes.
SECTION 2.4 Registration; Registration of Transfer and Exchange of CARAT
2005-SN1 Notes.
(a) The Issuer shall cause to be kept the Note Register, comprising
separate registers for each class of CARAT 2005-SN1 Notes, in which, subject to
such reasonable regulations as the Issuer may prescribe, the Issuer shall
provide for the registration of the CARAT 2005-SN1 Notes and the registration of
transfers and exchanges of the CARAT 2005-SN1 Notes. The CARAT Indenture Trustee
shall initially be the Note Registrar for the purpose of registering the CARAT
2005-SN1 Notes and transfers of the CARAT 2005-SN1 Notes as herein provided.
Upon any resignation of any Note Registrar, the Issuer shall promptly appoint a
successor Note Registrar or, if it elects not to make such an appointment,
assume the duties of the Note Registrar.
(b) If a Person other than the CARAT Indenture Trustee is appointed
by the Issuer as Note Registrar, the Issuer will give the CARAT Indenture
Trustee prompt written notice of the appointment of such Note Registrar and of
the location, and any change in the location, of the Note Register. The CARAT
Indenture Trustee shall have the right to inspect the Note Register at all
reasonable times and to obtain copies thereof. The CARAT Indenture Trustee shall
have the right to rely upon a certificate executed on behalf of the Note
Registrar by an Executive Officer thereof as to the names and addresses of the
CARAT 2005-SN1 Noteholders and the principal amounts and number of such CARAT
2005-SN1 Notes.
(c) Upon surrender for registration of transfer of any CARAT
2005-SN1 Note at the Corporate Trust Office of the CARAT Indenture Trustee or
the Agency Office of the Issuer (and following the delivery, in the former case,
of such CARAT 2005-SN1 Notes to the Issuer by the CARAT Indenture Trustee), the
Issuer shall execute, the CARAT Indenture Trustee shall authenticate and the
CARAT 2005-SN1 Noteholder shall obtain from the CARAT Indenture Trustee, in the
name of the designated transferee or transferees, one or more new CARAT 2005-SN1
Notes in any authorized denominations, of a like aggregate principal amount.
(d) At the option of the CARAT 2005-SN1 Noteholder, CARAT 2005-SN1
Notes may be exchanged for other CARAT 2005-SN1 Notes of the same class in any
authorized
-5-
denominations, of a like aggregate principal amount, upon surrender of such
CARAT 2005-SN1 Notes to be exchanged at the Corporate Trust Office of the CARAT
Indenture Trustee or the Agency Office of the Issuer (and following the
delivery, in the former case, of such CARAT 2005-SN1 Notes to the Issuer by the
CARAT Indenture Trustee), the Issuer shall execute, and the CARAT Indenture
Trustee shall authenticate and the CARAT 2005-SN1 Noteholder shall obtain from
the CARAT Indenture Trustee, such CARAT 2005-SN1 Notes which the CARAT 2005-SN1
Noteholder making the exchange is entitled to receive.
(e) All CARAT 2005-SN1 Notes issued upon any registration of
transfer or exchange of other CARAT 2005-SN1 Notes shall be the valid
obligations of the Issuer, evidencing the same debt, and entitled to the same
benefits under this CARAT Indenture, as the CARAT 2005-SN1 Notes surrendered
upon such registration of transfer or exchange.
(f) Every CARAT 2005-SN1 Note presented or surrendered for
registration of transfer or exchange shall be duly endorsed by, or be
accompanied by a written instrument of transfer in form satisfactory to the
CARAT Indenture Trustee and the Note Registrar, duly executed by the Holder
thereof or such Holder's attorney duly authorized in writing, with such
signature guaranteed by a commercial bank or trust company located, or having a
correspondent located, in the City of New York or the city in which the
Corporate Trust Office of the CARAT Indenture Trustee is located, or by a member
firm of a national securities exchange, and such other documents as the CARAT
Indenture Trustee may require.
(g) No service charge shall be made to a Holder for any registration
of transfer or exchange of CARAT 2005-SN1 Notes, but the Issuer or CARAT
Indenture Trustee may require payment of a sum sufficient to cover any tax or
other governmental charge that may be imposed in connection with any
registration of transfer or exchange of CARAT 2005-SN1 Notes, other than
exchanges pursuant to Sections 2.3 or 9.6 not involving any transfer.
(h) By acquiring a CARAT 2005-SN1 Note or any interest therein, each
purchaser and transferee shall be deemed to represent and warrant that either
(a) it is not acquiring the CARAT 2005-SN1 Note with the plan assets of a
Benefit Plan or (b) the acquisition, holding and disposition of the CARAT
2005-SN1 Note will not give rise to a non-exempt prohibited transaction under
Section 406(a) of ERISA or Section 4975 of the Code.
(i) The preceding provisions of this Section 2.4 notwithstanding,
the Issuer shall not be required to transfer or make exchanges, and the Note
Registrar need not register transfers or exchanges, of CARAT 2005-SN1 Notes
that: (i) have been selected for redemption pursuant to Article X, if
applicable; (ii) are due for repayment within 15 days of submission to the
Corporate Trust Office or the Agency Office; or (iii) with respect to any
Private Notes or Class A-1 Notes, if Section 2.15 has not been complied with in
connection with such transfer.
SECTION 2.5 Mutilated, Destroyed, Lost or Stolen CARAT 2005-SN1 Notes.
(a) If (i) any mutilated CARAT 2005-SN1 Note is surrendered to the
CARAT Indenture Trustee, or the CARAT Indenture Trustee receives evidence to its
satisfaction of the destruction, loss or theft of any CARAT 2005-SN1 Note, and
(ii) there is delivered to the CARAT Indenture Trustee such security or
indemnity as may be required by it to hold the Issuer
-6-
and the CARAT Indenture Trustee harmless, then, in the absence of notice to the
Issuer, the Note Registrar or the CARAT Indenture Trustee that such CARAT
2005-SN1 Note has been acquired by a bona fide purchaser, the Issuer shall
execute and upon the Issuer's request the CARAT Indenture Trustee shall
authenticate and deliver, in exchange for or in lieu of any such mutilated,
destroyed, lost or stolen CARAT 2005-SN1 Note, a replacement CARAT 2005-SN1 Note
of a like class and aggregate principal amount; provided, however, that if any
such destroyed, lost or stolen CARAT 2005-SN1 Note, but not a mutilated CARAT
2005-SN1 Note, shall have become or within seven days shall be due and payable,
or shall have been called for redemption, instead of issuing a replacement CARAT
2005-SN1 Note, the Issuer may make payment to the Holder of such destroyed, lost
or stolen CARAT 2005-SN1 Note when so due or payable or upon the Redemption
Date, if applicable, without surrender thereof.
(b) If, after the delivery of a replacement CARAT 2005-SN1 Note or
payment in respect of a destroyed, lost or stolen CARAT 2005-SN1 Note pursuant
to Section 2.5(a), a bona fide purchaser of the original CARAT 2005-SN1 Note in
lieu of which such replacement CARAT 2005-SN1 Note was issued presents for
payment such original CARAT 2005-SN1 Note, the Issuer and the CARAT Indenture
Trustee shall be entitled to recover such replacement CARAT 2005-SN1 Note (or
such payment) from (i) any Person to whom it was delivered, (ii) the Person
taking such replacement CARAT 2005-SN1 Note from the Person to whom such
replacement CARAT 2005-SN1 Note was delivered; or (iii) any assignee of such
Person, except a bona fide purchaser, and the Issuer and the CARAT Indenture
Trustee shall be entitled to recover upon the security or indemnity provided
therefor to the extent of any loss, damage, cost or expense incurred by the
Issuer or the CARAT Indenture Trustee in connection therewith.
(c) In connection with the issuance of any replacement CARAT
2005-SN1 Note under this Section 2.5, the Issuer may require the payment by the
Holder of such CARAT 2005-SN1 Note of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
reasonable expenses (including all fees and expenses of the CARAT Indenture
Trustee) connected therewith.
(d) Any duplicate CARAT 2005-SN1 Note issued pursuant to this
Section 2.5 in replacement for any mutilated, destroyed, lost or stolen CARAT
2005-SN1 Note shall constitute an original additional contractual obligation of
the Issuer, whether or not the mutilated, destroyed, lost or stolen CARAT
2005-SN1 Note shall be found at any time or be enforced by any Person, and shall
be entitled to all the benefits of this CARAT Indenture equally and
proportionately with any and all other CARAT 2005-SN1 Notes duly issued
hereunder.
(e) The provisions of this Section 2.5 are exclusive and shall
preclude (to the extent lawful) all other rights and remedies with respect to
the replacement or payment of mutilated, destroyed, lost or stolen CARAT
2005-SN1 Notes.
SECTION 2.6 Persons Deemed CARAT 2005-SN1 Noteholders. Prior to due
presentment for registration of transfer of any CARAT 2005-SN1 Note, the Issuer,
the CARAT Indenture Trustee and any agent of the Issuer or the CARAT Indenture
Trustee may treat the Person in whose name any CARAT 2005-SN1 Note is registered
(as of the day of determination) as the CARAT 2005-SN1 Noteholder for the
purpose of receiving payments of principal of and interest on such CARAT
2005-SN1 Note and for all other purposes whatsoever, whether or not
-7-
such CARAT 2005-SN1 Note be overdue, and neither the Issuer, the CARAT Indenture
Trustee nor any agent of the Issuer or the CARAT Indenture Trustee shall be
affected by notice to the contrary.
SECTION 2.7 Payment of Principal and Interest.
(a) Interest on each class of CARAT 2005-SN1 Notes shall accrue in
the manner set forth in Exhibit C-1 through Exhibit C-6, as applicable for such
class, at the applicable Interest Rate for such class and will be due and
payable on each Distribution Date in accordance with the priorities set forth in
Section 8.2(c). Any instalment of interest payable on any CARAT 2005-SN1 Note
shall be punctually paid or duly provided for by a deposit by or at the
direction of the Issuer into the Note Distribution Account on the applicable
Distribution Date and shall be paid to the Person in whose name such CARAT
2005-SN1 Note (or one or more Predecessor Notes) is registered on the applicable
Record Date, by check mailed first-class, postage prepaid to such Person's
address as it appears on the Note Register on such Record Date; provided,
however, that, unless and until Definitive Notes have been issued pursuant to
Section 2.12, with respect to CARAT 2005-SN1 Notes registered on the applicable
Record Date in the name of the Note Depository (initially, Cede & Co.), payment
shall be made by wire transfer in immediately available funds to the account
designated by the Note Depository; provided, further, that with respect to any
Private Notes or Class A-1 Notes, upon written request of the Holder thereof,
payment shall be made by wire transfer of immediately available funds to the
account designated by such Holder until further written notice from such Holder.
(b) Prior to the occurrence of an Event of Default and a declaration
in accordance with Section 5.2(a) that the CARAT 2005-SN1 Notes have become
immediately due and payable, the principal of each class of CARAT 2005-SN1 Notes
shall be payable in full on the Final Scheduled Distribution Date for such class
and, to the extent of funds available therefor, in instalments on the
Distribution Dates (if any) preceding the Final Scheduled Distribution Date for
such class, in the amounts and in accordance with the priorities set forth in
Section 8.2(c)(ii) or (iii), as applicable. All principal payments on each class
of CARAT 2005-SN1 Notes on any Distribution Date shall be made pro rata to the
CARAT 2005-SN1 Noteholders of such class entitled thereto. Any instalment of
principal payable on any CARAT 2005-SN1 Note shall be punctually paid or duly
provided for by a deposit by or at the direction of the Issuer into the Note
Distribution Account on the applicable Distribution Date and shall be paid to
the Person in whose name such CARAT 2005-SN1 Note (or one or more Predecessor
CARAT 2005-SN1 Notes) is registered on the applicable Record Date, by check
mailed first-class, postage prepaid to such Person's address as it appears on
the Note Register on such Record Date; provided, however, that, (A) unless and
until Definitive Notes have been issued pursuant to Section 2.12, with respect
to CARAT 2005-SN1 Notes registered on the Record Date in the name of the Note
Depository, payment shall be made by wire transfer in immediately available
funds to the account designated by the Note Depository and (B) with respect to
any Private Notes or Class A-1 Notes, upon written request of the Holder
thereof, payment shall be made by wire transfer of immediately available funds
to the account designated by such Holder until further written notice from such
Holder or, if no prior written wire transfer instructions have been given to the
CARAT Indenture Trustee by such Person, by check mailed to such Person's address
as it appears on the Note Register, except for, in each case: (i) the final
instalment of principal on any CARAT 2005-SN1 Note and (ii) the Redemption Price
for the CARAT 2005-SN1 Notes
-8-
redeemed pursuant to Section 10.1, which, in each case, shall be payable as
provided herein. The funds represented by any such checks in respect of interest
or principal returned undelivered shall be held in accordance with Section 3.3.
(c) From and after the occurrence of an Event of Default and a
declaration in accordance with Section 5.2(a) that the CARAT 2005-SN1 Notes have
become immediately due and payable, until such time as all Events of Default
have been cured or waived as provided in Section 5.2(b), all interest and
principal payments shall be allocated in the following order of priority:
(i) first, for payment of interest pro rata on the Class A
Notes, the Aggregate Class A Interest Distributable Amount;
(ii) second, 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 with respect to the
Class A Notes) for payment of principal pro rata on the Class A Notes;
(iii) third, for payment of interest pro rata on the Class B
Notes, the Aggregate Class B Interest Distributable Amount;
(iv) fourth, 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 with respect to the
Class B Notes) for payment of principal pro rata on the Class B Notes;
(v) fifth, for payment of interest pro rata on the Class C
Notes, the Aggregate Class C Interest Distributable Amount; and
(vi) sixth, 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 with respect to the
Class C Notes) for payment of principal pro rata on the Class C Notes.
(d) With respect to any Distribution Date on which the final
instalment of principal and interest on a class of CARAT 2005-SN1 Notes is to be
paid, the CARAT Indenture Trustee on behalf of the Issuer shall notify each
CARAT 2005-SN1 Noteholder of record of such class as of the Record Date for such
Distribution Date of the fact that the final instalment of principal of and
interest on such CARAT 2005-SN1 Note is to be paid on such Distribution Date.
With respect to any such class of CARAT 2005-SN1 Notes, such notice shall be
sent (i) on such Record Date by facsimile, if Book Entry Notes are outstanding;
or (ii) not later than three Business Days after such Record Date in accordance
with Section 11.5(a) if Definitive Notes are outstanding, and shall specify that
such final instalment shall be payable only upon presentation and surrender of
such CARAT 2005-SN1 Note and shall specify the place where such CARAT 2005-SN1
Note may be presented and surrendered for payment of such instalment and the
-9-
manner in which such payment shall be made. Notices in connection with
redemptions of CARAT 2005-SN1 Notes shall be mailed to CARAT 2005-SN1
Noteholders as provided in Section 10.2. Within 60 days of the surrender
pursuant to this Section 2.7(d) or cancellation pursuant to Section 2.8 of all
of the CARAT 2005-SN1 Notes of a particular class, the CARAT Indenture Trustee,
if requested, shall provide each of the Rating Agencies with written notice
stating that all CARAT 2005-SN1 Notes of such class have been surrendered or
canceled.
SECTION 2.8 Cancellation of CARAT 2005-SN1 Notes.
All CARAT 2005-SN1 Notes surrendered for payment, redemption, exchange or
registration of transfer shall, if surrendered to any Person other than the
CARAT Indenture Trustee, be delivered to the CARAT Indenture Trustee and shall
be promptly canceled by the CARAT Indenture Trustee. The Issuer may at any time
deliver to the CARAT Indenture Trustee for cancellation any CARAT 2005-SN1 Notes
previously authenticated and delivered hereunder which the Issuer may have
acquired in any manner whatsoever, and all CARAT 2005-SN1 Notes so delivered
shall be promptly canceled by the CARAT Indenture Trustee. No CARAT 2005-SN1
Notes shall be authenticated in lieu of or in exchange for any CARAT 2005-SN1
Notes canceled as provided in this Section 2.8, except as expressly permitted by
this CARAT Indenture. All canceled CARAT 2005-SN1 Notes may be held or disposed
of by the CARAT Indenture Trustee in accordance with its standard retention or
disposal policy as in effect at the time unless the Issuer shall direct by an
Issuer Order that they be destroyed or returned to it; provided, however, that
such Issuer Order is timely and the CARAT 2005-SN1 Notes have not been
previously disposed of by the CARAT Indenture Trustee. The CARAT Indenture
Trustee shall certify to the Issuer upon request that surrendered CARAT 2005-SN1
Notes have been duly canceled and retained or destroyed, as the case may be.
SECTION 2.9 Release of Collateral.
The CARAT Indenture Trustee shall release property from the lien of this
CARAT Indenture other than as permitted by Sections 3.20, 8.2, 8.4 and 11.1,
only upon receipt of an Issuer Request accompanied by an Officer's Certificate,
an Opinion of Counsel (to the extent required by the TIA) and Independent
Certificates in accordance with TIA Sections 314(c) and 314(d)(1).
SECTION 2.10 Book-Entry Notes. Except as set forth in Section 2.15 with
respect to the Private Notes, the CARAT 2005-SN1 Notes, upon original issuance,
shall be issued in the form of a typewritten CARAT 2005-SN1 Note or CARAT
2005-SN1 Notes representing the Book-Entry Notes, to be delivered to The
Depository Trust Company, as the initial Clearing Agency, or its custodian, by
or on behalf of the Issuer. Such CARAT 2005-SN1 Note or CARAT 2005-SN1 Notes
shall be registered on the Note Register in the name of the Note Depository, and
no Note Owner shall receive a Definitive Note representing such Note Owner's
interest in such CARAT 2005-SN1 Note, except as provided in Section 2.12. Unless
and until the Definitive Notes have been issued to Note Owners pursuant to
Section 2.12:
(a) the provisions of this Section 2.10 shall be in full force and
effect;
-10-
(b) the Note Registrar and the CARAT Indenture Trustee shall be
entitled to deal with the Clearing Agency for all purposes of this CARAT
Indenture (including the payment of principal of and interest on such CARAT
2005-SN1 Notes and the giving of instructions or directions hereunder) as the
sole Holder of such CARAT 2005-SN1 Notes and shall have no obligation to the
Note Owners;
(c) to the extent that the provisions of this Section 2.10 conflict
with any other provisions of this CARAT Indenture, the provisions of this
Section 2.10 shall control;
(d) the rights of the Note Owners shall be exercised only through
the Clearing Agency and shall be limited to those established by law and
agreements between such CARAT 2005-SN1 Note Owners and the Clearing Agency
and/or the Clearing Agency Participants. Unless and until Definitive Notes are
issued pursuant to Section 2.12, the initial Clearing Agency shall make
book-entry transfers between the Clearing Agency Participants and receive and
transmit payments of principal of and interest on such CARAT 2005-SN1 Notes to
such Clearing Agency Participants, pursuant to the Note Depository Agreement;
and
(e) whenever this CARAT Indenture requires or permits actions to be
taken based upon instructions or directions of Holders of CARAT 2005-SN1 Notes
evidencing a specified percentage of the Outstanding Amount of the Controlling
Class the Clearing Agency shall be deemed to represent such percentage only to
the extent that (i) it has received instructions to such effect from Note Owners
and/or Clearing Agency Participants owning or representing, respectively, such
required percentage of the beneficial interest in the CARAT 2005-SN1 Notes; or
(ii) the CARAT Indenture Trustee has received such direction from the Note
Owners directly.
SECTION 2.11 Notices to Clearing Agency. Whenever a notice or other
communication to the CARAT 2005-SN1 Noteholders is required under this CARAT
Indenture, unless and until Definitive Notes shall have been issued to Note
Owners pursuant to Section 2.12, the CARAT Indenture Trustee shall give all such
notices and communications specified herein to be given to CARAT 2005-SN1
Noteholders to the Clearing Agency and shall have no other obligation to the
Note Owners.
SECTION 2.12 Definitive Notes. If (i) the Trust Administrator advises the
CARAT Indenture Trustee in writing that the Clearing Agency is no longer willing
or able to properly discharge its responsibilities with respect to the Notes and
the Issuer is unable to locate a qualified successor; (ii) the Trust
Administrator, at its option, advises the CARAT Indenture Trustee in writing
that it elects to terminate the book-entry system through the Clearing Agency;
or (iii) after the occurrence of an Event of Default or a Trust Administrator
Default, Note Owners representing beneficial interests aggregating at least a
majority of the Outstanding Amount of the Controlling Class advise the Clearing
Agency in writing that the continuation of a book-entry system through the
Clearing Agency is no longer in the best interests of the Note Owners, then the
Clearing Agency shall notify all Note Owners and the CARAT Indenture Trustee of
the occurrence of any such event and of the availability of Definitive Notes to
Note Owners requesting the same. Upon surrender to the CARAT Indenture Trustee
of the typewritten CARAT 2005-SN1 Note or CARAT 2005-SN1 Notes representing the
Book-Entry Notes by the Clearing Agency, accompanied by registration
instructions, the Issuer shall execute
-11-
and the CARAT Indenture Trustee shall authenticate the Definitive Notes in
accordance with the instructions of the Clearing Agency. None of the Issuer, the
Note Registrar or the CARAT Indenture Trustee shall be liable for any delay in
delivery of such instructions and may conclusively rely on, and shall be
protected in relying on, such instructions. Upon the issuance of Definitive
Notes, the CARAT Indenture Trustee shall recognize the Holders of the Definitive
Notes as CARAT 2005-SN1 Noteholders.
SECTION 2.13 Seller as CARAT 2005-SN1 Noteholder.
The Seller in its individual or any other capacity may become the owner or
pledgee of CARAT 2005-SN1 Notes of any class and may otherwise deal with the
Issuer or its affiliates with the same rights it would have if it were not the
Seller.
SECTION 2.14 Tax Treatment.
The Seller and the CARAT Indenture Trustee, by entering into this CARAT
Indenture, and the CARAT 2005-SN1 Noteholders, by acquiring any CARAT 2005-SN1
Note or interest therein, (i) express their intention that the CARAT 2005-SN1
Notes qualify under applicable tax law as indebtedness secured by the
Collateral, and (ii) unless otherwise required by appropriate taxing
authorities, agree to treat the CARAT 2005-SN1 Notes as indebtedness secured by
the Collateral for the purpose of federal income taxes, state and local income
and franchise taxes, Michigan single business tax, and any other taxes imposed
upon, measured by or based upon gross or net income.
SECTION 2.15 Special Terms Applicable to Private Notes and Class A-1
Notes; Transfer of Beneficial Interest in Private Notes and Class A-1 Notes.
(a) None of the Private Notes or Class A-1 Notes have been or will
be registered under the Securities Act of 1933, as amended (the "Securities
Act"), or the securities laws of any other jurisdiction. Consequently, the
Private Notes and Class A-1 Notes are not transferable other than pursuant to an
exemption from the registration requirements of the Securities Act and
satisfaction of certain other provisions specified herein. The Private Notes or
Class A-1 Notes or any interest therein are being sold in a private placement on
the date hereof.
(b) Thereafter, no further sale, pledge or other transfer of
(I) any Private Note (or interest therein) may be made by any person
unless either (i) such sale, pledge or other transfer is made to a
"qualified institutional buyer" that executes a certificate, in the
form attached hereto as Exhibit E or otherwise in form and substance
satisfactory to the CARAT Indenture Trustee and the Seller, to the
effect that (A) it is a "qualified institutional buyer" as defined
under Rule 144A under the Securities Act, acting for its own account
or the accounts of other "qualified institutional buyers" as defined
under Rule 144A under the Securities Act, and (B) it is aware that
the transferor of such Private Notes intends to rely on the
exemption from the registration requirements of the Securities Act
provided by Rule 144A under the Securities Act, or (ii) such sale,
pledge or other transfer is otherwise made in a transaction exempt
from the registration requirements of the Securities Act, in which
case (A) the CARAT Indenture Trustee shall require that
-12-
both the prospective transferor and the prospective transferee
certify to the CARAT Indenture Trustee and the Seller in writing the
facts surrounding such transfer, which certification shall be in
form and substance satisfactory to the CARAT Indenture Trustee and
the Seller, and (B) the CARAT Indenture Trustee shall require a
written opinion of counsel (which will not be at the expense of the
Seller, the Trust Administrator or the CARAT Indenture Trustee)
satisfactory to the Seller and the CARAT Indenture Trustee to the
effect that such transfer will not violate the Securities Act, or
(II) any Class A-1 Note (or interest therein) may be made by any person
unless either (i) such sale, pledge or other transfer is made to a
"qualified institutional buyer" that delivers any necessary
certifications pursuant to Section 2.15(d) or (e) and that (A) is a
"qualified institutional buyer" as defined under Rule 144A under the
Securities Act, acting for its own account or the accounts of other
"qualified institutional buyers" as defined under Rule 144A under
the Securities Act, and (B) it is aware that the transferor of such
Class A-1 Notes intends to rely on the exemption from the
registration requirements of the Securities Act provided by Rule
144A under the Securities Act, (ii) such sale, pledge or other
transfer occurs outside of the United States to a non-U.S. Person in
accordance with Rule 903 or Rule 904 of Regulation S of the
Securities Act and that Person delivers any necessary certifications
pursuant to Section 2.15(d) or (e), or (iii) such sale, pledge or
other transfer is otherwise made in a transaction exempt from the
registration requirements of the Securities Act, in which case (A)
the CARAT Indenture Trustee shall require that both the prospective
transferor and the prospective transferee certify to the CARAT
Indenture Trustee and the Seller in writing the facts surrounding
such transfer, which certification shall be in form and substance
satisfactory to the CARAT Indenture Trustee and the Seller, and (B)
the CARAT Indenture Trustee shall require a written opinion of
counsel (which will not be at the expense of the Seller, the Trust
Administrator or the CARAT Indenture Trustee) satisfactory to the
Seller and the CARAT Indenture Trustee to the effect that such
transfer will not violate the Securities Act.
Neither the Seller nor the CARAT Indenture Trustee will register any of the
Private Notes or the Class A-1 Notes under the Securities Act, qualify any of
the Private Notes or the Class A-1 Notes under the securities laws of any state
or provide registration rights to any purchaser or holder thereof. The Private
Notes shall be issued in the form of Definitive Notes and shall be in fully
registered form. Sections 2.10, 2.11 and 2.12 of this CARAT Indenture shall not
apply to the Private Notes.
(c) Each Private Note shall bear a legend to the effect set forth in
clause (I) of Section 2.15(b) above, and each Class A-1 Note shall bear a legend
to the effect set forth in clause (II) of Section 2.15(b) above.
(d) If a transfer of a beneficial interest held by the related
transferor in the form of a Rule 144A Global Class A-1 Note to be held by the
related transferee in the form of a Rule 144A Global Class A-1 Note is to be
made without registration under the Securities Act (other than in connection
with the initial issuance thereof or a transfer thereof by the Seller or
-13-
one of its Affiliates), then the Note Registrar shall refuse to register such
transfer unless it receives (and upon receipt, may conclusively rely upon) a
certificate from the CARAT 2005-SN1 Noteholder desiring to effect such transfer
substantially in the form attached as Exhibit D-1 hereto and a certificate from
such CARAT 2005-SN1 Noteholder's prospective transferee substantially in the
form attached as Exhibit D-2 hereto. If a transfer of a beneficial interest held
by the related transferor in the form of a Rule 144A Global Class A-1 Note to be
held by the related transferee in the form of a Temporary Regulation S Global
Class A-1 Note, on or prior to the Exchange Date, or a Permanent Regulation S
Global Class A-1 Note, after the Exchange Date, is to be made without
registration under the Securities Act, then the Note Registrar shall refuse to
register such transfer unless it receives (and upon receipt may conclusively
rely upon) a certificate substantially in the form of Exhibit D-3 hereto (a
"Regulation S Transfer Certificate") from the CARAT 2005-SN1 Noteholder desiring
to effect such transfer or such other certification reasonably acceptable to the
Seller and the Note Registrar, in either case to the effect that such transfer
is being made in accordance with Rule 903 or Rule 904 of Regulation S and that,
if such transfer occurs on or prior to the Exchange Date, the interest
transferred will be held immediately thereafter through Euroclear or
Clearstream.
(e) If any transfer of a beneficial interest held by the related
transferor in the form of a Temporary Regulation S Global Class A-1 Note or
Permanent Regulation S Global Class A-1 Note is to be made without registration
under the Securities Act, then the Note Registrar shall refuse to register such
transfer unless it receives (and upon receipt may conclusively rely upon) (i) in
the case of a transfer to a transferee that takes delivery in the form of a
beneficial interest in a Rule 144A Global Class A-1 Note, a certificate from the
CARAT 2005-SN1 Noteholder desiring to effect such transfer substantially in the
form of Exhibit D-4 hereto (a "Rule 144A Transfer Certificate") or such other
certification reasonably acceptable to the Seller and the Note Registrar; and
(ii) in the case of a transferee that takes delivery, in the form of a
beneficial interest in a Temporary Regulation S Global Class A-1 Note, on or
prior to the Exchange Date, or a Permanent Regulation S Global Class A-1 Note,
after the Exchange Date, a Regulation S Transfer Certificate from the CARAT
2005-SN1 Noteholder desiring to effect such transfer or such other certification
reasonably acceptable to the Seller and the Note Registrar, in either case to
the effect that such transfer is being made in accordance with Rule 903 or 904
of Regulation S and that, if such transfer occurs on or prior to the Exchange
Date, the interest transferred will be held immediately thereafter through
Euroclear or Clearstream. A beneficial interest in the Class A-1 Notes held by
the related transferor in the form of a Temporary Regulation S Global Class A-1
Note may be exchanged, only on or after the Exchange Date, for a beneficial
interest held by the related transferor in the form of a Permanent Regulation S
Global Class A-1 Note, upon delivery to the Note Registrar of a certification
substantially in the form of Exhibit D-5 hereto (a "Clearing System
Certificate").
ARTICLE III
COVENANTS
SECTION 3.1 Payment of Principal and Interest.
The Issuer shall duly and punctually pay the principal of and interest on
the CARAT 2005-SN1 Notes in accordance with the CARAT 2005-SN1 Notes and this
CARAT Indenture. On each Distribution Date and on the Redemption Date (if
applicable), the Issuer shall cause
-14-
amounts on deposit in the Note Distribution Account to be distributed to the
CARAT 2005-SN1 Noteholders in accordance with Sections 2.7 and 8.2, less amounts
properly withheld under the Code by any Person from a payment to any CARAT
2005-SN1 Noteholder of interest and/or principal. Any amounts so withheld shall
be considered as having been paid by the Issuer to such CARAT 2005-SN1
Noteholder for all purposes of this CARAT Indenture.
SECTION 3.2 Maintenance of Agency Office.
As long as any of the CARAT 2005-SN1 Notes remains outstanding, the Issuer
shall maintain in the Borough of Manhattan, the City of New York, an office (the
"Agency Office"), being an office or agency where CARAT 2005-SN1 Notes may be
surrendered to the Issuer for registration of transfer or exchange, and where
notices and demands to or upon the Issuer in respect of the CARAT 2005-SN1 Notes
and this CARAT Indenture may be served. The Issuer hereby initially appoints the
CARAT Indenture Trustee to serve as its agent for the foregoing purposes. The
Issuer shall give prompt written notice to the CARAT Indenture Trustee of the
location, and of any change in the location, of the Agency Office. If at any
time the Issuer shall fail to maintain any such office or agency or shall fail
to furnish the CARAT Indenture Trustee with the address thereof, such
surrenders, notices and demands may be made or served at the Corporate Trust
Office of the CARAT Indenture Trustee, and the Issuer hereby appoints the CARAT
Indenture Trustee as its agent to receive all such surrenders, notices and
demands.
SECTION 3.3 Money for Payments To Be Held in Trust.
(a) As provided in Section 8.2(a) and (b), all payments of amounts
due and payable with respect to any CARAT 2005-SN1 Notes that are to be made
from amounts withdrawn from the Note Distribution Account pursuant to Section
8.2(c) shall be made on behalf of the Issuer by the CARAT Indenture Trustee or
by another Paying Agent, and no amounts so withdrawn from the Note Distribution
Account for payments of CARAT 2005-SN1 Notes shall be paid over to the Issuer
except as provided in this Section 3.3.
(b) On or before each Distribution Date or the Redemption Date (if
applicable), the Issuer shall deposit or cause to be deposited in the Note
Distribution Account pursuant to Section 4.05 of the Trust Sale and
Administration Agreement an aggregate sum sufficient to pay the amounts then
becoming due with respect to the CARAT 2005-SN1 Notes, such sum to be held in
trust for the benefit of the Persons entitled thereto.
(c) The Issuer shall cause each Paying Agent other than the CARAT
Indenture Trustee to execute and deliver to the CARAT Indenture Trustee an
instrument in which such Paying Agent shall agree with the CARAT Indenture
Trustee (and if the CARAT Indenture Trustee acts as Paying Agent, it hereby so
agrees), subject to the provisions of this Section 3.3, that such Paying Agent
shall:
(i) hold all sums held by it for the payment of amounts due
with respect to the CARAT 2005-SN1 Notes in trust for the benefit of the Persons
entitled thereto until such sums shall be paid to such Persons or otherwise
disposed of as herein provided and pay such sums to such Persons as herein
provided;
-15-
(ii) give the CARAT Indenture Trustee notice of any default by
the Issuer (or any other obligor upon the CARAT 2005-SN1 Notes) of which it has
actual knowledge in the making of any payment required to be made with respect
to the CARAT 2005-SN1 Notes;
(iii) at any time during the continuance of any such default,
upon the written request of the CARAT Indenture Trustee, forthwith pay to the
CARAT Indenture Trustee all sums so held in trust by such Paying Agent;
(iv) immediately resign as a Paying Agent and forthwith pay to
the CARAT Indenture Trustee all sums held by it in trust for the payment of
CARAT 2005-SN1 Notes if at any time it ceases to meet the standards required to
be met by a Paying Agent in effect at the time of determination; and
(v) comply with all requirements of the Code with respect to
the withholding from any payments made by it on any CARAT 2005-SN1 Notes of any
applicable withholding taxes imposed thereon and with respect to any applicable
reporting requirements in connection therewith.
(d) The Issuer may at any time, for the purpose of obtaining the
satisfaction and discharge of this CARAT Indenture or for any other purpose, by
Issuer Order direct any Paying Agent to pay to the CARAT Indenture Trustee all
sums held in trust by such Paying Agent, such sums to be held by the CARAT
Indenture Trustee upon the same trusts as those upon which the sums were held by
such Paying Agent; and upon such payment by any Paying Agent to the CARAT
Indenture Trustee, such Paying Agent shall be released from all further
liability with respect to such money.
(e) Subject to applicable laws with respect to escheat of funds, any
money held by the CARAT Indenture Trustee or any Paying Agent in trust for the
payment of any amount due with respect to any CARAT 2005-SN1 Note and remaining
unclaimed for one year after such amount has become due and payable shall be
discharged from such trust and be paid to the Issuer on Issuer Request; and the
Holder of such CARAT 2005-SN1 Note shall thereafter, as an unsecured general
creditor, look only to the Issuer for payment thereof (but only to the extent of
the amounts so paid to the Issuer), and all liability of the CARAT Indenture
Trustee or such Paying Agent with respect to such trust money shall thereupon
cease; provided, however, that the CARAT Indenture Trustee or such Paying Agent,
before being required to make any such payment, may at the expense of the Issuer
cause to be published once, in a newspaper published in the English language,
customarily published on each Business Day and of general circulation in the
City of New York, notice that such money remains unclaimed and that, after a
date specified therein, which shall not be less than 30 days from the date of
such publication, any unclaimed balance of such money then remaining shall be
paid to the Issuer. The CARAT Indenture Trustee may also adopt and employ, at
the expense of the Issuer, any other reasonable means of notification of such
payment (including, but not limited to, mailing notice of such payment to
Holders whose CARAT 2005-SN1 Notes have been called but have not been
surrendered for redemption or whose right to or interest in monies due and
payable but not claimed is determinable from the records of the CARAT Indenture
Trustee or of any Paying Agent, at the last address of record for each such
Holder).
-16-
SECTION 3.4 Existence. The Issuer shall keep in full effect its existence,
rights and franchises as a statutory trust under the laws of the State of
Delaware (unless it becomes, or any successor Issuer hereunder is or becomes,
organized under the laws of any other State or of the United States of America,
in which case the Issuer shall keep in full effect its existence, rights and
franchises under the laws of such other jurisdiction) and shall obtain and
preserve its qualification to do business in each jurisdiction in which such
qualification is or shall be necessary to protect the validity and
enforceability of this CARAT Indenture, the CARAT 2005-SN1 Notes, the Collateral
and each other instrument or agreement included in the CARAT Trust Estate.
SECTION 3.5 Protection of CARAT Trust Estate; Acknowledgment of Pledge.
(a) The Issuer shall from time to time execute and deliver all such
supplements and amendments hereto and authorize or execute, as applicable, and
deliver all such financing statements, continuation statements, instruments of
further assurance and other instruments, and shall take such other action
necessary or advisable to:
(i) maintain or preserve the lien and security interest (and
the priority thereof) of this CARAT Indenture or carry out more effectively the
purposes hereof, including by making the necessary filings of financing
statements or amendments thereto within sixty days after the occurrence of any
of the following and by promptly notifying the CARAT Indenture Trustee of any
such filings: (A) any change in the Issuer's true legal name or any of its trade
names, (B) any change in the location of the Issuer's jurisdiction or
organization, (C) any merger or consolidation or other change in the Issuer's
identity or organizational structure or jurisdiction of organization or
jurisdiction in which the Issuer is located for purposes of the UCC and (D) any
other change or occurrence that would make any financing statement or amendment
thereto seriously misleading within the meaning of the UCC.
(ii) perfect, publish notice of or protect the validity of any
Grant made or to be made by this CARAT Indenture and the priority thereof;
(iii) enforce the rights of the CARAT Indenture Trustee and
the CARAT 2005-SN1 Noteholders in any of the Collateral; or
(iv) preserve and defend title to the CARAT Trust Estate and
the rights of the CARAT Indenture Trustee and the Secured Parties in such CARAT
Trust Estate against the claims of all persons and parties,
and the Issuer hereby designates the CARAT Indenture Trustee its agent and
attorney-in-fact to authorize and/or execute any financing statement,
continuation statement or other instrument required by the CARAT Indenture
Trustee pursuant to this Section 3.5.
(b) The Issuer hereby authorizes the CARAT Indenture Trustee to file
all financing statements naming the Issuer as debtor that are necessary or
advisable to perfect, make effective or continue the lien and security interest
of this CARAT Indenture, and authorizes the CARAT Indenture Trustee to take any
such action without its signature.
-17-
SECTION 3.6 Opinions as to CARAT Trust Estate.
(a) On the Series 2005-SN1 Closing Date, the Issuer shall furnish to
the CARAT Indenture Trustee an Opinion of Counsel either stating that, in the
opinion of such counsel, such action has been taken with respect to the
recording and filing of this CARAT Indenture, any indentures supplemental hereto
and any other requisite documents, and with respect to the authorization,
execution and filing of any financing statements and continuation statements as
are necessary to perfect and make effective the lien and security interest of
this CARAT Indenture and reciting the details of such action, or stating that,
in the opinion of such counsel, no such action is necessary to make such lien
and security interest effective.
(b) On or before March 15 in each calendar year, beginning March 15,
2006, the Issuer shall furnish to the CARAT Indenture Trustee an Opinion of
Counsel either stating that, in the opinion of such counsel, such action has
been taken with respect to the recording, filing, re-recording and refiling of
this CARAT Indenture, any indentures supplemental hereto and any other requisite
documents and with respect to the authorization, execution and filing of any
financing statements and continuation statements as is necessary to maintain the
lien and security interest created by this CARAT Indenture and reciting the
details of such action or stating that in the opinion of such counsel no such
action is necessary to maintain the lien and security interest created by this
CARAT Indenture. Such Opinion of Counsel shall also describe the recording,
filing, re-recording and refiling of this CARAT Indenture, any indentures
supplemental hereto and any other requisite documents and the authorization,
execution and filing of any financing statements and continuation statements
that will, in the opinion of such counsel, be required to maintain the lien and
security interest of this CARAT Indenture until March 15 in the following
calendar year.
SECTION 3.7 Performance of Obligations; Administration of COLT 2005-SN1
Secured Notes.
(a) The Issuer shall not take any action and shall use all
reasonable efforts not to permit any action to be taken by others that would
release any Person from any of such Person's material covenants or obligations
under any instrument or agreement included in the CARAT Trust Estate or that
would result in the amendment, hypothecation, subordination, termination or
discharge of, or impair the validity or effectiveness of, any such instrument or
agreement, except as otherwise expressly provided in this CARAT Indenture, the
Trust Sale and Administration Agreement, the Pooling and Administration
Agreement or such other instrument or agreement.
(b) The Issuer may contract with other Persons to assist it in
performing its duties under this CARAT Indenture, and any performance of such
duties by a Person identified to the CARAT Indenture Trustee in the CARAT Basic
Documents or an Officer's Certificate of the Issuer shall be deemed to be action
taken by the Issuer. Initially, the Issuer has contracted with the Trust
Administrator to assist the Issuer in performing its duties under this CARAT
Indenture.
(c) The Issuer shall punctually perform and observe all of its
obligations and agreements contained in this CARAT Indenture, the other CARAT
Basic Documents and in the
-18-
instruments and agreements included in the CARAT Trust Estate, including but not
limited to filing or causing to be filed all UCC financing statements and
continuation statements required to be filed by the terms of this CARAT
Indenture, the Trust Sale and Administration Agreement and the Pooling and
Administration Agreement in accordance with and within the time periods provided
for herein and therein.
(d) If the Issuer shall have knowledge of the occurrence of a Trust
Administrator Default under the Trust Sale and Administration Agreement, the
Issuer shall promptly notify the CARAT Indenture Trustee and the Rating Agencies
thereof and shall specify in such notice the response or action, if any, the
Issuer has taken or is taking with respect of such default. If a Trust
Administrator Default shall arise from the failure of the Trust Administrator to
perform any of its duties or obligations under the Trust Sale and Administration
Agreement or the Pooling and Administration Agreement with respect to the COLT
2005-SN1 Secured Notes, the Issuer and the CARAT Indenture Trustee shall take
all reasonable steps available to them pursuant to the Trust Sale and
Administration Agreement and the Pooling and Administration Agreement to remedy
such failure.
(e) Without derogating from the absolute nature of the assignment
granted to the CARAT Indenture Trustee under this CARAT Indenture or the rights
of the CARAT Indenture Trustee hereunder, the Issuer agrees that it shall not,
without the prior written consent of the CARAT Indenture Trustee or the Holders
of at least a majority in Outstanding Amount of the Controlling Class, as
applicable in accordance with the terms of this CARAT Indenture, amend, modify,
waive, supplement, terminate or surrender, or agree to any amendment,
modification, supplement, termination, waiver or surrender of, the terms of any
Collateral or any of the CARAT Basic Documents, or waive timely performance or
observance by the Trust Administrator or the Seller under the Trust Sale and
Administration Agreement or the Pooling and Administration Agreement or GMAC
under the Pooling and Administration Agreement.
SECTION 3.8 Negative Covenants. So long as any CARAT 2005-SN1 Notes are
Outstanding, the Issuer shall not:
(a) sell, transfer, exchange or otherwise dispose of any of the
properties or assets of the Issuer, except the Issuer may cause the Trust
Administrator to (i) sell or otherwise dispose of Warranty Secured Notes and
Administrative Secured Notes, (ii) make cash payments out of the Designated
Accounts and the Certificate Distribution Account and (iii) take other actions,
in each case as permitted by the CARAT Basic Documents;
(b) claim any credit on, or make any deduction from the principal or
interest payable in respect of the CARAT 2005-SN1 Notes (other than amounts
properly withheld from such payments under the Code or applicable state law) or
assert any claim against any present or former CARAT 2005-SN1 Noteholder by
reason of the payment of the taxes levied or assessed upon any part of the CARAT
Trust Estate;
(c) voluntarily commence any insolvency, readjustment of debt,
marshaling of assets and liabilities or other proceeding, or apply for an order
by a court or agency or supervisory authority for the winding-up or liquidation
of its affairs or any other event specified in Section 5.1(f); or
-19-
(d) either (i) permit the validity or effectiveness of this CARAT
Indenture or any other Basic Document to be impaired, or permit the lien of this
CARAT Indenture to be amended, hypothecated, subordinated, terminated or
discharged, or permit any Person to be released from any covenants or
obligations with respect to the CARAT 2005-SN1 Notes under this CARAT Indenture
except as may be expressly permitted hereby, (ii) permit any lien, charge,
excise, claim, security interest, mortgage or other encumbrance (other than the
lien of this CARAT Indenture) to be created on or extend to or otherwise arise
upon or burden the CARAT Trust Estate or any part thereof or any interest
therein or the proceeds thereof (other than tax liens, mechanics' liens and
other liens that arise by operation of law, in each case on a Vehicle and
arising solely as a result of an action or omission of the related Lessee), or
(iii) permit the lien of this CARAT Indenture not to constitute a valid first
priority security interest in the CARAT Trust Estate (other than tax liens,
mechanics' liens and other liens that arise by operation of law, in each case on
a Vehicle and arising solely as a result of an action or omission of the related
Lessee).
SECTION 3.9 Annual Statement as to Compliance.
The Issuer shall deliver to the CARAT Indenture Trustee on or before March
15 of each year, beginning March 15, 2006, an Officer's Certificate signed by an
Authorized Officer, dated as of December 31 of the immediately preceding year,
in each case stating that:
(a) a review of the activities of the Issuer during the preceding
12-month period (or, with respect to the first such Officer's Certificate, such
period as shall have elapsed since the Series 2005-SN1 Closing Date) and of
performance under this CARAT Indenture has been made under such Authorized
Officer's supervision; and
(b) to the best of such Authorized Officer's knowledge, based on
such review, the Issuer has fulfilled all of its obligations under this CARAT
Indenture throughout such period, or, if there has been a default in the
fulfillment of any such obligation, specifying each such default known to such
Authorized Officer and the nature and status thereof. A copy of such certificate
may be obtained by any CARAT 2005-SN1 Noteholder by a request in writing to the
Issuer addressed to the Corporate Trust Office of the CARAT Indenture Trustee.
SECTION 3.10 Consolidation, Merger, etc., of Issuer; Disposition of Trust
Assets.
(a) The Issuer shall not consolidate or merge with or into any other
Person, unless:
(i) the Person (if other than the Issuer) formed by or
surviving such consolidation or merger shall be a Person organized and existing
under the laws of the United States of America, or any State and shall expressly
assume, by an indenture supplemental hereto, executed and delivered to the CARAT
Indenture Trustee, in form satisfactory to the CARAT Indenture Trustee, the due
and timely payment of the principal of and interest on all CARAT 2005-SN1 Notes
and the performance or observance of every agreement and covenant of this CARAT
Indenture on the part of the Issuer to be performed or observed, all as provided
herein;
(ii) immediately after giving effect to such merger or
consolidation, no Default or Event of Default shall have occurred and be
continuing;
-20-
(iii) the Rating Agency Condition shall have been satisfied
with respect to such transaction and such Person;
(iv) any action as is necessary to maintain the lien and
security interest created by this CARAT Indenture shall have been taken; and
(v) the Issuer shall have delivered to the CARAT Indenture
Trustee an Officer's Certificate and an Opinion of Counsel addressed to the
Issuer each stating:
(A) that such consolidation or merger and such
supplemental indenture comply with this Section 3.10;
(B) that such consolidation or merger and such
supplemental indenture shall have no material adverse tax
consequence to the Issuer or any Financial Party; and
(C) that all conditions precedent herein provided for in
this Section 3.10 have been complied with, which shall include any
filing required by the Exchange Act.
(b) Except as otherwise expressly permitted by this CARAT Indenture
or the other CARAT Basic Documents, the Issuer shall not sell, convey, exchange,
transfer or otherwise dispose of any of its properties or assets, including
those included in the CARAT Trust Estate, to any Person, unless:
(i) the Person that acquires such properties or assets of the
Issuer (1) shall be a United States citizen or a Person organized and existing
under the laws of the United States of America or any State and (2) by an
indenture supplemental hereto, executed and delivered to the CARAT Indenture
Trustee, in form satisfactory to the CARAT Indenture Trustee:
(A) expressly assumes the due and punctual payment of
the principal of and interest on all CARAT 2005-SN1 Notes and the
performance or observance of every agreement and covenant of this
CARAT Indenture on the part of the Issuer to be performed or
observed, all as provided herein or therein;
(B) expressly agrees that all right, title and interest
so sold, conveyed, exchanged, transferred or otherwise disposed of
shall be subject and subordinate to the rights of the Secured
Parties;
(C) unless otherwise provided in such supplemental
indenture, expressly agrees to indemnify, defend and hold harmless
the Issuer against and from any loss, liability or expense arising
under or related to this CARAT Indenture and the CARAT 2005-SN1
Notes; and
(D) expressly agrees that such Person (or if a group of
Persons, then one specified Person) shall make all filings with the
Commission (and any
-21-
other appropriate Person) required by the Exchange Act in connection
with the CARAT 2005-SN1 Notes;
(ii) immediately after giving effect to such transaction, no
Default or Event of Default shall have occurred and be continuing;
(iii) the Rating Agency Condition shall have been satisfied
with respect to such transaction and such Person;
(iv) any action as is necessary to maintain the lien and
security interest created by this CARAT Indenture shall have been taken; and
(v) the Issuer shall have delivered to the CARAT Indenture
Trustee an Officer's Certificate and an Opinion of Counsel addressed to the
Issuer, each stating that:
(A) such sale, conveyance, exchange, transfer or
disposition and such supplemental indenture comply with this Section
3.10;
(B) such sale, conveyance, exchange, transfer or
disposition and such supplemental indenture have no material adverse
tax consequence to the Trust or to any Financial Parties; and
(C) that all conditions precedent herein provided for in
this Section 3.10 have been complied with, which shall include any
filing required by the Exchange Act.
SECTION 3.11 Successor or Transferee.
(a) Upon any consolidation or merger of the Issuer in accordance
with Section 3.10(a), the Person formed by or surviving such consolidation or
merger (if other than the Issuer) shall succeed to, and be substituted for, and
may exercise every right and power of, the Issuer under this CARAT Indenture and
the other CARAT Basic Documents with the same effect as if such Person had been
named as the Issuer herein.
(b) Upon a conveyance or transfer of substantially all the assets
and properties of the Issuer pursuant to Section 3.10(b), the Issuer shall be
released from every covenant and agreement of this CARAT Indenture and the other
CARAT Basic Documents to be observed or performed on the part of the Issuer with
respect to the CARAT 2005-SN1 Notes immediately upon the delivery of written
notice to the CARAT Indenture Trustee from the Person acquiring such assets and
properties stating that the Issuer is to be so released.
SECTION 3.12 No Other Business. The Issuer shall not engage in any
business or activity other than acquiring, holding and managing the Collateral
and the proceeds therefrom in the manner contemplated by the CARAT Basic
Documents, issuing the CARAT 2005-SN1 Notes and the CARAT 2005-SN1 Certificates,
making payments on the CARAT 2005-SN1 Notes and the CARAT 2005-SN1 Certificates
and such other activities that are necessary, suitable or convenient to
accomplish the foregoing or are incidental thereto, as set forth in Section 2.3
of the Trust Agreement.
-22-
SECTION 3.13 No Borrowing. The Issuer shall not issue, incur, assume,
guarantee or otherwise become liable, directly or indirectly, for any
indebtedness for money borrowed other than indebtedness for money borrowed in
respect of the CARAT 2005-SN1 Notes or otherwise in accordance with the CARAT
Basic Documents.
SECTION 3.14 Guarantees, Loans, Advances and Other Liabilities. Except as
contemplated by this CARAT Indenture or the other CARAT Basic Documents, the
Issuer shall not make any loan or advance of credit to, or guarantee (directly
or indirectly or by an instrument having the effect of assuring another's
payment or performance on any obligation or capability of so doing or
otherwise), endorse or otherwise become contingently liable, directly or
indirectly, in connection with the obligations, stocks or dividends of, or own,
purchase, repurchase or acquire (or agree contingently to do so) any stock,
obligations, assets or securities of, or any other interest in, or make any
capital contribution to, any other Person.
SECTION 3.15 Trust Administrator's Obligations. The Issuer shall use its
best efforts to cause the Trust Administrator to comply with its obligations
under Section 3.07 of the Pooling and Administration Agreement and Sections 4.01
and 4.02 of the Trust Sale and Administration Agreement.
SECTION 3.16 Capital Expenditures. The Issuer shall not make any
expenditure (whether by long-term or operating lease or otherwise) for capital
assets (either real, personal or intangible property) other than the purchase of
the COLT 2005-SN1 Secured Notes and other property and rights from the Seller
pursuant to the Trust Sale and Administration Agreement.
SECTION 3.17 Restricted Payments. Except for payments of principal or
interest on or redemption of the CARAT 2005-SN1 Notes, so long as any CARAT
2005-SN1 Notes are Outstanding, the Issuer shall not, directly or indirectly:
(a) pay any dividend or make any distribution (by reduction of
capital or otherwise), whether in cash, property, securities or a combination
thereof, to the CARAT Owner Trustee or any owner of a beneficial interest in the
Issuer or otherwise, in each case with respect to any ownership or equity
interest or similar security in or of the Issuer or to the Trust Administrator;
(b) redeem, purchase, retire or otherwise acquire for value any such
ownership or equity interest or similar security; or
(c) set aside or otherwise segregate any amounts for any such
purpose;
provided, however, that the Issuer may make, or cause to be made, distributions
to the Trust Administrator, the Seller, the CARAT Indenture Trustee, the CARAT
Owner Trustee, and the Financial Parties as permitted by, and to the extent
funds are available for such purpose under, the Trust Sale and Administration
Agreement, the Trust Agreement or the other CARAT Basic Documents. The Issuer
shall not, directly or indirectly, make payments to or distributions from the
CARAT Collection Account except in accordance with the CARAT Basic Documents.
SECTION 3.18 Notice of Events of Default. The Issuer agrees to give the
CARAT Indenture Trustee and the Rating Agencies prompt written notice of each
Event of Default
-23-
hereunder, each Trust Administrator Default, each default on the part of the
Seller or the Trust Administrator of its respective obligations under the Trust
Sale and Administration Agreement and each default on the part of GMAC or the
Trust Administrator of its respective obligations under the Pooling and
Administration Agreement.
SECTION 3.19 Further Instruments and Acts. Upon request of the CARAT
Indenture Trustee, the Issuer shall execute and deliver such further instruments
and do such further acts as may be reasonably necessary or proper to carry out
more effectively the purpose of this CARAT Indenture.
SECTION 3.20 CARAT Indenture Trustee's 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, as the case may be, the CARAT Indenture
Trustee shall assign, without recourse, representation or warranty, to the Trust
Administrator or the Warranty Purchaser, as the case may be, all the CARAT
Indenture Trustee's right, title and interest in and to such repurchased COLT
2005-SN1 Secured Note; the collateral therefor and the related rights assigned
thereunder; such assignment being an assignment outright and not for security;
and 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 obligation to the CARAT Indenture Trustee, the
CARAT 2005-SN1 Noteholders or the CARAT 2005-SN1 Certificateholders with respect
thereto. If in any enforcement suit or legal 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 shall, at the Trust
Administrator's expense, take such steps as the Trust Administrator requests in
writing and deems necessary to enforce the COLT 2005-SN1 Secured Note, including
bringing suit in the CARAT Indenture Trustee's name or the names of the CARAT
2005-SN1 Noteholders or, pursuant to Section 4.4, the CARAT 2005-SN1
Certificateholders.
SECTION 3.21 Representations and Warranties by the Issuer to the CARAT
Indenture Trustee. The Issuer hereby represents and warrants to the CARAT
Indenture Trustee as follows:
(a) Good Title. No COLT 2005-SN1 Secured Note has been sold,
transferred, assigned or pledged by the Issuer to any Person other than the
CARAT Indenture Trustee; immediately prior to the conveyance of the COLT
2005-SN1 Secured Notes pursuant to this CARAT Indenture, the Issuer had good and
marketable title thereto, free of any Lien; and, upon execution and delivery of
this CARAT Indenture by the Issuer, the CARAT Indenture Trustee shall have all
of the right, title and interest of the Issuer in, to and under the COLT
2005-SN1 Secured Notes, the unpaid indebtedness evidenced thereby and the
collateral security therefor, free of any Lien. The Issuer has caused COLT to
have the COLT 2005-SN1 Secured Notes registered in the name of the CARAT
Indenture Trustee.
(b) All Filings Made. All filings (including, without limitation,
UCC filings) necessary in any jurisdiction to give the CARAT Indenture Trustee a
first priority perfected security interest in the COLT 2005-SN1 Secured Notes
shall have been made.
-24-
ARTICLE IV
SATISFACTION AND DISCHARGE
SECTION 4.1 Satisfaction and Discharge of CARAT Indenture. This CARAT
Indenture shall cease to be of further effect with respect to the CARAT 2005-SN1
Notes except as to: (i) rights of registration of transfer and exchange; (ii)
substitution of mutilated, destroyed, lost or stolen CARAT 2005-SN1 Notes; (iii)
rights of CARAT 2005-SN1 Noteholders to receive payments of principal thereof
and interest thereon; (iv) Sections 3.3, 3.4, 3.5, 3.8, 3.10, 3.12, 3.13, 3.18
and 3.20; (v) the rights, obligations and immunities of the CARAT Indenture
Trustee hereunder (including the rights of the CARAT Indenture Trustee under
Section 6.7 and the obligations of the CARAT Indenture Trustee under Sections
4.2 and 4.4); and (vi) the rights of CARAT 2005-SN1 Noteholders as beneficiaries
hereof with respect to the property so deposited with the CARAT Indenture
Trustee payable to all or any of them, and the CARAT Indenture Trustee, on
demand of and at the expense of the Issuer, shall execute proper instruments
acknowledging satisfaction and discharge of this CARAT Indenture with respect to
the CARAT 2005-SN1 Notes, if:
(a) either:
(i) all CARAT 2005-SN1 Notes theretofore authenticated and
delivered (other than (A) CARAT 2005-SN1 Notes that have been destroyed, lost or
stolen and that have been replaced or paid as provided in Section 2.5 and (B)
CARAT 2005-SN1 Notes for whose payment money has theretofore been deposited in
trust or segregated and held in trust by the Issuer and thereafter repaid to the
Issuer or discharged from such trust, as provided in Section 3.3) have been
delivered to the CARAT Indenture Trustee for cancellation; or
(ii) all CARAT 2005-SN1 Notes not theretofore delivered to the
CARAT Indenture Trustee for cancellation:
(A) have become due and payable,
(B) will be due and payable on their respective Final
Scheduled Distribution Dates within one year, or
(C) are to be called for redemption within one year
under arrangements satisfactory to the CARAT Indenture Trustee for
the giving of notice of redemption by the CARAT Indenture Trustee in
the name, and at the expense, of the Issuer or such CARAT 2005-SN1
Notes have been redeemed in accordance with Section 10.1,
and the Issuer, in the case of clause (A), (B) or (C) of subsection 4.1(a)(ii)
above, has irrevocably deposited or caused to be irrevocably deposited with the
CARAT Indenture Trustee cash or direct obligations of or obligations guaranteed
by the United States of America (which will mature prior to the date such
amounts are payable), in trust for such purpose, in an amount sufficient to pay
and discharge the entire unpaid principal and accrued interest on such CARAT
2005-SN1 Notes not theretofore delivered to the CARAT Indenture Trustee for
cancellation when due on the Final Scheduled Distribution Date for such CARAT
2005-SN1 Notes or the
-25-
Redemption Date for such CARAT 2005-SN1 Notes (if such CARAT 2005-SN1 Notes have
been called for redemption pursuant to Section 10.1), as the case may be;
(b) the Issuer has paid or caused to be paid all other sums payable
hereunder or under any Third Party Instrument by the Issuer; and
(c) the Issuer has delivered to the CARAT Indenture Trustee an
Officer's Certificate of the Issuer, an Opinion of Counsel and (if required by
the TIA or the CARAT Indenture Trustee) an Independent Certificate from a firm
of certified public accountants, each meeting the applicable requirements of
Section 11.1(a) and each stating that all conditions precedent herein provided
for relating to the satisfaction and discharge of this CARAT Indenture have been
complied with.
SECTION 4.2 Application of Trust Money. All monies deposited with the
CARAT Indenture Trustee pursuant to Section 4.1 shall be held in trust and
applied by it, in accordance with the provisions of the CARAT 2005-SN1 Notes and
this CARAT Indenture, to the payment, either directly or through any Paying
Agent, as the CARAT Indenture Trustee may determine, to the Holders of the
particular CARAT 2005-SN1 Notes for the payment or redemption of which such
monies have been deposited with the CARAT Indenture Trustee, of all sums due and
to become due thereon for principal and interest and to payment to any other
Secured Party or any holder of any Third Party Instrument of all sums, if any,
due or to become due to any other Secured Party or any holder of any Third Party
Instrument under and in accordance with this CARAT Indenture; but such monies
need not be segregated from other funds except to the extent required herein, in
the Trust Sale and Administration Agreement, or as required by law.
SECTION 4.3 Repayment of Monies Held by Paying Agent. In connection with
the satisfaction and discharge of this CARAT Indenture with respect to the CARAT
2005-SN1 Notes, all monies then held by any Paying Agent other than the CARAT
Indenture Trustee under the provisions of this CARAT Indenture with respect to
such CARAT 2005-SN1 Notes shall, upon demand of the Issuer, be paid to the CARAT
Indenture Trustee to be held and applied according to Section 3.3 and thereupon
such Paying Agent shall be released from all further liability with respect to
such monies.
SECTION 4.4 Duration of Position of CARAT Indenture Trustee.
Notwithstanding the earlier payment in full of all principal and interest due to
the CARAT 2005-SN1 Noteholders under the terms of the CARAT 2005-SN1 Notes
pursuant to Section 3.1 and the cancellation of the CARAT 2005-SN1 Notes, the
CARAT Indenture Trustee shall continue to act in the capacity as CARAT Indenture
Trustee hereunder for the benefit of the CARAT 2005-SN1 Certificateholders, for
purposes of compliance with, and the CARAT Indenture Trustee shall comply with
its obligations under, Sections 5.01(a), 7.02 and 7.03 of the Trust Sale and
Administration Agreement, as appropriate, until such time as all payments in
respect of Certificate Balance and interest due to the CARAT 2005-SN1
Certificateholders have been paid in full and in such capacity, the CARAT
Indenture Trustee shall have the rights, benefits and immunities set forth in
Article VI hereof.
-26-
ARTICLE V
DEFAULT AND REMEDIES
SECTION 5.1 Events of Default. For the purposes of this CARAT Indenture,
"Event of Default" wherever used herein, means any one of the following events:
(a) failure to pay the full Noteholders' Interest Distributable
Amount on the Controlling Class on any Distribution Date, and such default shall
continue for a period of five days; or
(b) except as set forth in Section 5.1(c), failure to pay any
instalment of the principal of any CARAT 2005-SN1 Note as and when the same
becomes due and payable, and such default continues unremedied for a period of
30 days after there shall have been given, by registered or certified mail, to
the Seller (or the Trust Administrator, as applicable) by the CARAT Indenture
Trustee or to the Seller (or the Trust Administrator, as applicable) and the
CARAT Indenture Trustee by the Holders of not less than 25% of the Outstanding
Amount of the Controlling Class, a written notice specifying such default and
demanding that it be remedied and stating that such notice is a "Notice of
Default" hereunder; or
(c) failure to pay in full the outstanding principal balance of any
class of CARAT 2005-SN1 Notes by the Final Scheduled Distribution Date for such
class; or
(d) default in the observance or performance in any material respect
of any covenant or agreement of the Issuer made in this CARAT Indenture (other
than a covenant or agreement, a default in the observance or performance of
which is elsewhere specifically dealt with in this Section 5.1) which failure
materially and adversely affects the rights of the CARAT 2005-SN1 Noteholders,
and such default shall continue or not be cured, for a period of 30 days after
there shall have been given, by registered or certified mail, to the Seller (or
the Trust Administrator, as applicable) by the CARAT Indenture Trustee or to the
Seller (or the Trust Administrator, as applicable) and the CARAT Indenture
Trustee by the Holders of at least 25% of the Outstanding Amount of the
Controlling Class, a written notice specifying such default, demanding that it
be remedied and stating that such notice is a "Notice of Default" hereunder; or
(e) the filing of a decree or order for relief by a court having
jurisdiction in the premises in respect of the Issuer or any substantial part of
the CARAT Trust Estate in an involuntary case under any applicable federal or
state bankruptcy, insolvency or other similar law now or hereafter in effect, or
appointing a receiver, liquidator, assignee, custodian, trustee, sequestrator or
similar official of the Issuer or for any substantial part of the CARAT Trust
Estate, or ordering the winding-up or liquidation of the Issuer's affairs, and
such decree or order shall remain unstayed and in effect for a period of 90
consecutive days; or
(f) the commencement by the Issuer of a voluntary case under any
applicable federal or state bankruptcy, insolvency or other similar law now or
hereafter in effect, or the consent by the Issuer to the entry of an order for
relief in an involuntary case under any such law, or the consent by the Issuer
to the appointment or taking possession by a receiver, liquidator, assignee,
custodian, trustee, sequestrator or similar official of the Issuer or for any
substantial part of the CARAT Trust Estate, or the making by the Issuer of any
general assignment for the
-27-
benefit of creditors, or the failure by the Issuer generally to pay its debts as
such debts become due, or the taking of action by the Issuer in furtherance of
any of the foregoing.
The Issuer shall deliver to the CARAT Indenture Trustee within five Business
Days after learning of the occurrence thereof, written notice in the form of an
Officer's Certificate 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), its status and
what action the Issuer is taking or proposes to take with respect thereto.
SECTION 5.2 Acceleration of Maturity; Rescission and Annulment.
(a) If an Event of Default should occur and be continuing, then and
in every such case, unless the principal amount of the CARAT 2005-SN1 Notes
shall have already become due and payable, either the CARAT Indenture Trustee or
the Holders of CARAT 2005-SN1 Notes representing not less than a majority of the
Outstanding Amount of the Controlling Class may declare all the CARAT 2005-SN1
Notes to be immediately due and payable, by a notice in writing to the Issuer
(and to the CARAT Indenture Trustee if given by the CARAT 2005-SN1 Noteholders)
setting forth the Event or Events of Default, and upon any such declaration the
unpaid principal amount of such CARAT 2005-SN1 Notes, together with accrued and
unpaid interest thereon through the date of acceleration, shall become
immediately due and payable.
(b) At any time after such declaration of acceleration of maturity
of the CARAT 2005-SN1 Notes has been made and before a judgment or decree for
payment of the money due thereunder has been obtained by the CARAT Indenture
Trustee as hereinafter provided in this Article V, the Holders of CARAT 2005-SN1
Notes representing a majority of the Outstanding Amount of the Controlling
Class, by written notice to the Issuer and the CARAT Indenture Trustee, may
waive all Defaults set forth in the notice delivered pursuant to Section 5.2(a),
and rescind and annul such declaration and its consequences; provided, however,
that no such rescission and annulment shall extend to or affect any other
Default or impair any right consequent thereto; and provided, further, that if
the CARAT Indenture Trustee shall have proceeded to enforce any right under this
CARAT Indenture and such Proceedings shall have been discontinued or abandoned
because of such rescission and annulment or for any other reason, or such
Proceedings shall have been determined adversely to the CARAT Indenture Trustee,
then and in every such case, the CARAT Indenture Trustee, the Issuer and the
CARAT 2005-SN1 Noteholders, as the case may be, shall be restored respectively
to their former positions and rights hereunder, and all rights, remedies and
powers of the CARAT Indenture Trustee, the Issuer and the CARAT 2005-SN1
Noteholders, as the case may be, shall continue as though no such Proceedings
had been commenced.
SECTION 5.3 Collection of Indebtedness and Suits for Enforcement by CARAT
Indenture Trustee.
(a) The Issuer covenants that if an Event of Default occurs and such
Event of Default has not been waived pursuant to Section 5.12, the Issuer shall,
upon demand of the CARAT Indenture Trustee, pay to the CARAT Indenture Trustee,
for the ratable benefit of the CARAT 2005-SN1 Noteholders in accordance with
their respective outstanding principal
-28-
amounts, the whole amount then due and payable on such CARAT 2005-SN1 Notes for
principal and interest, with interest upon the overdue principal, at the rate
borne by the CARAT 2005-SN1 Notes and in addition thereto such further amount as
shall be sufficient to cover the costs and expenses of collection, including the
reasonable compensation, expenses, disbursements and advances of the CARAT
Indenture Trustee and its agents and counsel.
(b) If the Issuer shall fail forthwith to pay such amounts upon such
demand, the CARAT Indenture Trustee, in its own name and as trustee of an
express trust, may institute a Proceeding for the collection of the sums so due
and unpaid, and may prosecute such Proceeding to judgment or final decree, and
may enforce the same against the Issuer or other obligor upon such CARAT
2005-SN1 Notes and collect in the manner provided by law out of the property of
the Issuer or other obligor upon such CARAT 2005-SN1 Notes, wherever situated,
the monies adjudged or decreed to be payable.
(c) If an Event of Default occurs and is continuing, the CARAT
Indenture Trustee may, as more particularly provided in Section 5.4, in its
discretion, proceed to protect and enforce its rights and the rights of the
CARAT 2005-SN1 Noteholders, by such appropriate Proceedings as the CARAT
Indenture Trustee shall deem most effective to protect and enforce any such
rights, whether for the specific enforcement of any covenant or agreement in
this CARAT Indenture or in aid of the exercise of any power granted herein, or
to enforce any other proper remedy or legal or equitable right vested in the
CARAT Indenture Trustee by this CARAT Indenture or by applicable law.
(d) If there shall be pending, relative to the Issuer or any other
obligor upon the CARAT 2005-SN1 Notes or any Person having or claiming an
ownership interest in the CARAT Trust Estate, Proceedings under Title 11 of the
United States Code or any other applicable federal or state bankruptcy,
insolvency or other similar law, or if a receiver, assignee or trustee in
bankruptcy or reorganization, liquidator, sequestrator or similar official shall
have been appointed for or taken possession of the Issuer or its property or
such other obligor or Person, or in case of any other comparable judicial
Proceedings relative to the Issuer or other obligor upon the CARAT 2005-SN1
Notes, or to the creditors or property of the Issuer or such other obligor, the
CARAT Indenture Trustee, irrespective of whether the principal of any CARAT
2005-SN1 Notes shall then be due and payable as therein expressed or by
declaration or otherwise and irrespective of whether the CARAT Indenture Trustee
shall have made any demand pursuant to the provisions of this Section 5.3, shall
be entitled and empowered, by intervention in such Proceedings or otherwise:
(i) to file and prove a claim or claims for the whole amount
of principal and interest owing and unpaid in respect of the CARAT 2005-SN1
Notes and to file such other papers or documents as may be necessary or
advisable in order to have the claims of the CARAT Indenture Trustee (including
any claim for reasonable compensation to the CARAT Indenture Trustee and each
predecessor trustee, and their respective agents, attorneys and counsel, and for
reimbursement of all expenses and liabilities incurred, and all advances made,
by the CARAT Indenture Trustee and each predecessor trustee, except as a result
of negligence, fraud or bad faith) and of the CARAT 2005-SN1 Noteholders allowed
in such Proceedings;
-29-
(ii) unless prohibited by applicable law and regulations, to
vote on behalf of the Holders of CARAT 2005-SN1 Notes in any election of a
trustee, a standby trustee or Person performing similar functions in any such
Proceedings;
(iii) to collect and receive any monies or other property
payable or deliverable on any such claims and to distribute all amounts received
with respect to the claims of the CARAT 2005-SN1 Noteholders and of the CARAT
Indenture Trustee on their behalf; and
(iv) to file such proofs of claim and other papers or
documents as may be necessary or advisable in order to have the claims of the
CARAT Indenture Trustee or the Holders of CARAT 2005-SN1 Notes allowed in any
judicial proceedings relative to the Issuer, its creditors and its property;
and any trustee, receiver, liquidator, custodian or other similar official in
any such Proceeding is hereby authorized by each of such CARAT 2005-SN1
Noteholders to make payments to the CARAT Indenture Trustee for application in
accordance with the priorities set forth in the CARAT Basic Documents, and, if
the CARAT Indenture Trustee shall consent to the making of payments directly to
such CARAT 2005-SN1 Noteholders, to pay to the CARAT Indenture Trustee such
amounts as shall be sufficient to cover reasonable compensation to the CARAT
Indenture Trustee, each predecessor trustee and their respective agents,
attorneys and counsel, and all other expenses and liabilities incurred, and all
advances made, by the CARAT Indenture Trustee and each predecessor trustee
except as a result of negligence, fraud or bad faith.
(e) Nothing herein contained shall be deemed to authorize the CARAT
Indenture Trustee to authorize or consent to or vote for or accept or adopt on
behalf of any CARAT 2005-SN1 Noteholder any plan of reorganization, arrangement,
adjustment or composition affecting the CARAT 2005-SN1 Notes or the rights of
any Holder thereof or to authorize the CARAT Indenture Trustee to vote in
respect of the claim of any CARAT 2005-SN1 Noteholder in any such proceeding
except, as aforesaid, to vote for the election of a trustee in bankruptcy or
similar Person.
(f) All rights of action and of asserting claims under this CARAT
Indenture, or under any of the CARAT 2005-SN1 Notes, may be enforced by the
CARAT Indenture Trustee without the possession of any of the CARAT 2005-SN1
Notes or the production thereof in any trial or other Proceedings relative
thereto, and any such Proceedings instituted by the CARAT Indenture Trustee
shall be brought in its own name as trustee of an express trust, and any
recovery of judgment, subject to the payment of the expenses, disbursements and
compensation of the CARAT Indenture Trustee, each predecessor Trustee and their
respective agents and attorneys, shall be for the benefit of the Secured Parties
in accordance with the priorities set forth in the CARAT Basic Documents.
(g) In any Proceedings brought by the CARAT Indenture Trustee (and
also any Proceedings involving the interpretation of any provision of this CARAT
Indenture to which the CARAT Indenture Trustee shall be a party), the CARAT
Indenture Trustee shall be held to represent all the CARAT 2005-SN1 Noteholders,
and it shall not be necessary to make any CARAT 2005-SN1 Noteholder a party to
any such Proceedings.
-30-
SECTION 5.4 Remedies; Priorities. (a) If an Event of Default shall have
occurred and be continuing and the CARAT 2005-SN1 Notes have been accelerated
under Section 5.2(a), the CARAT Indenture Trustee may do one or more of the
following (subject to Section 5.3 and Section 5.5):
(i) institute Proceedings in its own name and as trustee of an
express trust for the collection of all amounts then due and payable on the
CARAT 2005-SN1 Notes or under this CARAT Indenture with respect thereto, whether
by declaration of acceleration or otherwise, enforce any judgment obtained, and
collect from the Issuer and any other obligor upon such CARAT 2005-SN1 Notes
monies adjudged due;
(ii) institute Proceedings from time to time for the complete
or partial foreclosure of this CARAT Indenture with respect to the CARAT Trust
Estate;
(iii) exercise any remedies of a secured party under the UCC
and take any other appropriate action to protect and enforce the rights and
remedies of the CARAT Indenture Trustee and the CARAT 2005-SN1 Noteholders; and
(iv) sell the CARAT Trust Estate or any portion thereof or
rights or interest therein, at one or more public or private sales called and
conducted in any manner permitted by law or elect to have the Issuer maintain
possession of the CARAT Trust Estate and continue to apply payments on the COLT
2005-SN1 Secured Notes as if there had been no declaration of acceleration;
provided, however, that the CARAT Indenture Trustee may not sell or otherwise
liquidate the CARAT Trust Estate following an Event of Default and acceleration
of the CARAT 2005-SN1 Notes, unless (i) (A) the Holders of all of the aggregate
Outstanding Amount of the CARAT 2005-SN1 Notes consent thereto or (B) the
proceeds of such sale or liquidation distributable to the CARAT 2005-SN1
Noteholders are sufficient to discharge in full the principal of and the accrued
interest on the CARAT 2005-SN1 Notes, each at the date of such sale or
liquidation or (C) (x) there has been an Event of Default under Section 5.1(a),
(b) or (c) or otherwise arising from a failure to make a required payment of
principal on any CARAT 2005-SN1 Notes, (y) the CARAT Indenture Trustee
determines that the CARAT Trust Estate will not continue to provide sufficient
funds for the payment of principal of and interest on the CARAT 2005-SN1 Notes
as and when they would have become due if the CARAT 2005-SN1 Notes had not been
declared due and payable, and (z) the CARAT Indenture Trustee obtains the
consent of the Holders of a majority of the aggregate Outstanding Amount of the
Controlling Class and (ii) ten days' prior written notice of sale or liquidation
has been given to the Rating Agencies. In determining such sufficiency or
insufficiency with respect to clauses (B) and (C), the CARAT Indenture Trustee
may, but need not, obtain and rely upon an opinion of an Independent investment
banking or accounting firm of national reputation as to the feasibility of such
proposed action and as to the sufficiency of the CARAT Trust Estate for such
purpose.
(b) If the CARAT Indenture Trustee collects any money or property
pursuant to this Article V, it shall pay out the money or property in the
following order:
FIRST: to the CARAT Indenture Trustee for amounts due under
Section 6.7 and then to the CARAT Owner Trustee for amounts due to
the CARAT Owner Trustee (not including amounts
-31-
due for payments to the CARAT 2005-SN1 Certificateholders) under the
Trust Agreement or the Trust Sale and Administration Agreement; and
SECOND: to the CARAT Collection Account, for distribution
pursuant to Sections 8.01(b) and (e) of the Trust Sale and
Administration Agreement.
SECTION 5.5 Optional Preservation of the CARAT Trust Estate. If the CARAT
2005-SN1 Notes have been declared to be due and payable under Section 5.2
following an Event of Default and such declaration and its consequences have not
been rescinded and annulled in accordance with Section 5.2(b), the CARAT
Indenture Trustee may, but need not elect to, take and maintain possession of
the CARAT Trust Estate. It is the desire of the parties hereto and the Secured
Parties that there be at all times sufficient funds for the payment of the
Secured Obligations to the Secured Parties and the CARAT Indenture Trustee shall
take such desire into account when determining whether or not to take and
maintain possession of the CARAT Trust Estate. In determining whether to take
and maintain possession of the CARAT Trust Estate, the CARAT Indenture Trustee
may, but need not, obtain and rely upon an opinion of an Independent investment
banking or accounting firm of national reputation as to the feasibility of such
proposed action and as to the sufficiency of the CARAT Trust Estate for such
purpose.
SECTION 5.6 Limitation of Suits. No Holder of any CARAT 2005-SN1 Note
shall have any right to institute any Proceeding, judicial or otherwise, with
respect to this CARAT Indenture, or for the appointment of a receiver or
trustee, or for any other remedy hereunder, unless:
(a) such Holder has previously given written notice to the CARAT
Indenture Trustee of a continuing Event of Default;
(b) the Holders of not less than 25% of the Outstanding Amount of
the Controlling Class have made written request to the CARAT Indenture Trustee
to institute such Proceeding in respect of such Event of Default in its own name
as CARAT Indenture Trustee hereunder;
(c) such Holder or Holders have offered to the CARAT Indenture
Trustee reasonable indemnity against the costs, expenses and liabilities to be
incurred in complying with such request;
(d) the CARAT Indenture Trustee for 60 days after its receipt of
such notice under Section 5.6 of the COLT Indenture, request and offer of
indemnity has failed to institute such Proceedings; and
(e) no direction inconsistent with such written request has been
given to the CARAT Indenture Trustee during such 60-day period by the Holders of
a majority of the Outstanding Amount of the Controlling Class;
it being understood and intended that no one or more Holders of CARAT 2005-SN1
Notes shall have any right in any manner whatever by virtue of, or by availing
of, any provision of this
-32-
CARAT Indenture to affect, disturb or prejudice the rights of any other Holders
of CARAT 2005-SN1 Notes or to obtain or to seek to obtain priority or preference
over any other Holders of CARAT 2005-SN1 Notes or to enforce any right under
this CARAT Indenture, except in the manner herein provided and for the equal,
ratable (on the basis of the respective aggregate amount of principal and
interest, respectively, due and unpaid on the CARAT 2005-SN1 Notes held by each
CARAT 2005-SN1 Noteholder) and common benefit of all holders of CARAT 2005-SN1
Notes. For the protection and enforcement of the provisions of this Section 5.6,
each and every CARAT 2005-SN1 Noteholder shall be entitled to such relief as can
be given either at law or in equity.
If the CARAT Indenture Trustee shall receive conflicting or
inconsistent requests and indemnity from two or more groups of Holders of CARAT
2005-SN1 Notes, each representing less than a majority of the Outstanding Amount
of the Controlling Class, the CARAT Indenture Trustee shall take the action
requested by the group representing the higher percentage of the Outstanding
Amount of the Controlling Class, notwithstanding any other provisions of this
CARAT Indenture.
SECTION 5.7 Unconditional Rights of CARAT 2005-SN1 Noteholders To Receive
Principal and Interest. Notwithstanding any other provisions in this CARAT
Indenture, the Holder of any CARAT 2005-SN1 Note shall have the right, which is
absolute and unconditional, to receive payment of the principal of and interest,
on such CARAT 2005-SN1 Note on or after the respective due dates thereof
expressed in such CARAT 2005-SN1 Note or in this CARAT Indenture (or, in the
case of redemption, if applicable, on or after the Redemption Date) and to
institute suit for the enforcement of any such payment, and such right shall not
be impaired without the consent of such Holder.
SECTION 5.8 Restoration of Rights and Remedies. If the CARAT Indenture
Trustee or any CARAT 2005-SN1 Noteholder has instituted any Proceeding to
enforce any right or remedy under this CARAT Indenture and such Proceeding has
been discontinued or abandoned for any reason or has been determined adversely
to the CARAT Indenture Trustee or to such CARAT 2005-SN1 Noteholder, then and in
every such case the Issuer, the CARAT Indenture Trustee and the CARAT 2005-SN1
Noteholders shall, subject to any determination in such Proceeding, be restored
severally to their respective former positions hereunder, and thereafter all
rights and remedies of the CARAT Indenture Trustee and the CARAT 2005-SN1
Noteholders shall continue as though no such Proceeding had been instituted.
SECTION 5.9 Rights and Remedies Cumulative. No right or remedy herein
conferred upon or reserved to the CARAT Indenture Trustee or to the CARAT
2005-SN1 Noteholders is intended to be exclusive of any other right or remedy,
and every right and remedy shall, to the extent permitted by law, be cumulative
and in addition to every other right and remedy given hereunder or now or
hereafter existing at law or in equity or otherwise. The assertion or employment
of any right or remedy hereunder, or otherwise, shall not prevent the concurrent
assertion or employment of any other appropriate right or remedy.
SECTION 5.10 Delay or Omission Not a Waiver. No delay or omission of the
CARAT Indenture Trustee or any Holder of any CARAT 2005-SN1 Note to exercise any
right or remedy accruing upon any Default or Event of Default shall impair any
such right or remedy or
-33-
constitute a waiver of any such Default or Event of Default or an acquiescence
therein. Every right and remedy given by this Article V or by law to the CARAT
Indenture Trustee or to the CARAT 2005-SN1 Noteholders may be exercised from
time to time, and as often as may be deemed expedient, by the CARAT Indenture
Trustee or by the CARAT 2005-SN1 Noteholders, as the case may be.
SECTION 5.11 Control by CARAT 2005-SN1 Noteholders. The Holders of a
majority of the Outstanding Amount of the Controlling Class shall, subject to
provision being made for indemnification against costs, expenses and liabilities
in a form satisfactory to the CARAT Indenture Trustee, have the right to direct
the time, method and place of conducting any Proceeding for any remedy available
to the CARAT Indenture Trustee with respect to the CARAT 2005-SN1 Notes or
exercising any trust or power conferred on the CARAT Indenture Trustee;
provided, however, that:
(a) such direction shall not be in conflict with any rule of law or
with this CARAT Indenture;
(b) subject to the express terms of Section 5.4, any direction to
the CARAT Indenture Trustee to sell or liquidate the CARAT Trust Estate shall be
by the Holders of CARAT 2005-SN1 Notes representing not less than 100% of the
Outstanding Amount of the CARAT 2005-SN1 Notes;
(c) if the conditions set forth in Section 5.5 have been satisfied
and the CARAT Indenture Trustee elects to retain the CARAT Trust Estate pursuant
to Section 5.5, then any direction to the CARAT Indenture Trustee by Holders of
CARAT 2005-SN1 Notes representing less than 100% of the Outstanding Amount of
the CARAT 2005-SN1 Notes to sell or liquidate the CARAT Trust Estate shall be of
no force and effect; and
(d) the Indenture Trustee may take any other action deemed proper by
the Indenture Trustee that is not inconsistent with such direction; provided,
however, that, subject to Section 6.1, the CARAT Indenture Trustee need not take
any action that it determines might cause it to incur any liability or might
materially adversely affect the rights of any Noteholders not consenting to such
action.
SECTION 5.12 Waiver of Past Defaults.
(a) Prior to the declaration of the acceleration of the maturity of
the CARAT 2005-SN1 Notes as provided in Section 5.2, the Holders of not less
than a majority of the Outstanding Amount of the Controlling Class may waive any
past Default or Event of Default and its consequences except a Default (i) in
the payment of principal of or interest on any of the CARAT 2005-SN1 Notes or
(ii) in respect of a covenant or provision hereof which cannot be modified or
amended without the consent of the Holder of each CARAT 2005-SN1 Note. In the
case of any such waiver, the Issuer, the CARAT Indenture Trustee and the CARAT
2005-SN1 Noteholders shall be restored to their respective former positions and
rights hereunder; but no such waiver shall extend to any subsequent or other
Default or impair any right consequent thereto.
-34-
(b) Upon any such waiver, such Default shall cease to exist and be
deemed to have been cured and not to have occurred, and any Event of Default
arising therefrom shall be deemed to have been cured and not to have occurred,
for every purpose of this CARAT Indenture; but no such waiver shall extend to
any subsequent or other Default or Event of Default or impair any right
consequent thereto.
SECTION 5.13 Undertaking for Costs. All parties to this CARAT Indenture
agree, and each Holder of any CARAT 2005-SN1 Note by such Holder's acceptance
thereof shall be deemed to have agreed, that any court may in its discretion
require, in any Proceeding for the enforcement of any right or remedy under this
CARAT Indenture, or in any Proceeding against the CARAT Indenture Trustee for
any action taken, suffered or omitted by it as Indenture Trustee, the filing by
any party litigant in such Proceeding of an undertaking to pay the costs of such
Proceeding, and that such court may in its discretion assess reasonable costs,
including reasonable attorneys' fees, against any party litigant in such
Proceeding, having due regard to the merits and good faith of the claims or
defenses made by such party litigant; but the provisions of this Section 5.13
shall not apply to:
(a) any Proceeding instituted by the CARAT Indenture Trustee;
(b) any Proceeding instituted by the any CARAT 2005-SN1 Noteholder,
or group of CARAT 2005-SN1 Noteholders, in each case holding in the aggregate
more than 10% of the Outstanding Amount of the Controlling Class; or
(c) any Proceeding instituted by any CARAT 2005-SN1 Noteholder for
the enforcement of the payment of principal of or interest on any CARAT 2005-SN1
Note on or after the respective due dates expressed in such CARAT 2005-SN1 Note
and in this CARAT Indenture (or, in the case of redemption, on or after the
Redemption Date).
SECTION 5.14 Waiver of Stay or Extension Laws. The Issuer covenants (to
the extent that it may lawfully do so) that it shall not at any time insist
upon, or plead or in any manner whatsoever, claim or take the benefit or
advantage of, any stay or extension law wherever enacted, now or at any time
hereafter in force, that may affect the covenants or the performance of this
CARAT Indenture. The Issuer (to the extent that it may lawfully do so) hereby
expressly waives all benefit or advantage of any such law, and covenants that it
shall not hinder, delay or impede the execution of any power herein granted to
the CARAT Indenture Trustee, but shall suffer and permit the execution of every
such power as though no such law had been enacted.
SECTION 5.15 Action on CARAT 2005-SN1 Notes. The CARAT Indenture Trustee's
right to seek and recover judgment on the CARAT 2005-SN1 Notes or under this
CARAT Indenture shall not be affected by the seeking, obtaining or application
of any other relief under or with respect to this CARAT Indenture. Neither the
lien of this CARAT Indenture nor any rights or remedies of the CARAT Indenture
Trustee or the CARAT 2005-SN1 Noteholders shall be impaired by the recovery of
any judgment by the CARAT Indenture Trustee against the Issuer or by the levy of
any execution under such judgment upon any portion of the CARAT Trust Estate or
upon any of the assets of the Issuer. Any money or property collected by the
CARAT Indenture Trustee shall be applied in accordance with Section 5.4(b).
-35-
SECTION 5.16 Performance and Enforcement of Certain Obligations.
(a) Promptly following a request from the CARAT Indenture Trustee to
do so and at the Trust Administrator's expense, the Issuer agrees to take all
such lawful action as the CARAT Indenture Trustee may request to compel or
secure the performance and observance by the Seller and the Trust Administrator
of their respective obligations to the Issuer under or in connection with the
Trust Sale and Administration Agreement and the Pooling and Administration
Agreement or by GMAC of its obligations under or in connection with the Pooling
and Administration Agreement in accordance with the terms thereof or by any
obligor under a Third Party Instrument of its obligations under or in accordance
with a Third Party Instrument in accordance with the terms thereof, and to
exercise any and all rights, remedies, powers and privileges lawfully available
to the Issuer under or in connection with the Trust Sale and Administration
Agreement, the Pooling and Administration Agreement and any Third Party
Instrument to the extent and in the manner directed by the CARAT Indenture
Trustee, including the transmission of notices of default on the part of the
Seller, the Trust Administrator, or any obligor under a Third Party Instrument
thereunder and the institution of legal or administrative actions or proceedings
to compel or secure performance by the Seller or the Trust Administrator or any
obligor under a Third Party Instrument of their respective obligations under the
Trust Sale and Administration Agreement, the Pooling and Administration
Agreement, and any Third Party Instrument.
(b) If an Event of Default has occurred and is continuing, the CARAT
Indenture Trustee may, and, at the direction (which direction shall be in
writing or by telephone (confirmed in writing promptly thereafter)) of the
Holders of 66-2/3% of the Outstanding Amount of the Controlling Class shall,
exercise all rights, remedies, powers, privileges and claims of the Issuer
against the Seller, the Trust Administrator or any obligor under a Third Party
Instrument under or in connection with the Trust Sale and Administration
Agreement, the Pooling and Administration Agreement or a Third Party Instrument,
including the right or power to take any action to compel or secure performance
or observance by the Seller or the Trust Administrator of each of their
obligations to the Issuer thereunder and to give any consent, request, notice,
direction, approval, extension or waiver under the Trust Sale and Administration
Agreement, and any right of the Issuer to take such action shall be suspended.
(c) If an Event of Default has occurred and is continuing, the CARAT
Indenture Trustee may, and, at the direction (which direction shall be in
writing or by telephone (confirmed in writing promptly thereafter)) of the
Holders of 66-2/3% of the Outstanding Amount of the CARAT 2005-SN1 Notes shall,
exercise all rights, remedies, powers, privileges and claims of the Seller
against GMAC under or in connection with the Pooling and Administration
Agreement, including the right or power to take any action to compel or secure
performance or observance by GMAC of each of its obligations to the Seller
thereunder and to give any consent, request, notice, direction, approval,
extension or waiver under the Pooling and Administration Agreement, and any
right of the Seller to take such action shall be suspended.
-36-
ARTICLE VI
THE CARAT INDENTURE TRUSTEE
SECTION 6.1 Duties of CARAT Indenture Trustee.
(a) If an Event of Default has occurred and is continuing, the CARAT
Indenture Trustee shall exercise the rights and powers vested in it by this
CARAT Indenture and use the same degree of care and skill in its exercise as a
prudent person would exercise or use under the circumstances in the conduct of
such person's own affairs.
(b) (i) Except during the continuance of an Event of Default, the
CARAT Indenture Trustee undertakes to perform such duties and only such duties
as are specifically set forth in this CARAT Indenture and the Trust Sale and
Administration Agreement and no implied covenants or obligations shall be read
into this CARAT Indenture, the Trust Sale and Administration Agreement or any
other Basic Document against the CARAT Indenture Trustee.
(ii) In the absence of bad faith on its part, the CARAT
Indenture Trustee may conclusively rely, as to the truth of the statements and
the correctness of the opinions expressed therein, upon certificates or opinions
furnished to the CARAT Indenture Trustee and conforming to the requirements of
this CARAT Indenture; provided, however, that the CARAT Indenture Trustee shall
examine the certificates and opinions to determine whether or not they conform
to the requirements of this CARAT Indenture.
(c) The CARAT Indenture Trustee may not be relieved from liability
for its own negligent action, its own negligent failure to act or its own
willful misconduct, except that:
(i) this Section 6.1(c) does not limit the effect of Section
6.1(b);
(ii) the CARAT Indenture Trustee shall not be liable for any
error of judgment made in good faith by a Responsible Officer unless it is
proved that the CARAT Indenture Trustee was negligent in ascertaining the
pertinent facts; and
(iii) the CARAT Indenture Trustee shall not be liable with
respect to any action it takes or omits to take in good faith in accordance with
a direction received by it pursuant to any provision of this CARAT Indenture or
any other CARAT Basic Document.
(d) The CARAT Indenture Trustee shall not be liable for interest on
any money received by it except as the CARAT Indenture Trustee may agree in
writing with the Issuer.
(e) Money held in trust by the CARAT Indenture Trustee need not be
segregated from other funds except to the extent required by law or the terms of
this CARAT Indenture or the Trust Sale and Administration Agreement or the Trust
Agreement.
(f) No provision of this CARAT Indenture or any other CARAT Basic
Document shall require the CARAT Indenture Trustee to expend or risk its own
funds or otherwise incur financial liability in the performance of any of its
duties hereunder or in the exercise of any of its rights or powers, if it shall
have reasonable grounds to believe that
-37-
repayments of such funds or adequate indemnity against such risk or liability is
not reasonably assured to it.
(g) Every provision of this CARAT Indenture and each other CARAT
Basic Document relating to the CARAT Indenture Trustee shall be subject to the
provisions of this Section 6.1 and the provisions of the TIA.
(h) The CARAT Indenture Trustee shall have no liability or
responsibility for the acts or omissions of any other party to any of the CARAT
Basic Documents.
(i) In no event shall the CARAT Indenture Trustee be liable for any
damages in the nature of special, indirect or consequential damages, however
styled, including lost profits, even if the CARAT Indenture Trustee has been
advised of the likelihood of such loss or damage.
SECTION 6.2 Rights of CARAT Indenture Trustee.
(a) The CARAT Indenture Trustee may rely on any document believed by
it to be genuine and to have been signed or presented by the proper Person. The
CARAT Indenture Trustee need not investigate any fact or matter stated in the
document.
(b) Before the CARAT Indenture Trustee acts or refrains from acting,
it may require an Officer's Certificate or an Opinion of Counsel. The CARAT
Indenture Trustee shall not be liable for any action it takes or omits to take
in good faith in reliance on the Officer's Certificate or Opinion of Counsel.
(c) The CARAT Indenture Trustee may execute any of the trusts or
powers hereunder or perform any duties hereunder either directly or by or
through agents or attorneys or a custodian or nominee, and the CARAT Indenture
Trustee shall not be responsible for any misconduct or negligence on the part
of, or for the supervision of, any such agent, attorney, custodian or nominee
appointed with due care by it hereunder.
(d) The CARAT Indenture Trustee shall not be liable for any action
it takes or omits to take in good faith which it believes to be authorized or
within its rights or powers; provided, however, that the CARAT Indenture
Trustee's conduct does not constitute willful misconduct, negligence or bad
faith.
(e) The CARAT Indenture Trustee may consult with counsel, and the
advice or opinion of counsel with respect to legal matters relating to this
CARAT Indenture and the CARAT 2005-SN1 Notes shall be full and complete
authorization and protection from liability in respect to any action taken,
omitted or suffered by it hereunder in good faith and in accordance with the
advice or opinion of such counsel.
(f) The CARAT Indenture Trustee shall be under no obligation to
exercise any of the rights or powers vested in it by this CARAT Indenture at the
request or direction of any of the Holders pursuant to this CARAT Indenture,
unless such Holders shall have offered to the CARAT Indenture Trustee security
or indemnity satisfactory to the CARAT Indenture Trustee against the costs,
expenses and liabilities which might be incurred by it in compliance with such
request or direction.
-38-
(g) The CARAT Indenture Trustee shall not be bound to make any
investigation into the facts or matters stated in any resolution, certificate,
statement, instrument, opinion, report, notice, request direction, consent,
order, bond, debenture, note, other evidence of indebtedness or other paper or
document, but the CARAT Indenture Trustee, in its direction, may make such
further inquiry or investigation into such facts or matters as it may see fit.
(h) The CARAT Indenture Trustee shall not be deemed to have notice
of any Default, Event of Default or Trust Administrator Default unless a
Responsible Officer of the CARAT Indenture Trustee has actual knowledge thereof
or unless written notice of any event which is in fact such a default is
received by the CARAT Indenture Trustee at the Corporate Trust Office of the
CARAT Indenture Trustee, and such notice references the Securities and this
CARAT Indenture.
(i) The rights, privileges, protections, immunities and benefits
given to the CARAT Indenture Trustee, including, without limitation, its right
to be indemnified, are extended to, and shall be enforceable by, the CARAT
Indenture Trustee in each of its capacities hereunder, including its capacity
under Section 4.4 hereof, and in connection with the performance of any of its
duties or obligations under any of the CARAT Basic Documents.
SECTION 6.3 CARAT Indenture Trustee May Own CARAT 2005-SN1 Notes. The
CARAT Indenture Trustee in its individual or any other capacity may become the
owner or pledgee of CARAT 2005-SN1 Notes and may otherwise deal with the Issuer,
the Trust Administrator or any of their respective Affiliates with the same
rights it would have if it were not CARAT Indenture Trustee; provided, however,
that the CARAT Indenture Trustee shall comply with Sections 6.10 and 6.11. Any
Paying Agent, Note Registrar, co-registrar or co-paying agent may do the same
with like rights.
SECTION 6.4 CARAT Indenture Trustee's Disclaimer. The CARAT Indenture
Trustee shall not be responsible for and makes no representation as to the
validity or adequacy of any CARAT Basic Document, including this CARAT Indenture
or the CARAT 2005-SN1 Notes, it shall not be accountable for the Issuer's use of
the proceeds from the CARAT 2005-SN1 Notes, and it shall not be responsible for
any statement of the Issuer in the CARAT Indenture or in any document issued in
connection with the sale of the CARAT 2005-SN1 Notes or in the CARAT 2005-SN1
Notes other than the CARAT Indenture Trustee's certificate of authentication.
SECTION 6.5 Notice of Default. If a Default occurs and is continuing and
if it is known to a Responsible Officer of the CARAT Indenture Trustee, the
CARAT Indenture Trustee shall mail to each CARAT 2005-SN1 Noteholder notice of
the Default within 90 days after it occurs. Except in the case of a Default in
payment of principal or of interest on any CARAT 2005-SN1 Note, the CARAT
Indenture Trustee may withhold the notice if and so long as it in good faith
determines that withholding the notice is in the interests of the CARAT 2005-SN1
Noteholders.
SECTION 6.6 Reports by CARAT Indenture Trustee to Holders. The CARAT
Indenture Trustee shall deliver to each CARAT 2005-SN1 Noteholder the
information and documents set forth in Article VII, and, in addition, all such
information with respect to the
-39-
CARAT 2005-SN1 Notes as may be required to enable such Holder to prepare its
federal and state income tax returns.
SECTION 6.7 Compensation; Indemnity.
(a) The Issuer shall cause the Trust Administrator pursuant to
Section 3.05 of the Pooling and Administration Agreement to pay to the CARAT
Indenture Trustee from time to time reasonable compensation for its services.
The CARAT Indenture Trustee's compensation shall not be limited by any law on
compensation of a trustee of an express trust. The Issuer shall cause the Trust
Administrator pursuant to Section 3.05 of the Pooling and Administration
Agreement to reimburse the CARAT Indenture Trustee for all reasonable
out-of-pocket expenses incurred or made by it, including costs of collection, in
addition to the compensation for its services. Such expenses shall include the
reasonable compensation and expenses, disbursements and advances of the CARAT
Indenture Trustee's agents, external counsel, accountants and experts. The
Issuer shall cause the Trust Administrator to indemnify the CARAT Indenture
Trustee in accordance with Section 6.01 of the Trust Sale and Administration
Agreement.
(b) The Issuer's obligations to the CARAT Indenture Trustee pursuant
to this Section 6.7 shall survive the discharge of this CARAT Indenture. When
the CARAT Indenture Trustee incurs expenses after the occurrence of a Default
specified in Section 5.1(e) or (f) with respect to the Issuer, the expenses are
intended to constitute expenses of administration under Title 11 of the United
States Code or any other applicable federal or state bankruptcy, insolvency or
similar law.
SECTION 6.8 Replacement of CARAT Indenture Trustee.
(a) The CARAT Indenture Trustee may at any time give notice of its
intent to resign by so notifying the Issuer; provided, however, that no such
resignation shall become effective and the CARAT Indenture Trustee shall not
resign prior to the time set forth in Section 6.8(c). The Holders of a majority
in Outstanding Amount of the Controlling Class may remove the CARAT Indenture
Trustee by so notifying the CARAT Indenture Trustee and may appoint a successor
CARAT Indenture Trustee. Such resignation or removal shall become effective in
accordance with Section 6.8(c). The Issuer shall remove the CARAT Indenture
Trustee if:
(i) the CARAT Indenture Trustee fails to comply with Section
6.11;
(ii) the CARAT Indenture Trustee is adjudged bankrupt or
insolvent;
(iii) a receiver or other public officer takes charge of the
CARAT Indenture Trustee or its property; or
(iv) the CARAT Indenture Trustee otherwise becomes incapable
of acting.
(b) If the CARAT Indenture Trustee gives notice of its intent to
resign or is removed or if a vacancy exists in the office of the CARAT Indenture
Trustee for any reason (the CARAT Indenture Trustee in such event being referred
to herein as the retiring CARAT
-40-
Indenture Trustee), the Issuer shall promptly appoint and designate a successor
CARAT Indenture Trustee.
(c) A successor CARAT Indenture Trustee shall deliver a written
acceptance of its appointment and designation to the retiring CARAT Indenture
Trustee and to the Issuer. Thereupon the resignation or removal of the retiring
CARAT Indenture Trustee shall become effective, and the successor CARAT
Indenture Trustee shall have all the rights, powers and duties of the CARAT
Indenture Trustee under this CARAT Indenture. The successor CARAT Indenture
Trustee shall mail a notice of its succession to CARAT 2005-SN1 Noteholders. The
retiring CARAT Indenture Trustee shall promptly transfer all property held by it
as CARAT Indenture Trustee to the successor CARAT Indenture Trustee.
(d) If a successor CARAT Indenture Trustee does not take office
within 60 days after the CARAT Indenture Trustee gives notice of its intent to
resign or is removed, the retiring Trustee, the Issuer or the Holders of a
majority of the Outstanding Amount of the Controlling Class may petition any
court of competent jurisdiction for the appointment and designation of a
successor CARAT Indenture Trustee.
(e) If the CARAT Indenture Trustee fails to comply with Section
6.11, any CARAT 2005-SN1 Noteholder may petition any court of competent
jurisdiction for the removal of the CARAT Indenture Trustee and the appointment
of a successor CARAT Indenture Trustee.
(f) Notwithstanding the replacement of the CARAT Indenture Trustee
pursuant to this Section 6.8, the Issuer's obligations under Section 6.7 and the
Trust Administrator's corresponding obligations under the Trust Sale and
Administration Agreement and the Pooling and Administration Agreement shall
continue for the benefit of the retiring CARAT Indenture Trustee.
SECTION 6.9 Merger or Consolidation of CARAT Indenture Trustee.
(a) Any corporation into which the CARAT Indenture Trustee may be
merged or with which it may be consolidated, or any corporation resulting from
any merger or consolidation to which the CARAT Indenture Trustee shall be a
party, or any corporation succeeding to the corporate trust business of the
CARAT Indenture Trustee, shall be the successor of the CARAT Indenture Trustee
under this CARAT Indenture; provided, however, that such corporation shall be
eligible under the provisions of Section 6.11, without the execution or filing
of any instrument or any further act on the part of any of the parties to this
CARAT Indenture, anything in this CARAT Indenture to the contrary
notwithstanding.
(b) If at the time such successor or successors by merger or
consolidation to the CARAT Indenture Trustee shall succeed to the trusts created
by this CARAT Indenture, any of the CARAT 2005-SN1 Notes shall have been
authenticated but not delivered, any such successor to the CARAT Indenture
Trustee may adopt the certificate of authentication of any predecessor trustee,
and deliver such CARAT 2005-SN1 Notes so authenticated, and in case at that time
any of the CARAT 2005-SN1 Notes shall not have been authenticated, any successor
to the CARAT Indenture Trustee may authenticate such CARAT 2005-SN1 Notes either
in the name of any predecessor hereunder or in the name of the successor to the
CARAT Indenture
-41-
Trustee. In all such cases such certificate of authentication shall have the
same full force as is provided anywhere in the CARAT 2005-SN1 Notes or herein
with respect to the certificate of authentication of the CARAT Indenture
Trustee.
SECTION 6.10 Appointment of Co-CARAT Indenture Trustee or Separate CARAT
Indenture Trustee.
(a) Notwithstanding any other provisions of this CARAT Indenture, at
any time, for the purpose of meeting any legal requirement of any jurisdiction
in which any part of the CARAT Trust Estate or any Vehicle may at the time be
located, the CARAT Indenture Trustee shall have the power and may execute and
deliver all instruments to appoint one or more Persons to act as a co-trustee or
co-trustees, or separate trustee or separate trustees, of all or any part of the
CARAT Trust Estate, and to vest in such Person or Persons, in such capacity and
for the benefit of the Secured Parties (only to the extent expressly provided
herein), such title to the CARAT Trust Estate, or any part hereof, and, subject
to the other provisions of this Section 6.10, such powers, duties, obligations,
rights and trusts as the CARAT Indenture Trustee may consider necessary or
desirable. No co-trustee or separate trustee hereunder shall be required to meet
the terms of eligibility as a successor trustee under Section 6.11 and no notice
to CARAT 2005-SN1 Noteholders of the appointment of any co-trustee or separate
trustee shall be required under Section 6.8.
(b) Every separate trustee and co-trustee shall, to the extent
permitted by law, be appointed and act subject to the following provisions and
conditions:
(i) all rights, powers, duties and obligations conferred or
imposed upon the CARAT Indenture Trustee shall be conferred or imposed upon and
exercised or performed by the CARAT Indenture Trustee and such separate trustee
or co-trustee jointly (it being understood that such separate trustee or
co-trustee is not authorized to act separately without the CARAT Indenture
Trustee joining in such act), except to the extent that under any law of any
jurisdiction in which any particular act or acts are to be performed the CARAT
Indenture Trustee shall be incompetent or unqualified to perform such act or
acts, in which event such rights, powers, duties and obligations (including the
holding of title to the CARAT Trust Estate or any portion thereof in any such
jurisdiction) shall be exercised and performed singly by such separate trustee
or co-trustee, but solely at the direction of the CARAT Indenture Trustee;
(ii) no trustee hereunder shall be personally liable by reason
of any act or omission of any other trustee hereunder; and
(iii) the CARAT Indenture Trustee may at any time accept the
resignation of or remove any separate trustee or co-trustee.
(c) Any notice, request or other writing given to the CARAT
Indenture Trustee shall be deemed to have been given to each of the then
separate trustees and co-trustees, as effectively as if given to each of them.
Every instrument appointing any separate trustee or co-trustee shall refer to
this CARAT Indenture and the conditions of this Article VI. Each separate
trustee and co-trustee, upon its acceptance of the trusts conferred, shall be
vested with the estates or property specified in its instrument of appointment,
either jointly with the CARAT
-42-
Indenture Trustee or separately, as may be provided therein, subject to all the
provisions of this CARAT Indenture, specifically including every provision of
this CARAT Indenture relating to the conduct of, affecting the liability of, or
affording protection to, the CARAT Indenture Trustee. Every such instrument
shall be filed with the CARAT Indenture Trustee.
(d) Any separate trustee or co-trustee may at any time constitute
the CARAT Indenture Trustee, its agent or attorney-in-fact with full power and
authority, to the extent not prohibited by law, to do any lawful act under or in
respect of this CARAT Indenture on its behalf and in its name. If any separate
trustee or co-trustee shall die, become incapable of acting, resign or be
removed, all of its estates, properties, rights, remedies and trusts shall vest
in and be exercised by the CARAT Indenture Trustee, to the extent permitted by
law, without the appointment of a new or successor trustee.
SECTION 6.11 Eligibility; Disqualification. The CARAT Indenture Trustee
shall at all times satisfy the requirements of TIA Section 310(a). The CARAT
Indenture Trustee shall have a combined capital and surplus of at least
$50,000,000 as set forth in its most recent published annual report of condition
and (unless waived by Moody's) it shall have a long term unsecured debt rating
of Baa3 or better by Moody's. The CARAT Indenture Trustee shall comply with TIA
Section 310(b); provided, however, that there shall be excluded from the
operation of TIA Section 310(b)(1) any indenture or indentures under which other
securities of the Issuer are outstanding if the requirements for such exclusion
set forth in TIA Section 310(b)(1) are met.
SECTION 6.12 Preferential Collection of Claims Against Issuer. The CARAT
Indenture Trustee shall comply with TIA Section 311(a), excluding any creditor
relationship listed in TIA Section 311(b). A trustee who has resigned or been
removed shall be subject to TIA Section 311(a) to the extent indicated therein.
SECTION 6.13 Representations and Warranties of CARAT Indenture Trustee.
The CARAT Indenture Trustee represents and warrants as of the Series 2005-SN1
Closing Date that:
(a) the CARAT Indenture Trustee (i) is a national banking
association duly organized, validly existing and in good standing under the laws
of the United States of America and (ii) satisfies the eligibility criteria set
forth in Section 6.11;
(b) the CARAT Indenture Trustee has full power, authority and legal
right to execute, deliver and perform this CARAT Indenture, and has taken all
necessary action to authorize the execution, delivery and performance by it of
this CARAT Indenture;
(c) the execution, delivery and performance by the CARAT Indenture
Trustee of this CARAT Indenture (i) shall not violate any provision of any law
or regulation governing the banking and trust powers of the CARAT Indenture
Trustee or any order, writ, judgment or decree of any court, arbitrator, or
governmental authority applicable to the CARAT Indenture Trustee or any of its
assets, (ii) shall not violate any provision of the corporate charter or by-laws
of the CARAT Indenture Trustee, or (iii) shall not violate any provision of, or
constitute, with or without notice or lapse of time, a default under, or result
in the creation or imposition of any lien on any properties included in the
CARAT Trust Estate pursuant to the provisions of any mortgage, indenture,
contract, agreement or other undertaking to which it is a party, which
-43-
violation, default or lien could reasonably be expected to have a materially
adverse effect on the CARAT Indenture Trustee's performance or ability to
perform its duties under this CARAT Indenture or on the transactions
contemplated in this CARAT Indenture;
(d) the execution, delivery and performance by the CARAT Indenture
Trustee of this CARAT Indenture shall not require the authorization, consent or
approval of, the giving of notice to, the filing or registration with, or the
taking of any other action in respect of, any governmental authority or agency
regulating the banking and corporate trust activities of the CARAT Indenture
Trustee; and
(e) this CARAT Indenture has been duly executed and delivered by the
CARAT Indenture Trustee and constitutes the legal, valid and binding agreement
of the CARAT Indenture Trustee, enforceable in accordance with its terms.
SECTION 6.14 CARAT Indenture Trustee May Enforce Claims Without Possession
of CARAT 2005-SN1 Notes. All rights of action and claims under this CARAT
Indenture or the CARAT 2005-SN1 Notes may be prosecuted and enforced by the
CARAT Indenture Trustee without the possession of any of the CARAT 2005-SN1
Notes or the production thereof in any proceeding relating thereto, and any such
proceeding instituted by the CARAT Indenture Trustee shall be brought in its own
name as CARAT Indenture Trustee. Any recovery of judgment shall, after provision
for the payment of the reasonable compensation, expenses, disbursements and
advances of the CARAT Indenture Trustee, its agents and counsel, be for the
ratable benefit of the CARAT 2005-SN1 Noteholders and (only to the extent
expressly provided herein) the CARAT 2005-SN1 Certificateholders in respect of
which such judgment has been obtained.
SECTION 6.15 Suit for Enforcement. If an Event of Default shall occur and
be continuing, the CARAT Indenture Trustee, in its discretion may, subject to
the provisions of Section 6.1, proceed to protect and enforce its rights and the
rights of the CARAT 2005-SN1 Noteholders under this CARAT Indenture by
Proceeding whether for the specific performance of any covenant or agreement
contained in this CARAT Indenture or in aid of the execution of any power
granted in this CARAT Indenture or for the enforcement of any other legal,
equitable or other remedy as the CARAT Indenture Trustee, being advised by
counsel, shall deem most effectual to protect and enforce any of the rights of
the CARAT Indenture Trustee or the CARAT 2005-SN1 Noteholders.
SECTION 6.16 Rights of CARAT 2005-SN1 Noteholders to Direct CARAT
Indenture Trustee. The Holders of CARAT 2005-SN1 Notes evidencing not less than
a majority of the Outstanding Amount of the Controlling Class, shall have the
right to direct the time, method and place of conducting any Proceeding for any
remedy available to the CARAT Indenture Trustee or exercising any trust or power
conferred on the CARAT Indenture Trustee; provided, however, that subject to
Section 6.1, the CARAT Indenture Trustee shall have the right to decline to
follow any such direction if the CARAT Indenture Trustee being advised by
counsel determines that the action so directed may not lawfully be taken, or if
the CARAT Indenture Trustee in good faith shall, by a Responsible Officer,
determine that the proceedings so directed would be illegal or subject it to
personal liability; and provided, further, that nothing in this CARAT Indenture
shall impair the right of the CARAT Indenture Trustee to take any action deemed
proper by the
-44-
CARAT Indenture Trustee and which is not inconsistent with such direction by the
CARAT 2005-SN1 Noteholders.
ARTICLE VII
CARAT NOTEHOLDERS' LISTS AND REPORTS
SECTION 7.1 Issuer To Furnish CARAT Indenture Trustee Names and Addresses
of CARAT 2005-SN1 Noteholders. The Issuer shall furnish or cause to be furnished
by the Trust Administrator to the CARAT Indenture Trustee (a) not more than five
days before each Distribution Date a list, in such form as the CARAT Indenture
Trustee may reasonably require, of the names and addresses of the Holders of
CARAT 2005-SN1 Notes as of the close of business on the related Record Date, and
(b) at such other times as the CARAT Indenture Trustee may request in writing,
within 14 days after receipt by the Issuer of any such request, a list of
similar form and content as of a date not more than 10 days prior to the time
such list is furnished; provided, however, that so long as the CARAT Indenture
Trustee is the Note Registrar, no such list shall be required to be furnished.
SECTION 7.2 Preservation of Information, Communications to CARAT 2005-SN1
Noteholders.
(a) The CARAT Indenture Trustee shall preserve, in as current a form
as is reasonably practicable, the names and addresses of the Holders of CARAT
2005-SN1 Notes contained in the most recent list furnished to the CARAT
Indenture Trustee as provided in Section 7.1 and the names and addresses of
Holders of CARAT 2005-SN1 Notes received by the CARAT Indenture Trustee in its
capacity as Note Registrar. The CARAT Indenture Trustee may destroy any list
furnished to it as provided in such Section 7.1 upon receipt of a new list so
furnished.
(b) CARAT 2005-SN1 Noteholders may communicate pursuant to TIA
Section 312(b) with other CARAT 2005-SN1 Noteholders with respect to their
rights under this CARAT Indenture or under the CARAT 2005-SN1 Notes.
(c) The Issuer, the CARAT Indenture Trustee and the Note Registrar
shall have the protection of TIA Section 312(c)
SECTION 7.3 Reports by Issuer.
(a) The Issuer shall:
(i) file with the CARAT Indenture Trustee within 15 days after
the Issuer is required to file the same with the Commission, copies of the
annual reports and of the information, documents and other reports (or copies of
such portions of any of the foregoing as the Commission may from time to time by
rules and regulations prescribe) which the Issuer may be required to file with
the Commission pursuant to Section 13 or 15(d) of the Exchange Act;
(ii) file with the CARAT Indenture Trustee and the Commission
in accordance with rules and regulations prescribed from time to time by the
Commission such additional information, documents and reports with respect to
compliance by the Issuer with the
-45-
conditions and covenants of this CARAT Indenture as may be required from time to
time by such rules and regulations; and
(iii) supply to the CARAT Indenture Trustee (and the CARAT
Indenture Trustee shall transmit by mail to all CARAT 2005-SN1 Noteholders
described in TIA Section 313(c)) such summaries of any information, documents
and reports required to be filed by the Issuer pursuant to clauses (i) and (ii)
of this Section 7.3(a) as may be required by rules and regulations prescribed
from time to time by the Commission.
(b) Unless the Issuer otherwise determines, the fiscal year of the
Issuer shall end on December 31 of such year.
SECTION 7.4 Reports by Trustee.
(a) Solely to the extent required by TIA Section 313(a),within 60
days after each August 15th, beginning with August 15, 2005, the CARAT Indenture
Trustee shall mail to each CARAT 2005-SN1 Noteholder as required by TIA Section
313(c) a brief report dated as of such date that complies with TIA Section
313(a). The CARAT Indenture Trustee also shall comply with TIA Section 313(b). A
copy of any report delivered pursuant to this Section 7.4(a) shall, at the time
of its mailing to CARAT 2005-SN1 Noteholders, be filed by the CARAT Indenture
Trustee with the Commission and each stock exchange, if any, on which the CARAT
2005-SN1 Notes are listed. The Issuer shall notify the CARAT Indenture Trustee
if and when the CARAT 2005-SN1 Notes are listed on any stock exchange.
(b) On each Distribution Date the CARAT Indenture Trustee shall
include with each payment to each CARAT 2005-SN1 Noteholder a copy of the
statement for the related Monthly Period or Periods applicable to such
Distribution Date or shall make such statement available on its website as
required pursuant to Section 4.07 of the Trust Sale and Administration
Agreement.
ARTICLE VIII
ACCOUNTS, DISBURSEMENTS AND RELEASES
SECTION 8.1 Collection of Money. Except as otherwise expressly provided
herein, the CARAT Indenture Trustee may demand payment or delivery of, and shall
receive and collect, directly and without intervention or assistance of any
fiscal agent or other intermediary, all money and other property payable to or
receivable by the CARAT Indenture Trustee pursuant to this CARAT Indenture and
the Trust Sale and Administration Agreement. The CARAT Indenture Trustee shall
apply all such money received by it as provided in this CARAT Indenture. Except
as otherwise expressly provided in this CARAT Indenture, if any default occurs
in the making of any payment or performance under any agreement or instrument
that is part of the CARAT Trust Estate, the CARAT Indenture Trustee may take
such action as may be appropriate to enforce such payment or performance,
including the institution and prosecution of appropriate Proceedings. Any such
action shall be without prejudice to any right to claim a Default or Event of
Default under this CARAT Indenture and any right to proceed thereafter as
provided in Article V.
-46-
SECTION 8.2 Designated Accounts; Payments.
(a) On or prior to the Series 2005-SN1 Closing Date, the Issuer
shall cause the Trust Administrator to establish and maintain, in the name of
the CARAT Indenture Trustee for the benefit of the Financial Parties, the
Designated Accounts as provided in Articles IV and V of the Trust Sale and
Administration Agreement.
(b) On or before each Distribution Date, (i) amounts shall be
deposited in the CARAT Collection Account as provided in Section 4.05 of the
Trust Sale and Administration Agreement and (ii) the Aggregate Noteholders'
Interest Distributable Amount and the Aggregate Noteholders' Principal
Distributable Amount shall be transferred from the CARAT Collection Account to
the Note Distribution Account as and to the extent provided in Section 4.05 of
the Trust Sale and Administration Agreement.
(c) On each Distribution Date, the CARAT Indenture Trustee shall
apply and, as required, distribute to the CARAT 2005-SN1 Noteholders all amounts
on deposit in the Note Distribution Account (subject to the Trust
Administrator's rights under Section 5.02 of the Trust Sale and Administration
Agreement to Investment Earnings and based on the Trust Administrator's
Accounting delivered on the related Determination Date pursuant to Section 3.06
of the Pooling and Administration Agreement) in the following order of priority
and in the amounts determined as described below:
(i) On each Distribution Date, except as otherwise provided in
clause (iii) below, the amount deposited in the Note Distribution Account in
respect of interest on the CARAT 2005-SN1 Notes shall be applied in the
following order of priority, to the extent of remaining funds after all earlier
priorities have been satisfied, and any amount so applied shall be paid on such
Distribution Date to the holders of CARAT 2005-SN1 Notes of each applicable
class:
(A) the Aggregate Class A Interest Distributable Amount
shall be paid to the holders of the Class A Notes;
(B) the Aggregate Class B Interest Distributable Amount
shall be paid to the holders of the Class B Notes; and
(C) the Aggregate Class C Interest Distributable Amount
shall be paid to the holders of the Class C Notes;
provided, however, that if there are not sufficient funds to so pay the entire
amount specified in any of the foregoing priorities for a particular class of
CARAT 2005-SN1 Notes, then the amount available for such class of CARAT 2005-SN1
Notes shall be paid to the Holders thereof ratably on the basis of the total
amount of accrued and unpaid interest owing to each such Holder.
(ii) Unless otherwise provided in clause (iii) below, an
amount equal to the Aggregate Noteholders' Principal Distributable Amount (or
such lesser amount as has been deposited in the Note Distribution Account
pursuant to Section 4.05(c) of the Trust Sale and Administration Agreement with
respect to payments of principal) shall be applied to each class of CARAT
2005-SN1 Notes in the following amounts and in the following order of priority
-47-
and any amount so applied shall be paid on such Distribution Date to the Holders
of such class of CARAT 2005-SN1 Notes:
(1) to the Class A-1 Notes, until the Outstanding
Amounts of the Class A-1 Notes is reduced to zero;
(2) to the Class A-2a Notes, the Class A-2b Notes
and the Class A-2c Notes, ratably in accordance with the Note
Principal Balance of the Class A-2a Notes, the Class A-2b Notes and
the Class A-2c Notes, until the Outstanding Amounts of the Class
A-2a Notes, the Class A-2b Notes and the Class A-2c Notes are
reduced to zero;
(3) to the Class A-3a Notes, the Class A-3b Notes
and the Class A-3c Notes, ratably in accordance with the Note
Principal Balance of the Class A-3a Notes, the Class A-3b Notes and
the Class A-3c Notes, until the Outstanding Amounts of the Class
A-3a Notes, the Class A-3b Notes and the Class A-3c Notes are
reduced to zero;
(4) to the Class A-4 Notes, until the Outstanding
Amounts of the Class A-4 Notes are reduced to zero;
(5) to the Class B-1 Notes and the Class B-2
Notes, ratably in accordance with the Note Principal Balance of the
Class B-1 Notes and the Class B-2 Notes, until the Outstanding
Amounts of the Class B-1 Notes and Class B-2 Notes are reduced to
zero;
(6) to the Class C Notes, until the Outstanding
Amount of the Class C Notes is reduced to zero.
(iii) If the CARAT 2005-SN1 Notes have been declared
immediately due and payable following an Event of Default as provided in Section
5.2, until such time as all Events of Default have been cured or waived as
provided in Section 5.2(b), any amounts deposited in the Note Distribution
Account shall be applied in accordance with Section 2.7(c).
SECTION 8.3 General Provisions Regarding Accounts.
(a) So long as no Default or Event of Default shall have occurred
and be continuing, all or a portion of the funds in the Designated Accounts
shall be invested in Eligible Investments and reinvested by the CARAT Indenture
Trustee upon Issuer Order, subject to the provisions of Section 5.01(b) of the
Trust Sale and Administration Agreement. The Issuer shall not direct the CARAT
Indenture Trustee 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 CARAT Indenture Trustee to
make any such investment or sale, if requested by the CARAT Indenture Trustee,
the Issuer shall deliver to the CARAT Indenture Trustee an Opinion of Counsel
acceptable to the CARAT Indenture Trustee, to such effect.
-48-
(b) Subject to Section 6.1(c), the CARAT Indenture Trustee shall not
in any way be held liable by reason of any insufficiency in any of the
Designated Accounts resulting from any loss on any Eligible Investment included
therein except as an obligor for losses attributable to the CARAT Indenture
Trustee's failure to make payments on such Eligible Investments issued by the
CARAT Indenture Trustee, in its commercial capacity as principal obligor and not
as trustee, in accordance with their terms.
(c) If (i) the Issuer shall have failed to give written investment
directions for any funds on deposit in the Designated Accounts to the CARAT
Indenture Trustee by 11:00 a.m., New York City Time (or such other time as may
be agreed by the Issuer and the CARAT Indenture Trustee) on any Business Day; or
(ii) a Default or Event of Default shall have occurred and be continuing with
respect to the CARAT 2005-SN1 Notes but the CARAT 2005-SN1 Notes shall not have
been declared due and payable pursuant to Section 5.2, or, if such CARAT
2005-SN1 Notes shall have been declared due and payable following an Event of
Default, but amounts collected or receivable from the CARAT Trust Estate are
being applied in accordance with Section 5.5 as if there had not been such a
declaration; then the CARAT Indenture Trustee shall, to the fullest extent
practicable, invest and reinvest funds in the Designated Accounts in "Citi
Institutional Liquid Reserves, Fund # 349."
SECTION 8.4 Release of CARAT Trust Estate.
(a) Subject to the payment of its fees and expenses pursuant to
Section 6.7, the CARAT Indenture Trustee may, and when required by the
provisions of this CARAT Indenture shall, execute instruments to release
property from the lien of this CARAT Indenture, or convey the CARAT Indenture
Trustee's interest in the same, in a manner and under circumstances that are
consistent with the provisions of this CARAT Indenture. No party relying upon an
instrument executed by the CARAT Indenture Trustee as provided in this Article
VIII shall be bound to ascertain the CARAT Indenture Trustee's authority,
inquire into the satisfaction of any conditions precedent or see to the
application of any monies.
(b) The CARAT Indenture Trustee shall, at such time as there are no
CARAT 2005-SN1 Notes Outstanding and all sums due to the CARAT Indenture Trustee
pursuant to Section 6.7 have been paid and all amounts owing under each Third
Party Instrument have been paid, release any remaining portion of the CARAT
Trust Estate that secured the CARAT 2005-SN1 Notes and the other Secured
Obligations from the lien of this CARAT Indenture and, where any such portion of
the CARAT Trust Estate is registered in the name of the CARAT Indenture Trustee,
re-convey such property, and release to the Issuer or any other Person entitled
thereto any funds then on deposit in the Designated Accounts. The CARAT
Indenture Trustee shall release property from the lien of this CARAT Indenture
pursuant to this Section 8.4(b) only upon receipt by it of an Issuer Request and
an Officer's Certificate, an Opinion of Counsel and (if required by the TIA)
Independent Certificates in accordance with TIA Sections 314(c) and 314(d)(1)
meeting the applicable requirements of Section 11.1.
SECTION 8.5 Opinion of Counsel. The CARAT Indenture Trustee shall receive
at least seven days' notice when requested by the Issuer to take any action
pursuant to Section 8.4(a), accompanied by copies of any instruments involved,
and the CARAT Indenture Trustee shall also require as a condition to such
action, an Opinion of Counsel, in form and substance
-49-
satisfactory to the CARAT Indenture Trustee, stating the legal effect of any
such action, outlining the steps required to complete the same, and concluding
that all conditions precedent to the taking of such action have been complied
with and such action shall not materially and adversely impair the security for
the Secured Obligations or the rights of the Secured Parties in contravention of
the provisions of this CARAT Indenture; provided, however, that such Opinion of
Counsel shall not be required to express an opinion as to the fair value of the
CARAT Trust Estate. Counsel rendering any such opinion may rely, without
independent investigation, on the accuracy and validity of any certificate or
other instrument delivered to the CARAT Indenture Trustee in connection with any
such action.
ARTICLE IX
SUPPLEMENTAL INDENTURES
SECTION 9.1 Supplemental Indentures Without Consent of CARAT 2005-SN1
Noteholders.
(a) Without the consent of the Holders of any CARAT 2005-SN1 Notes
but with prior notice to the Rating Agencies, the Issuer and the CARAT Indenture
Trustee, when authorized by an Issuer Order, at any time and from time to time,
may enter into one or more indentures supplemental hereto (which shall conform
to the provisions of the Trust Indenture Act as in force at the date of the
execution thereof), in form satisfactory to the CARAT Indenture Trustee, for any
of the following purposes:
(i) to correct or amplify the description of any property at
any time subject to the lien of this CARAT Indenture, or better to assure,
convey and confirm unto the Indenture Trustee any property subject or required
to be subjected to the lien of this CARAT Indenture, or to subject to additional
property to the lien of this CARAT Indenture;
(ii) to evidence the succession, in compliance with Section
3.10 and the applicable provisions hereof, of another Person to the Issuer, and
the assumption by any such successor of the covenants of the Issuer contained
herein and in the CARAT 2005-SN1 Notes contained;
(iii) to add to the covenants of the Issuer, for the benefit
of the Securityholders or to surrender any right or power herein conferred upon
the Issuer;
(iv) to convey, transfer, assign, mortgage or pledge any
property to or with the CARAT Indenture Trustee;
(v) to cure any ambiguity, to correct or supplement any
provision herein or in any supplemental indenture which may be inconsistent with
any other provision herein or in any supplemental indenture or in any other
CARAT Basic Document;
(vi) to evidence and provide for the acceptance of the
appointment hereunder by a successor or additional trustee with respect to the
CARAT 2005-SN1 Notes and to add to or change any of the provisions of this CARAT
Indenture as shall be necessary to facilitate the administration of the trusts
hereunder by more than one trustee, pursuant to the requirements of Article VI;
or
-50-
(vii) to modify, eliminate or add to the provisions of this
CARAT Indenture to such extent as shall be necessary to effect the qualification
of this CARAT Indenture under the TIA or under any similar federal statute
hereafter enacted and to add to this CARAT Indenture such other provisions as
may be expressly required by the TIA, and the CARAT Indenture Trustee is hereby
authorized to join in the execution of any such supplemental indenture and to
make any further appropriate agreements and stipulations that may be therein
contained.
(b) The Issuer and the CARAT Indenture Trustee, when authorized by
an Issuer Order, may, also without the consent of any of the CARAT 2005-SN1
Noteholders but with prior notice to the Rating Agencies at any time and from
time to time enter into one or more indentures supplemental hereto for the
purpose of adding any provisions to, changing in any manner, or eliminating any
of the provisions of, this CARAT Indenture or modifying in any manner the rights
of the CARAT 2005-SN1 Noteholders under this CARAT Indenture; provided, however,
that such action shall not, as evidenced by an Opinion of Counsel, adversely
affect in any material respect the interests of any CARAT 2005-SN1 Noteholder.
SECTION 9.2 Supplemental Indentures With Consent of CARAT 2005-SN1
Noteholders.
(a) The Issuer and the CARAT Indenture Trustee, when authorized by
an Issuer Order, also may, with prior notice to the Rating Agencies and with the
consent of the Holders of not less than a majority of the Outstanding Amount of
the Controlling Class, by Act of such Holders delivered to the Issuer and the
CARAT Indenture Trustee, enter into an indenture or indentures supplemental
hereto for the purpose of adding any provisions to, changing in any manner, or
eliminating any of the provisions of, this CARAT Indenture or of modifying in
any manner the rights of the CARAT 2005-SN1 Noteholders under this CARAT
Indenture; provided, however, that no such supplemental indenture shall, without
the consent of the Holder of each Outstanding CARAT 2005-SN1 Note affected
thereby:
(i) change the due date of any instalment of principal of or
interest on any CARAT 2005-SN1 Note, or reduce the principal amount thereof, the
interest rate applicable thereto, or the Redemption Price with respect thereto,
change any place of payment where, or the coin or currency in which, any CARAT
2005-SN1 Note or any interest thereon is payable, or impair the right to
institute suit for the enforcement of the provisions of this CARAT Indenture
requiring the application of funds available therefor, as provided in Article V,
to the payment of any such amount due on the CARAT 2005-SN1 Notes on or after
the respective due dates thereof (or, in the case of redemption, on or after the
Redemption Date);
(ii) reduce the percentage of the Outstanding Amount of the
Controlling Class, the consent of the Holders of which is required for any such
supplemental indenture, or the consent of the Holders of which is required for
any waiver of compliance with certain provisions of this CARAT Indenture or
certain defaults hereunder and their consequences as provided for in this CARAT
Indenture;
(iii) modify or alter the provisions of the proviso to the
definition of the term "Outstanding";
-51-
(iv) reduce the percentage of the Outstanding Amount of the
CARAT 2005-SN1 Notes required to direct the CARAT Indenture Trustee to sell or
liquidate the CARAT 2005-SN1 Trust Estate pursuant to Section 5.4 if the
proceeds of such sale would be insufficient to pay the principal amount of and
accrued but unpaid interest on the Outstanding CARAT 2005-SN1 Notes;
(v) modify any provision of this Section 9.2 to decrease the
required minimum percentage necessary to approve any amendments to any
provisions of this CARAT Indenture or any of the other CARAT Basic Documents;
(vi) modify any of the provisions of this CARAT Indenture in
such manner as to affect the calculation of the amount of any payment of
interest or principal due on any CARAT 2005-SN1 Note on any Distribution Date
(including the calculation of any of the individual components of such
calculation), or modify or alter the provisions of the CARAT Indenture regarding
the voting of CARAT 2005-SN1 Notes held by the Issuer, the Seller or any
Affiliate of either of them; or
(vii) permit the creation of any Lien ranking prior to or on a
parity with the lien of this CARAT Indenture with respect to any part of the
CARAT 2005-SN1 Trust Estate or, except as otherwise permitted or contemplated
herein, terminate the lien of this CARAT Indenture on any property at any time
subject thereto or deprive the Holder of any CARAT 2005-SN1 Note of the security
afforded by the lien of this CARAT Indenture.
(b) The CARAT Indenture Trustee may in its discretion determine
whether or not any CARAT 2005-SN1 Notes would be affected (such that the consent
of each CARAT 2005-SN1 Noteholder would be required) by any supplemental
indenture proposed pursuant to this Section 9.2 and any such determination shall
be binding upon the Holders of all CARAT 2005-SN1 Notes, whether authenticated
and delivered thereunder before or after the date upon which such supplemental
indenture becomes effective. The CARAT Indenture Trustee shall not be liable for
any such determination made in good faith.
(c) It shall be sufficient if an Act of CARAT 2005-SN1 Noteholders
approves the substance, but not the form, of any proposed supplemental
indenture.
(d) Promptly after the execution by the Issuer and the CARAT
Indenture Trustee of any supplemental indenture pursuant to this Section 9.2,
the CARAT Indenture Trustee shall mail to the CARAT 2005-SN1 Noteholders to
which such amendment or supplemental indenture relates a notice setting forth in
general terms the substance of such supplemental indenture. Any failure of the
CARAT Indenture Trustee to mail such notice, or any defect therein, shall not,
however, in any way impair or affect the validity of any such supplemental
indenture.
SECTION 9.3 Execution of Supplemental Indentures. In executing, or
permitting the additional trusts created by, any supplemental indenture
permitted by this Article IX or the modifications thereby of the trusts created
by this CARAT Indenture, the CARAT Indenture Trustee shall be entitled to
receive, and subject to Sections 6.1 and 6.2, shall be fully protected in
relying upon, an Opinion of Counsel stating that the execution of such
supplemental indenture is
-52-
authorized or permitted by this CARAT Indenture. The CARAT Indenture Trustee
may, but shall not be obligated to, enter into any such supplemental indenture
that affects the CARAT Indenture Trustee's own rights, duties, liabilities or
immunities under this CARAT Indenture or otherwise.
SECTION 9.4 Effect of Supplemental Indenture. Upon the execution of any
supplemental indenture pursuant to the provisions hereof, this CARAT Indenture
shall be and be deemed to be modified and amended in accordance therewith with
respect to the CARAT 2005-SN1 Notes affected thereby, and the respective rights,
limitations of rights, obligations, duties, liabilities and immunities under
this CARAT Indenture of the CARAT Indenture Trustee, the Issuer and the CARAT
2005-SN1 Noteholders shall thereafter be determined, exercised and enforced
hereunder subject in all respects to such modifications and amendments, and all
the terms and conditions of any such supplemental indenture shall be and be
deemed to be part of the terms and conditions of this CARAT Indenture for any
and all purposes.
SECTION 9.5 Conformity with Trust Indenture Act. Every amendment of this
CARAT Indenture and every supplemental indenture executed pursuant to this
Article IX shall conform to the requirements of the TIA as then in effect so
long as this CARAT Indenture shall then be qualified under the TIA.
SECTION 9.6 Reference in CARAT 2005-SN1 Notes to Supplemental Indentures.
CARAT 2005-SN1 Notes authenticated and delivered after the execution of any
supplemental indenture pursuant to this Article IX may, and if required by the
CARAT Indenture Trustee shall, bear a notation in form approved by the CARAT
Indenture Trustee as to any matter provided for in such supplemental indenture.
If the Issuer or the CARAT Indenture Trustee shall so determine, new CARAT
2005-SN1 Notes so modified as to conform, in the opinion of the CARAT Indenture
Trustee and the Issuer, to any such supplemental indenture may be prepared and
executed by the Issuer and authenticated and delivered by the CARAT Indenture
Trustee in exchange for Outstanding CARAT 2005-SN1 Notes of the same class.
ARTICLE X
REDEMPTION OF CARAT NOTES
SECTION 10.1 Redemption. The CARAT 2005-SN1 Notes are subject to
redemption in whole, but not in part, upon the exercise by the Seller of its
option to purchase the COLT 2005-SN1 Secured Notes pursuant to Section 8.01 of
the Trust Sale and Administration Agreement. The date on which such redemption
shall occur is the Optional Purchase Date identified by Seller in its notice of
exercise of such purchase option (the "Redemption Date"). The purchase price for
the CARAT 2005-SN1 Notes shall be equal to the applicable Redemption Price;
provided, that, the Issuer has available funds sufficient to pay such amount.
The Trust Administrator or the Issuer shall furnish the Rating Agencies notice
of such redemption. If the CARAT 2005-SN1 Notes are to be redeemed pursuant to
this Section 10.1, the Trust Administrator or the Issuer shall furnish notice
thereof to the CARAT Indenture Trustee not later than 25 days prior to the
Redemption Date and the CARAT Indenture Trustee (based on such notice) shall
withdraw from the CARAT Collection Account and deposit into the Note
Distribution Account, on the Redemption Date, the aggregate Redemption Price of
the CARAT
-53-
2005-SN1 Notes, whereupon all such CARAT 2005-SN1 Notes shall be due and payable
on the Redemption Date.
SECTION 10.2 Form of Redemption Notice. Notice of redemption of the CARAT
2005-SN1 Notes under Section 10.1 shall be given by the CARAT Indenture Trustee
by first-class mail, postage prepaid, mailed not less than five days prior to
the applicable Redemption Date to each CARAT 2005-SN1 Noteholder of record at
such CARAT 2005-SN1 Noteholder's address appearing in the Note Register.
(a) All notices of redemption shall state:
(i) the Redemption Date;
(ii) the applicable Redemption Price; and
(iii) the place where CARAT 2005-SN1 Notes are to be
surrendered for payment of the Redemption Price (which shall be the Agency
Office of the Issuer to be maintained as provided in Section 3.2).
(b) Notice of redemption of the CARAT 2005-SN1 Notes shall be given
by the CARAT Indenture Trustee in the name and at the expense of the Issuer.
Failure to give notice of redemption, or any defect therein, to any Holder of
any CARAT 2005-SN1 Note shall not impair or affect the validity of the
redemption of any other CARAT 2005-SN1 Note.
SECTION 10.3 CARAT 2005-SN1 Notes Payable on Redemption Date. The Notes
shall, following notice of redemption as required by Section 10.2, on the
Redemption Date cease to be Outstanding for purposes of this CARAT Indenture and
shall thereafter represent only the right to receive the applicable Redemption
Price and (unless the Issuer shall default in the payment of such Redemption
Price) no interest shall accrue on such Redemption Price for any period after
the date to which accrued interest is calculated for purposes of calculating
such Redemption Price.
ARTICLE XI
MISCELLANEOUS
SECTION 11.1 Compliance Certificates and Opinions, etc.
(a) Upon any application or request by the Issuer to the CARAT
Indenture Trustee to take any action under any provision of this CARAT
Indenture, the Issuer shall furnish to the CARAT Indenture Trustee: (i) an
Officer's Certificate stating that all conditions precedent, if any, provided
for in this CARAT Indenture relating to the proposed action have been complied
with, (ii) an Opinion of Counsel stating that in the opinion of such counsel all
such conditions precedent, if any, have been complied with and (iii) (if
required by the TIA) an Independent Certificate from a firm of certified public
accountants meeting the applicable requirements of this Section 11.1, except
that, in the case of any such application or request as to which the furnishing
of such documents is specifically required by any provision of this CARAT
Indenture, no additional certificate or opinion need be furnished. Every
certificate or opinion
-54-
with respect to compliance with a condition or covenant provided for in this
CARAT Indenture shall include:
(i) a statement that each signatory of such certificate or
opinion has read or has caused to be read such covenant or condition and the
definitions herein relating thereto;
(ii) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions contained in
such certificate or opinion are based;
(iii) a statement that, in the judgment of each such
signatory, such signatory has made such examination or investigation as is
necessary to enable such signatory to express an informed opinion as to whether
or not such covenant or condition has been complied with; and
(iv) a statement as to whether, in the opinion of each such
signatory, such condition or covenant has been complied with.
(b) (i) Prior to the deposit with the CARAT Indenture Trustee of
any Collateral or other property or securities that is to be made the basis for
the release of any property or securities subject to the lien of this CARAT
Indenture, the Issuer shall, in addition to any obligation imposed in Section
11.1(a) or elsewhere in this CARAT Indenture, furnish to the CARAT Indenture
Trustee an Officer's Certificate certifying or stating the opinion of each
Person signing such certificate as to the fair value (within 90 days of such
deposit) to the Issuer of the Collateral or other property or securities to be
so deposited.
(ii) Whenever the Issuer is required to furnish to the CARAT
Indenture Trustee an Officer's Certificate certifying or stating the opinion of
any signer thereof as to the matters described in clause (b)(i) above, the
Issuer shall also deliver to the CARAT Indenture Trustee an Independent
Certificate as to the same matters, if the fair value of the securities or other
property to be so deposited on the basis of any such withdrawal or release since
the commencement of the then current fiscal year of the Issuer, as set forth in
the certificates delivered pursuant to clause (b)(i) above and this clause
(b)(ii), is 10% or more of the Outstanding Amount of the CARAT 2005-SN1 Notes,
but such a certificate need not be furnished with respect to any securities or
other property so deposited, if the fair value thereof to the Issuer as set
forth in the related Officer's Certificate is less than $25,000 or less than one
percent of the Outstanding Amount of the CARAT 2005-SN1 Notes.
(iii) Other than with respect to the release of any Warranty
Secured Notes or Administrative Secured Notes, whenever any property or
securities are to be released from the lien of this CARAT Indenture, the Issuer
shall also furnish to the CARAT Indenture Trustee an Officer's Certificate
certifying or stating the opinion of each Person signing such certificate as to
the fair value (within 90 days of such release) of the property or securities
proposed to be released and stating that in the opinion of such Person the
proposed release will not impair the security under this CARAT Indenture in
contravention of the provisions of this CARAT Indenture.
-55-
(iv) Whenever the Issuer is required to furnish to the CARAT
Indenture Trustee an Officer's Certificate certifying or stating the opinion of
any signatory thereof as to the matters described in clause (b)(iii) above, the
Issuer shall also furnish to the CARAT Indenture Trustee an Independent
Certificate as to the same matters if the fair value of the property or
securities and of all other property, other than Warranty Secured Notes and
Administrative Secured Notes, proposed to be released from the lien of this
CARAT Indenture since the commencement of the then current calendar year, as set
forth in the certificates required by clause (b)(iii) above and this clause
(b)(iv), equals 10% or more of the Outstanding Amount of the CARAT 2005-SN1
Notes, but such certificate need not be furnished if the fair value of the
securities or other property proposed to be released as set forth in the related
Officer's Certificate is less than $25,000 or less than one percent of the then
Outstanding Amount of the CARAT 2005-SN1 Notes.
(v) Notwithstanding Section 2.9 or any other provision of this
Section 11.1, the Issuer may (A) collect, liquidate, sell or otherwise dispose
of COLT 2005-SN1 Secured Notes as and to the extent permitted or required by the
CARAT Basic Documents, (B) make cash payments out of the Designated Accounts and
the Certificate Distribution Account as and to the extent permitted or required
by the CARAT Basic Documents and (C) take any other action not inconsistent with
the TIA.
SECTION 11.2 Form of Documents Delivered to CARAT Indenture Trustee.
(a) In any case where several matters are required to be certified
by, or covered by an opinion of, any specified Person, it is not necessary that
all such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
(b) Any certificate or opinion of an Authorized Officer of the
Issuer may be based, insofar as it relates to legal matters, upon a certificate
or opinion of, or representations by, counsel, unless such officer knows, or in
the exercise of reasonable care should know, that any certificate, opinion or
representation with respect to the matters upon which his certificate or opinion
is based is erroneous. Any such certificate of an Authorized Officer or Opinion
of Counsel may be based, insofar as it relates to factual matters, upon a
certificate or opinion of, or representations by, an officer or officers of the
Trust Administrator, the Seller or the Issuer, stating that the information with
respect to such factual matters is in the possession of the Trust Administrator,
the Seller or the Issuer, unless such counsel knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to such matters are erroneous.
(c) Where any Person is required to make, give or execute two or
more applications, requests, consents, certificates, statements, opinions or
other instruments under this CARAT Indenture, they may, but need not, be
consolidated and form one instrument.
(d) Whenever in this CARAT Indenture, in connection with any
application or certificate or report to the CARAT Indenture Trustee, it is
provided that the Issuer shall deliver
-56-
any document as a condition of the granting of such application, or as evidence
of the Issuer's compliance with any term hereof, it is intended that the truth
and accuracy, at the time of the granting of such application or at the
effective date of such certificate or report (as the case may be), of the facts
and opinions stated in such document shall in such case be conditions precedent
to the right of the Issuer to have such application granted or to the
sufficiency of such certificate or report. The foregoing shall not, however, be
construed to affect the CARAT Indenture Trustee's right to rely upon the truth
and accuracy of any statement or opinion contained in any such document as
provided in Article VI.
SECTION 11.3 Acts of CARAT 2005-SN1 Noteholders.
(a) Any request, demand, authorization, direction, notice, consent,
waiver or other action provided by this CARAT Indenture to be given or taken by
CARAT 2005-SN1 Noteholders or a class of CARAT 2005-SN1 Noteholders may be
embodied in and evidenced by one or more instruments of substantially similar
tenor signed by such CARAT 2005-SN1 Noteholders in person or by agents duly
appointed in writing; and except as herein otherwise expressly provided such
action shall become effective when such instrument or instruments are delivered
to the CARAT Indenture Trustee, and, where it is hereby expressly required, to
the Issuer. Such instrument or instruments (and the action embodied therein and
evidenced thereby) are herein sometimes referred to as the "Act" of the CARAT
2005-SN1 Noteholders, as applicable, signing such instrument or instruments.
Proof of execution of any such instrument or of a writing appointing any such
agent shall be sufficient for any purpose of this CARAT Indenture and (subject
to Section 6.1) conclusive in favor of the CARAT Indenture Trustee and the
Issuer, if made in the manner provided in this Section 11.3.
(b) The fact and date of the execution by any person of any such
instrument or writing may be proved in any manner that the CARAT Indenture
Trustee deems sufficient.
(c) The ownership of CARAT 2005-SN1 Notes shall be proved by the
Note Register.
(d) Any request, demand, authorization, direction, notice, consent,
waiver or other action by the Holder of any CARAT 2005-SN1 Notes (or any one or
more Predecessor CARAT 2005-SN1 Notes) shall bind the Holder of every CARAT
2005-SN1 Note issued upon the registration thereof or in exchange therefor or in
lieu thereof, in respect of anything done, omitted or suffered to be done by the
CARAT Indenture Trustee or the Issuer in reliance thereon, whether or not
notation of such action is made upon such CARAT 2005-SN1 Note.
SECTION 11.4 Notices, etc., to CARAT Indenture Trustee, Issuer and Rating
Agencies. Any request, demand, authorization, direction, notice, consent, waiver
or Act of CARAT 2005-SN1 Noteholders or other documents provided or permitted by
this CARAT Indenture to be made upon, given or furnished to or filed with:
(a) the CARAT Indenture Trustee by any CARAT 2005-SN1 Noteholder or
by the Issuer shall be made, given, furnished or filed in writing to or with the
CARAT Indenture Trustee at its Corporate Trust Office; or
-57-
(b) the Issuer by the CARAT Indenture Trustee or any CARAT 2005-SN1
Noteholder shall be sufficient for every purpose hereunder if in writing and
either sent by electronic facsimile transmission (with hard copy to follow via
first class mail) or mailed, by certified mail, return receipt requested to the
Issuer and the CARAT Owner Trustee each at the address specified in Appendix B
to the Trust Sale and Administration Agreement.
The Issuer shall promptly transmit any notice received by it from
the CARAT 2005-SN1 Noteholders to the CARAT Indenture Trustee. The CARAT
Indenture Trustee shall likewise promptly transmit any notice received by it
from the CARAT 2005-SN1 Noteholders to the Issuer.
(c) Notices required to be given to the Rating Agencies by the
Issuer and the CARAT Indenture Trustee or the CARAT Owner Trustee shall be
delivered as specified in Appendix B to the Trust Sale and Administration
Agreement.
SECTION 11.5 Notices to CARAT 2005-SN1 Noteholders; Waiver.
(a) Where this CARAT Indenture provides for notice to the CARAT
2005-SN1 Noteholders of any 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 affected by such
event, at such Person's address as it appears on the Note Register, not later
than the latest date, and not earlier than the earliest date, prescribed for the
giving of such notice. If notice to CARAT 2005-SN1 Noteholders 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 Noteholder shall affect the sufficiency of such
notice with respect to other CARAT 2005-SN1 Noteholders, 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.
(b) Where this CARAT Indenture provides for notice in any manner,
such notice may be waived in writing by any Person entitled to receive such
notice, either before or after the event, and such waiver shall be the
equivalent of such notice. Waivers of notice by CARAT 2005-SN1 Noteholders shall
be filed with the CARAT Indenture Trustee but such filing shall not be a
condition precedent to the validity of any action taken in reliance upon such a
waiver.
(c) In case, by reason of the suspension of regular mail service as
a result of a strike, work stoppage or similar activity, it shall be impractical
to mail notice of any event of CARAT 2005-SN1 Noteholders when such notice is
required to be given pursuant to any provision of this CARAT Indenture, then any
manner of giving such notice as shall be satisfactory to the CARAT Indenture
Trustee shall be deemed to be a sufficient giving of such notice.
(d) Where this CARAT Indenture provides for notice to the Rating
Agencies, failure to give such notice shall not affect any other rights or
obligations created hereunder, and shall not under any circumstance constitute
an Event of Default.
-58-
SECTION 11.6 Alternate Payment and Notice Provisions. Notwithstanding any
provision of this CARAT Indenture or any of the CARAT 2005-SN1 Notes to the
contrary, the Issuer may enter into any agreement with any Holder of a CARAT
2005-SN1 Note providing for a method of payment, or notice by the CARAT
Indenture Trustee or any Paying Agent to such Holder, that is different from the
methods provided for in this CARAT Indenture for such payments or notices. The
Issuer shall furnish to the CARAT Indenture Trustee a copy of each such
agreement and the CARAT Indenture Trustee shall cause payments to be made and
notices to be given in accordance with such agreements.
SECTION 11.7 Conflict with Trust Indenture Act.
(a) If any provision hereof limits, qualifies or conflicts with
another provision hereof that is required to be included in this CARAT Indenture
by any of the provisions of the TIA, such required provision shall control.
(b) The provisions of TIA Sections 310 through 317 that impose
duties on any Person (including the provisions automatically deemed included
herein unless expressly excluded by this CARAT Indenture) are a part of and
govern this CARAT Indenture, whether or not physically contained herein.
SECTION 11.8 Effect of Headings and Table of Contents. The Article and
Section headings herein and the Table of Contents are for convenience only and
shall not affect the construction hereof.
SECTION 11.9 Successors and Assigns.
(a) All covenants and agreements in this CARAT Indenture and the
CARAT 2005-SN1 Notes by the Issuer shall bind its successors and assigns,
whether so expressed or not.
(b) All covenants and agreements of the CARAT Indenture Trustee in
this CARAT Indenture shall bind its successors and assigns, whether so expressed
or not.
SECTION 11.10 Severability. In case any provision in this CARAT Indenture
or in the CARAT 2005-SN1 Notes shall be invalid, illegal or unenforceable, the
validity, legality, and enforceability of the remaining provisions shall not in
any way be affected or impaired thereby.
SECTION 11.11 Benefits of CARAT Indenture. Nothing in this CARAT Indenture
or in the CARAT 2005-SN1 Notes, express or implied, shall give to any Person,
other than the parties hereto and their successors hereunder, and to the extent
expressly provided herein, the CARAT 2005-SN1 Noteholders, the CARAT 2005-SN1
Certificateholders, any other party secured hereunder, any other Person with an
ownership interest in any part of the CARAT Trust Estate and any holder of a
Third Party Instrument, any benefit or any legal or equitable right, remedy or
claim under this CARAT Indenture. The holder of a Third Party Instrument shall
be a third-party beneficiary to this CARAT Indenture only to the extent that it
has any rights specified herein or rights with respect to this CARAT Indenture
specified under the Swap Counterparty Rights Agreement.
-59-
SECTION 11.12 Legal Holidays. If the date on which any payment is due
shall not be a Business Day, then (notwithstanding any other provision of the
CARAT 2005-SN1 Notes or this CARAT Indenture) payment need not be made on such
date, but may be made on the next succeeding Business Day with the same force
and effect as if made on the date on which nominally due, and no interest shall
accrue for the period from and after any such nominal date.
SECTION 11.13 GOVERNING LAW. THIS CARAT INDENTURE 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 CARAT INDENTURE SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
SECTION 11.14 Counterparts. This CARAT Indenture may be executed in any
number of counterparts, each of which so executed shall be deemed to be an
original, but all such counterparts shall together constitute but one and the
same instrument.
SECTION 11.15 Recording of CARAT Indenture. If this CARAT Indenture is
subject to recording in any appropriate public recording offices, such recording
is to be effected by the Issuer and at its expense accompanied by an Opinion of
Counsel (which may be counsel to the CARAT Indenture Trustee or any other
counsel reasonably acceptable to the CARAT Indenture Trustee) to the effect that
such recording is necessary either for the protection of the CARAT 2005-SN1
Noteholders or any other Person secured hereunder or for the enforcement of any
right or remedy granted to the CARAT Indenture Trustee under this CARAT
Indenture.
SECTION 11.16 No Recourse. No recourse may be taken, directly or
indirectly, with respect to the obligations of the Issuer, the CARAT Owner
Trustee or the CARAT Indenture Trustee on the CARAT 2005-SN1 Notes or under this
CARAT Indenture or any certificate or other writing delivered in connection
herewith or therewith, against:
(a) the CARAT Indenture Trustee or the CARAT Owner Trustee in its
individual capacity;
(b) the Seller or any other owner of a beneficial interest in the
Issuer; or
(c) any partner, owner, beneficiary, agent, officer, director,
employee or agent of the CARAT Indenture Trustee or the CARAT Owner Trustee in
its individual capacity, the Seller or any other holder of a beneficial interest
in the Issuer, the CARAT Owner Trustee or the CARAT Indenture Trustee or of any
successor or assign of the CARAT Indenture Trustee or the CARAT Owner Trustee in
its individual capacity (or any of their successors or assigns), except as any
such Person may have expressly agreed (it being understood that the CARAT
Indenture Trustee and the CARAT Owner Trustee have no such obligations in their
individual capacity) and except that any such partner, owner or beneficiary
shall be fully liable, to the extent provided by applicable law, for any unpaid
consideration for stock, unpaid capital contribution or failure to pay any
instalment or call owing to such entity. For all purposes of this CARAT
Indenture, in the performance of any duties or obligations of the Issuer
hereunder, the CARAT Owner Trustee
-60-
shall be subject to, and entitled to the benefits of, the terms and provisions
of Articles VI, VII and VIII of the Trust Agreement.
SECTION 11.17 No Petition. The CARAT Indenture Trustee, by entering into
this CARAT Indenture, and each CARAT 2005-SN1 Noteholder and Note Owner, by
accepting a CARAT 2005-SN1 Note (or interest therein) issued hereunder, hereby
covenant and agree that they shall not, prior to the date which is one year and
one day after the termination of this CARAT Indenture with respect to the Issuer
pursuant to Section 4.1, acquiesce, petition or otherwise invoke or cause the
Seller or the Issuer to invoke the process of any court or government authority
for the purpose of commencing or sustaining a case against the Seller or the
Issuer 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 Seller or the Issuer or any substantial part of
its property, or ordering the winding up or liquidation of the affairs of the
Seller or the Issuer.
SECTION 11.18 Inspection. The Issuer agrees that, on reasonable prior
notice, it shall permit any representative of the CARAT Indenture Trustee,
during the Issuer's normal business hours, to examine all the books of account,
records, reports, and other papers of the Issuer, to make copies and extracts
therefrom, to cause such books to be audited by Independent certified public
accountants, and to discuss the Issuer's affairs, finances and accounts with the
Issuer's officers, employees and Independent certified public accountants, all
at such reasonable times and as often as may be reasonably requested. The CARAT
Indenture Trustee shall and shall cause its representatives to hold in
confidence all such information except to the extent disclosure may be required
by law (and all reasonable applications for confidential treatment are
unavailing) and except to the extent that the CARAT Indenture Trustee may
reasonably determine that such disclosure is consistent with its obligations
hereunder.
SECTION 11.19 Indemnification by and Reimbursement of the Trust
Administrator. The CARAT Indenture Trustee acknowledges and agrees to reimburse
(i) the Trust Administrator and its directors, officers, employees and agents in
accordance with Section 6.03(b) of the Trust Sale and Administration Agreement
and (ii) the Seller and its directors, officers, employees and agents in
accordance with Section 3.04 of the Trust Sale and Administration Agreement. The
CARAT Indenture Trustee further acknowledges and accepts the conditions and
limitations with respect to the Trust Administrator's obligation to indemnify,
defend and hold the CARAT Indenture Trustee harmless as set forth in Section
6.01(a) of the Trust Sale and Administration Agreement.
-61-
IN WITNESS WHEREOF, the Issuer and the CARAT Indenture Trustee have caused
this CARAT Indenture to be duly executed by their respective officers, thereunto
duly authorized, all 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
By: /s/ Eva Aryeetey
----------------------------------------------
Name:Eva Aryeetey
Title: Attorney-in-Fact
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-SNI Indenture
S-1
STATE OF _____________)
) ss
COUNTY OF ____________)
BEFORE ME, the undersigned authority, a Notary Public in and for said
county and state, on this day personally appeared_______, known to me to be the
person and officer whose name is subscribed to the foregoing instrument and
acknowledged to me that the same was the act of the said Capital Auto
Receivables Asset Trust 2005-SN1, a Delaware statutory trust, and that she
executed the same as the act of said statutory trust for the purpose and
consideration therein expressed, and in the capacities therein stated.
GIVEN UNDER MY HAND AND SEAL OF OFFICE, this the ___ day of _____________,
2005.
Notary Public in and for the State of ___________
My commission expires:
Indenture
STATE OF ____________)
) ss
COUNTY OF____________)
BEFORE ME, the undersigned authority, a Notary Public in and for said
county and state, on this day personally appeared ___________________, known to
me to be the person and officer whose name is subscribed to the foregoing
instrument and acknowledged to me that the same was the act of the said
Citibank, N.A., and that he executed the same as the act of said national
banking association for the purpose and consideration therein stated.
GIVEN UNDER MY HAND AND SEAL OF OFFICE, this the ___ day of _____________,
2005.
Notary Public in and for the State of ___________
My commission expires:
_____________________
Indenture
EXHIBIT A
LOCATION OF
SCHEDULE OF COLT 2005-SN1 SECURED NOTES
The Schedule of COLT 2005-SN1 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.
Indenture
EXHIBIT B
FORM OF NOTE DEPOSITORY AGREEMENT FOR THE OFFERED NOTES
AND CLASS A-1 NOTES
(attached hereto)
Indenture
EXHIBIT C-1
FORM OF CLASS A-2A, CLASS A-3A AND
CLASS B-1 FIXED RATE ASSET BACKED NOTE
REGISTERED $[___________]
No. R-[_____]
Interest Rate [____] % per annum
SEE REVERSE FOR CERTAIN DEFINITIONS
CUSIP NO. [_____]
UNLESS THIS [CLASS A-2a] [CLASS A-3a] [CLASS B-1]
NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE ISSUER OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY
[CLASS A-2a] [CLASS A-3a] [CLASS B-1] NOTE ISSUED IS REGISTERED IN
THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE &
CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE
REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THE PRINCIPAL OF THIS [CLASS A-2a] [CLASS A-3a] [CLASS B-1]
NOTE IS PAYABLE AS SET FORTH HEREIN. ACCORDINGLY, THE OUTSTANDING
PRINCIPAL AMOUNT OF THIS [CLASS A-2a] [CLASS A-3a] [CLASS B-1] NOTE AT ANY
TIME MAY BE LESS THAN THE AMOUNT SHOWN ON THE FACE HEREOF.
C-1-1
CAPITAL AUTO RECEIVABLES ASSET TRUST 2005-SN1
[CLASS A-2a] [CLASS A-3a] [CLASS B-1] FIXED RATE
ASSET BACKED NOTES
CAPITAL AUTO RECEIVABLES ASSET TRUST 2005-SN1, a statutory trust
organized and existing under the laws of the State of Delaware (herein referred
to as the "Issuer"), for value received, hereby promises to pay to CEDE & CO.,
or registered assigns, the principal sum of _______________ DOLLARS ($_________)
or such lesser outstanding amount as may be payable in accordance with the CARAT
Indenture (as defined on the reverse side of this CARAT 2005-SN1 Note), on each
Distribution Date in an amount equal to the result obtained by multiplying (i) a
fraction, the numerator of which is the principal amount hereof and the
denominator of which is aggregate principal amount for such [Class A-2a] [Class
A-3a] [Class B-1] Notes by (ii) the aggregate amount, if any, payable on such
Distribution Date from the Note Distribution Account in respect of principal on
the [Class A-2a] [Class A-3a] [Class B-1] Notes pursuant to Sections 2.7, 3.1
and 8.2(c) of the CARAT Indenture; provided, however, that the entire unpaid
principal amount of this [Class A-2a] [Class A-3a] [Class B-1] Note shall be due
and payable on [__________] (the "Final Scheduled Distribution Date"), unless
this [Class A-2a] [Class A-3a] [Class B-1] Note is earlier redeemed, pursuant to
Section 10.1 of the CARAT Indenture, in which case such unpaid principal amount
shall be due on the Redemption Date. The Issuer shall pay interest on this
[Class A-2a] [Class A-3a] [Class B-1] Note at the rate per annum shown above on
each Distribution Date in accordance with the terms of the CARAT Indenture until
the principal of this [Class A-2a] [Class A-3a] [Class B-1] Note is paid or made
available for payment on the principal amount of this [Class A-2a] [Class A-3a]
[Class B-1] Note outstanding on the preceding Distribution Date (after giving
effect to all payments of principal made on the preceding Distribution Date (or,
for the initial Distribution Date, the outstanding principal balance on the
Series 2005-SN1 Closing Date)). Interest on the [Class A-2a] [Class A-3a] [Class
B-1] Notes will accrue from and including the Series 2005-SN1 Closing Date at
the rate per annum shown above, and will be payable on each Distribution Date in
an amount equal to the CARAT 2005-SN1 Noteholders' Note Class Interest
Distributable Amount for such Distribution Date for the [Class A-2a] [Class
A-3a] [Class B-1] Notes. Interest will be computed on the basis of a 360-day
year of twelve 30-day months (or, in the case of the initial Distribution Date,
17/360). Such principal of and interest on this [Class A-2a] [Class A-3a] [Class
B-1] Note shall be paid in the manner specified in the CARAT Indenture. All
interest payments on this [Class A-2a] [Class A-3a] [Class B-1] Note on any
Distribution Date shall be made pro rata to the [Class A-2a] [Class A-3a] [Class
B-1] Noteholders entitled thereto.
The principal of and interest on this [Class A-2a] [Class A-3a]
[Class B-1] Note are payable in such coin or currency of the United States of
America which, at the time of payment, is legal tender for payment of public and
private debts. All payments made by the Issuer with respect to this [Class A-2a]
[Class A-3a][Class B-1] Note shall be applied first to interest due and payable
on this [Class A-2a] [Class A-3a][Class B-1] Note as provided above and then to
the unpaid principal of this [Class A-2a] [Class A-3a] [Class B-1] Note.
C-1-2
Reference is made to the further provisions of this [Class A-2a]
[Class A-3a] [Class B-1] Note set forth on the reverse hereof, which shall have
the same effect as though fully set forth on the face of this [Class A-2a]
[Class A-3a] [Class B-1] Note.
Unless the certificate of authentication hereon has been executed by
the CARAT Indenture Trustee whose name appears below by manual signature, this
[Class A-2a] [Class A-3a] [Class B-1] Note shall not be entitled to any benefit
under the CARAT Indenture referred to on the reverse hereof or be valid or
obligatory for any purpose.
C-1-3
IN WITNESS WHEREOF, the Issuer has caused this instrument to be
signed, manually or in facsimile, by its Authorized Officer.
Date: __________, 2005
CAPITAL AUTO RECEIVABLES ASSET TRUST
2005-SN1
By: DEUTSCHE BANK TRUST COMPANY
DELAWARE, not in its individual capacity
but solely as CARAT Owner Trustee
By: _____________________________________________
Name:
Title:
C-1-4
CARAT INDENTURE TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the CARAT 2005-SN1 Notes designed above and referred
to in the within-mentioned CARAT Indenture.
CITIBANK, N.A., not in its
individual capacity but solely as CARAT Indenture
Trustee
By: ______________________________________
Name:
Title:
C-1-5
REVERSE OF NOTE
This CARAT 2005-SN1 Note is one of a duly authorized issue of CARAT
2005-SN1 Notes of the Issuer, designated as [Class A-2a] [Class A-3a] [Class
B-1] Fixed Rate Asset Backed Notes (herein called the "[Class A-2a] [Class A-3a]
[Class B-1] Notes"), all issued under a CARAT Indenture, dated as of April 28,
2005 (such CARAT Indenture, as supplemented or amended, is herein called the
"CARAT Indenture"), between the Issuer and CITIBANK, N.A., as trustee (the
"CARAT Indenture Trustee", which term includes any successor trustee under the
CARAT Indenture), to which CARAT Indenture and all indentures supplemental
thereto reference is hereby made for a statement of the respective rights and
obligations thereunder of the Issuer, the CARAT Indenture Trustee and the CARAT
2005-SN1 Noteholders. The [Class A-2a] [Class A-3a] [Class B-1] Notes are one of
several duly authorized classes of CARAT 2005-SN1 Notes of the Issuer issued
pursuant to the CARAT Indenture (collectively, as to all CARAT 2005-SN1 Notes of
all such classes, the "CARAT 2005-SN1 Notes"). The CARAT 2005-SN1 Notes are
governed by and subject to all terms of the CARAT Indenture (which terms are
incorporated herein and made a part hereof), to which CARAT Indenture the Holder
of this CARAT 2005-SN1 Note by virtue of acceptance hereof assents and by which
such Holder is bound. All capitalized terms used and not otherwise defined in
this CARAT 2005-SN1 Note that are defined in the CARAT Indenture, as
supplemented or amended, shall have the meanings assigned to them in or pursuant
to the CARAT Indenture.
The [Class A-2a] [Class A-3a] [Class B-1] Notes and all other CARAT
2005-SN1 Notes issued pursuant to the CARAT Indenture are and will be equally
and ratably secured by the Collateral pledged as security therefor as provided
in the CARAT Indenture.
Each CARAT 2005-SN1 Noteholder or Note Owner will be deemed to
represent and warrant that either (A) it is not an (i) "employee benefit plan"
(as defined in Section 3(3) of the United States Employee Retirement Income
Security Act of 1974, as amended ("ERISA"), that is subject to the provisions of
Title I of ERISA, (ii) a "plan" described in Section 4975(e)(1) of the Internal
Revenue Code of 1986, as amended (the "Code"), or (iii) any entity whose
underlying assets include plan assets by reason of a plan's investment in the
entity or (B) the purchase, holding and disposition of the CARAT 2005-SN1 Note
will not result in a non-exempt prohibited transaction under Section 406(a) of
ERISA or Section 4975 of the Code.
Each CARAT 2005-SN1 Noteholder or Note Owner, by acceptance of a
CARAT 2005-SN1 Note or, in the case of a Note Owner, a beneficial interest in a
CARAT 2005-SN1 Note, covenants and agrees that no recourse may be taken,
directly or indirectly, with respect to the obligations of the Issuer, the CARAT
Owner Trustee or the CARAT Indenture Trustee on the CARAT 2005-SN1 Notes or
under the CARAT Indenture or any certificate or other writing delivered in
connection therewith, against (i) the CARAT Indenture Trustee or the CARAT Owner
Trustee in their individual capacities, (ii) the Seller or any other owner of a
beneficial interest in the Issuer or (iii) any partner, owner, beneficiary,
agent, officer, director or employee of the CARAT Indenture Trustee or the CARAT
Owner Trustee in their individual capacities, any holder of a beneficial
interest in the Issuer, the CARAT Owner Trustee or the CARAT Indenture Trustee
or of any successor or assign of the CARAT Indenture Trustee or the CARAT Owner
Trustee in their individual capacities, except as any such Person may have
expressly agreed and except that any such partner, owner or beneficiary shall be
fully liable, to the extent
C-1-6
provided by applicable law, for any unpaid consideration for stock, unpaid
capital contribution or failure to pay any instalment or call owing to such
entity.
Each CARAT 2005-SN1 Noteholder or Note Owner, by acceptance of a
CARAT 2005-SN1 Note or, in the case of a Note Owner, a beneficial interest in a
CARAT 2005-SN1 Note, covenants and agrees that by accepting the benefits of the
CARAT Indenture such CARAT 2005-SN1 Noteholder will not, prior to the date which
is one year and one day after the termination of the CARAT Indenture with
respect to the Issuer, acquiesce, petition or otherwise invoke or cause the
Seller or the Issuer to invoke the process of any court or government authority
for the purpose of commencing or sustaining a case against the Seller or the
Issuer 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 Seller or the Issuer or any substantial part of
its property, or ordering the winding up or liquidation of the affairs of the
Seller or the Issuer.
Each CARAT 2005-SN1 Noteholder or Note Owner, by acceptance of a
CARAT 2005-SN1 Note or, in the case of a Note Owner, a beneficial interest in a
CARAT 2005-SN1 Note, expresses its intention that this CARAT 2005-SN1 Note
qualifies under applicable tax law as indebtedness secured by the Collateral
and, unless otherwise required by appropriate taxing authorities, agrees to
treat the CARAT 2005-SN1 Notes as indebtedness secured by the Collateral for the
purpose of federal income taxes, state and local income and franchise taxes,
Michigan single business tax, and any other taxes imposed upon, measured by or
based upon gross or net income.
Prior to the due presentment for registration of transfer of this
CARAT 2005-SN1 Note, the Issuer, the CARAT Indenture Trustee and any agent of
the Issuer or the CARAT Indenture Trustee may treat the Person in whose name
this CARAT 2005-SN1 Note (as of the day of determination or as of such other
date as may be specified in the CARAT Indenture) is registered as the owner
hereof for all purposes, whether or not this CARAT 2005-SN1 Note shall be
overdue, and neither the Issuer, the CARAT Indenture Trustee nor any such agent
shall be affected by notice to the contrary.
The CARAT Indenture permits, with certain exceptions as therein
provided, the amendment thereof and the modification of the rights and
obligations of the Issuer and the rights of the CARAT 2005-SN1 Noteholders under
the CARAT Indenture at any time by the Issuer with the consent of the Holders of
CARAT 2005-SN1 Notes representing a majority of the Outstanding Amount of the
Controlling Class. The CARAT Indenture also contains provisions permitting the
Holders of CARAT 2005-SN1 Notes representing specified percentages of the
Outstanding Amount of the Controlling Class, on behalf of the Holders of all
CARAT 2005-SN1 Notes, to waive compliance by the Issuer with certain provisions
of the CARAT Indenture and certain past defaults under the CARAT Indenture and
their consequences. Any such consent or waiver by the Holder of this CARAT
2005-SN1 Note (or any one of more Predecessor Notes) shall be conclusive and
binding upon such Holder and upon all future Holders of this CARAT 2005-SN1 Note
and of any CARAT 2005-SN1 Note issued upon the registration of transfer hereof
or in exchange hereof or in lieu hereof whether or not notation of such consent
or waiver is made upon this CARAT 2005-SN1 Note. The CARAT Indenture also
permits the CARAT
C-1-7
Indenture Trustee to amend or waive certain terms and conditions set forth in
the CARAT Indenture without the consent of the CARAT 2005-SN1 Noteholders.
The term "Issuer" as used in this CARAT 2005-SN1 Note includes any
successor to the Issuer under the CARAT Indenture.
The Issuer is permitted by the CARAT Indenture, under certain
circumstances, to merge or consolidate, subject to the rights of the CARAT
Indenture Trustee and the Holders of CARAT 2005-SN1 Notes under the CARAT
Indenture.
The CARAT 2005-SN1 Notes are issuable only in registered form in
denominations as provided in the CARAT Indenture, subject to certain limitations
therein set forth.
This CARAT 2005-SN1 Note and the CARAT Indenture shall be construed
in accordance with the laws of the State of New York, without reference to its
conflict of law provisions, and the obligations, rights and remedies of the
parties hereunder and thereunder shall be determined in accordance with such
laws.
No reference herein to the CARAT Indenture and no provision of this
CARAT 2005-SN1 Note or of the CARAT Indenture shall alter or impair the
obligation of the Issuer, which is absolute and unconditional, to pay the
principal of and interest on this CARAT 2005-SN1 Note at the times, place and
rate, and in the coin or currency herein prescribed.
Anything herein to the contrary notwithstanding, except as expressly
provided in the CARAT Basic Documents, neither the Seller, the Trust
Administrator, the CARAT Indenture Trustee nor the CARAT Owner Trustee in their
respective individual capacities, any owner of a beneficial interest in the
Issuer, nor any of their respective partners, beneficiaries, agents, officers,
directors, employees or successors or assigns, shall be personally liable for,
nor shall recourse be had to any of them for, the payment of principal of or
interest on, or performance of, or omission to perform, any of the covenants,
obligations or indemnifications contained in this CARAT 2005-SN1 Note or the
CARAT Indenture, it being expressly understood that said covenants, obligations
and indemnifications have been made by the CARAT Owner Trustee solely as the
CARAT Owner Trustee in the assets of the Issuer. The Holder of this CARAT
2005-SN1 Note by the acceptance hereof agrees that, except as expressly provided
in the CARAT Basic Documents, in the case of an Event of Default under the CARAT
Indenture, the Holder shall have no claim against any of the foregoing for any
deficiency, loss or claim therefrom; provided, however, that nothing contained
herein shall be taken to prevent recourse to, and enforcement against, the
assets of the Issuer for any and all liabilities, obligations and undertakings
contained in the CARAT Indenture or in this CARAT 2005-SN1 Note.
C-1-8
ASSIGNMENT
Social Security or taxpayer I.D. or other identifying number of assignee
__________________________________
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers
unto _______________________________________________
________________________________________________________________________________
(name and address of assignee)
the within CARAT 2005-SN1 Note and all rights thereunder, and hereby irrevocably
constitutes and appoints ____________________________________, as attorney, to
transfer said CARAT 2005-SN1 Note on the books kept for registration thereof,
with full power of substitution in the premises.
Dated:____________________________ ____________________________________(1)
Signature Guaranteed:
____________________________ ____________________________________
- ----------
(1) NOTE: The signature to this assignment must correspond with the name of the
registered owner as it appears on the face of the within CARAT 2005-SN1 Note in
every particular, without alteration, enlargement or any change whatsoever.
C-1-9
EXHIBIT C-2
FORM OF CLASS A-2B, CLASS A-3B, CLASS A-4, CLASS B-2
AND CLASS C FLOATING RATE ASSET BACKED NOTE
REGISTERED $[__________]
No. R-[____]
Interest Rate: LIBOR + [__] % per annum
SEE REVERSE FOR CERTAIN DEFINITIONS
CUSIP NO. [__]
UNLESS THIS [CLASS A-2b] [CLASS A-3b] [CLASS A-4] [CLASS B-2]
[CLASS C] NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE ISSUER OR
ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY
[CLASS A-2b] [CLASS A-3b] [CLASS A-4] [CLASS B-2] [CLASS C] NOTE ISSUED IS
REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED
BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE &
CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE
OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THE PRINCIPAL OF THIS [CLASS A-2b] [CLASS A-3b] [CLASS A-4]
[CLASS B-2] [CLASS C] NOTE IS PAYABLE AS SET FORTH HEREIN. ACCORDINGLY,
THE OUTSTANDING PRINCIPAL AMOUNT OF THIS [CLASS A-2b] [CLASS A-3b] [CLASS
A-4] [CLASS B-2] [CLASS C] NOTE AT ANY TIME MAY BE LESS THAN THE AMOUNT
SHOWN ON THE FACE HEREOF.
C-2-1
CAPITAL AUTO RECEIVABLES ASSET TRUST 2005-SN1
[CLASS A-2b] [CLASS A-3b] [CLASS A-4] [CLASS B-2] [CLASS C] FLOATING RATE
ASSET BACKED NOTES
CAPITAL AUTO RECEIVABLES ASSET TRUST 2005-SN1, a statutory trust
organized and existing under the laws of the State of Delaware (herein referred
to as the "Issuer"), for value received, hereby promises to pay to CEDE & CO.,
or registered assigns, the principal sum of _______ DOLLARS ($______) or such
lesser outstanding amount as may be payable in accordance with the CARAT
Indenture (as defined on the reverse side of this CARAT 2005-SN1 Note), on each
Distribution Date in an amount equal to the result obtained by multiplying (i) a
fraction, the numerator of which is the initial principal amount hereof and the
denominator of which is the initial aggregate principal amount for such [Class
A-2b] [Class A-3b] [Class A-4] [Class B-2] [Class C] Notes, by (ii) the
aggregate amount, if any, payable on such Distribution Date from the CARAT
2005-SN1 Note Distribution Account in respect of principal on this [Class A-2b]
[Class A-4] [Class A-3b] [Class B-2] [Class C] Notes pursuant to Sections 2.7,
3.1 and 8.2(c) of the CARAT Indenture; provided, however, that the entire unpaid
principal amount of this [Class A-2b] [Class A-3b] [Class A-4] [Class B-2]
[Class C] Note shall be due and payable on [___________] (the "Final Scheduled
Distribution Date"), unless this [Class A-2b] [Class A-3b] [Class A-4] [Class
B-2] [Class C] Note is earlier redeemed pursuant to Section 10.1 of the CARAT
Indenture, in which case such unpaid principal amount shall be due on the
Redemption Date. The Issuer shall pay interest on this [Class A-2b] [Class A-3b]
[Class A-4] [Class B-2] [Class C] Note on each Distribution Date in accordance
with the terms of the CARAT Indenture until the principal of this [Class A-2b]
[Class A-3b] [Class A-4] [Class B-2] [Class C] Note is paid or made available
for payment on the principal amount of this [Class A-2b] [Class A-3b] [Class
A-4] [Class B-2] [Class C] Note outstanding on the preceding Distribution Date
(after giving effect to all payments of principal made on the preceding
Distribution Date (or, for the initial Distribution Date, the outstanding
principal balance on the Series 2005-SN1 Closing Date)). Interest on the [Class
A-2b] [Class A-3b] [Class A-4] [Class B-2] [Class C] Notes will accrue from and
including the Series 2005-SN1 Closing Date at the rate per annum shown above,
and will be payable on each Distribution Date in an amount equal to the CARAT
2005-SN1 Noteholders' Note Class Interest Distributable Amount for such Class on
such Distribution Date for the [Class A-2b] [Class A-3b] [Class A-4] [Class B-2]
[Class C] Notes. Interest will be computed on the basis of actual 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 the current Distribution Date and a 360-day year. Such principal
of and interest on this [Class A-2b] [Class A-3b] [Class A-4] [Class B-2] [Class
C] Note shall be paid in the manner specified in the CARAT Indenture. All
interest payments on the [Class A-2b] [Class A-3b] [Class A-4] [Class B-2]
[Class C] Notes on any Distribution Date shall be made pro rata to the [Class
A-2b] [Class A-3b] [Class A-4] [Class B-2] [Class C] Noteholders entitled
thereto.
The principal of and interest on this [Class A-2b] [Class A-3b]
[Class A-4] [Class B-2] [Class C] Note are payable in such coin or currency of
the United States of America which, at the time of payment, is legal tender for
payment of public and private debts. All payments
C-2-2
made by the Issuer with respect to this [Class A-2b] [Class A-3b] [Class A-4]
[Class B-2] [Class C] Note shall be applied first to interest due and payable on
this [Class A-2b] [Class A-3b] [Class A-4] [Class B-2] [Class C] Note as
provided above and then to the unpaid principal of this [Class A-2b] [Class
A-3b] [Class A-4] [Class B-2] [Class C] Note as provided above.
Reference is made to the further provisions of this [Class A-2b]
[Class A-3b] [Class A-4] [Class B-2] [Class C] Note set forth on the reverse
hereof, which shall have the same effect as though fully set forth on the face
of this [Class A-2b] [Class A-3b] [Class A-4] [Class B-2] [Class C] Note.
Unless the certificate of authentication hereon has been executed by
the CARAT Indenture Trustee whose name appears below by manual signature, this
[Class A-2b] [Class A-3b] [Class A-4] [Class B-2] [Class C] Note shall not be
entitled to any benefit under the CARAT Indenture referred to on the reverse
hereof or be valid or obligatory for any purpose.
C-2-3
IN WITNESS WHEREOF, the Issuer has caused this instrument to
be signed, manually or in facsimile, by its Authorized Officer.
Date: ___________________, 2005
CAPITAL AUTO RECEIVABLES ASSET TRUST
2005-SN1
By: DEUTSCHE BANK TRUST COMPANY DELAWARE,
not in its individual capacity
but solely as CARAT Owner Trustee
By: __________________________________________
Name:
Title:
C-2-4
CARAT INDENTURE TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the CARAT 2005-SN1 Notes designed above and referred
to in the within-mentioned CARAT Indenture.
CITIBANK, N.A., not in its individual capacity
but solely as CARAT Indenture Trustee
By: ______________________________________
Name:
Title:
C-2-5
REVERSE OF NOTE
This CARAT 2005-SN1 Note is one of a duly authorized issue of CARAT
2005-SN1 Notes of the Issuer, designated as its [Class A-2b] [Class A-3b] [Class
A-4] [Class B-2] [Class C] Floating Rate Asset Backed Notes (herein called the
"[Class A-2b] [Class A-3b] [Class A-4] [Class B-2] [Class C] Notes"), all issued
under an CARAT Indenture, dated as of April 28, 2005 (such CARAT Indenture, as
supplemented or amended, is herein called the "CARAT Indenture"), between the
Issuer and CITIBANK, N.A., as trustee (the "CARAT Indenture Trustee", which term
includes any successor trustee under the CARAT Indenture), to which CARAT
Indenture and all indentures supplemental thereto reference is hereby made for a
statement of the respective rights and obligations thereunder of the Issuer, the
CARAT Indenture Trustee and the CARAT 2005-SN1 Noteholders. The [Class A-2b]
[Class A-3b] [Class A-4] [Class B-2] [Class C] Notes are one of several duly
authorized classes of CARAT 2005-SN1 Notes of the Issuer issued pursuant to the
CARAT Indenture (collectively, as to all CARAT 2005-SN1 Notes of all such
classes, the "CARAT 2005-SN1 Notes"). The CARAT 2005-SN1 Notes are governed by
and subject to all terms of the CARAT Indenture (which terms are incorporated
herein and made a part hereof), to which CARAT Indenture the Holder of this
CARAT 2005-SN1 Note by virtue of acceptance hereof assents and by which such
Holder is bound. All capitalized terms used and not otherwise defined in this
CARAT 2005-SN1 Note that are defined in the CARAT Indenture, as supplemented or
amended, shall have the meanings assigned to them in or pursuant to the CARAT
Indenture.
The [Class A-2b] [Class A-3b] [Class A-4] [Class B-2] [Class C]
Notes and all other CARAT 2005-SN1 Notes issued pursuant to the CARAT Indenture
are and will be equally and ratably secured by the Collateral pledged as
security therefor as provided in the CARAT Indenture.
Each CARAT 2005-SN1 Noteholder or Note Owner will be deemed to
represent and warrant that either (A) it is not (i) an "employee benefit plan"
(as defined in Section 3(3) of the United States Employee Retirement Income
Security Act of 1974, as amended ("ERISA"), that is subject to the provisions of
Title I of ERISA, (ii) a "plan" as described in Section 4975(e)(1) of the
Internal Revenue Code of 1986, as amended (the "Code") or (iii) any entity whose
underlying assets include plan assets by reason of a plan's investment in the
entity or (B) the purchase, holding and disposition of the CARAT 2005-SN1 Note
will not result in a non-exempt prohibited transaction under Section 406(a) of
ERISA or Section 4975 of the Code.
Each CARAT 2005-SN1 Noteholder or Note Owner, by acceptance of a
CARAT 2005-SN1 Note or, in the case of a Note Owner, a beneficial interest in a
CARAT 2005-SN1 Note, covenants and agrees that no recourse may be taken,
directly or indirectly, with respect to the obligations of the Issuer, the CARAT
Owner Trustee or the CARAT Indenture Trustee on the CARAT 2005-SN1 Notes or
under the CARAT Indenture or any certificate or other writing delivered in
connection therewith, against (i) the CARAT Indenture Trustee or the CARAT Owner
Trustee in their individual capacities, (ii) the Seller or any other owner of a
beneficial interest in the Issuer or (iii) any partner, owner, beneficiary,
agent, officer, director or employee of the CARAT Indenture Trustee or the CARAT
Owner Trustee in their individual capacities, any holder of a beneficial
interest in the Issuer, the CARAT Owner Trustee or the CARAT Indenture Trustee
or of any successor or assign of the CARAT Indenture Trustee or the CARAT
C-2-6
Owner Trustee in their individual capacities, except as any such Person may have
expressly agreed and except that any such partner, owner or beneficiary shall be
fully liable, to the extent provided by applicable law, for any unpaid
consideration for stock, unpaid capital contribution or failure to pay any
instalment or call owing to such entity.
Each CARAT 2005-SN1 Noteholder or Note Owner, by acceptance of a
CARAT 2005-SN1 Note or, in the case of a Note Owner, a beneficial interest in a
CARAT 2005-SN1 Note, covenants and agrees that by accepting the benefits of the
CARAT Indenture such CARAT 2005-SN1 Noteholder will not, prior to the date which
is one year and one day after the termination of the CARAT Indenture with
respect to the Issuer, acquiesce, petition or otherwise invoke or cause the
Seller or the Issuer to invoke the process of any court or government authority
for the purpose of commencing or sustaining a case against the Seller or the
Issuer 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 Seller or the Issuer or any substantial part of
its property, or ordering the winding up or liquidation of the affairs of the
Seller or the Issuer.
Each CARAT 2005-SN1 Noteholder or Note Owner, by acceptance of a
CARAT 2005-SN1 Note or, in the case of a Note Owner, a beneficial interest in a
CARAT 2005-SN1 Note, expresses its intention that this CARAT 2005-SN1 Note
qualifies under applicable tax law as indebtedness secured by the Collateral
and, unless otherwise required by appropriate taxing authorities, agrees to
treat the CARAT 2005-SN1 Notes as indebtedness secured by the Collateral for the
purpose of federal income taxes, state and local income and franchise taxes,
Michigan single business tax, and any other taxes imposed upon, measured by or
based upon gross or net income.
Prior to the due presentment for registration of transfer of this
CARAT 2005-SN1 Note, the Issuer, the Indenture Trustee and any agent of the
Issuer or the CARAT Indenture Trustee may treat the Person in whose name this
CARAT 2005-SN1 Note (as of the day of determination or as of such other date as
may be specified in the CARAT Indenture) is registered as the owner hereof for
all purposes, whether or not this CARAT 2005-SN1 Note shall be overdue, and
neither the Issuer, the CARAT Indenture Trustee nor any such agent shall be
affected by notice to the contrary.
The CARAT Indenture permits, with certain exceptions as therein
provided, the amendment thereof and the modification of the rights and
obligations of the Issuer and the rights of the CARAT 2005-SN1 Noteholders under
the CARAT Indenture at any time by the Issuer with the consent of the Holders of
CARAT 2005-SN1 Notes representing a majority of the Outstanding Amount of the
Controlling Class. The CARAT Indenture also contains provisions permitting the
Holders of CARAT 2005-SN1 Notes representing specified percentages of the
Outstanding Amount of the Controlling Class, on behalf of the Holders of all the
CARAT 2005-SN1 Notes, to waive compliance by the Issuer with certain provisions
of the CARAT Indenture and certain past defaults under the CARAT Indenture and
their consequences. Any such consent or waiver by the Holder of this CARAT
2005-SN1 Note (or any one of more Predecessor Notes) shall be conclusive and
binding upon such Holder and upon all future Holders of this CARAT 2005-SN1 Note
and of any CARAT 2005-SN1 Note issued upon the registration of transfer hereof
or in exchange hereof or in lieu hereof whether or not notation of such consent
or waiver
C-2-7
is made upon this CARAT 2005-SN1 Note. The CARAT Indenture also permits the
CARAT Indenture Trustee to amend or waive certain terms and conditions set forth
in the CARAT Indenture without the consent of the Noteholders.
The term "Issuer" as used in this CARAT 2005-SN1 Note includes any
successor to the Issuer under the CARAT Indenture.
The Issuer is permitted by the CARAT Indenture, under certain
circumstances, to merge or consolidate, subject to the rights of the CARAT
Indenture Trustee and the Holders of CARAT 2005-SN1 Notes under the CARAT
Indenture.
The CARAT 2005-SN1 Notes are issuable only in registered form in
denominations as provided in the CARAT Indenture, subject to certain limitations
therein set forth.
This CARAT 2005-SN1 Note and the CARAT Indenture shall be construed
in accordance with the laws of the State of New York, without reference to its
conflict of law provisions, and the obligations, rights and remedies of the
parties hereunder and thereunder shall be determined in accordance with such
laws.
No reference herein to the CARAT Indenture and no provision of this
CARAT 2005-SN1 Note or of the CARAT Indenture shall alter or impair the
obligation of the Issuer, which is absolute and unconditional, to pay the
principal of and interest on this CARAT 2005-SN1 Note at the times, place and
rate, and in the coin or currency herein prescribed.
Anything herein to the contrary notwithstanding, except as expressly
provided in the CARAT Basic Documents, neither the Seller, the Trust
Administrator, the CARAT Indenture Trustee nor the CARAT Owner Trustee in their
respective individual capacities, any owner of a beneficial interest in the
Issuer, nor any of their respective partners, beneficiaries, agents, officers,
directors, employees or successors or assigns, shall be personally liable for,
nor shall recourse be had to any of them for, the payment of principal of or
interest on, or performance of, or omission to perform, any of the covenants,
obligations or indemnifications contained in this CARAT 2005-SN1 Note or the
CARAT Indenture, it being expressly understood that said covenants, obligations
and indemnifications have been made by the CARAT Owner Trustee solely as the
CARAT Owner Trustee in the assets of the Issuer. The Holder of this CARAT
2005-SN1 Note by the acceptance hereof agrees that, except as expressly provided
in the CARAT Basic Documents, in the case of an Event of Default under the CARAT
Indenture, the Holder shall have no claim against any of the foregoing for any
deficiency, loss or claim therefrom; provided, however, that nothing contained
herein shall be taken to prevent recourse to, and enforcement against, the
assets of the Issuer for any and all liabilities, obligations and undertakings
contained in the CARAT Indenture or in this CARAT 2005-SN1 Note.
C-2-8
ASSIGNMENT
Social Security or taxpayer I.D. or other identifying number of assignee
__________________________________
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
_______________________________________________
________________________________________________________________________________
(name and address of assignee)
the within CARAT 2005-SN1 Note and all rights thereunder, and hereby irrevocably
constitutes and appoints ____________________________________, as attorney, to
transfer said Note on the books kept for registration thereof, with full power
of substitution in the premises.
Dated:____________________________ ______________________________________(2)
Signature Guaranteed:
____________________________ _________________________________________
(2) NOTE: The signature to this assignment must correspond with the name of the
registered owner as it appears on the face of the within CARAT 2005-SN1 in every
particular, without alteration, enlargement or any change whatsoever.
C-2-9
EXHIBIT C-3
FORM OF RULE 144A GLOBAL
CLASS A-1 NOTE
REGISTERED Up to $____________
No. R-144A
Interest Rate [__] % per annum
SEE REVERSE FOR CERTAIN DEFINITIONS
CUSIP NO. [__]
UNLESS THIS RULE 144A GLOBAL CLASS A-1 NOTE IS PRESENTED BY AN
AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK
CORPORATION ("DTC"), TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY RULE 144A GLOBAL CLASS A-1 NOTE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE
OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THE PRINCIPAL OF THIS RULE 144A GLOBAL CLASS A-1 NOTE IS
PAYABLE AS SET FORTH HEREIN. ACCORDINGLY, THE OUTSTANDING PRINCIPAL AMOUNT
OF THIS RULE 144A GLOBAL CLASS A-1 NOTE AT ANY TIME MAY BE LESS THAN THE
AMOUNT SHOWN ON THE FACE HEREOF.
THIS RULE 144A GLOBAL CLASS A-1 NOTE HAS NOT BEEN AND WILL NOT BE
REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE "U.S.
SECURITIES ACT"), OR UNDER THE SECURITIES OR BLUE SKY LAWS OF ANY STATE IN THE
UNITED STATES OR ANY FOREIGN SECURITIES LAWS. BY ITS ACCEPTANCE OF THIS RULE
144A GLOBAL CLASS A-1 NOTE (OR INTEREST THEREIN) THE HOLDER OF THIS RULE 144A
GLOBAL CLASS A-1 NOTE (OR SUCH INTEREST) IS DEEMED TO REPRESENT TO THE SELLER
AND THE CARAT INDENTURE TRUSTEE THAT IT IS A "QUALIFIED INSTITUTIONAL BUYER" AS
DEFINED IN RULE l44A UNDER THE U.S. SECURITIES ACT AND IS ACQUIRING THIS
C-3-1
RULE 144A GLOBAL CLASS A-1 NOTE (OR INTEREST THEREIN) FOR ITS OWN ACCOUNT (AND
NOT FOR THE ACCOUNT OF OTHERS) OR AS A FIDUCIARY OR AGENT FOR OTHERS (WHICH
OTHERS ALSO ARE QUALIFIED INSTITUTIONAL BUYERS).
NO SALE, PLEDGE OR OTHER TRANSFER OF THIS RULE 144A GLOBAL CLASS A-1 NOTE
(OR INTEREST THEREIN) MAY BE MADE BY ANY PERSON UNLESS EITHER (i) SUCH SALE,
PLEDGE OR OTHER TRANSFER IS MADE TO A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED
IN RULE 144A THAT DELIVERS ANY NECESSARY CERTIFICATIONS PURSUANT TO SECTION
2.15(c) OR (d) UNDER THE CARAT INDENTURE AND THAT (A) IS A "QUALIFIED
INSTITUTIONAL BUYER" AS DEFINED UNDER RULE l44A UNDER THE U.S. SECURITIES ACT,
ACTING FOR ITS OWN ACCOUNT OR THE ACCOUNTS OF OTHER "QUALIFIED INSTITUTIONAL
BUYERS" AS DEFINED UNDER RULE 144A UNDER THE U.S SECURITIES ACT, AND (B) IT IS
AWARE THAT THE TRANSFEROR OF SUCH RULE 144A CLASS A-1 NOTE INTENDS TO RELY ON
THE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE U.S. SECURITIES ACT
PROVIDED BY RULE 144A UNDER THE U.S. SECURITIES ACT, (ii) SUCH SALE, PLEDGE OR
OTHER TRANSFER OCCURS OUTSIDE OF THE UNITED STATES TO A NON-U.S. PERSON IN
ACCORDANCE WITH RULE 903 OR RULE 904 OF REGULATION S OF THE SECURITIES ACT AND
THAT PERSON DELIVERS ANY NECESSARY CERTIFICATIONS PURSUANT TO SECTION 2.15(c) OR
(d) UNDER THE CARAT INDENTURE, OR (iii) SUCH SALE, PLEDGE OR OTHER TRANSFER IS
OTHERWISE MADE IN A TRANSACTION EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE
U.S. SECURITIES ACT, IN WHICH CASE (A) THE CARAT INDENTURE TRUSTEE SHALL REQUIRE
THAT BOTH THE PROSPECTIVE TRANSFEROR AND THE PROSPECTIVE TRANSFEREE CERTIFY TO
THE CARAT INDENTURE TRUSTEE AND THE SELLER IN WRITING THE FACTS SURROUNDING SUCH
TRANSFER, WHICH CERTIFICATION SHALL BE IN FORM AND SUBSTANCE SATISFACTORY TO THE
CARAT INDENTURE TRUSTEE AND THE SELLER, AND (B) THE CARAT INDENTURE TRUSTEE
SHALL REQUIRE A WRITTEN OPINION OF COUNSEL (WHICH SHALL NOT BE AT THE EXPENSE OF
THE SELLER, THE TRUST ADMINISTRATOR OR THE CARAT INDENTURE TRUSTEE) SATISFACTORY
TO THE SELLER AND THE CARAT INDENTURE TRUSTEE TO THE EFFECT THAT SUCH TRANSFER
WILL NOT VIOLATE THE U.S. SECURITIES ACT.
C-3-2
CAPITAL AUTO RECEIVABLES ASSET TRUST 2005-SN1
RULE 144A GLOBAL
CLASS A-1 NOTES
CAPITAL AUTO RECEIVABLES ASSET TRUST 2005-SN1, a statutory trust
organized and existing under the laws of the State of Delaware (herein referred
to as the "Issuer"), for value received, hereby promises to pay to CEDE & CO.,
or registered assigns, the principal sum up to _______________ DOLLARS
($_________) or such lesser outstanding amount as may be payable in accordance
with the CARAT Indenture (as defined on the reverse side of this CARAT 2005-SN1
Note), on each Distribution Date in an amount equal to the result obtained by
multiplying (i) a fraction, the numerator of which is the principal amount
hereof and the denominator of which is aggregate principal amount for the Class
A-1 Notes by (ii) the aggregate amount, if any, payable on such Distribution
Date from the Note Distribution Account in respect of principal on the Class A-1
Notes pursuant to Sections 2.7, 3.1 and 8.2(c) of the CARAT Indenture; provided,
however, that the entire unpaid principal amount of this Rule 144A Global Class
A-1 Note shall be due and payable on May 15, 2006 (the "Final Scheduled
Distribution Date"), unless this Rule 144A Global Class A-1 Note is earlier
redeemed, pursuant to Section 10.1 of the CARAT Indenture, in which case such
unpaid principal amount shall be due on the Redemption Date. The Issuer shall
pay interest on this Rule 144A Global Class A-1 Note at the rate per annum shown
above on each Distribution Date in accordance with the terms of the CARAT
Indenture until the principal of this Rule 144A Global Class A-1 Note is paid or
made available for payment on the principal amount of this Rule 144A Global
Class A-1 Note outstanding on the preceding Distribution Date (after giving
effect to all payments of principal made on the preceding Distribution Date (or,
for the initial Distribution Date, the outstanding principal balance on the
Series 2005-SN1 Closing Date)). Interest on the Class A-1 Notes will accrue from
and including the Series 2005-SN1 Closing Date at the rate per annum shown
above, and will be payable on each Distribution Date in an amount equal to the
CARAT 2005-SN1 Noteholders' Note Class Interest Distributable Amount for such
Distribution Date for the Class A-1 Notes. Interest will be computed on the
basis of actual 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 the current Distribution Date and
a 360-day year. Such principal of and interest on this Rule 144A Global Class
A-1 Note shall be paid in the manner specified in the CARAT Indenture. All
interest payments on this Rule 144A Global Class A-1 Note on any Distribution
Date shall be made pro rata to the Class A-1 Noteholders entitled thereto.
The principal of and interest on this Rule 144A Global Class A-1
Note is payable in such coin or currency of the United States of America which,
at the time of payment, is legal tender for payment of public and private debts.
All payments made by the Issuer with respect to this Rule 144A Global Class A-1
Note shall be applied first to interest due and payable on this Rule 144A Global
Class A-1 Note as provided above and then to the unpaid principal of this Rule
144A Global Class A-1 Note.
Reference is made to the further provisions of this Rule 144A Global
Class A-1 Note set forth on the reverse hereof, which shall have the same effect
as though fully set forth on the face of this Rule 144A Global Class A-1 Note.
C-3-3
Unless the certificate of authentication hereon has been executed by
the CARAT Indenture Trustee whose name appears below by manual signature, this
Rule 144A Global Class A-1 Note shall not be entitled to any benefit under the
CARAT Indenture referred to on the reverse hereof or be valid or obligatory for
any purpose.
C-3-4
IN WITNESS WHEREOF, the Issuer has caused this instrument to be
signed, manually or in facsimile, by its Authorized Officer.
Date: __________, 2005
CAPITAL AUTO RECEIVABLES ASSET
TRUST 2005-SN1
By: DEUTSCHE BANK TRUST COMPANY
DELAWARE, not in its individual capacity
but solely as CARAT Owner Trustee
By: ________________________________________
Name:
Title:
C-3-5
CARAT INDENTURE TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the CARAT 2005-SN1 Notes designed above and referred
to in the within-mentioned CARAT Indenture.
CITIBANK, N.A., not in its
individual capacity but solely as CARAT
Indenture Trustee
By: ________________________________________
Name:
Title:
C-3-6
REVERSE OF NOTE
This CARAT 2005-SN1 Note is one of a duly authorized issue of CARAT
2005-SN1 Notes of the Issuer, designated as Class A-1 Fixed Rate Asset Backed
Notes (herein called the "Class A-1 Notes"), all issued under a CARAT Indenture,
dated as of April 28, 2005 (such CARAT Indenture, as supplemented or amended, is
herein called the "CARAT Indenture"), between the Issuer and CITIBANK, N.A., as
trustee (the "CARAT Indenture Trustee", which term includes any successor
trustee under the CARAT Indenture), to which CARAT Indenture and all indentures
supplemental thereto reference is hereby made for a statement of the respective
rights and obligations thereunder of the Issuer, the CARAT Indenture Trustee and
the CARAT 2005-SN1 Noteholders. The Class A-1 Notes are one of several duly
authorized classes of CARAT 2005-SN1 Notes of the Issuer issued pursuant to the
CARAT Indenture (collectively, as to all CARAT 2005-SN1 Notes of all such
classes, the "CARAT 2005-SN1 Notes"). The CARAT 2005-SN1 Notes are governed by
and subject to all terms of the CARAT Indenture (which terms are incorporated
herein and made a part hereof), to which CARAT Indenture the Holder of this
CARAT 2005-SN1 Note by virtue of acceptance hereof assents and by which such
Holder is bound. All capitalized terms used and not otherwise defined in this
CARAT 2005-SN1 Note that are defined in the CARAT Indenture, as supplemented or
amended, shall have the meanings assigned to them in or pursuant to the CARAT
Indenture.
The Class A-1 Notes and all other CARAT 2005-SN1 Notes issued pursuant to
the CARAT Indenture are and will be equally and ratably secured by the
Collateral pledged as security therefor as provided in the CARAT Indenture.
Each CARAT 2005-SN1 Noteholder or Note Owner will be deemed to represent
and warrant that either (A) it is not (i) an "employee benefit plan" (as defined
in Section 3(3) of the United States Employee Retirement Income Security Act of
1974, as amended ("ERISA"), that is subject to the provisions of Title I of
ERISA, (ii) a "plan" as described in Section 4975(e)(1) of the Internal Revenue
Code of 1986, as amended (the "Code") or (iii) any entity whose underlying
assets include plan assets by reason of a plan's investment in the entity or (B)
the purchase, holding and disposition of the CARAT 2005-SN1 Note will not result
in a non-exempt prohibited transaction under Section 406(a) of ERISA or Section
4975 of the Code.
Each CARAT 2005-SN1 Noteholder or Note Owner, by acceptance of a CARAT
2005-SN1 Note or, in the case of a Note Owner, a beneficial interest in a CARAT
2005-SN1 Note, covenants and agrees that no recourse may be taken, directly or
indirectly, with respect to the obligations of the Issuer, the CARAT Owner
Trustee or the CARAT Indenture Trustee on the CARAT 2005-SN1 Notes or under the
CARAT Indenture or any certificate or other writing delivered in connection
therewith, against (i) the CARAT Indenture Trustee or the CARAT Owner Trustee in
their individual capacities, (ii) the Seller or any other owner of a beneficial
interest in the Issuer or (iii) any partner, owner, beneficiary, agent, officer,
director or employee of the CARAT Indenture Trustee or the CARAT Owner Trustee
in their individual capacities, any holder of a beneficial interest in the
Issuer, the CARAT Owner Trustee or the CARAT Indenture Trustee or of any
successor or assign of the CARAT Indenture Trustee or the CARAT Owner Trustee in
their individual capacities, except as any such Person may have expressly agreed
and except that any such partner, owner or beneficiary shall be fully liable, to
the extent
C-3-7
provided by applicable law, for any unpaid consideration for stock, unpaid
capital contribution or failure to pay any instalment or call owing to such
entity.
Each CARAT 2005-SN1 Noteholder or Note Owner, by acceptance of a CARAT
2005-SN1 Note or, in the case of a Note Owner, a beneficial interest in a CARAT
2005-SN1 Note, covenants and agrees that by accepting the benefits of the CARAT
Indenture such CARAT 2005-SN1 Noteholder will not, prior to the date which is
one year and one day after the termination of the CARAT Indenture with respect
to the Issuer, acquiesce, petition or otherwise invoke or cause the Seller or
the Issuer to invoke the process of any court or government authority for the
purpose of commencing or sustaining a case against the Seller or the Issuer
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 Seller or the Issuer or any substantial part of its
property, or ordering the winding up or liquidation of the affairs of the Seller
or the Issuer.
Each CARAT 2005-SN1 Noteholder or Note Owner , by acceptance of a CARAT
2005-SN1 Note or, in the case of a Note Owner, a beneficial interest in a CARAT
2005-SN1 Note, expresses its intention that this CARAT 2005-SN1 Note qualifies
under applicable tax law as indebtedness secured by the Collateral and, unless
otherwise required by appropriate taxing authorities, agrees to treat the CARAT
2005-SN1 Notes as indebtedness secured by the Collateral for the purpose of
federal income taxes, state and local income and franchise taxes, Michigan
single business tax, and any other taxes imposed upon, measured by or based upon
gross or net income.
Prior to the due presentment for registration of transfer of this CARAT
2005-SN1 Note, the Issuer, the CARAT Indenture Trustee and any agent of the
Issuer or the CARAT Indenture Trustee may treat the Person in whose name this
CARAT 2005-SN1 Note (as of the day of determination or as of such other date as
may be specified in the CARAT Indenture) is registered as the owner hereof for
all purposes, whether or not this CARAT 2005-SN1 Note shall be overdue, and
neither the Issuer, the CARAT Indenture Trustee nor any such agent shall be
affected by notice to the contrary.
The CARAT Indenture permits, with certain exceptions as therein provided,
the amendment thereof and the modification of the rights and obligations of the
Issuer and the rights of the CARAT 2005-SN1 Noteholders under the CARAT
Indenture at any time by the Issuer with the consent of the Holders of CARAT
2005-SN1 Notes representing a majority of the Outstanding Amount of the
Controlling Class. The CARAT Indenture also contains provisions permitting the
Holders of CARAT 2005-SN1 Notes representing specified percentages of the
Outstanding Amount of the Controlling Class, on behalf of the Holders of all the
CARAT 2005-SN1 Notes, to waive compliance by the Issuer with certain provisions
of the CARAT Indenture and certain past defaults under the CARAT Indenture and
their consequences. Any such consent or waiver by the Holder of this CARAT
2005-SN1 Note (or any one of more Predecessor Notes) shall be conclusive and
binding upon such Holder and upon all future Holders of this CARAT 2005-SN1 Note
and of any CARAT 2005-SN1 Note issued upon the registration of transfer hereof
or in exchange hereof or in lieu hereof whether or not notation of such consent
or waiver is made upon this CARAT 2005-SN1 Note. The CARAT Indenture also
permits the CARAT
C-3-8
Indenture Trustee to amend or waive certain terms and conditions set forth in
the CARAT Indenture without the consent of the Noteholders.
The term "Issuer" as used in this CARAT 2005-SN1 Note includes any
successor to the Issuer under the CARAT Indenture.
The Issuer is permitted by the CARAT Indenture, under certain
circumstances, to merge or consolidate, subject to the rights of the CARAT
Indenture Trustee and the Holders of CARAT 2005-SN1 Notes under the CARAT
Indenture.
The CARAT 2005-SN1 Notes are issuable only in registered form in
denominations as provided in the CARAT Indenture, subject to certain limitations
therein set forth.
This CARAT 2005-SN1 Note and the CARAT Indenture shall be construed in
accordance with the laws of the State of New York, without reference to its
conflict of law provisions, and the obligations, rights and remedies of the
parties hereunder and thereunder shall be determined in accordance with such
laws.
No reference herein to the CARAT Indenture and no provision of this CARAT
2005-SN1 Note or of the CARAT Indenture shall alter or impair the obligation of
the Issuer, which is absolute and unconditional, to pay the principal of and
interest on this CARAT 2005-SN1 Note at the times, place and rate, and in the
coin or currency herein prescribed.
Anything herein to the contrary notwithstanding, except as expressly
provided in the CARAT Basic Documents, neither the Seller, the Trust
Administrator, the CARAT Indenture Trustee nor the CARAT Owner Trustee in their
respective individual capacities, any owner of a beneficial interest in the
Issuer, nor any of their respective partners, beneficiaries, agents, officers,
directors, employees or successors or assigns, shall be personally liable for,
nor shall recourse be had to any of them for, the payment of principal of or
interest on, or performance of, or omission to perform, any of the covenants,
obligations or indemnifications contained in this CARAT 2005-SN1 Note or the
CARAT Indenture, it being expressly understood that said covenants, obligations
and indemnifications have been made by the CARAT Owner Trustee solely as the
CARAT Owner Trustee in the assets of the Issuer. The Holder of this CARAT
2005-SN1 Note by the acceptance hereof agrees that, except as expressly provided
in the CARAT Basic Documents, in the case of an Event of Default under the CARAT
Indenture, the Holder shall have no claim against any of the foregoing for any
deficiency, loss or claim therefrom; provided, however, that nothing contained
herein shall be taken to prevent recourse to, and enforcement against, the
assets of the Issuer for any and all liabilities, obligations and undertakings
contained in the CARAT Indenture or in this CARAT 2005-SN1 Note.
C-3-9
ASSIGNMENT
Social Security or taxpayer I.D. or other identifying number of assignee
____________________________________
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers
unto _______________________________________________
_________________________________________________________________________
(name and address of assignee)
the within CARAT 2005-SN1 Note and all rights thereunder, and hereby irrevocably
constitutes and appoints ____________________________________, as attorney, to
transfer said Note on the books kept for registration thereof, with full power
of substitution in the premises.
Dated:______________________________ ______________________________________(3)
Signature Guaranteed:
____________________________________ _________________________________________
(3) NOTE: The signature to this assignment must correspond with the name of the
registered owner as it appears on the face of the within CARAT 2005-SN1 Note in
every particular, without alteration, enlargement or any change whatsoever.
C-3-10
EXHIBIT C-4
FORM OF TEMPORARY REGULATION S
GLOBAL CLASS A-1 NOTE
REGISTERED Up to $____________
No. R-Temporary Regulation S
Interest Rate [__] % per annum
SEE REVERSE FOR CERTAIN DEFINITIONS
CUSIP NO. [__]
THIS NOTE IS A TEMPORARY REGULATION S GLOBAL CLASS A-1 NOTE
FOR PURPOSES OF REGULATION S UNDER THE UNITED STATES SECURITIES ACT OF
1933, AS AMENDED (THE "U.S. SECURITIES ACT"). NEITHER THIS TEMPORARY
REGULATION S GLOBAL CLASS A-1 NOTE NOR ANY INTEREST HEREIN MAY BE OFFERED,
SOLD OR DELIVERED, EXCEPT AS PERMITTED UNDER THE CARAT INDENTURE REFERRED
TO HEREIN.
UNLESS THIS TEMPORARY REGULATION S GLOBAL CLASS A-1 NOTE IS
PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY,
A NEW YORK CORPORATION ("DTC"), TO THE ISSUER OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY TEMPORARY
REGULATION S GLOBAL CLASS A-1 NOTE ISSUED IS REGISTERED IN THE NAME OF
CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH
OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY
PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO.,
HAS AN INTEREST HEREIN.
THE PRINCIPAL OF THIS TEMPORARY REGULATION S GLOBAL CLASS A-1
NOTE IS PAYABLE AS SET FORTH HEREIN. ACCORDINGLY, THE OUTSTANDING
PRINCIPAL AMOUNT OF THIS TEMPORARY REGULATION S GLOBAL CLASS A-1 NOTE AT
ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ON THE FACE HEREOF.
C-4-1
NO BENEFICIAL OWNER OF THIS TEMPORARY REGULATION S GLOBAL
CLASS A-1 NOTE SHALL BE ENTITLED TO RECEIVE PAYMENTS OF PRINCIPAL OR
INTEREST HEREIN UNLESS SUCH BENEFICIAL OWNER SHALL HAVE DELIVERED A
CERTIFICATION IN THE FORM ATTACHED AS ANNEX A TO EXHIBIT D-5 TO THE CARAT
INDENTURE TO CLEARSTREAM, LUXEMBOURG OR EUROCLEAR.
THE HOLDER OF THIS TEMPORARY REGULATION S CLASS A-1 GLOBAL
NOTE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER, SELL OR OTHERWISE
TRANSFER SUCH NOTE WITHIN THE UNITED STATES OR TO U.S. PERSONS (AS DEFINED
IN REGULATION S UNDER THE SECURITIES ACT) PRIOR TO THE EXCHANGE DATE
EXCEPT PURSUANT TO AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT.
THIS TEMPORARY REGULATION S GLOBAL CLASS A-1 NOTE HAS NOT BEEN AND WILL
NOT BE REGISTERED UNDER THE U.S. SECURITIES ACT OR UNDER THE SECURITIES OR BLUE
SKY LAWS OF ANY STATE IN THE UNITED STATES OR ANY FOREIGN SECURITIES LAWS. BY
ITS ACCEPTANCE OF THIS TEMPORARY REGULATION S GLOBAL CLASS A-1 NOTE (OR INTEREST
THEREIN) THE HOLDER OF THIS TEMPORARY REGULATION S GLOBAL CLASS A-1 NOTE (OR
SUCH INTEREST) IS DEEMED TO REPRESENT TO THE SELLER AND THE CARAT INDENTURE
TRUSTEE THAT IT IS A NON-U.S. PERSON (AS DEFINED IN REGULATION S) WHO ACQUIRED
THE CLASS A-1 NOTE OUTSIDE OF THE UNITED STATES IN ACCORDANCE WITH REGULATION S.
NO SALE, PLEDGE OR OTHER TRANSFER OF THIS TEMPORARY REGULATION S GLOBAL
CLASS A-1 NOTE (OR INTEREST THEREIN) MAY BE MADE BY ANY PERSON UNLESS EITHER (i)
SUCH SALE, PLEDGE OR OTHER TRANSFER IS MADE TO A "QUALIFIED INSTITUTIONAL BUYER"
THAT DELIVERS ANY NECESSARY CERTIFICATIONS PURSUANT TO SECTION 2.15(c) OR (d)
UNDER THE CARAT INDENTURE AND THAT (A) IS A "QUALIFIED INSTITUTIONAL BUYER" AS
DEFINED UNDER RULE l44A UNDER THE U.S. SECURITIES ACT, ACTING FOR ITS OWN
ACCOUNT OR THE ACCOUNTS OF OTHER "QUALIFIED INSTITUTIONAL BUYERS" AS DEFINED
UNDER RULE 144A UNDER THE U.S SECURITIES ACT, AND (B) IT IS AWARE THAT THE
TRANSFEROR OF SUCH TEMPORARY REGULATION S GLOBAL CLASS A-1 NOTE INTENDS TO RELY
ON THE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE U.S. SECURITIES ACT
PROVIDED BY RULE 144A UNDER THE U.S. SECURITIES ACT, (ii) SUCH SALE, PLEDGE OR
OTHER TRANSFER OCCURS OUTSIDE OF THE UNITED STATES TO A NON-U.S. PERSON IN
ACCORDANCE WITH RULE 903 OR RULE 904 OF REGULATION S OF THE SECURITIES ACT AND
THAT PERSON DELIVERS ANY NECESSARY CERTIFICATIONS PURSUANT TO SECTION 2.15(c) OR
(d) UNDER THE CARAT INDENTURE, OR (iii) SUCH SALE, PLEDGE OR OTHER TRANSFER IS
OTHERWISE MADE IN A TRANSACTION EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE
U.S. SECURITIES ACT, IN WHICH CASE (A) THE CARAT INDENTURE
C-4-2
TRUSTEE SHALL REQUIRE THAT BOTH THE PROSPECTIVE TRANSFEROR AND THE PROSPECTIVE
TRANSFEREE CERTIFY TO THE CARAT INDENTURE TRUSTEE AND THE SELLER IN WRITING THE
FACTS SURROUNDING SUCH TRANSFER, WHICH CERTIFICATION SHALL BE IN FORM AND
SUBSTANCE SATISFACTORY TO THE CARAT INDENTURE TRUSTEE AND THE SELLER, AND (B)
THE CARAT INDENTURE TRUSTEE SHALL REQUIRE A WRITTEN OPINION OF COUNSEL (WHICH
SHALL NOT BE AT THE EXPENSE OF THE SELLER, THE TRUST ADMINISTRATOR OR THE CARAT
INDENTURE TRUSTEE) SATISFACTORY TO THE SELLER AND THE CARAT INDENTURE TRUSTEE TO
THE EFFECT THAT SUCH TRANSFER WILL NOT VIOLATE THE U.S. SECURITIES ACT.
C-4-3
CAPITAL AUTO RECEIVABLES ASSET TRUST 2005-SN1
TEMPORARY REGULATION S
GLOBAL CLASS A-1 NOTES
CAPITAL AUTO RECEIVABLES ASSET TRUST 2005-SN1, a statutory trust
organized and existing under the laws of the State of Delaware (herein referred
to as the "Issuer"), for value received, hereby promises to pay to CEDE & CO.,
or registered assigns, the principal sum up to _______________ DOLLARS
($_________) or such lesser outstanding amount as may be payable in accordance
with the CARAT Indenture (as defined on the reverse side of this CARAT 2005-SN1
Note), on each Distribution Date in an amount equal to the result obtained by
multiplying (i) a fraction, the numerator of which is the principal amount
hereof and the denominator of which is aggregate principal amount for the Class
A-1 Notes by (ii) the aggregate amount, if any, payable on such Distribution
Date from the Note Distribution Account in respect of principal on the Class A-1
Notes pursuant to Sections 2.7, 3.1 and 8.2(c) of the CARAT Indenture; provided,
however, that the entire unpaid principal amount of this Temporary Regulation S
Global Class A-1 Note shall be due and payable on May 15, 2006 (the "Final
Scheduled Distribution Date"), unless this Temporary Regulation S Global Class
A-1 Note is earlier redeemed, pursuant to Section 10.1 of the CARAT Indenture,
in which case such unpaid principal amount shall be due on the Redemption Date.
The Issuer shall pay interest on this Temporary Regulation S Global Class A-1
Note at the rate per annum shown above on each Distribution Date in accordance
with the terms of the CARAT Indenture until the principal of this Temporary
Regulation S Global Class A-1 Note is paid or made available for payment on the
principal amount of this Temporary Regulation S Global Class A-1 Note
outstanding on the preceding Distribution Date (after giving effect to all
payments of principal made on the preceding Distribution Date (or, for the
initial Distribution Date, the outstanding principal balance on the Series
2005-SN1 Closing Date)). Interest on the Class A-1 Notes will accrue from and
including the Series 2005-SN1 Closing Date at the rate per annum shown above,
and will be payable on each Distribution Date in an amount equal to the CARAT
2005-SN1 Noteholders' Note Class Interest Distributable Amount for such
Distribution Date for the Class A-1 Notes. Interest will be computed on the
basis of actual 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 the current Distribution Date and
a 360-day year. Such principal of and interest on this Temporary Regulation S
Global Class A-1 Note shall be paid in the manner specified in the CARAT
Indenture. All interest payments on this Temporary Regulation S Global Class A-1
Note on any Distribution Date shall be made pro rata to the Class A-1
Noteholders entitled thereto.
The principal of and interest on this Temporary Regulation S Global
Class A-1 Note is payable in such coin or currency of the United States of
America which, at the time of payment, is legal tender for payment of public and
private debts. All payments made by the Issuer with respect to this Temporary
Regulation S Global Class A-1 Note shall be applied first to interest due and
payable on this Temporary Regulation S Global Class A-1 Note as provided above
and then to the unpaid principal of this Temporary Regulation S Global Class A-1
Note.
C-4-4
Reference is made to the further provisions of this Temporary
Regulation S Global Class A-1 Note set forth on the reverse hereof, which shall
have the same effect as though fully set forth on the face of this Temporary
Regulation S Global Class A-1 Note.
Unless the certificate of authentication hereon has been executed by
the CARAT Indenture Trustee whose name appears below by manual signature, this
Temporary Regulation S Global Class A-1 Note shall not be entitled to any
benefit under the CARAT Indenture referred to on the reverse hereof or be valid
or obligatory for any purpose.
C-4-5
IN WITNESS WHEREOF, the Issuer has caused this instrument to be
signed, manually or in facsimile, by its Authorized Officer.
Date: __________, 2005
CAPITAL AUTO RECEIVABLES ASSET
TRUST 2005-SN1
By: DEUTSCHE BANK TRUST COMPANY
DELAWARE, not in its individual capacity
but solely as CARAT Owner Trustee
By: _____________________________________
Name:
Title:
C-4-6
CARAT INDENTURE TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the CARAT 2005-SN1 Notes designed above and
referred to in the within-mentioned CARAT Indenture.
CITIBANK, N.A., not in its
individual capacity but solely as CARAT Indenture Trustee
By: ______________________________________
Name:
Title:
C-4-7
REVERSE OF NOTE
This CARAT 2005-SN1 Note is one of a duly authorized issue of CARAT
2005-SN1 Notes of the Issuer, designated as Class A-1 Fixed Rate Asset Backed
Notes (herein called the "Class A-1 Notes"), all issued under a CARAT Indenture,
dated as of April 28, 2005 (such CARAT Indenture, as supplemented or amended, is
herein called the "CARAT Indenture"), between the Issuer and CITIBANK, N.A., as
trustee (the "CARAT Indenture Trustee", which term includes any successor
trustee under the CARAT Indenture), to which CARAT Indenture and all indentures
supplemental thereto reference is hereby made for a statement of the respective
rights and obligations thereunder of the Issuer, the CARAT Indenture Trustee and
the CARAT 2005-SN1 Noteholders. The Class A-1 Notes are one of several duly
authorized classes of CARAT 2005-SN1 Notes of the Issuer issued pursuant to the
CARAT Indenture (collectively, as to all CARAT 2005-SN1 Notes of all such
classes, the "CARAT 2005-SN1 Notes"). The CARAT 2005-SN1 Notes are governed by
and subject to all terms of the CARAT Indenture (which terms are incorporated
herein and made a part hereof), to which CARAT Indenture the Holder of this
CARAT 2005-SN1 Note by virtue of acceptance hereof assents and by which such
Holder is bound. All capitalized terms used and not otherwise defined in this
CARAT 2005-SN1 Note that are defined in the CARAT Indenture, as supplemented or
amended, shall have the meanings assigned to them in or pursuant to the CARAT
Indenture.
The Class A-1 Notes and all other CARAT 2005-SN1 Notes issued pursuant to
the CARAT Indenture are and will be equally and ratably secured by the
Collateral pledged as security therefor as provided in the CARAT Indenture.
Each CARAT 2005-SN1 Noteholder or Note Owner will be deemed to represent
and warrant that either (A) it is not (i) an "employee benefit plan" (as defined
in Section 3(3) of the United States Employee Retirement Income Security Act of
1974, as amended ("ERISA"), that is subject to the provisions of Title I of
ERISA, (ii) a "plan" as described in Section 4975(e)(1) of the Internal Revenue
Code of 1986, as amended (the "Code") or (iii) any entity whose underlying
assets include plan assets by reason of a plan's investment in the entity or (B)
the purchase, holding and disposition of the CARAT 2005-SN1 Note will not result
in a non-exempt prohibited transaction under Section 406(a) of ERISA or Section
4975 of the Code.
Each CARAT 2005-SN1 Noteholder or Note Owner, by acceptance of a CARAT
2005-SN1 Note or, in the case of a Note Owner, a beneficial interest in a CARAT
2005-SN1 Note, covenants and agrees that no recourse may be taken, directly or
indirectly, with respect to the obligations of the Issuer, the CARAT Owner
Trustee or the CARAT Indenture Trustee on the CARAT 2005-SN1 Notes or under the
CARAT Indenture or any certificate or other writing delivered in connection
therewith, against (i) the CARAT Indenture Trustee or the CARAT Owner Trustee in
their individual capacities, (ii) the Seller or any other owner of a beneficial
interest in the Issuer or (iii) any partner, owner, beneficiary, agent, officer,
director or employee of the CARAT Indenture Trustee or the CARAT Owner Trustee
in their individual capacities, any holder of a beneficial interest in the
Issuer, the CARAT Owner Trustee or the CARAT Indenture Trustee or of any
successor or assign of the CARAT Indenture Trustee or the CARAT Owner Trustee in
their individual capacities, except as any such Person may have expressly agreed
and except that any such partner, owner or beneficiary shall be fully liable, to
the extent
C-4-8
provided by applicable law, for any unpaid consideration for stock, unpaid
capital contribution or failure to pay any instalment or call owing to such
entity.
Each CARAT 2005-SN1 Noteholder or Note Owner, by acceptance of a CARAT
2005-SN1 Note or, in the case of a Note Owner, a beneficial interest in a CARAT
2005-SN1 Note, covenants and agrees that by accepting the benefits of the CARAT
Indenture such CARAT 2005-SN1 Noteholder will not, prior to the date which is
one year and one day after the termination of the CARAT Indenture with respect
to the Issuer, acquiesce, petition or otherwise invoke or cause the Seller or
the Issuer to invoke the process of any court or government authority for the
purpose of commencing or sustaining a case against the Seller or the Issuer
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 Seller or the Issuer or any substantial part of its
property, or ordering the winding up or liquidation of the affairs of the Seller
or the Issuer.
Each CARAT 2005-SN1 Noteholder or Note Owner , by acceptance of a CARAT
2005-SN1 Note or, in the case of a Note Owner, a beneficial interest in a CARAT
2005-SN1 Note, expresses its intention that this CARAT 2005-SN1 Note qualifies
under applicable tax law as indebtedness secured by the Collateral and, unless
otherwise required by appropriate taxing authorities, agrees to treat the CARAT
2005-SN1 Notes as indebtedness secured by the Collateral for the purpose of
federal income taxes, state and local income and franchise taxes, Michigan
single business tax, and any other taxes imposed upon, measured by or based upon
gross or net income.
Prior to the due presentment for registration of transfer of this CARAT
2005-SN1 Note, the Issuer, the CARAT Indenture Trustee and any agent of the
Issuer or the CARAT Indenture Trustee may treat the Person in whose name this
CARAT 2005-SN1 Note (as of the day of determination or as of such other date as
may be specified in the CARAT Indenture) is registered as the owner hereof for
all purposes, whether or not this CARAT 2005-SN1 Note shall be overdue, and
neither the Issuer, the CARAT Indenture Trustee nor any such agent shall be
affected by notice to the contrary.
The CARAT Indenture permits, with certain exceptions as therein provided,
the amendment thereof and the modification of the rights and obligations of the
Issuer and the rights of the CARAT 2005-SN1 Noteholders under the CARAT
Indenture at any time by the Issuer with the consent of the Holders of CARAT
2005-SN1 Notes representing a majority of the Outstanding Amount of the
Controlling Class. The CARAT Indenture also contains provisions permitting the
Holders of CARAT 2005-SN1 Notes representing specified percentages of the
Outstanding Amount of the Controlling Class, on behalf of the Holders of all the
CARAT 2005-SN1 Notes, to waive compliance by the Issuer with certain provisions
of the CARAT Indenture and certain past defaults under the CARAT Indenture and
their consequences. Any such consent or waiver by the Holder of this CARAT
2005-SN1 Note (or any one of more Predecessor Notes) shall be conclusive and
binding upon such Holder and upon all future Holders of this CARAT 2005-SN1 Note
and of any CARAT 2005-SN1 Note issued upon the registration of transfer hereof
or in exchange hereof or in lieu hereof whether or not notation of such consent
or waiver is made upon this CARAT 2005-SN1 Note. The CARAT Indenture also
permits the CARAT
C-4-9
Indenture Trustee to amend or waive certain terms and conditions set forth in
the CARAT Indenture without the consent of the Noteholders.
The term "Issuer" as used in this CARAT 2005-SN1 Note includes any
successor to the Issuer under the CARAT Indenture.
The Issuer is permitted by the CARAT Indenture, under certain
circumstances, to merge or consolidate, subject to the rights of the CARAT
Indenture Trustee and the Holders of CARAT 2005-SN1 Notes under the CARAT
Indenture.
The CARAT 2005-SN1 Notes are issuable only in registered form in
denominations as provided in the CARAT Indenture, subject to certain limitations
therein set forth.
This CARAT 2005-SN1 Note and the CARAT Indenture shall be construed in
accordance with the laws of the State of New York, without reference to its
conflict of law provisions, and the obligations, rights and remedies of the
parties hereunder and thereunder shall be determined in accordance with such
laws.
No reference herein to the CARAT Indenture and no provision of this CARAT
2005-SN1 Note or of the CARAT Indenture shall alter or impair the obligation of
the Issuer, which is absolute and unconditional, to pay the principal of and
interest on this CARAT 2005-SN1 Note at the times, place and rate, and in the
coin or currency herein prescribed.
Anything herein to the contrary notwithstanding, except as expressly
provided in the CARAT Basic Documents, neither the Seller, the Trust
Administrator, the CARAT Indenture Trustee nor the CARAT Owner Trustee in their
respective individual capacities, any owner of a beneficial interest in the
Issuer, nor any of their respective partners, beneficiaries, agents, officers,
directors, employees or successors or assigns, shall be personally liable for,
nor shall recourse be had to any of them for, the payment of principal of or
interest on, or performance of, or omission to perform, any of the covenants,
obligations or indemnifications contained in this CARAT 2005-SN1 Note or the
CARAT Indenture, it being expressly understood that said covenants, obligations
and indemnifications have been made by the CARAT Owner Trustee solely as the
CARAT Owner Trustee in the assets of the Issuer. The Holder of this CARAT
2005-SN1 Note by the acceptance hereof agrees that, except as expressly provided
in the CARAT Basic Documents, in the case of an Event of Default under the CARAT
Indenture, the Holder shall have no claim against any of the foregoing for any
deficiency, loss or claim therefrom; provided, however, that nothing contained
herein shall be taken to prevent recourse to, and enforcement against, the
assets of the Issuer for any and all liabilities, obligations and undertakings
contained in the CARAT Indenture or in this CARAT 2005-SN1 Note.
C-4-10
ASSIGNMENT
Social Security or taxpayer I.D. or other identifying number of assignee
___________________________________
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto ___________________________________________________________
__________________________________________________________________________
(name and address of assignee)
the within CARAT 2005-SN1 Note and all rights thereunder, and hereby irrevocably
constitutes and appoints ____________________________________, as attorney, to
transfer said Note on the books kept for registration thereof, with full power
of substitution in the premises.
Dated: ___________________________ __________________________________(1)
Signature Guaranteed:
___________________________ _____________________________________
- ----------
(1) NOTE: The signature to this assignment must correspond with the name of the
registered owner as it appears on the face of the within CARAT 2005-SN1 Note in
every particular, without alteration, enlargement or any change whatsoever.
C-4-11
EXHIBIT C-5
FORM OF PERMANENT REGULATION S
GLOBAL CLASS A-1 NOTE
REGISTERED Up to $____________
No. R-Permanent Regulation S
Interest Rate [___] % per annum
SEE REVERSE FOR CERTAIN DEFINITIONS
CUSIP NO. [__]
UNLESS THIS PERMANENT REGULATION S GLOBAL CLASS A-1 NOTE IS
PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY,
A NEW YORK CORPORATION ("DTC"), TO THE ISSUER OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY PERMANENT
REGULATION S GLOBAL CLASS A-1 NOTE ISSUED IS REGISTERED IN THE NAME OF
CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH
OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY
PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO.,
HAS AN INTEREST HEREIN.
THE PRINCIPAL OF THIS PERMANENT REGULATION S GLOBAL CLASS A-1
NOTE IS PAYABLE AS SET FORTH HEREIN. ACCORDINGLY, THE OUTSTANDING
PRINCIPAL AMOUNT OF THIS PERMANENT REGULATION S GLOBAL CLASS A-1 NOTE AT
ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ON THE FACE HEREOF.
THIS PERMANENT REGULATION S GLOBAL CLASS A-1 NOTE HAS NOT BEEN AND WILL
NOT BE REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED
(THE "U.S. SECURITIES ACT"), OR UNDER THE SECURITIES OR BLUE SKY LAWS OF ANY
STATE IN THE UNITED STATES OR ANY FOREIGN SECURITIES LAWS. BY ITS ACCEPTANCE OF
THIS PERMANENT REGULATION S GLOBAL CLASS A-1 NOTE (OR INTEREST THEREIN) THE
HOLDER OF THIS PERMANENT REGULATION S GLOBAL CLASS A-1 NOTE (OR SUCH INTEREST)
IS DEEMED TO REPRESENT TO THE SELLER AND THE CARAT INDENTURE TRUSTEE
C-5-1
THAT IT IS A NON-U.S. PERSON (AS DEFINED IN REGULATION S) WHO ACQUIRED THE CLASS
A-1 NOTE OUTSIDE OF THE UNITED STATES IN ACCORDANCE WITH REGULATION S.
NO SALE, PLEDGE OR OTHER TRANSFER OF THIS PERMANENT REGULATION S GLOBAL
CLASS A-1 NOTE (OR INTEREST THEREIN) MAY BE MADE BY ANY PERSON UNLESS EITHER (i)
SUCH SALE, PLEDGE OR OTHER TRANSFER IS MADE TO A "QUALIFIED INSTITUTIONAL BUYER"
AS DEFINED UNDER RULE 144A THAT DELIVERS ANY NECESSARY CERTIFICATIONS PURSUANT
TO SECTION 2.15(c) OR (d) UNDER THE CARAT INDENTURE AND THAT (A) IS A "QUALIFIED
INSTITUTIONAL BUYER" AS DEFINED UNDER RULE l44A UNDER THE U.S. SECURITIES ACT,
ACTING FOR ITS OWN ACCOUNT OR THE ACCOUNTS OF OTHER "QUALIFIED INSTITUTIONAL
BUYERS" AS DEFINED UNDER RULE 144A UNDER THE U.S SECURITIES ACT, AND (B) IT IS
AWARE THAT THE TRANSFEROR OF SUCH PERMANENT REGULATION S GLOBAL CLASS A-1 NOTE
INTENDS TO RELY ON THE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE U.S.
SECURITIES ACT PROVIDED BY RULE 144A UNDER THE U.S. SECURITIES ACT, (ii) SUCH
SALE, PLEDGE OR OTHER TRANSFER OCCURS OUTSIDE OF THE UNITED STATES TO A NON-U.S.
PERSON IN ACCORDANCE WITH RULE 903 OR RULE 904 OF REGULATION S OF THE SECURITIES
ACT AND THAT PERSON DELIVERS ANY NECESSARY CERTIFICATIONS PURSUANT TO SECTION
2.15(c) OR (d) UNDER THE CARAT INDENTURE, OR (iii) SUCH SALE, PLEDGE OR OTHER
TRANSFER IS OTHERWISE MADE IN A TRANSACTION EXEMPT FROM THE REGISTRATION
REQUIREMENTS OF THE U.S. SECURITIES ACT, IN WHICH CASE (A) THE CARAT INDENTURE
TRUSTEE SHALL REQUIRE THAT BOTH THE PROSPECTIVE TRANSFEROR AND THE PROSPECTIVE
TRANSFEREE CERTIFY TO THE CARAT INDENTURE TRUSTEE AND THE SELLER IN WRITING THE
FACTS SURROUNDING SUCH TRANSFER, WHICH CERTIFICATION SHALL BE IN FORM AND
SUBSTANCE SATISFACTORY TO THE CARAT INDENTURE TRUSTEE AND THE SELLER, AND (B)
THE CARAT INDENTURE TRUSTEE SHALL REQUIRE A WRITTEN OPINION OF COUNSEL (WHICH
SHALL NOT BE AT THE EXPENSE OF THE SELLER, THE TRUST ADMINISTRATOR OR THE CARAT
INDENTURE TRUSTEE) SATISFACTORY TO THE SELLER AND THE CARAT INDENTURE TRUSTEE TO
THE EFFECT THAT SUCH TRANSFER WILL NOT VIOLATE THE U.S. SECURITIES ACT.
C-5-2
CAPITAL AUTO RECEIVABLES ASSET TRUST 2005-SN1
PERMANENT REGULATION S
GLOBAL CLASS A-1 NOTES
CAPITAL AUTO RECEIVABLES ASSET TRUST 2005-SN1, a statutory
trust organized and existing under the laws of the State of Delaware (herein
referred to as the "Issuer"), for value received, hereby promises to pay to CEDE
& CO., or registered assigns, the principal sum up to _______________ DOLLARS
($_________) or such lesser outstanding amount as may be payable in accordance
with the CARAT Indenture (as defined on the reverse side of this CARAT 2005-SN1
Note), on each Distribution Date in an amount equal to the result obtained by
multiplying (i) a fraction, the numerator of which is the principal amount
hereof and the denominator of which is aggregate principal amount for the Class
A-1 Notes by (ii) the aggregate amount, if any, payable on such Distribution
Date from the Note Distribution Account in respect of principal on the Class A-1
Notes pursuant to Sections 2.7, 3.1 and 8.2(c) of the CARAT Indenture; provided,
however, that the entire unpaid principal amount of this Permanent Regulation S
Global Class A-1 Note shall be due and payable on May 15, 2006 (the "Final
Scheduled Distribution Date"), unless this Permanent Regulation S Global Class
A-1 Note is earlier redeemed, pursuant to Section 10.1 of the CARAT Indenture,
in which case such unpaid principal amount shall be due on the Redemption Date.
The Issuer shall pay interest on this Permanent Regulation S Global Class A-1
Note at the rate per annum shown above on each Distribution Date in accordance
with the terms of the CARAT Indenture until the principal of this Permanent
Regulation S Global Class A-1 Note is paid or made available for payment on the
principal amount of this Permanent Regulation S Global Class A-1Note outstanding
on the preceding Distribution Date (after giving effect to all payments of
principal made on the preceding Distribution Date (or, for the initial
Distribution Date, the outstanding principal balance on the Series 2005-SN1
Closing Date)). Interest on the Class A-1 Notes will accrue from and including
the Series 2005-SN1 Closing Date at the rate per annum shown above, and will be
payable on each Distribution Date in an amount equal to the CARAT 2005-SN1
Noteholders' Note Class Interest Distributable Amount for such Distribution Date
for the Class A-1 Notes. Interest will be computed on the basis of actual 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 the current Distribution Date and a 360-day year. Such
principal of and interest on this Permanent Regulation S Global Class A-1 Note
shall be paid in the manner specified in the CARAT Indenture. All interest
payments on this Permanent Regulation S Global Class A-1 Note on any
Distribution Date shall be made pro rata to the Class A-1 Noteholders entitled
thereto.
The principal of and interest on this Permanent Regulation S
Global Class A-1 Note is payable in such coin or currency of the United States
of America which, at the time of payment, is legal tender for payment of public
and private debts. All payments made by the Issuer with respect to this
Permanent Regulation S Global Class A-1 Note shall be applied first to interest
due and payable on this Permanent Regulation S Global Class A-1 Note as provided
above and then to the unpaid principal of this Permanent Regulation S Global
Class A-1 Note.
C-5-3
Reference is made to the further provisions of this Permanent
Regulation S Global Class A-1 Note set forth on the reverse hereof, which shall
have the same effect as though fully set forth on the face of this Permanent
Regulation S Global Class A-1 Note.
Unless the certificate of authentication hereon has been
executed by the CARAT Indenture Trustee whose name appears below by manual
signature, this Permanent Regulation S Global Class A-1 Note shall not be
entitled to any benefit under the CARAT Indenture referred to on the reverse
hereof or be valid or obligatory for any purpose.
C-5-4
IN WITNESS WHEREOF, the Issuer has caused this instrument to
be signed, manually or in facsimile, by its Authorized Officer.
Date: __________, 2005
CAPITAL AUTO RECEIVABLES ASSET TRUST 2005-SN1
By: DEUTSCHE BANK TRUST COMPANY
DELAWARE, not in its individual capacity
but solely as CARAT Owner Trustee
By: _____________________________________
Name:
Title:
C-5-5
CARAT INDENTURE TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the CARAT 2005-SN1 Notes designed above and
referred to in the within-mentioned CARAT Indenture.
CITIBANK, N.A., not in its
individual capacity but solely as CARAT Indenture
Trustee
By: ______________________________________
Name:
Title:
C-5-6
REVERSE OF NOTE
This CARAT 2005-SN1 Note is one of a duly authorized issue of CARAT
2005-SN1 Notes of the Issuer, designated as Class A-1 Fixed Rate Asset Backed
Notes (herein called the "Class A-1 Notes"), all issued under a CARAT Indenture,
dated as of April 28, 2005 (such CARAT Indenture, as supplemented or amended, is
herein called the "CARAT Indenture"), between the Issuer and CITIBANK, N.A., as
trustee (the "CARAT Indenture Trustee", which term includes any successor
trustee under the CARAT Indenture), to which CARAT Indenture and all indentures
supplemental thereto reference is hereby made for a statement of the respective
rights and obligations thereunder of the Issuer, the CARAT Indenture Trustee and
the CARAT 2005-SN1 Noteholders. The Class A-1 Notes are one of several duly
authorized classes of CARAT 2005-SN1 Notes of the Issuer issued pursuant to the
CARAT Indenture (collectively, as to all CARAT 2005-SN1 Notes of all such
classes, the "CARAT 2005-SN1 Notes"). The CARAT 2005-SN1 Notes are governed by
and subject to all terms of the CARAT Indenture (which terms are incorporated
herein and made a part hereof), to which CARAT Indenture the Holder of this
CARAT 2005-SN1 Note by virtue of acceptance hereof assents and by which such
Holder is bound. All capitalized terms used and not otherwise defined in this
CARAT 2005-SN1 Note that are defined in the CARAT Indenture, as supplemented or
amended, shall have the meanings assigned to them in or pursuant to the CARAT
Indenture.
The Class A-1 Notes and all other CARAT 2005-SN1 Notes issued pursuant to
the CARAT Indenture are and will be equally and ratably secured by the
Collateral pledged as security therefor as provided in the CARAT Indenture.
Each CARAT 2005-SN1 Noteholder or Note Owner will be deemed to represent
and warrant that either (A) it is not (i) an "employee benefit plan" (as defined
in Section 3(3) of the United States Employee Retirement Income Security Act of
1974, as amended ("ERISA"), that is subject to the provisions of Title I of
ERISA, (ii) a "plan" as described in Section 4975(e)(1) of the Internal Revenue
Code of 1986, as amended (the "Code") or (iii) any entity whose underlying
assets include plan assets by reason of a plan's investment in the entity or (B)
the purchase, holding and disposition of the CARAT 2005-SN1 Note will not result
in a non-exempt prohibited transaction under Section 406(a) of ERISA or Section
4975 of the Code.
Each CARAT 2005-SN1 Noteholder or Note Owner, by acceptance of a CARAT
2005-SN1 Note or, in the case of a Note Owner, a beneficial interest in a CARAT
2005-SN1 Note, covenants and agrees that no recourse may be taken, directly or
indirectly, with respect to the obligations of the Issuer, the CARAT Owner
Trustee or the CARAT Indenture Trustee on the CARAT 2005-SN1 Notes or under the
CARAT Indenture or any certificate or other writing delivered in connection
therewith, against (i) the CARAT Indenture Trustee or the CARAT Owner Trustee in
their individual capacities, (ii) the Seller or any other owner of a beneficial
interest in the Issuer or (iii) any partner, owner, beneficiary, agent, officer,
director or employee of the CARAT Indenture Trustee or the CARAT Owner Trustee
in their individual capacities, any holder of a beneficial interest in the
Issuer, the CARAT Owner Trustee or the CARAT Indenture Trustee or of any
successor or assign of the CARAT Indenture Trustee or the CARAT Owner Trustee in
their individual capacities, except as any such Person may have expressly agreed
and except that any such partner, owner or beneficiary shall be fully liable, to
the extent
C-5-7
provided by applicable law, for any unpaid consideration for stock, unpaid
capital contribution or failure to pay any instalment or call owing to such
entity.
Each CARAT 2005-SN1 Noteholder or Note Owner, by acceptance of a CARAT
2005-SN1 Note or, in the case of a Note Owner, a beneficial interest in a CARAT
2005-SN1 Note, covenants and agrees that by accepting the benefits of the CARAT
Indenture such CARAT 2005-SN1 Noteholder will not, prior to the date which is
one year and one day after the termination of the CARAT Indenture with respect
to the Issuer, acquiesce, petition or otherwise invoke or cause the Seller or
the Issuer to invoke the process of any court or government authority for the
purpose of commencing or sustaining a case against the Seller or the Issuer
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 Seller or the Issuer or any substantial part of its
property, or ordering the winding up or liquidation of the affairs of the Seller
or the Issuer.
Each CARAT 2005-SN1 Noteholder or Note Owner , by acceptance of a CARAT
2005-SN1 Note or, in the case of a Note Owner, a beneficial interest in a CARAT
2005-SN1 Note, expresses its intention that this CARAT 2005-SN1 Note qualifies
under applicable tax law as indebtedness secured by the Collateral and, unless
otherwise required by appropriate taxing authorities, agrees to treat the CARAT
2005-SN1 Notes as indebtedness secured by the Collateral for the purpose of
federal income taxes, state and local income and franchise taxes, Michigan
single business tax, and any other taxes imposed upon, measured by or based upon
gross or net income.
Prior to the due presentment for registration of transfer of this CARAT
2005-SN1 Note, the Issuer, the CARAT Indenture Trustee and any agent of the
Issuer or the CARAT Indenture Trustee may treat the Person in whose name this
CARAT 2005-SN1 Note (as of the day of determination or as of such other date as
may be specified in the CARAT Indenture) is registered as the owner hereof for
all purposes, whether or not this CARAT 2005-SN1 Note shall be overdue, and
neither the Issuer, the CARAT Indenture Trustee nor any such agent shall be
affected by notice to the contrary.
The CARAT Indenture permits, with certain exceptions as therein
provided, the amendment thereof and the modification of the rights and
obligations of the Issuer and the rights of the CARAT 2005-SN1 Noteholders under
the CARAT Indenture at any time by the Issuer with the consent of the Holders of
CARAT 2005-SN1 Notes representing a majority of the Outstanding Amount of the
Controlling Class. The CARAT Indenture also contains provisions permitting the
Holders of CARAT 2005-SN1 Notes representing specified percentages of the
Outstanding Amount of the Controlling Class, on behalf of the Holders of all the
CARAT 2005-SN1 Notes, to waive compliance by the Issuer with certain provisions
of the CARAT Indenture and certain past defaults under the CARAT Indenture and
their consequences. Any such consent or waiver by the Holder of this CARAT
2005-SN1 Note (or any one of more Predecessor Notes) shall be conclusive and
binding upon such Holder and upon all future Holders of this CARAT 2005-SN1 Note
and of any CARAT 2005-SN1 Note issued upon the registration of transfer hereof
or in exchange hereof or in lieu hereof whether or not notation of such consent
or waiver is made upon this CARAT 2005-SN1 Note. The CARAT Indenture also
permits the CARAT
C-5-8
Indenture Trustee to amend or waive certain terms and conditions set forth in
the CARAT Indenture without the consent of the Noteholders.
The term "Issuer" as used in this CARAT 2005-SN1 Note includes any
successor to the Issuer under the CARAT Indenture.
The Issuer is permitted by the CARAT Indenture, under certain
circumstances, to merge or consolidate, subject to the rights of the CARAT
Indenture Trustee and the Holders of CARAT 2005-SN1 Notes under the CARAT
Indenture.
The CARAT 2005-SN1 Notes are issuable only in registered form in
denominations as provided in the CARAT Indenture, subject to certain limitations
therein set forth.
This CARAT 2005-SN1 Note and the CARAT Indenture shall be construed in
accordance with the laws of the State of New York, without reference to its
conflict of law provisions, and the obligations, rights and remedies of the
parties hereunder and thereunder shall be determined in accordance with such
laws.
No reference herein to the CARAT Indenture and no provision of this CARAT
2005-SN1 Note or of the CARAT Indenture shall alter or impair the obligation of
the Issuer, which is absolute and unconditional, to pay the principal of and
interest on this CARAT 2005-SN1 Note at the times, place and rate, and in the
coin or currency herein prescribed.
Anything herein to the contrary notwithstanding, except as expressly
provided in the CARAT Basic Documents, neither the Seller, the Trust
Administrator, the CARAT Indenture Trustee nor the CARAT Owner Trustee in their
respective individual capacities, any owner of a beneficial interest in the
Issuer, nor any of their respective partners, beneficiaries, agents, officers,
directors, employees or successors or assigns, shall be personally liable for,
nor shall recourse be had to any of them for, the payment of principal of or
interest on, or performance of, or omission to perform, any of the covenants,
obligations or indemnifications contained in this CARAT 2005-SN1 Note or the
CARAT Indenture, it being expressly understood that said covenants, obligations
and indemnifications have been made by the CARAT Owner Trustee solely as the
CARAT Owner Trustee in the assets of the Issuer. The Holder of this CARAT
2005-SN1 Note by the acceptance hereof agrees that, except as expressly provided
in the CARAT Basic Documents, in the case of an Event of Default under the CARAT
Indenture, the Holder shall have no claim against any of the foregoing for any
deficiency, loss or claim therefrom; provided, however, that nothing contained
herein shall be taken to prevent recourse to, and enforcement against, the
assets of the Issuer for any and all liabilities, obligations and undertakings
contained in the CARAT Indenture or in this CARAT 2005-SN1 Note.
C-5-9
ASSIGNMENT
Social Security or taxpayer I.D. or other identifying number of assignee
_________________________________
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto _______________________________________________________________
______________________________________________________________________________
(name and address of assignee)
the within CARAT 2005-SN1 Note and all rights thereunder, and hereby irrevocably
constitutes and appoints ____________________________________, as attorney, to
transfer said Note on the books kept for registration thereof, with full power
of substitution in the premises.
Dated: ____________________________ ____________________________________(5)
Signature Guaranteed:
___________________________ ____________________________________
- ----------
(5) NOTE: The signature to this assignment must correspond with the name of the
registered owner as it appears on the face of the within CARAT 2005-SN1 Note in
every particular, without alteration, enlargement or any change whatsoever.
C-5-10
EXHIBIT C-6
FORM OF CLASS A-2C AND CLASS A-3C
FLOATING RATE ASSET BACKED NOTE
REGISTERED $[____________]
No. R-[___]
Interest Rate: LIBOR +____% per annum
SEE REVERSE FOR CERTAIN DEFINITIONS
CUSIP NO. [__]
THIS [CLASS A-2c] [CLASS A-3c] NOTE HAS NOT BEEN AND WILL NOT BE
REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE
"U.S. SECURITIES ACT"), OR UNDER THE SECURITIES OR BLUE SKY LAWS OF ANY
STATE IN THE UNITED STATES OR ANY FOREIGN SECURITIES LAWS. BY ITS
ACCEPTANCE OF THIS [CLASS A-2c] [CLASS A-3c] NOTE (OR INTEREST THEREIN)
THE HOLDER OF THIS [CLASS A-2c] [CLASS A-3c] NOTE (OR SUCH INTEREST) IS
DEEMED TO REPRESENT TO THE SELLER AND THE INDENTURE TRUSTEE THAT IT IS A
"QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE l44A UNDER THE U.S.
SECURITIES ACT AND IS ACQUIRING THIS [CLASS A-2c] [CLASS A-3c] NOTE (OR
INTEREST THEREIN) FOR ITS OWN ACCOUNT (AND NOT FOR THE ACCOUNT OF OTHERS)
OR AS A FIDUCIARY OR AGENT FOR OTHERS (WHICH OTHERS ALSO ARE QUALIFIED
INSTITUTIONAL BUYERS).
NO SALE, PLEDGE OR OTHER TRANSFER OF THIS [CLASS A-2c] [CLASS A-3c]
NOTE (OR INTEREST THEREIN) MAY BE MADE BY ANY PERSON UNLESS EITHER (i)
SUCH SALE, PLEDGE OR OTHER TRANSFER IS MADE TO THE SELLER, (ii) SO LONG AS
THIS [CLASS A-2c] [CLASS A-3c] NOTE IS ELIGIBLE FOR RESALE PURSUANT TO
RULE l44A UNDER THE U.S. SECURITIES ACT, SUCH SALE, PLEDGE OR OTHER
TRANSFER IS MADE TO A PERSON WHOM THE TRANSFEROR REASONABLY BELIEVES AFTER
DUE INQUIRY IS A "QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN RULE
l44A), ACTING FOR ITS OWN ACCOUNT (AND NOT FOR THE ACCOUNT OF OTHERS) OR
AS A FIDUCIARY OR AGENT FOR OTHERS (WHICH OTHERS ALSO ARE QUALIFIED
INSTITUTIONAL BUYERS) TO WHOM NOTICE IS GIVEN THAT THE SALE, PLEDGE OR
OTHER TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, OR (iii) SUCH SALE,
PLEDGE OR OTHER TRANSFER IS OTHERWISE MADE IN A TRANSACTION EXEMPT FROM
THE REGISTRATION REQUIREMENTS OF THE U.S. SECURITIES ACT, IN WHICH CASE
(A) THE CARAT INDENTURE TRUSTEE SHALL REQUIRE
C-6-1
THAT BOTH THE PROSPECTIVE TRANSFEROR AND THE PROSPECTIVE TRANSFEREE
CERTIFY TO THE CARAT INDENTURE TRUSTEE AND THE SELLER IN WRITING THE FACTS
SURROUNDING SUCH TRANSFER, WHICH CERTIFICATION SHALL BE IN FORM AND
SUBSTANCE SATISFACTORY TO THE CARAT INDENTURE TRUSTEE AND THE SELLER, AND
(B) THE INDENTURE TRUSTEE SHALL REQUIRE A WRITTEN OPINION OF COUNSEL
(WHICH SHALL NOT BE AT THE EXPENSE OF THE SELLER, THE TRUST ADMINISTRATOR
OR THE CARAT INDENTURE TRUSTEE) SATISFACTORY TO THE SELLER AND THE CARAT
INDENTURE TRUSTEE TO THE EFFECT THAT SUCH TRANSFER WILL NOT VIOLATE THE
U.S. SECURITIES ACT.
THE PRINCIPAL OF THIS [CLASS A-2c] [CLASS A-3c] NOTE IS PAYABLE AS
SET FORTH HEREIN. ACCORDINGLY, THE OUTSTANDING PRINCIPAL AMOUNT OF THIS
[CLASS A-2c] [CLASS A-3c] NOTE AT ANY TIME MAY BE LESS THAN THE AMOUNT
SHOWN ON THE FACE HEREOF.
CAPITAL AUTO RECEIVABLES ASSET TRUST 2005-SN1
[CLASS A-2c] [CLASS A-3c] FLOATING RATE ASSET BACKED NOTES
CAPITAL AUTO RECEIVABLES ASSET TRUST 2005-SN1, a statutory trust organized
and existing under the laws of the State of Delaware (herein referred to as the
"Issuer"), for value received, hereby promises to pay to U.S. Bank National
Association, as Collateral Trustee u/a dated 6/18/01, as amended, Custodian,
under a Participation and Custodial Agreement, dtd 04/28/05, Capital Auto
Receivables, Inc., issuer, or registered assigns, the principal sum of _______
DOLLARS ($______) or such lesser outstanding amount as may be payable in
accordance with the CARAT Indenture (as defined on the reverse side of this
CARAT 2005-SN1 Note), on each Distribution Date in an amount equal to the result
obtained by multiplying (i) a fraction, the numerator of which is the initial
principal amount hereof and the denominator of which is the initial aggregate
principal amount for such [Class A-2c] [Class A-3c] Notes, by (ii) the aggregate
amount, if any, payable on such Distribution Date from the Note Distribution
Account in respect of principal on the [Class A-2c] [Class A-3c] Notes pursuant
to Sections 2.7, 3.1 and 8.2(c) of the CARAT Indenture; provided, however, that
the entire unpaid principal amount of this [Class A-2c] [Class A-3c] Note shall
be due and payable on [_______] (the "Final Scheduled Distribution Date"),
unless this [Class A-2c] [Class A-3c] Note is earlier redeemed pursuant to
Section 10.1 of the CARAT Indenture, in which case such unpaid principal amount
shall be due on the Redemption Date. The Issuer shall pay interest on this
[Class A-2c] [Class A-3c] Note on each Distribution Date in accordance with the
terms of the CARAT Indenture until the principal of this [Class A-2c] [Class
A-3c] Note is paid or made available for payment on the principal amount of this
[Class A-2c] [Class A-3c] Note outstanding on the preceding Distribution Date
(after giving effect to all payments of principal made on the preceding
Distribution Date (or, for the initial Distribution Date, the outstanding
principal balance on the Series 2005-SN1 Closing Date)). Interest on the [Class
A-2c] [Class A-3c] Notes will accrue from and including the Series 2005- SN1
Closing Date at the rate per annum shown above, and will be payable on each
Distribution Date in an amount equal to the CARAT 2005-
C-6-2
SN1 Noteholders' Note Class Interest Distributable Amount for such Class on such
Distribution Date for the [Class A-2c] [Class A-3c] Notes. Interest will be
computed on the basis of actual 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 the current
Distribution Date and a 360-day year. Such principal of and interest on this
[Class A-2c] [Class A-3c] Note shall be paid in the manner specified in the
CARAT Indenture. All interest payments on the [Class A-2c] [Class A-3c] Notes on
any Distribution Date shall be made pro rata to the [Class A-2c] [Class A-3c]
Noteholders entitled thereto.
The principal of and interest on this [Class A-2c] [Class A-3c] Note are
payable in such coin or currency of the United States of America which, at the
time of payment, is legal tender for payment of public and private debts. All
payments made by the Issuer with respect to this [Class A-2c] [Class A-3c] Note
shall be applied first to interest due and payable on this [Class A-2c] [Class
A-3c] Note as provided above and then to the unpaid principal of this [Class
A-2c] [Class A-3c] Note as provided above.
Reference is made to the further provisions of this [Class A-2c] [Class
A-3c] Note set forth on the reverse hereof, which shall have the same effect as
though fully set forth on the face of this [Class A-2c] [Class A-3c] Note.
Unless the certificate of authentication hereon has been executed by the
CARAT Indenture Trustee whose name appears below by manual signature, this
[Class A-2c] [Class A-3c] Note shall not be entitled to any benefit under the
CARAT Indenture referred to on the reverse hereof or be valid or obligatory for
any purpose.
C-6-3
IN WITNESS WHEREOF, the Issuer has caused this instrument to be signed,
manually or in facsimile, by its Authorized Officer.
Date: ___________________, 2005
CAPITAL AUTO RECEIVABLES ASSET TRUST 2005-SN1
By: DEUTSCHE BANK TRUST COMPANY DELAWARE,
not in its individual capacity
but solely as CARAT Owner Trustee
By: _____________________________________
Name:
Title:
C-6-4
CARAT INDENTURE TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the CARAT 2005-SN1 Notes designed above and
referred to in the within-mentioned CARAT Indenture.
CITIBANK, N.A., not in its individual capacity but solely
as CARAT Indenture Trustee
By: ______________________________________
Name:
Title:
C-6-5
REVERSE OF NOTE
This CARAT 2005-SN1 Note is one of a duly authorized issue of CARAT
2005-SN1 Notes of the Issuer, designated as its [Class A-2a] [Class A-3c]
Floating Rate Asset Backed Notes (herein called the "[Class A-2c] [Class A-3c]
Notes"), all issued under the CARAT Indenture, dated as of April 28, 2005 (such
CARAT Indenture, as supplemented or amended, is herein called the "CARAT
Indenture"), between the Issuer and CITIBANK, N.A., as trustee (the "CARAT
Indenture Trustee", which term includes any successor trustee under the CARAT
Indenture), to which CARAT Indenture and all indentures supplemental thereto
reference is hereby made for a statement of the respective rights and
obligations thereunder of the Issuer, the CARAT Indenture Trustee and the CARAT
2005-SN1 Noteholders. The [Class A-2c] [Class A-3c] Notes are one of several
duly authorized classes of CARAT 2005-SN1 Notes of the Issuer issued pursuant to
the CARAT Indenture (collectively, as to all CARAT 2005-SN1 Notes of all such
classes, the "CARAT 2005-SN1 Notes"). The CARAT 2005-SN1 Notes are governed by
and subject to all terms of the CARAT Indenture (which terms are incorporated
herein and made a part hereof), to which CARAT Indenture the Holder of this
CARAT 2005-SN1 Note by virtue of acceptance hereof assents and by which such
Holder is bound. All capitalized terms used and not otherwise defined in this
CARAT 2005-SN1 Note that are defined in the CARAT Indenture, as supplemented or
amended, shall have the meanings assigned to them in or pursuant to the CARAT
Indenture.
The [Class A-2c] [Class A-3c] Notes and all other CARAT 2005-SN1 Notes
issued pursuant to the CARAT Indenture are and will be equally and ratably
secured by the Collateral pledged as security therefor as provided in the CARAT
Indenture.
Each CARAT 2005-SN1 Noteholder or Note Owner will be deemed to represent
and warrant that either (A) it is not (i) an "employee benefit plan" (as defined
in Section 3(3) of the United States Employee Retirement Income Security Act of
1974, as amended ("ERISA"), that is subject to the provisions of Title I of
ERISA, (ii) a "plan" as described in Section 4975(e)(1) of the Internal Revenue
Code of 1986, as amended (the "Code") or (iii) any entity whose underlying
assets include plan assets by reason of a plan's investment in the entity or (B)
the purchase, holding and disposition of the CARAT 2005-SN1 Note will not result
in a non-exempt prohibited transaction under Section 406(a) of ERISA or Section
4975 of the Code.
Each CARAT 2005-SN1 Noteholder or Note Owner, by acceptance of a CARAT
2005-SN1 Note or, in the case of a Note Owner, a beneficial interest in a CARAT
2005-SN1 Note, covenants and agrees that no recourse may be taken, directly or
indirectly, with respect to the obligations of the Issuer, the CARAT Owner
Trustee or the CARAT Indenture Trustee on the CARAT 2005-SN1 Notes or under the
CARAT Indenture or any certificate or other writing delivered in connection
therewith, against (i) the CARAT Indenture Trustee or the CARAT Owner Trustee in
their individual capacities, (ii) the Seller or any other owner of a beneficial
interest in the Issuer or (iii) any partner, owner, beneficiary, agent, officer,
director or employee of the CARAT Indenture Trustee or the CARAT Owner Trustee
in their individual capacities, any holder of a beneficial interest in the
Issuer, the CARAT Owner Trustee or the CARAT Indenture Trustee or of any
successor or assign of the CARAT Indenture Trustee or the CARAT Owner Trustee in
their individual capacities, except as any such Person may have expressly agreed
and except that any such partner, owner or beneficiary shall be fully liable, to
the extent
C-6-6
provided by applicable law, for any unpaid consideration for stock, unpaid
capital contribution or failure to pay any instalment or call owing to such
entity.
Each CARAT 2005-SN1 Noteholder or Note Owner, by acceptance of a CARAT
2005-SN1 Note or, in the case of a Note Owner, a beneficial interest in a CARAT
2005-SN1 Note, covenants and agrees that by accepting the benefits of the CARAT
Indenture such CARAT 2005-SN1 Noteholder will not, prior to the date which is
one year and one day after the termination of the CARAT Indenture with respect
to the Issuer, acquiesce, petition or otherwise invoke or cause the Seller or
the Issuer to invoke the process of any court or government authority for the
purpose of commencing or sustaining a case against the Seller or the Issuer
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 Seller or the Issuer or any substantial part of its
property, or ordering the winding up or liquidation of the affairs of the Seller
or the Issuer.
Each CARAT 2005-SN1 Noteholder or Note Owner , by acceptance of a CARAT
2005-SN1 Note or, in the case of a Note Owner, a beneficial interest in a CARAT
2005-SN1 Note, expresses its intention that this CARAT 2005-SN1 Note qualifies
under applicable tax law as indebtedness secured by the Collateral and, unless
otherwise required by appropriate taxing authorities, agrees to treat the CARAT
2005-SN1 Notes as indebtedness secured by the Collateral for the purpose of
federal income taxes, state and local income and franchise taxes, Michigan
single business tax, and any other taxes imposed upon, measured by or based upon
gross or net income.
Prior to the due presentment for registration of transfer of this CARAT
2005-SN1 Note, the Issuer, the Indenture Trustee and any agent of the Issuer or
the CARAT Indenture Trustee may treat the Person in whose name this CARAT
2005-SN1 Note (as of the day of determination or as of such other date as may be
specified in the CARAT Indenture) is registered as the owner hereof for all
purposes, whether or not this CARAT 2005-SN1 Note shall be overdue, and neither
the Issuer, the CARAT Indenture Trustee nor any such agent shall be affected by
notice to the contrary.
The CARAT Indenture permits, with certain exceptions as therein provided,
the amendment thereof and the modification of the rights and obligations of the
Issuer and the rights of the CARAT 2005-SN1 Noteholders under the CARAT
Indenture at any time by the Issuer with the consent of the Holders of CARAT
2005-SN1 Notes representing a majority of the Outstanding Amount of the
Controlling Class. The CARAT Indenture also contains provisions permitting the
Holders of CARAT 2005-SN1 Notes representing specified percentages of the
Outstanding Amount of the Controlling Class, on behalf of the Holders of all the
CARAT 2005-SN1 Notes, to waive compliance by the Issuer with certain provisions
of the CARAT Indenture and certain past defaults under the CARAT Indenture and
their consequences. Any such consent or waiver by the Holder of this CARAT
2005-SN1 Note (or any one of more Predecessor Notes) shall be conclusive and
binding upon such Holder and upon all future Holders of this CARAT 2005-SN1 Note
and of any CARAT 2005-SN1 Note issued upon the registration of transfer hereof
or in exchange hereof or in lieu hereof whether or not notation of such consent
or waiver is made upon this CARAT 2005-SN1 Note. The CARAT Indenture also
permits the CARAT
C-6-7
Indenture Trustee to amend or waive certain terms and conditions set forth in
the CARAT Indenture without the consent of the Noteholders.
The term "Issuer" as used in this CARAT 2005-SN1 Note includes any
successor to the Issuer under the CARAT Indenture.
The Issuer is permitted by the CARAT Indenture, under certain
circumstances, to merge or consolidate, subject to the rights of the CARAT
Indenture Trustee and the Holders of CARAT 2005-SN1 Notes under the CARAT
Indenture.
The CARAT 2005-SN1 Notes are issuable only in registered form in
denominations as provided in the CARAT Indenture, subject to certain limitations
therein set forth.
This CARAT 2005-SN1 Note and the CARAT Indenture shall be construed in
accordance with the laws of the State of New York, without reference to its
conflict of law provisions, and the obligations, rights and remedies of the
parties hereunder and thereunder shall be determined in accordance with such
laws.
No reference herein to the CARAT Indenture and no provision of this CARAT
2005-SN1 Note or of the CARAT Indenture shall alter or impair the obligation of
the Issuer, which is absolute and unconditional, to pay the principal of and
interest on this CARAT 2005-SN1 Note at the times, place and rate, and in the
coin or currency herein prescribed.
Anything herein to the contrary notwithstanding, except as expressly
provided in the CARAT Basic Documents, neither the Seller, the Trust
Administrator, the CARAT Indenture Trustee nor the CARAT Owner Trustee in their
respective individual capacities, any owner of a beneficial interest in the
Issuer, nor any of their respective partners, beneficiaries, agents, officers,
directors, employees or successors or assigns, shall be personally liable for,
nor shall recourse be had to any of them for, the payment of principal of or
interest on, or performance of, or omission to perform, any of the covenants,
obligations or indemnifications contained in this CARAT 2005-SN1 Note or the
CARAT Indenture, it being expressly understood that said covenants, obligations
and indemnifications have been made by the CARAT Owner Trustee solely as the
CARAT Owner Trustee in the assets of the Issuer. The Holder of this CARAT
2005-SN1 Note by the acceptance hereof agrees that, except as expressly provided
in the CARAT Basic Documents, in the case of an Event of Default under the CARAT
Indenture, the Holder shall have no claim against any of the foregoing for any
deficiency, loss or claim therefrom; provided, however, that nothing contained
herein shall be taken to prevent recourse to, and enforcement against, the
assets of the Issuer for any and all liabilities, obligations and undertakings
contained in the CARAT Indenture or in this CARAT 2005-SN1 Note.
C-6-8
ASSIGNMENT
Social Security or taxpayer I.D. or other identifying number of assignee
_________________________________
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto _______________________________________________________
____________________________________________________________________________
(name and address of assignee)
the within CARAT 2005-SN1 Note and all rights thereunder, and hereby irrevocably
constitutes and appoints ____________________________________, as attorney, to
transfer said Note on the books kept for registration thereof, with full power
of substitution in the premises.
Dated: _____________________________ __________________________________(6)
Signature Guaranteed:
_____________________________ ____________________________________
- ----------
(6) NOTE: The signature to this assignment must correspond with the name of the
registered owner as it appears on the face of the within CARAT 2005-SN1 Note in
every particular, without alteration, enlargement or any change whatsoever.
C-6-9
EXHIBIT D-1
FORM OF TRANSFEROR CERTIFICATE
FOR TRANSFERS OF THE RULE 144A
GLOBAL CLASS A-1 NOTES
[Date]
Citibank, N.A., as Note Registrar
388 Greenwich St., 14th Floor
New York, New York 10013
Re: CARAT 2005-SN1 NOTES, CLASS A-1 (the "Class A-1 Notes")
Ladies and Gentlemen:
This letter relates to the sale by _____________________________
(the "Transferor") to _________________________ (the "Transferee") of U.S.
$[__________] aggregate principal balance of Class A-1 Notes (the
"Transferred Notes"). The Class A-1 Notes, including the Transferred
Notes, were issued pursuant to the CARAT Indenture, dated as of April 28,
2005 (the "CARAT Indenture"), among Capital Auto Receivables Asset Trust
2005-SN1, as issuer (the "Issuer") and Citibank, N.A. as indenture trustee
(the "CARAT Indenture Trustee"). All capitalized terms used but not
otherwise defined herein shall have the respective meanings set forth in
the CARAT Indenture.
The Transferor hereby certifies, represents and warrants to you, as
Note Registrar, and for the benefit of the Issuer, the CARAT Indenture
Trustee and the Transferee, that the Transferred Notes are being
transferred in accordance with (i) the transfer restrictions set forth in
the CARAT Indenture and the private placement memorandum dated April 28,
2005 relating to the Notes and (ii) Rule 144A under the United States
Securities Act of 1933, as amended, to a Transferee that the Transferor
reasonably believes is a qualified institutional buyer within the meaning
of Rule 144A purchasing the Notes for its own account or for the account
of a qualified institutional buyer, in a transaction meeting the
requirements of Rule 144A and in accordance with any applicable securities
laws of any state of the United States or any other jurisdiction.
[Name of Transferor]
By: ______________________
Name:
Title:
cc: [Seller]
D-1-1
EXHIBIT D-2
FORM OF TRANSFEREE CERTIFICATE
FOR TRANSFERS OF THE RULE 144A
GLOBAL CLASS A-1 NOTES
[Date]
Citibank, N.A., as Note Registrar
388 Greenwich St., 14th Floor
New York, New York 10013
Re: CARAT 2005-SN1 NOTES, CLASS A-1 (the "Class A-1 Notes")
Ladies and Gentlemen:
__________________ (the "Transferee") intends to purchase from
_________________ (the "Transferor") U.S. $[__________] aggregate
principal balance of Class A-1 Notes (the "Transferred Notes"). The Class
A-1 Notes, including the Transferred Notes, were issued pursuant to the
CARAT Indenture, dated as of April 28, 2005 (the "CARAT Indenture"), among
Capital Auto Receivables Asset Trust 2005-SN1, as issuer (the "Issuer")
and Citibank, N.A. as indenture trustee (the "CARAT Indenture Trustee").
All capitalized terms used herein and not otherwise defined shall have the
meanings set forth in the CARAT Indenture. The Transferee hereby
certifies, represents and warrants to you, as Note Registrar, and for the
benefit of the Issuer, the CARAT Indenture Trustee and the Transferor,
that:
1. The Transferee is a "qualified institutional buyer" (a "Qualified
Institutional Buyer") as that term is defined in Rule 144A ("Rule l44A")
under the Securities Act of 1933, as amended (the "Securities Act"), and
has completed one of the forms of certification to that effect attached
hereto as Annex 1 and Annex 2. The Transferee is aware that the sale to it
of the Transferred Notes is being made in reliance on Rule 144A. The
Transferee is acquiring the Transferred Notes for its own account or for
the account of a Qualified Institutional Buyer, and understands that such
Transferred Notes may be resold, pledged or transferred only (i) to a
person reasonably believed to be a Qualified Institutional Buyer that
purchases for its own account or for the account of a Qualified
Institutional Buyer to whom notice is given that the resale, pledge or
transfer is being made in reliance on Rule 144A, or (ii) pursuant to
another exemption from registration under the Securities Act.
2. The Transferee has been furnished with all information regarding
(a) the Transferred Notes and payments thereon, (b) the nature and
performance of the COLT 2005-SN1 Secured Notes and the Series 2005-SN1
Lease Assets, (c) the CARAT Indenture, and (d) any credit enhancement
mechanism associated with the Transferred Notes, that it has requested.
D-2-1
Very truly yours,
_______________________
(Transferee)
By: _____________________
Name:
Title:
D-2-2
ANNEX 1 TO EXHIBIT D-2
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[for Transferees other than Registered Investment Companies]
The undersigned hereby certifies as follows to [name of Transferor] (the
"Transferor") and [name of Note Registrar], as Note Registrar, with respect to
the Class A-1 Notes being transferred (the "Transferred Notes") as described in
the Transferee Certificate to which this certification relates and to which this
certification is an Annex:
1. As indicated below, the undersigned is the chief financial officer, a person
fulfilling an equivalent function, or other executive officer of the entity
purchasing the Transferred Notes (the "Transferee").
2. The Transferee is a "qualified institutional buyer" as that term is defined
in Rule 144A under the Securities Act of 1933, as amended ("Rule 144A"), because
(i) the Transferee owned and/or invested on a discretionary basis
$____________________ in securities (other than the excluded securities referred
to below) as of the end of the Transferee's most recent fiscal year (such amount
being calculated in accordance with Rule 144A) and (ii) the Transferee satisfies
the criteria in the category marked below.
____ Corporation, etc. The Transferee is a corporation (other than
a bank, savings and loan association or similar institution),
Massachusetts or similar business trust, partnership, or any
organization described in Section 501(c)(3) of the Internal
Revenue Code of 1986, as amended.
____ Bank. The Transferee (a) is a national bank or a banking
institution organized under the laws of any State, U.S.
territory or the District of Columbia, the business of which
is substantially confined to banking and is supervised by the
State or territorial banking commission or similar official or
is a foreign bank or equivalent institution, and (b) has an
audited net worth of at least $25,000,000 as demonstrated in
its latest annual financial statements, a copy of which is
attached hereto, as of a date not more than 16 months
preceding the date of sale of the Note in the case of a U.S.
bank, and not more than 18 months preceding such date of sale
for a foreign bank or equivalent institution.
____ Savings and Loan. The Transferee (a) is a savings and loan
association, building and loan association, cooperative bank,
homestead association or similar institution, which is
supervised and examined by a State or Federal authority having
supervision over any such institutions or is a foreign savings
and loan association or equivalent institution and (b) has an
audited net worth of at least $25,000,000 as demonstrated in
its latest annual financial statements, a copy of which is
attached hereto, as of a date not more than 16 months
preceding the date of sale of the Note in the case of a U.S.
savings and loan association, and not more than 18 months
preceding such date of sale for a foreign savings and loan
association or equivalent institution.
D-2-3
____ Broker-dealer. The Transferee is a dealer registered pursuant
to Section 15 of the Securities Exchange Act of 1934, as
amended.
____ Insurance Company. The Transferee is an insurance company
whose primary and predominant business activity is the writing
of insurance or the reinsuring of risks underwritten by
insurance companies and which is subject to supervision by the
insurance commissioner or a similar official or agency of a
State, U.S. territory or the District of Columbia.
____ State or Local Plan. The Transferee is a plan established and
maintained by a State, its political subdivisions, or any
agency or instrumentality of the State or its political
subdivisions, for the benefit of its employees.
____ ERISA Plan. The Transferee is an employee benefit plan within
the meaning of Title I of the Employee Retirement Income
Security Act of 1974, as amended.
____ Investment Advisor. The Transferee is an investment advisor
registered under the Investment Advisers Act of 1940, as
amended.
____ Other. (Please supply a brief description of the entity and a
cross-reference to the paragraph and subparagraph under
subsection (a)(1) of Rule l44A pursuant to which it qualifies.
Note that registered investment companies should complete
Annex 2 rather than this Annex 1.)
____________________________________________________________
____________________________________________________________
____________________________________________________________
3. The term "securities" as used herein does not include (i) securities of
issuers that are affiliated with the Transferee, (ii) securities that are part
of an unsold allotment to or subscription by the Transferee, if the Transferee
is a dealer, (iii) bank deposit notes and certificates of deposit, (iv) loan
participations, (v) repurchase agreements, (vi) securities owned but subject to
a repurchase agreement and (vii) currency, interest rate and commodity swaps.
For purposes of determining the aggregate amount of securities owned and/or
invested on a discretionary basis by the Transferee, the Transferee did not
include any of the securities referred to in this paragraph.
4. For purposes of determining the aggregate amount of securities owned and/or
invested on a discretionary basis by the Transferee, the Transferee used the
cost of such securities to the Transferee, unless the Transferee reports its
securities holdings in its financial statements on the basis of their market
value, and no current information with respect to the cost of those securities
has been published, in which case the securities were valued at market. Further,
in determining such aggregate amount, the Transferee may have included
securities owned by subsidiaries of the Transferee, but only if such
subsidiaries are consolidated with the Transferee in its financial statements
prepared in accordance with generally accepted accounting principles and if the
investments of such subsidiaries are managed under the Transferee's direction.
However, such securities were not included if the Transferee is a
majority-owned, consolidated subsidiary of another enterprise and the Transferee
is not itself a reporting company under the Securities Exchange Act of 1934, as
amended.
D-2-4
5. The Transferee acknowledges that it is familiar with Rule l44A and
understands that the Transferor and other parties related to the Transferred
Notes are relying and will continue to rely on the statements made herein
because one or more sales to the Transferee may be in reliance on Rule 144A.
____ ____ Will the Transferee be purchasing the Transferred Notes
Yes No only for the Transferee's own account?
6. If the answer to the foregoing question is "no", then in each case where the
Transferee is purchasing for an account other than its own, such account belongs
to a third party that is itself a "qualified institutional buyer" within the
meaning of Rule 144A, and the "qualified institutional buyer" status of such
third party has been established by the Transferee through one or more of the
appropriate methods contemplated by Rule 144A.
7. The Transferee will notify each of the parties to which this certification is
made of any changes in the information and conclusions herein. Until such notice
is given, the Transferee's purchase of the Transferred Notes will constitute a
reaffirmation of this certification as of the date of such purchase. In
addition, if the Transferee is a bank or savings and loan as provided above, the
Transferee agrees that it will furnish to such parties any updated annual
financial statements that become available on or before the date of such
purchase, promptly after they become available.
__________________________
Print Name of Transferee
By: ______________________
Name:
Title:
Date:
D-2-5
ANNEX 2 TO EXHIBIT D-2
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[for Transferees that are Registered Investment Companies]
The undersigned hereby certifies as follows to [name of Transferor] (the
"Transferor") and [name of Note Registrar], as Note Registrar, with respect to
the Class A-1 Notes being transferred (the "Transferred Notes") as described in
the Transferee Certificate to which this certification relates and to which this
certification is an Annex:
1. As indicated below, the undersigned is the chief financial officer, a person
fulfilling an equivalent function, or other executive officer of the entity
purchasing the Transferred Certificates (the "Transferee") or, if the Transferee
is a "qualified institutional buyer" as that term is defined in Rule 144A under
the Securities Act of 1933, as amended ("Rule 144A"), because the Transferee is
part of a Family of Investment Companies (as defined below), is an executive
officer of the investment adviser (the "Adviser").
2. The Transferee is a "qualified institutional buyer" as defined in Rule 144A
because (i) the Transferee is an investment company registered under the
Investment Company Act of 1940, as amended, and (ii) as marked below, the
Transferee alone owned and/or invested on a discretionary basis, or the
Transferee's Family of Investment Companies owned, at least $100,000,000 in
securities (other than the excluded securities referred to below) as of the end
of the Transferee's most recent fiscal year. For purposes of determining the
amount of securities owned by the Transferee or the Transferee's Family of
Investment Companies, the cost of such securities was used, unless the
Transferee or any member of the Transferee's Family of Investment Companies, as
the case may be, reports its securities holdings in its financial statements on
the basis of their market value, and no current information with respect to the
cost of those securities has been published, in which case the securities of
such entity were valued at market.
____ The Transferee owned and/or invested on a discretionary basis $____________
in securities (other than the excluded securities referred to below) as of the
end of the Transferee's most recent fiscal year (such amount being calculated in
accordance with Rule 144A).
____ The Transferee is part of a Family of Investment Companies which owned in
the aggregate $_____________ in securities (other than the excluded securities
referred to below) as of the end of the Transferee's most recent fiscal year
(such amount being calculated in accordance with Rule 144A).
3. The term "Family of Investment Companies" as used herein means two or more
registered investment companies (or series thereof) that have the same
investment adviser or I investment advisers that are affiliated (by virtue of
being majority owned subsidiaries of the same parent or because one investment
adviser is a majority owned subsidiary of the other).
4. The term "securities" as used herein does not include (i) securities of
issuers that are affiliated with the Transferee or are part of the Transferee's
Family of Investment Companies, (ii) bank deposit notes and certificates of
deposit, (iii) loan participations, (iv) repurchase agreements, (v) securities
owned but subject to a repurchase agreement and (vi) currency,
D-2-6
interest rate and commodity swaps. For purposes of determining the aggregate
amount of securities owned and/or invested on a discretionary basis by the
Transferee, or owned by the Transferee's Family of Investment Companies, the
securities referred to in this paragraph were excluded.
5. The Transferee is familiar with Rule 144A and understands that the parties to
which this certification is being made are relying and will continue to rely on
the statements made herein because one or more sales to the Transferee will be
in reliance on Rule 144A.
____ ____ Will the Transferee be purchasing the Transferred Notes
Yes No only for the Transferee's own account?
6. If the answer to the foregoing question is "no", then in each case where the
Transferee is purchasing for an account other than its own, such account belongs
to a third party that is itself a "qualified institutional buyer" within the
meaning of Rule 144A, and the "qualified institutional buyer" status of such
third party has been established by the Transferee through one or more of the
appropriate methods contemplated by Rule l44A.
7. The undersigned will notify the parties to which this certification is made
of any changes in the information and conclusions herein. Until such notice, the
Transferee's purchase of the Transferred Notes will constitute a reaffirmation
of this certification by the undersigned as of the date of such purchase.
___________________________________
Print Name of Transferee or Adviser
By: _______________________________
Name:
Title:
IF AN ADVISER:
____________________________________
Print Name of Transferee
Date:
D-2-7
EXHIBIT D-3
FORM OF REGULATION S TRANSFER CERTIFICATE
[Date]
Citibank, N.A., as Note Registrar
388 Greenwich St., 14th Floor
New York, New York 10013
Re: CARAT 2005-SN1 NOTES, CLASS A-1 (the "Class A-1 Notes")
__________________ (the "Transferee") intends to purchase from
_________________ (the "Transferor") U.S. $[__________] aggregate
principal balance of Class A-1 Notes (the "Transferred Notes"). The Class
A-1 Notes, including the Transferred Notes, were issued pursuant to the
CARAT Indenture, dated as of April 28, 2005 (the "CARAT Indenture"), among
Capital Auto Receivables Asset Trust 2005-SN1, as issuer (the "Issuer")
and Citibank, N.A. as indenture trustee (the "CARAT Indenture Trustee").
All capitalized terms used herein and not otherwise defined shall have the
meanings set forth in the CARAT Indenture. The Transferee hereby
certifies, represents and warrants to you, as Note Registrar, and for the
benefit of the Issuer, the CARAT Indenture Trustee and the Transferor,
that:
1. The Transferee is not a U.S. person (as defined in Regulation S
under the Securities Act) and is acquiring the Transferred Notes outside
of the United States.
2. No directed selling efforts were made in contravention of the
requirements of Rule 903(b) or 904(b) of Regulation S, as applicable.
3. The transfer is not part of a plan or scheme to evade the
registration requirements of the Securities Act;
4. The transfer was made in accordance with the applicable
provisions of Rule 903 or Rule 904 of Regulation S, as the case may be.
5. The Transferee has been furnished with all information regarding
(a) the Transferred Notes and payments thereon, (b) the nature and
performance of the COLT 2005-SN1 Secured Notes and the Series 2005-SN1
Lease Assets, (c) the CARAT Indenture, and (d) any credit enhancement
mechanism associated with the Transferred Notes, that it has requested.
6. The Transferee understands that the Transferred Notes have not
been and will not be registered under the Securities Act, that any offers,
sales or deliveries of the Transferred Notes purchased by the Transferee
in the United States or to U.S. persons prior to the date that is 40 days
after the later of (i) the commencement of the offering of the Class A-1
Notes and (ii) the Series 2005-SN1 Closing Date, may constitute a
violation of United States law, and that (x) distributions of principal
and interest and (y) the exchange of beneficial interests in a Temporary
Regulation S Global Class A-1 Note for beneficial interests in the related
Permanent Regulation S Global Class A-1 Note, in each case, will be made
in respect of such
D-3-1
Transferred Notes only following the delivery by the holder of a
certification of non-U.S. beneficial ownership, at the times and in the
manner set forth in the CARAT Indenture.
Very truly yours,
___________________________________
(Transferee)
By: _______________________________
Name:
Title:
D-3-2
EXHIBIT D-4
FORM OF RULE 144A TRANSFER CERTIFICATE
[Date]
Citibank, N.A., as Note Registrar
388 Greenwich St., 14th Floor
New York, New York 10013
Re: CARAT 2005-SN1 NOTES, CLASS A-1 (the "Class A-1 Notes")
Ladies and Gentlemen:
Reference is hereby made to the CARAT Indenture, dated as of April 28,
2005 (the "CARAT Indenture") among Capital Auto Receivables Asset Trust
2005-SN1, as issuer (the "Issuer") and Citibank, N.A. as indenture trustee (the
"CARAT Indenture Trustee"). Capitalized terms used herein but not defined herein
shall have the meanings assigned thereto in the CARAT Indenture.
This letter relates to U.S. $[__________] aggregate principal balance of
Class A-1 Notes which are held in the form of a Temporary Regulation S Global
Class A-1 Note with the Depository [CUSIP/CINS No. ______________] in the name
of [name of transferor] (the "Transferor") to effect [the transfer of the Class
A-1 Notes to a person who wishes to take delivery thereof in the form of an
equivalent beneficial interest in a Rule 144A Global Note (the "Transferee")]
[the exchange of the Class A-1 Notes for an equivalent beneficial interest in a
Rule 144A Global Class A-1 Note].
In connection with such request, and in respect of such Notes, the
Transferor does hereby certify that such Class A-1 Notes are being transferred
in accordance with (i) the transfer restrictions set forth in the CARAT
Indenture and the private placement memorandum dated April [__], 2005 relating
to the Notes and (ii) Rule 144A under the United States Securities Act of 1933,
as amended, to a Transferee that the Transferor reasonably believes is a
qualified institutional buyer within the meaning of Rule 144A purchasing the
Class A-1 Notes for its own account or for the account of a qualified
institutional buyer, in a transaction meeting the requirements of Rule 144A and
in accordance with any applicable securities laws of any state of the United
States or any other jurisdiction.
[Name of Transferor]
By:_____________________
Name:
Title:
cc: [Seller]
D-4-1
EXHIBIT D-5
FORM OF CLEARING SYSTEM CERTIFICATE
[Date]
Citibank, N.A., as Note Registrar
388 Greenwich St., 14th Floor
New York, New York 10013
Re: CARAT 2005-SN1 NOTES, CLASS A-1 (the "Class A-1 Notes")
Ladies and Gentlemen:
Reference is hereby made to the CARAT Indenture, dated as of April 28,
2005 (the "CARAT Indenture"), among Capital Auto Receivables Asset Trust
2005-SN1, as issuer (the "Issuer") and Citibank, N.A. as indenture trustee (the
"CARAT Indenture Trustee"). Capitalized terms used herein but not defined herein
shall have the meanings assigned thereto in the CARAT Indenture.
This is to certify that, based solely on certificates we have received in
writing, by tested telex or by electronic transmissions from member
organizations appearing in our records as persons being entitled to a portion of
the Class A-1 Notes equal to, as of the date hereof, U.S. $_____ (our "Member
Organizations"), certifies with respect to such portion, substantially to the
effect set forth in Annex A hereto.
We further certify (i) that we are not making available herewith for
exchange any portion of the Temporary Regulation S Global Class A-1 Note
excepted in such certificates and (ii) that as of the date hereof we have not
received any notification from any of our Member Organizations to the effect
that the statements made by such member organizations with respect to any
portion of the part submitted herewith for exchange are no longer true and
cannot be relied upon as at the date hereof. We understand that this
certification is required in connection with certain securities laws of the
United States. In connection therewith, if administrative or legal proceedings
are commenced or threatened in connection with this certificate is or would be
relevant, we irrevocably authorized you to produce this certificate to any
interested party in such proceedings.
Yours faithfully,
[CLEARSTREAM, LUXEMBOURG]
or
[EUROCLEAR BANK SA/NV,
Brussels office, as operator of the
Euroclear System]
By: __________________________________
D-5-1
ANNEX A TO EXHIBIT D-5
FORM OF MEMBER ORGANIZATION CERTIFICATE
[Address to Euroclear or Clearstream, Luxembourg, as appropriate]
Re: CARAT 2005-SN1 NOTES, CLASS A-1 (the "Class A-1 Notes")
Ladies and Gentlemen:
Reference is hereby made to the CARAT Indenture, dated as of April 28,
2005 (the "CARAT Indenture"), among Capital Auto Receivables Asset Trust
2005-SN1, as issuer (the "Issuer") and Citibank, N.A. as indenture trustee (the
"CARAT Indenture Trustee"). Capitalized terms used herein but not defined herein
shall have the meanings assigned thereto in the CARAT Indenture.
This is to certify that, as of the date hereof and except as set forth
below, the Class A-1 Notes (the "Class A-1 Notes") held by you for our account
are beneficially owned by non-U.S. persons who purchased the Class A-1 Notes in
transactions that did not require registration under the United States
Securities Act of 1933, as amended (the "Securities Act"). As used in this
paragraph, the term "U.S. person" has the meaning given to it by Regulation S
under the Securities Act.
We undertake to advise you promptly by tested telex on or prior to the
date on which you intend to submit your certification relating to the Class A-1
Notes held by you for our account in accordance with your documented procedures
if any applicable statement herein is not correct on such date, and in the
absence of any such notification it may be assumed that this certificate applies
as of such date.
Dated: ____________, 200__(1)
Yours faithfully,
[Name of Person giving the certificate]
- ------------------
(1) To be dated no earlier than 15 days prior to the event to which the
certification relates.
D-5-1
EXHIBIT E
RULE 144A CERTIFICATE
Capital Auto Receivables, Inc.
Corporation Trust Center
1209 Orange Street
Wilmington, DE 19801
Citibank, N.A.,
as CARAT Indenture Trustee
111 Wall Street, 14th Floor
New York, New York 10005
Ladies and Gentlemen:
In connection with the purchase of the [Class A-2c] [Class A-3c] Floating
Rate Asset Backed Note, (the "[Class A-2c][Class A-3c] Notes") of the Capital
Auto Receivables Asset Trust 2005-SN1, the undersigned buyer ("Buyer") hereby
acknowledges, represents and agrees that:
(a) Buyer is a "qualified institutional buyer" as defined under Rule 144A
("Rule 144A") under the Securities Act of 1933, as amended (the "Securities
Act"), acting for its own account or for the accounts of other "qualified
institutional buyers" as defined under Rule 144A under the Securities Act. Buyer
is familiar with Rule 144A under the Securities Act and Buyer is aware that the
seller of the applicable [Class A-2c][Class A-3c] Notes, as applicable, to the
Buyer and other parties intend to rely on the statements made herein and the
exemption from the registration requirements of the Securities Act provided by
Rule 144A.
(b) Buyer is purchasing the applicable [Class A-2c][Class A-3c] Notes for
its own account (or the accounts of other "qualified institutional buyers"), not
with a view to, or for offer or sale in connection with, any distribution
thereof, subject to the disposition of Buyer's property (or property held in the
accounts of other "qualified institutional buyers") being at all times within
Buyer's control and subject to Buyer's ability to resell such [Class A-2c][Class
A-3c] Notes pursuant to Rule 144A under the Securities Act. Buyer agrees to
offer, sell or otherwise transfer such [Class A-2c] [Class A-3c] Notes only in
conformity with the restrictions on transfer set forth in the CARAT Indenture
dated as of April 28, 2005 pursuant to which the [Class A-2c][Class A-3c] Notes
were issued and the legend set forth on the definitive physical certificate
evidencing the [Class A-2c][Class A-3c] Notes.
E-1
(c) Buyer acknowledges that you and others will rely upon its
confirmations, acknowledgments and agreements set forth herein, and Buyer agrees
to notify you promptly in writing if any of the information herein ceases to be
accurate and complete.
__________________________
Print Name of Buyer
By: _____________________
Name:
Title:
Date: ____________________
E-2