Exhibit 4.6
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CAPITAL AUTO RECEIVABLES ASSET TRUST 2007-SN1
TRUST AGREEMENT
BETWEEN
CAPITAL AUTO RECEIVABLES LLC
SELLER
AND
DEUTSCHE BANK TRUST COMPANY DELAWARE
CARAT OWNER TRUSTEE
DATED AS OF JUNE 7, 2007
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TABLE OF CONTENTS
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ARTICLE I DEFINITIONS AND INCORPORATION BY REFERENCE 1
ARTICLE II ORGANIZATION................................................ 1
Section 2.1 Name..................................................... 1
Section 2.2 Office................................................... 1
Section 2.3 Purposes and Powers...................................... 1
Section 2.4 Appointment of CARAT Owner Trustee....................... 2
Section 2.5 Initial Capital Contribution of CARAT Owner Trust
Estate................................................... 2
Section 2.6 Declaration of Trust..................................... 3
Section 2.7 Liability of the CARAT 2007-SN1 Certificateholders....... 3
Section 2.8 Title to Trust Property.................................. 3
Section 2.9 Situs of Trust........................................... 3
Section 2.10 Representations and Warranties of the Seller............. 3
Section 2.11 Tax Treatment............................................ 4
Section 2.12 Merger and Consolidation of the Seller................... 5
ARTICLE III THE CARAT 2007-SN1 CERTIFICATES............................. 5
Section 3.1 Initial Beneficial Ownership............................. 5
Section 3.2 Form of the CARAT 2007-SN1 Certificates.................. 5
Section 3.3 Execution, Authentication and Delivery................... 6
Section 3.4 Registration; Registration of Transfer and Exchange of
CARAT 2007-SN1 Certificates.............................. 6
Section 3.5 Mutilated, Destroyed, Lost or Stolen CARAT 2007-SN1
Certificates............................................. 8
Section 3.6 Persons Deemed CARAT 2007-SN1 Certificateholders......... 9
Section 3.7 Access to List of CARAT 2007-SN1 Certificateholders'
Names and Addresses...................................... 9
Section 3.8 Maintenance of Corporate Trust Office.................... 10
Section 3.9 Appointment of Paying Agent.............................. 10
Section 3.10 Seller as CARAT 2007-SN1 Certificateholder............... 11
ARTICLE IV ACTIONS BY CARAT OWNER TRUSTEE.............................. 11
Section 4.1 Prior Notice to CARAT 2007-SN1 Certificateholders with
Respect to Certain Matters............................... 11
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TABLE OF CONTENTS
(continued)
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Section 4.2 Action by CARAT 2007-SN1 Certificateholders with
Respect to Certain Matters............................... 12
Section 4.3 Action by CARAT 2007-SN1 Certificateholders with
Respect to Bankruptcy.................................... 12
Section 4.4 Restrictions on CARAT 2007-SN1 Certificateholders'
Power.................................................... 12
Section 4.5 Majority Control......................................... 12
ARTICLE V APPLICATION OF TRUST FUNDS; CERTAIN DUTIES.................. 12
Section 5.1 Establishment of Certificate Distribution Account........ 12
Section 5.2 Application of Trust Funds............................... 13
Section 5.3 Method of Payment........................................ 14
Section 5.4 Accounting and Reports to the CARAT 2007-SN1
Certificateholders, the Internal Revenue Service and
Others................................................... 14
Section 5.5 Signature on Returns; Other Tax Matters.................. 15
ARTICLE VI THE CARAT OWNER TRUSTEE..................................... 15
Section 6.1 Duties of CARAT Owner Trustee............................ 15
Section 6.2 Rights of CARAT Owner Trustee............................ 16
Section 6.3 Acceptance of Trusts and Duties.......................... 16
Section 6.4 Action Upon Instruction by CARAT 2007-SN1
Certificateholders....................................... 18
Section 6.5 Furnishing of Documents.................................. 19
Section 6.6 Representations and Warranties of CARAT Owner Trustee.... 19
Section 6.7 Reliance; Advice of Counsel.............................. 20
Section 6.8 CARAT Owner Trustee May Own CARAT 2007-SN1 Certificates
and CARAT 2007-SN1 Notes................................. 20
Section 6.9 Compensation and Indemnity............................... 20
Section 6.10 Replacement of CARAT Owner Trustee....................... 21
Section 6.11 Merger or Consolidation of CARAT Owner Trustee........... 22
Section 6.12 Appointment of Co-Trustee or Separate Trustee............ 22
Section 6.13 Eligibility Requirements for CARAT Owner Trustee......... 23
ARTICLE VII TERMINATION OF TRUST AGREEMENT.............................. 24
Section 7.1 Termination of Trust Agreement........................... 24
ARTICLE VIII AMENDMENTS.................................................. 25
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(continued)
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Section 8.1 Amendments Without Consent of Certificateholders or
Noteholders.............................................. 25
Section 8.2 Amendments With Consent of CARAT 2007-SN1
Certificateholders and CARAT 2007-SN1 Noteholders........ 26
Section 8.3 Form of Amendments....................................... 26
ARTICLE IX MISCELLANEOUS............................................... 27
Section 9.1 No Legal Title to CARAT Owner Trust Estate............... 27
Section 9.2 Limitations on Rights of Others.......................... 27
Section 9.3 Derivative Actions....................................... 27
Section 9.4 Notices.................................................. 27
Section 9.5 Severability............................................. 28
Section 9.6 Counterparts............................................. 28
Section 9.7 Successors and Assigns................................... 28
Section 9.8 No Petition.............................................. 28
Section 9.9 No Recourse.............................................. 28
Section 9.10 Headings................................................. 29
Section 9.11 Governing Law............................................ 29
Section 9.12 Indemnification by and Reimbursement of the Trust
Administrator............................................ 29
Section 9.13 Effect of Amendment and Restatement...................... 30
Section 9.14 Information to be Provided by the CARAT Owner Trustee.... 30
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EXHIBITS
EXHIBIT A Form of CARAT 2007-SN1 Certificate
EXHIBIT B CARAT 2007-SN1 Certificate of Capital Auto Receivables Asset Trust
2007-SN1
EXHIBIT C Form of Undertaking Letter
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TRUST AGREEMENT, dated as of June 7, 2007, between CAPITAL AUTO
RECEIVABLES LLC, a Delaware limited liability company, as Seller, and DEUTSCHE
BANK TRUST COMPANY DELAWARE, a Delaware banking corporation, as trustee and not
in its individual capacity (the "CARAT Owner Trustee").
WHEREAS, the Seller and the CARAT Owner Trustee previously entered
into a certain trust agreement dated May 10, 2007 (the "Original Trust
Agreement"), which contemplated this Trust Agreement; and
WHEREAS, the Seller and the CARAT Owner Trustee desire hereby to amend
and restate the Original Trust Agreement in its entirety.
NOW, THEREFORE, the Seller and the CARAT Owner Trustee hereby agree as
follows:
ARTICLE I
DEFINITIONS AND INCORPORATION BY REFERENCE
Certain capitalized terms used in this Agreement shall have the respective
meanings assigned to them in Part I of Appendix A to the Trust Sale and
Administration Agreement, dated as of the date hereof, among the Seller, the
Trust Administrator and the Trust (the "Trust Sale and Administration
Agreement"). All references herein to "the Agreement" or "this Agreement" are to
this Trust Agreement, and all references herein to Articles, Sections and
subsections are to Articles, Sections and subsections of this Agreement unless
otherwise specified. The rules of construction set forth in Part II of such
Appendix A shall be applicable to this Agreement.
ARTICLE II
ORGANIZATION
Section 2.1 Name. The Trust created hereby shall be known as "Capital Auto
Receivables Asset Trust 2007-SN1" in which name the CARAT Owner Trustee may
conduct the business of the Trust, make and execute contracts and other
instruments on behalf of the Trust and sue and be sued on behalf of the Trust.
The CARAT Owner Trustee is hereby authorized to file the Certificate of Trust on
behalf of the Trust pursuant to Section 3810(a) of the Statutory Trust Act.
Section 2.2 Office. The office of the Trust shall be in care of the CARAT
Owner Trustee at the Corporate Trust Office or at such other address in Delaware
as the CARAT Owner Trustee may designate by written notice to the CARAT 2007-SN1
Certificateholders and the Seller.
Section 2.3 Purposes and Powers. The purpose of the Trust is, and the Trust
shall have the power and authority, to engage in the following activities:
(a) to acquire, manage and hold the COLT 2007-SN1 Secured Notes and
the other assets of the Trust;
(b) to issue the CARAT 2007-SN1 Notes pursuant to the CARAT Indenture
and the CARAT 2007-SN1 Certificates pursuant to this Agreement, and to sell,
transfer or exchange the CARAT 2007-SN1 Notes and the CARAT 2007-SN1
Certificates;
(c) to acquire certain property and assets from the Seller on the
Series 2007-SN1 Closing Date pursuant to the Trust Sale and Administration
Agreement and any other Further Transfer and Administration Agreement, to make
payments to the CARAT 2007-SN1 Noteholders and the CARAT 2007-SN1
Certificateholders, and to pay the organizational, start-up and transactional
expenses of the Trust;
(d) to assign, grant, transfer, pledge, mortgage and convey the CARAT
Trust Estate pursuant to the terms of the CARAT Indenture and to hold, manage
and distribute to the CARAT 2007-SN1 Certificateholders pursuant to the terms of
this Agreement and the Trust Sale and Administration Agreement any portion of
the CARAT Trust Estate released from the Lien of, and remitted to the Trust
pursuant to, the CARAT Indenture;
(e) to enter into and perform its obligations and exercise its rights
under the CARAT Basic Documents to which it is to be a party;
(f) to enter into any interest rate swaps and caps and other
derivative instruments in connection with the CARAT 2007-SN1 Notes and the CARAT
2007-SN1 Certificates;
(g) to engage in those activities, including entering into agreements,
that are necessary, suitable or convenient to accomplish the foregoing or are
incidental thereto or connected therewith; and
(h) subject to compliance with the CARAT Basic Documents, to engage in
such other activities as may be required in connection with conservation of the
CARAT Owner Trust Estate and the making of distributions to the Securityholders.
The Trust shall not engage in any activity other than in connection
with the foregoing or other than as required or authorized by the terms of this
Agreement or the CARAT Basic Documents.
Section 2.4 Appointment of CARAT Owner Trustee. The Seller hereby appoints
the CARAT Owner Trustee as trustee of the Trust effective as of the date hereof,
to have all the rights, powers and duties set forth herein.
Section 2.5 Initial Capital Contribution of CARAT Owner Trust Estate. The
Seller has sold, assigned, transferred, conveyed and set over to the CARAT Owner
Trustee, the sum of $1. The CARAT Owner Trustee hereby acknowledges receipt in
trust from the Seller, as of June 7, 2007, of the foregoing contribution, which
constituted the initial CARAT Owner Trust Estate and has been or will be
deposited in the Certificate Distribution Account. The Seller shall pay
organizational expenses of the Trust as they may arise or shall, upon the
request of the CARAT Owner Trustee, promptly reimburse the CARAT Owner Trustee
for any such expenses paid by the CARAT Owner Trustee.
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Section 2.6 Declaration of Trust. The CARAT Owner Trustee hereby declares
that it shall hold the CARAT Owner Trust Estate (in the name of the Trust and
not in the CARAT Owner Trustee's name for the Trust, except as required by, and
in accordance with, Section 2.8) in trust upon and subject to the conditions set
forth herein for the use and benefit of the CARAT 2007-SN1 Certificateholders,
subject to the obligations of the Trust under the CARAT Basic Documents. It is
the intention of the parties hereto that the Trust constitute a statutory trust
under the Statutory Trust Act, that this Agreement constitute the governing
instrument of such statutory trust and that the CARAT 2007-SN1 Certificates
represent the beneficial interests therein. The rights of the CARAT 2007-SN1
Certificateholders shall be determined as set forth herein and in the Statutory
Trust Act and the relationship between the parties hereto created by this
Agreement shall not constitute indebtedness for any purpose. Effective as of the
date hereof, the CARAT Owner Trustee shall have all rights, powers and duties
set forth herein and in the Statutory Trust Act with respect to accomplishing
the purposes of the Trust.
Section 2.7 Liability of the CARAT 2007-SN1 Certificateholders. CARAT
2007-SN1 Certificateholders and holders of beneficial interests therein shall be
entitled to the same limitation of personal liability extended to stockholders
of private corporations for profit organized under the General Corporation Law
of the State of Delaware.
Section 2.8 Title to Trust Property. Legal title to all the CARAT Owner
Trust Estate shall be vested at all times in the Trust as a separate legal
entity except where applicable law in any jurisdiction requires title to any
part of the CARAT Owner Trust Estate to be vested in a trustee or trustees, in
which case title shall be deemed to be transferred to and vested in the CARAT
Owner Trustee, a co-trustee and/or a separate trustee, as the case may be. Any
such trustee shall take such part of the CARAT Owner Trust Estate subject to the
security interest of the CARAT Indenture Trustee therein established under the
CARAT Indenture. Such trustee's acceptance of its appointment shall constitute
acknowledgment of such security interest and shall constitute a Grant to the
CARAT Indenture Trustee of a security interest in all property held by such
trustee. Any such trustee shall prepare and file all such financing statements
naming such trustee as debtor that are necessary or advisable to perfect, make
effective or continue the Lien of the CARAT Indenture Trustee.
Section 2.9 Situs of Trust. The Trust shall be located and administered in
the States of Delaware or New York. All bank accounts maintained by the CARAT
Owner Trustee on behalf of the Trust shall be located in the State of Delaware
or the State of New York. The Trust shall not have any employees in any State
other than Delaware; provided, however, that nothing herein shall restrict or
prohibit the CARAT Owner Trustee from having employees within or without the
State of Delaware. Payments shall be received by the Trust only in Delaware or
New York, and payments shall be made by the Trust only from Delaware or New
York. The only office of the Trust shall be the Corporate Trust Office of the
Owner Trustee in Delaware.
Section 2.10 Representations and Warranties of the Seller. The Seller
hereby represents and warrants to the CARAT Owner Trustee that:
(a) The Seller has been duly organized and is validly existing as an
entity in good standing under the laws of the State of Delaware, with power and
authority to own its properties and to conduct its business as such properties
are presently owned and such business
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is presently conducted and had at all relevant times, and now has, power,
authority and legal right to acquire, own and transfer the COLT 2007-SN1 Secured
Notes contemplated to be transferred to the Trust pursuant to the Trust Sale and
Administration Agreement.
(b) The Seller is duly qualified to do business as a foreign entity in
good standing, and has obtained all necessary licenses and approvals in all
jurisdictions in which the ownership or lease of property or the conduct of its
business requires such qualifications.
(c) The Seller has the power and authority to execute and deliver this
Agreement and any other CARAT Basic Documents to which the Seller is a party,
and to carry out their respective terms, the Seller has full power and authority
to sell and assign the property to be sold and assigned to and deposited with
the Issuer as part of the Trust and the Seller has duly authorized such sale and
assignment to the Issuer by all necessary corporate or limited liability company
action; and the execution, delivery and performance of this Agreement and any
other CARAT Basic Documents to which the Seller is a party have been duly
authorized by the Seller by all necessary corporate, limited liability company
or similar action.
(d) The consummation of the transactions contemplated by this
Agreement and any other CARAT Basic Documents to which the Seller is a party,
and the fulfillment of the terms of this Agreement and any other CARAT Basic
Documents to which the Seller is a party, do not conflict with, result in any
breach of any of the terms and provisions of or constitute (with or without
notice or lapse of time) a default under, the certificate of incorporation or
the by-laws of the Seller (or its certificate of formation, limited liability
company agreement or similar governing document), or any indenture, agreement or
other instrument to which the Seller is a party or by which it is bound, or
result in the creation or imposition of any Lien (other than tax liens and any
other Liens that attach by operation of law) upon any of its properties pursuant
to the terms of any such indenture, agreement or other instrument (other than
pursuant to the CARAT Basic Documents), or violate any law or, to the best of
the Seller's knowledge, any order, rule or regulation applicable to the Seller
of any court or of any federal or State regulatory body, administrative agency
or other governmental instrumentality having jurisdiction over the Seller or any
of its properties.
Section 2.11 Tax Treatment. As long as the Seller is the sole owner of the
CARAT 2007-SN1 Certificates, the Seller and the CARAT Owner Trustee, by entering
into this Agreement, (a) express their intention that the Trust shall be
disregarded for federal income tax purposes and shall be treated as a division
of the Seller and (b) agree that Section 5.5 of this Agreement shall not be
applicable. If the Seller is not the sole owner of the CARAT 2007-SN1
Certificates, through sale of the CARAT 2007-SN1 Certificates, issuance by the
Trust of additional CARAT 2007-SN1 Certificates to a Person other than the
Seller or otherwise, the Seller and the CARAT Owner Trustee, by entering into
this Agreement, and the CARAT 2007-SN1 Certificateholders, by acquiring any
CARAT 2007-SN1 Certificates or interest therein, (i) express their intention
that the CARAT 2007-SN1 Certificates shall qualify as equity interests in either
(A) a division of the Seller, or any other single Person, disregarded as a
separate entity for federal income tax purposes if all CARAT 2007-SN1
Certificates are owned solely by the Seller or by such single Person, or (B) a
partnership or grantor trust for federal income tax purposes if the CARAT
2007-SN1 Certificates are owned by more than one Person and (ii) unless
otherwise required by the appropriate taxing authorities, agree to treat the
CARAT 2007-SN1 Certificates
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as equity interests in an entity as described in clause (i) of this Section 2.11
for the purposes 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. The parties agree that, unless otherwise
required by appropriate tax authorities, the Trust shall file or cause to be
filed annual or other necessary returns, reports and other forms consistent with
such characterization of the Trust for such tax purposes.
Section 2.12 Merger and Consolidation of the Seller. Any corporation,
limited liability company or other entity (i) into which the Seller may be
merged or consolidated, (ii) resulting from any merger, conversion or
consolidation to which the Seller shall be a party, or (iii) succeeding to the
business of the Seller, or (iv) more than 50% of the voting stock (or, if not a
corporation, other voting interests) of which is owned directly or indirectly by
GMAC or General Motors, which corporation or entity in any of the foregoing
cases executes an agreement of assumption to perform every obligation of the
Seller under this Agreement and the other CARAT Basic Documents, shall be the
successor to the Seller under this Agreement without the execution or filing of
any document or any further act on the part of any of the parties to this
Agreement. The Seller shall provide 10 days prior notice of any merger,
consolidation or succession pursuant to this Section 2.12 to the Rating Agencies
(if any Rated Notes are outstanding), the Servicer, the CARAT Indenture Trustee
and the CARAT Owner Trustee.
ARTICLE III
THE CARAT 2007-SN1 CERTIFICATES
Section 3.1 Initial Beneficial Ownership. As of the formation of the Trust
by the contribution by the Seller pursuant to Section 2.5 and until the issuance
of the CARAT 2007-SN1 Certificates, the Seller has been the sole beneficial
owner of the Trust.
Section 3.2 Form of the CARAT 2007-SN1 Certificates.
(a) The CARAT 2007-SN1 Certificates shall be substantially in the form
of Exhibit A. The CARAT 2007-SN1 Certificates shall represent the entire
beneficial interest in the Trust. The CARAT 2007-SN1 Certificates shall be
executed on behalf of the Trust by manual or facsimile signature of a
Responsible Officer of the CARAT Owner Trustee. CARAT 2007-SN1 Certificates
bearing the manual or facsimile signatures of individuals who were, at the time
when such signatures shall have been affixed, authorized to sign on behalf of
the Trust, shall be duly issued, fully paid and non-assessable beneficial
interests in the Trust, notwithstanding that such individuals or any of them
shall have ceased to be so authorized prior to the authentication and delivery
of such CARAT 2007-SN1 Certificates or did not hold such offices at the date of
authentication and delivery of such CARAT 2007-SN1 Certificates.
(b) The CARAT 2007-SN1 Certificates 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 Authorized Officer
of the CARAT Owner Trustee executing such CARAT 2007-SN1 Certificates, as
evidenced by their execution of such CARAT 2007-SN1 Certificates. On the Series
2007-SN1 Closing Date, all of the CARAT 2007-SN1 Certificates shall be issued to
the Seller.
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(c) The CARAT 2007-SN1 Certificates shall be issued in
fully-registered form. The terms of the CARAT 2007-SN1 Certificates set forth in
Exhibit A shall form part of this Agreement.
Section 3.3 Execution, Authentication and Delivery. Concurrently with the
sale of the COLT 2007-SN1 Secured Notes to the Trust pursuant to the Trust Sale
and Administration Agreement, the CARAT Owner Trustee shall cause a single CARAT
2007-SN1 Certificate representing the entire beneficial interest in the Trust to
be executed on behalf of the Trust, authenticated and delivered to or upon the
written order of the Seller, signed by its chairman of the board, its president
or any vice president, without further corporate or limited liability company
action by the Seller. Such CARAT 2007-SN1 Certificate shall be issued to and
held by the Seller, as the initial CARAT 2007-SN1 Certificateholder. No CARAT
2007-SN1 Certificate shall entitle its holder to any benefit under this
Agreement, or shall be valid for any purpose, unless there shall appear on such
CARAT 2007-SN1 Certificate a certificate of authentication substantially in the
form set forth in Exhibit A, executed by the CARAT Owner Trustee or Deutsche
Bank Trust Company Americas, as the CARAT Owner Trustee's authenticating agent,
by manual signature. Such authentication shall constitute conclusive evidence
that such CARAT 2007-SN1 Certificate shall have been duly authenticated and
delivered hereunder. All CARAT 2007-SN1 Certificates shall be dated the date of
their authentication.
Section 3.4 Registration; Registration of Transfer and Exchange of CARAT
2007-SN1 Certificates.
(a) The Certificate Registrar shall keep or cause to be kept, at the
office or agency maintained pursuant to Section 3.8, a Certificate Register in
which, subject to such reasonable regulations as it may prescribe, the CARAT
Owner Trustee shall provide for the registration of CARAT 2007-SN1 Certificates
and of transfers and exchanges of CARAT 2007-SN1 Certificates as provided
herein. Deutsche Bank Trust Company Americas shall be the initial Certificate
Registrar. Upon any resignation of a Certificate Registrar, the CARAT Owner
Trustee shall promptly appoint a successor or, if it elects not to make such an
appointment, assume the duties of Certificate Registrar.
(b) A CARAT 2007-SN1 Certificateholder may at any time, without
consent of the Noteholders, sell, transfer, convey or assign in any manner its
rights to and interests in the CARAT 2007-SN1 Certificates, but only if: (i)
such action shall not result in a reduction or withdrawal of the rating of any
class of CARAT 2007-SN1 Notes, (ii) the CARAT 2007-SN1 Certificateholder shall
provide to the CARAT Owner Trustee and the CARAT Indenture Trustee an Opinion of
Counsel (which counsel is independent from the Seller and the Issuer) that such
action shall not cause the Trust to be treated as an association (or publicly
traded partnership) taxable as a corporation for federal income tax purposes,
(iii) such transferee or assignee shall agree to take positions for tax purposes
consistent with the tax positions set forth in Section 2.11 of this Agreement
agreed to be taken by the CARAT 2007-SN1 Certificateholder, and (iv) the
conditions set forth in Section 9.14 shall have been satisfied. In addition, no
transfer of a CARAT 2007-SN1 Certificate shall be registered unless the
transferee shall have provided to the CARAT Owner Trustee and the Certificate
Registrar an Opinion of Counsel from independent counsel that in connection with
such transfer no registration of the CARAT 2007-SN1 Certificates is required
under the Securities Act or applicable State securities law or that such
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transfer is otherwise being made in accordance with all applicable federal and
State securities laws. In connection with any transfer of less than all of the
interests in the CARAT 2007-SN1 Certificates, the transferor and the transferee
shall specify the respective interests in the CARAT 2007-SN1 Certificates to be
held by transferor and transferee, which interests may be determined by a
formula or on any other basis agreed by transferor and transferee. If agreed by
transferor and transferee, different interests may be used for distributions of
proceeds and for purposes of voting the CARAT 2007-SN1 Certificates, and the
transferor shall notify the CARAT Owner Trustee of any such agreement in
connection with such transfer.
(c) If the Seller is no longer the sole CARAT 2007-SN1
Certificateholder, the Trust Administrator shall promptly prepare amendments
(subject to the provisions regarding amendments in the applicable CARAT Basic
Documents) to the CARAT Basic Documents to the extent necessary to reflect the
issuance of book-entry certificates, the establishment of the Certificate
Distribution Account and the making of distributions to the CARAT 2007-SN1
Certificateholders and such other matters as shall be agreed between the Seller
and the CARAT Owner Trustee. The expense of the foregoing amendments shall be
paid by the Trust Administrator.
(d) Upon surrender for registration of transfer of any CARAT 2007-SN1
Certificate at the office or agency maintained pursuant to Section 3.8, the
CARAT Owner Trustee shall execute on behalf of the Trust, authenticate and
deliver (or shall cause Deutsche Bank Trust Company Americas as its
authenticating agent to authenticate and deliver), in the name of the designated
transferee or transferees, one or more new CARAT 2007-SN1 Certificates of a like
aggregate percentage interest dated the date of authentication by the CARAT
Owner Trustee or any authenticating agent.
(e) At the option of a Holder, CARAT 2007-SN1 Certificates may be
exchanged for other CARAT 2007-SN1 Certificates of a like aggregate percentage
interest upon surrender of the CARAT 2007-SN1 Certificates to be exchanged at
the Corporate Trust Office maintained pursuant to Section 3.8. Whenever any
CARAT 2007-SN1 Certificates are so surrendered for exchange, the CARAT Owner
Trustee shall execute on behalf of the Trust, authenticate and deliver (or shall
cause Deutsche Bank Trust Company Americas as its authenticating agent to
authenticate and deliver) one or more CARAT 2007-SN1 Certificates dated the date
of authentication by the CARAT Owner Trustee or any authenticating agent. Such
CARAT 2007-SN1 Certificates shall be delivered to the Holder making the
exchange.
(f) Every CARAT 2007-SN1 Certificate presented or surrendered for
registration of transfer or exchange shall be accompanied by a written
instrument of transfer in form satisfactory to the CARAT Owner Trustee and the
Certificate Registrar duly executed by the Holder or his attorney duly
authorized in writing and such other documents and instruments as may be
required by Section 3.4(b). Each CARAT 2007-SN1 Certificate surrendered for
registration of transfer or exchange shall be canceled and subsequently
destroyed or otherwise disposed of by the CARAT Owner Trustee or Certificate
Registrar in accordance with its customary practice.
(g) The CARAT Owner Trustee or the Certificate Registrar may require
payment of a sum sufficient to cover any tax or governmental charge that may be
imposed and
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any other expenses of the CARAT Owner Trustee in connection with any transfer or
exchange of CARAT 2007-SN1 Certificates.
(h) Each purchaser and transferee of a CARAT 2007-SN1 Certificate (or
any interest therein) shall be deemed to represent and warrant that it is not
(and for so long as it holds such Certificate or interest therein will not be),
and it is not acting on behalf of (and for so long as it holds such Certificate
or interest therein will not be acting on behalf of) a Benefit Plan. If
requested to do so by the Seller, each purchaser and transferee of a CARAT
2007-SN1 Certificate shall execute and deliver to the CARAT Owner Trustee an
undertaking letter in form and substance satisfactory to the CARAT Indenture
Trustee and the Seller.
(i) Notwithstanding any other provision of this Agreement, no sale,
transfer, assignment or conveyance of a CARAT 2007-SN1 Certificate (or any
interest therein within the meaning of Treasury Regulation Section
1.7704-1(a)(2)) shall be permitted, and any such purported sale, transfer,
assignment or conveyance shall be void ab initio and of no effect, unless the
transferee first shall have provided to the CARAT Owner Trustee, the CARAT
Indenture Trustee and the Trust Administrator an opinion of independent tax
counsel concluding that (i) the sale, transfer, assignment or conveyance will
not be effected through an "established securities market" or "secondary market
(or the substantial equivalent thereof)" within the meaning of Section 7704(b)
of the Code, and (ii) after such sale, transfer, assignment or conveyance, there
will be no more than 50 Holders of the CARAT 2007-SN1 Certificates. For purposes
of making the foregoing determination, each person directly owning an interest
in a CARAT 2007-SN1 Certificate shall be treated as a Holder and each person
indirectly owning an interest in a CARAT 2007-SN1 Certificate through a
partnership (including any entity treated as a partnership for federal income
tax purposes), a grantor trust or an S corporation (each such entity, a
"flow-through entity") shall be treated as a Holder unless the Trust
Administrator determines in its sole and absolute discretion, after consulting
with qualified tax counsel experienced in such matters, that less than
substantially all of the value of the beneficial owner's interest in the
flow-through entity is attributable to the flow-through entity's interest
(direct or indirect) in the CARAT 2007-SN1 Certificate. In no event shall the
CARAT Owner Trustee be responsible for calculating the number of beneficial
owners of the CARAT 2007-SN1 Certificates.
Section 3.5 Mutilated, Destroyed, Lost or Stolen CARAT 2007-SN1
Certificates.
(a) If (i) any mutilated CARAT 2007-SN1 Certificate is surrendered to
the Certificate Registrar, or the Certificate Registrar receives evidence to its
satisfaction of the destruction, loss or theft of any CARAT 2007-SN1
Certificate, and (ii) there is delivered to the Certificate Registrar, the CARAT
Owner Trustee and the Trust such security or indemnity as may be required by
them to hold each of them harmless, then, in the absence of notice to the
Certificate Registrar or the CARAT Owner Trustee that such CARAT 2007-SN1
Certificate has been acquired by a protected purchaser, the CARAT Owner Trustee
shall execute on behalf of the Trust and the CARAT Owner Trustee shall
authenticate and deliver (or shall cause Deutsche Bank Trust Company Americas as
its authenticating agent to authenticate and deliver), in exchange for or in
lieu of any such mutilated, destroyed, lost or stolen CARAT 2007-SN1
Certificate, a replacement CARAT 2007-SN1 Certificate of a like aggregate
percentage interest; provided, however, that if any such destroyed, lost or
stolen CARAT 2007-SN1 Certificate, but
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not a mutilated CARAT 2007-SN1 Certificate, shall have become or within seven
days shall be due and payable, then instead of issuing a replacement CARAT
2007-SN1 Certificate the CARAT Owner Trustee may pay such destroyed, lost or
stolen CARAT 2007-SN1 Certificate when so due or payable.
(b) If, after the delivery of a replacement CARAT 2007-SN1 Certificate
or payment in respect of a destroyed, lost or stolen CARAT 2007-SN1 Certificate
pursuant to Section 3.5(a), a Protected Purchaser of the original CARAT 2007-SN1
Certificate in lieu of which such replacement CARAT 2007-SN1 Certificate was
issued presents for payment such original CARAT 2007-SN1 Certificate, the CARAT
Owner Trustee shall be entitled to recover such replacement CARAT 2007-SN1
Certificate (and any distributions or payments made with respect thereto) or
such payment from the Person to whom it was delivered or any Person taking such
replacement CARAT 2007-SN1 Certificate from such Person to whom such replacement
CARAT 2007-SN1 Certificate was delivered or any assignee of such Person, except
a Protected Purchaser, and 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 CARAT Owner Trustee in connection therewith.
(c) In connection with the issuance of any replacement CARAT 2007-SN1
Certificate under this Section 3.5, the CARAT Owner Trustee may require the
payment by the Holder of such CARAT 2007-SN1 Certificate 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 the fees and expenses of
the CARAT Owner Trustee and the Certificate Registrar) connected therewith.
(d) Any duplicate CARAT 2007-SN1 Certificate issued pursuant to this
Section 3.5 in replacement of any mutilated, destroyed, lost or stolen CARAT
2007-SN1 Certificate shall constitute an original additional beneficial interest
in the Trust, whether or not the mutilated, destroyed, lost or stolen CARAT
2007-SN1 Certificate shall be found at any time or be enforced by anyone, and
shall be entitled to all the benefits of this Agreement equally and
proportionately with any and all other CARAT 2007-SN1 Certificates duly issued
hereunder.
(e) The provisions of this Section 3.5 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
2007-SN1 Certificates.
Section 3.6 Persons Deemed CARAT 2007-SN1 Certificateholders. Prior to due
presentation of a CARAT 2007-SN1 Certificate for registration of transfer, the
CARAT Owner Trustee or the Certificate Registrar may treat the Person in whose
name any CARAT 2007-SN1 Certificate shall be registered in the Certificate
Register as the CARAT 2007-SN1 Certificateholder of such CARAT 2007-SN1
Certificate for the purpose of receiving distributions pursuant to Article V and
for all other purposes whatsoever, and neither the CARAT Owner Trustee nor the
Certificate Registrar shall be affected by any notice to the contrary.
Section 3.7 Access to List of CARAT 2007-SN1 Certificateholders' Names and
Addresses. The CARAT Owner Trustee shall furnish or cause to be furnished to the
Trust
9
Administrator and the Seller, within 15 days after receipt by the CARAT Owner
Trustee of a request therefor from the Trust Administrator or the Seller, in
writing, a list of the names and addresses of the CARAT 2007-SN1
Certificateholders as of the most recent Record Date. Each Holder, by receiving
and holding a CARAT 2007-SN1 Certificate, shall be deemed to have agreed not to
hold any of the Trust Administrator, the Seller or the CARAT Owner Trustee
accountable by reason of the disclosure of its name and address, regardless of
the source from which such information was derived.
Section 3.8 Maintenance of Corporate Trust Office. The CARAT Owner Trustee
shall maintain in the Borough of Manhattan, The City of New York, an office or
offices or agency or agencies where CARAT 2007-SN1 Certificates may be
surrendered for registration of transfer or exchange and where notices and
demands to or upon the CARAT Owner Trustee in respect of the CARAT 2007-SN1
Certificates and the CARAT Basic Documents may be served. The CARAT Owner
Trustee initially designates the offices of Deutsche Bank Trust Company
Americas, 60 Wall Street, New York, NY 10005, as its principal office for such
purposes. The CARAT Owner Trustee shall give prompt written notice to the
Seller, to the Trust Administrator, and to the CARAT 2007-SN1 Certificateholders
of any change in the location of the Certificate Register or any such office or
agency.
Section 3.9 Appointment of Paying Agent. Except as otherwise provided in
Section 5.2, the Paying Agent shall make distributions to CARAT 2007-SN1
Certificateholders from the Certificate Distribution Account pursuant to Section
5.2 and shall report the amounts of such distributions to the CARAT Owner
Trustee and the Trust Administrator; provided, however, that no such reports
shall be required so long as the Seller is the sole CARAT 2007-SN1
Certificateholder. Any Paying Agent shall have the revocable power to withdraw
funds from the Certificate Distribution Account for the purpose of making the
distributions referred to above. The CARAT Owner Trustee may revoke such power
and remove the Paying Agent if the CARAT Owner Trustee determines in its sole
discretion that the Paying Agent shall have failed to perform its obligations
under this Agreement in any material respect. The Paying Agent shall initially
be Deutsche Bank Trust Company Americas, and any co-paying agent chosen by
Deutsche Bank Trust Company Americas, and acceptable to the CARAT Owner Trustee.
Deutsche Bank Trust Company Americas shall be permitted to resign as Paying
Agent upon 30 days' written notice to the CARAT Owner Trustee. If Deutsche Bank
Trust Company Americas shall no longer be the Paying Agent, the CARAT Owner
Trustee shall appoint a successor to act as Paying Agent (which shall be a bank
or trust company). The CARAT Owner Trustee shall cause such successor Paying
Agent or any additional Paying Agent appointed by the CARAT Owner Trustee to
execute and deliver to the CARAT Owner Trustee an instrument in which such
successor Paying Agent or additional Paying Agent shall agree with the CARAT
Owner Trustee that as Paying Agent, such successor Paying Agent or additional
Paying Agent shall hold all sums, if any, held by it for payment to the CARAT
2007-SN1 Certificateholders in trust for the benefit of the CARAT 2007-SN1
Certificateholders entitled thereto until such sums shall be paid to such CARAT
2007-SN1 Certificateholders. The Paying Agent shall return all unclaimed funds
to the CARAT Owner Trustee and upon removal of a Paying Agent such Paying Agent
shall also return all funds in its possession to the CARAT Owner Trustee. The
provisions of Sections 6.3, 6.6, 6.7 and 6.9 shall apply to the CARAT Owner
Trustee also in its role as Paying Agent, for so long as the CARAT Owner Trustee
shall act as Paying Agent and, to the extent applicable, to any other paying
agent, certificate registrar or authenticating agent appointed
10
hereunder. Any reference in this Agreement to the Paying Agent shall include any
co-paying agent unless the context requires otherwise.
Section 3.10 Seller as CARAT 2007-SN1 Certificateholder. The Seller in its
individual or any other capacity may become the owner or pledgee of CARAT
2007-SN1 Certificates and may otherwise deal with the CARAT Owner Trustee or its
Affiliates as if it were not the Seller.
ARTICLE IV
ACTIONS BY CARAT OWNER TRUSTEE
Section 4.1 Prior Notice to CARAT 2007-SN1 Certificateholders with Respect
to Certain Matters. The CARAT Owner Trustee shall not take action with respect
to the following matters, unless (i) the CARAT Owner Trustee shall have notified
the CARAT 2007-SN1 Certificateholders in writing of the proposed action at least
30 days and not more than 45 days before the taking of such action, and (ii) the
CARAT 2007-SN1 Certificateholders shall not have notified the CARAT Owner
Trustee in writing prior to the 30th day after such notice is given that such
CARAT 2007-SN1 Certificateholders have withheld consent or provided alternative
direction:
(a) the initiation of any claim or lawsuit by the Trust (other than an
action to collect on a COLT 2007-SN1 Secured Note or an action by the CARAT
Indenture Trustee pursuant to the CARAT Indenture) and the compromise of any
action, claim or lawsuit brought by or against the Trust (other than an action
to collect on a COLT 2007-SN1 Secured Note or an action by the CARAT Indenture
Trustee pursuant to the CARAT Indenture);
(b) the election by the Trust to file an amendment to the Certificate
of Trust, a conformed copy of which is attached hereto as Exhibit B;
(c) the amendment of the CARAT Indenture by a supplemental indenture
in circumstances where the consent of any CARAT 2007-SN1 Noteholder is required;
(d) the amendment of the CARAT Indenture by a supplemental indenture
in circumstances where the consent of any CARAT 2007-SN1 Noteholder is not
required and such amendment materially adversely affects the interests of the
CARAT 2007-SN1 Certificateholders;
(e) the amendment, change or modification of the Trust Sale and
Administration Agreement, except to cure any ambiguity or to amend or supplement
any provision in a manner that would not materially adversely affect the
interests of the CARAT 2007-SN1 Certificateholders; or
(f) the appointment pursuant to the CARAT Indenture of a successor
Note Registrar, Paying Agent or CARAT Indenture Trustee or pursuant to this
Agreement of a successor Certificate Registrar, or the consent to the assignment
by the Note Registrar, Paying Agent or CARAT Indenture Trustee or Certificate
Registrar of its obligations under the CARAT Indenture or this Agreement, as
applicable.
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Section 4.2 Action by CARAT 2007-SN1 Certificateholders with Respect to
Certain Matters. The CARAT Owner Trustee shall not have the power, except upon
the written direction of the CARAT 2007-SN1 Certificateholders, to remove the
Trust Administrator under the Trust Sale and Administration Agreement pursuant
to Section 7.02 thereof, appoint a successor Trust Administrator under the Trust
Sale and Administration Agreement or except as expressly provided in the CARAT
Basic Documents, sell the COLT 2007-SN1 Secured Notes or any interest therein
after the termination of the CARAT Indenture. The CARAT Owner Trustee shall take
the actions referred to in the preceding sentence only upon written instructions
signed by the CARAT 2007-SN1 Certificateholders.
Section 4.3 Action by CARAT 2007-SN1 Certificateholders with Respect to
Bankruptcy. Notwithstanding any prior termination of this Agreement, the CARAT
Owner Trustee shall not have the power to commence a voluntary proceeding in
bankruptcy relating to the Trust without the unanimous prior approval of all
CARAT 2007-SN1 Certificateholders (including the Seller) and the delivery to the
CARAT Owner Trustee by each such CARAT 2007-SN1 Certificateholder of a
certificate certifying that such CARAT 2007-SN1 Certificateholder reasonably
believes that the Trust is insolvent; provided, however, that under no
circumstances shall the CARAT Owner Trustee commence or join in commencing any
such proceeding prior to the date that is one year and one day after the
termination of the Trust.
Section 4.4 Restrictions on CARAT 2007-SN1 Certificateholders' Power. The
CARAT 2007-SN1 Certificateholders shall not direct the CARAT Owner Trustee to
take or refrain from taking any action if such action or inaction would be
contrary to any obligation of the Trust or the CARAT Owner Trustee under this
Agreement, including Section 2.3 of this Agreement, or any of the CARAT Basic
Documents, nor shall the CARAT Owner Trustee be obligated to follow any such
direction, if given. The CARAT 2007-SN1 Certificateholders shall not and shall
not direct the CARAT Owner Trustee to take action that would violate the
provisions of Section 6.1 and, if given, the CARAT Owner Trustee shall not be
obligated to follow any such direction.
Section 4.5 Majority Control. Except as expressly provided herein, any
action that may be taken or consent that may be given or withheld by the CARAT
2007-SN1 Certificateholders under this Agreement shall be effective if such
action is taken or such consent is given or withheld by the Holders of CARAT
2007-SN1 Certificates evidencing not less than a majority of the Voting
Interests as of the close of the preceding Distribution Date. Except as
expressly provided herein, any written notice, instruction, direction or other
document of the CARAT 2007-SN1 Certificateholders delivered pursuant to this
Agreement shall be effective if signed by Holders of CARAT 2007-SN1 Certificates
evidencing not less than a majority of the Voting Interests at the time of the
delivery of such notice.
ARTICLE V
APPLICATION OF TRUST FUNDS; CERTAIN DUTIES
Section 5.1 Establishment of Certificate Distribution Account.
(a) Except as otherwise provided in Section 5.2, the Trust
Administrator, for the benefit of the CARAT 2007-SN1 Certificateholders, shall
establish and maintain in the name
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of the Trust an Eligible Deposit Account known as the Capital Auto Receivables
Asset Trust 2007-SN1 Certificate Distribution Account (the "Certificate
Distribution Account"), bearing an additional designation clearly indicating
that the funds deposited therein are held for the benefit of the CARAT 2007-SN1
Certificateholders.
(b) The Trust shall possess all right, title and interest in and to
all funds on deposit from time to time in the Certificate Distribution Account
and in all proceeds thereof. Except as otherwise provided herein in the CARAT
Indenture, or in the Trust Sale and Administration Agreement, the Certificate
Distribution Account shall be under the sole dominion and control of the CARAT
Owner Trustee for the benefit of the CARAT 2007-SN1 Certificateholders. If, at
any time, the Certificate Distribution Account ceases to be an Eligible Deposit
Account, the CARAT Owner Trustee (or the Trust Administrator on behalf of the
CARAT Owner Trustee, if the Certificate Distribution Account is not then held by
the CARAT Owner Trustee or an Affiliate thereof) shall within 10 Business Days
(or such longer period, not to exceed 30 calendar days, as to which each Rating
Agency may consent) establish a new Certificate Distribution Account as an
Eligible Deposit Account and shall transfer any cash and/or any investments to
such new Certificate Distribution Account.
Section 5.2 Application of Trust Funds.
(a) On each Distribution Date, the CARAT Owner Trustee shall
distribute to the CARAT 2007-SN1 Certificateholders, on a pro rata basis,
amounts equal to the amounts deposited in the Certificate Distribution Account
pursuant to Sections 4.05 and 8.01 of the Trust Sale and Administration
Agreement on or prior to such Distribution Date. Notwithstanding the foregoing
or anything else to the contrary in this Agreement or the other CARAT Basic
Documents, if and for so long as CARAT 2007-SN1 Certificates representing in the
aggregate a 100% Voting Interest in the Trust are held by the Seller, (i) no
Certificate Distribution Account shall be required to be established or
maintained and (ii) all distributions and payments on the CARAT 2007-SN1
Certificates (including the final distribution as contemplated by Section
7.1(c)) required hereunder or under the Trust Sale and Administration Agreement
shall be made directly to the Seller by the CARAT Indenture Trustee (whether or
not the Trust Sale and Administration Agreement otherwise contemplates deposit
into the Certificate Distribution Account) and the CARAT Owner Trustee shall
have no duty or liability to see to such distribution.
(b) On each Distribution Date, the CARAT Owner Trustee shall send to
each CARAT 2007-SN1 Certificateholder the statement provided to the CARAT Owner
Trustee by the Trust Administrator pursuant to Section 4.07(a) of the Trust Sale
and Administration Agreement on such Distribution Date setting forth, among
other things, the amount distributed on the CARAT 2007-SN1 Certificates and the
Administration Fee with respect to such Distribution Date or Monthly Period, as
applicable; provided, however, that no such statement shall be required to be
sent by the CARAT Owner Trustee if and for so long as the Seller is the sole
CARAT 2007-SN1 Certificateholder.
(c) If any withholding tax is imposed on the Trust's payment (or
allocations of income) to a CARAT 2007-SN1 Certificateholder, such tax shall
reduce the amount otherwise distributable to the CARAT 2007-SN1
Certificateholder in accordance with this Section 5.2;
13
provided, however, that the CARAT Owner Trustee shall not have an obligation to
withhold any such amount if and for so long as the Seller is the sole CARAT
2007-SN1 Certificateholder. The CARAT Owner Trustee is hereby authorized and
directed to retain from amounts otherwise distributable to the CARAT 2007-SN1
Certificateholders sufficient funds for the payment of any tax that is legally
owed by the Trust (but such authorization shall not prevent the CARAT Owner
Trustee from contesting any such tax in appropriate proceedings and withholding
payment of such tax, if permitted by law, pending the outcome of such
proceedings). The amount of any withholding tax imposed with respect to a CARAT
2007-SN1 Certificateholder shall be treated as cash distributed to such CARAT
2007-SN1 Certificateholder at the time it is withheld by the Trust and remitted
to the appropriate taxing authority. If there is a possibility that withholding
tax is payable with respect to a distribution (such as a distribution to a
non-U.S. CARAT 2007-SN1 Certificateholder), the CARAT Owner Trustee may in its
sole discretion withhold such amounts in accordance with this Section 5.2(c). If
a CARAT 2007-SN1 Certificateholder wishes to apply for a refund of any such
withholding tax, the CARAT Owner Trustee shall reasonably cooperate with such
CARAT 2007-SN1 Certificateholder in making such claim so long as such CARAT
2007-SN1 Certificateholder agrees to reimburse the CARAT Owner Trustee for any
out-of-pocket expenses incurred.
(d) If the CARAT Indenture Trustee holds escheated funds for payment
to the Trust pursuant to Section 3.3(e) of the CARAT Indenture, the CARAT Owner
Trustee shall, upon notice from the CARAT Indenture Trustee that such funds
exist, submit on behalf of the Trust an Issuer Order to the CARAT Indenture
Trustee pursuant to Section 3.3(e) of the CARAT Indenture instructing the CARAT
Indenture Trustee to pay such funds to or at the order of the Seller.
Section 5.3 Method of Payment. Subject to Section 7.1(c), distributions
required to be made to CARAT 2007-SN1 Certificateholders on any Distribution
Date shall be made to each CARAT 2007-SN1 Certificateholder of record on the
related Record Date (i) by wire transfer, in immediately available funds, to the
account of such Holder at a bank or other entity having appropriate facilities
therefor, if such CARAT 2007-SN1 Certificateholder shall have provided to the
Certificate Registrar appropriate written instructions at least five Business
Days prior to such Record Date or if not, by check mailed to such CARAT 2007-SN1
Certificateholder at the address of such CARAT 2007-SN1 Certificateholder
appearing in the Certificate Register.
Section 5.4 Accounting and Reports to the CARAT 2007-SN1
Certificateholders, the Internal Revenue Service and Others. The CARAT Owner
Trustee shall maintain (or cause to be maintained) the books of the Trust on a
calendar year basis on the accrual method of accounting, deliver to each CARAT
2007-SN1 Certificateholder, as may be required by the Code and applicable
Treasury Regulations or otherwise, such information as may be required to enable
each CARAT 2007-SN1 Certificateholder to prepare its federal income tax return,
file such tax returns relating to the Trust and make such elections as may from
time to time be required or appropriate under any applicable State or federal
statute or rule or regulation thereunder so as to maintain the Trust's
characterization as an entity described in clause (a) of Section 2.11 for
federal income tax purposes, cause such tax returns to be signed in the manner
required by law and collect or cause to be collected any withholding tax as
described in and in accordance with Section 5.2(c) with respect to income or
distributions to CARAT 2007-SN1 Certificateholders. If the Trust were to become
a partnership in accordance with Section 2.11 or Internal Revenue
14
Service were to contend successfully that the Trust is not a disregarded entity
but is rather a partnership for federal income tax purposes, the Trust shall
allocate items of income, gain, deduction and loss to the partners of the Trust
in accordance with their economic interests in the Trust. With respect to
interest expense of the Trust, the Trust shall allocate to the CARAT 2007-SN1
Certificateholders their share of the entire amount of such interest expense. If
the Trust becomes a partnership, the Seller shall be the tax matters partner and
such partnership shall not make the election described in Section 754 of the
Code.
Section 5.5 Signature on Returns; Other Tax Matters. The CARAT Owner
Trustee shall sign on behalf of the Trust any and all tax returns of the Trust,
unless applicable law requires a CARAT 2007-SN1 Certificateholder to sign such
documents, in which case such documents shall be signed by the Seller. To the
extent one may be required, the Seller shall be the "tax matters partner" of the
Trust pursuant to the Code.
ARTICLE VI
THE CARAT OWNER TRUSTEE
Section 6.1 Duties of CARAT Owner Trustee.
(a) The CARAT Owner Trustee undertakes to perform such duties, and
only such duties, as are specifically set forth in this Agreement and the other
CARAT Basic Documents, including the administration of the Trust in the interest
of the CARAT 2007-SN1 Certificateholders, subject to the CARAT Basic Documents
and in accordance with the provisions of this Agreement. No implied covenants or
obligations shall be read into this Agreement.
(b) Notwithstanding the foregoing, the CARAT Owner Trustee shall be
deemed to have discharged its duties and responsibilities hereunder and under
the CARAT Basic Documents to the extent the Trust Administrator has agreed in
the Trust Sale and Administration Agreement to perform any act or to discharge
any duty of the CARAT Owner Trustee hereunder or under any CARAT Basic Document,
and the CARAT Owner Trustee shall not be liable for the default or failure of
the Trust Administrator to carry out its obligations under the Trust Sale and
Administration Agreement.
(c) In the absence of bad faith on its part, the CARAT Owner Trustee
may conclusively rely upon certificates or opinions furnished to the CARAT Owner
Trustee and conforming to the requirements of this Agreement in determining the
truth of the statements and the correctness of the opinions contained therein;
provided, however, that the CARAT Owner Trustee shall have examined such
certificates or opinions so as to determine compliance of the same with the
requirements of this Agreement.
(d) The CARAT Owner 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(d) shall not limit the effect of Section
6.1(a) or (b);
15
(ii) the CARAT Owner 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 Owner Trustee was negligent in ascertaining the pertinent facts;
(iii) the CARAT Owner 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 Section 4.1, 4.2 or 6.4; and
(iv) the CARAT Owner Trustee shall not be personally liable for
special, consequential or punitive damages, however styled, including lost
profits.
(e) Subject to Sections 5.1 and 5.2, monies received by the CARAT
Owner Trustee hereunder need not be segregated in any manner except to the
extent required by law or the Trust Sale and Administration Agreement and may be
deposited under such general conditions as may be prescribed by law, and the
CARAT Owner Trustee shall not be liable for any interest thereon.
(f) The CARAT Owner Trustee shall not take any action that (i) is
inconsistent with the purposes of the Trust set forth in Section 2.3 or (ii)
would, to the actual knowledge of a Responsible Officer of the CARAT Owner
Trustee, result in the Trust's becoming taxable as a corporation for federal
income tax purposes. The CARAT 2007-SN1 Certificateholders shall not direct the
CARAT Owner Trustee to take action that would violate the provisions of this
Section 6.1.
Section 6.2 Rights of CARAT Owner Trustee. The CARAT Owner Trustee is
authorized and directed to execute and deliver the CARAT Basic Documents and
each certificate or other document attached as an exhibit to or contemplated by
the CARAT Basic Documents to which the Trust is to be a party, in such form as
the Seller shall approve as evidenced conclusively by the CARAT Owner Trustee's
execution thereof. In addition to the foregoing, the CARAT Owner Trustee is
authorized, but shall not be obligated, to take all actions required of the
Trust pursuant to the CARAT Basic Documents. The CARAT Owner Trustee is further
authorized from time to time to take such action as the Trust Administrator
recommends and directs in writing with respect to the CARAT Basic Documents.
Section 6.3 Acceptance of Trusts and Duties. Except as otherwise provided
in this Article VI, in accepting the trusts hereby created, Deutsche Bank Trust
Company Delaware acts solely as CARAT Owner Trustee hereunder and not in its
individual capacity and all Persons having any claim against the CARAT Owner
Trustee by reason of the transactions contemplated by this Agreement or any
other CARAT Basic Document shall look only to the CARAT Owner Trust Estate for
payment or satisfaction thereof. The CARAT Owner Trustee accepts the trusts
hereby created and agrees to perform its duties hereunder with respect to such
trusts but only upon the terms of this Agreement. The CARAT Owner Trustee also
agrees to disburse all monies actually received by it constituting part of the
CARAT Owner Trust Estate upon the terms of the CARAT Basic Documents. The CARAT
Owner Trustee shall not be liable or accountable hereunder or under any CARAT
Basic Document under any circumstances, except for its own negligent action, its
own negligent failure to act or its own willful misconduct or in the case of the
inaccuracy of any representation or warranty contained in Section 6.6 and
16
expressly made by the CARAT Owner Trustee. In particular, but not by way of
limitation (and subject to the exceptions set forth in the preceding sentence):
(a) the CARAT Owner Trustee shall at no time have any responsibility
or liability for, or with respect to, the legality, validity and enforceability
of any COLT 2007-SN1 Secured Note, or the perfection and priority of any
security interest created by any COLT 2007-SN1 Secured Note in any Series
2007-SN1 Lease Asset or the maintenance of any such perfection and priority, or
for, or with respect to, the sufficiency of the CARAT Owner Trust Estate or its
ability to generate the payments to be distributed to CARAT 2007-SN1
Certificateholders under this Agreement or to CARAT 2007-SN1 Noteholders under
the CARAT Indenture, including, without limitation: the existence, condition and
ownership of any Series 2007-SN1 Lease Asset securing a COLT 2007-SN1 Secured
Note; the existence and enforceability of any insurance thereon; the existence
and contents of any COLT 2007-SN1 Secured Note on any computer or other record
thereof; the validity of the assignment of any COLT 2007-SN1 Secured Note to the
Trust or of any intervening assignment; the completeness of any COLT 2007-SN1
Secured Note; the performance or enforcement of any COLT 2007-SN1 Secured Note;
the compliance by the Seller or the Trust Administrator with any warranty or
representation made under any CARAT Basic Document or in any related document or
the accuracy of any such warranty or representation or any action of the Trustee
or the Trust Administrator or any sub-administrator taken in the name of the
CARAT Owner Trustee;
(b) the CARAT Owner Trustee shall not be liable with respect to any
action taken or omitted to be taken by it in accordance with the instructions of
the Trust Administrator or any CARAT 2007-SN1 Certificateholder;
(c) no provision of this Agreement or any other CARAT Basic Document
shall require the CARAT Owner Trustee to expend or risk funds or otherwise incur
any financial liability in the performance of any of its rights or powers
hereunder or under any other CARAT Basic Document, if the CARAT Owner Trustee
shall have reasonable grounds for believing that repayment of such funds or
adequate indemnity against such risk or liability is not reasonably assured or
provided to it;
(d) under no circumstances shall the CARAT Owner Trustee be liable for
indebtedness evidenced by or arising under any of the CARAT Basic Documents,
including the principal of and interest on the CARAT 2007-SN1 Notes;
(e) the CARAT Owner Trustee shall not be responsible for or in respect
of and makes no representation as to the validity or sufficiency of any
provision of this Agreement other than as explicitly set forth herein or for the
due execution hereof by the Seller or for the form, character, genuineness,
sufficiency, value or validity of any of the CARAT Owner Trust Estate or for, or
in respect of, the validity or sufficiency of the CARAT Basic Documents, the
CARAT 2007-SN1 Notes, the CARAT 2007-SN1 Certificates (other than the
certificate of authentication on the CARAT 2007-SN1 Certificates) or of any COLT
2007-SN1 Secured Notes or any related documents, and the CARAT Owner Trustee
shall in no event assume or incur any liability, duty or obligation to any CARAT
2007-SN1 Noteholder or to any CARAT 2007-SN1 Certificateholder, other than as
expressly provided for herein and in the other CARAT Basic Documents;
17
(f) the CARAT Owner Trustee shall not be liable for the default or
misconduct of the CARAT Indenture Trustee, the Seller or the Trust Administrator
under any of the CARAT Basic Documents or otherwise and the CARAT Owner Trustee
shall have no obligation or liability to perform the obligations of the Trust
under this Agreement or the other CARAT Basic Documents that are required to be
performed by the CARAT Indenture Trustee under the CARAT Indenture or the Trust
Administrator under the Pooling and Administration Agreement or the Trust Sale
and Administration Agreement; and
(g) the CARAT Owner Trustee shall be under no obligation to exercise
any of the rights or powers vested in it by this Agreement, or to institute,
conduct or defend any litigation under this Agreement or otherwise or in
relation to this Agreement or any other CARAT Basic Document, at the request,
order or direction of any of the CARAT 2007-SN1 Certificateholders, unless such
CARAT 2007-SN1 Certificateholders have offered to the CARAT Owner Trustee
security or indemnity satisfactory to it against the costs, expenses and
liabilities that may be incurred by the CARAT Owner Trustee therein or thereby;
the right of the CARAT Owner Trustee to perform any discretionary act enumerated
in this Agreement or in any other CARAT Basic Document shall not be construed as
a duty, and the CARAT Owner Trustee shall not be answerable for other than its
negligence or willful misconduct in the performance of any such act.
(h) notwithstanding anything to the contrary contained herein or in
any other CARAT Basic Document, the CARAT Owner Trustee shall not be required to
execute, deliver or certify on behalf of the Trust or any other Person any
filings, certificates, affidavits or other instruments required under the
Sarbanes-Oxley Act of 2002; notwithstanding any Person's right to instruct the
CARAT Owner Trustee, neither the CARAT Owner Trustee nor any agent, employee,
director or officer of the CARAT Owner Trustee shall have any obligation to
execute any certificates or other documents required pursuant to the
Sarbanes-Oxley Act of 2002 or the rules and regulations promulgated pursuant
thereto, and the refusal to comply with any such instructions shall not
constitute a default or breach under any CARAT Basic Document; if the CARAT
Owner Trustee, on behalf of the Trust, does not execute, deliver or certify any
filings, certificates, affidavits or other instruments required under the
Sarbanes-Oxley Act of 2002, an Officer of the Trust Administrator shall, on
behalf of the Trust, execute, deliver or make such certification.
Section 6.4 Action Upon Instruction by CARAT 2007-SN1 Certificateholders.
(a) Subject to Section 4.4, the CARAT 2007-SN1 Certificateholders may
by written instruction direct the CARAT Owner Trustee in the management of the
Trust. Such direction may be exercised at any time by written instruction of the
CARAT 2007-SN1 Certificateholders pursuant to Section 4.5.
(b) Notwithstanding the foregoing, the CARAT Owner Trustee shall not
be required to take any action hereunder or under any other CARAT Basic Document
if the CARAT Owner Trustee shall have reasonably determined, or shall have been
advised by counsel, that such action is likely to result in liability on the
part of the CARAT Owner Trustee or is contrary to the terms hereof or of any
other CARAT Basic Document or is otherwise contrary to law.
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(c) Whenever the CARAT Owner Trustee is unable to decide between
alternative courses of action permitted or required by the terms of this
Agreement or any other CARAT Basic Document, or is unsure as to the application,
intent, interpretation or meaning of any provision of this Agreement or any
other CARAT Basic Document, the CARAT Owner Trustee shall promptly give notice
(in such form as shall be appropriate under the circumstances) to the CARAT
2007-SN1 Certificateholders requesting instruction as to the course of action to
be adopted, and, to the extent the CARAT Owner Trustee acts in good faith in
accordance with any such instruction received, the CARAT Owner Trustee shall not
be liable on account of such action to any Person. If the CARAT Owner Trustee
shall not have received appropriate instructions within ten days of such notice
(or within such shorter period of time as reasonably may be specified in such
notice or may be necessary under the circumstances) it may, but shall be under
no duty to, take or refrain from taking such action which is consistent, in its
view, with this Agreement or any other CARAT Basic Document, and as it shall
deem to be in the best interests of the CARAT 2007-SN1 Certificateholders, and
the CARAT Owner Trustee shall have no liability to any Person for any such
action or inaction.
Section 6.5 Furnishing of Documents. The CARAT Owner Trustee shall furnish
to the CARAT 2007-SN1 Certificateholders, promptly upon receipt of a written
request therefor, duplicates or copies of all reports, notices, requests,
demands, certificates, financial statements and any other instruments furnished
to the CARAT Owner Trustee under the CARAT Basic Documents.
Section 6.6 Representations and Warranties of CARAT Owner Trustee. The
CARAT Owner Trustee hereby represents and warrants to the Seller, for the
benefit of the CARAT 2007-SN1 Certificateholders, that:
(a) It is a banking corporation duly organized, validly existing and
in good standing under the laws of the State of its incorporation. It has
satisfied the eligibility requirements set forth in Section 6.13.
(b) It has full power, authority and legal right to execute, deliver
and perform this Agreement, and has taken all necessary action to authorize the
execution, delivery and performance by it of this Agreement.
(c) The execution, delivery and performance by it of this Agreement
(i) shall not violate any provision of any law or regulation governing the
banking and trust powers of the CARAT Owner Trustee or any order, writ, judgment
or decree of any court, arbitrator or governmental authority applicable to the
CARAT Owner Trustee or any of its assets, (ii) shall not violate any provision
of the corporate charter or by-laws of the CARAT Owner 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
(other than tax liens and any other Liens that attach by operation of law) on
any properties included in the Trust pursuant to the provisions of any mortgage,
indenture, contract, agreement or other undertaking to which it is a party,
which violation, default or Lien (other than tax liens and any other Liens that
attach by operation of law) could reasonably be expected to have a materially
adverse effect on the CARAT Owner Trustee's performance or ability to perform
its duties as CARAT Owner Trustee under this Agreement or on the transactions
contemplated in this Agreement.
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(d) This Agreement has been duly executed and delivered by the CARAT
Owner Trustee and constitutes the legal, valid and binding agreement of the
CARAT Owner Trustee, enforceable in accordance with its terms, except as
enforceability may be limited by bankruptcy, insolvency, reorganization, or
other similar laws affecting the enforcement of creditors' rights in general and
by general principles of equity, regardless of whether such enforceability is
considered in a proceeding in equity or at law.
Section 6.7 Reliance; Advice of Counsel.
(a) The CARAT Owner Trustee shall incur no liability to anyone in
acting upon any signature, instrument, notice, resolution, request, consent,
order, certificate, report, opinion, bond or other document or paper believed by
it to be genuine and believed by it to be signed by the proper party or parties
and need not investigate any fact or matter in any such document. The CARAT
Owner Trustee may accept a certified copy of a resolution of the board of
directors or other governing body of any corporate party as conclusive evidence
that such resolution has been duly adopted by such body and that the same is in
full force and effect. As to any fact or matter the method of the determination
of which is not specifically prescribed herein, the CARAT Owner Trustee may for
all purposes hereof rely on a certificate, signed by the president or any vice
president or by the treasurer or other authorized officers of the relevant
party, as to such fact or matter, and such certificate shall constitute full
protection to the CARAT Owner Trustee for any action taken or omitted to be
taken by it in good faith in reliance thereon.
(b) In the exercise or administration of the trusts hereunder and in
the performance of its duties and obligations under this Agreement or the CARAT
Basic Documents, the CARAT Owner Trustee may act directly or through its agents,
attorneys, custodians or nominees (including the granting of a power of attorney
to officers of Deutsche Bank Trust Company Americas to execute and deliver any
CARAT Basic Documents, CARAT 2007-SN1 Certificate, CARAT 2007-SN1 Note or other
documents related thereto on behalf of the CARAT Owner Trustee) pursuant to
agreements entered into with any of them, and the CARAT Owner Trustee shall not
be liable for the conduct or misconduct of such agents, attorneys, custodians or
nominees if such agents, attorneys, custodians or nominees shall have been
selected by the CARAT Owner Trustee with reasonable care; and may consult with
counsel, accountants and other skilled professionals to be selected with
reasonable care and employed by it. The CARAT Owner Trustee shall not be liable
for anything done, suffered or omitted in good faith by it in accordance with
the opinion or advice of any such counsel, accountants or other such Persons and
not contrary to this Agreement or any CARAT Basic Document.
Section 6.8 CARAT Owner Trustee May Own CARAT 2007-SN1 Certificates and
CARAT 2007-SN1 Notes. Deutsche Bank Trust Company Delaware or any successor
CARAT Owner Trustee in its individual or any other capacity may become the owner
or pledgee of CARAT 2007-SN1 Certificates or CARAT 2007-SN1 Notes and may deal
with the Seller, the CARAT Indenture Trustee and the Trust Administrator in
transactions in the same manner as it would have if it were not the CARAT Owner
Trustee.
Section 6.9 Compensation and Indemnity. The CARAT Owner Trustee shall
receive as compensation for its services hereunder such fees as have been
separately agreed upon before the date hereof between the Trust Administrator
and the CARAT Owner Trustee, and the
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CARAT Owner Trustee, any Paying Agent, registrar, authenticating agent or
co-trustee shall be entitled to be reimbursed by the Trust Administrator for its
other reasonable expenses hereunder, including the reasonable compensation,
expenses and disbursements of such agents, custodians, nominees,
representatives, experts and external counsel as the CARAT Owner Trustee may
employ in connection with the exercise and performance of its rights and its
duties hereunder. The Trust Administrator shall indemnify the CARAT Owner
Trustee, any Paying Agent, registrar, authenticating agent or co-trustee and its
successors, assigns, agents and servants in accordance with the provisions of
Section 6.01 of the Trust Sale and Administration Agreement. The indemnities
contained in this Section 6.9 shall survive the resignation or removal of the
CARAT Owner Trustee or the termination of this Agreement. Any amounts paid to
the CARAT Owner Trustee pursuant to this Article VI shall be deemed not to be a
part of the CARAT Owner Trust Estate immediately after such payment.
Section 6.10 Replacement of CARAT Owner Trustee.
(a) The CARAT Owner Trustee may give notice of its intent to resign
and be discharged from the trusts hereby created by giving notice thereof to the
Trust Administrator provided, however, that no such resignation shall become
effective, and the CARAT Owner Trustee shall not resign, prior to the time set
forth in Section 6.10(c). If no successor CARAT Owner Trustee shall have been
appointed pursuant to Section 6.10(b) and have accepted such appointment within
30 days after the giving of such notice, the CARAT Owner Trustee giving such
notice may petition any court of competent jurisdiction for the appointment of a
successor CARAT Owner Trustee. The Trust Administrator shall remove the CARAT
Owner Trustee if:
(i) the CARAT Owner Trustee shall cease to be eligible in
accordance with the provisions of Section 6.13 and shall fail to resign after
written request therefor by the Trust Administrator;
(ii) the CARAT Owner Trustee shall be adjudged bankrupt or
insolvent;
(iii) a receiver or other public officer shall be appointed or
take charge or control of the CARAT Owner Trustee or of its property or affairs
for the purpose of rehabilitation, conservation or liquidation; or
(iv) the CARAT Owner Trustee shall otherwise be incapable of
acting.
(b) If the CARAT Owner Trustee gives notice of its intent to resign or
is removed or if a vacancy exists in the office of CARAT Owner Trustee for any
reason the Trust Administrator shall promptly appoint a successor CARAT Owner
Trustee by written instrument, in duplicate (one copy of which instrument shall
be delivered to the outgoing CARAT Owner Trustee so removed and one copy to the
successor CARAT Owner Trustee) and shall pay all fees owed to the outgoing CARAT
Owner Trustee.
(c) Any resignation or removal of the CARAT Owner Trustee and
appointment of a successor CARAT Owner Trustee pursuant to any of the provisions
of this Section 6.10 shall not become effective and no such resignation shall be
deemed to have occurred until a written acceptance of appointment is delivered
by the successor CARAT Owner
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Trustee to the outgoing CARAT Owner Trustee and the Trust Administrator and all
fees and expenses due to the outgoing CARAT Owner Trustee are paid. Any
successor CARAT Owner Trustee appointed pursuant to this Section 6.10 shall be
eligible to act in such capacity in accordance with Section 6.13 and, following
compliance with the preceding sentence, shall become fully vested with all the
rights, powers, duties and obligations of its predecessor under this Agreement,
with like effect as if originally named as CARAT Owner Trustee. The Trust
Administrator shall provide notice of such resignation or removal of the CARAT
Owner Trustee to the Rating Agencies.
(d) The predecessor CARAT Owner Trustee shall upon payment of its fees
and expenses deliver to the successor CARAT Owner Trustee all documents and
statements and monies held by it under this Agreement. The Trust Administrator
and the predecessor CARAT Owner Trustee shall execute and deliver such
instruments and do such other things as may reasonably be required for fully and
certainly vesting and confirming in the successor CARAT Owner Trustee all such
rights, powers, duties and obligations.
(e) Upon acceptance of appointment by a successor CARAT Owner Trustee
pursuant to this Section 6.10, the Trust Administrator shall mail notice of the
successor of such CARAT Owner Trustee to all CARAT 2007-SN1 Certificateholders,
the CARAT Indenture Trustee, the CARAT 2007-SN1 Noteholders and the Rating
Agencies.
Section 6.11 Merger or Consolidation of CARAT Owner Trustee. Any Person
into which the CARAT Owner Trustee may be merged or converted or with which it
may be consolidated, or any Person resulting from any merger, conversion or
consolidation to which the CARAT Owner Trustee shall be a party, or any Person
succeeding to all or substantially all of the corporate trust business of the
CARAT Owner Trustee, shall be the successor of the CARAT Owner Trustee
hereunder, provided such Person shall be eligible pursuant to Section 6.13, and
without the execution or filing of any instrument or any further act on the part
of any of the parties hereto; provided, however, that the CARAT Owner Trustee
shall mail notice of such merger or consolidation to the Rating Agencies.
Section 6.12 Appointment of Co-Trustee or Separate Trustee.
(a) Notwithstanding any other provisions of this Agreement, at any
time, for the purpose of meeting any legal requirement of any jurisdiction in
which any part of the CARAT Owner Trust Estate or any COLT 2007-SN1 Secured Note
may at the time be located, the Trust Administrator and the CARAT Owner Trustee
acting jointly shall have the power and shall, at the expense of the Trust
Administrator, execute and deliver all instruments to appoint one or more
Persons approved by the CARAT Owner Trustee to act as co-trustee, jointly with
the CARAT Owner Trustee, or as separate trustee or trustees, of all or any part
of the CARAT Owner Trust Estate, and to vest in such Person (in the name of the
Trust and not in such Person's name for the Trust, except to the extent
otherwise required by, and in accordance with, Section 2.8), in such capacity,
such title to the Trust, or any part thereof, and, subject to the other
provisions of this Section 6.12, such powers, duties, obligations, rights and
trusts as the Trust Administrator and the CARAT Owner Trustee may consider
necessary or desirable. If the Trust Administrator shall not have joined in such
appointment within 15 days after the receipt by it of a request so to do, the
CARAT Owner Trustee alone shall have the power to make such
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appointment. No co-trustee or separate trustee under this Agreement shall be
required to meet the terms of eligibility as a successor trustee pursuant to
Section 6.13 and no notice of the appointment of any co-trustee or separate
trustee shall be required pursuant to Section 6.10.
(b) Each 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 Owner Trustee shall be conferred upon and exercised or
performed by the CARAT Owner 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 Owner 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 Owner 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
Trust 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 Owner Trustee;
(ii) no trustee under this Agreement shall be personally liable
by reason of any act or omission of any other trustee under this Agreement; and
(iii) the Trust Administrator and the CARAT Owner Trustee acting
jointly 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 Owner
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 Agreement and
the conditions of this Article. 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 Owner
Trustee or separately, as may be provided therein, subject to all the provisions
of this Agreement, specifically including every provision of this Agreement
relating to the conduct of, affecting the liability of, or affording protection
to, the CARAT Owner Trustee. Each such instrument shall be filed with the CARAT
Owner Trustee and a copy thereof given to the Trust Administrator.
(d) Any separate trustee or co-trustee may at any time appoint the
CARAT Owner Trustee as 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 Agreement 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 Owner Trustee, to the extent permitted by law, without
the appointment of a new or successor trustee.
Section 6.13 Eligibility Requirements for CARAT Owner Trustee. The CARAT
Owner Trustee shall at all times satisfy the requirement of Section 26(a)(1) of
the Investment Company Act. The CARAT Owner Trustee shall at all times: (a) be a
corporation satisfying the provisions of Section 3807(a) of the Statutory Trust
Act; (b) be authorized to exercise corporate
23
trust powers; (c) have a combined capital and surplus of at least $50,000,000
and be subject to supervision or examination by federal or State authorities;
(d) be a corporation, association or joint-stock company created or organized in
the United States or under the law of the United States or of any State; and (e)
have (or have a parent which has) a long-term unsecured debt rating of at least
"BBB-" by Standard & Poor's Ratings Services and at least "Baa3" by Moody's
Investors Service, Inc. If such corporation shall publish reports of condition
at least annually, pursuant to law or to the requirements of the aforesaid
supervising or examining authority, then for the purpose of this Section 6.13,
the combined capital and surplus of such corporation shall be deemed to be its
combined capital and surplus as set forth in its most recent report of condition
so published. If at any time the CARAT Owner Trustee shall cease to be eligible
in accordance with the provisions of this Section 6.13, the CARAT Owner Trustee
shall resign immediately in the manner and with the effect specified in Section
6.10.
ARTICLE VII
TERMINATION OF TRUST AGREEMENT
Section 7.1 Termination of Trust Agreement.
(a) This Agreement (other than Section 6.9) and the Trust shall
terminate in accordance with Section 3808 of the Statutory Trust Act and be of
no further force or effect on the final distribution by the CARAT Owner Trustee
of all monies or other property or proceeds of the CARAT Owner Trust Estate in
accordance with the terms of the CARAT Indenture, the Trust Sale and
Administration Agreement (including the exercise by the Seller of its option to
purchase the COLT 2007-SN1 Secured Notes pursuant to Section 8.01(a) of the
Trust Sale and Administration Agreement), any Interest Rate Swaps and Article V.
The bankruptcy, liquidation, dissolution, death or incapacity of any CARAT
2007-SN1 Certificateholder shall not (x) operate to terminate this Agreement or
the Trust, (y) entitle such CARAT 2007-SN1 Certificateholder's legal
representatives or heirs to claim an accounting or to take any action or
proceeding in any court for a partition or winding up of all or any part of the
Trust or the CARAT Owner Trust Estate, or (z) otherwise affect the rights,
obligations and liabilities of the parties hereto.
(b) Neither the Seller nor any CARAT 2007-SN1 Certificateholder shall
be entitled to revoke or terminate the Trust or this Agreement.
(c) Subject to Section 5.2(a), notice of any termination of the Trust,
specifying the Distribution Date upon which the CARAT 2007-SN1
Certificateholders shall surrender their CARAT 2007-SN1 Certificates to the
Paying Agent for payment of the final distribution and cancellation, shall be
given by the CARAT Owner Trustee by letter to CARAT 2007-SN1 Certificateholders
mailed within five Business Days of receipt of notice of such termination from
the Trust Administrator given pursuant to Section 8.01(c) of the Trust Sale and
Administration Agreement, stating: (i) the Distribution Date upon or with
respect to which final payment of the CARAT 2007-SN1 Certificates shall be made
upon presentation and surrender of the CARAT 2007-SN1 Certificates at the office
of the Paying Agent therein designated; (ii) the amount of any such final
payment; and (iii) that the Record Date otherwise applicable to such
Distribution Date is not applicable, payments being made only upon presentation
and surrender of the CARAT 2007-SN1 Certificates at the office of the Paying
Agent therein specified. The
24
CARAT Owner Trustee shall give such notice to the Certificate Registrar (if
other than the CARAT Owner Trustee) and the Paying Agent at the time such notice
is given to CARAT 2007-SN1 Certificateholders. Upon presentation and surrender
of the CARAT 2007-SN1 Certificates, the Paying Agent shall cause to be
distributed to CARAT 2007-SN1 Certificateholders amounts distributable on such
Distribution Date pursuant to Section 5.2.
(d) If all of the CARAT 2007-SN1 Certificateholders shall not
surrender their CARAT 2007-SN1 Certificates for cancellation within six months
after the date specified in the written notice referred to in Section 7.1(c),
the CARAT Owner Trustee shall give a second written notice to the remaining
CARAT 2007-SN1 Certificateholders to surrender their CARAT 2007-SN1 Certificates
for cancellation and receive the final distribution with respect thereto. If
within one year after the second notice all the CARAT 2007-SN1 Certificates
shall not have been surrendered for cancellation, the CARAT Owner Trustee may
take appropriate steps, or may appoint an agent to take appropriate steps, to
contact the remaining CARAT 2007-SN1 Certificateholders concerning surrender of
their CARAT 2007-SN1 Certificates, and the cost thereof shall be paid out of the
funds and other assets that shall remain subject to this Agreement. Subject to
applicable laws with respect to escheat of funds, any funds remaining in the
Trust after exhaustion of such remedies in the preceding sentence shall be
deemed property of the Seller and distributed by the CARAT Owner Trustee to the
Seller, and the CARAT Owner Trustee shall have no further liability to the CARAT
2007-SN1 Certificateholders with respect thereto.
(e) Upon the winding up and termination of the Trust in accordance
with Section 3808 of the Statutory Trust Act and this Section, the CARAT Owner
Trustee shall cause the Certificate of Trust to be canceled by filing a
certificate of cancellation with the Secretary of State in accordance with the
provisions of Section 3810 of the Statutory Trust Act.
ARTICLE VIII
AMENDMENTS
Section 8.1 Amendments Without Consent of Certificateholders or
Noteholders. This Agreement may be amended by the Seller and the CARAT Owner
Trustee without the consent of any of the CARAT 2007-SN1 Noteholders, or the
CARAT 2007-SN1 Certificateholders (but with prior notice to the Rating
Agencies), to (i) cure any ambiguity, (ii) correct or supplement any provision
in this Agreement that may be defective or inconsistent with any other provision
in this Agreement or any other CARAT Basic Document, (iii) add or supplement any
credit enhancement for the benefit of the CARAT 2007-SN1 Noteholders or the
CARAT 2007-SN1 Certificateholders (provided, however, that if any such addition
shall affect any class of CARAT 2007-SN1 Noteholders or CARAT 2007-SN1
Certificateholders differently than any other class of CARAT 2007-SN1
Noteholders or CARAT 2007-SN1 Certificateholders, then such addition shall not,
as evidenced by an Opinion of Counsel, adversely affect in any material respect
the interests of any class of the CARAT 2007-SN1 Noteholders or the CARAT
2007-SN1 Certificateholders), (iv) add to the covenants, restrictions or
obligations of the Seller or the CARAT Owner Trustee, (v) evidence and provide
for the acceptance of the appointment of a successor trustee with respect to the
CARAT Owner Trust Estate and add to or change any provisions as shall be
necessary to facilitate the administration of the trusts hereunder by more than
one trustee pursuant to Article VI, and (vi) add, change or eliminate any other
provision of
25
this Agreement in any manner that shall not, as evidenced by an Opinion of
Counsel, adversely affect in any material respect the interests of the CARAT
2007-SN1 Noteholders or the Unaffiliated Certificateholders.
Section 8.2 Amendments With Consent of CARAT 2007-SN1 Certificateholders
and CARAT 2007-SN1 Noteholders. This Agreement may also be amended from time to
time by the Seller and the CARAT Owner Trustee with the consent of CARAT
2007-SN1 Noteholders whose CARAT 2007-SN1 Notes evidence not less than a
majority of the Outstanding Amount of the Controlling Class as of the close of
the preceding Distribution Date and, if any Person other than the Seller or an
Affiliate of the Seller holds any CARAT 2007-SN1 Certificates, the consent of
CARAT 2007-SN1 Certificateholders whose CARAT 2007-SN1 Certificates evidence not
less than a majority of the Voting Interests as of the close of the preceding
Distribution Date (which consent, whether given pursuant to this Section 8.2 or
pursuant to any other provision of this Agreement, shall be conclusive and
binding on such Person and on all future Holders of such CARAT 2007-SN1 Notes or
CARAT 2007-SN1 Certificates and of any CARAT 2007-SN1 Notes or CARAT 2007-SN1
Certificates issued upon the transfer thereof or in exchange thereof or in lieu
thereof whether or not notation of such consent is made upon the CARAT 2007-SN1
Notes or CARAT 2007-SN1 Certificates) for the purpose of adding any provisions
to or changing in any manner or eliminating any of the provisions of this
Agreement, or of modifying in any manner the rights of the CARAT 2007-SN1
Noteholders or the CARAT 2007-SN1 Certificateholders; provided, however, that no
such amendment shall (a) increase or reduce in any manner the amount of, or
accelerate or delay the timing of, collections of payments on CARAT 2007-SN1
Secured Notes or distributions that shall be required to be made on any CARAT
2007-SN1 Note or the Interest Rate for any class of CARAT 2007-SN1 Notes or (b)
reduce the aforesaid percentage required to consent to any such amendment,
without the consent of the holders of all CARAT 2007-SN1 Notes and all of the
Voting Interests with respect to CARAT 2007-SN1 Certificates then outstanding.
The CARAT Owner Trustee shall furnish notice to each of the Rating Agencies
prior to obtaining consent to any proposed amendment under this Section 8.2.
Section 8.3 Form of Amendments.
(a) Promptly after the execution of any amendment, supplement or
consent pursuant to Section 8.1 or 8.2, the CARAT Owner Trustee shall furnish
written notification of the substance of such amendment or consent to each CARAT
2007-SN1 Certificateholder and the CARAT Indenture Trustee.
(b) It shall not be necessary for the consent of CARAT 2007-SN1
Certificateholders or the CARAT 2007-SN1 Noteholders pursuant to Section 8.2 to
approve the particular form of any proposed amendment or consent, but it shall
be sufficient if such consent shall approve the substance thereof. The manner of
obtaining such consents (and any other consents of CARAT 2007-SN1
Certificateholders and Unaffiliated Certificateholders provided for in this
Agreement or in any other CARAT Basic Document) and of evidencing the
authorization of the execution thereof by CARAT 2007-SN1 Certificateholders and
Unaffiliated Certificateholders shall be subject to such reasonable requirements
as the CARAT Owner Trustee may prescribe.
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(c) Promptly after the execution of any amendment to the Certificate
of Trust, the CARAT Owner Trustee shall cause the filing of such amendment with
the Secretary of State.
(d) Prior to the execution of any amendment to this Agreement or the
Certificate of Trust, the CARAT Owner Trustee shall be entitled to receive and
conclusively rely upon an Opinion of Counsel stating that the execution of such
amendment by it is authorized or permitted by this Agreement. The CARAT Owner
Trustee may, but shall not be obligated to, enter into any such amendment which
affects the CARAT Owner Trustee's own rights, duties or immunities under this
Agreement or otherwise.
ARTICLE IX
MISCELLANEOUS
Section 9.1 No Legal Title to CARAT Owner Trust Estate. The CARAT 2007-SN1
Certificateholders shall not have legal title to any part of the CARAT Owner
Trust Estate. The CARAT 2007-SN1 Certificateholders shall be entitled to receive
distributions with respect to their undivided ownership interest therein only in
accordance with Articles V and VII. No transfer, by operation of law or
otherwise, of any right, title, and interest of the CARAT 2007-SN1
Certificateholders to and in their ownership interest in the CARAT Owner Trust
Estate shall operate to terminate this Agreement or the trusts hereunder or
entitle any transferee to an accounting or to the transfer to it of legal title
to any part of the CARAT Owner Trust Estate.
Section 9.2 Limitations on Rights of Others. Except for Section 9.12, the
provisions of this Agreement are solely for the benefit of the CARAT Owner
Trustee, the Seller, the CARAT 2007-SN1 Certificateholders, the Trust
Administrator and, to the extent expressly provided herein, the CARAT Indenture
Trustee and the CARAT 2007-SN1 Noteholders, and nothing in this Agreement,
whether express or implied, shall be construed to give to any other Person any
legal or equitable right, remedy or claim in the CARAT Owner Trust Estate or
under or in respect of this Agreement or any covenants, conditions or provisions
contained herein.
Section 9.3 Derivative Actions. Any provision contained herein to the
contrary notwithstanding, the right of any CARAT 2007-SN1 Certificateholder to
bring a derivative action in the right of the Trust is hereby made expressly
subject to the following limitations and requirements:
(a) such CARAT 2007-SN1 Certificateholder must meet all requirements
set forth in the Statutory Trust Act; and
(b) no CARAT 2007-SN1 Certificateholder may bring a derivative action
in the right of the Trust without the prior written consent of CARAT 2007-SN1
Certificateholders owning, in the aggregate, a beneficial interest in CARAT
2007-SN1 Certificates representing 50% of the percentage interest in the CARAT
2007-SN1 Certificates.
Section 9.4 Notices. All demands, notices and communications upon or to the
Seller, the Trust Administrator, the CARAT Indenture Trustee, the CARAT Owner
Trustee or the Rating Agencies under this Agreement shall be delivered as
specified in Appendix B to the Trust Sale and Administration Agreement.
27
Section 9.5 Severability. 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 and terms shall be deemed
severable from the remaining covenants, agreements, provisions or terms of this
Agreement and shall in no way affect the validity or enforceability of the other
provisions of this Agreement or of the CARAT 2007-SN1 Certificates or the rights
of the Holders thereof.
Section 9.6 Counterparts. This Agreement may be executed by the parties
hereto in separate counterparts, each of which when so executed and delivered
shall be an original, but all such counterparts shall together constitute one
and the same instrument.
Section 9.7 Successors and Assigns.
(a) All covenants and agreements contained herein shall be binding
upon, and inure to the benefit of, the Seller, the CARAT Owner Trustee and each
CARAT 2007-SN1 Certificateholder and their respective successors and permitted
assigns, all as herein provided. Any request, notice, direction, consent, waiver
or other instrument or action by a CARAT 2007-SN1 Certificateholder shall bind
the successors and assigns of such CARAT 2007-SN1 Certificateholder.
(b) Notwithstanding anything to the contrary contained in this
Agreement, this Trust Agreement may be assigned by the Seller without the
consent of any other Person to a corporation or other entity that is a successor
(by merger, consolidation or purchase of assets) to the Seller, or more than 50%
of the voting interests of which is owned, directly or indirectly, by General
Motors or GMAC, provided that such entity executes an agreement of assumption as
provided as provided in Section 3.03 of the Trust Sale and Administration
Agreement.
Section 9.8 No Petition. The CARAT Owner Trustee by entering this Trust
Agreement and each CARAT 2007-SN1 Certificateholder or CARAT 2007-SN1
Certificate Owner by accepting a CARAT 2007-SN1 Certificate (or interest
therein) issued hereunder, hereby covenant and agree that they shall not (nor
shall they join with or solicit another person to), prior to the day that is one
year and one day after the termination of this Agreement and of each other trust
heretofore formed by the Seller, acquiesce, petition or otherwise invoke or
cause the Seller or the Trust to invoke in any court or government authority for
the purpose of commencing or sustaining a case against the Seller or the Trust
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 Trust or any substantial part of its
property, or ordering the winding up or liquidation of the affairs of the Seller
or the Trust.
Section 9.9 No Recourse. Each CARAT 2007-SN1 Certificateholder by accepting
a CARAT 2007-SN1 Certificate (or any interest therein) acknowledges that such
Person's CARAT 2007-SN1 Certificate (or interest therein) represents beneficial
interests in the Trust only and does not represent interests in or obligations
of the Seller, the Trust Administrator, the CARAT Owner Trustee, the CARAT
Indenture Trustee or any Affiliate thereof and no recourse, either directly or
indirectly, may be had against such parties or their assets, except as may be
expressly set forth or contemplated in this Agreement, the CARAT 2007-SN1
Certificates or the other CARAT Basic Documents. Except as expressly provided in
the CARAT Basic Documents, none
28
of the Seller, the Trust Administrator or the CARAT Owner Trustee in their
respective individual capacities, or any of their respective partners,
beneficiaries, agents, officers, directors, employees or successors or assigns,
shall be personally liable for, or shall recourse be had to any of them for the
distribution of any amount with respect to the CARAT 2007-SN1 Certificates or
the Trust's performance of, or omission to perform, any obligations or
indemnifications contained in the CARAT 2007-SN1 Certificates, this Agreement or
the other CARAT Basic Documents, it being expressly understood that such CARAT
2007-SN1 Certificateholder obligations have been made solely by the Trust. Each
CARAT 2007-SN1 Certificateholder by the acceptance of a CARAT 2007-SN1
Certificate (or beneficial interest therein) agrees except as expressly provided
in the CARAT Basic Documents, in the event of nonpayment of any amounts with
respect to the CARAT 2007-SN1 Certificates, it shall have no claim against any
of the foregoing Persons for any deficiency, loss or claim therefrom. In the
event that any of the foregoing covenants of each CARAT 2007-SN1
Certificateholder and CARAT 2007-SN1 Certificate Owner is prohibited by, or
declared illegal or otherwise unenforceable against any such CARAT 2007-SN1
Certificateholder or CARAT 2007-SN1 Certificate Owner under applicable law by
any court or other authority of competent jurisdiction, and, as a result, a
CARAT 2007-SN1 Certificateholder or CARAT 2007-SN1 Certificate Owner is deemed
to have an interest in any assets of the Seller or any Affiliate of the Seller
other than the Trust ("other assets"), each CARAT 2007-SN1 Certificateholder and
CARAT 2007-SN1 Certificate Owner agrees that (i) its claim against any such
other assets shall be, and hereby is, subject and subordinate in all respects to
the rights of other Persons to whom rights in the other assets have been
expressly granted ("entitled Persons"), including to the payment in full of all
amounts owing to such entitled Persons, and (ii) the covenant set forth in the
preceding clause (i) constitutes a "subordination agreement" within the meaning
of, and subject to, Section 510(a) of the Bankruptcy Code.
Section 9.10 Headings. The headings of the various Articles and Sections
herein are for convenience of reference only and shall not define or limit any
of the terms or provisions hereof.
Section 9.11 Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF DELAWARE, WITHOUT
REGARD TO THE PRINCIPLES OF CONFLICTS OF LAWS THEREOF OR OF ANY OTHER
JURISDICTION, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER
SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
Section 9.12 Indemnification by and Reimbursement of the Trust
Administrator. The CARAT Owner 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 Owner Trustee further acknowledges and accepts the conditions and
limitations with respect to the Trust Administrator's obligation to indemnify,
defend and hold the CARAT Owner Trustee harmless as set forth in Section
6.01(a)(iii) of the Trust Sale and Administration Agreement.
29
Section 9.13 Effect of Amendment and Restatement. It is the intent of the
parties hereto that this Trust Agreement shall as of the Series 2007-SN1 Closing
Date, replace in its entirety the Original Trust Agreement; provided, however,
that with respect to the period of time from May 10, 2007 through June 7, 2007,
the rights and obligations of the parties shall be governed by the Original
Trust Agreement; and provided, further, that the amendment and restatement of
the Original Trust Agreement shall not affect any of the grants, conveyances or
transfers contemplated by the Original Trust Agreement to have occurred prior to
the date hereof.
Section 9.14 Information to be Provided by the CARAT Owner Trustee.
(a) The CARAT Owner Trustee agrees to cooperate in good faith with any
reasonable request by the Seller for information regarding the CARAT Owner
Trustee which is required in order to enable the Seller to comply with the
provisions of Items 1117 and 1119 of Regulation AB as it relates to the CARAT
Owner Trustee or to the CARAT Owner Trustee's obligations under this Agreement.
(b) Except to the extent disclosed by the CARAT Owner Trustee in
subsection (c) or (d) below, the CARAT Owner Trustee shall be deemed to have
represented to the Seller on the first day of each Monthly Period with respect
to the prior Monthly Period that to the best of its knowledge there were no
legal or governmental proceedings pending (or known to be contemplated) against
Deutsche Bank Trust Company Delaware or any property of Deutsche Bank Trust
Company Delaware that would be material to any CARAT 2007-SN1 Noteholder or, to
the extent that the CARAT 2007-SN1 Certificates are registered under the
Securities Act for public sale, any holder of such CARAT 2007-SN1 Certificates.
(c) The CARAT Owner Trustee shall, as promptly as practicable
following notice to or discovery by the CARAT Owner Trustee of any changes to
any information regarding the CARAT Owner Trustee as is required for the purpose
of compliance with Item 1117 of Regulation AB, provide to the Seller, in
writing, such updated information.
(d) The CARAT Owner Trustee shall deliver to the Seller on or before
March 15 of each year, beginning with March 15, 2008, a report of a
representative of the CARAT Owner Trustee with respect to the immediately
preceding calendar year certifying, on behalf of the CARAT Owner Trustee, that
except to the extent otherwise disclosed in writing to the Seller, to the best
of his or her knowledge there were no legal or governmental proceedings pending
(or known to be contemplated) against Deutsche Bank Trust Company Delaware or
any property of Deutsche Bank Trust Company Delaware that would be material to
any CARAT 2007-SN1 Noteholder or, to the extent that the CARAT 2007-SN1
Certificates are registered under the Securities Act for public sale, any holder
of such CARAT 2007-SN1 Certificates.
(e) The CARAT Owner Trustee shall deliver to the Seller on or before
March 15 of each year, beginning with March 15, 2008, a report of a
representative of the CARAT Owner Trustee with respect to the immediately
preceding calendar year providing to the Seller such information regarding the
CARAT Owner Trustee as is required for the purpose of compliance with Item 1119
of Regulation AB. Such information shall include, at a minimum, a description of
any affiliation between the CARAT Owner Trustee and any of the following
30
parties to this securitization transaction, as such parties are identified to
the CARAT Owner Trustee by the Seller in writing in advance of this
securitization transaction:
(i) the Seller;
(ii) GMAC;
(iii) the Trust;
(iv) the Trust Administrator;
(v) the CARAT Indenture Trustee;
(vi) the Swap Counterparty; and
(vii) any other material transaction party.
(f) In connection with the parties listed in clauses (i) through (vii)
above, the CARAT Owner Trustee shall include a description of whether there is,
and if so, the general character of, any business relationship, agreement,
arrangement, transaction or understanding that is entered into outside the
ordinary course of business or is on terms other than would be obtained in an
arm's length transaction with an unrelated third party, apart from this
securitization transaction, that currently exists or that existed during the
past two years and that is material to an investor's understanding of the asset
backed securities issued in this securitization transaction.
31
Exhibit 4.6
IN WITNESS WHEREOF, the parties hereto have caused this Trust Agreement to
be duly executed by their respective officers hereunto duly authorized, as of
the day and year first above written.
DEUTSCHE BANK TRUST COMPANY DELAWARE,
as CARAT 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
CAPITAL AUTO RECEIVABLES LLC
By: /s/ P.M. Surhigh
------------------------------------
Name: P.M. Surhigh
Title: Vice President
Acknowledged and Accepted:
Deutsche Bank Trust Company Americas,
as Paying Agent
By: /s/ Jenna Kaufman
---------------------------------
Name: Jenna Kaufman
Title: Attorney-In-Fact
By: /s/ Aranka R. Paul
---------------------------------
Name: Aranka R. Paul
Title: Attorney-In-Fact
CARAT 2007-SN1 Trust Agreement
S-1
EXHIBIT A
FORM OF CARAT 2007-SN1 CERTIFICATE
NO. R- [__] [__]%
SEE REVERSE FOR CERTAIN DEFINITIONS
THIS CARAT 2007-SN1 CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), AND THE VARIOUS STATE
SECURITIES LAWS. NO TRANSFER OF THIS CARAT 2007-SN1 CERTIFICATE SHALL BE
MADE UNLESS SUCH TRANSFER IS MADE IN A TRANSACTION THAT DOES NOT REQUIRE
REGISTRATION UNDER THE ACT OR ANY APPLICABLE STATE SECURITIES LAWS AND IS
OTHERWISE IN COMPLIANCE WITH THE RESTRICTIONS SET FORTH IN THE TRUST
AGREEMENT.
EACH PURCHASER AND TRANSFEREE OF A CARAT 2007-SN1 CERTIFICATE (OR ANY
INTEREST HEREIN) SHALL BE DEEMED TO REPRESENT AND WARRANT THAT IT IS NOT
(AND FOR SO LONG AS IT HOLDS SUCH CERTIFICATE OR INTEREST HEREIN WILL NOT
BE), AND IT IS NOT ACTING ON BEHALF OF (AND FOR SO LONG AS IT HOLDS SUCH
CERTIFICATE OR INTEREST HEREIN WILL NOT BE ACTING ON BEHALF OF), (I) AN
"EMPLOYEE BENEFIT PLAN" AS DEFINED IN SECTION 3(3) OF THE U.S. 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 U.S. INTERNAL REVENUE CODE OF 1986, AS AMENDED
(THE "CODE"), OR (III) AN ENTITY WHOSE UNDERLYING ASSETS INCLUDE PLAN
ASSETS OF ANY OF THE FOREGOING (EACH, A "BENEFIT PLAN"). IF REQUESTED TO DO
SO BY THE SELLER PURSUANT TO SECTION 3.4(f) OF THE TRUST AGREEMENT, SUCH
PURCHASER OR TRANSFEREE SHALL EXECUTE AND DELIVER TO THE CARAT 2007-SN1
OWNER TRUSTEE AN UNDERTAKING LETTER IN FORM AND SUBSTANCE SATISFACTORY TO
THE CARAT 2007-SN1 INDENTURE TRUSTEE AND THE SELLER.
NOTWITHSTANDING ANY OTHER PROVISION OF THIS CERTIFICATE, NO SALE, TRANSFER,
ASSIGNMENT OR CONVEYANCE OF A CARAT 2007-SN1 CERTIFICATE (OR ANY INTEREST
THEREIN WITHIN THE MEANING OF TREASURY REGULATION SECTION 1.7704-1(a)(2))
SHALL BE PERMITTED, AND ANY SUCH PURPORTED SALE, TRANSFER, ASSIGNMENT OR
CONVEYANCE SHALL BE VOID AB INITIO AND OF NO EFFECT, UNLESS THE TRANSFEREE
FIRST SHALL HAVE PROVIDED TO THE CARAT OWNER TRUSTEE, THE CARAT INDENTURE
TRUSTEE AND THE TRUST ADMINISTRATOR AN OPINION
A-1
OF INDEPENDENT TAX COUNSEL CONCLUDING THAT (I) THE SALE, TRANSFER,
ASSIGNMENT OR CONVEYANCE WILL NOT BE EFFECTED THROUGH AN "ESTABLISHED
SECURITIES MARKET" OR "SECONDARY MARKET (OR THE SUBSTANTIAL EQUIVALENT
THEREOF)" WITHIN THE MEANING OF SECTION 7704(b) OF THE CODE, AND (II) AFTER
SUCH SALE, TRANSFER, ASSIGNMENT OR CONVEYANCE, THERE WILL BE NO MORE THAN
50 HOLDERS OF THE CARAT 2007-SN1 CERTIFICATES. FOR PURPOSES OF MAKING THE
FOREGOING DETERMINATION, EACH PERSON DIRECTLY OWNING AN INTEREST IN A CARAT
2007-SN1 CERTIFICATE SHALL BE TREATED AS A HOLDER AND EACH PERSON
INDIRECTLY OWNING AN INTEREST IN A CARAT 2007-SN1 CERTIFICATE THROUGH A
PARTNERSHIP (INCLUDING ANY ENTITY TREATED AS A PARTNERSHIP FOR FEDERAL
INCOME TAX PURPOSES), A GRANTOR TRUST OR AN S CORPORATION (EACH SUCH
ENTITY, A "FLOW-THROUGH ENTITY") SHALL BE TREATED AS A HOLDER UNLESS THE
TRUST ADMINISTRATOR DETERMINES IN ITS SOLE AND ABSOLUTE DISCRETION, AFTER
CONSULTING WITH QUALIFIED TAX COUNSEL EXPERIENCED IN SUCH MATTERS, THAT
LESS THAN SUBSTANTIALLY ALL OF THE VALUE OF THE BENEFICIAL OWNER'S INTEREST
IN THE FLOW-THROUGH ENTITY IS ATTRIBUTABLE TO THE FLOW-THROUGH ENTITY'S
INTEREST (DIRECT OR INDIRECT) IN THE CARAT 2007-SN1 CERTIFICATE. IN NO
EVENT SHALL THE CARAT OWNER TRUSTEE BE RESPONSIBLE FOR CALCULATING THE
NUMBER OF BENEFICIAL OWNERS OF THE CARAT 2007-SN1 CERTIFICATES.
A-2
CAPITAL AUTO RECEIVABLES ASSET TRUST 2007-SN1
ASSET BACKED CERTIFICATE
evidencing a fractional undivided interest in the Trust, as defined below,
the property of which includes the COLT 2007-SN1 Secured Notes sold to the
Trust by Capital Auto Receivables LLC
(This CARAT 2007-SN1 Certificate does not represent an interest in or
obligation of Capital Auto Receivables LLC, GMAC LLC or General Motors
Corporation or any of their respective affiliates, except to the extent
described in the CARAT Basic Documents.)
THIS CERTIFIES THAT Capital Auto Receivables LLC is the registered
owner of a nonassessable, fully-paid, fractional undivided interest in Capital
Auto Receivables Asset Trust 2007-SN1 (the "Trust") formed by Capital Auto
Receivables LLC, a Delaware limited liability company.
The Trust was created pursuant to a trust agreement, dated as of May
10, 2007 (as amended and restated as of June 7, 2007 and as it may be amended
from time to time, the "Trust Agreement"), between the Seller and Deutsche Bank
Trust Company Delaware, as owner trustee (the "CARAT Owner Trustee"), a summary
of certain of the pertinent provisions of which is set forth below. To the
extent not otherwise defined herein, the capitalized terms used herein have the
meanings assigned to them in the Trust Agreement.
This CARAT 2007-SN1 Certificate is one of the duly authorized CARAT
2007-SN1 Certificates designated as Asset Backed Certificates (the "CARAT
2007-SN1 Certificates"). This CARAT 2007-SN1 Certificate is issued under and is
subject to the terms, provisions and conditions of the Trust Agreement, the
terms of which are incorporated herein by reference and made a part hereof, to
which Trust Agreement the holder of this CARAT 2007-SN1 Certificate by virtue of
the acceptance hereof assents and by which such holder is bound.
Under the Trust Agreement, there shall be distributed on the 15th day
of each month or, if such 15th day is not a Business Day, the next Business Day,
commencing on June 15, 2007 (each, a "Distribution Date"), to the Person in
whose name this CARAT 2007-SN1 Certificate is registered on the related Record
Date (as defined below), such amount as is provided in the CARAT Basic
Documents. The "Record Date," with respect to any Distribution Date, means the
last day of the preceding Monthly Period.
The distributions in respect of this CARAT 2007-SN1 Certificate are
payable in such coin or currency of the United States of America as at the time
of payment is legal tender for payment of public and private debts. All payments
made by the Trust with respect to this CARAT 2007-SN1 Certificate shall be
applied in respect of this CARAT 2007-SN1 Certificate.
This CARAT 2007-SN1 Certificate (or interest therein) may not be
acquired by or for the account of a Benefit Plan. By accepting and holding this
CARAT 2007-SN1 Certificate (or interest therein), the Holder hereof shall be
deemed to have represented and warranted that it is not a Benefit Plan and is
not purchasing on behalf of a Benefit Plan and, if requested to do so
A-3
by the Seller pursuant to Section 3.4(f) of the Trust Agreement, the CARAT
2007-SN1 Certificateholder shall execute and deliver to the CARAT Owner Trustee
an undertaking letter in form and substance satisfactory to the CARAT Indenture
Trustee and the Seller.
The holder of this CARAT 2007-SN1 Certificate acknowledges and agrees
that its rights to receive distributions in respect of this CARAT 2007-SN1
Certificate are subordinated to the rights of the CARAT 2007-SN1 Noteholders as
and to the extent described in the Trust Sale and Administration Agreement until
the CARAT 2007-SN1 Notes are paid in full, such CARAT 2007-SN1 Notes are retired
or cancelled and all amounts owing to the Swap Counterparty have been paid.
It is the intent of the Seller, the CARAT Owner Trustee and the CARAT
2007-SN1 Certificateholders that, for purposes of federal income, 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, the Trust
shall be treated as either (A) a division of the Seller, or any other single
Person, and disregarded as a separate entity, if all CARAT 2007-SN1 Certificates
are owned solely by the Seller or by such single Person, or (B) a partnership if
the CARAT 2007-SN1 Certificates are owned by more than one Person. Except as
otherwise required by appropriate taxing authorities, the Seller and the other
CARAT 2007-SN1 Certificateholders by acceptance of a CARAT 2007-SN1 Certificate
agree to treat, and to take no action inconsistent with the treatment of, the
CARAT 2007-SN1 Certificates for such tax purposes as interests in such a
disregarded entity or partnership as described in the previous sentence.
Each CARAT 2007-SN1 Certificateholder or CARAT 2007-SN1 Certificate
Owner by its acceptance of a CARAT 2007-SN1 Certificate (or an interest therein)
covenants and agrees that such CARAT 2007-SN1 Certificateholder or CARAT
2007-SN1 Certificate Owner shall not, prior to the date which is one year and
one day after the termination of the Trust, acquiesce, petition or otherwise
invoke or cause the Seller or the CARAT Owner Trustee to invoke the process of
any court or governmental authority for the purpose of commencing or sustaining
a case against the Seller or the CARAT Owner Trustee under any federal or State
bankruptcy, insolvency, reorganization or similar law or appointing a receiver,
liquidator, assignee, trustee, custodian, sequestrator or other similar official
of the Seller or the CARAT Owner Trustee or any substantial part of its
property, or ordering the winding up or liquidation of the affairs of the Seller
or the CARAT Owner Trustee.
Except as otherwise provided in the Trust Agreement, distributions on
this CARAT 2007-SN1 Certificate shall be made as provided in the Trust Agreement
by the CARAT Owner Trustee by wire transfer or check mailed to the CARAT
2007-SN1 Certificateholder of record in the CARAT 2007-SN1 Certificate Register
without the presentation or surrender of this CARAT 2007-SN1 Certificate or the
making of any notation hereon. Except as otherwise provided in the Trust
Agreement and notwithstanding the above, the final distribution on this CARAT
2007-SN1 Certificate shall be made after due notice by the CARAT Owner Trustee
of the pendency of such distribution and only upon presentation and surrender of
this CARAT 2007-SN1 Certificate at the office maintained for such purpose by the
CARAT Owner Trustee in the Borough of Manhattan, The City of New York.
A-4
Reference is hereby made to the further provisions of this CARAT
2007-SN1 Certificate set forth on the reverse hereof, which further provisions
shall for all purposes have the same effect as if set forth at this place.
Unless the certificate of authentication hereon shall have been
executed by an authorized officer of the CARAT Owner Trustee by manual
signature, this CARAT 2007-SN1 Certificate shall not entitle the holder hereof
to any benefit under the Trust Agreement or the Trust Sale and Administration
Agreement or be valid for any purpose.
THIS CARAT 2007-SN1 CERTIFICATE SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF DELAWARE, WITHOUT REGARD TO
THE PRINCIPLES OF CONFLICTS OF LAW THEREOF OR OF ANY OTHER JURISDICTION, AND THE
OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN
ACCORDANCE WITH SUCH LAWS.
IN WITNESS WHEREOF, the CARAT Owner Trustee, on behalf of the Trust
and not in its individual capacity, has caused this CARAT 2007-SN1 Certificate
to be duly executed.
Dated: June 7, 2007 CAPITAL AUTO RECEIVABLES ASSET
TRUST 2007-SN1
Deutsche Bank Trust Company Delaware,
not in its individual capacity but
solely as CARAT Owner Trustee
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
A-5
OWNER TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the CARAT 2007-SN1 Certificates referred to in the
within-mentioned Trust Agreement.
DEUTSCHE BANK TRUST COMPANY DELAWARE, DEUTSCHE BANK TRUST COMPANY DELAWARE,
not in its individual capacity but not in its individual capacity but
solely as CARAT Owner Trustee solely as CARAT Owner Trustee,
by Deutsche Bank Trust Company Americas,
as Authenticating Agent
By: By:
--------------------------------- ------------------------------------
Name: Name:
------------------------------- ----------------------------------
Title: Title:
------------------------------- ---------------------------------
By: By:
--------------------------------- ------------------------------------
Name: Name:
------------------------------- ----------------------------------
Title: Title:
------------------------------- ---------------------------------
A-6
REVERSE OF CERTIFICATE
The CARAT 2007-SN1 Certificates do not represent an obligation of, or
an interest in, the Seller, the Trust Administrator, General Motors Corporation,
the CARAT Indenture Trustee, the CARAT Owner Trustee or any Affiliates of any of
them and no recourse may be had against such parties or their assets, except as
may be expressly set forth or contemplated herein or in the Trust Agreement or
the other CARAT Basic Documents. In addition, this CARAT 2007-SN1 Certificate is
not guaranteed by any governmental agency or instrumentality and is limited in
right of payment to certain collections and recoveries with respect to the CARAT
2007-SN1 Secured Notes (and certain other amounts), all as more specifically set
forth herein and in the Basic Documents. A copy of each of the CARAT Basic
Documents may be examined during normal business hours at the principal office
of the Seller, and at such other places, if any, designated by the Seller, by
any CARAT 2007-SN1 Certificateholder upon written request. In the event of any
conflict between the terms of this CARAT 2007-SN1 Certificate and the terms of
the CARAT Basic Documents, the terms of the CARAT Basic Documents shall govern.
The Trust Agreement permits, with certain exceptions provided therein,
the amendment thereof and the modification of the rights and obligations of the
Seller and the rights of the CARAT 2007-SN1 Certificateholders under the Trust
Agreement at any time by the Seller and the CARAT Owner Trustee with the consent
of the Holders of the CARAT 2007-SN1 Notes evidencing not less than a majority
of the Outstanding Amount of the Controlling Class as of the close of the
preceding Distribution Date and, if any Person other than the Seller or an
Affiliate of the Seller holds any CARAT 2007-SN1 Certificates, the consent of
CARAT 2007-SN1 Certificateholders whose CARAT 2007-SN1 Certificates evidence not
less than a majority of the Voting Interests as of the close of the preceding
Distribution Date. Any such consent by the Holder of this CARAT 2007-SN1
Certificate shall be conclusive and binding on such Holder and on all future
Holders of this CARAT 2007-SN1 Certificate and of any CARAT 2007-SN1 Certificate
issued upon the transfer hereof or in exchange herefor or in lieu hereof whether
or not notation of such consent is made upon this CARAT 2007-SN1 Certificate.
The Trust Agreement also permits the amendment thereof, in certain
circumstances, without the consent of the Holders of any of the CARAT 2007-SN1
Certificates or the CARAT 2007-SN1 Notes.
As provided in the Trust Agreement and subject to certain limitations
therein set forth, the transfer of this CARAT 2007-SN1 Certificate is
registerable in the Certificate Register upon surrender of this CARAT 2007-SN1
Certificate for registration of transfer at the offices or agencies of the
Certificate Registrar maintained by the CARAT Owner Trustee in the City of New
York, accompanied by a written instrument of transfer in form satisfactory to
the CARAT Owner Trustee and the Certificate Registrar duly executed by the
Holder hereof or such Holder's attorney duly authorized in writing, and
thereupon one or more new CARAT 2007-SN1 Certificates evidencing the same
percentage interest in the Trust will be issued to the designated transferee.
The initial Certificate Registrar appointed under the Trust Agreement is
Deutsche Bank Trust Company Americas, New York, New York.
The CARAT 2007-SN1 Certificates are issuable only as registered CARAT
2007-SN1 Certificates. As provided in the Trust Agreement and subject to certain
limitations therein set forth, CARAT 2007-SN1 Certificates are exchangeable for
new CARAT 2007-SN1
A-7
Certificates of authorized denominations evidencing the same aggregate
denomination, as requested by the Holder surrendering the same. No service
charge shall be made for any such registration of transfer or exchange, but the
CARAT Owner Trustee or the CARAT 2007-SN1 Certificate Registrar may require
payment of a sum sufficient to cover any tax or governmental charge payable in
connection therewith.
The CARAT Owner Trustee, the CARAT 2007-SN1 Certificate Registrar and
any agent of the CARAT Owner Trustee or the CARAT 2007-SN1 Certificate Registrar
may treat the Person in whose name this CARAT 2007-SN1 Certificate is registered
as the owner hereof for all purposes, and none of the CARAT Owner Trustee, the
CARAT 2007-SN1 Certificate Registrar or any such agent shall be affected by any
notice to the contrary.
The obligations and responsibilities created by the Trust Agreement
and the Trust created thereby shall terminate in accordance with Article VII of
the Trust Agreement.
A-8
ASSIGNMENT
FOR VALUE RECEIVED the undersigned hereby sells, assigns and transfers
unto
PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF ASSIGNEE
________________________________________________________________________________
(Please print or type name and address, including postal zip code, of assignee)
________________________________________________________________________________
the within CARAT 2007-SN1 Certificate, and all rights thereunder, hereby
irrevocably constituting and appointing
_____________________________________________________ Attorney to transfer said
CARAT 2007-SN1 Certificate on the books of the Certificate Registrar, with full
power of substitution in the premises.
Dated:
------------- ---------------------------------------*
Signature Guaranteed:
---------------------------------------*
* NOTICE: The signature to this assignment must correspond with the name as
it appears upon the face of the within CARAT 2007-SN1 Certificate in every
particular, without alteration, enlargement or any change whatever. Such
signature must be guaranteed by a member firm of the New York Stock
Exchange or a commercial bank or trust company.
A-9
EXHIBIT B
CARAT 2007-SN1 CERTIFICATE OF
CAPITAL AUTO RECEIVABLES ASSET TRUST 2007-SN1
THIS CARAT 2007-SN1 Certificate of Capital Auto Receivables Asset Trust
2007-SN1 (the "Trust") is being duly executed and filed by the undersigned, as
trustee, to form a statutory trust under the Delaware Statutory Trust Act (12
Del. C. Section 3801 et seq.) (the "Act").
1. Name. The name of the statutory trust formed hereby is Capital Auto
Receivables Asset Trust 2007-SN1.
2. Delaware Trustee. The name and business address of the trustee of the
Trust in the State of Delaware are Deutsche Bank Trust Company Delaware, 1011
Centre Road, Suite 200, Wilmington, Delaware 19805-1266.
3. This CARAT 2007-SN1 Certificate of Trust shall be effective upon filing.
IN WITNESS WHEREOF, the undersigned has executed this Certificate of Trust
in accordance with Section 3811(a)(1) of the Act.
DEUTSCHE BANK TRUST COMPANY DELAWARE,
not in its individual capacity but
solely as CARAT Owner Trustee
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
B-1