EXHIBIT 99.9
================================================================================
SWAP COUNTERPARTY RIGHTS AGREEMENT
AMONG
CITIBANK, N.A.,
AS SWAP COUNTERPARTY
CAPITAL AUTO RECEIVABLES ASSET TRUST 2007-SN1
GMAC LLC,
AS SERVICER AND TRUST ADMINISTRATOR
CAPITAL AUTO RECEIVABLES LLC,
CENTRAL ORIGINATING LEASE TRUST,
THE BANK OF NEW YORK TRUST COMPANY N.A.,
AS INDENTURE TRUSTEE
AND
DEUTSCHE BANK TRUST COMPANY DELAWARE,
AS OWNER TRUSTEE
DATED AS OF June 7, 2007
================================================================================
TABLE OF CONTENTS
ARTICLE I DEFINITIONS...................................................... 1
Section 1.01 Definitions................................................ 1
ARTICLE II LIMITATIONS ON CARAT'S OR COLT'S CONSOLIDATION, MERGER OR SALE
OF ASSETS; LIMITATIONS ON PAYMENT TO NOTEHOLDERS OR CERTIFICATE
HOLDERS......................................................... 1
Section 2.01 Consolidation or Merger; Sale or Disposition of Assets or
Property................................................... 1
Section 2.02 Payment to Noteholders or Certificateholders............... 2
ARTICLE III AMENDMENTS TO TRANSACTION DOCUMENTS............................ 2
Section 3.01 Amendments to Trust Sale and Administration Agreement...... 2
Section 3.02 Amendments to Trust Agreement.............................. 3
Section 3.03 Amendments to COLT Custodian Agreement..................... 3
Section 3.04 CARAT Supplemental Indentures Without Consent of Primary
Swap Counterparty.......................................... 3
Section 3.05 COLT Supplemental Indentures Without Consent of Primary
Swap Counterparty.......................................... 3
Section 3.06 Amendments to COLT Servicing Agreement..................... 3
Section 3.07 Amendments to COLT Sale and Contribution Agreement......... 3
Section 3.08 Amendments to Declaration of Trust......................... 4
ARTICLE IV DELIVERY OF NOTICES AND REPORTS................................. 4
Section 4.01 Notices of Replacement of Indenture Trustee................ 4
Section 4.02 Notices of Events of Default, Enforcement and
Termination................................................ 4
Section 4.03 Notices of Amendment of the COLT Custodian Agreement....... 6
Section 4.04 Notices of CARAT Supplemental Indentures................... 6
Section 4.05 Notices of COLT Supplemental Indentures................... 6
Section 4.06 Notices of Amendment of Trust Agreement.................... 6
Section 4.07 Notices of Amendment to Declaration of Trust............... 6
Section 4.08 Notices of Amendment of the Trust Sale and Administration
Agreement.................................................. 7
Section 4.09 Notices of Amendment of the COLT Servicing Agreement....... 7
Section 4.10 Notices of Amendment of the COLT Sale and Contribution
Agreement.................................................. 7
Section 4.11 Notices of Release of Property............................. 7
Section 4.12 Notices of Release of Property............................. 7
Section 4.13 Notices of Release of Collateral........................... 7
Section 4.14 Notices of Release of COLT 2007-SN1 Trust Estate........... 7
Section 4.15 Notices of Assignment of the Trust Sale and
Administration Agreement................................... 7
Section 4.16 Notice of Optional Purchase of All COLT 2007-SN1 Secured
Notes...................................................... 7
Section 4.17 Notice of Redemption of the CARAT 2007-SN1 Notes........... 7
Section 4.18 Notices Generally.......................................... 7
Section 4.19 Delivery of Reports........................................ 8
i
ARTICLE V MISCELLANEOUS.................................................... 8
Section 5.01 Notices.................................................... 8
Section 5.02 GOVERNING LAW.............................................. 8
Section 5.03 Binding Effect............................................. 9
Section 5.04 Replacement of the Swap Counterparty....................... 9
Section 5.05 Rights Under Other CARAT Basic Documents................... 9
Section 5.06 Severability of Provisions................................. 9
Section 5.07 Assignment................................................. 9
Section 5.08 Amendments................................................. 9
Section 5.09 Headings................................................... 9
Section 5.10 Counterparts............................................... 9
Section 5.11 Limitation of Liability.................................... 9
Section 5.12 Termination................................................ 10
ii
THIS SWAP COUNTERPARTY RIGHTS AGREEMENT, dated as of June 7, 2007 (this
"Agreement"), is among CITIBANK, N.A., as Swap Counterparty (the "Primary Swap
Counterparty"), CAPITAL AUTO RECEIVABLES ASSET TRUST 2007-SN1, a Delaware
statutory trust ("CARAT"), GMAC LLC, a Delaware limited liability company, as
Servicer and Trust Administrator ("GMAC"), CAPITAL AUTO RECEIVABLES LLC., a
Delaware limited liability company ("CARI"), CENTRAL ORIGINATING LEASE TRUST, a
Delaware statutory trust ("COLT"), THE BANK OF NEW YORK TRUST COMPANY, N.A., not
in its individual capacity but solely as CARAT Indenture Trustee and COLT
Indenture Trustee (the "Indenture Trustee"), and DEUTSCHE BANK TRUST COMPANY
DELAWARE, a Delaware banking corporation, not in its individual capacity but
solely as CARAT Owner Trustee and COLT Owner Trustee (the "Owner Trustee").
WHEREAS, as of the date hereof, CARAT has entered into the Interest Rate
Swap with the Primary Swap Counterparty;
WHEREAS, the parties intend in this Agreement to enumerate certain rights
of the Primary Swap Counterparty.
NOW, THEREFORE, in consideration of the premises and the mutual covenants
herein contained, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
Section 1.01 Definitions. Capitalized terms used and not otherwise defined
in this Agreement are defined in and 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, among GMAC, CARI, and CARAT, as it may be amended,
supplemented or modified from time to time (the "Trust Sale and Administration
Agreement") and if not defined therein, then in Part I of Exhibit A to the COLT
2007-SN1 Servicing Agreement dated as of the date hereof, among GMAC, COLT
Indenture Trustee and COLT, as it may be amended, supplemented or modified from
time to time (the "COLT Servicing Agreement"). All references herein to Articles
and Sections are to Articles or Sections of other CARAT Basic Documents or COLT
2007-SN1 Basic Documents unless otherwise specified. The rules of construction
set forth in Part II of Appendix A to the Trust Sale and Administration
Agreement and in Part II of Exhibit A to the COLT Servicing Agreement shall be
applicable to this Agreement.
ARTICLE II
LIMITATIONS ON CARAT'S OR COLT'S CONSOLIDATION, MERGER OR
SALE OF ASSETS; LIMITATIONS ON PAYMENT TO NOTEHOLDERS OR CERTIFICATE HOLDERS
Section 2.01 Consolidation or Merger; Sale or Disposition of Assets or
Property
(a) CARAT shall not consolidate or merge with or into any other
Person, unless CARAT shall have delivered to the Indenture Trustee and the
Primary Swap Counterparty an Officer's Certificate and an Opinion of Counsel
addressed to CARAT, each stating that such
consolidation or merger and related supplemental indenture shall have no
material adverse tax consequence to the Primary Swap Counterparty.
(b) Except as otherwise expressly permitted by the COLT Indenture or
the other COLT 2007-SN1 Basic Documents, COLT shall not consolidate or merge
with or into any other Person, unless COLT shall have delivered to the Indenture
Trustee and the Primary Swap Counterparty an Officer's Certificate and an
Opinion of Counsel addressed to COLT, each stating that such consolidation or
merger and related supplemental indenture shall have no material adverse tax
consequence to the Primary Swap Counterparty.
(c) Except as otherwise expressly permitted by the CARAT Indenture or
the other CARAT Basic Documents, CARAT 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 CARAT shall have
delivered to the Indenture Trustee and the Primary Swap Counterparty an
Officer's Certificate and an Opinion of Counsel addressed to CARAT, each stating
that such sale, conveyance, exchange, transfer or disposition and related
supplemental indenture shall have no material adverse tax consequence to the
Primary Swap Counterparty.
(d) Except as otherwise expressly permitted by the COLT Indenture or
the other COLT 2007-SN1 Basic Documents, COLT shall not sell, convey, exchange,
transfer or otherwise dispose of any of its properties or assets, including
those included in the COLT 2007-SN1 Trust Estate, to any Person, unless COLT
shall have delivered to the Indenture Trustee and the Primary Swap Counterparty
an Officer's Certificate and an Opinion of Counsel addressed to COLT, each
stating that such sale, conveyance, exchange, transfer or disposition and
related supplemental indenture shall have no material adverse tax consequence to
the Primary Swap Counterparty.
Section 2.02 Payment to Noteholders or Certificateholders. At any time that
CARAT, the CARAT Indenture Trustee or any other Person under any CARAT Basic
Document shall make any payment or distribution to any CARAT 2007-SN1 Noteholder
or CARAT 2007-SN1 Certificateholder out of the funds in the CARAT Collection
Account or out of funds realized upon any sale or liquidation (in whole or in
part) of the Collateral pursuant to Article V of the CARAT Indenture, such
payment (an "Investor Payment") shall not be made unless the Primary Swap
Counterparty has received any and all payments that it is entitled to receive
pursuant to Sections 4.05(b) and 8.01(b) of the Trust Sale and Administration
Agreement (or funds have been set aside for the purpose of making such payments)
in priority to such Investor Payment or on a parity with such Investor Payment
pursuant to the terms of such provisions.
ARTICLE III
AMENDMENTS TO TRANSACTION DOCUMENTS
Section 3.01 Amendments to Trust Sale and Administration Agreement. The
Trust Sale and Administration Agreement may be amended, modified or supplemented
from time to time by CARI, GMAC and the Owner Trustee in the manner specified by
Section 9.01(a) of the Trust Sale and Administration Agreement; provided,
however, that no such amendment, modification or supplement shall be made unless
either (A) the Primary Swap Counterparty consents in writing to such amendment,
modification or supplement or (B) the amendment,
2
modification or supplement will, as evidenced by an Opinion of Counsel, have no
material adverse effect on the interests of the Primary Swap Counterparty.
Section 3.02 Amendments to Trust Agreement. The Owner Trustee shall furnish
notice to the Primary Swap Counterparty and to each of the Rating Agencies prior
to obtaining consent to any proposed amendment, modification or supplement under
Section 8.1 of the Trust Agreement; provided, however, that no amendment,
modification or supplement shall be made unless either (A) the Primary Swap
Counterparty consents in writing to such amendment, modification or supplement
or (B) the amendment, modification or supplement will, as evidenced by an
Opinion of Counsel, have no material adverse effect on the interests of the
Primary Swap Counterparty.
Section 3.03 Amendments to COLT Custodian Agreement. The COLT Custodian
Agreement may be amended, modified or supplemented pursuant to Section 9(b)
thereof; provided, however, that no such amendment, modification or supplement
shall be made unless either (A) the Primary Swap Counterparty consents in
writing to such amendment, modification or supplement or (B) such amendment,
modification or supplement will, as evidenced by an Opinion of Counsel, have no
material adverse effect on the interests of the Primary Swap Counterparty.
Section 3.04 CARAT Supplemental Indentures Without Consent of Primary Swap
Counterparty. No supplemental indenture shall be entered into under Section 9.1
of the CARAT Indenture unless either (A) the Primary Swap Counterparty consents
in writing to such supplemental indenture or (B) such supplemental indenture
will, as evidenced by an Opinion of Counsel, have no material adverse effect on
the interests of the Primary Swap Counterparty.
Section 3.05 COLT Supplemental Indentures Without Consent of Primary Swap
Counterparty. No supplemental indenture shall be entered into under Section 9.1
of the COLT Indenture unless either (A) the Primary Swap Counterparty consents
in writing to such supplemental indenture or (B) such supplemental indenture
will, as evidenced by an Opinion of Counsel, have no material adverse effect on
the interests of the Primary Swap Counterparty.
Section 3.06 Amendments to COLT Servicing Agreement. The COLT Servicing
Agreement may be amended, modified or supplemented pursuant to Section 7.01(a)
thereof; provided, however, that no such amendment, modification or supplement
shall be made unless either (A) the Primary Swap Counterparty consents in
writing to such amendment, modification or supplement or (B) such amendment,
modification or supplement will, as evidenced by an Opinion of Counsel, have no
material adverse effect on the interests of the Primary Swap Counterparty.
Section 3.07 Amendments to COLT Sale and Contribution Agreement. The COLT
Sale and Contribution Agreement may be amended, modified or supplemented
pursuant to Section 6.01(a) thereof; provided, however, that no such amendment,
modification or supplement shall be made unless either (A) the Primary Swap
Counterparty consents in writing to such amendment, modification or supplement
or (B) such amendment, modification or supplement will, as evidenced by an
Opinion of Counsel, have no material adverse effect on the interests of the
Primary Swap Counterparty.
3
Section 3.08 Amendments to Declaration of Trust. The Owner Trustee shall
furnish notice to the Primary Swap Counterparty and to each of the Rating
Agencies prior to obtaining consent to any proposed amendment, modification or
supplement under Section 8.4 of the Declaration of Trust or under Section
11.1(b) of COLT 2007-SN1 Supplement to the Declaration of Trust; provided,
however, that no amendment, modification or supplement shall be made unless
either (A) the Primary Swap Counterparty consents in writing to such amendment,
modification or supplement or (B) the amendment, modification or supplement
will, as evidenced by an Opinion of Counsel, have no material adverse effect on
the interests of the Primary Swap Counterparty.
ARTICLE IV
DELIVERY OF NOTICES AND REPORTS
Section 4.01 Notices of Replacement of Indenture Trustee. (a) The CARAT
Indenture Trustee shall provide the Primary Swap Counterparty with a copy of any
notice of its intent to resign delivered pursuant to Section 6.8(a) of the CARAT
Indenture.
(b) The COLT Indenture Trustee shall provide the Primary Swap
Counterparty with a copy of any notice of its intent to resign delivered
pursuant to Section 6.8(a) of the COLT Indenture.
(c) A successor CARAT Indenture Trustee shall deliver to the Primary
Swap Counterparty a copy of any acceptance under Section 6.8(c) of the CARAT
Indenture.
(d) A successor COLT Indenture Trustee shall deliver to the Primary
Swap Counterparty a copy of any acceptance under Section 6.8(c) of the COLT
Indenture.
Section 4.02 Notices of Events of Default, Enforcement and Termination.
(a) The Paying Agent for the CARAT 2007-SN1 Notes shall give the
Primary Swap Counterparty notice of any default by CARAT (or any other obligor
upon the CARAT 2007-SN1 Notes) of which it has actual knowledge in the making of
any payment required to be made with respect to the CARAT 2007-SN1 Notes.
(b) CARAT shall deliver to the Primary Swap Counterparty a copy of any
notice it shall deliver pursuant to Section 3.7(d) of the CARAT Indenture in
respect of the occurrence of a Trust Administrator Default under the Trust Sale
and Administration Agreement.
(c) COLT shall deliver to the Primary Swap Counterparty a copy of any
notice it shall deliver pursuant to Section 3.7(d) of the COLT Indenture in
respect of the occurrence of a Servicer Default under the COLT Servicing
Agreement.
(d) CARAT shall give the Primary Swap Counterparty prompt written
notice of each CARAT Event of Default under the CARAT Indenture, each Trust
Administrator Default, each default on the part of CARI of its obligations under
the Trust Sale and Administration Agreement and each default on the part of GMAC
of its obligations under the Pooling and Administration Agreement.
4
(e) COLT shall give the Primary Swap Counterparty prompt written
notice of each Event of Default under the COLT Indenture, each Servicer Default
under the COLT Servicing Agreement and each default on the part of GMAC of its
obligations under the COLT Sale and Contribution Agreement.
(f) CARAT shall deliver to the Primary Swap Counterparty, within five
Business Days after learning of the occurrence thereof, a copy of the written
notice in the form of an Officer's Certificate delivered to the CARAT Indenture
Trustee, of any event which with the giving of notice and the lapse of time
would become a CARAT Event of Default under Section 5.1(c) of the CARAT
Indenture, its status and what action CARAT is taking or proposes to take with
respect thereto.
(g) COLT shall deliver to the Primary Swap Counterparty, within five
Business Days after learning of the occurrence thereof, a copy of the written
notice in the form of an Officer's Certificate delivered to the COLT Indenture
Trustee, of any event which with the giving of notice and the lapse of time
would become an Event of Default under Section 5.1(c) of the COLT Indenture, its
status and what action COLT is taking or proposes to take with respect thereto.
(h) If a CARAT Event of Default should occur and be continuing under
the CARAT Indenture, and the CARAT Indenture Trustee or the requisite percentage
of the Holders of the CARAT 2007-SN1 Notes declare all of the notes immediately
due and payable pursuant to Section 5.2(a) of the CARAT Indenture, then the
CARAT Indenture Trustee shall give prompt written notice thereof to the Primary
Swap Counterparty.
(i) If an Event of Default should occur and be continuing under the
COLT Indenture, and the COLT Indenture Trustee or the requisite percentage of
the Holders of the COLT 2007-SN1 Secured Notes declare all of the notes
immediately due and payable pursuant to Section 5.2(a) of the COLT Indenture,
then the COLT Indenture Trustee shall give prompt written notice thereof to the
Primary Swap Counterparty.
(j) The CARAT Indenture Trustee shall promptly give to the Primary
Swap Counterparty written notice of any waiver pursuant to Section 5.12 of the
CARAT Indenture.
(k) The COLT Indenture Trustee shall promptly give to the Primary Swap
Counterparty written notice of any waiver pursuant to Section 5.12 of the COLT
Indenture.
(l) The CARAT Indenture Trustee shall promptly provide to the Primary
Swap Counterparty written notice of each request for action that is made and
direction received pursuant to Section 5.16 of the CARAT Indenture, with respect
to the exercise of the CARAT Indenture Trustee's powers to compel performance or
enforce the obligations of the parties under the CARAT Basic Documents.
(m) The COLT Indenture Trustee shall promptly provide to the Primary
Swap Counterparty written notice of each request for action that is made and
direction received pursuant to Section 5.16 of the COLT Indenture, with respect
to the exercise of the COLT Indenture Trustee's powers to compel performance or
enforce the obligations of the parties under the COLT 2007-SN1 Basic Document.
5
(n) The CARAT Indenture Trustee shall mail to the Primary Swap
Counterparty any notice of Default which the CARAT Indenture Trustee mails to
CARAT 2007-SN1 Noteholders pursuant to Section 6.5 of the CARAT Indenture.
(o) The COLT Indenture Trustee shall mail to the Primary Swap
Counterparty any notice of Default which the COLT Indenture Trustee mails to
COLT 2007-SN1 Secured Noteholders pursuant to Section 6.5 of the COLT Indenture.
(p) The Trust Administrator shall deliver to the Primary Swap
Counterparty promptly after having obtained knowledge thereof, but in no event
later than five Business Days thereafter, written notice in an Officer's
Certificate of any event which with the giving of notice or lapse of time, or
both, would become a Trust Administrator Default under Section 7.01 of the Trust
Sale and Administration Agreement.
(q) The Servicer shall deliver to the Primary Swap Counterparty
promptly after having obtained knowledge thereof, but in no event later than
five Business Days thereafter, written notice in an Officer's Certificate of any
event which with the giving of notice or lapse of time, or both, would become a
Servicer Default under Section 5.01 of the COLT Servicing Agreement.
(r) Notice of any termination of trust, with respect to either CARAT
or COLT, shall be given by the Trust Administrator to the Primary Swap
Counterparty as soon as practicable after the Trust Administrator has received
notice thereof.
Section 4.03 Notices of Amendment of the COLT Custodian Agreement. Promptly
after the execution of an amendment to, or consent under, the COLT Custodian
Agreement, the Custodian shall furnish written notification of the substance of
such amendment or consent to the Primary Swap Counterparty.
Section 4.04 Notices of CARAT Supplemental Indentures. Promptly after the
execution of an indenture supplemental to, or consent under, the CARAT
Indenture, the CARAT Indenture Trustee shall furnish written notification of the
substance of such amendment or consent to the Primary Swap Counterparty.
Section 4.05 Notices of COLT Supplemental Indentures. Promptly after the
execution of an indenture supplemental to, or consent under, the COLT Indenture,
the COLT Indenture Trustee shall furnish written notification of the substance
of such amendment or consent to the Primary Swap Counterparty.
Section 4.06 Notices of Amendment of Trust Agreement. Promptly after the
execution of an amendment to, or consent under, the Trust Agreement, the CARAT
Owner Trustee shall furnish written notification of the substance of such
amendment or consent to the Primary Swap Counterparty.
Section 4.07 Notices of Amendment to Declaration of Trust. Promptly after
the execution of an amendment to, or consent under, the Declaration of Trust or
the COLT 2007-SN1 Supplement to the Declaration of Trust, the COLT Owner Trustee
shall furnish written notification of the substance of such amendment or consent
to the Primary Swap Counterparty.
6
Section 4.08 Notices of Amendment of the Trust Sale and Administration
Agreement. Promptly after the execution of an amendment to, or consent under,
the Trust Sale and Administration Agreement, CARAT shall furnish written
notification of the substance of such amendment or consent to the Primary Swap
Counterparty.
Section 4.09 Notices of Amendment of the COLT Servicing Agreement. Promptly
after the execution of an amendment to, or consent under, the COLT Servicing
Agreement, COLT shall furnish written notification of the substance of such
amendment or consent to the Primary Swap Counterparty.
Section 4.10 Notices of Amendment of the COLT Sale and Contribution
Agreement. Promptly after the execution of an amendment to, or consent under,
the COLT Sale and Contribution Agreement, COLT shall furnish written
notification of the substance of such amendment or consent to the Primary Swap
Counterparty.
Section 4.11 Notices of Release of Property. The CARAT Indenture Trustee
shall provide copies to the Primary Swap Counterparty of all of the documents
received by it pursuant to Section 8.4(b) of the CARAT Indenture.
Section 4.12 Notices of Release of Property. The COLT Indenture Trustee
shall provide copies to the Primary Swap Counterparty of all of the documents
received by it pursuant to Section 8.4(b) of the COLT Indenture.
Section 4.13 Notices of Release of Collateral. The CARAT Indenture Trustee
shall provide copies to the Primary Swap Counterparty of any document received
by it pursuant to Section 2.9 of the CARAT Indenture with respect to the release
of Collateral.
Section 4.14 Notices of Release of COLT 2007-SN1 Trust Estate. The COLT
Indenture Trustee shall provide copies to the Primary Swap Counterparty of any
document received by it pursuant to Section 2.8 of the COLT Indenture with
respect to the release of COLT 2007-SN1 Trust Estate.
Section 4.15 Notices of Assignment of the Trust Sale and Administration
Agreement. CARI shall provide to the Primary Swap Counterparty notice of any
assignment of the Trust Sale and Administration Agreement made pursuant to
Section 9.06 thereof.
Section 4.16 Notice of Optional Purchase of All COLT 2007-SN1 Secured
Notes. The Servicer shall provide to the Primary Swap Counterparty notice of its
optional to purchase all of the COLT 2007-SN1 Secured Notes made pursuant to
Section 8.01 of the Trust Sale and Administration Agreement.
Section 4.17 Notice of Redemption of the CARAT 2007-SN1 Notes. The Trust
Administrator shall provide to the Primary Swap Counterparty notice of
redemption of the CARAT 2007-SN1 Notes made pursuant to Section 10.1 of the
CARAT Indenture.
Section 4.18 Notices Generally. Each of CARAT and COLT shall promptly
transmit any notice received by it from any CARAT 2007-SN1 Noteholder or any
COLT 2007-SN1 Secured Noteholder to the Primary Swap Counterparty. Each of the
CARAT Indenture Trustee
7
and COLT Indenture Trustee shall likewise promptly transmit any notice received
by it from each such noteholder to the Primary Swap Counterparty.
Section 4.19 Delivery of Reports. A copy of any report received by the
CARAT Indenture Trustee pursuant to Section 7.4 of the CARAT Indenture shall, at
the time it has been made available to CARAT 2007-SN1 Noteholders, be made
available by the CARAT Indenture Trustee to the Primary Swap Counterparty.
(a) The Trust Administrator shall deliver to the Primary Swap
Counterparty a copy of the Report of Assessment of Compliance with Servicing
Criteria required by Section 4.02(a) of the Trust Sale and Administration
Agreement.
(b) The Servicer shall deliver to the Primary Swap Counterparty a copy
of the Report of Assessment of Compliance with Servicing Criteria required by
Section 2.17(a) of the COLT Servicing Agreement.
(c) CARAT shall deliver to the Primary Swap Counterparty a copy of the
Annual Statement of Compliance required by Section 3.9 of the CARAT Indenture.
(d) COLT shall deliver to the Primary Swap Counterparty a copy of the
Annual Statement of Compliance required by Section 3.9 of the COLT Indenture.
(e) On each Determination Date, the Trust Administrator shall deliver
to the Primary Swap Counterparty a copy of the Trust Administrator's Accounting
required by Section 3.06 of the Pooling and Administration Agreement.
(f) The Trust Administrator shall deliver to the Primary Swap
Counterparty, promptly after the execution and delivery of the Trust Sale and
Administration Agreement and of each amendment thereto, an Opinion of Counsel as
required in Section 9.02 (j) thereof.
ARTICLE V
MISCELLANEOUS
Section 5.01 Notices. All demands upon, notices to and communications with
the Primary Swap Counterparty required hereunder shall be delivered in the
manner specified for notices in the Interest Rate Swap, and all other demands
upon, notices to and communications upon or to the other parties hereto shall be
delivered as specified in Appendix B of the Trust Sale and Administration
Agreement or in Part III of Exhibit A to the COLT Servicing Agreement.
Section 5.02 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT
REFERENCE TO ITS CONFLICT OF LAW PROVISIONS BUT WITHOUT PREJUDICE TO THE
PROVISIONS OF SECTIONS 5-1401 AND 5-1402 OF ITS GENERAL OBLIGATIONS LAW, AND THE
OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN
ACCORDANCE WITH SUCH LAWS.
8
Section 5.03 Binding Effect. This Agreement shall be binding upon and shall
inure to the benefit of all of the parties hereto and their respective
successors and assigns, including CARAT and COLT.
Section 5.04 Replacement of the Swap Counterparty. In the event that the
Primary Swap Counterparty resigns, is removed or otherwise replaced as Primary
Swap Counterparty pursuant to the terms of the Interest Rate Swaps, the Triparty
Contingent Assignment Agreement or the Contingent Interest Rate Swaps, its
assignee or successor in interest thereunder shall automatically succeed to the
interests of the Primary Swap Counterparty under this Agreement.
Section 5.05 Rights Under Other CARAT Basic Documents. For the avoidance of
doubt, no provision in this Agreement shall in any way waive or impair any right
afforded to the Primary Swap Counterparty under any Interest Rate Swap or any
other CARAT Basic Document.
Section 5.06 Severability of Provisions. If any one or more of the
covenants, agreements, provisions or terms of this Agreement shall be for any
reason whatsoever held invalid, then such covenants, agreements, provisions or
terms shall be deemed severable from the remaining covenants, agreements,
provisions or terms of this Agreement and shall in no way affect the validity or
enforceability of the other provisions of this Agreement.
Section 5.07 Assignment. This Agreement may not be assigned by the Primary
Swap Counterparty without the prior written consent of each of the other parties
hereto, except as provided in Section 5.04 hereof.
Section 5.08 Amendments. No change or amendment to this Agreement will be
effective unless in writing and signed by all of the parties to this Agreement.
Section 5.09 Headings. The headings of the various Sections herein are for
convenience of reference only and shall not define or limit any of the terms or
provisions hereof.
Section 5.10 Counterparts. This Agreement may be executed by the parties in
separate counterparts (including by facsimile transmission), each of which when
so executed and delivered shall be an original but all such counterparts shall
together constitute but one and the same instrument.
Section 5.11 Limitation of Liability. It is expressly understood and agreed
by the parties hereto that (a) this Agreement is executed and delivered by
Deutsche Bank Trust Company Delaware, not individually or personally but solely
as owner trustee of CARAT and COLT, in the exercise of the powers and authority
conferred and vested in it, (b) each of the representations, undertakings and
agreements herein made on the part of CARAT or COLT or the Owner Trustee is made
and intended not as personal representations, undertakings and agreements by
Deutsche Bank Trust Company Delaware but is made and intended for the purpose of
binding only the CARAT or COLT, (c) nothing herein contained shall be construed
as creating any liability on Deutsche Bank Trust Company Delaware, individually
or personally, to perform any covenant either expressed or implied contained
herein, all such liability, if any, being expressly waived by the parties hereto
and by any Person claiming by, through or under the parties hereto and (d) under
no circumstances shall Deutsche Bank Trust Company Delaware
9
be personally liable for the payment of any indebtedness or expenses of CARAT or
COLT or the Owner Trustee or be liable for the breach or failure of any
obligation, representation, warranty or covenant made or undertaken by CARAT or
COLT under this Agreement or the other CARAT Basic Documents or COLT 2007-SN1
Basic Documents. For all purposes of this Agreement, in the performance of any
duties or obligations of CARAT or COLT or the Owner Trustee hereunder, the Owner
Trustee shall be subject to, and entitled to the benefits of the terms and
provisions of, the Trust Agreement.
Section 5.12 Termination. This Agreement shall terminate with respect to
the Interest Rate Swaps upon termination of the last Interest Rate Swap.
* * * *
10
IN WITNESS WHEREOF, the parties hereto have caused this Swap Counterparty
Rights Agreement 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 2007-SN1
By: DEUTSCHE BANK TRUST COMPANY
DELAWARE, not in its individual
capacity but solely as CARAT Owner
Trustee
By: /s/ Irene Siegel
------------------------------------
Name: Irene Siegel
Title: Attorney-In-Fact
By: /s/ Aranka R. Paul
------------------------------------
Name: Aranka R. Paul
Title: Attorney-In-Fact
DEUTSCHE BANK TRUST COMPANY DELAWARE,
not in its individual capacity but
solely as COLT Owner Trustee and CARAT
Owner Trustee
By: /s/ Irene Siegel
------------------------------------
Name: Irene Siegel
Title: Attorney-In-Fact
By: /s/ Aranka R. Paul
------------------------------------
Name: Aranka R. Paul
Title: Attorney-In-Fact
CITIBANK, N.A., as Swap Counterparty
By: /s/ William J. Kloehn
------------------------------------
Name: William J. Kloehn
Title: Managing Director
CARAT 2007-SN1 - Swap Counterparty Rights
Agreement
THE BANK OF NEW YORK TRUST COMPANY,
N.A., not in its individual capacity,
but solely as COLT Indenture Trustee and
CARAT Indenture Trustee
By: /s/ Keith Richardson
------------------------------------
Name: Keith Richardson
Title: Vice President
GMAC LLC
By: /s/ C.J. Vannatter
------------------------------------
Name: C.J. Vannatter
Title: Director - Global Securitization
CAPITAL AUTO RECEIVABLES LLC
By: /s/ P.M. Surhigh
------------------------------------
Name: P.M. Surhigh
Title: Vice President
CENTRAL ORIGINATING LEASE TRUST
By: DEUTSCHE BANK TRUST COMPANY
DELAWARE, not in its individual
capacity but solely as COLT Owner
Trustee
By: /s/ Jenna Kaufman
------------------------------------
Name: Jenna Kaufman
Title: Attorney-In-Fact
By: /s/ Aranka R. Paul
------------------------------------
Name: Aranka R. Paul
Title: Attorney-In-Fact