EXHIBIT 4.7
CAPITAL AUTO RECEIVABLES ASSET TRUST 2007-SN1
CLASS A-1A 5.366% ASSET BACKED NOTES
CLASS A-1B FLOATING RATE ASSET BACKED NOTES
CLASS A-2A 5.40% ASSET BACKED NOTES
CLASS A-2B FLOATING RATE ASSET BACKED NOTES
CLASS A-3A 5.38% ASSET BACKED NOTES
CLASS A-3B FLOATING RATE ASSET BACKED NOTES
CLASS A-4 FLOATING RATE ASSET BACKED NOTES
CLASS B 5.52% ASSET BACKED NOTES
CLASS C 5.73% ASSET BACKED NOTES
CLASS D 6.05% ASSET BACKED NOTES
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CARAT INDENTURE
DATED AS OF JUNE 7, 2007
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THE BANK OF NEW YORK TRUST COMPANY, N.A.
CARAT INDENTURE TRUSTEE
ARTICLE I DEFINITIONS AND RULES OF CONSTRUCTION....................... 2
Section 1.1 Incorporation by Reference of Trust Indenture Act....... 2
ARTICLE II THE CARAT 2007-SN1 NOTES.................................... 2
Section 2.1 Form.................................................... 2
Section 2.2 Execution, Authentication and Delivery.................. 3
Section 2.3 Temporary Notes......................................... 4
Section 2.4 Registration; Registration of Transfer and Exchange of
CARAT 2007-SN1 Notes.................................... 5
Section 2.5 Mutilated, Destroyed, Lost or Stolen CARAT 2007-SN1
Notes................................................... 6
Section 2.6 Persons Deemed CARAT 2007-SN1 Noteholders............... 7
Section 2.7 Payment of Principal and Interest....................... 7
Section 2.8 Cancellation of CARAT 2007-SN1 Notes.................... 10
Section 2.9 Release of Collateral................................... 10
Section 2.10 Book-Entry Notes........................................ 10
Section 2.11 Notices to Clearing Agency.............................. 11
Section 2.12 Definitive Notes........................................ 11
Section 2.13 Seller as CARAT 2007-SN1 Noteholder..................... 11
Section 2.14 Tax Treatment........................................... 12
Section 2.15 Special Terms Applicable to Class A-1 Notes; Transfer of
Beneficial Interest in Class A-1 Notes.................. 12
ARTICLE III COVENANTS................................................... 14
Section 3.1 Payment of Principal and Interest and Other Amounts..... 14
Section 3.2 Maintenance of Agency Office............................ 14
Section 3.3 Money for Payments To Be Held in Trust.................. 14
Section 3.4 Existence............................................... 16
Section 3.5 Protection of CARAT Trust Estate; Acknowledgment of
Pledge.................................................. 16
Section 3.6 Opinions as to CARAT Trust Estate....................... 17
Section 3.7 Performance of Obligations; Administration of COLT
2007-SN1 Secured Notes.................................. 17
Section 3.8 Negative Covenants...................................... 18
Section 3.9 Annual Statement as to Compliance....................... 19
Section 3.10 Consolidation, Merger, etc., of Issuer; Disposition of
Trust Assets............................................ 19
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Section 3.11 Successor or Transferee................................. 21
Section 3.12 No Other Business....................................... 22
Section 3.13 No Borrowing............................................ 22
Section 3.14 Guarantees, Loans, Advances and Other Liabilities....... 22
Section 3.15 Trust Administrator's Obligations....................... 22
Section 3.16 Capital Expenditures.................................... 22
Section 3.17 Restricted Payments..................................... 22
Section 3.18 Notice of Events of Default............................. 23
Section 3.19 Further Instruments and Acts............................ 23
Section 3.20 CARAT Indenture Trustee's Assignment of Administrative
Secured Notes and Warranty Secured Notes................ 23
Section 3.21 Representations and Warranties by the Issuer to the
CARAT Indenture Trustee................................. 23
ARTICLE IV SATISFACTION AND DISCHARGE.................................. 24
Section 4.1 Satisfaction and Discharge of CARAT Indenture........... 24
Section 4.2 Application of Trust Money.............................. 25
Section 4.3 Repayment of Monies Held by Paying Agent................ 25
Section 4.4 Duration of Position of CARAT Indenture Trustee......... 25
ARTICLE V DEFAULT AND REMEDIES........................................ 26
Section 5.1 Events of Default....................................... 26
Section 5.2 Acceleration of Maturity; Rescission and Annulment...... 27
Section 5.3 Collection of Indebtedness and Suits for Enforcement by
CARAT Indenture Trustee................................. 28
Section 5.4 Remedies; Priorities.................................... 30
Section 5.5 Optional Preservation of the CARAT Trust Estate......... 31
Section 5.6 Limitation of Suits..................................... 32
Section 5.7 Unconditional Rights of CARAT 2007-SN1 Noteholders To
Receive Principal and Interest.......................... 32
Section 5.8 Restoration of Rights and Remedies...................... 33
Section 5.9 Rights and Remedies Cumulative.......................... 33
Section 5.10 Delay or Omission Not a Waiver.......................... 33
Section 5.11 Control by CARAT 2007-SN1 Noteholders................... 33
Section 5.12 Waiver of Past Defaults................................. 34
Section 5.13 Undertaking for Costs................................... 34
CARAT 2007-SN1 Indenture
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Section 5.14 Waiver of Stay or Extension Laws........................ 35
Section 5.15 Action on CARAT 2007-SN1 Notes.......................... 35
Section 5.16 Performance and Enforcement of Certain Obligations...... 35
ARTICLE VI THE CARAT INDENTURE TRUSTEE................................. 36
Section 6.1 Duties of CARAT Indenture Trustee....................... 36
Section 6.2 Rights of CARAT Indenture Trustee....................... 37
Section 6.3 CARAT Indenture Trustee May Own CARAT 2007-SN1 Notes.... 38
Section 6.4 CARAT Indenture Trustee's Disclaimer.................... 39
Section 6.5 Notice of Default....................................... 39
Section 6.6 Reports by CARAT Indenture Trustee...................... 39
Section 6.7 Compensation; Indemnity................................. 40
Section 6.8 Replacement of CARAT Indenture Trustee.................. 40
Section 6.9 Merger or Consolidation of CARAT Indenture Trustee...... 41
Section 6.10 Appointment of Co-CARAT Indenture Trustee or Separate
CARAT Indenture Trustee................................. 42
Section 6.11 Eligibility; Disqualification........................... 43
Section 6.12 Preferential Collection of Claims Against Issuer........ 43
Section 6.13 Representations and Warranties of CARAT Indenture
Trustee................................................. 43
Section 6.14 CARAT Indenture Trustee May Enforce Claims Without
Possession of CARAT 2007-SN1 Notes...................... 44
Section 6.15 Suit for Enforcement.................................... 44
Section 6.16 Rights of CARAT 2007-SN1 Noteholders to Direct CARAT
Indenture Trustee....................................... 45
Section 6.17 Notification of CARAT 2007-SN1 Noteholders Regarding
Certain COLT Events; Waivers of Past Defaults;
Amendments and Other Actions............................ 45
ARTICLE VII CARAT NOTEHOLDERS' LISTS AND REPORTS........................ 46
Section 7.1 Issuer To Furnish CARAT Indenture Trustee Names and
Addresses of CARAT 2007-SN1 Noteholders................. 46
Section 7.2 Preservation of Information, Communications to CARAT
2007-SN1 Noteholders.................................... 46
Section 7.3 Reports by Issuer....................................... 46
Section 7.4 Reports by CARAT Indenture Trustee...................... 47
ARTICLE VIII ACCOUNTS, DISBURSEMENTS AND RELEASES........................ 47
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Section 8.1 Collection of Money..................................... 47
Section 8.2 Designated Accounts; Payments........................... 47
Section 8.3 General Provisions Regarding Accounts................... 49
Section 8.4 Release of CARAT Trust Estate........................... 50
Section 8.5 Opinion of Counsel...................................... 51
ARTICLE IX SUPPLEMENTAL INDENTURES..................................... 51
Section 9.1 Supplemental Indentures Without Consent of CARAT
2007-SN1 Noteholders.................................... 51
Section 9.2 Supplemental Indentures With Consent of CARAT 2007-SN1
Noteholders............................................. 52
Section 9.3 Execution of Supplemental Indentures.................... 54
Section 9.4 Effect of Supplemental Indenture........................ 54
Section 9.5 Conformity with Trust Indenture Act..................... 54
Section 9.6 Reference in CARAT 2007-SN1 Notes to Supplemental
Indentures.............................................. 54
ARTICLE X REDEMPTION OF CARAT NOTES................................... 55
Section 10.1 Redemption.............................................. 55
Section 10.2 Form of Redemption Notice............................... 55
Section 10.3 CARAT 2007-SN1 Notes Payable on Redemption Date......... 55
ARTICLE XI MISCELLANEOUS............................................... 56
Section 11.1 Compliance Certificates and Opinions, etc............... 56
Section 11.2 Form of Documents Delivered to CARAT Indenture Trustee.. 57
Section 11.3 Acts of CARAT 2007-SN1 Noteholders...................... 58
Section 11.4 Notices, etc., to CARAT Indenture Trustee, Issuer and
Rating Agencies......................................... 59
Section 11.5 Notices to CARAT 2007-SN1 Noteholders; Waiver........... 59
Section 11.6 Alternate Payment and Notice Provisions................. 60
Section 11.7 Conflict with Trust Indenture Act....................... 60
Section 11.8 Effect of Headings and Table of Contents................ 60
Section 11.9 Successors and Assigns.................................. 60
Section 11.10 Severability............................................ 61
Section 11.11 Benefits of CARAT Indenture............................. 61
Section 11.12 Legal Holidays.......................................... 61
Section 11.13 GOVERNING LAW........................................... 61
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Section 11.14 Counterparts............................................ 61
Section 11.15 Recording of CARAT Indenture............................ 62
Section 11.16 No Recourse............................................. 62
Section 11.17 No Petition............................................. 62
Section 11.18 Inspection.............................................. 63
Section 11.19 Indemnification by and Reimbursement of the Trust
Administrator........................................... 63
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Exhibits
Exhibit A Location of Schedule of COLT 2007-SN1 Secured Notes....... A-1
Exhibit B Form of Note Depository Agreement for the Offered Notes... B-1
Exhibit C-1 Form of [Class A-2a] [Class A-3a] [Class B]
[Class C] [Class D] Fixed Rate Asset Backed Note.......... C-1
Exhibit C-2 Form of [Class A-2b] [Class A-3b] [Class A-4] Floating
Rate Asset Backed Note.................................... C-2
Exhibit C-3 Form of Rule 144A Global [Class A-1a] [Class A-1b]
Notes..................................................... C-3-A
Exhibit C-4 Form of Temporary Regulation S Global [Class A-1a]
[Class A-1b] Notes........................................ C-4-A
Exhibit C-5 Form of Permanent Regulation S Global [Class A-1a]
[Class A-1b] Notes........................................ C-5-A
Exhibit D-1 Form of Transferor Certificate for Transfers of the Rule
144A Global [Class A-1a] [Class A-1b] Notes............... D-1
Exhibit D-2 Form of Transferee Certificate for Transfers of the Rule
144A Global [Class A-1a] [Class A-1b] Notes............... D-2
Exhibit D-3 Form of Regulation S Transfer Certificate................. D-3
Exhibit D-4 Form of Rule 144A Transfer Certificate.................... D-4
Exhibit D-5 Form of Clearing System Certificate....................... D-5
Exhibit E Rule 144A Certificate..................................... E-1
Exhibit F Form of Certification..................................... F-1
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THIS CARAT INDENTURE, dated as of June 7, 2007, is between CAPITAL AUTO
RECEIVABLES ASSET TRUST 2007-SN1, a Delaware statutory trust (the "Issuer"), and
THE BANK OF NEW YORK TRUST COMPANY, N.A., as indenture trustee and not in its
individual capacity (the "CARAT Indenture Trustee").
Each party agrees as follows for the benefit of the other party and for the
equal and ratable benefit of the Secured Parties and the Holders of the CARAT
2007-SN1 Certificates (only to the extent expressly provided herein):
GRANTING CLAUSE
The Issuer hereby Grants to the CARAT Indenture Trustee at the Series
2007-SN1 Closing Date, as trustee for the ratable benefit of the Secured Parties
(only to the extent expressly provided herein), (a) all right, title and
interest of the Issuer in, to and under the COLT 2007-SN1 Secured Notes (which
COLT 2007-SN1 Secured Notes have been issued pursuant to the COLT Indenture and
executed by COLT and authenticated by the COLT Indenture Trustee pursuant to the
COLT Indenture) and all monies due thereunder on and after the Series 2007-SN1
Closing Date; (b) all right, title and interest of the Issuer in, to and under
the CARAT Basic Documents (including the right of the Issuer to cause CARI to
repurchase COLT 2007-SN1 Secured Notes under certain circumstances) and the
rights of the Issuer under the VAULT Security Agreement; and (c) the present and
future claims, demands, causes and choses in action in respect of any or all the
foregoing and all payments on or under and all proceeds of every kind and nature
whatsoever in respect of any or all the foregoing, including all proceeds of the
conversion of any or all of the foregoing, voluntary or involuntary, into cash
or other liquid property, all cash proceeds, accounts, accounts receivable,
notes, drafts, acceptances, chattel paper, checks, deposit accounts, insurance
proceeds, investment property, payment intangibles, general intangibles,
condemnation awards, rights to payment of any and every kind and other forms of
obligations and receivables, instruments and other property which at any time
constitute all or part of or are included in the proceeds of any of the
foregoing (collectively, the "Collateral").
The foregoing Grant is made in trust to secure the Secured Obligations,
equally and ratably without prejudice, priority or distinction, and to secure
compliance with the provisions of this CARAT Indenture, all as provided in this
CARAT Indenture. This CARAT Indenture constitutes a security agreement under the
UCC.
The foregoing Grant includes all rights, powers and options (but none of
the obligations, if any) of the Issuer under any agreement or instrument
included in the Collateral, including the immediate and continuing right to
claim for, collect, receive and give receipt for principal and interest payments
in respect of the COLT 2007-SN1 Secured Notes included in the Collateral and all
other monies payable under the Collateral, to give and receive notices and other
communications, to make waivers or other agreements, to exercise all rights and
options, to bring Proceedings in the name of the Issuer or otherwise and
generally to do and receive anything that the Issuer is or may be entitled to do
or receive under or with respect to the Collateral.
The CARAT Indenture Trustee, as indenture trustee on behalf of the Secured
Parties and (only to the extent expressly provided herein) the CARAT 2007-SN1
Certificateholders,
acknowledges such Grant and accepts the trusts under this CARAT Indenture in
accordance with the provisions of this CARAT Indenture.
ARTICLE I
DEFINITIONS AND RULES OF CONSTRUCTION
Certain capitalized terms used in this CARAT Indenture shall have the
respective meanings assigned them in Part I of Appendix A to the Trust Sale and
Administration Agreement, dated as of the date hereof (as amended from time to
time, the "Trust Sale and Administration Agreement"), between the Issuer, CARI
and GMAC LLC ("GMAC"). All references in this CARAT Indenture to Articles,
Sections, subsections and exhibits are to the same contained in or attached to
this CARAT Indenture unless otherwise specified. All terms defined in this CARAT
Indenture shall have the defined meanings when used in any certificate, notice,
CARAT 2007-SN1 Note or other document made or delivered pursuant hereto unless
otherwise defined therein. The rules of construction set forth in Part II of
such Appendix A shall be applicable to this CARAT Indenture.
Section 1.1 Incorporation by Reference of Trust Indenture Act. Whenever
this CARAT Indenture refers to a provision of the TIA, such provision is
incorporated by reference in and made a part of this CARAT Indenture. The
following TIA terms used in this CARAT Indenture have the following meanings:
"Commission" means the Securities and Exchange Commission.
"indenture securities" means the CARAT 2007-SN1 Notes.
"indenture security holder" means a CARAT 2007-SN1 Noteholder.
"indenture to be qualified" means this CARAT Indenture.
"indenture trustee" means the CARAT Indenture Trustee.
"obligor" on the indenture securities means the Issuer and any other obligor on
the indenture securities.
All other TIA terms used in this CARAT Indenture that are defined by the
TIA, defined by reference to another statute or defined by a Commission rule
have the respective meanings assigned to them by such definitions.
ARTICLE II
THE CARAT 2007-SN1 NOTES
Section 2.1 Form.
(a) Each of the Class A-2a Notes, the Class A-3a Notes, the Class B
Notes, the Class C Notes and the Class D Notes, together, in each case, with the
CARAT Indenture Trustee's certificate of authentication, shall be substantially
in the form set forth in Exhibit C-1, each of the Class A-2b Notes, the Class
A-3b Notes and the Class A-4 Notes, together, in each
2
case, with the CARAT Indenture Trustee's certificate of authentication shall be
substantially in the form set forth in Exhibit C-2, the Rule 144A Global Class
A-1 Notes, with the CARAT Indenture Trustee's certificate of authentication,
shall be substantially in the form set forth in Exhibit C-3, the Temporary
Regulation S Global Class A-1 Note, together with the CARAT Indenture Trustee's
certificate of authentication, shall be substantially in the form set forth in
Exhibit C-4, and the Permanent Regulation S Global Class A-1 Note, together with
the CARAT Indenture Trustee's certificate of authentication, shall be
substantially in the form set forth in Exhibit C-5, in each case with such
appropriate insertions, omissions, substitutions and other variations as are
required or permitted by this CARAT Indenture, and each such CARAT 2007-SN1 Note
may have such letters, numbers or other marks of identification and such legends
or endorsements placed thereon as may, consistently herewith, be determined by
the Authorized Officers executing such CARAT 2007-SN1 Notes, as evidenced by
their execution of the CARAT 2007-SN1 Notes. Any portion of the text of any
CARAT 2007-SN1 Note may be set forth on the reverse thereof, with an appropriate
reference thereto on the face of the CARAT 2007-SN1 Note.
(b) The Class A-1 Notes shall be offered (i) to U.S. Persons sold in
reliance on the exemption from registration under Rule 144A under the Securities
Act (the "Rule 144A Global Class _A-1 Note") and (ii) to non-U.S. persons in
reliance on Regulation S under the Securities Act (initially, the "Temporary
Regulation S Global Class A-1 Note"). After the expiration of the 40-day
restricted period specified in Regulation S (the "Exchange Date"), beneficial
interests in the Temporary Regulation S Global Note shall be exchangeable for
interests in a corresponding permanent Global certificate (the "Permanent
Regulation S Global Class A-1 Note") upon certification of non-U.S. ownership.
(c) The CARAT 2007-SN1 Notes shall be typewritten, printed,
lithographed or engraved or produced by any combination of these methods (with
or without steel engraved borders), all as determined by the officers executing
such CARAT 2007-SN1 Notes, as evidenced by their execution of such CARAT
2007-SN1 Notes.
(d) The terms of each class of CARAT 2007-SN1 Notes as provided for in
Exhibits C-1 through C-5 hereto are part of the terms of this CARAT Indenture.
Section 2.2 Execution, Authentication and Delivery.
(a) Each CARAT 2007-SN1 Note shall be dated the date of its
authentication and shall be issuable as a registered CARAT 2007-SN1 Note in the
minimum denomination of $1,000 and in integral multiples thereof (except, if
applicable, for one CARAT 2007-SN1 Note representing a residual portion of each
class which may be issued in a different denomination).
(b) The CARAT 2007-SN1 Notes shall be executed on behalf of the Issuer
by any of its Authorized Officers. The signature of any such Authorized Officer
on the CARAT 2007-SN1 Notes may be manual or facsimile.
(c) CARAT 2007-SN1 Notes bearing the manual or facsimile signature of
individuals who were at any time Authorized Officers of the Issuer shall bind
the Issuer, notwithstanding that such individuals or any of them have ceased to
hold such office prior to the
3
authentication and delivery of such CARAT 2007-SN1 Notes or did not hold such
office at the date of such CARAT 2007-SN1 Notes.
(d) The CARAT Indenture Trustee, in exchange for the Grant of the COLT
2007-SN1 Secured Notes and the other Collateral, simultaneously with the Grant
to the CARAT Indenture Trustee of the COLT 2007-SN1 Secured Notes, and the
constructive delivery to the CARAT Indenture Trustee of the COLT 2007-SN1
Secured Notes and the other Collateral, shall cause to be authenticated and
delivered to or upon the order of the Issuer, CARAT 2007-SN1 Notes for original
issue in aggregate principal amount of $2,306,257,000 in the following classes:
(i) Class A-1a Notes in the aggregate principal amount of $315,000,000, (ii)
Class A-1b Notes in the aggregate principal amount of $100,000,000, (iii) Class
A-2a Notes in the aggregate principal amount of $175,000,000, (iv) Class A-2b
Notes in the aggregate principal amount of $480,000,000, (v) Class A-3a Notes in
the aggregate principal amount of $140,000,000, (vi) Class A-3b Notes in the
aggregate principal amount of $520,000,000, (vii) Class A-4 Notes in the
aggregate principal amount of $405,007,000, (viii) Class B Notes in the
aggregate principal amount of $56,250,000, (ix) Class C Notes in the aggregate
principal amount of $55,000,000, and (x) Class D Notes in the aggregate
principal amount of $60,000,000.
(e) No CARAT 2007-SN1 Notes shall be entitled to any benefit under
this CARAT Indenture or be valid or obligatory for any purpose, unless there
appears on such CARAT 2007-SN1 Note a certificate of authentication
substantially in the form set forth in Exhibit C-1, Exhibit C-2, Exhibit C-3,
Exhibit C-4, or Exhibit C-5 applicable, executed by the CARAT Indenture Trustee
by the manual signature of one of its Authorized Officers, and such certificate
upon any CARAT 2007-SN1 Note shall be conclusive evidence, and the only
evidence, that such CARAT 2007-SN1 Note has been duly authenticated and
delivered hereunder.
Section 2.3 Temporary Notes.
(a) Pending the preparation of Definitive Notes, if any, the Issuer
may execute, and upon receipt of an Issuer Order the CARAT Indenture Trustee
shall authenticate and deliver, such Temporary Notes which are printed,
lithographed, typewritten, mimeographed or otherwise produced, of the tenor of
the Definitive Notes in lieu of which they are issued and with such variations
as are consistent with the terms of this CARAT Indenture as the Authorized
Officers executing such Notes may determine, as evidenced by their execution of
such CARAT 2007-SN1 Notes.
(b) If Temporary Notes are issued, the Issuer shall cause Definitive
Notes to be prepared without unreasonable delay. After the preparation of
Definitive Notes, the Temporary Notes shall be exchangeable for Definitive Notes
upon surrender of the Temporary Notes at the Agency Office of the Issuer to be
maintained as provided in Section 3.2, without charge to the CARAT 2007-SN1
Noteholder. Upon surrender for cancellation of any one or more Temporary Notes,
the Issuer shall execute and the CARAT Indenture Trustee shall authenticate and
deliver in exchange therefor a like principal amount of Definitive Notes of
authorized denominations. Until so delivered in exchange, the Temporary Notes
shall in all respects be entitled to the same benefits under this CARAT
Indenture as Definitive Notes.
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Section 2.4 Registration; Registration of Transfer and Exchange of CARAT
2007-SN1 Notes.
(a) The Issuer shall cause to be kept the Note Register, comprising
separate registers for each class of CARAT 2007-SN1 Notes, in which, subject to
such reasonable regulations as the Issuer may prescribe, the Issuer shall
provide for the registration of the CARAT 2007-SN1 Notes and the registration of
transfers and exchanges of the CARAT 2007-SN1 Notes. The CARAT Indenture Trustee
shall initially be the Note Registrar for the purpose of registering the CARAT
2007-SN1 Notes and transfers of the CARAT 2007-SN1 Notes as herein provided.
Upon any resignation of any Note Registrar, the Issuer shall promptly appoint a
successor Note Registrar or, if it elects not to make such an appointment,
assume the duties of the Note Registrar.
(b) If a Person other than the CARAT Indenture Trustee is appointed by
the Issuer as Note Registrar, the Issuer will give the CARAT Indenture Trustee
prompt written notice of the appointment of such Note Registrar and of the
location, and any change in the location, of the Note Register. The CARAT
Indenture Trustee shall have the right to inspect the Note Register at all
reasonable times and to obtain copies thereof. The CARAT Indenture Trustee shall
have the right to rely upon a certificate executed on behalf of the Note
Registrar by an Executive Officer thereof as to the names and addresses of the
CARAT 2007-SN1 Noteholders and the principal amounts and number of such CARAT
2007-SN1 Notes.
(c) Upon surrender for registration of transfer of any CARAT 2007-SN1
Note at the Corporate Trust Office of the CARAT Indenture Trustee or the Agency
Office of the Issuer (and following the delivery, in the former case, of such
CARAT 2007-SN1 Notes to the Issuer by the CARAT Indenture Trustee), the Issuer
shall execute, the CARAT Indenture Trustee shall authenticate and the CARAT
2007-SN1 Noteholder shall obtain from the CARAT Indenture Trustee, in the name
of the designated transferee or transferees, one or more new CARAT 2007-SN1
Notes in any authorized denominations, of a like aggregate principal amount.
(d) At the option of a CARAT 2007-SN1 Noteholder, CARAT 2007-SN1 Notes
may be exchanged for other CARAT 2007-SN1 Notes of the same class in any
authorized denominations, of a like aggregate principal amount, upon surrender
of such CARAT 2007-SN1 Notes to be exchanged at the Corporate Trust Office of
the CARAT Indenture Trustee or the Agency Office of the Issuer (and following
the delivery, in the former case, of such CARAT 2007-SN1 Notes to the Issuer by
the CARAT Indenture Trustee), the Issuer shall execute, and the CARAT Indenture
Trustee shall authenticate and the CARAT 2007-SN1 Noteholder shall obtain from
the CARAT Indenture Trustee, such CARAT 2007-SN1 Notes which the CARAT 2007-SN1
Noteholder making the exchange is entitled to receive. (e) All CARAT 2007-SN1
Notes issued upon any registration of transfer or exchange of other CARAT
2007-SN1 Notes shall be the valid obligations of the Issuer, evidencing the same
debt, and entitled to the same benefits under this CARAT Indenture, as the CARAT
2007-SN1 Notes surrendered upon such registration of transfer or exchange.
(f) Every CARAT 2007-SN1 Note presented or surrendered for
registration of transfer or exchange shall be duly endorsed by, or be
accompanied by a written instrument of
5
transfer in form satisfactory to the CARAT Indenture Trustee and the Note
Registrar, duly executed by the Holder thereof or such Holder's attorney duly
authorized in writing, with such signature guaranteed by a commercial bank or
trust company located, or having a correspondent located, in The City of New
York or the city in which the Corporate Trust Office of the CARAT Indenture
Trustee is located, or by a member firm of a national securities exchange, and
such other documents as the CARAT Indenture Trustee may require.
(g) No service charge shall be made to a Holder for any registration
of transfer or exchange of CARAT 2007-SN1 Notes, but the Issuer or CARAT
Indenture Trustee may require payment of a sum sufficient to cover any tax or
other governmental charge that may be imposed in connection with any
registration of transfer or exchange of CARAT 2007-SN1 Notes, other than
exchanges pursuant to Sections 2.3 or 9.6 not involving any transfer.
(h) By acquiring a CARAT 2007-SN1 Note or any interest therein, each
purchaser and transferee shall be deemed to represent and warrant that either
(a) it is not acquiring the CARAT 2007-SN1 Note with the plan assets of a
Benefit Plan or other plan subject to applicable law that is substantially
similar to Section 406 of ERISA or Section 4975 of the Code or (b) the
acquisition and holding of the CARAT 2007-SN1 Note will not give rise to a
non-exempt prohibited transaction under Section 406(a) of ERISA, Section 4975 of
the Code or a violation of any substantially similar applicable law.
(i) The preceding provisions of this Section 2.4 notwithstanding, the
Issuer shall not be required to transfer or make exchanges, and the Note
Registrar need not register transfers or exchanges, of CARAT 2007-SN1 Notes: (i)
that have been selected for redemption pursuant to Article X, if applicable;
(ii) that are due for repayment within 15 days of submission to the Corporate
Trust Office or the Agency Office; or (iii) with respect to any Class A-1 Notes
if Section 2.15 has not been complied with in connection with such transfer.
Section 2.5 Mutilated, Destroyed, Lost or Stolen CARAT 2007-SN1 Notes.
(a) If (i) any mutilated CARAT 2007-SN1 Note is surrendered to the
CARAT Indenture Trustee, or the CARAT Indenture Trustee receives evidence to its
satisfaction of the destruction, loss or theft of any CARAT 2007-SN1 Note, and
(ii) there is delivered to the CARAT Indenture Trustee such security or
indemnity as may be required by it to hold the Issuer and the CARAT Indenture
Trustee harmless, then, in the absence of notice to the Issuer, the Note
Registrar or the CARAT Indenture Trustee that such CARAT 2007-SN1 Note has been
acquired by a Protected Purchaser, the Issuer shall execute and upon the
Issuer's request the CARAT Indenture Trustee shall authenticate and deliver, in
exchange for or in lieu of any such mutilated, destroyed, lost or stolen CARAT
2007-SN1 Note, a replacement CARAT 2007-SN1 Note of a like class and aggregate
principal amount; provided, however, that if any such destroyed, lost or stolen
CARAT 2007-SN1 Note, but not a mutilated CARAT 2007-SN1 Note, shall have become
or within seven days shall be due and payable, or shall have been called for
redemption, instead of issuing a replacement CARAT 2007-SN1 Note, the Issuer may
make payment to the Holder of such destroyed, lost or stolen CARAT 2007-SN1 Note
when so due or payable or upon the Redemption Date, if applicable, without
surrender thereof.
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(b) If, after the delivery of a replacement CARAT 2007-SN1 Note or
payment in respect of a destroyed, lost or stolen CARAT 2007-SN1 Note pursuant
to Section 2.5(a), a Protected Purchaser of the original CARAT 2007-SN1 Note in
lieu of which such replacement CARAT 2007-SN1 Note was issued presents for
payment such original CARAT 2007-SN1 Note, the Issuer and the CARAT Indenture
Trustee shall be entitled to recover such replacement CARAT 2007-SN1 Note (or
such payment) from (i) any Person to whom it was delivered, (ii) the Person
taking such replacement CARAT 2007-SN1 Note from the Person to whom such
replacement CARAT 2007-SN1 Note was delivered; or (iii) any assignee of such
Person, except a Protected Purchaser, and the Issuer and the CARAT Indenture
Trustee shall be entitled to recover upon the security or indemnity provided
therefor to the extent of any loss, damage, cost or expense incurred by the
Issuer or the CARAT Indenture Trustee in connection therewith.
(c) In connection with the issuance of any replacement CARAT 2007-SN1
Note under this Section 2.5, the Issuer may require the payment by the Holder of
such CARAT 2007-SN1 Note of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
reasonable expenses (including all fees and expenses of the CARAT Indenture
Trustee) connected therewith.
(d) Any duplicate CARAT 2007-SN1 Note issued pursuant to this Section
2.5 in replacement for any mutilated, destroyed, lost or stolen CARAT 2007-SN1
Note shall constitute an original additional contractual obligation of the
Issuer, whether or not the mutilated, destroyed, lost or stolen CARAT 2007-SN1
Note shall be found at any time or be enforced by any Person, and shall be
entitled to all the benefits of this CARAT Indenture equally and proportionately
with any and all other CARAT 2007-SN1 Notes duly issued hereunder.
(e) The provisions of this Section 2.5 are exclusive and shall
preclude (to the extent lawful) all other rights and remedies with respect to
the replacement or payment of mutilated, destroyed, lost or stolen CARAT
2007-SN1 Notes.
Section 2.6 Persons Deemed CARAT 2007-SN1 Noteholders. Prior to due
presentment for registration of transfer of any CARAT 2007-SN1 Note, the Issuer,
the CARAT Indenture Trustee and any agent of the Issuer or the CARAT Indenture
Trustee may treat the Person in whose name any CARAT 2007-SN1 Note is registered
(as of the day of determination) as the CARAT 2007-SN1 Noteholder for the
purpose of receiving payments of principal of and interest on such CARAT
2007-SN1 Note and for all other purposes whatsoever, whether or not such CARAT
2007-SN1 Note be overdue, and neither the Issuer, the CARAT Indenture Trustee
nor any agent of the Issuer or the CARAT Indenture Trustee shall be affected by
notice to the contrary.
Section 2.7 Payment of Principal and Interest.
(a) Interest on each class of CARAT 2007-SN1 Notes shall accrue in the
manner set forth in Exhibit C-1 through Exhibit C-4, as applicable for such
class, at the applicable Interest Rate for such class and will be due and
payable on each Distribution Date in accordance with the priorities set forth in
Section 8.2(c). Any instalment of interest payable on any CARAT 2007-SN1 Note
shall be punctually paid or duly provided for by a deposit by or at the
direction of the Issuer into the Note Distribution Account on the applicable
Distribution Date
7
and shall be paid to the Person in whose name such CARAT 2007-SN1 Note (or one
or more Predecessor Notes) is registered on the applicable Record Date, by check
mailed first-class, postage prepaid to such Person's address as it appears on
the Note Register on such Record Date; provided, however, that, unless and until
Definitive Notes have been issued pursuant to Section 2.12, with respect to
CARAT 2007-SN1 Notes registered on the applicable Record Date in the name of the
Note Depository (initially, Cede & Co.), payment shall be made by wire transfer
in immediately available funds to the account designated by the Note Depository;
provided, further, that with respect to any Class A-1 Notes, upon written
request of the Holder thereof, payment shall be made by wire transfer of
immediately available funds to the account designated by such Holder until
further written notice from such Holder.
(b) Prior to the occurrence of a CARAT Event of Default and a
declaration in accordance with Section 5.2(a) that the CARAT 2007-SN1 Notes have
become immediately due and payable, the principal of each class of CARAT
2007-SN1 Notes shall be payable in full on the Final Scheduled Distribution Date
for such class and, to the extent of funds available therefor, in instalments on
the Distribution Dates (if any) preceding the Final Scheduled Distribution Date
for such class, in the amounts and in accordance with the priorities set forth
in Section 8.2(c)(ii) or (iii), as applicable. All principal payments on each
class of CARAT 2007-SN1 Notes on any Distribution Date shall be made pro rata to
the CARAT 2007-SN1 Noteholders of such class entitled thereto. Any instalment of
principal payable on any CARAT 2007-SN1 Note shall be punctually paid or duly
provided for by a deposit by or at the direction of the Issuer into the Note
Distribution Account on the applicable Distribution Date and shall be paid to
the Person in whose name such CARAT 2007-SN1 Note (or one or more Predecessor
CARAT 2007-SN1 Notes) is registered on the applicable Record Date, by check
mailed first-class, postage prepaid to such Person's address as it appears on
the Note Register on such Record Date; provided, however, that, (A) unless and
until Definitive Notes have been issued pursuant to Section 2.12, with respect
to CARAT 2007-SN1 Notes registered on the Record Date in the name of the Note
Depository, payment shall be made by wire transfer in immediately available
funds to the account designated by the Note Depository and (B) with respect to
any Class A-1 Notes, upon written request of the Holder thereof, payment shall
be made by wire transfer of immediately available funds to the account
designated by such Holder until further written notice from such Holder or, if
no prior written wire transfer instructions have been given to the CARAT
Indenture Trustee by such Person, by check mailed to such Person's address as it
appears on the Note Register, except for, in each case: (i) the final instalment
of principal on any CARAT 2007-SN1 Note and (ii) the Redemption Price for the
CARAT 2007-SN1 Notes redeemed pursuant to Section 10.1, which, in each case,
shall be payable as provided herein. The funds represented by any such checks in
respect of interest or principal returned undelivered shall be held in
accordance with Section 3.3.
(c) From and after the occurrence of a CARAT Event of Default and a
declaration in accordance with Section 5.2(a) that the CARAT 2007-SN1 Notes have
become immediately due and payable, until such time as all Events of Default
have been cured or waived as provided in Section 5.2(b), on each Distribution
Date all interest and principal payments shall be allocated in the following
order of priority:
(i) first, for payment of interest pro rata on the Class A Notes,
the Aggregate Class A Interest Distributable Amount;
8
(ii) second, an amount equal to the Note Principal Balance of the
Class A Notes (after giving effect to the reduction in the Note Principal
Balance to result from the deposits made in the Note Distribution Account on
such Distribution Date and on each prior Distribution Date with respect to the
Class A Notes) for payment of principal pro rata on the Class A Notes;
(iii) third, for payment of interest pro rata on the Class B
Notes, the Aggregate Class B Interest Distributable Amount;
(iv) fourth, an amount equal to the Note Principal Balance of the
Class B Notes (after giving effect to the reduction in the Note Principal
Balance to result from the deposits made in the Note Distribution Account on
such Distribution Date and on each prior Distribution Date with respect to the
Class B Notes) for payment of principal pro rata on the Class B Notes;
(v) fifth, for payment of interest pro rata on the Class C Notes,
the Aggregate Class C Interest Distributable Amount;
(vi) sixth, an amount equal to the Note Principal Balance of the
Class C Notes (after giving effect to the reduction in the Note Principal
Balance to result from the deposits made in the Note Distribution Account on
such Distribution Date and on each prior Distribution Date with respect to the
Class C Notes) for payment of principal pro rata on the Class C Notes;
(vii) seventh, for payment of interest pro rata on the Class D
Notes, the Aggregate Class D Interest Distributable Amount; and
(viii) eighth, an amount equal to the Note Principal Balance of
the Class D Notes (after giving effect to the reduction in the Note Principal
Balance to result from the deposits made in the Note Distribution Account on
such Distribution Date and on each prior Distribution Date with respect to the
Class D Notes) for payment of principal pro rata on the Class D Notes.
(d) With respect to any Distribution Date on which the final
instalment of principal and interest on a class of CARAT 2007-SN1 Notes is to be
paid, the CARAT Indenture Trustee on behalf of the Issuer shall notify each
CARAT 2007-SN1 Noteholder of record of such class as of the Record Date for such
Distribution Date of the fact that the final instalment of principal of and
interest on such CARAT 2007-SN1 Note is to be paid on such Distribution Date.
With respect to any such class of CARAT 2007-SN1 Notes (other than in the case
of redemption pursuant to Section 10.2), such notice shall be sent (i) on such
Record Date by facsimile, if Book Entry Notes are outstanding; or (ii) not later
than three Business Days after such Record Date in accordance with Section
11.5(a) if Definitive Notes are outstanding, and shall specify that such final
instalment shall be payable only upon presentation and surrender of such CARAT
2007-SN1 Note and shall specify the place where such CARAT 2007-SN1 Note may be
presented and surrendered for payment of such instalment and the manner in which
such payment shall be made. Notices in connection with redemptions of CARAT
2007-SN1 Notes shall be mailed to CARAT 2007-SN1 Noteholders as provided in
Section 10.2. Within 60 days of the surrender
9
pursuant to this Section 2.7(d) or cancellation pursuant to Section 2.8 of all
of the CARAT 2007-SN1 Notes of a particular class, the CARAT Indenture Trustee,
if requested, shall provide each of the Rating Agencies with written notice
stating that all CARAT 2007-SN1 Notes of such class have been surrendered or
canceled.
Section 2.8 Cancellation of CARAT 2007-SN1 Notes. All CARAT 2007-SN1 Notes
surrendered for payment, redemption, exchange or registration of transfer shall,
if surrendered to any Person other than the CARAT Indenture Trustee, be
delivered to the CARAT Indenture Trustee and shall be promptly canceled by the
CARAT Indenture Trustee. The Issuer may at any time deliver to the CARAT
Indenture Trustee for cancellation any CARAT 2007-SN1 Notes previously
authenticated and delivered hereunder which the Issuer may have acquired in any
manner whatsoever, and all CARAT 2007-SN1 Notes so delivered shall be promptly
canceled by the CARAT Indenture Trustee. No CARAT 2007-SN1 Notes shall be
authenticated in lieu of or in exchange for any CARAT 2007-SN1 Notes canceled as
provided in this Section 2.8, except as expressly permitted by this CARAT
Indenture. All canceled CARAT 2007-SN1 Notes may be held or disposed of by the
CARAT Indenture Trustee in accordance with its standard retention or disposal
policy as in effect at the time unless the Issuer shall direct by an Issuer
Order that they be destroyed or returned to it; provided, however, that such
Issuer Order is timely and the CARAT 2007-SN1 Notes have not been previously
disposed of by the CARAT Indenture Trustee. The CARAT Indenture Trustee shall
certify to the Issuer upon request that surrendered CARAT 2007-SN1 Notes have
been duly canceled and retained or destroyed, as the case may be.
Section 2.9 Release of Collateral. The CARAT Indenture Trustee shall
release property from the Lien of this CARAT Indenture other than as permitted
by Sections 3.20, 8.2, 8.4 and 11.1, only upon receipt of an Issuer Request
accompanied by an Officer's Certificate and an Opinion of Counsel (to the extent
required by the TIA) and Independent Certificates in accordance with TIA
Sections 314(c) and 314(d)(1).
Section 2.10 Book-Entry Notes. The CARAT 2007-SN1 Notes, upon original
issuance, shall be issued in the form of a typewritten CARAT 2007-SN1 Note or
CARAT 2007-SN1 Notes representing the Book-Entry Notes, to be delivered to The
Depository Trust Company, as the initial Clearing Agency, or its custodian, by
or on behalf of the Issuer. Such CARAT 2007-SN1 Note or CARAT 2007-SN1 Notes
shall be registered on the Note Register in the name of the Note Depository, and
no Note Owner shall receive a Definitive Note representing such Note Owner's
interest in such CARAT 2007-SN1 Note, except as provided in Section 2.12. Unless
and until the Definitive Notes have been issued to Note Owners pursuant to
Section 2.12:
(a) the provisions of this Section 2.10 shall be in full force and
effect;
(b) the Note Registrar and the CARAT Indenture Trustee shall be
entitled to deal with the Clearing Agency for all purposes of this CARAT
Indenture (including the payment of principal of and interest on such CARAT
2007-SN1 Notes and the giving of instructions or directions hereunder) as the
sole Holder of such CARAT 2007-SN1 Notes and shall have no obligation to the
Note Owners;
(c) to the extent that the provisions of this Section 2.10 conflict
with any other provisions of this CARAT Indenture, the provisions of this
Section 2.10 shall control;
10
(d) the rights of the Note Owners shall be exercised only through the
Clearing Agency and shall be limited to those established by law and agreements
between such CARAT 2007-SN1 Note Owners and the Clearing Agency and/or the
Clearing Agency Participants; unless and until Definitive Notes are issued
pursuant to Section 2.12, the initial Clearing Agency shall make book-entry
transfers between the Clearing Agency Participants and receive and transmit
payments of principal of and interest on such CARAT 2007-SN1 Notes to such
Clearing Agency Participants, pursuant to the Note Depository Agreement; and
(e) whenever this CARAT Indenture requires or permits actions to be
taken based upon instructions or directions of Holders of CARAT 2007-SN1 Notes
evidencing a specified percentage of the Outstanding Amount of the Controlling
Class, the Clearing Agency shall be deemed to represent such percentage only to
the extent that (i) it has received instructions to such effect from Note Owners
and/or Clearing Agency Participants owning or representing, respectively, such
required percentage of the beneficial interest in the CARAT 2007-SN1 Notes; or
(ii) the CARAT Indenture Trustee has received such direction from the Note
Owners directly.
Section 2.11 Notices to Clearing Agency. Whenever a notice or other
communication to the CARAT 2007-SN1 Noteholders is required under this CARAT
Indenture, unless and until Definitive Notes shall have been issued to Note
Owners pursuant to Section 2.12, the CARAT Indenture Trustee shall give all such
notices and communications specified herein to be given to CARAT 2007-SN1
Noteholders to the Clearing Agency and shall have no other obligation to the
Note Owners.
Section 2.12 Definitive Notes. If (i) the Trust Administrator advises the
CARAT Indenture Trustee in writing that the Clearing Agency is no longer willing
or able to properly discharge its responsibilities with respect to the Notes and
the Issuer is unable to locate a qualified successor; (ii) the Trust
Administrator, at its option, advises the CARAT Indenture Trustee in writing
that it elects to terminate the book-entry system through the Clearing Agency;
or (iii) after the occurrence of a CARAT Event of Default or a Trust
Administrator Default, Note Owners representing beneficial interests aggregating
at least a majority of the Outstanding Amount of the Controlling Class advise
the Clearing Agency in writing that the continuation of a book-entry system
through the Clearing Agency is no longer in the best interests of the Note
Owners, then the Clearing Agency shall notify all Note Owners and the CARAT
Indenture Trustee of the occurrence of any such event and of the availability of
Definitive Notes to Note Owners requesting the same. Upon surrender to the CARAT
Indenture Trustee of the typewritten CARAT 2007-SN1 Note or CARAT 2007-SN1 Notes
representing the Book-Entry Notes by the Clearing Agency, accompanied by
registration instructions, the Issuer shall execute and the CARAT Indenture
Trustee shall authenticate the Definitive Notes in accordance with the
instructions of the Clearing Agency. None of the Issuer, the Note Registrar or
the CARAT Indenture Trustee shall be liable for any delay in delivery of such
instructions and may conclusively rely on, and shall be protected in relying on,
such instructions. Upon the issuance of Definitive Notes, the CARAT Indenture
Trustee shall recognize the Holders of the Definitive Notes as CARAT 2007-SN1
Noteholders.
Section 2.13 Seller as CARAT 2007-SN1 Noteholder. The Seller in its
individual or any other capacity may become the owner or pledgee of CARAT
2007-SN1 Notes of any class
11
and may otherwise deal with the Issuer or its affiliates with the same rights it
would have if it were not the Seller.
Section 2.14 Tax Treatment. The Seller and the CARAT Indenture Trustee, by
entering into this CARAT Indenture, and the CARAT 2007-SN1 Noteholders, by
acquiring any CARAT 2007-SN1 Note or interest therein, (i) express their
intention that the CARAT 2007-SN1 Notes qualify under applicable tax law as
indebtedness secured by the Collateral, and (ii) unless otherwise required by
appropriate taxing authorities, agree to treat the CARAT 2007-SN1 Notes as
indebtedness secured by the Collateral for the purpose of federal income taxes,
State and local income and franchise taxes, Michigan single business tax, and
any other taxes imposed upon, measured by or based upon gross or net income.
Section 2.15 Special Terms Applicable to Class A-1 Notes; Transfer of
Beneficial Interest in Class A-1 Notes.
(a) None of the Class A-1 Notes have been or will be registered under
the Securities Act or the securities laws of any other jurisdiction.
Consequently, the Class A-1 Notes are not transferable other than pursuant to an
exemption from the registration requirements of the Securities Act and
satisfaction of certain other provisions specified herein. The Class A-1 Notes
or any interest therein are being sold in one or more private placements on the
date hereof.
(b) Thereafter, no further sale, pledge or other transfer of any Class
A-1 Note (or interest therein) may be made by any Person unless either (A) such
sale, pledge or other transfer is made to a "qualified institutional buyer" as
defined under Rule 144A under the Securities Act that delivers any necessary
certifications pursuant to Section 2.15(d) or (e) and that (1) is a "qualified
institutional buyer" as defined under Rule 144A under the Securities Act, acting
for its own account or the accounts of other "qualified institutional buyers" as
defined under Rule 144A under the Securities Act, and (2) it is aware that the
transferor of such Class A-1 Notes intends to rely on the exemption from the
registration requirements of the Securities Act provided by Rule 144A under the
Securities Act, (B) such sale, pledge or other transfer occurs outside of the
United States to a non-U.S. Person in accordance with Rule 903 or Rule 904 of
Regulation S of the Securities Act and that Person delivers any necessary
certifications pursuant to Section 2.15(d) or (e), or (C) if the Class A-1 Notes
are no longer eligible for resale pursuant to Rule 144A or Regulation S of the
Securities Act, such sale, pledge or other transfer is made in a transaction
otherwise exempt from the registration requirements of the Securities Act, in
which case (1) the CARAT Indenture Trustee shall require that both the
prospective transferor and the prospective transferee certify to the CARAT
Indenture Trustee and the Seller in writing the facts surrounding such transfer,
which certification shall be in form and substance satisfactory to the CARAT
Indenture Trustee and the Seller, and (2) the CARAT Indenture Trustee shall
require a written opinion of counsel (which will not be at the expense of the
Seller, the Trust Administrator or the CARAT Indenture Trustee) satisfactory to
the Seller and the CARAT Indenture Trustee to the effect that such transfer will
not violate the Securities Act.
Neither the Seller nor the CARAT Indenture Trustee will register any
of the Class A-1 Notes under the Securities Act, qualify any of the Class A-1
Notes under the securities laws of any State or provide registration rights to
any purchaser or Holder thereof.
12
(c) Each Class A-1 Note shall bear a legend to the effect set forth in
Section 2.15(b) above.
(d) If a transfer of a beneficial interest held by the related
transferor in the form of a Rule 144A Global Class A-1 Note to be held by the
related transferee in the form of a Rule 144A Global Class A-1 Note is to be
made without registration under the Securities Act (other than in connection
with the initial issuance thereof or a transfer thereof by the Seller or one of
its Affiliates), then the Note Registrar shall refuse to register such transfer
unless it receives (and upon receipt, may conclusively rely upon) a certificate
from the CARAT 2007-SN1 Noteholder desiring to effect such transfer
substantially in the form attached as Exhibit D-1 hereto and a certificate from
such CARAT 2007-SN1 Noteholder's prospective transferee substantially in the
form attached as Exhibit D-2 hereto. If a transfer of a beneficial interest held
by the related transferor in the form of a Rule 144A Global Class A-1 Note to be
held by the related transferee in the form of a Temporary Regulation S Global
Class A-1 Note, on or prior to the Exchange Date, or a Permanent Regulation S
Global Class A-1 Note, after the Exchange Date, is to be made without
registration under the Securities Act, then the Note Registrar shall refuse to
register such transfer unless it receives (and upon receipt may conclusively
rely upon) a certificate substantially in the form of Exhibit D-3 hereto (a
"Regulation S Transfer Certificate") from the CARAT 2007-SN1 Noteholder desiring
to effect such transfer or such other certification reasonably acceptable to the
Seller and the Note Registrar, in either case to the effect that such transfer
is being made in accordance with Rule 903 or Rule 904 of Regulation S and that,
if such transfer occurs on or prior to the Exchange Date, the interest
transferred will be held immediately thereafter through Euroclear or
Clearstream.
(e) If any transfer of a beneficial interest held by the related
transferor in the form of a Temporary Regulation S Global Class A-1 Notes or a
Permanent Regulation S Global Class A-1 Note is to be made without registration
under the Securities Act, then the Note Registrar shall refuse to register such
transfer unless it receives (and upon receipt may conclusively rely upon) (i) in
the case of a transfer to a transferee that takes delivery in the form of a
beneficial interest in a Rule 144A Global Class A-1 Note, a certificate from the
CARAT 2007-SN1 Noteholder desiring to effect such transfer substantially in the
form of Exhibit D-4 hereto (a "Rule 144A Transfer Certificate") or such other
certification reasonably acceptable to the Seller and the Note Registrar; and
(ii) in the case of a transferee that takes delivery, in the form of a
beneficial interest in a Temporary Regulation S Global Class A-1 Note, on or
prior to the Exchange Date, or a Permanent Regulation S Global Class A-1 Note,
after the Exchange Date, a Regulation S Transfer Certificate from the CARAT
2007-SN1 Noteholder desiring to effect such transfer or such other certification
reasonably acceptable to the Seller and the Note Registrar, in either case to
the effect that such transfer is being made in accordance with Rule 903 or 904
of Regulation S and that, if such transfer occurs on or prior to the Exchange
Date, the interest transferred will be held immediately thereafter through
Euroclear or Clearstream. A beneficial interest in the Class A-1 Notes held by
the related transferor in the form of a Temporary Regulation S Global Class A-1
Note may be exchanged, only on or after the Exchange Date, for a beneficial
interest held by the related transferor in the form of a Permanent Regulation S
Global Class A-1 Note, upon delivery to the Note Registrar of a certification
substantially in the form of Exhibit D-5 hereto (a "Clearing System
Certificate").
13
ARTICLE III
COVENANTS
Section 3.1 Payment of Principal and Interest and Other Amounts. The Issuer
shall duly and punctually pay the principal of and interest on the CARAT
2007-SN1 Notes in accordance with the CARAT 2007-SN1 Notes and this CARAT
Indenture. On each Distribution Date and on the Redemption Date (if applicable),
the Issuer shall cause amounts on deposit in the Note Distribution Account to be
distributed to the CARAT 2007-SN1 Noteholders in accordance with Sections 2.7
and 8.2, less amounts properly withheld under the Code by any Person from a
payment to any CARAT 2007-SN1 Noteholder of interest and/or principal. Any
amounts so withheld shall be considered as having been paid by the Issuer to
such CARAT 2007-SN1 Noteholder for all purposes of this CARAT Indenture.
Section 3.2 Maintenance of Agency Office. As long as any of the CARAT
2007-SN1 Notes remains outstanding, the Issuer shall maintain in the Borough of
Manhattan, The City of New York, an office (the "Agency Office"), being an
office or agency where CARAT 2007-SN1 Notes may be surrendered to the Issuer for
registration of transfer or exchange, and where notices and demands to or upon
the Issuer in respect of the CARAT 2007-SN1 Notes and this CARAT Indenture may
be served. The Issuer hereby initially appoints the CARAT Indenture Trustee to
serve as its agent for the foregoing purposes. The Issuer shall give prompt
written notice to the CARAT Indenture Trustee of the location, and of any change
in the location, of the Agency Office. If at any time the Issuer shall fail to
maintain any such office or agency or shall fail to furnish the CARAT Indenture
Trustee with the address thereof, such surrenders, notices and demands may be
made or served at the Corporate Trust Office of the CARAT Indenture Trustee, and
the Issuer hereby appoints the CARAT Indenture Trustee as its agent to receive
all such surrenders, notices and demands.
Section 3.3 Money for Payments To Be Held in Trust.
(a) As provided in Section 8.2(a) and (b), all payments of amounts due
and payable with respect to any CARAT 2007-SN1 Notes that are to be made from
amounts withdrawn from the Note Distribution Account pursuant to Section 8.2(c)
shall be made on behalf of the Issuer by the CARAT Indenture Trustee or by
another Paying Agent, and no amounts so withdrawn from the Note Distribution
Account for payments of CARAT 2007-SN1 Notes shall be paid over to the Issuer
except as provided in this Section 3.3.
(b) On or before each Distribution Date or the Redemption Date (if
applicable), the Issuer shall deposit or cause to be deposited in the Note
Distribution Account pursuant to Section 4.05 of the Trust Sale and
Administration Agreement an aggregate sum sufficient to pay the amounts then
becoming due with respect to the CARAT 2007-SN1 Notes, such sum to be held in
trust for the benefit of the Persons entitled thereto.
(c) The Issuer shall cause each Paying Agent other than the CARAT
Indenture Trustee to execute and deliver to the CARAT Indenture Trustee an
instrument in which such Paying Agent shall agree with the CARAT Indenture
Trustee (and if the CARAT Indenture Trustee acts as Paying Agent, it hereby so
agrees), subject to the provisions of this Section 3.3, that such Paying Agent
shall:
14
(i) hold all sums held by it for the payment of amounts due with
respect to the CARAT 2007-SN1 Notes in trust for the benefit of the Persons
entitled thereto until such sums shall be paid to such Persons or otherwise
disposed of as herein provided and pay such sums to such Persons as herein
provided;
(ii) give the CARAT Indenture Trustee notice of any default by
the Issuer (or any other obligor upon the CARAT 2007-SN1 Notes) of which it has
actual knowledge in the making of any payment required to be made with respect
to the CARAT 2007-SN1 Notes;
(iii) at any time during the continuance of any such default,
upon the written request of the CARAT Indenture Trustee, forthwith pay to the
CARAT Indenture Trustee all sums so held in trust by such Paying Agent;
(iv) immediately resign as a Paying Agent and forthwith pay to
the CARAT Indenture Trustee all sums held by it in trust for the payment of
CARAT 2007-SN1 Notes if at any time it ceases to meet the standards required to
be met by a Paying Agent in effect at the time of determination; and
(v) comply with all requirements of the Code with respect to the
withholding from any payments made by it on any CARAT 2007-SN1 Notes of any
applicable withholding taxes imposed thereon and with respect to any applicable
reporting requirements in connection therewith.
(d) The Issuer may at any time, for the purpose of obtaining the
satisfaction and discharge of this CARAT Indenture or for any other purpose, by
Issuer Order direct any Paying Agent to pay to the CARAT Indenture Trustee all
sums held in trust by such Paying Agent, such sums to be held by the CARAT
Indenture Trustee upon the same trusts as those upon which the sums were held by
such Paying Agent; and upon such payment by any Paying Agent to the CARAT
Indenture Trustee, such Paying Agent shall be released from all further
liability with respect to such money.
(e) Subject to applicable laws with respect to escheat of funds, any
money held by the CARAT Indenture Trustee or any Paying Agent in trust for the
payment of any amount due with respect to any CARAT 2007-SN1 Note and remaining
unclaimed for one year after such amount has become due and payable shall be
discharged from such trust and be paid to the Issuer on Issuer Request; and the
Holder of such CARAT 2007-SN1 Note shall thereafter, as an unsecured general
creditor, look only to the Issuer for payment thereof (but only to the extent of
the amounts so paid to the Issuer), and all liability of the CARAT Indenture
Trustee or such Paying Agent with respect to such trust money shall thereupon
cease; provided, however, that the CARAT Indenture Trustee or such Paying Agent,
before being required to make any such payment, may at the expense of the Issuer
cause to be published once, in a newspaper published in the English language,
customarily published on each Business Day and of general circulation in The
City of New York, notice that such money remains unclaimed and that, after a
date specified therein, which shall not be less than 30 days from the date of
such publication, any unclaimed balance of such money then remaining shall be
paid to the Issuer. The CARAT Indenture Trustee may also adopt and employ, at
the expense of the Issuer, any other reasonable
15
means of notification of such payment (including mailing notice of such payment
to Holders whose CARAT 2007-SN1 Notes have been called but have not been
surrendered for redemption or whose right to or interest in monies due and
payable but not claimed is determinable from the records of the CARAT Indenture
Trustee or of any Paying Agent, at the last address of record for each such
Holder).
Section 3.4 Existence. The Issuer shall keep in full effect its existence,
rights and franchises as a statutory trust under the laws of the State of
Delaware (unless it becomes, or any successor Issuer hereunder is or becomes,
organized under the laws of any other State or of the United States of America,
in which case the Issuer shall keep in full effect its existence, rights and
franchises under the laws of such other jurisdiction) and shall obtain and
preserve its qualification to do business in each jurisdiction in which such
qualification is or shall be necessary to protect the validity and
enforceability of this CARAT Indenture, the CARAT 2007-SN1 Notes, the Collateral
and each other instrument or agreement included in the CARAT Trust Estate.
Section 3.5 Protection of CARAT Trust Estate; Acknowledgment of Pledge.
(a) The Issuer shall from time to time execute and deliver all such
supplements and amendments hereto and authorize or execute, as applicable, and
deliver all such financing statements, continuation statements, instruments of
further assurance and other instruments, and shall take such other action
necessary or advisable to:
(i) maintain or preserve the Lien (and the priority thereof) of
this CARAT Indenture or carry out more effectively the purposes hereof,
including by making the necessary filings of financing statements or amendments
thereto within 60 days after the occurrence of any of the following and by
promptly notifying the CARAT Indenture Trustee of any such filings: (A) any
change in the Issuer's true legal name or any of its trade names, (B) any change
in the location of the Issuer's jurisdiction of organization, (C) any merger or
consolidation or other change in the Issuer's identity or organizational
structure or jurisdiction of organization or jurisdiction in which the Issuer is
located for purposes of the UCC and (D) any other change or occurrence that
would make any financing statement or amendment thereto seriously misleading
within the meaning of the UCC.
(ii) perfect, publish notice of or protect the validity of any
Grant made or to be made by this CARAT Indenture and the priority thereof;
(iii) enforce the rights of the CARAT Indenture Trustee and the
CARAT 2007-SN1 Noteholders in any of the Collateral; or
(iv) preserve and defend title to the CARAT Trust Estate and the
rights of the CARAT Indenture Trustee and the Secured Parties in such CARAT
Trust Estate against the claims of all persons and parties,
and the Issuer hereby designates the CARAT Indenture Trustee its agent and
attorney-in-fact to authorize and/or execute any financing statement,
continuation statement or other instrument required by the CARAT Indenture
Trustee pursuant to this Section 3.5.
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(b) The Issuer hereby authorizes the CARAT Indenture Trustee to file
all financing statements, continuation statements or other instruments naming
the Issuer as debtor that are necessary or advisable to perfect, make effective
or continue the Lien of this CARAT Indenture, and authorizes the CARAT Indenture
Trustee to take any such action without its signature.
Section 3.6 Opinions as to CARAT Trust Estate.
(a) On the Series 2007-SN1 Closing Date, the Issuer shall furnish to
the CARAT Indenture Trustee an Opinion of Counsel either stating that, in the
opinion of such counsel, such action has been taken with respect to the
recording and filing of this CARAT Indenture, any indentures supplemental hereto
and any other requisite documents, and with respect to the authorization,
execution and filing of any financing statements and continuation statements as
are necessary to perfect and make effective the Lien of this CARAT Indenture and
reciting the details of such action, or stating that, in the opinion of such
counsel, no such action is necessary to make such Lien effective.
(b) On or before March 15 in each calendar year, beginning March 15,
2007, the Issuer shall furnish to the CARAT Indenture Trustee an Opinion of
Counsel either stating that, in the opinion of such counsel, such action has
been taken with respect to the recording, filing, re-recording and refiling of
this CARAT Indenture, any indentures supplemental hereto and any other requisite
documents and with respect to the authorization, execution and filing of any
financing statements and continuation statements as is necessary to maintain the
Lien created by this CARAT Indenture and reciting the details of such action or
stating that in the opinion of such counsel no such action is necessary to
maintain the Lien created by this CARAT Indenture. Such Opinion of Counsel shall
also describe the recording, filing, re-recording and refiling of this CARAT
Indenture, any indentures supplemental hereto and any other requisite documents
and the authorization, execution and filing of any financing statements and
continuation statements that will, in the opinion of such counsel, be required
to maintain the Lien of this CARAT Indenture until March 15 in the following
calendar year.
Section 3.7 Performance of Obligations; Administration of COLT 2007-SN1
Secured Notes.
(a) The Issuer shall not take any action and shall use all reasonable
efforts not to permit any action to be taken by others that would release any
Person from any of such Person's material covenants or obligations under any
instrument or agreement included in the CARAT Trust Estate or that would result
in the amendment, hypothecation, subordination, termination or discharge of, or
impair the validity or effectiveness of, any such instrument or agreement,
except as otherwise expressly provided in this CARAT Indenture, the Trust Sale
and Administration Agreement, the Pooling and Administration Agreement or such
other instrument or agreement.
(b) The Issuer may contract with other Persons to assist it in
performing its duties under this CARAT Indenture, and any performance of such
duties by a Person identified to the CARAT Indenture Trustee in the CARAT Basic
Documents or an Officer's Certificate of the Issuer shall be deemed to be action
taken by the Issuer. Initially, the Issuer has contracted
17
with the Trust Administrator to assist the Issuer in performing its duties under
this CARAT Indenture.
(c) The Issuer shall punctually perform and observe all of its
obligations and agreements contained in this CARAT Indenture, the other CARAT
Basic Documents and in the instruments and agreements included in the CARAT
Trust Estate, including filing or causing to be filed all UCC financing
statements and continuation statements required to be filed by the terms of this
CARAT Indenture, the Trust Sale and Administration Agreement and the Pooling and
Administration Agreement in accordance with and within the time periods provided
for herein and therein.
(d) If the Issuer shall have knowledge of the occurrence of a Trust
Administrator Default under the Trust Sale and Administration Agreement, the
Issuer shall promptly notify the CARAT Indenture Trustee and the Rating Agencies
thereof and shall specify in such notice the response or action, if any, the
Issuer has taken or is taking with respect to such default. If a Trust
Administrator Default shall arise from the failure of the Trust Administrator to
perform any of its duties or obligations under this CARAT Indenture, the Trust
Sale and Administration Agreement or the Pooling and Administration Agreement
with respect to the COLT 2007-SN1 Secured Notes, the Issuer and the CARAT
Indenture Trustee shall take all reasonable steps available to them pursuant to
this CARAT Indenture, the Trust Sale and Administration Agreement and the
Pooling and Administration Agreement to remedy such failure.
(e) Without derogating from the absolute nature of the assignment
granted to the CARAT Indenture Trustee under this CARAT Indenture or the rights
of the CARAT Indenture Trustee hereunder, the Issuer agrees that it shall not,
without the prior written consent of the CARAT Indenture Trustee or the Holders
of at least a majority in Outstanding Amount of the Controlling Class, as
applicable in accordance with the terms of this CARAT Indenture, amend, modify,
waive, supplement, terminate or surrender, or agree to any amendment,
modification, supplement, termination, waiver or surrender of, the terms of any
Collateral or any of the CARAT Basic Documents, or waive timely performance or
observance by the Trust Administrator or the Seller under the Trust Sale and
Administration Agreement or the Pooling and Administration Agreement, or GMAC
under the Pooling and Administration Agreement.
Section 3.8 Negative Covenants. So long as any CARAT 2007-SN1 Notes are
Outstanding, the Issuer shall not:
(a) sell, transfer, exchange or otherwise dispose of any of the
properties or assets of the Issuer, except the Issuer may cause the Trust
Administrator to (i) sell or otherwise dispose of Warranty Secured Notes and
Administrative Secured Notes, (ii) make cash payments out of the Designated
Accounts and the Certificate Distribution Account and (iii) take other actions,
in each case as permitted by the CARAT Basic Documents;
(b) claim any credit on, or make any deduction from the principal or
interest payable in respect of the CARAT 2007-SN1 Notes (other than amounts
properly withheld from such payments under the Code or applicable State law) or
assert any claim against any present or
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former CARAT 2007-SN1 Noteholder by reason of the payment of any taxes levied or
assessed upon any part of the CARAT Trust Estate;
(c) voluntarily commence any insolvency, readjustment of debt,
marshaling of assets and liabilities or other proceeding, or apply for an order
by a court or agency or supervisory authority for the winding-up or liquidation
of its affairs or any other event specified in Section 5.1(f); or
(d) either (i) permit the validity or effectiveness of this CARAT
Indenture or any other CARAT Basic Document to be impaired, or permit the Lien
of this CARAT Indenture to be amended, hypothecated, subordinated, terminated or
discharged, or permit any Person to be released from any covenants or
obligations with respect to the CARAT 2007-SN1 Notes under this CARAT Indenture
except as may be expressly permitted hereby, (ii) permit any Lien (other than
the Lien of this CARAT Indenture) to be created on or extend to or otherwise
arise upon or burden the CARAT Trust Estate or any part thereof or any interest
therein or the proceeds thereof (other than tax liens and any other Liens that
arise by operation of law, in each case on a Vehicle and arising solely as a
result of an action or omission of the related Lessee), or (iii) permit the Lien
of this CARAT Indenture not to constitute a valid first priority perfected
security interest in the CARAT Trust Estate (other than tax liens and any other
Liens that arise by operation of law, in each case on a Vehicle and arising
solely as a result of an action or omission of the related Lessee).
Section 3.9 Annual Statement as to Compliance.
The Issuer shall deliver to the CARAT Indenture Trustee on or before March
15 of each year, beginning March 15, 2008, an Officer's Certificate signed by an
Authorized Officer, dated as of December 31 of the immediately preceding year,
in each case stating that:
(a) a review of the activities of the Issuer during the preceding
12-month period (or, with respect to the first such Officer's Certificate, such
period as shall have elapsed since the Series 2007-SN1 Closing Date) and of
performance under this CARAT Indenture has been made under such Authorized
Officer's supervision; and
(b) to the best of such Authorized Officer's knowledge, based on such
review, the Issuer has fulfilled all of its obligations under this CARAT
Indenture throughout such period, or, if there has been a default in the
fulfillment of any such obligation, specifying each such default known to such
Authorized Officer and the nature and status thereof. A copy of such certificate
may be obtained by any CARAT 2007-SN1 Noteholder by a request in writing to the
Issuer addressed to the Corporate Trust Office of the CARAT Indenture Trustee.
Section 3.10 Consolidation, Merger, etc., of Issuer; Disposition of Trust
Assets.
(a) The Issuer shall not consolidate or merge with or into any other
Person, unless:
(i) the Person (if other than the Issuer) formed by or surviving
such consolidation or merger shall be a Person organized and existing under the
laws of the United States of America, or any State and shall expressly assume,
by an indenture supplemental hereto,
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executed and delivered to the CARAT Indenture Trustee, in form satisfactory to
the CARAT Indenture Trustee, the due and timely payment of the principal of and
interest on all CARAT 2007-SN1 Notes and the performance or observance of every
agreement and covenant of this CARAT Indenture on the part of the Issuer to be
performed or observed, all as provided herein;
(ii) immediately after giving effect to such merger or
consolidation, no Default or CARAT Event of Default shall have occurred and be
continuing;
(iii) the Rating Agency Condition shall have been satisfied with
respect to such transaction and such Person;
(iv) any action as is necessary to maintain the Lien created by
this CARAT Indenture shall have been taken; and
(v) the Issuer shall have delivered to the CARAT Indenture
Trustee an Officer's Certificate and an Opinion of Counsel addressed to the
Issuer each stating:
(A) that such consolidation or merger and such supplemental
indenture comply with this Section 3.10;
(B) that such consolidation or merger and such supplemental
indenture shall have no material adverse tax consequence to the Issuer or any
Financial Party; and
(C) that all conditions precedent herein provided for in
this Section 3.10 have been complied with, which shall include any filing
required by the Exchange Act.
(b) Except as otherwise expressly permitted by this CARAT Indenture or
the other CARAT Basic Documents, the Issuer shall not sell, convey, exchange,
transfer or otherwise dispose of any of its properties or assets, including
those included in the CARAT Trust Estate, to any Person, unless:
(i) the Person that acquires such properties or assets of the
Issuer (1) shall be a United States citizen or a Person organized and existing
under the laws of the United States of America or any State and (2) by an
indenture supplemental hereto, executed and delivered to the CARAT Indenture
Trustee, in form satisfactory to the CARAT Indenture Trustee:
(A) expressly assumes the due and punctual payment of the
principal of and interest on all CARAT 2007-SN1 Notes and the performance or
observance of every agreement and covenant of this CARAT Indenture on the part
of the Issuer to be performed or observed, all as provided herein or therein;
(B) expressly agrees that all right, title and interest so
sold, conveyed, exchanged, transferred or otherwise disposed of shall be subject
and subordinate to the rights of the Secured Parties; and
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(C) unless otherwise provided in such supplemental
indenture, expressly agrees to indemnify, defend and hold harmless the Issuer
against and from any loss, liability or expense arising under or related to this
CARAT Indenture and the CARAT 2007-SN1 Notes;
(D) expressly agrees that such Person (or if a group of
Persons, then one specified Person) shall make all filings with the Commission
(and any other appropriate Person) required by the Exchange Act in connection
with the CARAT 2007-SN7 Notes;
(ii) immediately after giving effect to such transaction, no
Default or CARAT Event of Default shall have occurred and be continuing;
(iii) the Rating Agency Condition shall have been satisfied with
respect to such transaction and such Person;
(iv) any action as is necessary to maintain the Lien created by
this CARAT Indenture shall have been taken; and
(v) the Issuer shall have delivered to the CARAT Indenture
Trustee an Officer's Certificate and an Opinion of Counsel addressed to the
Issuer, each stating that:
(A) such sale, conveyance, exchange, transfer or disposition
and such supplemental indenture comply with this Section 3.10;
(B) such sale, conveyance, exchange, transfer or disposition
and such supplemental indenture have no material adverse tax consequence to the
Trust or to any Financial Parties; and
(C) that all conditions precedent herein provided for in
this Section 3.10 have been complied with, which shall include any filing
required by the Exchange Act.
Section 3.11 Successor or Transferee.
(a) Upon any consolidation or merger of the Issuer in accordance with
Section 3.10(a), the Person formed by or surviving such consolidation or merger
(if other than the Issuer) shall succeed to, and be substituted for, and may
exercise every right and power of, the Issuer under this CARAT Indenture and the
other CARAT Basic Documents with the same effect as if such Person had been
named as the Issuer herein.
(b) Upon a conveyance or transfer of substantially all the assets and
properties of the Issuer pursuant to Section 3.10(b), the Issuer shall be
released from every covenant and agreement of this CARAT Indenture and the other
CARAT Basic Documents to be observed or performed on the part of the Issuer with
respect to the CARAT 2007-SN1 Notes immediately upon the delivery of written
notice to the CARAT Indenture Trustee from the Person acquiring such assets and
properties stating that the Issuer is to be so released.
21
Section 3.12 No Other Business. The Issuer shall not engage in any business
or activity other than acquiring, holding, pledging and managing the Collateral
and the proceeds therefrom in the manner contemplated by the CARAT Basic
Documents, issuing the CARAT 2007-SN1 Notes and the CARAT 2007-SN1 Certificates,
making payments on the CARAT 2007-SN1 Notes and the CARAT 2007-SN1 Certificates
and such other activities that are necessary, suitable or convenient to
accomplish the foregoing or are incidental thereto, as set forth in Section 2.3
of the Trust Agreement.
Section 3.13 No Borrowing. The Issuer shall not issue, incur, assume,
guarantee or otherwise become liable, directly or indirectly, for any
indebtedness for money borrowed other than indebtedness for money borrowed in
respect of the CARAT 2007-SN1 Notes or otherwise in accordance with the CARAT
Basic Documents.
Section 3.14 Guarantees, Loans, Advances and Other Liabilities. Except as
contemplated by this CARAT Indenture or the other CARAT Basic Documents, the
Issuer shall not make any loan or advance of credit to, or guarantee (directly
or indirectly or by an instrument having the effect of assuring another's
payment or performance on any obligation or capability of so doing or
otherwise), endorse or otherwise become contingently liable, directly or
indirectly, in connection with the obligations, stocks or dividends of, or own,
purchase, repurchase or acquire (or agree contingently to do so) any stock,
obligations, assets or securities of, or any other interest in, or make any
capital contribution to, any other Person.
Section 3.15 Trust Administrator's Obligations. The Issuer shall use its
best efforts to cause the Trust Administrator to comply with its obligations
under Section 3.07 of the Pooling and Administration Agreement and Sections 4.01
and 4.02 of the Trust Sale and Administration Agreement.
Section 3.16 Capital Expenditures. The Issuer shall not make any
expenditure (whether by long-term or operating lease or otherwise) for capital
assets (either real, personal or intangible property) other than the purchase of
the COLT 2007-SN1 Secured Notes and other property and rights from the Seller
pursuant to the Trust Sale and Administration Agreement.
Section 3.17 Restricted Payments. Except for payments of principal or
interest on or redemption of the CARAT 2007-SN1 Notes, so long as any CARAT
2007-SN1 Notes are Outstanding, the Issuer shall not, directly or indirectly:
(a) pay any dividend or make any distribution (by reduction of capital
or otherwise), whether in cash, property, securities or a combination thereof,
to the CARAT Owner Trustee or any owner of a beneficial interest in the Issuer
or otherwise, in each case with respect to any ownership or equity interest or
similar security in or of the Issuer or to the Trust Administrator;
(b) redeem, purchase, retire or otherwise acquire for value any such
ownership or equity interest or similar security; or
(c) set aside or otherwise segregate any amounts for any such purpose;
22
provided, however, that the Issuer may make, or cause to be made, distributions
to the Trust Administrator, the Seller, the CARAT Indenture Trustee, the CARAT
Owner Trustee, and the Financial Parties as permitted by, and to the extent
funds are available for such purpose under, the Trust Sale and Administration
Agreement, the Trust Agreement or the other CARAT Basic Documents. The Issuer
shall not, directly or indirectly, make payments to or distributions from the
CARAT Collection Account except in accordance with the CARAT Basic Documents.
Section 3.18 Notice of Events of Default. The Issuer agrees to give the
CARAT Indenture Trustee and the Rating Agencies prompt written notice of each
CARAT Event of Default, COLT Event of Default, each Trust Administrator Default,
each default on the part of the Seller or the Trust Administrator of its
respective obligations under the Trust Sale and Administration Agreement and
each default on the part of GMAC or the Trust Administrator of its respective
obligations under the Pooling and Administration Agreement.
Section 3.19 Further Instruments and Acts. Upon request of the CARAT
Indenture Trustee, the Issuer shall execute and deliver such further instruments
and do such further acts as may be reasonably necessary or proper to carry out
more effectively the purpose of this CARAT Indenture.
Section 3.20 CARAT Indenture Trustee's Assignment of Administrative Secured
Notes and Warranty Secured Notes. Upon receipt of the Administrative Purchase
Payment or the Warranty Payment with respect to an Administrative Secured Note
or a Warranty Secured Note, as the case may be, the CARAT Indenture Trustee
shall assign, without recourse, representation or warranty, to the Trust
Administrator or the Warranty Purchaser, as the case may be, all the CARAT
Indenture Trustee's right, title and interest in and to such repurchased COLT
2007-SN1 Secured Note; the collateral therefor and the related rights assigned
thereunder; such assignment being an assignment outright and not for security;
and the Trust Administrator or the Warranty Purchaser, as applicable, shall
thereupon own such COLT 2007-SN1 Secured Note, and all such security and
documents, free of any further obligation to the CARAT Indenture Trustee, the
CARAT 2007-SN1 Noteholders or the CARAT 2007-SN1 Certificateholders with respect
thereto. If in any enforcement suit or legal proceeding it is held that the
Trust Administrator may not enforce a COLT 2007-SN1 Secured Note on the ground
that it is not a real party in interest or a holder entitled to enforce the COLT
2007-SN1 Secured Note, the CARAT Indenture Trustee shall, at the Trust
Administrator's expense, take such steps as the Trust Administrator requests in
writing and deems necessary to enforce the COLT 2007-SN1 Secured Note, including
bringing suit in the CARAT Indenture Trustee's name or the names of the CARAT
2007-SN1 Noteholders or, pursuant to Section 4.4, the CARAT 2007-SN1
Certificateholders.
Section 3.21 Representations and Warranties by the Issuer to the CARAT
Indenture Trustee. The Issuer hereby represents and warrants to the CARAT
Indenture Trustee as follows as of the Closing Date:
(a) Good Title. No COLT 2007-SN1 Secured Note has been sold,
transferred, assigned or pledged by the Issuer to any Person other than the
CARAT Indenture Trustee; immediately prior to the conveyance of the COLT
2007-SN1 Secured Notes pursuant to this CARAT Indenture, the Issuer had good and
marketable title thereto, free of any Lien (other than tax liens and any other
Liens that attach by operation of law); and, upon execution and delivery
23
of this CARAT Indenture by the Issuer, the CARAT Indenture Trustee shall have
all of the right, title and interest of the Issuer in, to and under the COLT
2007-SN1 Secured Notes, the unpaid indebtedness evidenced thereby and the
collateral security therefor, free of any Lien (other than tax liens and any
other Liens that attach by operation of law). The Issuer has caused COLT to have
the COLT 2007-SN1 Secured Notes registered in the name of the CARAT Indenture
Trustee.
(b) All Filings Made. All filings (including UCC filings) necessary in
any jurisdiction to give the CARAT Indenture Trustee a first priority perfected
security interest in the COLT 2007-SN1 Secured Notes shall have been made.
ARTICLE IV
SATISFACTION AND DISCHARGE
Section 4.1 Satisfaction and Discharge of CARAT Indenture. This CARAT
Indenture shall cease to be of further effect with respect to the CARAT 2007-SN1
Notes except as to: (i) rights of registration of transfer and exchange; (ii)
substitution of mutilated, destroyed, lost or stolen CARAT 2007-SN1 Notes; (iii)
rights of CARAT 2007-SN1 Noteholders to receive payments of principal thereof
and interest thereon; (iv) Sections 3.3, 3.4, 3.5, 3.8, 3.10, 3.12, 3.13, 3.18,
3.20 and 11.16; (v) the rights, obligations and immunities of the CARAT
Indenture Trustee hereunder (including the rights of the CARAT Indenture Trustee
under Section 6.7 and the obligations of the CARAT Indenture Trustee under
Sections 4.2 and 4.4); and (vi) the rights of CARAT 2007-SN1 Noteholders as
beneficiaries hereof with respect to the property so deposited with the CARAT
Indenture Trustee payable to all or any of them, and the CARAT Indenture
Trustee, on demand of and at the expense of the Issuer, shall execute proper
instruments acknowledging satisfaction and discharge of this CARAT Indenture
with respect to the CARAT 2007-SN1 Notes, if:
(a) either:
(i) all CARAT 2007-SN1 Notes theretofore authenticated and
delivered (other than (A) CARAT 2007-SN1 Notes that have been destroyed, lost or
stolen and that have been replaced or paid as provided in Section 2.5 and (B)
CARAT 2007-SN1 Notes for whose payment money has theretofore been deposited in
trust or segregated and held in trust by the Issuer and thereafter repaid to the
Issuer or discharged from such trust, as provided in Section 3.3) have been
delivered to the CARAT Indenture Trustee for cancellation; or
(ii) all CARAT 2007-SN1 Notes not theretofore delivered to the
CARAT Indenture Trustee for cancellation:
(A) have become due and payable,
(B) will be due and payable on their respective Final
Scheduled Distribution Dates within one year, or
(C) are to be called for redemption within one year under
arrangements satisfactory to the CARAT Indenture Trustee for the giving of
notice of
24
redemption by the CARAT Indenture Trustee in the name, and at the expense, of
the Issuer or such CARAT 2007-SN1 Notes have been redeemed in accordance with
Section 10.1,
and the Issuer, in the case of clause (A), (B) or (C) of subsection 4.1(a)(ii),
has irrevocably deposited or caused to be irrevocably deposited with the CARAT
Indenture Trustee cash or direct obligations of or obligations guaranteed by the
United States of America (which will mature prior to the date such amounts are
payable), in trust for such purpose, in an amount sufficient to pay and
discharge the entire unpaid principal and accrued interest on such CARAT
2007-SN1 Notes not theretofore delivered to the CARAT Indenture Trustee for
cancellation when due on the Final Scheduled Distribution Date for such CARAT
2007-SN1 Notes or the Redemption Date for such CARAT 2007-SN1 Notes (if such
CARAT 2007-SN1 Notes have been called for redemption pursuant to Section 10.1),
as the case may be;
(b) the Issuer has paid or caused to be paid all other sums payable
hereunder or under any Third Party Instrument by the Issuer; and
(c) the Issuer has delivered to the CARAT Indenture Trustee an
Officer's Certificate of the Issuer, an Opinion of Counsel and (if required by
the TIA or the CARAT Indenture Trustee) an Independent Certificate from a firm
of certified public accountants, each meeting the applicable requirements of
Section 11.1(a) and each stating that all conditions precedent herein provided
for relating to the satisfaction and discharge of this CARAT Indenture have been
complied with.
Section 4.2 Application of Trust Money. All monies deposited with the CARAT
Indenture Trustee pursuant to Section 4.1 shall be held in trust and applied by
it, in accordance with the provisions of the CARAT 2007-SN1 Notes and this CARAT
Indenture, to the payment, either directly or through any Paying Agent, as the
CARAT Indenture Trustee may determine, to the Holders of the particular CARAT
2007-SN1 Notes for the payment or redemption of which such monies have been
deposited with the CARAT Indenture Trustee, of all sums due and to become due
thereon for principal and interest and to payment to any other Secured Party or
any holder of a Third Party Instrument of all sums, if any, due or to become due
to any other Secured Party or any holder of a Third Party Instrument under and
in accordance with this CARAT Indenture; but such monies need not be segregated
from other funds except to the extent required herein or in the Trust Sale and
Administration Agreement, or as required by law.
Section 4.3 Repayment of Monies Held by Paying Agent. In connection with
the satisfaction and discharge of this CARAT Indenture with respect to the CARAT
2007-SN1 Notes, all monies then held by any Paying Agent other than the CARAT
Indenture Trustee under the provisions of this CARAT Indenture with respect to
such CARAT 2007-SN1 Notes shall, upon demand of the Issuer, be paid to the CARAT
Indenture Trustee to be held and applied according to Section 3.3 and thereupon
such Paying Agent shall be released from all further liability with respect to
such monies.
Section 4.4 Duration of Position of CARAT Indenture Trustee.
Notwithstanding the payment in full of all principal and interest due to the
CARAT 2007-SN1 Noteholders, under the terms of the CARAT 2007-SN1 Notes and the
cancellation of the CARAT 2007-SN1 Notes, the CARAT Indenture Trustee shall
continue to act in the capacity as CARAT Indenture Trustee
25
hereunder for the benefit of the CARAT 2007-SN1 Certificateholders, for purposes
of compliance with, and the CARAT Indenture Trustee shall comply with its
obligations under, Sections 5.01(a), 7.02 and 7.03 of the Trust Sale and
Administration Agreement, as appropriate, until such time as all distributions
due to the CARAT 2007-SN1 Certificateholders have been paid in full; and in such
capacity, the CARAT Indenture Trustee shall have the rights, benefits and
immunities set forth in Article VI.
ARTICLE V
DEFAULT AND REMEDIES
Section 5.1 Events of Default. For the purposes of this CARAT Indenture,
"CARAT Event of Default" wherever used herein, means any one of the following
events:
(a) failure to pay the full Noteholders' Interest Distributable Amount
on the Controlling Class on any Distribution Date, and such default shall
continue unremedied for a period of five days; or
(b) except as set forth in Section 5.1(c), failure to pay any
instalment of the principal of any CARAT 2007-SN1 Note as and when the same
becomes due and payable, and such default continues unremedied for a period of
30 days after there shall have been given, by registered or certified mail, to
the Seller (or the Trust Administrator, as applicable) by the CARAT Indenture
Trustee or to the Seller (or the Trust Administrator, as applicable) and the
CARAT Indenture Trustee by the Holders of not less than 25% of the Outstanding
Amount of the Controlling Class, a written notice specifying such default and
demanding that it be remedied and stating that such notice is a "Notice of
Default" hereunder; or
(c) failure to pay in full the outstanding principal balance of any
class of CARAT 2007-SN1 Notes by the Final Scheduled Distribution Date for such
class; or
(d) default in the observance or performance in any material respect
of any covenant or agreement of the Issuer made in this CARAT Indenture (other
than a covenant or agreement, a default in the observance or performance of
which is elsewhere specifically dealt with in this Section 5.1) which failure
materially and adversely affects the rights of the CARAT 2007-SN1 Noteholders,
and such default shall continue or not be cured, for a period of 30 days after
there shall have been given, by registered or certified mail, to the Seller (or
the Trust Administrator, as applicable) by the CARAT Indenture Trustee or to the
Seller (or the Trust Administrator, as applicable) and the CARAT Indenture
Trustee by the Holders of at least 25% of the Outstanding Amount of the
Controlling Class, a written notice specifying such default, demanding that it
be remedied and stating that such notice is a "Notice of Default" hereunder; or
(e) the filing of a decree or order for relief by a court having
jurisdiction in the premises in respect of the Issuer or any substantial part of
the CARAT Trust Estate in an involuntary case under any applicable federal or
State bankruptcy, insolvency or other similar law now or hereafter in effect, or
appointing a receiver, liquidator, assignee, custodian, trustee, sequestrator or
similar official of the Issuer or for any substantial part of the CARAT Trust
Estate, or ordering the winding-up or liquidation of the Issuer's affairs, and
such decree or order shall remain unstayed and in effect for a period of 90
consecutive days; or
26
(f) the commencement by the Issuer of a voluntary case under any
applicable federal or State bankruptcy, insolvency or other similar law now or
hereafter in effect, or the consent by the Issuer to the entry of an order for
relief in an involuntary case under any such law, or the consent by the Issuer
to the appointment or taking possession by a receiver, liquidator, assignee,
custodian, trustee, sequestrator or similar official of the Issuer or for any
substantial part of the CARAT Trust Estate, or the making by the Issuer of any
general assignment for the benefit of creditors, or the failure by the Issuer
generally to pay its debts as such debts become due, or the taking of action by
the Issuer in furtherance of any of the foregoing.
The Issuer shall deliver to the CARAT Indenture Trustee within five
Business Days after learning of the occurrence thereof, written notice in the
form of an Officer's Certificate of any event which with the giving of notice
and the lapse of time would become a CARAT Event of Default under Section
5.1(d), its status and what action the Issuer is taking or proposes to take with
respect thereto.
Section 5.2 Acceleration of Maturity; Rescission and Annulment.
(a) If a CARAT Event of Default should occur and be continuing, then
and in every such case, unless the principal amount of the CARAT 2007-SN1 Notes
shall have already become due and payable, either the CARAT Indenture Trustee or
the Holders of CARAT 2007-SN1 Notes representing not less than a majority of the
Outstanding Amount of the Controlling Class may declare all the CARAT 2007-SN1
Notes to be immediately due and payable, by a notice in writing to the Issuer
(and to the CARAT Indenture Trustee if given by the CARAT 2007-SN1 Noteholders)
setting forth the Event or Events of Default, and upon any such declaration the
unpaid principal amount of such CARAT 2007-SN1 Notes, together with accrued and
unpaid interest thereon through the date of acceleration, shall become
immediately due and payable.
(b) At any time after such declaration of acceleration of maturity of
the CARAT 2007-SN1 Notes has been made and before a judgment or decree for
payment of the money due thereunder has been obtained by the CARAT Indenture
Trustee as hereinafter provided in this Article V, the Holders of CARAT 2007-SN1
Notes representing a majority of the Outstanding Amount of the Controlling
Class, by written notice to the Issuer and the CARAT Indenture Trustee, may
waive all Defaults set forth in the notice delivered pursuant to Section 5.2(a),
and rescind and annul such declaration and its consequences; provided, however,
that no such rescission and annulment shall extend to or affect any other
Default or impair any right consequent thereto; and provided, further, that if
the CARAT Indenture Trustee shall have proceeded to enforce any right under this
CARAT Indenture and such Proceedings shall have been discontinued or abandoned
because of such rescission and annulment or for any other reason, or such
Proceedings shall have been determined adversely to the CARAT Indenture Trustee,
then and in every such case, the CARAT Indenture Trustee, the Issuer and the
CARAT 2007-SN1 Noteholders, as the case may be, shall be restored respectively
to their former positions and rights hereunder, and all rights, remedies and
powers of the CARAT Indenture Trustee, the Issuer and the CARAT 2007-SN1
Noteholders, as the case may be, shall continue as though no such Proceedings
had been commenced.
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Section 5.3 Collection of Indebtedness and Suits for Enforcement by CARAT
Indenture Trustee.
(a) The Issuer covenants that if a CARAT Event of Default occurs and
such CARAT Event of Default has not been waived pursuant to Section 5.12, the
Issuer shall, upon demand of the CARAT Indenture Trustee, pay to the CARAT
Indenture Trustee, for the ratable benefit of the CARAT 2007-SN1 Noteholders in
accordance with their respective outstanding principal amounts, the whole amount
then due and payable on such CARAT 2007-SN1 Notes for principal and interest,
with interest upon the overdue principal, at the rate borne by the CARAT
2007-SN1 Notes and in addition thereto such further amount as shall be
sufficient to cover the costs and expenses of collection, including the
reasonable compensation, expenses, disbursements and advances of the CARAT
Indenture Trustee and its agents and counsel.
(b) If the Issuer shall fail forthwith to pay such amounts upon such
demand, the CARAT Indenture Trustee, in its own name and as trustee of an
express trust, may institute a Proceeding for the collection of the sums so due
and unpaid, may prosecute such Proceeding to judgment or final decree, may
enforce the same against the Issuer or other obligor upon such CARAT 2007-SN1
Notes and may collect in the manner provided by law out of the property of the
Issuer or other obligor upon such CARAT 2007-SN1 Notes, wherever situated, the
monies adjudged or decreed to be payable.
(c) If a CARAT Event of Default occurs and is continuing, the CARAT
Indenture Trustee may, as more particularly provided in Section 5.4, in its
discretion, proceed to protect and enforce its rights and the rights of the
CARAT 2007-SN1 Noteholders, by such appropriate Proceedings as the CARAT
Indenture Trustee shall deem most effective to protect and enforce any such
rights, whether for the specific enforcement of any covenant or agreement in
this CARAT Indenture or in aid of the exercise of any power granted herein, or
to enforce any other proper remedy or legal or equitable right vested in the
CARAT Indenture Trustee by this CARAT Indenture or by applicable law.
(d) If there shall be pending, relative to the Issuer or any other
obligor upon the CARAT 2007-SN1 Notes or any Person having or claiming an
ownership interest in the CARAT Trust Estate, Proceedings under Title 11 of the
United States Code or any other applicable federal or State bankruptcy,
insolvency or other similar law, or if a receiver, assignee or trustee in
bankruptcy or reorganization, liquidator, sequestrator or similar official shall
have been appointed for or taken possession of the Issuer or its property or
such other obligor or Person, or in case of any other comparable judicial
Proceedings relative to the Issuer or other obligor upon the CARAT 2007-SN1
Notes, or to the creditors or property of the Issuer or such other obligor, the
CARAT Indenture Trustee, irrespective of whether the principal of any CARAT
2007-SN1 Notes shall then be due and payable as therein expressed or by
declaration or otherwise and irrespective of whether the CARAT Indenture Trustee
shall have made any demand pursuant to the provisions of this Section 5.3, shall
be entitled and empowered, by intervention in such Proceedings or otherwise:
(i) to file and prove a claim or claims for the whole amount of
principal and interest and all other amounts owing and unpaid in respect of the
CARAT 2007-SN1 Notes and to file such other papers or documents as may be
necessary or advisable in order
28
to have the claims of the CARAT Indenture Trustee (including any claim for
reasonable compensation to the CARAT Indenture Trustee and each predecessor
CARAT Indenture Trustee, and their respective agents, attorneys and counsel, and
for reimbursement of all expenses and liabilities incurred, and all advances
made, by the CARAT Indenture Trustee and each predecessor CARAT Indenture
Trustee, except as a result of negligence, fraud or bad faith) and of the CARAT
2007-SN1 Noteholders allowed in such Proceedings;
(ii) unless prohibited by applicable law and regulations, to vote
on behalf of the Holders of CARAT 2007-SN1 Notes in any election of a trustee, a
standby trustee or Person performing similar functions in any such Proceedings;
(iii) to collect and receive any monies or other property payable
or deliverable on any such claims and to distribute all amounts received with
respect to the claims of the CARAT 2007-SN1 Noteholders and of the CARAT
Indenture Trustee on their behalf; and
(iv) to file such proofs of claim and other papers or documents
as may be necessary or advisable in order to have the claims of the CARAT
Indenture Trustee or the Holders of CARAT 2007-SN1 Notes allowed in any judicial
proceedings relative to the Issuer, its creditors and its property;
and any trustee, receiver, liquidator, custodian or other similar official in
any such Proceeding is hereby authorized by each of such CARAT 2007-SN1
Noteholders to make payments to the CARAT Indenture Trustee for application in
accordance with the priorities set forth in the CARAT Basic Documents, and, if
the CARAT Indenture Trustee shall consent to the making of payments directly to
such CARAT 2007-SN1 Noteholders, to pay to the CARAT Indenture Trustee such
amounts as shall be sufficient to cover reasonable compensation to the CARAT
Indenture Trustee, each predecessor CARAT Indenture Trustee and their respective
agents, attorneys and counsel, and all other expenses and liabilities incurred,
and all advances made, by the CARAT Indenture Trustee and each predecessor CARAT
Indenture Trustee except as a result of negligence, fraud or bad faith.
(e) Nothing herein contained shall be deemed to authorize the CARAT
Indenture Trustee to authorize or consent to or vote for or accept or adopt on
behalf of any CARAT 2007-SN1 Noteholder any plan of reorganization, arrangement,
adjustment or composition affecting the CARAT 2007-SN1 Notes or the rights of
any Holder thereof or to authorize the CARAT Indenture Trustee to vote in
respect of the claim of any CARAT 2007-SN1 Noteholder in any such proceeding
except, as aforesaid, to vote for the election of a trustee in bankruptcy or
similar Person.
(f) All rights of action and of asserting claims under this CARAT
Indenture, or under any of the CARAT 2007-SN1 Notes, may be enforced by the
CARAT Indenture Trustee without the possession of any of the CARAT 2007-SN1
Notes or the production thereof in any trial or other Proceedings relative
thereto, and any such Proceedings instituted by the CARAT Indenture Trustee
shall be brought in its own name as trustee of an express trust, and any
recovery of judgment, subject to the payment of the expenses, disbursements and
compensation of the CARAT Indenture Trustee, each predecessor CARAT Indenture
Trustee
29
and their respective agents and attorneys, shall be for the benefit of the
Secured Parties in accordance with the priorities set forth in the CARAT Basic
Documents.
(g) In any Proceedings brought by the CARAT Indenture Trustee (and
also any Proceedings involving the interpretation of any provision of this CARAT
Indenture to which the CARAT Indenture Trustee shall be a party), the CARAT
Indenture Trustee shall be held to represent all the CARAT 2007-SN1 Noteholders,
and it shall not be necessary to make any CARAT 2007-SN1 Noteholder a party to
any such Proceedings.
(h) With respect to any claims for payments of reimbursement for
expenses, disbursement or compensation of any Person made of the Issuer pursuant
to this Section 5.3, where more than one Person has made such a claim, the
Issuer shall not reimburse any Person other than the CARAT Indenture Trustee for
such amounts if, prior to incurring such expenses, the Affected Parties
reasonably could have avoided such expense by coordinating their claims under
this CARAT Indenture with the CARAT Indenture Trustee.
Section 5.4 Remedies; Priorities.
(a) If a CARAT Event of Default shall have occurred and be continuing
and the CARAT 2007-SN1 Notes have been accelerated under Section 5.2(a), the
CARAT Indenture Trustee may do one or more of the following (subject to Section
5.3 and Section 5.5):
(i) institute Proceedings in its own name and as trustee of an
express trust for the collection of all amounts then due and payable on the
CARAT 2007-SN1 Notes or under this CARAT Indenture with respect thereto, whether
by declaration of acceleration or otherwise, enforce any judgment obtained, and
collect from the Issuer and any other obligor upon such CARAT 2007-SN1 Notes
monies adjudged due;
(ii) institute Proceedings from time to time for the complete or
partial foreclosure of this CARAT Indenture with respect to the CARAT Trust
Estate;
(iii) exercise any remedies of a secured party under the UCC and
take any other appropriate action to protect and enforce the rights and remedies
of the CARAT Indenture Trustee and the CARAT 2007-SN1 Noteholders; and
(iv) sell the CARAT Trust Estate or any portion thereof or rights
or interest therein, at one or more public or private sales called and conducted
in any manner permitted by law or elect to have the Issuer maintain possession
of the CARAT Trust Estate and continue to apply payments on the COLT 2007-SN1
Secured Notes as if there had been no declaration of acceleration; provided,
however, that the CARAT Indenture Trustee may not sell or otherwise liquidate
the CARAT Trust Estate following a CARAT Event of Default and acceleration of
the CARAT 2007-SN1 Notes, unless (i) (A) the Holders of all of the aggregate
Outstanding Amount of the CARAT 2007-SN1 Notes consent thereto or (B) the
proceeds of such sale or liquidation distributable to the CARAT 2007-SN1
Noteholders are sufficient to (x) discharge in full the principal of and the
accrued interest on the CARAT 2007-SN1 Notes, each at the date of such sale or
liquidation and (y) make all distributions from the CARAT Collection Account
described in Sections 8.01(b)(i) through (vi) of the Trust Sale and
Administration Agreement or (C) (x) there has been a CARAT Event of Default
under Section 5.1(a), (b) or (c)
30
or otherwise arising from a failure to make a required payment of principal on
any CARAT 2007-SN1 Notes, (y) the CARAT Indenture Trustee determines that the
CARAT Trust Estate will not continue to provide sufficient funds for the payment
of principal of and interest on the CARAT 2007-SN1 Notes as and when they would
have become due if the CARAT 2007-SN1 Notes had not been declared due and
payable, and (z) the CARAT Indenture Trustee obtains the consent of the Holders
of a majority of the aggregate Outstanding Amount of the Controlling Class and
(ii) 10 days' prior written notice of sale or liquidation has been given to the
Rating Agencies. In determining such sufficiency or insufficiency with respect
to clauses (B) and (C), the CARAT Indenture Trustee may, but need not, obtain
and rely upon an opinion of an Independent investment banking or accounting firm
of national reputation as to the feasibility of such proposed action and as to
the sufficiency of the CARAT Trust Estate for such purpose:
provided, however, that prior to the exercise of the right to sell all or any
portion of the CARAT Trust Estate as provided herein, the CARAT Indenture
Trustee shall provide a notice in writing to the Issuer (with a copy to the
Seller and the CARAT Owner Trustee) (the "CARAT Event of Default Sale Notice")
of its intention to sell all or any portion of the CARAT Trust Estate (the part
to be sold being the "Subject Estate"), and if the Subject Estate is less than
all of the CARAT Trust Estate, the portion of the CARAT Trust Estate to be sold.
The CARAT Indenture Trustee shall not consummate any sale until at least seven
Business Days after the CARAT Event of Default Sale Notice has been given to the
Issuer (with a copy to the Seller) (the "Authorization Date").
(b) If the CARAT Indenture Trustee collects any money or property
pursuant to this Article V, it shall pay out the money or property in the
following order:
FIRST: to the CARAT Indenture Trustee for amounts due under Section
6.7 and then to the CARAT Owner Trustee for amounts due to the CARAT
Owner Trustee (not including amounts due for payments to the CARAT
2007-SN1 Certificateholders) under the Trust Agreement or the Trust
Sale and Administration Agreement; and
SECOND: to the CARAT Collection Account, for distribution pursuant to
Sections 8.01(b) and (e) of the Trust Sale and Administration
Agreement.
Section 5.5 Optional Preservation of the CARAT Trust Estate. If the CARAT
2007-SN1 Notes have been declared to be due and payable under Section 5.2
following a CARAT Event of Default and such declaration and its consequences
have not been rescinded and annulled in accordance with Section 5.2(b), the
CARAT Indenture Trustee may, but need not elect to, take and maintain possession
of the CARAT Trust Estate. It is the desire of the parties hereto and the
Secured Parties that there be at all times sufficient funds for the payment of
the Secured Obligations to the Secured Parties and the CARAT Indenture Trustee
shall take such desire into account when determining whether or not to take and
maintain possession of the CARAT Trust Estate. In determining whether to take
and maintain possession of the CARAT Trust Estate, the CARAT Indenture Trustee
may, but need not, obtain and rely upon an opinion of an Independent investment
banking or accounting firm of national reputation as to the
31
feasibility of such proposed action and as to the sufficiency of the CARAT Trust
Estate for such purpose.
Section 5.6 Limitation of Suits. No Holder of any CARAT 2007-SN1 Note shall
have any right to institute any Proceeding with respect to this CARAT Indenture,
or for the appointment of a receiver or trustee, or for any other remedy
hereunder, unless:
(a) such Holder has previously given written notice to the CARAT
Indenture Trustee of a continuing CARAT Event of Default;
(b) the Holders of not less than 25% of the Outstanding Amount of the
Controlling Class have made written request to the CARAT Indenture Trustee to
institute such Proceeding in respect of such CARAT Event of Default in its own
name as CARAT Indenture Trustee hereunder;
(c) such Holder or Holders have offered to the CARAT Indenture Trustee
reasonable indemnity against the costs, expenses and liabilities to be incurred
in complying with such request;
(d) the CARAT Indenture Trustee for 60 days after its receipt of such
notice under Section 5.6(a) above, request under Section 5.6(b) above, and offer
of indemnity under Section 5.6(c) above has failed to institute such
Proceedings; and
(e) no direction inconsistent with such written request has been given
to the CARAT Indenture Trustee during such 60-day period by the Holders of a
majority of the Outstanding Amount of the Controlling Class;
it being understood and intended that no one or more Holders of CARAT 2007-SN1
Notes shall have any right in any manner whatever by virtue of, or by availing
of, any provision of this CARAT Indenture to affect, disturb or prejudice the
rights of any other Holders of CARAT 2007-SN1 Notes or to obtain or to seek to
obtain priority or preference over any other Holders of CARAT 2007-SN1 Notes or
to enforce any right under this CARAT Indenture, except in the manner herein
provided and for the equal, ratable (on the basis of the respective aggregate
amount of principal and interest, respectively, due and unpaid on the CARAT
2007-SN1 Notes held by each CARAT 2007-SN1 Noteholder) and common benefit of all
holders of CARAT 2007-SN1 Notes. For the protection and enforcement of the
provisions of this Section 5.6, each and every CARAT 2007-SN1 Noteholder shall
be entitled to such relief as can be given either at law or in equity.
If the CARAT Indenture Trustee shall receive conflicting or inconsistent
requests and indemnity from two or more groups of Holders of CARAT 2007-SN1
Notes, each representing less than a majority of the Outstanding Amount of the
Controlling Class, the CARAT Indenture Trustee shall take the action requested
by the group representing the higher percentage of the Outstanding Amount of the
Controlling Class, notwithstanding any other provisions of this CARAT Indenture.
Section 5.7 Unconditional Rights of CARAT 2007-SN1 Noteholders To Receive
Principal and Interest. Notwithstanding any other provisions in this CARAT
Indenture, the
32
Holder of any CARAT 2007-SN1 Note shall have the right, which is absolute and
unconditional, to receive payment of the principal of and interest, on such
CARAT 2007-SN1 Note on or after the respective due dates thereof expressed in
such CARAT 2007-SN1 Note or in this CARAT Indenture (or, in the case of
redemption, if applicable, on or after the Redemption Date) and to institute
suit for the enforcement of any such payment, and such right shall not be
impaired without the consent of such Holder.
Section 5.8 Restoration of Rights and Remedies. If the CARAT Indenture
Trustee or any CARAT 2007-SN1 Noteholder has instituted any Proceeding to
enforce any right or remedy under this CARAT Indenture and such Proceeding has
been discontinued or abandoned for any reason or has been determined adversely
to the CARAT Indenture Trustee or to such CARAT 2007-SN1 Noteholder, then and in
every such case the Issuer, the CARAT Indenture Trustee and the CARAT 2007-SN1
Noteholders shall, subject to any determination in such Proceeding, be restored
severally to their respective former positions hereunder, and thereafter all
rights and remedies of the CARAT Indenture Trustee and the CARAT 2007-SN1
Noteholders shall continue as though no such Proceeding had been instituted.
Section 5.9 Rights and Remedies Cumulative. No right or remedy herein
conferred upon or reserved to the CARAT Indenture Trustee or to the CARAT
2007-SN1 Noteholders is intended to be exclusive of any other right or remedy,
and every right and remedy shall, to the extent permitted by law, be cumulative
and in addition to every other right and remedy given hereunder or now or
hereafter existing at law or in equity or otherwise. The assertion or employment
of any right or remedy hereunder, or otherwise, shall not prevent the concurrent
assertion or employment of any other appropriate right or remedy.
Section 5.10 Delay or Omission Not a Waiver. No delay or omission of the
CARAT Indenture Trustee or any Holder of any CARAT 2007-SN1 Note to exercise any
right or remedy accruing upon any Default or CARAT Event of Default shall impair
any such right or remedy or constitute a waiver of any such Default or CARAT
Event of Default or an acquiescence therein. Every right and remedy given by
this Article V or by law to the CARAT Indenture Trustee or to the CARAT 2007-SN1
Noteholders may be exercised from time to time, and as often as may be deemed
expedient, by the CARAT Indenture Trustee or by the CARAT 2007-SN1 Noteholders,
as the case may be.
Section 5.11 Control by CARAT 2007-SN1 Noteholders. The Holders of a
majority of the Outstanding Amount of the Controlling Class shall, subject to
provision being made for indemnification against costs, expenses and liabilities
in a form satisfactory to the CARAT Indenture Trustee, have the right to direct
the time, method and place of conducting any Proceeding for any remedy available
to the CARAT Indenture Trustee with respect to the CARAT 2007-SN1 Notes or
exercising any trust or power conferred on the CARAT Indenture Trustee;
provided, however, that:
(a) such direction shall not be in conflict with any rule of law or
with this CARAT Indenture;
(b) subject to the express terms of Section 5.4, any direction to the
CARAT Indenture Trustee to sell or liquidate the CARAT Trust Estate shall be by
the Holders of CARAT
33
2007-SN1 Notes representing not less than 100% of the Outstanding Amount of the
CARAT 2007-SN1 Notes;
(c) if the conditions set forth in Section 5.5 have been satisfied and
the CARAT Indenture Trustee elects to retain the CARAT Trust Estate pursuant to
Section 5.5, then any direction to the CARAT Indenture Trustee by Holders of
CARAT 2007-SN1 Notes representing less than 100% of the Outstanding Amount of
the CARAT 2007-SN1 Notes to sell or liquidate the CARAT Trust Estate shall be of
no force and effect; and
(d) the Indenture Trustee may take any other action deemed proper by
the Indenture Trustee that is not inconsistent with such direction.
Section 5.12 Waiver of Past Defaults.
(a) Prior to the declaration of the acceleration of the maturity of
the CARAT 2007-SN1 Notes as provided in Section 5.2, the Holders of not less
than a majority of the Outstanding Amount of the Controlling Class may waive any
past Default or CARAT Event of Default and its consequences except a Default (i)
in the payment of principal of or interest on any of the CARAT 2007-SN1 Notes or
(ii) in respect of a covenant or provision hereof that cannot be modified or
amended without the consent of the Holder of each CARAT 2007-SN1 Note. In the
case of any such waiver, the Issuer, the CARAT Indenture Trustee and the CARAT
2007-SN1 Noteholders shall be restored to their respective former positions and
rights hereunder; but no such waiver shall extend to any subsequent or other
Default or impair any right consequent thereto.
(b) Upon any such waiver, such Default shall cease to exist and be
deemed to have been cured and not to have occurred, and any CARAT Event of
Default arising therefrom shall be deemed to have been cured and not to have
occurred, for every purpose of this CARAT Indenture; but no such waiver shall
extend to any subsequent or other Default or CARAT Event of Default or impair
any right consequent thereto.
Section 5.13 Undertaking for Costs. All parties to this CARAT Indenture
agree, and each Holder of any CARAT 2007-SN1 Note by such Holder's acceptance
thereof shall be deemed to have agreed, that any court may in its discretion
require, in any Proceeding for the enforcement of any right or remedy under this
CARAT Indenture, or in any Proceeding against the CARAT Indenture Trustee for
any action taken, suffered or omitted by it as Indenture Trustee, the filing by
any party litigant in such Proceeding of an undertaking to pay the costs of such
Proceeding, and that such court may in its discretion assess reasonable costs,
including reasonable attorneys' fees, against any party litigant in such
Proceeding, having due regard to the merits and good faith of the claims or
defenses made by such party litigant; but the provisions of this Section 5.13
shall not apply to:
(a) any Proceeding instituted by the CARAT Indenture Trustee;
(b) any Proceeding instituted by any CARAT 2007-SN1 Noteholder, or
group of CARAT 2007-SN1 Noteholders, in each case holding in the aggregate more
than 10% of the Outstanding Amount of the Controlling Class; or
34
(c) any Proceeding instituted by any CARAT 2007-SN1 Noteholder for the
enforcement of the payment of principal of or interest on any CARAT 2007-SN1
Note on or after the respective due dates expressed in such CARAT 2007-SN1 Note
and in this CARAT Indenture (or, in the case of redemption, on or after the
Redemption Date).
Section 5.14 Waiver of Stay or Extension Laws. The Issuer covenants (to the
extent that it may lawfully do so) that it shall not at any time insist upon, or
plead or in any manner whatsoever, claim or take the benefit or advantage of,
any stay or extension law wherever enacted, now or at any time hereafter in
force, that may affect the covenants or the performance of this CARAT Indenture.
The Issuer (to the extent that it may lawfully do so) hereby expressly waives
all benefit or advantage of any such law, and covenants that it shall not
hinder, delay or impede the execution of any power herein granted to the CARAT
Indenture Trustee, but shall suffer and permit the execution of every such power
as though no such law had been enacted.
Section 5.15 Action on CARAT 2007-SN1 Notes. The CARAT Indenture Trustee's
right to seek and recover judgment on the CARAT 2007-SN1 Notes or under this
CARAT Indenture shall not be affected by the seeking, obtaining or application
of any other relief under or with respect to this CARAT Indenture. Neither the
Lien of this CARAT Indenture nor any rights or remedies of the CARAT Indenture
Trustee or the CARAT 2007-SN1 Noteholders shall be impaired by the recovery of
any judgment by the CARAT Indenture Trustee against the Issuer or by the levy of
any execution under such judgment upon any portion of the CARAT Trust Estate or
upon any of the assets of the Issuer. Any money or property collected by the
CARAT Indenture Trustee shall be applied in accordance with Section 5.4(b).
Section 5.16 Performance and Enforcement of Certain Obligations.
(a) Promptly following a request from the CARAT Indenture Trustee to
do so and at the Trust Administrator's expense, the Issuer agrees to take all
such lawful action as the CARAT Indenture Trustee may request to compel or
secure the performance and observance by the Seller and the Trust Administrator
of their respective obligations to the Issuer under or in connection with the
Trust Sale and Administration Agreement and the Pooling and Administration
Agreement or by GMAC of its obligations under or in connection with the Pooling
and Administration Agreement in accordance with the terms thereof or by any
obligor under a Third Party Instrument of its obligations under or in accordance
with a Third Party Instrument, in accordance with the terms thereof, and to
exercise any and all rights, remedies, powers and privileges lawfully available
to the Issuer under or in connection with the Trust Sale and Administration
Agreement, the Pooling and Administration Agreement and any Third Party
Instrument to the extent and in the manner directed by the CARAT Indenture
Trustee, including the transmission of notices of default on the part of the
Seller, the Trust Administrator, or any obligor under a Third Party Instrument
thereunder and the institution of legal or administrative actions or proceedings
to compel or secure performance by the Seller or the Trust Administrator or any
obligor under a Third Party Instrument of their respective obligations under the
Trust Sale and Administration Agreement, the Pooling and Administration
Agreement and any Third Party Instrument.
(b) If a CARAT Event of Default has occurred and is continuing, the
CARAT Indenture Trustee may, and, at the direction (which direction shall be in
writing or by telephone
35
(confirmed in writing promptly thereafter)) of the Holders of 66-2/3% of the
Outstanding Amount of the Controlling Class shall, exercise all rights,
remedies, powers, privileges and claims of the Issuer against the Seller, the
Trust Administrator or any obligor under a Third Party Instrument under or in
connection with the Trust Sale and Administration Agreement, the Pooling and
Administration Agreement or a Third Party Instrument, including the right or
power to take any action to compel or secure performance or observance by the
Seller or the Trust Administrator of each of their obligations to the Issuer
thereunder and to give any consent, request, notice, direction, approval,
extension or waiver under the Trust Sale and Administration Agreement, and any
right of the Issuer to take such action shall be suspended.
(c) If a CARAT Event of Default has occurred and is continuing, the
CARAT Indenture Trustee may, and, at the direction (which direction shall be in
writing or by telephone (confirmed in writing promptly thereafter)) of the
Holders of 66-2/3% of the Outstanding Amount of the CARAT 2007-SN1 Notes shall,
exercise all rights, remedies, powers, privileges and claims of the Seller
against GMAC under or in connection with the Pooling and Administration
Agreement, including the right or power to take any action to compel or secure
performance or observance by GMAC of each of its obligations to the Seller
thereunder and to give any consent, request, notice, direction, approval,
extension or waiver under the Pooling and Administration Agreement, and any
right of the Seller to take such action shall be suspended.
ARTICLE VI
THE CARAT INDENTURE TRUSTEE
Section 6.1 Duties of CARAT Indenture Trustee.
(a) If a CARAT Event of Default has occurred and is continuing, the
CARAT Indenture Trustee shall exercise the rights and powers vested in it by
this CARAT Indenture and use the same degree of care and skill in its exercise
as a prudent person would exercise or use under the circumstances in the conduct
of such person's own affairs.
(b) Except during the continuance of a CARAT Event of Default:
(i) the CARAT Indenture Trustee undertakes to perform such duties
and only such duties as are specifically set forth in this CARAT Indenture and
the Trust Sale and Administration Agreement and no implied covenants or
obligations shall be read into this CARAT Indenture, the Trust Sale and
Administration Agreement or any other CARAT Basic Document against the CARAT
Indenture Trustee;
(ii) in the absence of bad faith on its part, the CARAT Indenture
Trustee may conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon certificates or opinions
furnished to the CARAT Indenture Trustee and conforming to the requirements of
this CARAT Indenture; provided, however, that the CARAT Indenture Trustee shall
examine the certificates and opinions to determine whether or not they conform
to the requirements of this CARAT Indenture.
(c) The CARAT Indenture Trustee may not be relieved from liability for
its own negligent action, its own negligent failure to act or its own willful
misconduct, except that:
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(i) this Section 6.1(c) does not limit the effect of Section
6.1(b);
(ii) the CARAT Indenture Trustee shall not be liable for any
error of judgment made in good faith by a Responsible Officer unless it is
proved that the CARAT Indenture Trustee was negligent in ascertaining the
pertinent facts; and
(iii) the CARAT Indenture Trustee shall not be liable with
respect to any action it takes or omits to take in good faith in accordance with
a direction received by it pursuant to any provision of this CARAT Indenture or
any other CARAT Basic Document.
(d) The CARAT Indenture Trustee shall not be liable for interest on
any money received by it except as the CARAT Indenture Trustee may agree in
writing with the Issuer.
(e) Money held in trust by the CARAT Indenture Trustee need not be
segregated from other funds except to the extent required by law or the terms of
this CARAT Indenture or the Trust Sale and Administration Agreement or the Trust
Agreement.
(f) No provision of this CARAT Indenture or any other CARAT Basic
Document shall require the CARAT Indenture Trustee to expend or risk its own
funds or otherwise incur financial liability in the performance of any of its
duties hereunder or in the exercise of any of its rights or powers, if it shall
have reasonable grounds to believe that repayments of such funds or adequate
indemnity against such risk or liability is not reasonably assured to it.
(g) Every provision of this CARAT Indenture and each other CARAT Basic
Document relating to the CARAT Indenture Trustee shall be subject to the
provisions of this Section 6.1 and the provisions of the TIA.
(h) The CARAT Indenture Trustee shall have no liability or
responsibility for the acts or omissions of any other party to any of the CARAT
Basic Documents.
(i) In no event shall the CARAT Indenture Trustee be liable for any
damages in the nature of special, indirect or consequential damages, however
styled, including lost profits, even if the CARAT Indenture Trustee has been
advised of the likelihood of such loss or damage.
Section 6.2 Rights of CARAT Indenture Trustee.
(a) The CARAT Indenture Trustee may rely on any document believed by
it to be genuine and to have been signed or presented by the proper Person. The
CARAT Indenture Trustee need not investigate any fact or matter stated in the
document.
(b) Before the CARAT Indenture Trustee acts or refrains from acting,
it may require an Officer's Certificate or an Opinion of Counsel. The CARAT
Indenture Trustee shall not be liable for any action it takes or omits to take
in good faith in reliance on the Officer's Certificate or Opinion of Counsel.
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(c) The CARAT Indenture Trustee may execute any of the trusts or
powers hereunder or perform any duties hereunder either directly or by or
through agents or attorneys or a custodian or nominee, and the CARAT Indenture
Trustee shall not be responsible for any misconduct or negligence on the part
of, or for the supervision of, any such agent, attorney, custodian or nominee
appointed with due care by it hereunder.
(d) The CARAT Indenture Trustee shall not be liable for any action it
takes or omits to take in good faith which it believes to be authorized or
within its rights or powers; provided, however, that the CARAT Indenture
Trustee's conduct does not constitute willful misconduct, negligence or bad
faith.
(e) The CARAT Indenture Trustee may consult with counsel, and the
advice or opinion of counsel with respect to legal matters relating to this
CARAT Indenture and the CARAT 2007-SN1 Notes shall be full and complete
authorization and protection from liability in respect to any action taken,
omitted or suffered by it hereunder in good faith and in accordance with the
advice or opinion of such counsel.
(f) The CARAT Indenture Trustee shall be under no obligation to
exercise any of the rights or powers vested in it by this CARAT Indenture at the
request or direction of any of the Holders pursuant to this CARAT Indenture,
unless such Holders shall have offered to the CARAT Indenture Trustee security
or indemnity satisfactory to the CARAT Indenture Trustee against the costs,
expenses and liabilities which might be incurred by it in compliance with such
request or direction.
(g) The CARAT Indenture Trustee shall not be bound to make any
investigation into the facts or matters stated in any resolution, certificate,
statement, instrument, opinion, report, notice, request direction, consent,
order, bond, debenture, note, other evidence of indebtedness or other paper or
document, but the CARAT Indenture Trustee, in its discretion, may make such
further inquiry or investigation into such facts or matters as it may see fit.
(h) The CARAT Indenture Trustee shall not be deemed to have notice of
any Default, CARAT Event of Default or Trust Administrator Default unless a
Responsible Officer of the CARAT Indenture Trustee has actual knowledge thereof
or unless written notice of any event which is in fact such a default is
received by the CARAT Indenture Trustee at the Corporate Trust Office of the
CARAT Indenture Trustee, and such notice references the Securities and this
CARAT Indenture.
(i) The rights, privileges, protections, immunities and benefits given
to the CARAT Indenture Trustee, including its right to be indemnified, are
extended to, and shall be enforceable by, the CARAT Indenture Trustee in each of
its capacities hereunder, including its capacity under Section 4.4 hereof, and
in connection with the performance of any of its duties or obligations under any
of the CARAT Basic Documents.
Section 6.3 CARAT Indenture Trustee May Own CARAT 2007-SN1 Notes. The CARAT
Indenture Trustee in its individual or any other capacity may become the owner
or pledgee of CARAT 2007-SN1 Notes and may otherwise deal with the Issuer, the
Trust Administrator or any of their respective Affiliates with the same rights
it would have if it were
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not CARAT Indenture Trustee; provided, however, that the CARAT Indenture Trustee
shall comply with Sections 6.11. Any Paying Agent, Note Registrar, co-registrar
or co-paying agent may do the same with like rights.
Section 6.4 CARAT Indenture Trustee's Disclaimer. The CARAT Indenture
Trustee shall not be responsible for and makes no representation as to the
validity or adequacy of any CARAT Basic Document, including this CARAT Indenture
or the CARAT 2007-SN1 Notes, it shall not be accountable for the Issuer's use of
the proceeds from the CARAT 2007-SN1 Notes, and it shall not be responsible for
any statement of the Issuer in the CARAT Indenture or in any document issued in
connection with the sale of the CARAT 2007-SN1 Notes or in the CARAT 2007-SN1
Notes other than the CARAT Indenture Trustee's certificate of authentication.
Section 6.5 Notice of Default. If a Default occurs and is continuing and if
it is known to a Responsible Officer of the CARAT Indenture Trustee, the CARAT
Indenture Trustee shall mail to each CARAT 2007-SN1 Noteholder notice of the
Default within 90 days after it occurs. Except in the case of a Default in
payment of principal or of interest on any CARAT 2007-SN1 Note, the CARAT
Indenture Trustee may withhold the notice if and so long as it in good faith
determines that withholding the notice is in the interests of the CARAT 2007-SN1
Noteholders.
Section 6.6 Reports by CARAT Indenture Trustee. (a) To the extent any CARAT
2007-SN1 Noteholder does not receive such information or documents directly, the
CARAT Indenture Trustee shall deliver to each CARAT 2007-SN1 Noteholder the
information and documents set forth in Article VII and, in addition, all such
information with respect to the CARAT 2007-SN1 Notes as may be required to
enable such Holder to prepare its federal and State income tax returns.
(b) The Indenture Trustee shall:
(i) deliver to CARI, the Owner Trustee and the Servicer a report of
its assessment of compliance with the Servicing Criteria regarding general
servicing, cash and collection administration, investor remittances and
reporting, and pool asset administration during the preceding calendar
year, including disclosure of any material instance of non-compliance
identified by the Indenture Trustee, as required by Rule 13a-18 and Rule
15d-18 of the Exchange Act and Item 1122 of Regulation AB under the
Securities Act;
(ii) cause a firm of registered public accountants that is qualified
and independent within the meaning of Rule 2-01 of Regulation S-X under the
Securities Act to deliver to CARI, the Owner Trustee and the Servicer an
attestation report that satisfies the requirements of Rule 13a-18 or Rule
15d-18 under the Exchange Act, as applicable, on the assessment of
compliance with Servicing Criteria with respect to the prior calendar year
for inclusion in the Issuing Entity's 10-K filing; such attestation report
shall be in accordance with Rule 1-02(a)(3) and Rule 2-02(g) of Regulation
S-X under the Securities Act and the Exchange Act; and
(iii) deliver to CARI and any other Person that will be responsible
for signing the certification (a "Sarbanes Certification") required by Rule
13a-14(d) and Rule 15d-
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14(d) under the Exchange Act (pursuant to Section 302 of the Sarbanes-Oxley
Act of 2002) on behalf of the Issuing Entity or CARI with respect to this
securitization transaction a certification substantially in the form
attached hereto as Exhibit F or such form as mutually agreed upon by CARI
and the Indenture Trustee; the Indenture Trustee acknowledges that the
parties identified in this clause (iii) may rely on the certification
provided by the Indenture Trustee pursuant to such clause in signing a
Sarbanes Certification and filing such with the Commission.
(c) The reports referred to in Section 6.6(b) shall be delivered on or
before March 15 of each year that a 10-K filing is required to be filed by the
Issuing Entity, beginning March 15, 2008.
Section 6.7 Compensation; Indemnity.
(a) The Issuer shall cause the Trust Administrator pursuant to Section
3.05 of the Pooling and Administration Agreement to pay to the CARAT Indenture
Trustee from time to time reasonable compensation for its services. The CARAT
Indenture Trustee's compensation shall not be limited by any law on compensation
of a trustee of an express trust. The Issuer shall cause the Trust Administrator
pursuant to Section 3.05 of the Pooling and Administration Agreement to
reimburse the CARAT Indenture Trustee for all reasonable out-of-pocket expenses
incurred or made by it, including costs of collection, in addition to the
compensation for its services. Such expenses shall include the reasonable
compensation and expenses, disbursements and advances of the CARAT Indenture
Trustee's agents, external counsel, accountants and experts. The Issuer shall
cause the Trust Administrator to indemnify the CARAT Indenture Trustee in
accordance with Section 6.01 of the Trust Sale and Administration Agreement.
(b) The Issuer's obligations to the CARAT Indenture Trustee pursuant
to this Section 6.7 shall survive the discharge of this CARAT Indenture. When
the CARAT Indenture Trustee incurs expenses after the occurrence of a Default
specified in Section 5.1(e) or (f) with respect to the Issuer, the expenses are
intended to constitute expenses of administration under Title 11 of the United
States Code or any other applicable federal or State bankruptcy, insolvency or
similar law.
Section 6.8 Replacement of CARAT Indenture Trustee.
(a) The CARAT Indenture Trustee may at any time give notice of its
intent to resign by so notifying the Issuer; provided, however, that no such
resignation shall become effective and the CARAT Indenture Trustee shall not
resign prior to the time set forth in Section 6.8(c). The Holders of a majority
in Outstanding Amount of the Controlling Class may remove the CARAT Indenture
Trustee by so notifying the CARAT Indenture Trustee and may appoint a successor
CARAT Indenture Trustee. Such resignation or removal shall become effective in
accordance with Section 6.8(c). The Issuer shall remove the CARAT Indenture
Trustee if:
(i) the CARAT Indenture Trustee fails to comply with Section
6.11;
(ii) the CARAT Indenture Trustee is adjudged bankrupt or
insolvent;
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(iii) a receiver or other public officer takes charge of the
CARAT Indenture Trustee or its property; or
(iv) the CARAT Indenture Trustee otherwise becomes incapable of
acting.
(b) If the CARAT Indenture Trustee gives notice of its intent to
resign or is removed or if a vacancy exists in the office of the CARAT Indenture
Trustee for any reason (the CARAT Indenture Trustee in such event being referred
to herein as the retiring CARAT Indenture Trustee), the Issuer shall promptly
appoint and designate a successor CARAT Indenture Trustee.
(c) A successor CARAT Indenture Trustee shall deliver a written
acceptance of its appointment and designation to the retiring CARAT Indenture
Trustee and to the Issuer. Thereupon the resignation or removal of the retiring
CARAT Indenture Trustee shall become effective, and the successor CARAT
Indenture Trustee shall have all the rights, powers and duties of the CARAT
Indenture Trustee under this CARAT Indenture. The successor CARAT Indenture
Trustee shall mail a notice of its succession to CARAT 2007-SN1 Noteholders. The
retiring CARAT Indenture Trustee shall promptly transfer all property held by it
as CARAT Indenture Trustee to the successor CARAT Indenture Trustee.
(d) If a successor CARAT Indenture Trustee does not take office within
60 days after the CARAT Indenture Trustee gives notice of its intent to resign
or is removed, the retiring Trustee, the Issuer or the Holders of a majority of
the Outstanding Amount of the Controlling Class may petition any court of
competent jurisdiction for the appointment and designation of a successor CARAT
Indenture Trustee.
(e) If the CARAT Indenture Trustee fails to comply with Section 6.11,
any CARAT 2007-SN1 Noteholder may petition any court of competent jurisdiction
for the removal of the CARAT Indenture Trustee and the appointment of a
successor CARAT Indenture Trustee.
(f) Notwithstanding the replacement of the CARAT Indenture Trustee
pursuant to this Section 6.8, the Issuer's obligations under Section 6.7 and the
Trust Administrator's corresponding obligations under the Trust Sale and
Administration Agreement and the Pooling and Administration Agreement shall
continue for the benefit of the retiring CARAT Indenture Trustee.
Section 6.9 Merger or Consolidation of CARAT Indenture Trustee.
(a) Any corporation into which the CARAT Indenture Trustee may be
merged or with which it may be consolidated, or any corporation resulting from
any merger or consolidation to which the CARAT Indenture Trustee shall be a
party, or any corporation succeeding to the corporate trust business of the
CARAT Indenture Trustee, shall be the successor of the CARAT Indenture Trustee
under this CARAT Indenture; provided, however, that such corporation shall be
eligible under the provisions of Section 6.11, without the execution or filing
of any instrument or any further act on the part of any of the parties to this
CARAT Indenture, anything in this CARAT Indenture to the contrary
notwithstanding.
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(b) If at the time such successor or successors by merger or
consolidation to the CARAT Indenture Trustee shall succeed to the trusts created
by this CARAT Indenture, any of the CARAT 2007-SN1 Notes shall have been
authenticated but not delivered, any such successor to the CARAT Indenture
Trustee may adopt the certificate of authentication of any predecessor trustee,
and deliver such CARAT 2007-SN1 Notes so authenticated, and in case at that time
any of the CARAT 2007-SN1 Notes shall not have been authenticated, any successor
to the CARAT Indenture Trustee may authenticate such CARAT 2007-SN1 Notes either
in the name of any predecessor hereunder or in the name of the successor to the
CARAT Indenture Trustee. In all such cases such certificate of authentication
shall have the same full force as is provided anywhere in the CARAT 2007-SN1
Notes or herein with respect to the certificate of authentication of the CARAT
Indenture Trustee.
Section 6.10 Appointment of Co-CARAT Indenture Trustee or Separate CARAT
Indenture Trustee.
(a) Notwithstanding any other provisions of this CARAT Indenture, at
any time, for the purpose of meeting any legal requirement of any jurisdiction
in which any part of the CARAT Trust Estate or any Vehicle may at the time be
located, the CARAT Indenture Trustee shall have the power and may execute and
deliver all instruments to appoint one or more Persons to act as a co-trustee or
co-trustees, or separate trustee or separate trustees, of all or any part of the
CARAT Trust Estate, and to vest in such Person or Persons, in such capacity and
for the benefit of the Secured Parties and (only to the extent expressly
provided herein) the CARAT 2007-SN1 Certificateholders, such title to the CARAT
Trust Estate, or any part hereof, and, subject to the other provisions of this
Section 6.10, such powers, duties, obligations, rights and trusts as the CARAT
Indenture Trustee may consider necessary or desirable. No co-trustee or separate
trustee hereunder shall be required to meet the terms of eligibility as a
successor trustee under Section 6.11 and no notice to CARAT 2007-SN1 Noteholders
of the appointment of any co-trustee or separate trustee shall be required under
Section 6.8.
(b) Every separate trustee and co-trustee shall, to the extent
permitted by law, be appointed and act subject to the following provisions and
conditions:
(i) all rights, powers, duties and obligations conferred or
imposed upon the CARAT Indenture Trustee shall be conferred or imposed upon and
exercised or performed by the CARAT Indenture Trustee and such separate trustee
or co-trustee jointly (it being understood that such separate trustee or
co-trustee is not authorized to act separately without the CARAT Indenture
Trustee joining in such act), except to the extent that under any law of any
jurisdiction in which any particular act or acts are to be performed the CARAT
Indenture Trustee shall be incompetent or unqualified to perform such act or
acts, in which event such rights, powers, duties and obligations (including the
holding of title to the CARAT Trust Estate or any portion thereof in any such
jurisdiction) shall be exercised and performed singly by such separate trustee
or co-trustee, but solely at the direction of the CARAT Indenture Trustee;
(ii) no trustee hereunder shall be personally liable by reason of
any act or omission of any other trustee hereunder; and
42
(iii) the CARAT Indenture Trustee may at any time accept the
resignation of or remove any separate trustee or co-trustee.
(c) Any notice, request or other writing given to the CARAT Indenture
Trustee shall be deemed to have been given to each of the then separate trustees
and co-trustees, as effectively as if given to each of them. Every instrument
appointing any separate trustee or co-trustee shall refer to this CARAT
Indenture and the conditions of this Article VI. Each separate trustee and
co-trustee, upon its acceptance of the trusts conferred, shall be vested with
the estates or property specified in its instrument of appointment, either
jointly with the CARAT Indenture Trustee or separately, as may be provided
therein, subject to all the provisions of this CARAT Indenture, specifically
including every provision of this CARAT Indenture relating to the conduct of,
affecting the liability of, or affording protection to, the CARAT Indenture
Trustee. Every such instrument shall be filed with the CARAT Indenture Trustee.
(d) Any separate trustee or co-trustee may at any time appoint the
CARAT Indenture 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 CARAT Indenture on its behalf and in its name. If any separate
trustee or co-trustee shall die, become incapable of acting, resign or be
removed, all of its estates, properties, rights, remedies and trusts shall vest
in and be exercised by the CARAT Indenture Trustee, to the extent permitted by
law, without the appointment of a new or successor trustee.
Section 6.11 Eligibility; Disqualification. The CARAT Indenture Trustee
shall at all times satisfy the requirements of TIA Section 310(a). The CARAT
Indenture Trustee shall have a combined capital and surplus of at least
$50,000,000 as set forth in its most recent published annual report of condition
and (unless waived by Moody's) it shall have a long term unsecured debt rating
of Baa3 or better by Moody's. The CARAT Indenture Trustee shall comply with TIA
Section 310(b); provided, however, that there shall be excluded from the
operation of TIA Section 310(b)(1) any indenture or indentures under which other
securities of the Issuer are outstanding if the requirements for such exclusion
set forth in TIA Section 310(b)(1) are met.
Section 6.12 Preferential Collection of Claims Against Issuer. The CARAT
Indenture Trustee shall comply with TIA Section 311(a), excluding any creditor
relationship listed in TIA Section 311(b). A trustee who has resigned or been
removed shall be subject to TIA Section 311(a) to the extent indicated therein.
Section 6.13 Representations and Warranties of CARAT Indenture Trustee. The
CARAT Indenture Trustee represents and warrants as of the Series 2007-SN1
Closing Date that:
(a) the CARAT Indenture Trustee (i) is a national banking association
duly organized, validly existing and in good standing under the laws of the
United States of America and (ii) satisfies the eligibility criteria set forth
in Section 6.11;
(b) the CARAT Indenture Trustee has full power, authority and legal
right to execute, deliver and perform this CARAT Indenture and any other CARAT
Basic Document to which it is a party, and has taken all necessary action to
authorize the execution, delivery and
43
performance by it of this CARAT Indenture and any other CARAT Basic Document to
which it is a party;
(c) the execution, delivery and performance by the CARAT Indenture
Trustee of this CARAT Indenture and any other CARAT Basic Document to which it
is a party (i) shall not violate any provision of any law or regulation
governing the banking and trust powers of the CARAT Indenture Trustee or any
order, writ, judgment or decree of any court, arbitrator, or governmental
authority applicable to the CARAT Indenture Trustee or any of its assets, (ii)
shall not violate any provision of the corporate charter or by-laws of the CARAT
Indenture Trustee, or (iii) shall not violate any provision of, or constitute,
with or without notice or lapse of time, a default under, or result in the
creation or imposition of any Lien on any properties included in the CARAT Trust
Estate pursuant to the provisions of any mortgage, indenture, contract,
agreement or other undertaking to which it is a party, which violation, default
or Lien could reasonably be expected to have a materially adverse effect on the
CARAT Indenture Trustee's performance or ability to perform its duties under
this CARAT Indenture and any other CARAT Basic Document to which it is a party
or on the transactions contemplated hereunder and thereunder;
(d) the execution, delivery and performance by the CARAT Indenture
Trustee of this CARAT Indenture and any other CARAT Basic Document to which it
is a party shall not require the authorization, consent or approval of, the
giving of notice to, the filing or registration with, or the taking of any other
action in respect of, any governmental authority or agency regulating the
banking and corporate trust activities of the CARAT Indenture Trustee; and
(e) this CARAT Indenture and any other CARAT Basic Document to which
it is a party has been duly executed and delivered by the CARAT Indenture
Trustee and constitutes the legal, valid and binding agreement of the CARAT
Indenture Trustee, enforceable in accordance with its terms.
Section 6.14 CARAT Indenture Trustee May Enforce Claims Without Possession
of CARAT 2007-SN1 Notes. All rights of action and claims under this CARAT
Indenture or the CARAT 2007-SN1 Notes may be prosecuted and enforced by the
CARAT Indenture Trustee without the possession of any of the CARAT 2007-SN1
Notes or the production thereof in any proceeding relating thereto, and any such
proceeding instituted by the CARAT Indenture Trustee shall be brought in its own
name as CARAT Indenture Trustee. Any recovery of judgment shall, after provision
for the payment of the reasonable compensation, expenses, disbursements and
advances of the CARAT Indenture Trustee, its agents and counsel, be for the
ratable benefit of the CARAT 2007-SN1 Noteholders and (only to the extent
expressly provided herein) the CARAT 2007-SN1 Certificateholders in respect of
which such judgment has been obtained.
Section 6.15 Suit for Enforcement. If a CARAT Event of Default shall occur
and be continuing, the CARAT Indenture Trustee, in its discretion may, subject
to the provisions of Section 6.1, proceed to protect and enforce its rights and
the rights of the CARAT 2007-SN1 Noteholders under this CARAT Indenture by
Proceeding whether for the specific performance of any covenant or agreement
contained in this CARAT Indenture or in aid of the execution of any power
granted in this CARAT Indenture or for the enforcement of any other legal,
equitable or other remedy as the CARAT Indenture Trustee, being advised by
counsel, shall deem necessary
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to protect and enforce any of the rights of the CARAT Indenture Trustee or the
CARAT 2007-SN1 Noteholders.
Section 6.16 Rights of CARAT 2007-SN1 Noteholders to Direct CARAT Indenture
Trustee. The Holders of CARAT 2007-SN1 Notes evidencing not less than a majority
of the Outstanding Amount of the Controlling Class, shall have the right to
direct the time, method and place of conducting any Proceeding for any remedy
available to the CARAT Indenture Trustee or exercising any trust or power
conferred on the CARAT Indenture Trustee, including any remedy, trust or power
of the CARAT Indenture Trustee as the Holder of the COLT 2007-SN1 Secured Notes;
provided, however, that subject to Section 6.1, the CARAT Indenture Trustee
shall have the right to decline to follow any such direction if the CARAT
Indenture Trustee being advised by counsel determines that the action so
directed may not lawfully be taken, or if the CARAT Indenture Trustee in good
faith shall, by a Responsible Officer, determine that the proceedings so
directed would be illegal or subject it to personal liability; and provided,
further, that nothing in this CARAT Indenture shall impair the right of the
CARAT Indenture Trustee to take any action deemed proper by the CARAT Indenture
Trustee and which is not inconsistent with such direction by the CARAT 2007-SN1
Noteholders.
Section 6.17 Notification of CARAT 2007-SN1 Noteholders Regarding Certain
COLT Events; Waivers of Past Defaults; Amendments and Other Actions.
(a) Upon any Event of Default under the COLT 2007-SN1 Secured Notes
pursuant to the COLT Indenture or any Servicer Default pursuant to the COLT
Servicing Agreement of which a Responsible Officer of the CARAT Indenture
Trustee has actual knowledge, the CARAT Indenture Trustee shall give prompt
written notice thereof to the CARAT 2007-SN1 Noteholders.
(b) Noteholders whose CARAT 2007-SN1 Notes evidence a majority of the
Outstanding Amount of the Controlling Class as of the close of the preceding
Distribution Date (or, if all of the Notes have been paid in full and the CARAT
Indenture has been discharged in accordance with its terms), CARAT 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) may, on behalf of all CARAT 2007-SN1 Noteholders and CARAT 2007-SN1
Certificateholders, instruct the CARAT Indenture Trustee as Holder of the COLT
2007-SN1 Secured Notes (i) to waive any default by COLT, the Servicer or any
other party to the COLT 2007-SN1 Basic Documents in the performance of its
obligations under any applicable COLT 2007-SN1 Basic Document and its
consequences, except a default in making any required deposits to or payments
from any of the accounts in accordance with this Agreement, (ii) to enter into
any amendment, supplement, waiver or other understanding with respect to the
COLT 2007-SN1 Basic Documents or (iii) to take any other action so directed by
such Controlling Class or such Certificateholders, as applicable.
(c) Notwithstanding Section 6.17(b), in the event that a waiver,
amendment, supplement, or action under a COLT Basic Document requires the
consent or approval of a supermajority (such as 66-2/3 percent) or all of the
Holders of the COLT 2007-SN1 Secured Notes, then the consent of a like
percentage of CARAT 2007-SN1 Noteholders shall be required to take such action
or execute such waiver, amendment or supplement.
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ARTICLE VII
CARAT NOTEHOLDERS' LISTS AND REPORTS
Section 7.1 Issuer To Furnish CARAT Indenture Trustee Names and Addresses
of CARAT 2007-SN1 Noteholders. The Issuer shall furnish or cause to be furnished
by the Trust Administrator to the CARAT Indenture Trustee (a) not more than five
days before each Distribution Date a list, in such form as the CARAT Indenture
Trustee may reasonably require, of the names and addresses of the Holders of
CARAT 2007-SN1 Notes as of the close of business on the related Record Date, and
(b) at such other times as the CARAT Indenture Trustee may request in writing,
within 14 days after receipt by the Issuer of any such request, a list of
similar form and content as of a date not more than 10 days prior to the time
such list is furnished; provided, however, that so long as the CARAT Indenture
Trustee is the Note Registrar, no such list shall be required to be furnished.
Section 7.2 Preservation of Information, Communications to CARAT 2007-SN1
Noteholders.
(a) The CARAT Indenture Trustee shall preserve, in as current a form
as is reasonably practicable, the names and addresses of the Holders of CARAT
2007-SN1 Notes contained in the most recent list furnished to the CARAT
Indenture Trustee as provided in Section 7.1 and the names and addresses of
Holders of CARAT 2007-SN1 Notes received by the CARAT Indenture Trustee in its
capacity as Note Registrar. The CARAT Indenture Trustee may destroy any list
furnished to it as provided in such Section 7.1 upon receipt of a new list so
furnished.
(b) CARAT 2007-SN1 Noteholders may communicate pursuant to TIA Section
312(b) with other CARAT 2007-SN1 Noteholders with respect to their rights under
this CARAT Indenture or under the CARAT 2007-SN1 Notes.
(c) The Issuer, the CARAT Indenture Trustee and the Note Registrar
shall have the protection of TIA Section 312(c)
Section 7.3 Reports by Issuer.
(a) The Issuer shall:
(i) deliver to the CARAT Indenture Trustee, within fifteen (15)
days after the Issuer is required to file the same with the Commission, copies
of the annual reports and of the information, documents and other reports (or
copies of such portions of any of the foregoing as the Commission may from time
to time by rules and regulations prescribe) which the Issuer may be required to
file with the Commission pursuant to Section 13 or 15(d) of the Exchange Act or
Item 1122 of Regulation AB;
(b) Unless the Issuer otherwise determines, the fiscal year of the
Issuer shall end on December 31 of such year.
(i) deliver to the CARAT Indenture Trustee and file with the
Commission in accordance with rules and regulations prescribed from time to time
by the
46
Commission such additional information, documents and reports with respect to
compliance by the Issuer with the conditions and covenants of this CARAT
Indenture as may be required from time to time by such rules and regulations;
and
(ii) supply to the CARAT Indenture Trustee (and the CARAT
Indenture Trustee shall transmit by mail to all CARAT 2007-SN1 Noteholders
described in TIA Section 313(c)) such summaries of any information, documents
and reports required to be filed by the Issuer pursuant to clauses (i) and (ii)
of this Section 7.3(a) as may be required by rules and regulations prescribed
from time to time by the Commission.
Section 7.4 Reports by CARAT Indenture Trustee.
(a) Solely to the extent required by TIA Section 313(a),within 60 days
after each August 15th, beginning with August 15, 2007, the CARAT Indenture
Trustee shall mail to each CARAT 2007-SN1 Noteholder as required by TIA Section
313(c) a brief report dated as of such date that complies with TIA Section
313(a). The CARAT Indenture Trustee also shall comply with TIA Section 313(b). A
copy of any report delivered pursuant to this Section 7.4(a) shall, at the time
of its mailing to CARAT 2007-SN1 Noteholders, be filed by the CARAT Indenture
Trustee with the Commission and each stock exchange, if any, on which the CARAT
2007-SN1 Notes are listed. The Issuer shall notify the CARAT Indenture Trustee
if and when the CARAT 2007-SN1 Notes are listed on any stock exchange.
(b) On each Distribution Date the CARAT Indenture Trustee shall
include with each payment to each CARAT 2007-SN1 Noteholder a copy of the
statement for the related Monthly Period or Periods applicable to such
Distribution Date as required pursuant to Section 4.07 of the Trust Sale and
Administration Agreement.
ARTICLE VIII
ACCOUNTS, DISBURSEMENTS AND RELEASES
Section 8.1 Collection of Money. Except as otherwise expressly provided
herein, the CARAT Indenture Trustee may demand payment or delivery of, and shall
receive and collect, directly and without intervention or assistance of any
fiscal agent or other intermediary, all money and other property payable to or
receivable by the CARAT Indenture Trustee pursuant to this CARAT Indenture and
the Trust Sale and Administration Agreement. The CARAT Indenture Trustee shall
apply all such money received by it as provided in this CARAT Indenture. Except
as otherwise expressly provided in this CARAT Indenture, if any default occurs
in the making of any payment or performance under any agreement or instrument
that is part of the CARAT Trust Estate, the CARAT Indenture Trustee may take
such action as may be appropriate to enforce such payment or performance,
including the institution and prosecution of appropriate Proceedings. Any such
action shall be without prejudice to any right to claim a Default or CARAT Event
of Default under this CARAT Indenture and any right to proceed thereafter as
provided in Article V.
Section 8.2 Designated Accounts; Payments.
(a) On or prior to the Series 2007-SN1 Closing Date, the Issuer shall
cause the Trust Administrator to establish and maintain, in the name of the
CARAT Indenture Trustee for
47
the benefit of the Financial Parties, the Designated Accounts as provided in
Articles IV and V of the Trust Sale and Administration Agreement.
(b) On or before each Distribution Date, (i) amounts shall be
deposited in the CARAT Collection Account as provided in Section 4.05 of the
Trust Sale and Administration Agreement, (ii) the Aggregate Noteholders'
Interest Distributable Amount and the Aggregate Noteholders' Principal
Distributable Amount shall be transferred from the CARAT Collection Account to
the Note Distribution Account and (iii) amounts, if any, due to the Swap
Counterparty shall be transferred from the CARAT Collection Account to the Swap
Counterparty, in each case, as and to the extent provided in Section 4.05 of the
Trust Sale and Administration Agreement.
(c) On each Distribution Date, the CARAT Indenture Trustee shall apply
and, as required, distribute to the CARAT 2007-SN1 Noteholders all amounts on
deposit in the Note Distribution Account (subject to the Trust Administrator's
rights under Section 5.02 of the Trust Sale and Administration Agreement to
Investment Earnings and based on the Trust Administrator's Accounting delivered
on the related Determination Date pursuant to Section 3.06 of the Pooling and
Administration Agreement) in the following order of priority and in the amounts
determined as described below:
(i) On each Distribution Date, except as otherwise provided in
clause (iii) below, the amount deposited in the Note Distribution Account in
respect of interest on the CARAT 2007-SN1 Notes shall be applied in the
following order of priority, to the extent of remaining funds after all earlier
priorities have been satisfied, and any amount so applied shall be paid on such
Distribution Date to the holders of CARAT 2007-SN1 Notes of each applicable
class:
(A) the Aggregate Class A Interest Distributable Amount and
any swap termination payments due on a Third Party Instrument related to the
Class A Notes that are Floating Rate Notes shall be paid to the holders of the
Class A Notes and the holders of the Third Party Instrument respectively,
allocated ratably between the Aggregate Class A Interest Distributable Amount
and the swap termination amounts in proportion to their respective amounts;
(B) the Aggregate Class B Interest Distributable Amount
shall be paid to the holders of the Class B Notes;
(C) the Aggregate Class C Interest Distributable Amount
shall be paid to the holders of the Class C Notes;
(D) the Aggregate Class D Interest Distributable Amount
shall be paid to the Holders of the Class D Notes.
provided, however, that if there are not sufficient funds to so pay the entire
amount specified in any of the foregoing priorities for a particular class of
CARAT 2007-SN1 Notes and the swap termination payments, then the amount
available for such class of CARAT 2007-SN1 Notes and the swap termination
payments shall be paid to the Holders and payees thereof ratably on the
48
basis of the total amount of accrued and unpaid interest and the swap
termination payments owing to each such Holder and payee.
(ii) Unless otherwise provided in clause (iii) below, an amount
equal to the Aggregate Noteholders' Principal Distributable Amount (or such
lesser amount as has been deposited in the Note Distribution Account pursuant to
Section 4.05(c) of the Trust Sale and Administration Agreement with respect to
payments of principal) shall be applied to each class of CARAT 2007-SN1 Notes in
the following amounts and in the following order of priority and any amount so
applied shall be paid on such Distribution Date to the Holders of such class of
CARAT 2007-SN1 Notes:
(A) to the Class A-1 Notes, until the Outstanding Amounts of
the Class A-1 Notes is reduced to zero;
(B) to the Class A-2a Notes and the Class A-2b Notes,
ratably in accordance with the Note Principal Balance of the Class A-2a Notes
and the Class A-2b Notes, until the Outstanding Amounts of the Class A-2a Notes
and the Class A-2b Notes are reduced to zero;
(C) to the Class A-3 Notes, until the Outstanding Amounts of
the Class A-3 Notes are reduced to zero;
(D) to the Class A-4a Notes and the Class A-4b Notes,
ratably in accordance with the Note Principal Balance of the Class A-4a Notes
and the Class A-4b Notes, until the Outstanding Amounts of the Class A-4a Notes
and the Class A-4b Notes are reduced to zero;
(E) to the Class B Notes, until the Outstanding Amounts of
the Class B Notes are reduced to zero;
(F) to the Class C Notes, until the Outstanding Amount of
the Class C Notes is reduced to zero; and
(G) to the Class D Notes, until the Outstanding Amounts of
the Class D Notes are reduced to zero.
(iii) If the CARAT 2007-SN1 Notes have been declared immediately
due and payable following a CARAT Event of Default as provided in Section 5.2,
until such time as all Events of Default have been cured or waived as provided
in Section 5.2(b), any amounts deposited in the Note Distribution Account shall
be applied in accordance with Section 2.7(c).
Section 8.3 General Provisions Regarding Accounts.
(a) So long as no Default or CARAT Event of Default shall have
occurred and be continuing, all or a portion of the funds in the Designated
Accounts shall be invested in Eligible Investments and reinvested by the CARAT
Indenture Trustee upon Issuer Order, subject to the provisions of Section
5.01(b) of the Trust Sale and Administration Agreement. The Issuer shall not
direct the CARAT Indenture Trustee to make any investment of any funds or to
sell any
49
investment held in any of the Designated Accounts unless the security interest
granted and perfected in such account shall continue to be perfected in such
investment or the proceeds of such sale, in either case without any further
action by any Person, and, in connection with any direction to the CARAT
Indenture Trustee to make any such investment or sale, if requested by the CARAT
Indenture Trustee, the Issuer shall deliver to the CARAT Indenture Trustee an
Opinion of Counsel acceptable to the CARAT Indenture Trustee, to such effect.
(b) Subject to Section 6.1(c), the CARAT Indenture Trustee shall not
in any way be held liable by reason of any insufficiency in any of the
Designated Accounts resulting from any loss on any Eligible Investment included
therein except as an obligor for losses attributable to the CARAT Indenture
Trustee's failure to make payments on such Eligible Investments issued by the
CARAT Indenture Trustee, in its commercial capacity as principal obligor and not
as trustee, in accordance with their terms.
(c) If (i) the Issuer shall have failed to give written investment
directions for any funds on deposit in the Designated Accounts to the CARAT
Indenture Trustee by 11:00 a.m., New York City time (or such other time as may
be agreed by the Issuer and the CARAT Indenture Trustee) on any Business Day; or
(ii) a Default or CARAT Event of Default shall have occurred and be continuing
with respect to the CARAT 2007-SN1 Notes but the CARAT 2007-SN1 Notes shall not
have been declared due and payable pursuant to Section 5.2, or, if such CARAT
2007-SN1 Notes shall have been declared due and payable following a CARAT Event
of Default, but amounts collected or receivable from the CARAT Trust Estate are
being applied in accordance with Section 5.5 as if there had not been such a
declaration; then the CARAT Indenture Trustee shall, to the fullest extent
practicable, invest and reinvest funds in the Designated Accounts in
"BNY-Hamilton MMF Instit # 746."
Section 8.4 Release of CARAT Trust Estate.
(a) Subject to the payment of its fees and expenses pursuant to
Section 6.7, the CARAT Indenture Trustee may, and when required by the
provisions of this CARAT Indenture shall, execute instruments to release
property from the Lien of this CARAT Indenture, or convey the CARAT Indenture
Trustee's interest in the same, in a manner and under circumstances that are
consistent with the provisions of this CARAT Indenture. No party relying upon an
instrument executed by the CARAT Indenture Trustee as provided in this Article
VIII shall be bound to ascertain the CARAT Indenture Trustee's authority,
inquire into the satisfaction of any conditions precedent or see to the
application of any monies.
(b) The CARAT Indenture Trustee shall, at such time as there are no
CARAT 2007-SN1 Notes Outstanding and all sums due to the CARAT Indenture Trustee
pursuant to Section 6.7 have been paid and all amounts owing under each Third
Party Instrument have been paid, release any remaining portion of the CARAT
Trust Estate that secured the CARAT 2007-SN1 Notes and the other Secured
Obligations from the Lien of this CARAT Indenture and, where any such portion of
the CARAT Trust Estate is registered in the name of the CARAT Indenture Trustee,
re-convey such property, and release to the Issuer or any other Person entitled
thereto any funds then on deposit in the Designated Accounts. The CARAT
Indenture Trustee shall release property from the Lien of this CARAT Indenture
pursuant to this Section 8.4(b) only upon receipt by it of an Issuer Request and
an Officer's Certificate, an Opinion of Counsel
50
and (if required by the TIA) Independent Certificates in accordance with TIA
Sections 314(c) and 314(d)(1) meeting the applicable requirements of Section
11.1.
Section 8.5 Opinion of Counsel. The CARAT Indenture Trustee shall receive
at least seven days' notice when requested by the Issuer to take any action
pursuant to Section 8.4(a), accompanied by copies of any instruments involved,
and the CARAT Indenture Trustee shall also require as a condition to such
action, an Opinion of Counsel, in form and substance satisfactory to the CARAT
Indenture Trustee, stating the legal effect of any such action, outlining the
steps required to complete the same, and concluding that all conditions
precedent to the taking of such action have been complied with and such action
shall not materially and adversely impair the security for the Secured
Obligations or the rights of the Secured Parties in contravention of the
provisions of this CARAT Indenture; provided, however, that such Opinion of
Counsel shall not be required to express an opinion as to the fair value of the
CARAT Trust Estate. Counsel rendering any such opinion may rely, without
independent investigation, on the accuracy and validity of any certificate or
other instrument delivered to the CARAT Indenture Trustee in connection with any
such action.
ARTICLE IX
SUPPLEMENTAL INDENTURES
Section 9.1 Supplemental Indentures Without Consent of CARAT 2007-SN1
Noteholders.
(a) Without the consent of the Holders of any CARAT 2007-SN1 Notes but
with prior notice to the Rating Agencies, the Issuer and the CARAT Indenture
Trustee, when authorized by an Issuer Order, at any time and from time to time,
may enter into one or more indentures supplemental hereto (which shall conform
to the provisions of the Trust Indenture Act as in force at the date of the
execution thereof), in form satisfactory to the CARAT Indenture Trustee, for any
of the following purposes:
(i) to correct or amplify the description of any property at any
time subject to the Lien of this CARAT Indenture, or better to assure, convey
and confirm unto the Indenture Trustee any property subject or required to be
subjected to the Lien of this CARAT Indenture, or to subject to additional
property to the Lien of this CARAT Indenture;
(ii) to evidence the succession, in compliance with Section 3.10
and the applicable provisions hereof, of another Person to the Issuer, and the
assumption by any such successor of the covenants of the Issuer contained herein
and in the CARAT 2007-SN1 Notes contained;
(iii) to add to the covenants of the Issuer, for the benefit of
the Securityholders or to surrender any right or power herein conferred upon the
Issuer;
(iv) to convey, transfer, assign, mortgage or pledge any property
to or with the CARAT Indenture Trustee;
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(v) to cure any ambiguity, to correct or supplement any provision
herein or in any supplemental indenture which may be inconsistent with any other
provision herein or in any supplemental indenture or in any other CARAT Basic
Document; or
(vi) to evidence and provide for the acceptance of the
appointment hereunder by a successor or additional trustee with respect to the
CARAT 2007-SN1 Notes and to add to or change any of the provisions of this CARAT
Indenture as shall be necessary to facilitate the administration of the trusts
hereunder by more than one trustee, pursuant to the requirements of Article VI.
(vii) to modify, eliminate or add to the provisions of this CARAT
Indenture to such extent as shall be necessary to effect the qualification of
this CARAT Indenture under the TIA or under any similar federal statute
hereafter enacted and to add to this CARAT Indenture such other provisions as
may be expressly required by the TIA, and the CARAT Indenture Trustee is hereby
authorized to join in the execution of any such supplemental indenture and to
make any further appropriate agreements and stipulations that may be therein
contained.
(b) The Issuer and the CARAT Indenture Trustee, when authorized by an
Issuer Order, may, also without the consent of any of the CARAT 2007-SN1
Noteholders but with prior notice to the Rating Agencies at any time and from
time to time enter into one or more indentures supplemental hereto for the
purpose of adding any provisions to, changing in any manner, or eliminating any
of the provisions of, this CARAT Indenture or modifying in any manner the rights
of the CARAT 2007-SN1 Noteholders under this CARAT Indenture; provided, however,
that such action shall not, as evidenced by an Opinion of Counsel, adversely
affect in any material respect the interests of any CARAT 2007-SN1 Noteholder.
Section 9.2 Supplemental Indentures With Consent of CARAT 2007-SN1
Noteholders.
(a) The Issuer and the CARAT Indenture Trustee, when authorized by an
Issuer Order, also may, with prior notice to the Rating Agencies and with the
consent of the Holders of not less than a majority of the Outstanding Amount of
the Controlling Class, by Act of such Holders delivered to the Issuer and the
CARAT Indenture Trustee, enter into an indenture or indentures supplemental
hereto for the purpose of adding any provisions to, changing in any manner, or
eliminating any of the provisions of, this CARAT Indenture or of modifying in
any manner the rights of the CARAT 2007-SN1 Noteholders under this CARAT
Indenture; provided, however, that no such supplemental indenture shall, without
the consent of the Holder of each Outstanding CARAT 2007-SN1 Note affected
thereby:
(i) change the due date of any instalment of principal of or
interest on any CARAT 2007-SN1 Note, or reduce the principal amount thereof, the
interest rate applicable thereto, or the Redemption Price with respect thereto,
change any place of payment where, or the coin or currency in which, any CARAT
2007-SN1 Note or any interest thereon is payable, or impair the right to
institute suit for the enforcement of the provisions of this CARAT Indenture
requiring the application of funds available therefor, as provided in Article V,
to the payment of
52
any such amount due on the CARAT 2007-SN1 Notes on or after the respective due
dates thereof (or, in the case of redemption, on or after the Redemption Date);
(ii) reduce the percentage of the Outstanding Amount of the
Controlling Class, the consent of the Holders of which is required for any such
supplemental indenture, or the consent of the Holders of which is required for
any waiver of compliance with certain provisions of this CARAT Indenture or
certain defaults hereunder and their consequences as provided for in this CARAT
Indenture;
(iii) modify or alter the provisions of the proviso to the
definition of the term "Outstanding";
(iv) reduce the percentage of the Outstanding Amount of the CARAT
2007-SN1 Notes required to direct the CARAT Indenture Trustee to sell or
liquidate the CARAT Trust Estate pursuant to Section 5.4 if the proceeds of such
sale would be insufficient to pay the principal amount of and accrued but unpaid
interest on the Outstanding CARAT 2007-SN1 Notes;
(v) modify any provision of this Section 9.2 to decrease the
required minimum percentage necessary to approve any amendments to any
provisions of this CARAT Indenture or any of the other CARAT Basic Documents;
(vi) modify any of the provisions of this CARAT Indenture in such
manner as to affect the calculation of the amount of any payment of interest or
principal due on any CARAT 2007-SN1 Note on any Distribution Date (including the
calculation of any of the individual components of such calculation), or modify
or alter the provisions of the CARAT Indenture regarding the voting of CARAT
2007-SN1 Notes held by the Issuer, the Seller or any Affiliate of either of
them; or
(vii) permit the creation of any Lien (other than tax liens and
any other Liens that attach by operation of law) ranking prior to or on a parity
with the Lien of this CARAT Indenture with respect to any part of the CARAT
Trust Estate or, except as otherwise permitted or contemplated herein, terminate
the Lien of this CARAT Indenture on any property at any time subject thereto or
deprive the Holder of any CARAT 2007-SN1 Note of the security afforded by the
Lien of this CARAT Indenture.
(b) The CARAT Indenture Trustee may in its discretion determine
whether or not any CARAT 2007-SN1 Notes would be affected (such that the consent
of each CARAT 2007-SN1 Noteholder would be required) by any supplemental
indenture proposed pursuant to this Section 9.2 and any such determination shall
be binding upon the Holders of all CARAT 2007-SN1 Notes, whether authenticated
and delivered thereunder before or after the date upon which such supplemental
indenture becomes effective. The CARAT Indenture Trustee shall not be liable for
any such determination made in good faith.
(c) It shall be sufficient if an Act of CARAT 2007-SN1 Noteholders
approves the substance, but not the form, of any proposed supplemental
indenture.
53
(d) Promptly after the execution by the Issuer and the CARAT Indenture
Trustee of any supplemental indenture pursuant to this Section 9.2, the CARAT
Indenture Trustee shall mail to the CARAT 2007-SN1 Noteholders to which such
amendment or supplemental indenture relates a notice setting forth in general
terms the substance of such supplemental indenture. Any failure of the CARAT
Indenture Trustee to mail such notice, or any defect therein, shall not,
however, in any way impair or affect the validity of any such supplemental
indenture.
Section 9.3 Execution of Supplemental Indentures.
In executing, or permitting the additional trusts created by, any
supplemental indenture permitted by this Article IX or the modifications thereby
of the trusts created by this CARAT Indenture, the CARAT Indenture Trustee shall
be entitled to receive, and subject to Sections 6.1 and 6.2, shall be fully
protected in relying upon, an Opinion of Counsel stating that the execution of
such supplemental indenture is authorized or permitted by this CARAT Indenture.
The CARAT Indenture Trustee may, but shall not be obligated to, enter into any
such supplemental indenture that affects the CARAT Indenture Trustee's own
rights, duties, liabilities or immunities under this CARAT Indenture or
otherwise.
Section 9.4 Effect of Supplemental Indenture.
Upon the execution of any supplemental indenture pursuant to the provisions
hereof, this CARAT Indenture shall be and be deemed to be modified and amended
in accordance therewith with respect to the CARAT 2007-SN1 Notes affected
thereby, and the respective rights, limitations of rights, obligations, duties,
liabilities and immunities under this CARAT Indenture of the CARAT Indenture
Trustee, the Issuer and the CARAT 2007-SN1 Noteholders shall thereafter be
determined, exercised and enforced hereunder subject in all respects to such
modifications and amendments, and all the terms and conditions of any such
supplemental indenture shall be and be deemed to be part of the terms and
conditions of this CARAT Indenture for any and all purposes.
Section 9.5 Conformity with Trust Indenture Act. Every amendment of this
CARAT Indenture and every supplemental indenture executed pursuant to this
Article IX shall conform to the requirements of the TIA as then in effect so
long as this CARAT Indenture shall then be qualified under the TIA.
Section 9.6 Reference in CARAT 2007-SN1 Notes to Supplemental Indentures.
CARAT 2007-SN1 Notes authenticated and delivered after the execution of any
supplemental indenture pursuant to this Article IX may, and if required by the
CARAT Indenture Trustee shall, bear a notation in form approved by the CARAT
Indenture Trustee as to any matter provided for in such supplemental indenture.
If the Issuer or the CARAT Indenture Trustee shall so determine, new CARAT
2007-SN1 Notes so modified as to conform, in the opinion of the CARAT Indenture
Trustee and the Issuer, to any such supplemental indenture may be prepared and
executed by the Issuer and authenticated and delivered by the CARAT Indenture
Trustee in exchange for Outstanding CARAT 2007-SN1 Notes of the same class.
54
ARTICLE X
REDEMPTION OF CARAT NOTES
Section 10.1 Redemption.
The CARAT 2007-SN1 Notes are subject to redemption in whole, but not in
part, upon the exercise by the Seller of its option to purchase the COLT
2007-SN1 Secured Notes pursuant to Section 8.01 of the Trust Sale and
Administration Agreement. The Distribution Date on which such redemption shall
occur is the Optional Purchase Date identified by Seller in its notice of
exercise of such purchase option (the "Redemption Date"). The purchase price for
the CARAT 2007-SN1 Notes shall be equal to the applicable Redemption Price;
provided, that, the Issuer has available funds sufficient to pay such amount.
The Trust Administrator or the Issuer shall furnish the Rating Agencies notice
of such redemption. If the CARAT 2007-SN1 Notes are to be redeemed pursuant to
this Section 10.1, the Trust Administrator or the Issuer shall furnish notice
thereof to the CARAT Indenture Trustee not later than 25 days prior to the
Redemption Date and the CARAT Indenture Trustee (based on such notice) shall
withdraw from the CARAT Collection Account and deposit into the Note
Distribution Account, on the Redemption Date, the aggregate Redemption Price of
the CARAT 2007-SN1 Notes, whereupon all such CARAT 2007-SN1 Notes shall be due
and payable on the Redemption Date.
Section 10.2 Form of Redemption Notice.
Notice of redemption of the CARAT 2007-SN1 Notes under Section 10.1 shall
be given by the CARAT Indenture Trustee by first-class mail, postage prepaid,
mailed not less than five days prior to the applicable Redemption Date to each
CARAT 2007-SN1 Noteholder of record at such CARAT 2007-SN1 Noteholder's address
appearing in the Note Register.
(a) All notices of redemption shall state:
(i) the Redemption Date;
(ii) the applicable Redemption Price; and
(iii) the place where CARAT 2007-SN1 Notes are to be surrendered
for payment of the Redemption Price (which shall be the Agency Office of the
Issuer to be maintained as provided in Section 3.2).
(b) Notice of redemption of the CARAT 2007-SN1 Notes shall be given by
the CARAT Indenture Trustee in the name and at the expense of the Issuer.
Failure to give notice of redemption, or any defect therein, to any Holder of
any CARAT 2007-SN1 Note shall not impair or affect the validity of the
redemption of any other CARAT 2007-SN1 Note.
Section 10.3 CARAT 2007-SN1 Notes Payable on Redemption Date.
The Notes shall, following notice of redemption as required by Section
10.2, on the Redemption Date cease to be Outstanding for purposes of this CARAT
Indenture and shall thereafter represent only the right to receive the
applicable Redemption Price and (unless the Issuer shall default in the payment
of such Redemption Price) no interest shall accrue on such
55
Redemption Price for any period after the date to which accrued interest is
calculated for purposes of calculating such Redemption Price.
ARTICLE XI
MISCELLANEOUS
Section 11.1 Compliance Certificates and Opinions, etc.
(a) Upon any application or request by the Issuer to the CARAT
Indenture Trustee to take any action under any provision of this CARAT
Indenture, the Issuer shall furnish to the CARAT Indenture Trustee: (i) an
Officer's Certificate stating that all conditions precedent, if any, provided
for in this CARAT Indenture relating to the proposed action have been complied
with (ii) an Opinion of Counsel stating that in the opinion of such counsel all
such conditions precedent, if any, have been complied with and (iii) (if
required by the TIA) an Independent Certificate from a firm of certified public
accountants meeting the applicable requirements of this Section 11.1, except
that, in the case of any such application or request as to which the furnishing
of such documents is specifically required by any provision of this CARAT
Indenture, no additional certificate or opinion need be furnished. Every
certificate or opinion with respect to compliance with a condition or covenant
provided for in this CARAT Indenture shall include:
(i) a statement that each signatory of such certificate or
opinion has read or has caused to be read such covenant or condition and the
definitions herein relating thereto;
(ii) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions contained in
such certificate or opinion are based;
(iii) a statement that, in the judgment of each such signatory,
such signatory has made such examination or investigation as is necessary to
enable such signatory to express an informed opinion as to whether or not such
covenant or condition has been complied with; and
(iv) a statement as to whether, in the opinion of each such
signatory, such condition or covenant has been complied with.
(b) (i) Prior to the deposit with the CARAT Indenture Trustee of any
Collateral or other property (such as securities) that is to be made the basis
for the release of any property (such as securities) subject to the Lien of this
CARAT Indenture, the Issuer shall, in addition to any obligation imposed in
Section 11.1(a) or elsewhere in this CARAT Indenture, furnish to the CARAT
Indenture Trustee an Officer's Certificate certifying or stating the opinion of
each Person signing such certificate as to the fair value (within 90 days of
such deposit) to the Issuer of the Collateral or other property (such as
securities) to be so deposited.
(ii) Whenever the Issuer is required to furnish to the CARAT
Indenture Trustee an Officer's Certificate certifying or stating the opinion of
any signer thereof as to the matters described in clause (b)(i) above, the
Issuer shall also deliver to the CARAT
56
\
Indenture Trustee an Independent Certificate as to the same matters, if the fair
value to the Issuer of the Collateral and other property (such as securities) to
be so deposited as the basis of any such withdrawal or release since the
commencement of the then current fiscal year of the Issuer, as set forth in the
certificates delivered pursuant to clause (b)(i) above and this clause (b)(ii),
is 10% or more of the Outstanding Amount of the CARAT 2007-SN1 Notes, but such a
certificate need not be furnished with respect to any securities or other
property so deposited, if the fair value thereof to the Issuer as set forth in
the related Officer's Certificate is less than $25,000 or less than one percent
of the Outstanding Amount of the CARAT 2007-SN1 Notes.
(iii) Other than with respect to the release of any Warranty
Secured Notes or Administrative Secured Notes, whenever any property or
securities are to be released from the Lien of this CARAT Indenture, the Issuer
shall also furnish to the CARAT Indenture Trustee an Officer's Certificate
certifying or stating the opinion of each Person signing such certificate as to
the fair value (within 90 days of such release) of the property or securities
proposed to be released and stating that in the opinion of such Person the
proposed release will not impair the security under this CARAT Indenture in
contravention of the provisions of this CARAT Indenture.
(iv) Whenever the Issuer is required to furnish to the CARAT
Indenture Trustee an Officer's Certificate certifying or stating the opinion of
any signatory thereof as to the matters described in clause (b)(iii) above, the
Issuer shall also furnish to the CARAT Indenture Trustee an Independent
Certificate as to the same matters if the fair value of the property or
securities and of all other property, other than Warranty Secured Notes and
Administrative Secured Notes, proposed to be released from the Lien of this
CARAT Indenture since the commencement of the then current calendar year, as set
forth in the certificates required by clause (b)(iii) above and this clause
(b)(iv), equals 10% or more of the Outstanding Amount of the CARAT 2007-SN1
Notes, but such a certificate need not be furnished with respect to any release
of securities or other property proposed to be released if the fair value of the
securities or other property proposed to be released as set forth in the related
Officer's Certificate is less than $25,000 or less than one percent of the
Outstanding Amount of the CARAT 2007-SN1 Notes.
(v) Notwithstanding Section 2.9 or any other provision of this
Section 11.1, the Issuer may (A) collect, liquidate, sell or otherwise dispose
of COLT 2007-SN1 Secured Notes as and to the extent permitted or required by the
CARAT Basic Documents, (B) make cash payments out of the Designated Accounts and
the Certificate Distribution Account as and to the extent permitted or required
by the CARAT Basic Documents and (C) take any other action not inconsistent with
the TIA.
Section 11.2 Form of Documents Delivered to CARAT Indenture Trustee.
(a) In any case where several matters are required to be certified by,
or covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
57
(b) Any certificate or opinion of an Authorized Officer of the Issuer
may be based, insofar as it relates to legal matters, upon a certificate or
opinion of, or representations by, counsel, unless such officer knows, or in the
exercise of reasonable care should know, that any certificate, opinion or
representation with respect to the matters upon which his certificate or opinion
is based is erroneous. Any such certificate of an Authorized Officer or Opinion
of Counsel may be based, insofar as it relates to factual matters, upon a
certificate or opinion of, or representations by, an officer or officers of the
Trust Administrator, the Seller or the Issuer, stating that the information with
respect to such factual matters is in the possession of the Trust Administrator,
the Seller or the Issuer, unless such counsel knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to such matters are erroneous.
(c) Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this CARAT Indenture, they may, but need not, be consolidated
and form one instrument.
(d) Whenever in this CARAT Indenture, in connection with any
application or certificate or report to the CARAT Indenture Trustee, it is
provided that the Issuer shall deliver any document as a condition of the
granting of such application, or as evidence of the Issuer's compliance with any
term hereof, it is intended that the truth and accuracy, at the time of the
granting of such application or at the effective date of such certificate or
report (as the case may be), of the facts and opinions stated in such document
shall in such case be conditions precedent to the right of the Issuer to have
such application granted or to the sufficiency of such certificate or report.
The foregoing shall not, however, be construed to affect the CARAT Indenture
Trustee's right to rely upon the truth and accuracy of any statement or opinion
contained in any such document as provided in Article VI.
Section 11.3 Acts of CARAT 2007-SN1 Noteholders.
(a) Any request, demand, authorization, direction, notice, consent,
waiver or other action provided by this CARAT Indenture to be given or taken by
CARAT 2007-SN1 Noteholders or a class of CARAT 2007-SN1 Noteholders may be
embodied in and evidenced by one or more instruments of substantially similar
tenor signed by such CARAT 2007-SN1 Noteholders in person or by agents duly
appointed in writing; and except as herein otherwise expressly provided such
action shall become effective when such instrument or instruments are delivered
to the CARAT Indenture Trustee, and, where it is hereby expressly required, to
the Issuer. Such instrument or instruments (and the action embodied therein and
evidenced thereby) are herein sometimes referred to as the "Act" of the CARAT
2007-SN1 Noteholders, as applicable, signing such instrument or instruments.
Proof of execution of any such instrument or of a writing appointing any such
agent shall be sufficient for any purpose of this CARAT Indenture and (subject
to Section 6.1) conclusive in favor of the CARAT Indenture Trustee and the
Issuer, if made in the manner provided in this Section 11.3.
(b) The fact and date of the execution by any person of any such
instrument or writing may be proved in any manner that the CARAT Indenture
Trustee deems sufficient.
58
(c) The ownership of CARAT 2007-SN1 Notes shall be proved by the Note
Register.
(d) Any request, demand, authorization, direction, notice, consent,
waiver or other action by the Holder of any CARAT 2007-SN1 Notes (or any one or
more Predecessor CARAT 2007-SN1 Notes) shall bind the Holder of every CARAT
2007-SN1 Note issued upon the registration thereof or in exchange therefor or in
lieu thereof, in respect of anything done, omitted or suffered to be done by the
CARAT Indenture Trustee or the Issuer in reliance thereon, whether or not
notation of such action is made upon such CARAT 2007-SN1 Note.
Section 11.4 Notices, etc., to CARAT Indenture Trustee, Issuer and Rating
Agencies.
Any request, demand, authorization, direction, notice, consent, waiver or
Act of CARAT 2007-SN1 Noteholders or other documents provided or permitted by
this CARAT Indenture to be made upon, given or furnished to or filed with:
(a) the CARAT Indenture Trustee by any CARAT 2007-SN1 Noteholder or by
the Issuer shall be made, given, furnished or filed in writing to or with the
CARAT Indenture Trustee at its Corporate Trust Office; or
(b) the Issuer by the CARAT Indenture Trustee or any CARAT 2007-SN1
Noteholder shall be sufficient for every purpose hereunder if in writing and
either sent by electronic facsimile transmission (with hard copy to follow via
first class mail) or mailed, by certified mail, return receipt requested to the
Issuer and the CARAT Owner Trustee each at the address specified in Appendix B
to the Trust Sale and Administration Agreement.
The Issuer shall promptly transmit any notice received by it from the
CARAT 2007-SN1 Noteholders to the CARAT Indenture Trustee. The CARAT Indenture
Trustee shall likewise promptly transmit any notice received by it from the
CARAT 2007-SN1 Noteholders to the Issuer.
(c) Notices required to be given to the Rating Agencies by the Issuer
and the CARAT Indenture Trustee or the CARAT Owner Trustee shall be delivered as
specified in Appendix B to the Trust Sale and Administration Agreement.
Section 11.5 Notices to CARAT 2007-SN1 Noteholders; Waiver.
(a) Where this CARAT Indenture provides for notice to the CARAT
2007-SN1 Noteholders of any event, such notice shall be sufficiently given
(unless otherwise herein expressly provided) if it is in writing and mailed,
first-class, postage prepaid to each CARAT 2007-SN1 Noteholder affected by such
event, at such Person's address as it appears on the Note Register, not later
than the latest date, and not earlier than the earliest date, prescribed for the
giving of such notice. If notice to CARAT 2007-SN1 Noteholders is given by mail,
neither the failure to mail such notice nor any defect in any notice so mailed
to any particular CARAT 2007-SN1 Noteholder shall affect the sufficiency of such
notice with respect to other CARAT 2007-SN1 Noteholders, and any notice that is
mailed in the manner herein provided shall conclusively be presumed to have been
duly given regardless of whether such notice is in fact actually received.
59
(b) Where this CARAT Indenture provides for notice in any manner, such
notice may be waived in writing by any Person entitled to receive such notice,
either before or after the event, and such waiver shall be the equivalent of
such notice. Waivers of notice by CARAT 2007-SN1 Noteholders shall be filed with
the CARAT Indenture Trustee but such filing shall not be a condition precedent
to the validity of any action taken in reliance upon such a waiver.
(c) In case, by reason of the suspension of regular mail service as a
result of a strike, work stoppage or similar activity, it shall be impractical
to mail notice of any event of CARAT 2007-SN1 Noteholders when such notice is
required to be given pursuant to any provision of this CARAT Indenture, then any
manner of giving such notice as shall be satisfactory to the CARAT Indenture
Trustee shall be deemed to be a sufficient giving of such notice.
(d) Where this CARAT Indenture provides for notice to the Rating
Agencies, failure to give such notice shall not affect any other rights or
obligations created hereunder, and shall not under any circumstance constitute a
CARAT Event of Default.
Section 11.6 Alternate Payment and Notice Provisions.
Notwithstanding any provision of this CARAT Indenture or any of the CARAT
2007-SN1 Notes to the contrary, the Issuer may enter into any agreement with any
Holder of a CARAT 2007-SN1 Note providing for a method of payment, or notice by
the CARAT Indenture Trustee or any Paying Agent to such Holder, that is
different from the methods provided for in this CARAT Indenture for such
payments or notices. The Issuer shall furnish to the CARAT Indenture Trustee a
copy of each such agreement and the CARAT Indenture Trustee shall cause payments
to be made and notices to be given in accordance with such agreements and at the
expense of the Issuer.
Section 11.7 Conflict with Trust Indenture Act.
(a) If any provision hereof limits, qualifies or conflicts with
another provision hereof that is required to be included in this CARAT Indenture
by any of the provisions of the TIA, such required provision shall control.
(b) The provisions of TIA Sections 310 through 317 that impose duties
on any Person (including the provisions automatically deemed included herein
unless expressly excluded by this CARAT Indenture) are a part of and govern this
CARAT Indenture, whether or not physically contained herein.
Section 11.8 Effect of Headings and Table of Contents. The Article and
Section headings herein and the Table of Contents are for convenience only and
shall not affect the construction hereof.
Section 11.9 Successors and Assigns.
(a) All covenants and agreements in this CARAT Indenture and the CARAT
2007-SN1 Notes by the Issuer shall bind its successors and assigns, whether so
expressed or not.
60
(b) All covenants and agreements of the CARAT Indenture Trustee in
this CARAT Indenture shall bind its successors and assigns, whether so expressed
or not.
Section 11.10 Severability.
In case any provision in this CARAT Indenture or in the CARAT 2007-SN1
Notes shall be invalid, illegal or unenforceable, the validity, legality, and
enforceability of the remaining provisions shall not in any way be affected or
impaired thereby.
Section 11.11 Benefits of CARAT Indenture.
Nothing in this CARAT Indenture or in the CARAT 2007-SN1 Notes, express or
implied, shall give to any Person, other than the parties hereto and their
successors hereunder, and to the extent expressly provided herein, the CARAT
2007-SN1 Noteholders, the CARAT 2007-SN1 Certificateholders, any other party
secured hereunder, any other Person with an ownership interest in any part of
the CARAT Trust Estate and any holder of a Third Party Instrument, any benefit
or any legal or equitable right, remedy or claim under this CARAT Indenture. The
holder of a Third Party Instrument shall be a third-party beneficiary to this
CARAT Indenture only to the extent that it has any rights specified herein or
rights with respect to this CARAT Indenture specified under the Swap
Counterparty Rights Agreement.
Section 11.12 Legal Holidays.
If the date on which any payment is due shall not be a Business Day, then
(notwithstanding any other provision of the CARAT 2007-SN1 Notes or this CARAT
Indenture) payment need not be made on such date, but may be made on the next
succeeding Business Day with the same force and effect as if made on the date on
which nominally due, and no interest shall accrue for the period from and after
any such nominal date.
Section 11.13 GOVERNING LAW.
THIS CARAT INDENTURE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE INTERNAL LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO THE PRINCIPLES OF
CONFLICTS OF LAWS THEREOF OR OF ANY OTHER JURISDICTION (OTHER THAN SECTIONS
5-1401 AND 5-1402 OF THE NEW YORK GENERAL OBLIGATIONS LAW), AND THE OBLIGATIONS,
RIGHTS AND REMEDIES OF THE PARTIES UNDER THIS CARAT INDENTURE SHALL BE
DETERMINED IN ACCORDANCE WITH SUCH LAWS.
Section 11.14 Counterparts.
This CARAT Indenture may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same instrument.
61
Section 11.15 Recording of CARAT Indenture.
If this CARAT Indenture is subject to recording in any appropriate public
recording offices, such recording is to be effected by the Issuer and at its
expense accompanied by an Opinion of Counsel (which may be counsel to the CARAT
Indenture Trustee or any other counsel reasonably acceptable to the CARAT
Indenture Trustee) to the effect that such recording is necessary either for the
protection of the CARAT 2007-SN1 Noteholders or any other Person secured
hereunder or for the enforcement of any right or remedy granted to the CARAT
Indenture Trustee under this CARAT Indenture.
Section 11.16 No Recourse.
No recourse may be taken, directly or indirectly, with respect to the
obligations of the Issuer, the CARAT Owner Trustee or the CARAT Indenture
Trustee on the CARAT 2007-SN1 Notes or under this CARAT Indenture or any
certificate or other writing delivered in connection herewith or therewith,
against:
(a) the CARAT Indenture Trustee or the CARAT Owner Trustee in its
individual capacity;
(b) the Seller or any other owner of a beneficial interest in the
Issuer; or
(c) any partner, owner, beneficiary, agent, officer, director,
employee or agent of the CARAT Indenture Trustee or the CARAT Owner Trustee in
its individual capacity, the Seller or any other holder of a beneficial interest
in the Issuer, the CARAT Owner Trustee or the CARAT Indenture Trustee or of any
successor or assign of the CARAT Indenture Trustee or the CARAT Owner Trustee in
its individual capacity (or any of their successors or assigns), except as any
such Person may have expressly agreed (it being understood that the CARAT
Indenture Trustee and the CARAT Owner Trustee have no such obligations in their
individual capacity) and except that any such partner, owner or beneficiary
shall be fully liable, to the extent provided by applicable law, for any unpaid
consideration for stock, unpaid capital contribution or failure to pay any
instalment or call owing to such entity. For all purposes of this CARAT
Indenture, in the performance of any duties or obligations of the Issuer
hereunder, the CARAT Owner Trustee shall be subject to, and entitled to the
benefits of, the terms and provisions of Articles VI, VII and VIII of the Trust
Agreement.
Section 11.17 No Petition.
The CARAT Indenture Trustee, by entering into this CARAT Indenture, and
each CARAT 2007-SN1 Noteholder and Note Owner, by accepting a CARAT 2007-SN1
Note (or interest therein) issued hereunder, hereby covenant and agree that they
shall not, prior to the date which is one year and one day after the termination
of this CARAT Indenture, acquiesce, petition or otherwise invoke or cause the
Seller or the Issuer to invoke the process of any court or government authority
for the purpose of commencing or sustaining a case against the Seller or the
Issuer under any federal or State bankruptcy, insolvency or similar law or
appointing a receiver, liquidator, assignee, trustee, custodian, sequestrator or
other similar official of the Seller or the Issuer or any substantial part of
its property, or ordering the winding up or liquidation of the affairs of the
Seller or the Issuer, that it will not look to property or assets of
62
the Seller in respect to such obligations, that such obligations shall not
constitute a claim against the Seller in respect to such obligations, and that
such obligations shall not constitute a claim against the Issuer in the event
that the Issuer's assets are insufficient to pay in full such obligations, in
each case for one year and one day after all CARAT 2007-SN1 Notes are paid in
full.
Section 11.18 Inspection.
The Issuer agrees that, on reasonable prior notice, it shall permit any
representative of the CARAT Indenture Trustee, during the Issuer's normal
business hours, to examine all the books of account, records, reports, and other
papers of the Issuer, to make copies and extracts therefrom, to cause such books
to be audited by Independent certified public accountants, and to discuss the
Issuer's affairs, finances and accounts with the Issuer's officers, employees
and Independent certified public accountants, all at such reasonable times and
as often as may be reasonably requested. The CARAT Indenture Trustee shall and
shall cause its representatives to hold in confidence all such information
except to the extent disclosure may be required by law (and all reasonable
applications for confidential treatment are unavailing) and except to the extent
that the CARAT Indenture Trustee may reasonably determine that such disclosure
is consistent with its obligations hereunder.
Section 11.19 Indemnification by and Reimbursement of the Trust
Administrator.
The CARAT Indenture Trustee acknowledges and agrees to reimburse (i) the
Trust Administrator and its directors, officers, employees and agents in
accordance with Section 6.03(b) of the Trust Sale and Administration Agreement
and (ii) the Seller and its directors, officers, employees and agents in
accordance with Section 3.04 of the Trust Sale and Administration Agreement. The
CARAT Indenture Trustee further acknowledges and accepts the conditions and
limitations with respect to the Trust Administrator's obligation to indemnify,
defend and hold the CARAT Indenture Trustee harmless as set forth in Section
6.01(a) of the Trust Sale and Administration Agreement.
63
IN WITNESS WHEREOF, the Issuer and the CARAT Indenture Trustee have caused
this CARAT Indenture to be duly executed by their respective officers, thereunto
duly authorized, all as of the day and year first above written.
CAPITAL AUTO RECEIVABLES ASSET TRUST
2007-SN1
By: Deutsche Bank Trust Company
Delaware, not in its individual capacity
but solely 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
THE BANK OF NEW YORK TRUST COMPANY,
N.A., not in its individual capacity but
solely as CARAT Indenture Trustee,
By: /s/ Keith Richardson
------------------------------------
Name: Keith Richardson
Title: Vice President
STATE OF NEW YORK )
) ss
COUNTY OF BRONX )
BEFORE ME, the undersigned authority, a Notary Public in and for said
county and state, on this day personally appeared Jenna Kaufman and Aranka Paul,
known to me to be the person and officer whose name is subscribed to the
foregoing instrument and acknowledged to me that the same was the act of the
said Capital Auto Receivables Asset Trust 2007-SN1, a Delaware statutory trust,
and that she executed the same as the act of said statutory trust for the
purpose and consideration therein expressed, and in the capacities therein
stated.
GIVEN UNDER MY HAND AND SEAL OF OFFICE, this the 7th day of June, 2007.
Notary Public in and for the State of
New York
/s/ Winsome Ferguson
- -------------------------------------
Notary Public
My commission expires: March 3, 2011
STATE OF ILLINOIS )
) ss
COUNTY OF COOK )
BEFORE ME, the undersigned authority, a Notary Public in and for said
county and state, on this day personally appeared Keith Richardson, known to me
to be the person and officer whose name is subscribed to the foregoing
instrument and acknowledged to me that the same was the act of the said The Bank
of New York Trust Company, N.A., a national banking association, and that he
executed the same as the act of said national banking association for the
purpose and consideration therein stated.
GIVEN UNDER MY HAND AND SEAL OF OFFICE, this the 7th day of June, 2007.
Notary Public in and for the State of
Illinois
/s/ T. Muzquiz
- -------------------------------------
Notary Public
My commission expires: July 29, 2009
66
EXHIBIT A
LOCATION OF
SCHEDULE OF COLT 2007-SN1 SECURED NOTES
The Schedule of COLT 2007-SN1 Secured Notes is on file at the offices of:
1. The CARAT Indenture Trustee
2. The CARAT Owner Trustee
3. The COLT Indenture Trustee
4. GMAC LLC
5. Capital Auto Receivables LLC
A-1
EXHIBIT B
FORM OF NOTE DEPOSITORY AGREEMENT FOR THE OFFERED NOTES
[See Tab [__]]
B-1
EXHIBIT C-1
FORM OF CLASS [CLASS A-2A] [CLASS A-3A] [CLASS B] [CLASS C] [CLASS D] FIXED RATE
ASSET BACKED NOTE
REGISTERED $[______]
No. R-[__]
Interest Rate [___] % per annum
SEE REVERSE FOR CERTAIN DEFINITIONS
CUSIP NO. [_____]
UNLESS THIS [CLASS A-2A] [CLASS A-3A] [CLASS B] [CLASS C] [CLASS D]
NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST
COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE ISSUER OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY [CLASS A-2A] [CLASS
A-3A] [CLASS B] [CLASS C] [CLASS D] NOTE ISSUED IS REGISTERED IN THE NAME
OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH
OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY
PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS
AN INTEREST HEREIN.
THE PRINCIPAL OF THIS [CLASS A-2A] [CLASS A-3A] [CLASS B] [CLASS C]
[CLASS D] NOTE IS PAYABLE AS SET FORTH HEREIN. ACCORDINGLY, THE OUTSTANDING
PRINCIPAL AMOUNT OF THIS [CLASS A-2A] [CLASS A-3A] [CLASS B] [CLASS C]
[CLASS D] NOTE AT ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ON THE FACE
HEREOF.
CAPITAL AUTO RECEIVABLES ASSET TRUST 2007-SN1
[CLASS A-2A] [CLASS A-3A] [CLASS B] [CLASS C] [CLASS D] _____% ASSET BACKED
NOTES
CAPITAL AUTO RECEIVABLES ASSET TRUST 2007-SN1, a statutory trust organized and
existing under the laws of the State of Delaware (herein referred to as the
"Issuing Entity"), for value received, hereby promises to pay to Cede & Co., or
registered assigns, the principal sum of
C-1-1
__________ DOLLARS ($__________) or such lesser outstanding amount as may be
payable in accordance with the Indenture (as defined on the reverse side of this
Note), on each Distribution Date, in an amount equal to the result obtained by
multiplying (i) a fraction, the numerator of which is the initial principal
amount hereof and the denominator of which is the aggregate initial principal
amount for such [Class A-2a] [Class A-3a] [Class B] [Class C] [Class D] Notes by
(ii) the aggregate amount, if any, payable on such Distribution Date from the
Note Distribution Account in respect of principal on the [Class A-2a] [Class
A-3a] [Class B] [Class C] [Class D] Notes pursuant to Sections 2.7, 3.1 and
8.2(c) of the Indenture; provided, however, that the entire unpaid principal
amount of this Note shall be due and payable on __________ (the "Final Scheduled
Distribution Date") unless the Note is earlier redeemed pursuant to Section 10.1
of the Indenture, in which case such unpaid principal amount shall be due on the
Redemption Date. The Issuing Entity shall pay interest on this Note at the rate
per annum shown above on each Distribution Date until the principal of this Note
is paid or made available for payment on the principal amount of this Note
outstanding on the preceding Distribution Date (after giving effect to all
payments of principal made on the preceding Distribution Date (or, for the
initial Distribution Date, the outstanding principal balance on the Closing
Date)). Interest on the [Class A-2a] [Class A-3a] [Class B] [Class C] [Class D]
Notes will accrue from and including the Closing Date and will be payable on
each Distribution Date in an amount equal to the Note Class Interest
Distributable Amount for such Distribution Date for the [Class A-2a] [Class
A-3a] [Class B] [Class C] [Class D] Notes. Interest will be computed on the
basis of a 360-day year of twelve 30-day months (or, in the case of the initial
Distribution Date, a 61 day period). Such principal of and interest on this Note
shall be paid in the manner specified on the reverse hereof. All interest
payments on each class of Notes on any Distribution Date shall be made pro rata
to the Noteholders of such class entitled thereto.
The principal of and interest on this Note are payable in such coin or currency
of the United States of America which, at the time of payment, is legal tender
for payment of public and private debts. All payments made by the Issuing Entity
with respect to this Note shall be applied first to interest due and payable on
this Note as provided above and then to the unpaid principal of this Note.
Reference is made to the further provisions of this Note set forth on the
reverse hereof, which shall have the same effect as though fully set forth on
the face of this Note.
Unless the certificate of authentication hereon has been executed by the
Indenture Trustee whose name appears below by manual signature, this Note shall
not be entitled to any benefit under the Indenture referred to on the reverse
hereof or be valid or obligatory for any purpose.
C-1-2
IN WITNESS WHEREOF, the Issuing Entity has caused this instrument to be signed,
manually or in facsimile, by its Authorized Officer.
Dated: June 7, 2007
CAPITAL AUTO RECEIVABLES ASSET TRUST 2007-SN1
By: DEUTSCHE BANK TRUST COMPANY
DELAWARE, not in its individual
capacity but solely as Owner
Trustee
By:
---------------------------------
Name:
-------------------------------
Title:
------------------------------
By:
---------------------------------
Name:
-------------------------------
Title:
------------------------------
C-1-3
INDENTURE TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Notes designed above and referred to in the
within-mentioned Indenture.
THE BANK OF NEW YORK TRUST COMPANY,
N.A., not in its individual capacity but
solely as Indenture Trustee
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
C-1-4
CAPITAL AUTO RECEIVABLES ASSET TRUST 2007-SN1
[CLASS A-2A] [CLASS A-3A] [CLASS B] [CLASS C] [CLASS D] FIXED RATE
ASSET BACKED NOTES
CAPITAL AUTO RECEIVABLES ASSET TRUST 2007-SN1, a statutory trust organized
and existing under the laws of the State of Delaware (herein referred to as the
"Issuer"), for value received, hereby promises to pay to CEDE & CO., or
registered assigns, the principal sum of __________ DOLLARS ($__________) or
such lesser outstanding amount as may be payable in accordance with the CARAT
Indenture (as defined on the reverse side of this CARAT 2007-SN1 Note), on each
Distribution Date in an amount equal to the result obtained by multiplying (i) a
fraction, the numerator of which is the initial principal amount hereof and the
denominator of which is the initial aggregate principal amount for such [Class
A-2a] [Class A-3a] [Class B] [Class C] [Class D] Notes by (ii) the aggregate
amount, if any, payable on such Distribution Date from the Note Distribution
Account in respect of principal on the [Class A-2a] [Class A-3a] [Class B]
[Class C] [Class D] Notes pursuant to Sections 2.7, 3.1 and 8.2(c) of the CARAT
Indenture; provided, however, that the entire unpaid principal amount of this
[Class A-2a] [Class A-3a] [Class B] [Class C] [Class D] Note shall be due and
payable on [____] (the "Final Scheduled Distribution Date"), unless this [Class
A-2a] [Class A-3a] [Class B] [Class C] [Class D] Note is earlier redeemed,
pursuant to Section 10.1 of the CARAT Indenture, in which case such unpaid
principal amount shall be due on the Redemption Date. The Issuer shall pay
interest on this [Class A-2a] [Class A-3a] [Class B] [Class C] [Class D] Note at
the rate per annum shown above on each Distribution Date in accordance with the
terms of the CARAT Indenture until the principal of this [Class A-2a] [Class
A-3a] [Class B] [Class C] [Class D] Note is paid or made available for payment
on the principal amount of this [Class A-2a] [Class A-3a] [Class B] [Class C]
[Class D] Note outstanding on the preceding Distribution Date (after giving
effect to all payments of principal made on the preceding Distribution Date (or,
for the first Distribution Date, the outstanding principal balance on the Series
2007-SN1 Closing Date)). Interest on the [Class A-2a] [Class A-3a] [Class B]
[Class C] [Class D] Notes will accrue from and including the Series 2007-SN1
Closing Date at the rate per annum shown above, and will be payable on each
Distribution Date in an amount equal to the CARAT 2007-SN1 Noteholders' Note
Class Interest Distributable Amount for such Distribution Date for the [Class
A-2a] [Class A-3a] [Class B] [Class C] [Class D] Notes. Interest will be
computed on the basis of a 360-day year of twelve 30-day months (or, in the case
of the first Distribution Date, [61/360). Such principal of and interest on this
[Class A-2a] [Class A-3a] [Class B] [Class C] [Class D] Note shall be paid in
the manner specified in the CARAT Indenture. All interest payments on this
[Class A-2a] [Class A-3a] [Class B] [Class C] [Class D] Note on any Distribution
Date shall be made pro rata to the [Class A-2a] [Class A-3a] [Class B] [Class C]
[Class D] Noteholders entitled thereto.
The principal of and interest on this [Class A-2a] [Class A-3a] [Class B]
[Class C] [Class D] Note are payable in such coin or currency of the United
States of America which, at the time of payment, is legal tender for payment of
public and private debts. All payments made by the Issuer with respect to this
[Class A-2a] [Class A-3a] [Class B] [Class C] [Class D] Note shall be applied
first to interest due and payable on this [Class A-2a] [Class A-3a] [Class B]
[Class C] [Class D] Note as provided above and then to the unpaid principal of
this [Class A-2a] [Class A-3a] [Class B] [Class C] [Class D] Note.
C-1-5
Reference is made to the further provisions of this [Class A-2a] [Class
A-3a] [Class B] [Class C] [Class D] Note set forth on the reverse hereof, which
shall have the same effect as though fully set forth on the face of this [Class
A-2a] [Class A-3a] [Class B] [Class C] [Class D] Note.
Unless the certificate of authentication hereon has been executed by the
CARAT Indenture Trustee whose name appears below by manual signature, this
[Class A-2a] [Class A-3a] [Class B] [Class C] [Class D] Note shall not be
entitled to any benefit under the CARAT Indenture referred to on the reverse
hereof or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Issuer has caused this instrument to be signed,
manually or in facsimile, by its Authorized Officer.
Date: __________, 2007
CAPITAL AUTO RECEIVABLES ASSET
TRUST 2007-SN1
By: DEUTSCHE BANK TRUST COMPANY DELAWARE,
not in its individual capacity but
solely as CARAT Owner Trustee
By:
---------------------------------------
Name:
-------------------------------------
Title:
------------------------------------
By:
---------------------------------------
Name:
-------------------------------------
Title:
------------------------------------
C-1-6
CARAT INDENTURE TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the CARAT 2007-SN1 Notes designated above and referred to in
the within-mentioned CARAT Indenture.
THE BANK OF NEW YORK TRUST COMPANY,
N.A., not in its individual capacity but
solely as CARAT Indenture Trustee
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
C-1-7
REVERSE OF NOTE
This CARAT 2007-SN1 Note is one of a duly authorized issue of CARAT 2007-SN1
Notes of the Issuer, designated as its [Class A-2a] [Class A-3a] [Class B]
[Class C] [Class D] Fixed Rate Asset Backed Notes (herein called the "[Class
A-2a] [Class A-3a] [Class B] [Class C] [Class D] Notes"), all issued under a
CARAT Indenture, dated as of June 7, 2007 (such CARAT Indenture, as supplemented
or amended, is herein called the "CARAT Indenture"), between the Issuer and THE
BANK OF NEW YORK TRUST COMPANY, N.A., as trustee (the "CARAT Indenture Trustee",
which term includes any successor trustee under the CARAT Indenture), to which
CARAT Indenture and all indentures supplemental thereto reference is hereby made
for a statement of the respective rights and obligations thereunder of the
Issuer, the CARAT Indenture Trustee and the CARAT 2007-SN1 Noteholders. The
[Class A-2a] [Class A-3a] [Class B] [Class C] [Class D] Notes are one of several
duly authorized classes of CARAT 2007-SN1 Notes of the Issuer issued pursuant to
the CARAT Indenture (collectively, as to all CARAT 2007-SN1 Notes of all such
classes, the "CARAT 2007-SN1 Notes"). The CARAT 2007-SN1 Notes are governed by
and subject to all terms of the CARAT Indenture (which terms are incorporated
herein and made a part hereof), to which CARAT Indenture the Holder of this
CARAT 2007-SN1 Note by virtue of acceptance hereof assents and by which such
Holder is bound. All capitalized terms used and not otherwise defined in this
CARAT 2007-SN1 Note that are defined in the CARAT Indenture, as supplemented or
amended, shall have the meanings assigned to them in or pursuant to the CARAT
Indenture.
The [Class A-2a] [Class A-3a] [Class B] [Class C] [Class D] Notes and all other
CARAT 2007-SN1 Notes issued pursuant to the CARAT Indenture are and will be
equally and ratably secured by the Collateral pledged as security therefor as
provided in the CARAT Indenture.
By acquiring a CARAT 2007-SN1 Note or any interest therein, each purchaser and
transferee will be deemed to represent and warrant that either (A) it is not (i)
an "employee benefit plan" (as defined in Section 3(3) of the United States
Employee Retirement Income Security Act of 1974, as amended ("ERISA"), that is
subject to the provisions of Title I of ERISA, (ii) a "plan" as described in
Section 4975(e)(1) of the Internal Revenue Code of 1986, as amended (the
"Code"), (iii) an entity whose underlying assets include plan assets by reason
of an employee benefit plan's or a plan's investment in the entity or (iv) other
plan subject to applicable law that is substantially similar to Section 406 of
ERISA or Section 4975 of the Code or (B) the acquisition, holding and
disposition of the CARAT 2007-SN1 Note will not give rise to a non-exempt
prohibited transaction under Section 406(a) of ERISA, Section 4975 of the Code
or a violation of any substantially similar applicable law.
Each CARAT 2007-SN1 Noteholder or Note Owner, by acceptance of a CARAT 2007-SN1
Note or, in the case of a Note Owner, a beneficial interest in a CARAT 2007-SN1
Note, covenants and agrees that no recourse may be taken, directly or
indirectly, with respect to the obligations of the Issuer, the CARAT Owner
Trustee or the CARAT Indenture Trustee on the CARAT 2007-SN1 Notes or under the
CARAT Indenture or any certificate or other writing delivered in connection
therewith, against (i) the CARAT Indenture Trustee or the CARAT Owner Trustee in
their individual capacities, (ii) the Seller or any other owner of a beneficial
interest in the Issuer or (iii) any partner, owner, beneficiary, agent, officer,
director or employee of the CARAT Indenture Trustee or the CARAT Owner Trustee
in their individual capacities,
C-1-8
any holder of a beneficial interest in the Issuer, the CARAT Owner Trustee or
the CARAT Indenture Trustee or of any successor or assign of the CARAT Indenture
Trustee or the CARAT Owner Trustee in their individual capacities, except as any
such Person may have expressly agreed and except that any such partner, owner or
beneficiary shall be fully liable, to the extent provided by applicable law, for
any unpaid consideration for stock, unpaid capital contribution or failure to
pay any instalment or call owing to such entity.
Each CARAT 2007-SN1 Noteholder or Note Owner, by acceptance of a CARAT 2007-SN1
Note or, in the case of a Note Owner, a beneficial interest in a CARAT 2007-SN1
Note, covenants and agrees that by accepting the benefits of the CARAT Indenture
such CARAT 2007-SN1 Noteholder will not, prior to the date which is one year and
one day after the termination of the CARAT Indenture, acquiesce, petition or
otherwise invoke or cause the Seller or the Issuer to invoke the process of any
court or government authority for the purpose of commencing or sustaining a case
against the Seller or the Issuer under any federal or state bankruptcy,
insolvency or similar law or appointing a receiver, liquidator, assignee,
trustee, custodian, sequestrator or other similar official of the Seller or the
Issuer or any substantial part of its property, or ordering the winding up or
liquidation of the affairs of the Seller or the Issuer.
Each CARAT 2007-SN1 Noteholder or Note Owner, by acceptance of a CARAT 2007-SN1
Note or, in the case of a Note Owner, a beneficial interest in a CARAT 2007-SN1
Note, expresses its intention that this CARAT 2007-SN1 Note qualifies under
applicable tax law as indebtedness secured by the Collateral and, unless
otherwise required by appropriate taxing authorities, agrees to treat the CARAT
2007-SN1 Notes as indebtedness secured by the Collateral for the purpose of
federal income taxes, state and local income and franchise taxes, Michigan
single business tax, and any other taxes imposed upon, measured by or based upon
gross or net income.
Prior to the due presentment for registration of transfer of this CARAT 2007-SN1
Note, the Issuer, the CARAT Indenture Trustee and any agent of the Issuer or the
CARAT Indenture Trustee may treat the Person in whose name this CARAT 2007-SN1
Note (as of the day of determination or as of such other date as may be
specified in the CARAT Indenture) is registered as the owner hereof for all
purposes, whether or not this CARAT 2007-SN1 Note shall be overdue, and neither
the Issuer, the CARAT Indenture Trustee nor any such agent shall be affected by
notice to the contrary.
The CARAT Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Issuer and the rights of the CARAT 2007-SN1 Noteholders under the CARAT
Indenture at any time by the Issuer with the consent of the Holders of CARAT
2007-SN1 Notes representing a majority of the Outstanding Amount of the
Controlling Class. The CARAT Indenture also contains provisions permitting the
Holders of CARAT 2007-SN1 Notes representing specified percentages of the
Outstanding Amount of the Controlling Class, on behalf of the Holders of all
CARAT 2007-SN1 Notes, to waive compliance by the Issuer with certain provisions
of the CARAT Indenture and certain past defaults under the CARAT Indenture and
their consequences. Any such consent or waiver by the Holder of this CARAT
2007-SN1 Note (or any one of more Predecessor Notes) shall be conclusive and
binding upon such Holder and upon all future Holders of this CARAT 2007-SN1 Note
and of any CARAT 2007-SN1 Note issued upon the registration of transfer hereof
or in
C-1-9
exchange hereof or in lieu hereof whether or not notation of such consent or
waiver is made upon this CARAT 2007-SN1 Note. The CARAT Indenture also permits
the CARAT Indenture Trustee to amend or waive certain terms and conditions set
forth in the CARAT Indenture without the consent of the CARAT 2007-SN1
Noteholders.
The term "Issuer" as used in this CARAT 2007-SN1 Note includes any successor to
the Issuer under the CARAT Indenture.
The Issuer is permitted by the CARAT Indenture, under certain circumstances, to
merge or consolidate, subject to the rights of the CARAT Indenture Trustee and
the Holders of CARAT 2007-SN1 Notes under the CARAT Indenture.
The CARAT 2007-SN1 Notes are issuable only in registered form in denominations
as provided in the CARAT Indenture, subject to certain limitations therein set
forth.
THIS CARAT 2007-SN1 NOTE AND THE CARAT INDENTURE SHALL BE CONSTRUED IN
ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO
THE PRINCIPLES OF CONFLICTS OF LAWS THEREOF OR OF ANY OTHER JURISDICTION (OTHER
THAN SECTIONS 5-1401 AND 5-1402 OF THE NEW YORK GENERAL OBLIGATIONS LAW), AND
THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER AND THEREUNDER
SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
No reference herein to the CARAT Indenture and no provision of this CARAT
2007-SN1 Note or of the CARAT Indenture shall alter or impair the obligation of
the Issuer, which is absolute and unconditional, to pay the principal of and
interest on this CARAT 2007-SN1 Note at the times, place and rate, and in the
coin or currency herein prescribed.
Anything herein to the contrary notwithstanding, except as expressly provided in
the CARAT Basic Documents, neither the Seller, the Trust Administrator, the
CARAT Indenture Trustee nor the CARAT Owner Trustee in their respective
individual capacities, any owner of a beneficial interest in the Issuer, nor any
of their respective partners, beneficiaries, agents, officers, directors,
employees or successors or assigns, shall be personally liable for, nor shall
recourse be had to any of them for, the payment of principal of or interest on,
or performance of, or omission to perform, any of the covenants, obligations or
indemnifications contained in this CARAT 2007-SN1 Note or the CARAT Indenture,
it being expressly understood that said covenants, obligations and
indemnifications have been made by the CARAT Owner Trustee solely as the CARAT
Owner Trustee in the assets of the Issuer. The Holder of this CARAT 2007-SN1
Note by the acceptance hereof agrees that, except as expressly provided in the
CARAT Basic Documents, in the case of a CARAT Event of Default under the CARAT
Indenture, the Holder shall have no claim against any of the foregoing for any
deficiency, loss or claim therefrom; provided, however, that nothing contained
herein shall be taken to prevent recourse to, and enforcement against, the
assets of the Issuer for any and all liabilities, obligations and undertakings
contained in the CARAT Indenture or in this CARAT 2007-SN1
C-1-10
ASSIGNMENT
Social Security or taxpayer I.D. or other identifying number of assignee
_____________________________________
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers
unto ___________________________________________________________________________
(name and address of assignee)
the within CARAT 2007-SN1 Note and all rights thereunder, and hereby irrevocably
constitutes and appoints __________________________________________, as
attorney, to transfer said CARAT 2007-SN1 Note on the books kept for
registration thereof, with full power of substitution in the premises.
Dated: (1)
------------------------------ -------------------------------------
Signature Guaranteed:
- ------------------------------------- ----------------------------------------
- ----------
(1) NOTE: The signature to this assignment must correspond with the name of the
registered owner as it appears on the face of the within CARAT 2007-SN1
Note in every particular, without alteration, enlargement or any change
whatsoever.
C-1-11
EXHIBIT C-2
FORM OF CLASS [CLASS A-2B] [CLASS A-3B] [CLASS A-4]
FLOATING RATE ASSET BACKED NOTE
REGISTERED $[______]
No. R-[___]
Interest Rate: LIBOR + [__]% per annum
SEE REVERSE FOR CERTAIN DEFINITIONS
CUSIP NO. [__]
UNLESS [CLASS A-2B] [CLASS A-3B] [CLASS A-4] NOTE IS PRESENTED BY
AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK
CORPORATION ("DTC"), TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY [CLASS A-2B] [CLASS A-3B] [CLASS
A-4] NOTE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY
PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF
FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE
REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THE PRINCIPAL OF THIS [CLASS A-2B] [CLASS A-3B] [CLASS A-4] NOTE
IS PAYABLE AS SET FORTH HEREIN. ACCORDINGLY, THE OUTSTANDING PRINCIPAL
AMOUNT OF THIS [CLASS A-2B] [CLASS A-3B] [CLASS A-4] NOTE AT ANY TIME MAY
BE LESS THAN THE AMOUNT SHOWN ON THE FACE HEREOF.
CAPITAL AUTO RECEIVABLES ASSET TRUST 2007-SN1
[CLASS A-2B] [CLASS A-3B][CLASS A-4] LIBOR + _____% ASSET BACKED NOTES
CAPITAL AUTO RECEIVABLES ASSET TRUST 2007-SN1, a statutory trust organized and
existing under the laws of the State of Delaware (herein referred to as the
"Issuing Entity"), for value received, hereby promises to pay to Cede & Co., or
registered assigns, the principal sum of __________ DOLLARS ($__________) or
such lesser outstanding amount as may be payable in accordance with the
Indenture (as defined on the reverse side of this Note), on each
C-2-1
Distribution Date, in an amount equal to the result obtained by multiplying (i)
a fraction, the numerator of which is the initial principal amount hereof and
the denominator of which is the aggregate initial principal amount for such
[Class A-2b] [Class A-3b] [Class A-4] Notes by (ii) the aggregate amount, if
any, payable on such Distribution Date from the Note Distribution Account in
respect of principal on the [Class A-2b] [Class A-3b] [Class A-4] Notes pursuant
to Sections 2.7, 3.1 and 8.2(c) of the Indenture; provided, however, that the
entire unpaid principal amount of this Note shall be due and payable on
__________ (the "Final Scheduled Distribution Date") unless the Note is earlier
redeemed pursuant to Section 10.1 of the Indenture, in which case such unpaid
principal amount shall be due on the Redemption Date. The Issuing Entity shall
pay interest on this Note at the rate per annum shown above on each Distribution
Date until the principal of this Note is paid or made available for payment on
the principal amount of this Note outstanding on the preceding Distribution Date
(after giving effect to all payments of principal made on the preceding
Distribution Date (or, for the initial Distribution Date, the outstanding
principal balance on the Closing Date)). Interest on the [Class A-2b] [Class
A-3b] [Class A-4] Notes will accrue from and including the Closing Date and will
be payable on each Distribution Date in an amount equal to the Note Class
Interest Distributable Amount for such Distribution Date for the [Class A-2b]
[Class A-3b] [Class A-4] Notes. Interest will be computed on the basis of the
actual number of days elapsed from and including the prior Distribution Date
(or, in the case of the initial Distribution Date, from and including the Series
2007-SN1 Closing Date) to but excluding the current Distribution Date and a
360-day year. Such principal of and interest on this Note shall be paid in the
manner specified on the reverse hereof. All interest payments on each class of
Notes on any Distribution Date shall be made pro rata to the Noteholders of such
class entitled thereto.
The principal of and interest on this Note are payable in such coin or currency
of the United States of America which, at the time of payment, is legal tender
for payment of public and private debts. All payments made by the Issuing Entity
with respect to this Note shall be applied first to interest due and payable on
this Note as provided above and then to the unpaid principal of this Note.
Reference is made to the further provisions of this Note set forth on the
reverse hereof, which shall have the same effect as though fully set forth on
the face of this Note.
Unless the certificate of authentication hereon has been executed by the
Indenture Trustee whose name appears below by manual signature, this Note shall
not be entitled to any benefit under the Indenture referred to on the reverse
hereof or be valid or obligatory for any purpose.
C-2-2
IN WITNESS WHEREOF, the Issuing Entity has caused this instrument to be signed,
manually or in facsimile, by its Authorized Officer.
Dated: June 7, 2007
CAPITAL AUTO RECEIVABLES ASSET TRUST
2007-SN1
By: DEUTSCHE BANK TRUST COMPANY
DELAWARE, not in its individual
capacity but solely as Owner Trustee
By:
---------------------------------
Name:
-------------------------------
Title:
------------------------------
By:
---------------------------------
Name:
-------------------------------
Title:
------------------------------
C-2-3
INDENTURE TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Notes designed above and referred to in the
within-mentioned Indenture.
THE BANK OF NEW YORK TRUST COMPANY,
N.A., not in its individual capacity but
solely as Indenture Trustee
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
C-2-4
CAPITAL AUTO RECEIVABLES ASSET TRUST 2007-SN1
[CLASS A-2B] [CLASS A-3B] [CLASS A-4] FLOATING RATE ASSET BACKED NOTES
CAPITAL AUTO RECEIVABLES ASSET TRUST 2007-SN1, a statutory trust organized and
existing under the laws of the State of Delaware (herein referred to as the
"Issuer"), for value received, hereby promises to pay to CEDE & CO., or
registered assigns, the principal sum of __________ DOLLARS ($______) or such
lesser outstanding amount as may be payable in accordance with the CARAT
Indenture (as defined on the reverse side of this CARAT 2007-SN1 Note), on each
Distribution Date in an amount equal to the result obtained by multiplying (i) a
fraction, the numerator of which is the initial principal amount hereof and the
denominator of which is the initial aggregate principal amount for such [Class
A-2b] [Class A-3b] [Class A-4] Notes, by (ii) the aggregate amount, if any,
payable on such Distribution Date from the CARAT 2007-SN1 Note Distribution
Account in respect of principal on this [Class A-2b] [Class A-3b] Notes pursuant
to Sections 2.7, 3.1 and 8.2(c) of the CARAT Indenture; provided, however, that
the entire unpaid principal amount of this [Class A-2b] [Class A-3b] [Class A-4]
Note shall be due and payable on [_____] (the "Final Scheduled Distribution
Date"), unless this [Class A-2b] [Class A-3b] [Class A-4] Note is earlier
redeemed pursuant to Section 10.1 of the CARAT Indenture, in which case such
unpaid principal amount shall be due on the Redemption Date. The Issuer shall
pay interest on this [Class A-2b] [Class A-3b] [Class A-4] Note on each
Distribution Date in accordance with the terms of the CARAT Indenture until the
principal of this [Class A-2b] [Class A-3b] [Class A-4] Note is paid or made
available for payment on the principal amount of this [Class A-2b] [Class A-3b]
[Class A-4] Note outstanding on the preceding Distribution Date (after giving
effect to all payments of principal made on the preceding Distribution Date (or,
for the initial Distribution Date, the outstanding principal balance on the
Series 2007-SN1 Closing Date)). Interest on the [Class A-2b] [Class A-3b] [Class
A-4] Notes will accrue from and including the Series 2007-SN1 Closing Date at
the rate per annum shown above, and will be payable on each Distribution Date in
an amount equal to the CARAT 2007-SN1 Noteholders' Note Class Interest
Distributable Amount for such Class on such Distribution Date for the [Class
A-2b] [Class A-3b] [Class A-4] Notes. Interest will be computed on the basis of
actual number of days elapsed from and including the prior Distribution Date
(or, in the case of the first Distribution Date, from and including the Series
2007-SN1 Closing Date) to but excluding the current Distribution Date and a
360-day year. Such principal of and interest on this [Class A-2b] [Class A-3b]
[Class A-4] Note shall be paid in the manner specified in the CARAT Indenture.
All interest payments on the [Class A-2b] [Class A-3b] [Class A-4] Notes on any
Distribution Date shall be made pro rata to the [Class A-2b] [Class A-3b] [Class
A-4] Noteholders entitled thereto.
The principal of and interest on this [Class A-2b] [Class A-3b] [Class A-4] Note
are payable in such coin or currency of the United States of America which, at
the time of payment, is legal tender for payment of public and private debts.
All payments made by the Issuer with respect to this [Class A-2b] [Class A-3b]
[Class A-4] Note shall be applied first to interest due and payable on this
[Class A-2b] [Class A-3b] [Class A-4] Note as provided above and then to the
unpaid principal of this [Class A-2b] [Class A-3b] [Class A-4] Note as provided
above.
C-2-5
Reference is made to the further provisions of this [Class A-2b] [Class A-3b]
[Class A-4] Note set forth on the reverse hereof, which shall have the same
effect as though fully set forth on the face of this [Class A-2b] [Class A-3b]
[Class A-4] Note.
Unless the certificate of authentication hereon has been executed by the CARAT
Indenture Trustee whose name appears below by manual signature, this [Class
A-2b] [Class A-3b] [Class A-4] Note shall not be entitled to any benefit under
the CARAT Indenture referred to on the reverse hereof or be valid or obligatory
for any purpose.
C-2-6
IN WITNESS WHEREOF, the Issuer has caused this instrument to be signed, manually
or in facsimile, by its Authorized Officer.
Date: ____________, 2007
CAPITAL AUTO RECEIVABLES ASSET TRUST
2007-SN1
By: DEUTSCHE BANK TRUST COMPANY
DELAWARE, not in its individual
capacity but solely as CARAT Owner
Trustee
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
C-2-7
CARAT INDENTURE TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the CARAT 2007-SN1 Notes designated above and referred to in the
within-mentioned CARAT Indenture.
THE BANK OF NEW YORK TRUST COMPANY,
N.A., not in its individual capacity but
solely as CARAT Indenture Trustee
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
C-2-8
REVERSE OF NOTE
This CARAT 2007-SN1 Note is one of a duly authorized issue of CARAT 2007-SN1
Notes of the Issuer, designated as its [Class A-2b] [Class A-3b] [Class A-4]
Floating Rate Asset Backed Notes (herein called the "[Class A-2b] [Class A-3b]
[Class A-4] Notes"), all issued under an CARAT Indenture, dated as of June 7,
2007 (such CARAT Indenture, as supplemented or amended, is herein called the
"CARAT Indenture"), between the Issuer and THE BANK OF NEW YORK TRUST COMPANY,
N.A., as trustee (the "CARAT Indenture Trustee", which term includes any
successor trustee under the CARAT Indenture), to which CARAT Indenture and all
indentures supplemental thereto reference is hereby made for a statement of the
respective rights and obligations thereunder of the Issuer, the CARAT Indenture
Trustee and the CARAT 2007-SN1 Noteholders. The [Class A-2b] [Class A-3b] [Class
A-4] Notes are one of several duly authorized classes of CARAT 2007-SN1 Notes of
the Issuer issued pursuant to the CARAT Indenture (collectively, as to all CARAT
2007-SN1 Notes of all such classes, the "CARAT 2007-SN1 Notes"). The CARAT
2007-SN1 Notes are governed by and subject to all terms of the CARAT Indenture
(which terms are incorporated herein and made a part hereof), to which CARAT
Indenture the Holder of this CARAT 2007-SN1 Note by virtue of acceptance hereof
assents and by which such Holder is bound. All capitalized terms used and not
otherwise defined in this CARAT 2007-SN1 Note that are defined in the CARAT
Indenture, as supplemented or amended, shall have the meanings assigned to them
in or pursuant to the CARAT Indenture.
The [Class A-2b] [Class A-3b] [Class A-4] Notes and all other CARAT 2007-SN1
Notes issued pursuant to the CARAT Indenture are and will be equally and ratably
secured by the Collateral pledged as security therefor as provided in the CARAT
Indenture.
By acquiring a CARAT 2007-SN1 Note or any interest therein, each purchaser and
transferee will be deemed to represent and warrant that either (A) it is not (i)
an "employee benefit plan" (as defined in Section 3(3) of the United States
Employee Retirement Income Security Act of 1974, as amended ("ERISA"), that is
subject to the provisions of Title I of ERISA, (ii) a "plan" as described in
Section 4975(e)(1) of the Internal Revenue Code of 1986, as amended (the
"Code"), (iii) an entity whose underlying assets include plan assets by reason
of an employee benefit plan's or a plan's investment in the entity or (iv) other
plan subject to applicable law that is substantially similar to Section 406 of
ERISA or Section 4975 of the Code or (B) the acquisition, holding and
disposition of the CARAT 2007-SN1 Note will not give rise to a non-exempt
prohibited transaction under Section 406(a) of ERISA, Section 4975 of the Code
or a violation of any substantially similar applicable law.
Each CARAT 2007-SN1 Noteholder or Note Owner, by acceptance of a CARAT 2007-SN1
Note or, in the case of a Note Owner, a beneficial interest in a CARAT 2007-SN1
Note, covenants and agrees that no recourse may be taken, directly or
indirectly, with respect to the obligations of the Issuer, the CARAT Owner
Trustee or the CARAT Indenture Trustee on the CARAT 2007-SN1 Notes or under the
CARAT Indenture or any certificate or other writing delivered in connection
therewith, against (i) the CARAT Indenture Trustee or the CARAT Owner Trustee in
their individual capacities, (ii) the Seller or any other owner of a beneficial
interest in the Issuer or (iii) any partner, owner, beneficiary, agent, officer,
director or employee of the CARAT Indenture Trustee or the CARAT Owner Trustee
in their individual capacities,
C-2-9
any holder of a beneficial interest in the Issuer, the CARAT Owner Trustee or
the CARAT Indenture Trustee or of any successor or assign of the CARAT Indenture
Trustee or the CARAT Owner Trustee in their individual capacities, except as any
such Person may have expressly agreed and except that any such partner, owner or
beneficiary shall be fully liable, to the extent provided by applicable law, for
any unpaid consideration for stock, unpaid capital contribution or failure to
pay any instalment or call owing to such entity.
Each CARAT 2007-SN1 Noteholder or Note Owner, by acceptance of a CARAT 2007-SN1
Note or, in the case of a Note Owner, a beneficial interest in a CARAT 2007-SN1
Note, covenants and agrees that by accepting the benefits of the CARAT Indenture
such CARAT 2007-SN1 Noteholder will not, prior to the date which is one year and
one day after the termination of the CARAT Indenture, acquiesce, petition or
otherwise invoke or cause the Seller or the Issuer to invoke the process of any
court or government authority for the purpose of commencing or sustaining a case
against the Seller or the Issuer under any federal or state bankruptcy,
insolvency or similar law or appointing a receiver, liquidator, assignee,
trustee, custodian, sequestrator or other similar official of the Seller or the
Issuer or any substantial part of its property, or ordering the winding up or
liquidation of the affairs of the Seller or the Issuer.
Each CARAT 2007-SN1 Noteholder or Note Owner, by acceptance of a CARAT 2007-SN1
Note or, in the case of a Note Owner, a beneficial interest in a CARAT 2007-SN1
Note, expresses its intention that this CARAT 2007-SN1 Note qualifies under
applicable tax law as indebtedness secured by the Collateral and, unless
otherwise required by appropriate taxing authorities, agrees to treat the CARAT
2007-SN1 Notes as indebtedness secured by the Collateral for the purpose of
federal income taxes, state and local income and franchise taxes, Michigan
single business tax, and any other taxes imposed upon, measured by or based upon
gross or net income.
Prior to the due presentment for registration of transfer of this CARAT 2007-SN1
Note, the Issuer, the Indenture Trustee and any agent of the Issuer or the CARAT
Indenture Trustee may treat the Person in whose name this CARAT 2007-SN1 Note
(as of the day of determination or as of such other date as may be specified in
the CARAT Indenture) is registered as the owner hereof for all purposes, whether
or not this CARAT 2007-SN1 Note shall be overdue, and neither the Issuer, the
CARAT Indenture Trustee nor any such agent shall be affected by notice to the
contrary.
The CARAT Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Issuer and the rights of the CARAT 2007-SN1 Noteholders under the CARAT
Indenture at any time by the Issuer with the consent of the Holders of CARAT
2007-SN1 Notes representing a majority of the Outstanding Amount of the
Controlling Class. The CARAT Indenture also contains provisions permitting the
Holders of CARAT 2007-SN1 Notes representing specified percentages of the
Outstanding Amount of the Controlling Class, on behalf of the Holders of all the
CARAT 2007-SN1 Notes, to waive compliance by the Issuer with certain provisions
of the CARAT Indenture and certain past defaults under the CARAT Indenture and
their consequences. Any such consent or waiver by the Holder of this CARAT
2007-SN1 Note (or any one of more Predecessor Notes) shall be conclusive and
binding upon such Holder and upon all future Holders of this CARAT 2007-SN1 Note
and of any CARAT 2007-SN1 Note issued upon the registration of transfer hereof
or in
C-2-10
exchange hereof or in lieu hereof whether or not notation of such consent or
waiver is made upon this CARAT 2007-SN1 Note. The CARAT Indenture also permits
the CARAT Indenture Trustee to amend or waive certain terms and conditions set
forth in the CARAT Indenture without the consent of the Noteholders.
The term "Issuer" as used in this CARAT 2007-SN1 Note includes any successor to
the Issuer under the CARAT Indenture.
The Issuer is permitted by the CARAT Indenture, under certain circumstances, to
merge or consolidate, subject to the rights of the CARAT Indenture Trustee and
the Holders of CARAT 2007-SN1 Notes under the CARAT Indenture.
The CARAT 2007-SN1 Notes are issuable only in registered form in denominations
as provided in the CARAT Indenture, subject to certain limitations therein set
forth.
THIS CARAT 2007-SN1 NOTE AND THE CARAT INDENTURE SHALL BE CONSTRUED IN
ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO
THE PRINCIPLES OF CONFLICTS OF LAWS THEREOF OR OF ANY OTHER JURISDICTION (OTHER
THAN SECTIONS 5-1401 AND 5-1402 OF THE NEW YORK GENERAL OBLIGATIONS LAW), AND
THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER AND THEREUNDER
SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
No reference herein to the CARAT Indenture and no provision of this CARAT
2007-SN1 Note or of the CARAT Indenture shall alter or impair the obligation of
the Issuer, which is absolute and unconditional, to pay the principal of and
interest on this CARAT 2007-SN1 Note at the times, place and rate, and in the
coin or currency herein prescribed.
Anything herein to the contrary notwithstanding, except as expressly provided in
the CARAT Basic Documents, neither the Seller, the Trust Administrator, the
CARAT Indenture Trustee nor the CARAT Owner Trustee in their respective
individual capacities, any owner of a beneficial interest in the Issuer, nor any
of their respective partners, beneficiaries, agents, officers, directors,
employees or successors or assigns, shall be personally liable for, nor shall
recourse be had to any of them for, the payment of principal of or interest on,
or performance of, or omission to perform, any of the covenants, obligations or
indemnifications contained in this CARAT 2007-SN1 Note or the CARAT Indenture,
it being expressly understood that said covenants, obligations and
indemnifications have been made by the CARAT Owner Trustee solely as the CARAT
Owner Trustee in the assets of the Issuer. The Holder of this CARAT 2007-SN1
Note by the acceptance hereof agrees that, except as expressly provided in the
CARAT Basic Documents, in the case of a CARAT Event of Default under the CARAT
Indenture, the Holder shall have no claim against any of the foregoing for any
deficiency, loss or claim therefrom; provided, however, that nothing contained
herein shall be taken to prevent recourse to, and enforcement against, the
assets of the Issuer for any and all liabilities, obligations and undertakings
contained in the CARAT Indenture or in this CARAT 2007-SN1 Note.
C-2-11
ASSIGNMENT
Social Security or taxpayer I.D. or other identifying number of assignee
______________________
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto _________________________________________________________________
________________________________________________________________________________
(name and address of assignee)
the within CARAT 2007-SN1 Note and all rights thereunder, and hereby irrevocably
constitutes and appoints _______________, as attorney, to transfer said Note on
the books kept for registration thereof, with full power of substitution in the
premises.
Dated: (2)
------------------------------ -------------------------------------
Signature Guaranteed:
- ------------------------------------- ----------------------------------------
- ----------
(2) NOTE: The signature to this assignment must correspond with the name of the
registered owner as it appears on the face of the within CARAT 2007-SN1 in
every particular, without alteration, enlargement or any change whatsoever.
C-2-12
EXHIBIT C-3
FORM OF RULE 144A GLOBAL
[CLASS A-1A][CLASS A-1B] NOTES
REGISTERED $__________
No. R-144A
Interest Rate: _____% per annum
SEE REVERSE FOR CERTAIN DEFINITIONS
CUSIP NO. [__]
UNLESS THIS RULE 144A GLOBAL [CLASS A-1A][CLASS A-1B] NOTE IS
PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY,
A NEW YORK CORPORATION ("DTC"), TO THE ISSUER OR ITS AGENT FOR REGISTRATION
OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY RULE 144A GLOBAL [CLASS
A-1A][CLASS A-1B] NOTE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN
SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND
ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED
BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE
HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS
THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THE PRINCIPAL OF THIS RULE 144A GLOBAL [CLASS A-1A][CLASS A-1B]
NOTE IS PAYABLE AS SET FORTH HEREIN. ACCORDINGLY, THE OUTSTANDING PRINCIPAL
AMOUNT OF THIS RULE 144A GLOBAL [CLASS A-1A][CLASS A-1B] NOTE AT ANY TIME
MAY BE LESS THAN THE AMOUNT SHOWN ON THE FACE HEREOF.
THIS RULE 144A GLOBAL [CLASS A-1A][CLASS A-1B] NOTE HAS NOT BEEN AND WILL
NOT BE REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED
(THE "U.S. SECURITIES ACT"), OR UNDER THE SECURITIES OR BLUE SKY LAWS OF ANY
STATE IN THE UNITED STATES OR ANY FOREIGN SECURITIES LAWS. BY ITS ACCEPTANCE OF
THIS RULE 144A GLOBAL [CLASS A-1A][CLASS A-1B] NOTE (OR INTEREST THEREIN) THE
HOLDER OF THIS RULE 144A GLOBAL [CLASS A-1A][CLASS A-1B] NOTE (OR SUCH INTEREST)
IS DEEMED TO REPRESENT TO THE SELLER AND THE CARAT INDENTURE TRUSTEE THAT IT IS
A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE l44A UNDER THE U.S.
SECURITIES ACT AND IS ACQUIRING THIS RULE 144A GLOBAL [CLASS A-
C-3-1
1A][CLASS A-1B] NOTE (OR INTEREST THEREIN) FOR ITS OWN ACCOUNT (AND NOT FOR THE
ACCOUNT OF OTHERS) OR AS A FIDUCIARY OR AGENT FOR OTHERS (WHICH OTHERS ALSO ARE
QUALIFIED INSTITUTIONAL BUYERS).
NO SALE, PLEDGE OR OTHER TRANSFER OF THIS RULE 144A GLOBAL [CLASS
A-1A][CLASS A-1B] NOTE (OR INTEREST THEREIN) MAY BE MADE BY ANY PERSON UNLESS
EITHER (A) SUCH SALE, PLEDGE OR OTHER TRANSFER IS MADE TO A "QUALIFIED
INSTITUTIONAL BUYER" AS DEFINED UNDER RULE 144A UNDER THE U.S. SECURITIES ACT
THAT DELIVERS ANY NECESSARY CERTIFICATIONS PURSUANT TO SECTION 2.15(d) OR (e)
UNDER THE CARAT INDENTURE AND THAT (1) IS A "QUALIFIED INSTITUTIONAL BUYER" AS
DEFINED UNDER RULE l44A UNDER THE U.S. SECURITIES ACT, ACTING FOR ITS OWN
ACCOUNT OR THE ACCOUNTS OF OTHER "QUALIFIED INSTITUTIONAL BUYERS" AS DEFINED
UNDER RULE 144A UNDER THE U.S. SECURITIES ACT, AND (2) IT IS AWARE THAT THE
TRANSFEROR OF SUCH RULE 144A [CLASS A-1A][CLASS A-1B] NOTE INTENDS TO RELY ON
THE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE U.S. SECURITIES ACT
PROVIDED BY RULE 144A UNDER THE U.S. SECURITIES ACT, (B) SUCH SALE, PLEDGE OR
OTHER TRANSFER OCCURS OUTSIDE OF THE UNITED STATES TO A NON-U.S. PERSON IN
ACCORDANCE WITH RULE 903 OR RULE 904 OF REGULATION S OF THE U.S. SECURITIES ACT
AND THAT PERSON DELIVERS ANY NECESSARY CERTIFICATIONS PURSUANT TO SECTION
2.15(d) OR (e) UNDER THE CARAT INDENTURE, OR (C) IF THIS RULE 144A GLOBAL [CLASS
A-1A][CLASS A-1B] NOTE IS NO LONGER ELIGIBLE FOR RESALE PURSUANT TO RULE 144A OF
THE SECURITIES ACT, SUCH SALE, PLEDGE OR OTHER TRANSFER IS MADE IN A TRANSACTION
OTHERWISE EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE U.S. SECURITIES ACT,
IN WHICH CASE (1) THE CARAT INDENTURE TRUSTEE SHALL REQUIRE THAT BOTH THE
PROSPECTIVE TRANSFEROR AND THE PROSPECTIVE TRANSFEREE CERTIFY TO THE CARAT
INDENTURE TRUSTEE AND THE SELLER IN WRITING THE FACTS SURROUNDING SUCH TRANSFER,
WHICH CERTIFICATION SHALL BE IN FORM AND SUBSTANCE SATISFACTORY TO THE CARAT
INDENTURE TRUSTEE AND THE SELLER, AND (2) THE CARAT INDENTURE TRUSTEE SHALL
REQUIRE A WRITTEN OPINION OF COUNSEL (WHICH SHALL NOT BE AT THE EXPENSE OF THE
SELLER, THE TRUST ADMINISTRATOR, THE SERVICER, THE ISSUER OR THE CARAT INDENTURE
TRUSTEE) SATISFACTORY TO THE SELLER AND THE CARAT INDENTURE TRUSTEE TO THE
EFFECT THAT SUCH TRANSFER WILL NOT VIOLATE THE U.S. SECURITIES ACT.
C-3-2
CAPITAL AUTO RECEIVABLES ASSET TRUST 2007-SN1
RULE 144A GLOBAL
[CLASS A-1A][CLASS A-1B] NOTES
CAPITAL AUTO RECEIVABLES ASSET TRUST 2007-SN1, a statutory trust organized
and existing under the laws of the State of Delaware (herein referred to as the
"Issuer"), for value received, hereby promises to pay to CEDE & CO., or
registered assigns, the principal sum of _________________________________
DOLLARS ($__________) or such lesser outstanding amount as may be payable in
accordance with the CARAT Indenture (as defined on the reverse side of this
CARAT 2007-SN1 Note), on each Distribution Date in an amount equal to the result
obtained by multiplying (i) a fraction, the numerator of which is the initial
principal amount hereof and the denominator of which is the initial aggregate
principal amount for the [Class A-1a][Class A-1b] Note by (ii) the aggregate
amount, if any, payable on such Distribution Date from the Note Distribution
Account in respect of principal on the [Class A-1a][Class A-1b] Note pursuant to
Sections 2.7, 3.1 and 8.2(c) of the CARAT Indenture; provided, however, that the
entire unpaid principal amount of this Rule 144A [Class A-1a][Class A-1b] Note
shall be due and payable on June 16, 2008 (the "Final Scheduled Distribution
Date"), unless this Rule 144A Global [Class A-1a] ][Class A-1b] Note is earlier
redeemed, pursuant to Section 10.1 of the CARAT Indenture, in which case such
unpaid principal amount shall be due on the Redemption Date. The Issuer shall
pay interest on this Rule 144A Global [Class A-1a][Class A-1b] Note at the rate
per annum shown above on each Distribution Date in accordance with the terms of
the CARAT Indenture until the principal of this Rule 144A Global [Class
A-1a][Class A-1b] Note is paid or made available for payment on the principal
amount of this Rule 144A Global [Class A-1a][Class A-1b] Note outstanding on the
preceding Distribution Date (after giving effect to all payments of principal
made on the preceding Distribution Date (or, for the initial Distribution Date,
the outstanding principal balance on the Series 2007-SN1 Closing Date)).
Interest on the [Class A-1a][Class A-1b] Note will accrue from and including the
Series 2007-SN1 Closing Date at the rate per annum shown above, and will be
payable on each Distribution Date in an amount equal to the CARAT 2007-SN1
Noteholders' Note Class Interest Distributable Amount for such Class on such
Distribution Date for the [Class A-1a][Class A-1b] Notes. Interest will be
computed on the basis of the actual number of days elapsed from and including
the prior Distribution Date (or, in the case of the first Distribution Date,
from and including the Series 2007-SN1 Closing Date) to but excluding the
current Distribution Date and a 360-day year. Such principal of and interest on
this Rule 144A Global [Class A-1a][Class A-1b] Notes shall be paid in the manner
specified in the CARAT Indenture. All interest payments on this Rule 144A Global
[Class A-1a][Class A-1b] Note on any Distribution Date shall be made pro rata to
the [Class A-1a][Class A-1b] Noteholders entitled thereto.
The principal of and interest on this Rule 144A Global [Class A-1a][Class
A-1b] Note are payable in such coin or currency of the United States of America
which, at the time of payment, is legal tender for payment of public and private
debts. All payments made by the Issuer with respect to this Rule 144A Global
[Class A-1a][Class A-1b] Note shall be applied first to interest due and payable
on this Rule 144A Global [Class A-1a][Class A-1b] Note as provided above and
then to the unpaid principal of this Rule 144A Global [Class A-1a][Class A-1b]
Note as provided above.
C-3-3
Reference is made to the further provisions of this Rule 144A Global [Class
A-1a][Class A-1b] Note set forth on the reverse hereof, which shall have the
same effect as though fully set forth on the face of this Rule 144A Global
[Class A-1a][Class A-1b] Note.
Unless the certificate of authentication hereon has been executed by the
CARAT Indenture Trustee whose name appears below by manual signature, this Rule
144A Global [Class A-1a][Class A-1b] Note shall not be entitled to any benefit
under the CARAT Indenture referred to on the reverse hereof or be valid or
obligatory for any purpose.
C-3-4
IN WITNESS WHEREOF, the Issuer has caused this instrument to be signed,
manually or in facsimile, by its Authorized Officer.
Date: June 7, 2007
CAPITAL AUTO RECEIVABLES ASSET TRUST
2007-SN1
By: DEUTSCHE BANK TRUST COMPANY
DELAWARE, not in its individual
capacity but solely as CARAT Owner
Trustee
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
C-3-5
CARAT INDENTURE TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the CARAT 2007-SN1 Notes designated above and referred to in
the within-mentioned CARAT Indenture.
THE BANK OF NEW YORK TRUST COMPANY,
N.A., not in its individual capacity but
solely as CARAT Indenture Trustee
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
C-3-6
REVERSE OF NOTE
This CARAT 2007-SN1 Note is one of a duly authorized issue of CARAT
2007-SN1 Notes of the Issuer, designated as its [Class A-1a][Class A-1b] Asset
Backed Notes (herein called the "[Class A-1a][Class A-1b] Note"), all issued
under a CARAT Indenture, dated as of June 7, 2007 (such CARAT Indenture, as
supplemented or amended, is herein called the "CARAT Indenture"), between the
Issuer and The Bank of New York Trust Company, N.A., as trustee (the "CARAT
Indenture Trustee", which term includes any successor trustee under the CARAT
Indenture), to which CARAT Indenture and all indentures supplemental thereto
reference is hereby made for a statement of the respective rights and
obligations thereunder of the Issuer, the CARAT Indenture Trustee and the CARAT
2007-SN1 Noteholders. The [Class A-1a][Class A-1b] Notes are one of several duly
authorized classes of CARAT 2007-SN1 Notes of the Issuer issued pursuant to the
CARAT Indenture (collectively, as to all CARAT 2007-SN1 Notes of all such
classes, the "CARAT 2007-SN1 Notes"). The CARAT 2007-SN1 Notes are governed by
and subject to all terms of the CARAT Indenture (which terms are incorporated
herein and made a part hereof), to which CARAT Indenture the Holder of this
CARAT 2007-SN1 Note by virtue of acceptance hereof assents and by which such
Holder is bound. All capitalized terms used and not otherwise defined in this
CARAT 2007-SN1 Note that are defined in the CARAT Indenture, as supplemented or
amended, shall have the meanings assigned to them in or pursuant to the CARAT
Indenture.
The [Class A-1a][Class A-1b] Notes and all other CARAT 2007-SN1 Notes
issued pursuant to the CARAT Indenture are and will be equally and ratably
secured by the Collateral pledged as security therefor as provided in the CARAT
Indenture.
By acquiring a CARAT 2007-SN1 Note or any interest therein, each purchaser
and transferee will be deemed to represent and warrant that either (A) it is not
(i) an "employee benefit plan" (as defined in Section 3(3) of the United States
Employee Retirement Income Security Act of 1974, as amended ("ERISA"), that is
subject to the provisions of Title I of ERISA, (ii) a "plan" as described in
Section 4975(e)(1) of the Internal Revenue Code of 1986, as amended (the
"Code"), (iii) an entity whose underlying assets include plan assets by reason
of an employee benefit plan's or a plan's investment in the entity or (iv) other
plan subject to applicable law that is substantially similar to Section 406 of
ERISA or Section 4975 of the Code or (B) the acquisition, holding and
disposition of the CARAT 2007-SN1 Note will not give rise to a non-exempt
prohibited transaction under Section 406(a) of ERISA, Section 4975 of the Code
or a violation of any substantially similar applicable law).
Each CARAT 2007-SN1 Noteholder or Note Owner, by acceptance of a CARAT
2007-SN1 Note or, in the case of a Note Owner, a beneficial interest in a CARAT
2007-SN1 Note, covenants and agrees that no recourse may be taken, directly or
indirectly, with respect to the obligations of the Issuer, the CARAT Owner
Trustee or the CARAT Indenture Trustee on the CARAT 2007-SN1 Notes or under the
CARAT Indenture or any certificate or other writing delivered in connection
therewith, against (i) the CARAT Indenture Trustee or the CARAT Owner Trustee in
their individual capacities, (ii) the Seller or any other owner of a beneficial
interest in the Issuer or (iii) any partner, owner, beneficiary, agent, officer,
director or employee of the CARAT Indenture Trustee or the CARAT Owner Trustee
in their individual capacities, any holder of a beneficial interest in the
Issuer, the CARAT Owner Trustee or the CARAT
C-3-7
Indenture Trustee or of any successor or assign of the CARAT Indenture Trustee
or the CARAT Owner Trustee in their individual capacities, except as any such
Person may have expressly agreed and except that any such partner, owner or
beneficiary shall be fully liable, to the extent provided by applicable law, for
any unpaid consideration for stock, unpaid capital contribution or failure to
pay any instalment or call owing to such entity.
Each CARAT 2007-SN1 Noteholder or Note Owner, by acceptance of a CARAT
2007-SN1 Note or, in the case of a Note Owner, a beneficial interest in a CARAT
2007-SN1 Note, covenants and agrees that by accepting the benefits of the CARAT
Indenture such CARAT 2007-SN1 Noteholder will not, prior to the date which is
one year and one day after the termination of the CARAT Indenture, acquiesce,
petition or otherwise invoke or cause the Seller or the Issuer to invoke the
process of any court or government authority for the purpose of commencing or
sustaining a case against the Seller or the Issuer under any federal or state
bankruptcy, insolvency or similar law or appointing a receiver, liquidator,
assignee, trustee, custodian, sequestrator or other similar official of the
Seller or the Issuer or any substantial part of its property, or ordering the
winding up or liquidation of the affairs of the Seller or the Issuer.
Each CARAT 2007-SN1 Noteholder or Note Owner, by acceptance of a CARAT
2007-SN1 Note or, in the case of a Note Owner, a beneficial interest in a CARAT
2007-SN1 Note, expresses its intention that this CARAT 2007-SN1 Note qualifies
under applicable tax law as indebtedness secured by the Collateral and, unless
otherwise required by appropriate taxing authorities, agrees to treat the CARAT
2007-SN1 Notes as indebtedness secured by the Collateral for the purpose of
federal income taxes, state and local income and franchise taxes, Michigan
single business tax, and any other taxes imposed upon, measured by or based upon
gross or net income.
Prior to the due presentment for registration of transfer of this CARAT
2007-SN1 Note, the Issuer, the CARAT Indenture Trustee and any agent of the
Issuer or the CARAT Indenture Trustee may treat the Person in whose name this
CARAT 2007-SN1 Note (as of the day of determination or as of such other date as
may be specified in the CARAT Indenture) is registered as the owner hereof for
all purposes, whether or not this CARAT 2007-SN1 Note shall be overdue, and
neither the Issuer, the CARAT Indenture Trustee nor any such agent shall be
affected by notice to the contrary.
The CARAT Indenture permits, with certain exceptions as therein provided,
the amendment thereof and the modification of the rights and obligations of the
Issuer and the rights of the CARAT 2007-SN1 Noteholders under the CARAT
Indenture at any time by the Issuer with the consent of the Holders of CARAT
2007-SN1 Notes representing a majority of the Outstanding Amount of the
Controlling Class. The CARAT Indenture also contains provisions permitting the
Holders of CARAT 2007-SN1 Notes representing specified percentages of the
Outstanding Amount of the Controlling Class, on behalf of the Holders of all the
CARAT 2007-SN1 Notes, to waive compliance by the Issuer with certain provisions
of the CARAT Indenture and certain past defaults under the CARAT Indenture and
their consequences. Any such consent or waiver by the Holder of this CARAT
2007-SN1 Note (or any one of more Predecessor Notes) shall be conclusive and
binding upon such Holder and upon all future Holders of this CARAT 2007-SN1 Note
and of any CARAT 2007-SN1 Note issued upon the registration of transfer hereof
or in exchange hereof or in lieu hereof whether or not notation of such consent
or waiver
C-3-8
is made upon this CARAT 2007-SN1 Note. The CARAT Indenture also permits the
CARAT Indenture Trustee to amend or waive certain terms and conditions set forth
in the CARAT Indenture without the consent of the Noteholders.
The term "Issuer" as used in this CARAT 2007-SN1 Note includes any
successor to the Issuer under the CARAT Indenture.
The Issuer is permitted by the CARAT Indenture, under certain
circumstances, to merge or consolidate, subject to the rights of the CARAT
Indenture Trustee and the Holders of CARAT 2007-SN1 Notes under the CARAT
Indenture.
The CARAT 2007-SN1 Notes are issuable only in registered form in
denominations as provided in the CARAT Indenture, subject to certain limitations
therein set forth.
THIS CARAT 2007-SN1 NOTE AND THE CARAT INDENTURE SHALL BE CONSTRUED IN
ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO
THE PRINCIPLES OF CONFLICTS OF LAWS THEREOF OR OF ANY OTHER JURISDICTION (OTHER
THAN SECTIONS 5-1401 AND 5-1402 OF THE NEW YORK GENERAL OBLIGATIONS LAW), AND
THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER AND THEREUNDER
SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
No reference herein to the CARAT Indenture and no provision of this CARAT
2007-SN1 Note or of the CARAT Indenture shall alter or impair the obligation of
the Issuer, which is absolute and unconditional, to pay the principal of and
interest on this CARAT 2007-SN1 Note at the times, place and rate, and in the
coin or currency herein prescribed.
Anything herein to the contrary notwithstanding, except as expressly
provided in the CARAT Basic Documents, neither the Seller, the Trust
Administrator, the CARAT Indenture Trustee nor the CARAT Owner Trustee in their
respective individual capacities, any owner of a beneficial interest in the
Issuer, nor any of their respective partners, beneficiaries, agents, officers,
directors, employees or successors or assigns, shall be personally liable for,
nor shall recourse be had to any of them for, the payment of principal of or
interest on, or performance of, or omission to perform, any of the covenants,
obligations or indemnifications contained in this CARAT 2007-SN1 Note or the
CARAT Indenture, it being expressly understood that said covenants, obligations
and indemnifications have been made by the CARAT Owner Trustee solely as the
CARAT Owner Trustee in the assets of the Issuer. The Holder of this CARAT
2007-SN1 Note by the acceptance hereof agrees that, except as expressly provided
in the CARAT Basic Documents, in the case of a CARAT Event of Default under the
CARAT Indenture, the Holder shall have no claim against any of the foregoing for
any deficiency, loss or claim therefrom; provided, however, that nothing
contained herein shall be taken to prevent recourse to, and enforcement against,
the assets of the Issuer for any and all liabilities, obligations and
undertakings contained in the CARAT Indenture or in this CARAT 2007-SN1 Note.
C-3-9
ASSIGNMENT
Social Security or taxpayer I.D. or other identifying number of assignee
_____________________________________
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers
unto ___________________________________________________________________________
________________________________________________________________________________
(name and address of assignee)
the within CARAT 2007-SN1 Note and all rights thereunder, and hereby irrevocably
constitutes and appoints ____________________________________, as attorney, to
transfer said CARAT 2007-SN1 Note on the books kept for registration thereof,
with full power of substitution in the premises.
Dated:
------------------------------ ----------------------------------------
Signature Guaranteed:
- ------------------------------------- ----------------------------------------
C-3-10
EXHIBIT C-4
FORM OF TEMPORARY REGULATION S
GLOBAL [CLASS A-1A][CLASS A-1B] NOTES
REGISTERED $_______________
No. R-Temporary Regulation S
Interest Rate _____% per annum
SEE REVERSE FOR CERTAIN DEFINITIONS
CUSIP NO. [__]
THIS NOTE IS A TEMPORARY REGULATION S GLOBAL [CLASS A-1A][CLASS
A-1B] NOTE FOR PURPOSES OF REGULATION S UNDER THE UNITED STATES SECURITIES
ACT OF 1933, AS AMENDED (THE "U.S. SECURITIES ACT"). NEITHER THIS TEMPORARY
REGULATION S GLOBAL [CLASS A-1A][CLASS A-1B] NOTE NOR ANY INTEREST HEREIN
MAY BE OFFERED, SOLD OR DELIVERED, EXCEPT AS PERMITTED UNDER THE CARAT
INDENTURE REFERRED TO HEREIN.
UNLESS THIS TEMPORARY REGULATION S GLOBAL [CLASS A-1A][CLASS
A-1B] NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE ISSUER OR ITS AGENT
FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY TEMPORARY
REGULATION S GLOBAL [CLASS A-1A][CLASS A-1B] NOTE ISSUED IS REGISTERED IN
THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR
TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF
DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR
TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE &
CO., HAS AN INTEREST HEREIN.
THE PRINCIPAL OF THIS TEMPORARY REGULATION S GLOBAL [CLASS
A-1A][CLASS A-1B] NOTE IS PAYABLE AS SET FORTH HEREIN. ACCORDINGLY, THE
OUTSTANDING PRINCIPAL AMOUNT OF THIS TEMPORARY REGULATION S [CLASS
A-1A][CLASS A-1B] NOTE AT ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ON THE
FACE HEREOF.
C-4-1
NO BENEFICIAL OWNER OF THIS TEMPORARY REGULATION S GLOBAL [CLASS
A-1A][CLASS A-1B] NOTE SHALL BE ENTITLED TO RECEIVE PAYMENTS OF PRINCIPAL OR
INTEREST HEREIN UNLESS SUCH BENEFICIAL OWNER SHALL HAVE DELIVERED A
CERTIFICATION IN THE FORM ATTACHED AS ANNEX A TO EXHIBIT D-5 TO THE CARAT
INDENTURE TO CLEARSTREAM, LUXEMBOURG OR EUROCLEAR.
THE HOLDER OF THIS TEMPORARY REGULATION S GLOBAL NOTE [CLASS A-1A][CLASS
A-1B] NOTE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER, SELL OR OTHERWISE
TRANSFER SUCH NOTE WITHIN THE UNITED STATES OR TO U.S. PERSONS (AS DEFINED IN
REGULATION S UNDER THE SECURITIES ACT) PRIOR TO THE EXCHANGE DATE EXCEPT
PURSUANT TO AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES
ACT.
THIS TEMPORARY REGULATION S GLOBAL [CLASS A-1A][CLASS A-1B] NOTE HAS NOT
BEEN AND WILL NOT BE REGISTERED UNDER THE U.S. SECURITIES ACT OR UNDER THE
SECURITIES OR BLUE SKY LAWS OF ANY STATE IN THE UNITED STATES OR ANY FOREIGN
SECURITIES LAWS. BY ITS ACCEPTANCE OF THIS TEMPORARY REGULATION S GLOBAL [CLASS
A-1A][CLASS A-1B] NOTE (OR INTEREST THEREIN) THE HOLDER OF THIS TEMPORARY
REGULATION S GLOBAL [CLASS A-1A][CLASS A-1B] NOTE (OR SUCH INTEREST) IS DEEMED
TO REPRESENT TO THE SELLER AND THE CARAT INDENTURE TRUSTEE THAT IT IS A NON-U.S.
PERSON (AS DEFINED IN REGULATION S) WHO ACQUIRED THE [CLASS A-1A][CLASS A-1B]
NOTE OUTSIDE OF THE UNITED STATES IN ACCORDANCE WITH REGULATION S.
NO SALE, PLEDGE OR OTHER TRANSFER OF THIS TEMPORARY REGULATION S GLOBAL
[CLASS A-1A][CLASS A-1B] NOTE (OR INTEREST THEREIN) MAY BE MADE BY ANY PERSON
UNLESS EITHER (A) SUCH SALE, PLEDGE OR OTHER TRANSFER IS MADE TO A "QUALIFIED
INSTITUTIONAL BUYER" AS DEFINED UNDER RULE 144A UNDER THE U.S. SECURITIES ACT
THAT DELIVERS ANY NECESSARY CERTIFICATIONS PURSUANT TO SECTION 2.15(d) OR (e)
UNDER THE CARAT INDENTURE AND THAT (1) IS A "QUALIFIED INSTITUTIONAL BUYER" AS
DEFINED UNDER RULE l44A UNDER THE U.S. SECURITIES ACT, ACTING FOR ITS OWN
ACCOUNT OR THE ACCOUNTS OF OTHER "QUALIFIED INSTITUTIONAL BUYERS" AS DEFINED
UNDER RULE 144A UNDER THE U.S SECURITIES ACT, AND (2) IT IS AWARE THAT THE
TRANSFEROR OF SUCH TEMPORARY REGULATION S GLOBAL [CLASS A-1A][CLASS A-1B] NOTE
INTENDS TO RELY ON THE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE U.S.
SECURITIES ACT PROVIDED BY RULE 144A UNDER THE U.S. SECURITIES ACT, (B) SUCH
SALE, PLEDGE OR OTHER TRANSFER OCCURS OUTSIDE OF THE UNITED STATES TO A NON-U.S.
PERSON IN ACCORDANCE WITH RULE 903 OR RULE 904 OF REGULATION S OF THE U.S.
SECURITIES ACT AND THAT PERSON DELIVERS ANY NECESSARY CERTIFICATIONS PURSUANT TO
SECTION 2.15(d) OR (e) UNDER THE CARAT INDENTURE, OR (C) IF THIS TEMPORARY
REGULATION S GLOBAL [CLASS A-1A][CLASS A-1B] NOTE IS NO LONGER ELIGIBLE FOR
RESALE PURSUANT TO RULE 144A OR REGULATION S OF THE SECURITIES ACT, SUCH SALE,
PLEDGE OR
C-4-2
OTHER TRANSFER IS MADE IN A TRANSACTION OTHERWISE EXEMPT FROM THE REGISTRATION
REQUIREMENTS OF THE U.S. SECURITIES ACT, IN WHICH CASE (1) THE CARAT INDENTURE
TRUSTEE SHALL REQUIRE THAT BOTH THE PROSPECTIVE TRANSFEROR AND THE PROSPECTIVE
TRANSFEREE CERTIFY TO THE CARAT INDENTURE TRUSTEE AND THE SELLER IN WRITING THE
FACTS SURROUNDING SUCH TRANSFER, WHICH CERTIFICATION SHALL BE IN FORM AND
SUBSTANCE SATISFACTORY TO THE CARAT INDENTURE TRUSTEE AND THE SELLER, AND (2)
THE CARAT INDENTURE TRUSTEE SHALL REQUIRE A WRITTEN OPINION OF COUNSEL (WHICH
SHALL NOT BE AT THE EXPENSE OF THE SELLER, THE TRUST ADMINISTRATOR OR THE CARAT
INDENTURE TRUSTEE) SATISFACTORY TO THE SELLER AND THE CARAT INDENTURE TRUSTEE TO
THE EFFECT THAT SUCH TRANSFER WILL NOT VIOLATE THE U.S. SECURITIES ACT.
C-4-3
CAPITAL AUTO RECEIVABLES ASSET TRUST 2007-SN1
TEMPORARY REGULATION S
GLOBAL [CLASS A-1A][CLASS A-1B] NOTES
CAPITAL AUTO RECEIVABLES ASSET TRUST 2007-SN1, a statutory trust organized
and existing under the laws of the State of Delaware (herein referred to as the
"Issuer"), for value received, hereby promises to pay to CEDE & CO., or
registered assigns, the principal sum of ________________________________
DOLLARS ($__________) or such lesser outstanding amount as may be payable in
accordance with the CARAT Indenture (as defined on the reverse side of this
CARAT 2007-SN1 Note), on each Distribution Date in an amount equal to the result
obtained by multiplying (i) a fraction, the numerator of which is the initial
principal amount hereof and the denominator of which is the initial aggregate
principal amount for the [Class A-1a][Class A-1b] Note by (ii) the aggregate
amount, if any, payable on such Distribution Date from the Note Distribution
Account in respect of principal on the [Class A-1a][Class A-1b] Note pursuant to
Sections 2.7, 3.1 and 8.2(c) of the CARAT Indenture; provided, however, that the
entire unpaid principal amount of this Temporary Regulation S Global [Class
A-1a][Class A-1b] Note shall be due and payable on June 16, 2008 (the "Final
Scheduled Distribution Date"), unless this Temporary Regulation S Global [Class
A-1a][Class A-1b] Note is earlier redeemed, pursuant to Section 10.1 of the
CARAT Indenture, in which case such unpaid principal amount shall be due on the
Redemption Date. The Issuer shall pay interest on this Temporary Regulation S
Global [Class A-1a][Class A-1b] Note at the rate per annum shown above on each
Distribution Date in accordance with the terms of the CARAT Indenture until the
principal of this Temporary Regulation S Global [Class A-1a][Class A-1b] Note is
paid or made available for payment on the principal amount of this Temporary
Regulation S Global [Class A-1a][Class A-1b] Note outstanding on the preceding
Distribution Date (after giving effect to all payments of principal made on the
preceding Distribution Date (or, for the initial Distribution Date, the
outstanding principal balance on the Series 2007-SN1 Closing Date)). Interest on
the [Class A-1a][Class A-1b] Note will accrue from and including the Series
2007-SN1 Closing Date at the rate per annum shown above, and will be payable on
each Distribution Date in an amount equal to the CARAT 2007-SN1 Noteholders'
Note Class Interest Distributable Amount for such Class on such Distribution
Date for the [Class A-1a][Class A-1b] Note. Interest will be computed on the
basis of the actual number of days elapsed from and including the prior
Distribution Date (or, in the case of the first Distribution Date, from and
including the Series 2007-SN1 Closing Date) to but excluding the current
Distribution Date and a 360-day year. Such principal of and interest on this
Temporary Regulation S Global [Class A-1a][Class A-1b] Note shall be paid in the
manner specified in the CARAT Indenture. All interest payments on this Temporary
Regulation S Global [Class A-1a][Class A-1b] Note on any Distribution Date shall
be made pro rata to the [Class A-1a][Class A-1b] Noteholders entitled thereto.
The principal of and interest on this Temporary Regulation S Global [Class
A-1a][Class A-1b] Note is payable in such coin or currency of the United States
of America which, at the time of payment, is legal tender for payment of public
and private debts. All payments made by the Issuer with respect to this
Temporary Regulation S Global [Class
C-4-4
A-1a][Class A-1b] Note shall be applied first to interest due and payable on
this Temporary Regulation S Global [Class A-1a][Class A-1b] Note as provided
above and then to the unpaid principal of this Temporary Regulation S Global
[Class A-1a][Class A-1b] Note as provided above.
Reference is made to the further provisions of this Temporary Regulation S
Global [Class A-1a][Class A-1b] Note set forth on the reverse hereof, which
shall have the same effect as though fully set forth on the face of this
Temporary Regulation S Global [Class A-1a][Class A-1b] Note.
Unless the certificate of authentication hereon has been executed by the
CARAT Indenture Trustee whose name appears below by manual signature, this
Temporary Regulation S Global [Class A-1a][Class A-1b] Note shall not be
entitled to any benefit under the CARAT Indenture referred to on the reverse
hereof or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Issuer has caused this instrument to be signed,
manually or in facsimile, by its Authorized Officer.
Date: June 7, 2007
CAPITAL AUTO RECEIVABLES ASSET TRUST
2007-SN1
By: DEUTSCHE BANK TRUST COMPANY
DELAWARE, not in its individual
capacity but solely as CARAT Owner
Trustee
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
C-4-5
CARAT INDENTURE TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the CARAT 2007-SN1 Notes designated above and referred
to in the within-mentioned CARAT Indenture.
THE BANK OF NEW YORK TRUST COMPANY,
N.A., not in its individual capacity
but solely as CARAT Indenture Trustee
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
C-4-6
REVERSE OF NOTE
This CARAT 2007-SN1 Note is one of a duly authorized issue of CARAT
2007-SN1 Notes of the Issuer, designated as its [Class A-1a][Class A-1b] Asset
Backed Notes (herein called the "[Class A-1a][Class A-1b] Notes"), all issued
under a CARAT Indenture, dated as of June 7, 2007 (such CARAT Indenture, as
supplemented or amended, is herein called the "CARAT Indenture"), between the
Issuer and The Bank of New York Trust Company, N.A., as trustee (the "CARAT
Indenture Trustee", which term includes any successor trustee under the CARAT
Indenture), to which CARAT Indenture and all indentures supplemental thereto
reference is hereby made for a statement of the respective rights and
obligations thereunder of the Issuer, the CARAT Indenture Trustee and the CARAT
2007-SN1 Noteholders. The [Class A-1a][Class A-1b] Notes are one of several duly
authorized classes of CARAT 2007-SN1 Notes of the Issuer issued pursuant to the
CARAT Indenture (collectively, as to all CARAT 2007-SN1 Notes of all such
classes, the "CARAT 2007-SN1 Notes"). The CARAT 2007-SN1 Notes are governed by
and subject to all terms of the CARAT Indenture (which terms are incorporated
herein and made a part hereof), to which CARAT Indenture the Holder of this
CARAT 2007-SN1 Note by virtue of acceptance hereof assents and by which such
Holder is bound. All capitalized terms used and not otherwise defined in this
CARAT 2007-SN1 Note that are defined in the CARAT Indenture, as supplemented or
amended, shall have the meanings assigned to them in or pursuant to the CARAT
Indenture.
The [Class A-1a][Class A-1b] Notes and all other CARAT 2007-SN1 Notes
issued pursuant to the CARAT Indenture are and will be equally and ratably
secured by the Collateral pledged as security therefor as provided in the CARAT
Indenture.
By acquiring a CARAT 2007-SN1 Note or any interest therein, each purchaser
and transferee will be deemed to represent and warrant that either (A) it is not
(i) an "employee benefit plan" (as defined in Section 3(3) of the United States
Employee Retirement Income Security Act of 1974, as amended ("ERISA"), that is
subject to the provisions of Title I of ERISA, (ii) a "plan" as described in
Section 4975(e)(1) of the Internal Revenue Code of 1986, as amended (the
"Code"), (iii) an entity whose underlying assets include plan assets by reason
of an employee benefit plan's or a plan's investment in the entity or (iv) other
plan subject to applicable law that is substantially similar to Section 406 of
ERISA or Section 4975 or (B) the acquisition, holding and disposition of the
CARAT 2007-SN1 Note will not give rise to a non-exempt prohibited transaction
under Section 406(a) of ERISA, Section 4975 of the Code or a violation of any
substantially similar applicable law.
Each CARAT 2007-SN1 Noteholder or Note Owner, by acceptance of a CARAT
2007-SN1 Note or, in the case of a Note Owner, a beneficial interest in a CARAT
2007-SN1 Note, covenants and agrees that no recourse may be taken, directly or
indirectly, with respect to the obligations of the Issuer, the CARAT Owner
Trustee or the CARAT Indenture Trustee on the CARAT 2007-SN1 Notes or under the
CARAT Indenture or any certificate or other writing delivered in connection
therewith, against (i) the CARAT Indenture Trustee or the CARAT Owner Trustee in
their individual capacities, (ii) the Seller or any other owner of a beneficial
interest in the Issuer or (iii) any partner, owner, beneficiary, agent, officer,
director or employee of the CARAT Indenture Trustee or the CARAT Owner Trustee
in their individual capacities, any holder of a beneficial interest in the
Issuer, the CARAT Owner Trustee or the CARAT
C-4-7
Indenture Trustee or of any successor or assign of the CARAT Indenture Trustee
or the CARAT Owner Trustee in their individual capacities, except as any such
Person may have expressly agreed and except that any such partner, owner or
beneficiary shall be fully liable, to the extent provided by applicable law, for
any unpaid consideration for stock, unpaid capital contribution or failure to
pay any instalment or call owing to such entity.
Each CARAT 2007-SN1 Noteholder or Note Owner, by acceptance of a CARAT
2007-SN1 Note or, in the case of a Note Owner, a beneficial interest in a CARAT
2007-SN1 Note, covenants and agrees that by accepting the benefits of the CARAT
Indenture such CARAT 2007-SN1 Noteholder will not, prior to the date which is
one year and one day after the termination of the CARAT Indenture, acquiesce,
petition or otherwise invoke or cause the Seller or the Issuer to invoke the
process of any court or government authority for the purpose of commencing or
sustaining a case against the Seller or the Issuer under any federal or state
bankruptcy, insolvency or similar law or appointing a receiver, liquidator,
assignee, trustee, custodian, sequestrator or other similar official of the
Seller or the Issuer or any substantial part of its property, or ordering the
winding up or liquidation of the affairs of the Seller or the Issuer.
Each CARAT 2007-SN1 Noteholder or Note Owner, by acceptance of a CARAT
2007-SN1 Note or, in the case of a Note Owner, a beneficial interest in a CARAT
2007-SN1 Note, expresses its intention that this CARAT 2007-SN1 Note qualifies
under applicable tax law as indebtedness secured by the Collateral and, unless
otherwise required by appropriate taxing authorities, agrees to treat the CARAT
2007-SN1 Notes as indebtedness secured by the Collateral for the purpose of
federal income taxes, state and local income and franchise taxes, Michigan
single business tax, and any other taxes imposed upon, measured by or based upon
gross or net income.
Prior to the due presentment for registration of transfer of this CARAT
2007-SN1 Note, the Issuer, the CARAT Indenture Trustee and any agent of the
Issuer or the CARAT Indenture Trustee may treat the Person in whose name this
CARAT 2007-SN1 Note (as of the day of determination or as of such other date as
may be specified in the CARAT Indenture) is registered as the owner hereof for
all purposes, whether or not this CARAT 2007-SN1 Note shall be overdue, and
neither the Issuer, the CARAT Indenture Trustee nor any such agent shall be
affected by notice to the contrary.
The CARAT Indenture permits, with certain exceptions as therein provided,
the amendment thereof and the modification of the rights and obligations of the
Issuer and the rights of the CARAT 2007-SN1 Noteholders under the CARAT
Indenture at any time by the Issuer with the consent of the Holders of CARAT
2007-SN1 Notes representing a majority of the Outstanding Amount of the
Controlling Class. The CARAT Indenture also contains provisions permitting the
Holders of CARAT 2007-SN1 Notes representing specified percentages of the
Outstanding Amount of the Controlling Class, on behalf of the Holders of all the
CARAT 2007-SN1 Notes, to waive compliance by the Issuer with certain provisions
of the CARAT Indenture and certain past defaults under the CARAT Indenture and
their consequences. Any such consent or waiver by the Holder of this CARAT
2007-SN1 Note (or any one of more Predecessor Notes) shall be conclusive and
binding upon such Holder and upon all future Holders of this CARAT 2007-SN1 Note
and of any CARAT 2007-SN1 Note issued upon the registration of transfer hereof
or in exchange hereof or in lieu hereof whether or not notation of such consent
or waiver
C-4-8
is made upon this CARAT 2007-SN1 Note. The CARAT Indenture also permits the
CARAT Indenture Trustee to amend or waive certain terms and conditions set forth
in the CARAT Indenture without the consent of the Noteholders.
The term "Issuer" as used in this CARAT 2007-SN1 Note includes any
successor to the Issuer under the CARAT Indenture.
The Issuer is permitted by the CARAT Indenture, under certain
circumstances, to merge or consolidate, subject to the rights of the CARAT
Indenture Trustee and the Holders of CARAT 2007-SN1 Notes under the CARAT
Indenture.
The CARAT 2007-SN1 Notes are issuable only in registered form in
denominations as provided in the CARAT Indenture, subject to certain limitations
therein set forth.
THIS CARAT 2007-SN1 NOTE AND THE CARAT INDENTURE SHALL BE CONSTRUED IN
ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO
THE PRINCIPLES OF CONFLICTS OF LAWS THEREOF OR OF ANY OTHER JURISDICTION (OTHER
THAN SECTIONS 5-1401 AND 5-1402 OF THE NEW YORK GENERAL OBLIGATIONS LAW), AND
THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER AND THEREUNDER
SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
No reference herein to the CARAT Indenture and no provision of this CARAT
2007-SN1 Note or of the CARAT Indenture shall alter or impair the obligation of
the Issuer, which is absolute and unconditional, to pay the principal of and
interest on this CARAT 2007-SN1 Note at the times, place and rate, and in the
coin or currency herein prescribed.
Anything herein to the contrary notwithstanding, except as expressly
provided in the CARAT Basic Documents, neither the Seller, the Trust
Administrator, the CARAT Indenture Trustee nor the CARAT Owner Trustee in their
respective individual capacities, any owner of a beneficial interest in the
Issuer, nor any of their respective partners, beneficiaries, agents, officers,
directors, employees or successors or assigns, shall be personally liable for,
nor shall recourse be had to any of them for, the payment of principal of or
interest on, or performance of, or omission to perform, any of the covenants,
obligations or indemnifications contained in this CARAT 2007-SN1 Note or the
CARAT Indenture, it being expressly understood that said covenants, obligations
and indemnifications have been made by the CARAT Owner Trustee solely as the
CARAT Owner Trustee in the assets of the Issuer. The Holder of this CARAT
2007-SN1 Note by the acceptance hereof agrees that, except as expressly provided
in the CARAT Basic Documents, in the case of a CARAT Event of Default under the
CARAT Indenture, the Holder shall have no claim against any of the foregoing for
any deficiency, loss or claim therefrom; provided, however, that nothing
contained herein shall be taken to prevent recourse to, and enforcement against,
the assets of the Issuer for any and all liabilities, obligations and
undertakings contained in the CARAT Indenture or in this CARAT 2007-SN1 Note.
C-4-9
ASSIGNMENT
Social Security or taxpayer I.D. or other identifying number of assignee
_____________________________________
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers
unto ___________________________________________________________________________
________________________________________________________________________________
(name and address of assignee)
the within CARAT 2007-SN1 Note and all rights thereunder, and hereby irrevocably
constitutes and appoints ____________________________________, as attorney, to
transfer said CARAT 2007-SN1 Note on the books kept for registration thereof,
with full power of substitution in the premises.
Dated:
------------------------------ ----------------------------------------
Signature Guaranteed:
- ------------------------------------- ----------------------------------------
C-4-10
EXHIBIT C-5
FORM OF PERMANENT REGULATION S GLOBAL
[CLASS A-1A][CLASS A-1B] NOTES
REGISTERED $_______________
No. R-Permanent Regulation S
Interest Rate: _____% per annum
SEE REVERSE FOR CERTAIN DEFINITIONS
CUSIP NO. [__]
UNLESS THIS PERMANENT REGULATION S GLOBAL [CLASS A-1A][CLASS
A-1B] NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE ISSUER OR ITS AGENT
FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY PERMANENT
REGULATION S GLOBAL [CLASS A-1A][CLASS A-1B] NOTE ISSUED IS REGISTERED IN
THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR
TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF
DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR
TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE &
CO., HAS AN INTEREST HEREIN.
THE PRINCIPAL OF THIS PERMANENT REGULATION S GLOBAL [CLASS
A-1A][CLASS A-1B] NOTE IS PAYABLE AS SET FORTH HEREIN. ACCORDINGLY, THE
OUTSTANDING PRINCIPAL AMOUNT OF THIS PERMANENT REGULATION S GLOBAL [CLASS
A-1A][CLASS A-1B] NOTE AT ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ON THE
FACE HEREOF.
THIS PERMANENT REGULATION S GLOBAL [CLASS A-1A][CLASS A-1B] NOTE HAS NOT
BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933,
AS AMENDED (THE "U.S. SECURITIES ACT"), OR UNDER THE SECURITIES OR BLUE SKY LAWS
OF ANY STATE IN THE UNITED STATES OR ANY FOREIGN SECURITIES LAWS. BY ITS
ACCEPTANCE OF THIS PERMANENT REGULATION S GLOBAL [CLASS A-1A][CLASS A-1B] NOTE
(OR INTEREST THEREIN) THE HOLDER OF THIS PERMANENT REGULATION S GLOBAL [CLASS
A-1A][CLASS A-1B] NOTE (OR SUCH INTEREST) IS DEEMED TO REPRESENT TO THE SELLER
AND THE CARAT INDENTURE TRUSTEE THAT IT IS A NON-U.S.
C-5-1
PERSON (AS DEFINED IN REGULATION S) WHO ACQUIRED THE [CLASS A-1A][CLASS A-1B]
NOTE OUTSIDE OF THE UNITED STATES IN ACCORDANCE WITH REGULATION S.
NO SALE, PLEDGE OR OTHER TRANSFER OF THIS PERMANENT REGULATION GLOBAL
[CLASS A-1A][CLASS A-1B] NOTE (OR INTEREST THEREIN) MAY BE MADE BY ANY PERSON
UNLESS EITHER (A) SUCH SALE, PLEDGE OR OTHER TRANSFER IS MADE TO A "QUALIFIED
INSTITUTIONAL BUYER" AS DEFINED UNDER RULE 144A UNDER THE U.S. SECURITIES ACT
THAT DELIVERS ANY NECESSARY CERTIFICATIONS PURSUANT TO SECTION 2.15(d) OR (e)
UNDER THE CARAT INDENTURE AND THAT (1) IS A "QUALIFIED INSTITUTIONAL BUYER" AS
DEFINED UNDER RULE l44A UNDER THE U.S. SECURITIES ACT, ACTING FOR ITS OWN
ACCOUNT OR THE ACCOUNTS OF OTHER "QUALIFIED INSTITUTIONAL BUYERS" AS DEFINED
UNDER RULE 144A UNDER THE U.S SECURITIES ACT, AND (2) IT IS AWARE THAT THE
TRANSFEROR OF SUCH PERMANENT REGULATION GLOBAL [CLASS A-1A][CLASS A-1B] NOTE
INTENDS TO RELY ON THE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE U.S.
SECURITIES ACT PROVIDED BY RULE 144A UNDER THE U.S. SECURITIES ACT, (B) SUCH
SALE, PLEDGE OR OTHER TRANSFER OCCURS OUTSIDE OF THE UNITED STATES TO A NON-U.S.
PERSON IN ACCORDANCE WITH RULE 903 OR RULE 904 OF REGULATION S OF THE U.S.
SECURITIES ACT AND THAT PERSON DELIVERS ANY NECESSARY CERTIFICATIONS PURSUANT TO
SECTION 2.15(d) OR (e) UNDER THE CARAT INDENTURE, OR (C) IF THIS PERMANENT
REGULATION S GLOBAL [CLASS A-1A][CLASS A-1B] NOTE IS NO LONGER ELIGIBLE FOR
RESALE PURSUANT TO RULE 144A OR REGULATION S OF THE SECURITIES ACT, SUCH SALE,
PLEDGE OR OTHER TRANSFER IS MADE IN A TRANSACTION OTHERWISE EXEMPT FROM THE
REGISTRATION REQUIREMENTS OF THE U.S. SECURITIES ACT, IN WHICH CASE (1) THE
CARAT INDENTURE TRUSTEE SHALL REQUIRE THAT BOTH THE PROSPECTIVE TRANSFEROR AND
THE PROSPECTIVE TRANSFEREE CERTIFY TO THE CARAT INDENTURE TRUSTEE AND THE SELLER
IN WRITING THE FACTS SURROUNDING SUCH TRANSFER, WHICH CERTIFICATION SHALL BE IN
FORM AND SUBSTANCE SATISFACTORY TO THE CARAT INDENTURE TRUSTEE AND THE SELLER,
AND (2) THE CARAT INDENTURE TRUSTEE SHALL REQUIRE A WRITTEN OPINION OF COUNSEL
(WHICH SHALL NOT BE AT THE EXPENSE OF THE SELLER, THE TRUST ADMINISTRATOR OR THE
CARAT INDENTURE TRUSTEE) SATISFACTORY TO THE SELLER AND THE CARAT INDENTURE
TRUSTEE TO THE EFFECT THAT SUCH TRANSFER WILL NOT VIOLATE THE U.S. SECURITIES
ACT.
C-5-2
CAPITAL AUTO RECEIVABLES ASSET TRUST 2007-SN1
PERMANENT REGULATION S GLOBAL
[CLASS A-1A][CLASS A-1B] NOTES
CAPITAL AUTO RECEIVABLES ASSET TRUST 2007-SN1, a statutory trust organized
and existing under the laws of the State of Delaware (herein referred to as the
"Issuer"), for value received, hereby promises to pay to CEDE & CO., or
registered assigns, the principal sum of _________________________ DOLLARS
($__________) or such lesser outstanding amount as may be payable in accordance
with the CARAT Indenture (as defined on the reverse side of this CARAT 2007-SN1
Note), on each Distribution Date in an amount equal to the result obtained by
multiplying (i) a fraction, the numerator of which is the initial principal
amount hereof and the denominator of which is the initial aggregate principal
amount for the [Class A-1a][Class A-1b] Note by (ii) the aggregate amount, if
any, payable on such Distribution Date from the Note Distribution Account in
respect of principal on the [Class A-1a][Class A-1b] Note pursuant to Sections
2.7, 3.1 and 8.2(c) of the CARAT Indenture; provided, however, that the entire
unpaid principal amount of this Permanent Regulation S Global [Class A-1a][Class
A-1b] Note shall be due and payable on June 16, 2008 (the "Final Scheduled
Distribution Date"), unless this Permanent Regulation S Global [Class
A-1a][Class A-1b] Note is earlier redeemed, pursuant to Section 10.1 of the
CARAT Indenture, in which case such unpaid principal amount shall be due on the
Redemption Date. The Issuer shall pay interest on this Permanent Regulation S
Global [Class A-1a][Class A-1b] Note at the rate per annum shown above on each
Distribution Date in accordance with the terms of the CARAT Indenture until the
principal of this Permanent Regulation S Global [Class A-1a][Class A-1b] Note is
paid or made available for payment on the principal amount of this Permanent
Regulation S Global [Class A-1a][Class A-1b] Note outstanding on the preceding
Distribution Date (after giving effect to all payments of principal made on the
preceding Distribution Date (or, for the initial Distribution Date, the
outstanding principal balance on the Series 2007-SN1 Closing Date)). Interest on
the [Class A-1a][Class A-1b] Note will accrue from and including the Series
2007-SN1 Closing Date at the rate per annum shown above, and will be payable on
each Distribution Date in an amount equal to the CARAT 2007-SN1 Noteholders'
Note Class Interest Distributable Amount for such class on such Distribution
Date for the [Class A-1a][Class A-1b] Note. Interest will be computed on the
basis of the actual number of days elapsed from and including the prior
Distribution Date (or, in the case of the first Distribution Date, from and
including the Series 2007-SN1 Closing Date) to but excluding the current
Distribution Date and a 360-day year. Such principal of and interest on this
Permanent Regulation S Global [Class A-1a][Class A-1b] Note shall be paid in the
manner specified in the CARAT Indenture. All interest payments on this Permanent
Regulation S Global [Class A-1a][Class A-1b] Note on any Distribution Date shall
be made pro rata to the [Class A-1a][Class A-1b] Noteholders entitled thereto.
The principal of and interest on this Permanent Regulation S Global [Class
A-1a][Class A-1b] Note are payable in such coin or currency of the United States
of America which, at the time of payment, is legal tender for payment of public
and private debts. All payments made by the Issuer with respect to this
Permanent Regulation S Global [Class A-1a][Class A-1b] Note shall be applied
first to interest due and payable on this Permanent Regulation S Global [Class
A-1a][Class A-1b] Note as provided above and then to the unpaid principal of
this Permanent Regulation S Global [Class A-1a][Class A-1b] Note as provided
above.
C-5-3
Reference is made to the further provisions of this Permanent Regulation S
Global [Class A-1a][Class A-1b] Note set forth on the reverse hereof, which
shall have the same effect as though fully set forth on the face of this
Permanent Regulation S Global [Class A-1a][Class A-1b] Note.
Unless the certificate of authentication hereon has been executed by the
CARAT Indenture Trustee whose name appears below by manual signature, this
Permanent Regulation S Global [Class A-1a][Class A-1b] Note shall not be
entitled to any benefit under the CARAT Indenture referred to on the reverse
hereof or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Issuer has caused this instrument to be signed,
manually or in facsimile, by its Authorized Officer.
Date: June 7, 2007
CAPITAL AUTO RECEIVABLES ASSET TRUST
2007-SN1
By: DEUTSCHE BANK TRUST COMPANY
DELAWARE, not in its individual
capacity but solely as CARAT Owner
Trustee
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
C-5-4
CARAT INDENTURE TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the CARAT 2007-SN1 Notes designated above and referred to in
the within-mentioned CARAT Indenture.
THE BANK OF NEW YORK TRUST COMPANY,
N.A., not in its individual capacity but
solely as CARAT Indenture Trustee
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
C-5-5
REVERSE OF NOTE
This CARAT 2007-SN1 Note is one of a duly authorized issue of CARAT
2007-SN1 Notes of the Issuer, designated as its Class A-1 Fixed Rate Asset
Backed Notes (herein called the "[Class A-1a][Class A-1b] Notes"), all issued
under a CARAT Indenture, dated as of June 7, 2007 (such CARAT Indenture, as
supplemented or amended, is herein called the "CARAT Indenture"), between the
Issuer and The Bank of New York Trust Company, N.A., as trustee (the "CARAT
Indenture Trustee", which term includes any successor trustee under the CARAT
Indenture), to which CARAT Indenture and all indentures supplemental thereto
reference is hereby made for a statement of the respective rights and
obligations thereunder of the Issuer, the CARAT Indenture Trustee and the CARAT
2007-SN1 Noteholders. The [Class A-1a][Class A-1b] Notes are one of several duly
authorized classes of CARAT 2007-SN1 Notes of the Issuer issued pursuant to the
CARAT Indenture (collectively, as to all CARAT 2007-SN1 Notes of all such
classes, the "CARAT 2007-SN1 Notes"). The CARAT 2007-SN1 Notes are governed by
and subject to all terms of the CARAT Indenture (which terms are incorporated
herein and made a part hereof), to which CARAT Indenture the Holder of this
CARAT 2007-SN1 Note by virtue of acceptance hereof assents and by which such
Holder is bound. All capitalized terms used and not otherwise defined in this
CARAT 2007-SN1 Note that are defined in the CARAT Indenture, as supplemented or
amended, shall have the meanings assigned to them in or pursuant to the CARAT
Indenture.
The [Class A-1a][Class A-1b] Notes and all other CARAT 2007-SN1 Notes
issued pursuant to the CARAT Indenture are and will be equally and ratably
secured by the Collateral pledged as security therefor as provided in the CARAT
Indenture.
By acquiring a CARAT 2007-SN1 Note or any interest therein, each purchaser
and transferee will be deemed to represent and warrant that either (A) it is not
(i) an "employee benefit plan" (as defined in Section 3(3) of the United States
Employee Retirement Income Security Act of 1974, as amended ("ERISA"), that is
subject to the provisions of Title I of ERISA, (ii) a "plan" as described in
Section 4975(e)(1) of the Internal Revenue Code of 1986, as amended (the
"Code"), (iii) an entity whose underlying assets include plan assets by reason
of an employee benefit plan's or a plan's investment in the entity or (iv) other
plan subject to applicable law that is substantially similar to Section 406 of
ERISA or Section 4975 of the Code or (B) the acquisition, holding and
disposition of the CARAT 2007-SN1 Note will not give rise to a non-exempt
prohibited transaction under Section 406(a) of ERISA, Section 4975 of the Code
or a violation of any substantially similar applicable law.
Each CARAT 2007-SN1 Noteholder or Note Owner, by acceptance of a CARAT
2007-SN1 Note or, in the case of a Note Owner, a beneficial interest in a CARAT
2007-SN1 Note, covenants and agrees that no recourse may be taken, directly or
indirectly, with respect to the obligations of the Issuer, the CARAT Owner
Trustee or the CARAT Indenture Trustee on the CARAT 2007-SN1 Notes or under the
CARAT Indenture or any certificate or other writing delivered in connection
therewith, against (i) the CARAT Indenture Trustee or the CARAT Owner Trustee in
their individual capacities, (ii) the Seller or any other owner of a beneficial
interest in the Issuer or (iii) any partner, owner, beneficiary, agent, officer,
director or employee of the CARAT Indenture Trustee or the CARAT Owner Trustee
in their individual capacities, any holder of a beneficial interest in the
Issuer, the CARAT Owner Trustee or the CARAT
C-5-6
Indenture Trustee or of any successor or assign of the CARAT Indenture Trustee
or the CARAT Owner Trustee in their individual capacities, except as any such
Person may have expressly agreed and except that any such partner, owner or
beneficiary shall be fully liable, to the extent provided by applicable law, for
any unpaid consideration for stock, unpaid capital contribution or failure to
pay any instalment or call owing to such entity.
Each CARAT 2007-SN1 Noteholder or Note Owner, by acceptance of a CARAT
2007-SN1 Note or, in the case of a Note Owner, a beneficial interest in a CARAT
2007-SN1 Note, covenants and agrees that by accepting the benefits of the CARAT
Indenture such CARAT 2007-SN1 Noteholder will not, prior to the date which is
one year and one day after the termination of the CARAT Indenture, acquiesce,
petition or otherwise invoke or cause the Seller or the Issuer to invoke the
process of any court or government authority for the purpose of commencing or
sustaining a case against the Seller or the Issuer under any federal or state
bankruptcy, insolvency or similar law or appointing a receiver, liquidator,
assignee, trustee, custodian, sequestrator or other similar official of the
Seller or the Issuer or any substantial part of its property, or ordering the
winding up or liquidation of the affairs of the Seller or the Issuer.
Each CARAT 2007-SN1 Noteholder or Note Owner, by acceptance of a CARAT
2007-SN1 Note or, in the case of a Note Owner, a beneficial interest in a CARAT
2007-SN1 Note, expresses its intention that this CARAT 2007-SN1 Note qualifies
under applicable tax law as indebtedness secured by the Collateral and, unless
otherwise required by appropriate taxing authorities, agrees to treat the CARAT
2007-SN1 Notes as indebtedness secured by the Collateral for the purpose of
federal income taxes, state and local income and franchise taxes, Michigan
single business tax, and any other taxes imposed upon, measured by or based upon
gross or net income.
Prior to the due presentment for registration of transfer of this CARAT
2007-SN1 Note, the Issuer, the CARAT Indenture Trustee and any agent of the
Issuer or the CARAT Indenture Trustee may treat the Person in whose name this
CARAT 2007-SN1 Note (as of the day of determination or as of such other date as
may be specified in the CARAT Indenture) is registered as the owner hereof for
all purposes, whether or not this CARAT 2007-SN1 Note shall be overdue, and
neither the Issuer, the CARAT Indenture Trustee nor any such agent shall be
affected by notice to the contrary.
The CARAT Indenture permits, with certain exceptions as therein provided,
the amendment thereof and the modification of the rights and obligations of the
Issuer and the rights of the CARAT 2007-SN1 Noteholders under the CARAT
Indenture at any time by the Issuer with the consent of the Holders of CARAT
2007-SN1 Notes representing a majority of the Outstanding Amount of the
Controlling Class. The CARAT Indenture also contains provisions permitting the
Holders of CARAT 2007-SN1 Notes representing specified percentages of the
Outstanding Amount of the Controlling Class, on behalf of the Holders of all the
CARAT 2007-SN1 Notes, to waive compliance by the Issuer with certain provisions
of the CARAT Indenture and certain past defaults under the CARAT Indenture and
their consequences. Any such consent or waiver by the Holder of this CARAT
2007-SN1 Note (or any one of more Predecessor Notes) shall be conclusive and
binding upon such Holder and upon all future Holders of this CARAT 2007-SN1 Note
and of any CARAT 2007-SN1 Note issued upon the registration of transfer hereof
or in exchange hereof or in lieu hereof whether or not notation of such consent
or waiver
C-5-7
is made upon this CARAT 2007-SN1 Note. The CARAT Indenture also permits the
CARAT Indenture Trustee to amend or waive certain terms and conditions set forth
in the CARAT Indenture without the consent of the Noteholders.
The term "Issuer" as used in this CARAT 2007-SN1 Note includes any
successor to the Issuer under the CARAT Indenture.
The Issuer is permitted by the CARAT Indenture, under certain
circumstances, to merge or consolidate, subject to the rights of the CARAT
Indenture Trustee and the Holders of CARAT 2007-SN1 Notes under the CARAT
Indenture.
The CARAT 2007-SN1 Notes are issuable only in registered form in
denominations as provided in the CARAT Indenture, subject to certain limitations
therein set forth.
THIS CARAT 2007-SN1 NOTE AND THE CARAT INDENTURE SHALL BE CONSTRUED IN
ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO
THE PRINCIPLES OF CONFLICTS OF LAWS THEREOF OR OF ANY OTHER JURISDICTION (OTHER
THAN SECTIONS 5-1401 AND 5-1402 OF THE NEW YORK GENERAL OBLIGATIONS LAW), AND
THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER AND THEREUNDER
SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
No reference herein to the CARAT Indenture and no provision of this CARAT
2007-SN1 Note or of the CARAT Indenture shall alter or impair the obligation of
the Issuer, which is absolute and unconditional, to pay the principal of and
interest on this CARAT 2007-SN1 Note at the times, place and rate, and in the
coin or currency herein prescribed.
Anything herein to the contrary notwithstanding, except as expressly
provided in the CARAT Basic Documents, neither the Seller, the Trust
Administrator, the CARAT Indenture Trustee nor the CARAT Owner Trustee in their
respective individual capacities, any owner of a beneficial interest in the
Issuer, nor any of their respective partners, beneficiaries, agents, officers,
directors, employees or successors or assigns, shall be personally liable for,
nor shall recourse be had to any of them for, the payment of principal of or
interest on, or performance of, or omission to perform, any of the covenants,
obligations or indemnifications contained in this CARAT 2007-SN1 Note or the
CARAT Indenture, it being expressly understood that said covenants, obligations
and indemnifications have been made by the CARAT Owner Trustee solely as the
CARAT Owner Trustee in the assets of the Issuer. The Holder of this CARAT
2007-SN1 Note by the acceptance hereof agrees that, except as expressly provided
in the CARAT Basic Documents, in the case of a CARAT Event of Default under the
CARAT Indenture, the Holder shall have no claim against any of the foregoing for
any deficiency, loss or claim therefrom; provided, however, that nothing
contained herein shall be taken to prevent recourse to, and enforcement against,
the assets of the Issuer for any and all liabilities, obligations and
undertakings contained in the CARAT Indenture or in this CARAT 2007-SN1 Note.
C-5-8
ASSIGNMENT
Social Security or taxpayer I.D. or other identifying number of assignee
_____________________________________
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers
unto ___________________________________________________________________________
________________________________________________________________________________
(name and address of assignee)the within CARAT 2007-SN1 Note and all rights
thereunder, and hereby irrevocably constitutes and appoints
____________________________________, as attorney, to transfer said CARAT
2007-SN1 Note on the books kept for registration thereof, with full power of
substitution in the premises.
Dated:
------------------------------- ----------------------------------------
Signature Guaranteed:
- ------------------------------------- ----------------------------------------
C-5-9
EXHIBIT D-1
FORM OF TRANSFEROR CERTIFICATE
FOR TRANSFERS OF THE RULE 144A GLOBAL
CLASS A-1 NOTES
[Date]
The Bank of New York Trust Company, N.A., as Note Registrar
101 Barclay Street, 4 East
New York, NY 10286
Fax (212) 815-3986
Re: CARAT 2007-SN1 NOTES, [CLASS A-1A] [CLASS A-1B] (the "Class A-1 Notes")
Ladies and Gentlemen:
This letter relates to the sale by _____________________________ (the
"Transferor") to _________________________ (the "Transferee") of U.S.
$[__________] aggregate principal balance of Class A-1 Notes (the "Transferred
Notes"). The Class A-1 Notes, including the Transferred Notes, were issued
pursuant to the CARAT Indenture, dated as of June 7, 2007 (the "CARAT
Indenture"), among Capital Auto Receivables Asset Trust 2007-SN1, as issuer (the
"Issuer") and The Bank of New York Trust Company, N.A., as indenture trustee
(the "CARAT Indenture Trustee"). All capitalized terms used but not otherwise
defined herein shall have the respective meanings set forth in the CARAT
Indenture.
The Transferor hereby certifies, represents and warrants to you, as Note
Registrar, and for the benefit of the Issuer, the CARAT Indenture Trustee and
the Transferee, that the Transferred Notes are being transferred in accordance
with (i) the transfer restrictions set forth in the CARAT Indenture and the
private placement memorandum dated [ ], 2007 relating to the Notes and (ii) Rule
144A under the United States Securities Act of 1933, as amended, to a Transferee
that the Transferor reasonably believes is a qualified institutional buyer
within the meaning of Rule 144A purchasing the Notes for its own account or for
the account of a qualified institutional buyer, in a transaction meeting the
requirements of Rule 144A and in accordance with any applicable securities laws
of any state of the United States or any other jurisdiction.
[Name of Transferor]
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
cc: [Seller]
D-1
EXHIBIT D-2
FORM OF TRANSFEREE CERTIFICATE
FOR TRANSFERS OF THE RULE 144A GLOBAL CLASS A-1 NOTES
[Date]
The Bank of New York Trust Company, N.A., as Note Registrar
101 Barclay Street, 4 East
New York, NY 10286
Fax (212) 815-3986
Re: CARAT 2007-SN1 NOTES, [CLASS A-1A] [CLASS A-1B] (the "Class A-1 Notes")
Ladies and Gentlemen:
__________________ (the "Transferee") intends to purchase from _________________
(the "Transferor") U.S. $[__________] aggregate principal balance of Class A-1
Notes (the "Transferred Notes"). The Class A-1 Notes, including the Transferred
Notes, were issued pursuant to the CARAT Indenture, dated as of June 7, 2007
(the "CARAT Indenture"), among Capital Auto Receivables Asset Trust 2007-SN1, as
issuer (the "Issuer") and The Bank of New York Trust Company, N.A. as indenture
trustee (the "CARAT Indenture Trustee"). All capitalized terms used herein and
not otherwise defined shall have the meanings set forth in the CARAT Indenture.
The Transferee hereby certifies, represents and warrants to you, as Note
Registrar, and for the benefit of the Issuer, the CARAT Indenture Trustee and
the Transferor, that:
1. The Transferee is a "qualified institutional buyer" (a "Qualified
Institutional Buyer") as that term is defined in Rule 144A ("Rule l44A") under
the Securities Act of 1933, as amended (the "Securities Act"), and has completed
one of the forms of certification to that effect attached hereto as Annex 1 and
Annex 2. The Transferee is aware that the sale to it of the Transferred Notes is
being made in reliance on Rule 144A. The Transferee is acquiring the Transferred
Notes for its own account or for the account of a Qualified Institutional Buyer,
and understands that such Transferred Notes may be resold, pledged or
transferred only (i) to a person reasonably believed to be a Qualified
Institutional Buyer that purchases for its own account or for the account of a
Qualified Institutional Buyer to whom notice is given that the resale, pledge or
transfer is being made in reliance on Rule 144A, or (ii) pursuant to another
exemption from registration under the Securities Act.
2. The Transferee has been furnished with all information regarding (a) the
Transferred Notes and payments thereon, (b) the nature and performance of the
COLT 2007-SN1 Secured Notes and the Series 2007-SN1 Lease Assets, (c) the CARAT
Indenture, and (d) any credit enhancement mechanism associated with the
Transferred Notes, that it has requested.
Very truly yours,
----------------------------------------
(Transferee)
By:
------------------------------------
Name:
----------------------------------
D-2-1
ANNEX 1 TO EXHIBIT D-2
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[for Transferees other than Registered Investment Companies]
The undersigned hereby certifies as follows to [name of Transferor] (the
"Transferor") and [name of Note Registrar], as Note Registrar, with respect to
the Class A-1 Notes being transferred (the "Transferred Notes") as described in
the Transferee Certificate to which this certification relates and to which this
certification is an Annex:
1. As indicated below, the undersigned is the chief financial officer, a person
fulfilling an equivalent function, or other executive officer of the entity
purchasing the Transferred Notes (the "Transferee").
2. The Transferee is a "qualified institutional buyer" as that term is defined
in Rule 144A under the Securities Act of 1933, as amended ("Rule 144A"), because
(i) the Transferee owned and/or invested on a discretionary basis
$____________________ in securities (other than the excluded securities referred
to below) as of the end of the Transferee's most recent fiscal year (such amount
being calculated in accordance with Rule 144A) and (ii) the Transferee satisfies
the criteria in the category marked below.
[ ] Corporation, etc. The Transferee is a corporation (other than a bank,
savings and loan association or similar institution), Massachusetts or
similar business trust, partnership, or any organization described in
Section 501(c)(3) of the Internal Revenue Code of 1986, as amended.
[ ] Bank. The Transferee (a) is a national bank or a banking institution
organized under the laws of any State, U.S. territory or the District of
Columbia, the business of which is substantially confined to banking and is
supervised by the State or territorial banking commission or similar
official or is a foreign bank or equivalent institution, and (b) has an
audited net worth of at least $25,000,000 as demonstrated in its latest
annual financial statements, a copy of which is attached hereto, as of a
date not more than 16 months preceding the date of sale of the Note in the
case of a U.S. bank, and not more than 18 months preceding such date of
sale for a foreign bank or equivalent institution.
[ ] Savings and Loan. The Transferee (a) is a savings and loan association,
building and loan association, cooperative bank, homestead association or
similar institution, which is supervised and examined by a State or Federal
authority having supervision over any such institutions or is a foreign
savings and loan association or equivalent institution and (b) has an
audited net worth of at least $25,000,000 as demonstrated in its latest
annual financial statements, a copy of which is attached hereto, as of a
date not more than 16 months preceding the date of sale of the Note in
D-2-2
the case of a U.S. savings and loan association, and not more than 18
months preceding such date of sale for a foreign savings and loan
association or equivalent institution.
[ ] Broker-dealer. The Transferee is a dealer registered pursuant to Section
15 of the Securities Exchange Act of 1934, as amended.
[ ] Insurance Company. The Transferee is an insurance company whose primary
and predominant business activity is the writing of insurance or the
reinsuring of risks underwritten by insurance companies and which is
subject to supervision by the insurance commissioner or a similar official
or agency of a State, U.S. territory or the District of Columbia.
[ ] State or Local Plan. The Transferee is a plan established and maintained
by a State, its political subdivisions, or any agency or instrumentality of
the State or its political subdivisions, for the benefit of its employees.
[ ] ERISA Plan. The Transferee is an employee benefit plan within the meaning
of Title I of the Employee Retirement Income Security Act of 1974, as
amended.
[ ] Investment Advisor. The Transferee is an investment advisor registered
under the Investment Advisers Act of 1940, as amended.
[ ] Other. (Please supply a brief description of the entity and a
cross-reference to the paragraph and subparagraph under subsection (a)(1)
of Rule l44A pursuant to which it qualifies. Note that registered
investment companies should complete Annex 2 rather than this Annex 1.)
3. The term "securities" as used herein does not include (i) securities of
issuers that are affiliated with the Transferee, (ii) securities that are part
of an unsold allotment to or subscription by the Transferee, if the Transferee
is a dealer, (iii) bank deposit notes and certificates of deposit, (iv) loan
participations, (v) repurchase agreements, (vi) securities owned but subject to
a repurchase agreement and (vii) currency, interest rate and commodity swaps.
For purposes of determining the aggregate amount of securities owned and/or
invested on a discretionary basis by the Transferee, the Transferee did not
include any of the securities referred to in this paragraph.
4. For purposes of determining the aggregate amount of securities owned and/or
invested on a discretionary basis by the Transferee, the Transferee used the
cost of such securities to the Transferee, unless the Transferee reports its
securities holdings in its financial statements on the basis of their market
value, and no current information with respect to the cost of those securities
has been published, in which case the securities were valued at market. Further,
in determining such aggregate amount, the Transferee may have included
securities owned by subsidiaries of the Transferee, but only if such
subsidiaries are consolidated with the Transferee in its financial statements
prepared in accordance with generally accepted accounting principles and if the
investments of such subsidiaries are managed under the Transferee's direction.
However, such
D-2-3
securities were not included if the Transferee is a majority-owned, consolidated
subsidiary of another enterprise and the Transferee is not itself a reporting
company under the Securities Exchange Act of 1934, as amended.
5. The Transferee acknowledges that it is familiar with Rule l44A and
understands that the Transferor and other parties related to the Transferred
Notes are relying and will continue to rely on the statements made herein
because one or more sales to the Transferee may be in reliance on Rule 144A.
[ ] [ ] Will the Transferee be purchasing the Transferred Notes only for the
Yes No Transferee's own account?
6. If the answer to the foregoing question is "no", then in each case where the
Transferee is purchasing for an account other than its own, such account belongs
to a third party that is itself a "qualified institutional buyer" within the
meaning of Rule 144A, and the "qualified institutional buyer" status of such
third party has been established by the Transferee through one or more of the
appropriate methods contemplated by Rule 144A.
7. The Transferee will notify each of the parties to which this certification is
made of any changes in the information and conclusions herein. Until such notice
is given, the Transferee's purchase of the Transferred Notes will constitute a
reaffirmation of this certification as of the date of such purchase. In
addition, if the Transferee is a bank or savings and loan as provided above, the
Transferee agrees that it will furnish to such parties any updated annual
financial statements that become available on or before the date of such
purchase, promptly after they become available.
----------------------------------------
Print Name of Transferee
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
Date:
-------------------------
D-2-4
ANNEX 2 TO EXHIBIT D-2
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[for Transferees that are Registered Investment Companies]
The undersigned hereby certifies as follows to [name of Transferor] (the
"Transferor") and [name of Note Registrar], as Note Registrar, with respect to
the Class A-1 Notes being transferred (the "Transferred Notes") as described in
the Transferee Certificate to which this certification relates and to which this
certification is an Annex:
1. As indicated below, the undersigned is the chief financial officer, a person
fulfilling an equivalent function, or other executive officer of the entity
purchasing the Transferred Certificates (the "Transferee") or, if the Transferee
is a "qualified institutional buyer" as that term is defined in Rule 144A under
the Securities Act of 1933, as amended ("Rule 144A"), because the Transferee is
part of a Family of Investment Companies (as defined below), is an executive
officer of the investment adviser (the "Adviser").
2. The Transferee is a "qualified institutional buyer" as defined in Rule 144A
because (i) the Transferee is an investment company registered under the
Investment Company Act of 1940, as amended, and (ii) as marked below, the
Transferee alone owned and/or invested on a discretionary basis, or the
Transferee's Family of Investment Companies owned, at least $100,000,000 in
securities (other than the excluded securities referred to below) as of the end
of the Transferee's most recent fiscal year. For purposes of determining the
amount of securities owned by the Transferee or the Transferee's Family of
Investment Companies, the cost of such securities was used, unless the
Transferee or any member of the Transferee's Family of Investment Companies, as
the case may be, reports its securities holdings in its financial statements on
the basis of their market value, and no current information with respect to the
cost of those securities has been published, in which case the securities of
such entity were valued at market.
[ ] The Transferee owned and/or invested on a discretionary basis
$____________ in securities (other than the excluded securities
referred to below) as of the end of the Transferee's most recent
fiscal year (such amount being calculated in accordance with Rule
144A).
[ ] The Transferee is part of a Family of Investment Companies which owned
in the aggregate $_____________ in securities (other than the excluded
securities referred to below) as of the end of the Transferee's most
recent fiscal year (such amount being calculated in accordance with
Rule 144A).
3. The term "Family of Investment Companies" as used herein means two or more
registered investment companies (or series thereof) that have the same
investment adviser or I investment advisers that are affiliated (by virtue of
being majority owned subsidiaries of the same parent or because one investment
adviser is a majority owned subsidiary of the other).
D-2-5
4. The term "securities" as used herein does not include (i) securities of
issuers that are affiliated with the Transferee or are part of the Transferee's
Family of Investment Companies, (ii) bank deposit notes and certificates of
deposit, (iii) loan participations, (iv) repurchase agreements, (v) securities
owned but subject to a repurchase agreement and (vi) currency, interest rate and
commodity swaps. For purposes of determining the aggregate amount of securities
owned and/or invested on a discretionary basis by the Transferee, or owned by
the Transferee's Family of Investment Companies, the securities referred to in
this paragraph were excluded.
5. The Transferee is familiar with Rule 144A and understands that the parties to
which this certification is being made are relying and will continue to rely on
the statements made herein because one or more sales to the Transferee will be
in reliance on Rule 144A.
[ ] [ ] Will the Transferee be purchasing the Transferred Notes only for the
Yes No Transferee's own account?
6. If the answer to the foregoing question is "no", then in each case where the
Transferee is purchasing for an account other than its own, such account belongs
to a third party that is itself a "qualified institutional buyer" within the
meaning of Rule 144A, and the "qualified institutional buyer" status of such
third party has been established by the Transferee through one or more of the
appropriate methods contemplated by Rule l44A.
7. The undersigned will notify the parties to which this certification is made
of any changes in the information and conclusions herein. Until such notice, the
Transferee's purchase of the Transferred Notes will constitute a reaffirmation
of this certification by the undersigned as of the date of such purchase.
----------------------------------------
Print Name of Transferee or Adviser
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
IF AN ADVISER:
----------------------------------------
Print Name of Transferee
Date:
-------------------
D-2-6
EXHIBIT D-3
FORM OF REGULATION S TRANSFER CERTIFICATE
[Date]
The Bank of New York Trust Company, N.A., as Note Registrar
101 Barclay Street, 4 East
New York, NY 10286
Fax (212) 815-3986
Re: CARAT 2007-SN1 NOTES, [CLASS A-1A] [CLASS A-1B] (the "Class A-1 Notes")
__________________ (the "Transferee") intends to purchase from _________________
(the "Transferor") U.S. $[__________] aggregate principal balance of Class A-1
Notes (the "Transferred Notes"). The Class A-1 Notes, including the Transferred
Notes, were issued pursuant to the CARAT Indenture, dated as of June 7, 2007
(the "CARAT Indenture"), among Capital Auto Receivables Asset Trust 2007-SN1, as
issuer (the "Issuer") and The Bank of New York Trust Company, N.A. as indenture
trustee (the "CARAT Indenture Trustee"). All capitalized terms used herein and
not otherwise defined shall have the meanings set forth in the CARAT Indenture.
The Transferee hereby certifies, represents and warrants to you, as Note
Registrar, and for the benefit of the Issuer, the CARAT Indenture Trustee and
the Transferor, that:
1. The Transferee is not a U.S. person (as defined in Regulation S under the
Securities Act) and is acquiring the Transferred Notes outside of the United
States.
2. No directed selling efforts were made in contravention of the requirements of
Rule 903(b) or 904(b) of Regulation S, as applicable.
3. The transfer is not part of a plan or scheme to evade the registration
requirements of the Securities Act;
4. The transfer was made in accordance with the applicable provisions of Rule
903 or Rule 904 of Regulation S, as the case may be.
5. The Transferee has been furnished with all information regarding (a) the
Transferred Notes and payments thereon, (b) the nature and performance of the
COLT 2007-SN1 Secured Notes and the Series 2007-SN1 Lease Assets, (c) the CARAT
Indenture, and (d) any credit enhancement mechanism associated with the
Transferred Notes, that it has requested.
6. The Transferee understands that the Transferred Notes have not been and will
not be registered under the Securities Act, that any offers, sales or deliveries
of the Transferred Notes purchased by the Transferee in the United States or to
U.S. persons prior to the date that is 40 days after the later of (i) the
commencement of the offering of the Class A-1 Notes and (ii) the Series 2007-SN1
Closing Date, may constitute a violation of United States law, and that (x)
D-3-1
distributions of principal and interest and (y) the exchange of beneficial
interests in a Temporary Regulation S Global Class A-1 Note for beneficial
interests in the related Permanent Regulation S Global Class A-1 Note, in each
case, will be made in respect of such Transferred Notes only following the
delivery by the holder of a certification of non-U.S. beneficial ownership, at
the times and in the manner set forth in the CARAT Indenture.
Very truly yours,
----------------------------------------
(Transferee)
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
D-3-2
EXHIBIT D-4
FORM OF RULE 144A TRANSFER CERTIFICATE
[Date]
The Bank of New York Trust Company, N.A., as Note Registrar
101 Barclay Street, 4 East
New York, NY 10286
Fax (212) 815-3986
Re: CARAT 2007-SN1 NOTES, [CLASS A-1A] [CLASS A-1B] (the "Class A-1 Notes")
Ladies and Gentlemen:
Reference is hereby made to the CARAT Indenture, dated as of June 7, 2007
(the "CARAT Indenture") among Capital Auto Receivables Asset Trust 2007-SN1, as
issuer (the "Issuer") and The Bank of New York Trust Company, N.A. as indenture
trustee (the "CARAT Indenture Trustee"). Capitalized terms used herein but not
defined herein shall have the meanings assigned thereto in the CARAT Indenture.
This letter relates to U.S. $[__________] aggregate principal balance of
Class A-1 Notes which are held in the form of a Temporary Regulation S Global
Class A-1 Note with the Depository [CUSIP/CINS No. ______________] in the name
of [name of transferor] (the "Transferor") to effect [the transfer of the Class
A-1 Notes to a person who wishes to take delivery thereof in the form of an
equivalent beneficial interest in a Rule 144A Global Note (the "Transferee")]
[the exchange of the Class A-1 Notes for an equivalent beneficial interest in a
Rule 144A Global Class A-1 Note.
In connection with such request, and in respect of such Notes, the
Transferor does hereby certify that such Class A-1 Notes are being transferred
in accordance with (i) the transfer restrictions set forth in the CARAT
Indenture and the private placement memorandum dated June 7, 2007 relating to
the Notes and (ii) Rule 144A under the United States Securities Act of 1933, as
amended, to a Transferee that the Transferor reasonably believes is a qualified
institutional buyer within the meaning of Rule 144A purchasing the Class A-1
Notes for its own account or for the account of a qualified institutional buyer,
in a transaction meeting the requirements of Rule 144A and in accordance with
any applicable securities laws of any state of the United States or any other
jurisdiction.
[Name of Transferor]
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
cc: [Seller]
D-4-1
EXHIBIT D-5
FORM OF CLEARING SYSTEM CERTIFICATE
[Date]
The Bank of New York Trust Company, N.A., as Note Registrar
101 Barclay Street, 4 East
New York, NY 10286
Fax (212) 815-3986
Re: CARAT 2007-SN1 NOTES, [CLASS A-1A] [CLASS A-1B] (the "Class A-1 Notes")
Ladies and Gentlemen:
Reference is hereby made to the CARAT Indenture, dated as of June 7, 2007
(the "CARAT Indenture"), among Capital Auto Receivables Asset Trust 2007-SN1, as
issuer (the "Issuer") and The Bank of New York Trust Company, N.A. as indenture
trustee (the "CARAT Indenture Trustee"). Capitalized terms used herein but not
defined herein shall have the meanings assigned thereto in the CARAT Indenture.
This is to certify that, based solely on certificates we have received in
writing, by tested telex or by electronic transmissions from member
organizations appearing in our records as persons being entitled to a portion of
the Class A-1 Notes equal to, as of the date hereof, U.S. $_____ (our "Member
Organizations"), certifies with respect to such portion, substantially to the
effect set forth in Annex A hereto.
We further certify (i) that we are not making available herewith for
exchange any portion of the Temporary Regulation S Global Class A-1 Note
excepted in such certificates and (ii) that as of the date hereof we have not
received any notification from any of our Member Organizations to the effect
that the statements made by such member organizations with respect to any
portion of the part submitted herewith for exchange are no longer true and
cannot be relied upon as at the date hereof. We understand that this
certification is required in connection with certain securities laws of the
United States. In connection therewith, if administrative or legal proceedings
are commenced or threatened in connection with this certificate is or would be
relevant, we irrevocably authorized you to produce this certificate to any
interested party in such proceedings.
Yours faithfully,
[CLEARSTREAM, LUXEMBOURG]
or
[EUROCLEAR BANK SA/NV,
Brussels office, as operator of the
Euroclear System]
By:
---------------------------------
D-5-1
ANNEX A TO EXHIBIT D-5
FORM OF MEMBER ORGANIZATION CERTIFICATE
[Address to Euroclear or Clearstream, Luxembourg, as appropriate]
Re: CARAT 2007-SN1 NOTES, [CLASS A-1A] CLASS A-1B] (the "Class A-1 Notes")
Ladies and Gentlemen:
Reference is hereby made to the CARAT Indenture, dated as of June 7, 2007
(the "CARAT Indenture"), among Capital Auto Receivables Asset Trust 2007-SN1, as
issuer (the "Issuer") and The Bank of New York Trust Company, N.A., as indenture
trustee (the "CARAT Indenture Trustee"). Capitalized terms used herein but not
defined herein shall have the meanings assigned thereto in the CARAT Indenture.
This is to certify that, as of the date hereof and except as set forth
below, the Class A-1 Notes (the "Class A-1 Notes") held by you for our account
are beneficially owned by non-U.S. persons who purchased the Class A-1 Notes in
transactions that did not require registration under the United States
Securities Act of 1933, as amended (the "Securities Act"). As used in this
paragraph, the term "U.S. person" has the meaning given to it by Regulation S
under the Securities Act.
We undertake to advise you promptly by tested telex on or prior to the date
on which you intend to submit your certification relating to the Class A-1 Notes
held by you for our account in accordance with your documented procedures if any
applicable statement herein is not correct on such date, and in the absence of
any such notification it may be assumed that this certificate applies as of such
date.
Dated: [________], 2007(1)
Yours faithfully,
----------------------------------------
[Name of Person giving the certificate]
(1) To be dated no earlier than 15 days prior to the event to which the
certification relates.
D-5-2
EXHIBIT E
RULE 144A CERTIFICATE
Capital Auto Receivables, Inc.
Corporation Trust Center
1209 Orange Street
Wilmington, DE 19801
The Bank of New York Trust Company, N.A., as Note Registrar
as CARAT Indenture Trustee
101 Barclay Street, 4 East
New York, NY 10286
Fax (212) 815-3986
Ladies and Gentlemen:
In connection with the purchase of the Class A-1 Note[Floating] [Fixed]
Rate Asset Backed Notes (the "Class A-1 Notes") of the Capital Auto Receivables
Asset Trust 2007-SN1, the undersigned buyer ("Buyer") hereby acknowledges,
represents and agrees that:
(a) Buyer is a "qualified institutional buyer" as defined under Rule 144A
("Rule 144A") under the Securities Act of 1933, as amended (the "Securities
Act"), acting for its own account or for the accounts of other "qualified
institutional buyers" as defined under Rule 144A under the Securities Act. Buyer
is familiar with Rule 144A under the Securities Act and Buyer is aware that the
seller of the applicable Class A-1 Notes, as applicable, to the Buyer and other
parties intend to rely on the statements made herein and the exemption from the
registration requirements of the Securities Act provided by Rule 144A.
(b) Buyer is purchasing the applicable Class A-1 Notes for its own account
(or the accounts of other "qualified institutional buyers"), not with a view to,
or for offer or sale in connection with, any distribution thereof, subject to
the disposition of Buyer's property (or property held in the accounts of other
"qualified institutional buyers") being at all times within Buyer's control and
subject to Buyer's ability to resell such Class A-1 Notes pursuant to Rule 144A
under the Securities Act. Buyer agrees to offer, sell or otherwise transfer such
Class A-1 Notes only in conformity with the restrictions on transfer set forth
in the CARAT Indenture dated as of June 7, 2007 pursuant to which the Class A-1
Notes were issued and the legend set forth on the definitive physical
certificate evidencing the Class A-1 Notes.
E-1
(c) Buyer acknowledges that you and others will rely upon its
confirmations, acknowledgments and agreements set forth herein, and Buyer agrees
to notify you promptly in writing if any of the information herein ceases to be
accurate and complete.
----------------------------------------
Print Name of Buyer
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
Date:
--------------------------
E-2
EXHIBIT F
FORM OF CERTIFICATION
Re: the _________________________ dated as of ____________________ (the
"Agreement"), among _____________________________________.
I, ______________________________, the ______________________________ of
______________________________ (the "Company"), certify to Central Originating
Lease Trust ("COLT"), Capital Auto Receivables LLC ("CARI"), and their officers,
with the knowledge and intent that they will rely upon this certification, that:
(1) I have reviewed the report on assessment of the Company's compliance
provided in accordance with Section 6.6 of the Agreement (the "Company
Information"), and the registered public accounting firm's attestation report
provided in accordance with 6.6 of the Agreement that were delivered by the
Company to COLT, CARI, the COLT Owner Trustee or the CARAT Owner Trustee
pursuant to the Agreement;
(2) To the best of my knowledge, the Company Information, taken as a whole,
does not contain any untrue statement of a material fact or omit to state a
material fact necessary to make the statements made, in the light of the
circumstances under which such statements were made, not misleading with respect
to the period of time covered by the Company Information; and
(3) To the best of my knowledge, all of the Company Information required to
be provided by the Company under the Agreement has been provided to COLT, CARI,
the COLT Owner Trustee or the CARAT Owner Trustee.
Dated:
---------------------------------
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
F-1