EXHIBIT 99.10
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CAPITAL AUTO RECEIVABLES ASSET TRUST 2005-SN1
POOLING AND ADMINISTRATION AGREEMENT
BETWEEN
CAPITAL AUTO RECEIVABLES, INC.
AND
GENERAL MOTORS ACCEPTANCE CORPORATION
DATED AS OF APRIL 28, 2005
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TABLE OF CONTENTS
PAGE
ARTICLE I DEFINITIONS.................................................................... 2
SECTION 1.01 Definitions.............................................................. 2
SECTION 1.02 Owner of a COLT 2005-SN1 Secured Note.................................... 2
ARTICLE II PURCHASE AND SALE OF COLT 2005-SN1 SECURED NOTES............................... 2
SECTION 2.01 Purchase and Sale of COLT 2005-SN1 Secured Notes......................... 2
SECTION 2.02 Secured Notes Purchase Price............................................. 3
SECTION 2.03 The Closing.............................................................. 3
ARTICLE III ADMINISTRATION OF THE COLT 2005-SN1 SECURED NOTES.............................. 4
SECTION 3.01 Duties of the Trust Administrator........................................ 4
SECTION 3.02 Maintenance of Security Interests in COLT 2005-SN1 Secured Notes......... 5
SECTION 3.03 Covenants, Representations and Warranties of the Trust
Administrator............................................................ 5
SECTION 3.04 Purchase of COLT 2005-SN1 Secured Notes Upon Breach of Covenant.......... 7
SECTION 3.05 Administration Fee; Payment of Certain Expenses by Trust
Administrator............................................................ 7
SECTION 3.06 Trust Administrator's Accounting......................................... 7
SECTION 3.07 Application of Payments.................................................. 8
ARTICLE IV REPRESENTATIONS AND WARRANTIES................................................. 8
SECTION 4.01 Representations and Warranties as to the COLT 2005-SN1 Secured
Notes.................................................................... 8
SECTION 4.02 Additional Representations and Warranties of GMAC........................ 10
SECTION 4.03 Representations and Warranties of XXXX................................... 11
ARTICLE V ADDITIONAL AGREEMENTS.......................................................... 12
SECTION 5.01 Conflicts With Further Transfer and Administration Agreements............ 12
SECTION 5.02 Protection of Title; Filings............................................. 12
SECTION 5.03 Other Liens or Interests................................................. 12
SECTION 5.04 Repurchase Events........................................................ 13
SECTION 5.05 Indemnification.......................................................... 13
SECTION 5.06 Further Assignments...................................................... 13
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TABLE OF CONTENTS
(continued)
PAGE
ARTICLE VI CONDITIONS..................................................................... 14
SECTION 6.01 Conditions to Obligation of XXXX......................................... 14
SECTION 6.02 Conditions to Obligation of GMAC......................................... 14
ARTICLE VII MISCELLANEOUS PROVISIONS....................................................... 15
SECTION 7.01 Amendment................................................................ 15
SECTION 7.02 Survival................................................................. 15
SECTION 7.03 Notices.................................................................. 15
SECTION 7.04 Governing Law............................................................ 15
SECTION 7.05 Waivers.................................................................. 15
SECTION 7.06 Costs and Expenses....................................................... 15
SECTION 7.07 Confidential Information................................................. 15
SECTION 7.08 Headings................................................................. 15
SECTION 7.09 Counterparts............................................................. 16
SECTION 7.10 No Petition Covenant..................................................... 16
SECTION 7.11 Limitations on Rights of Others.......................................... 16
EXHIBITS
EXHIBIT A Form of First Step Secured Notes Assignment
APPENDIX A Definitions, Rules of Construction and Notices
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THIS POOLING AND ADMINISTRATION AGREEMENT, dated as of April 28, 2005,
between CAPITAL AUTO RECEIVABLES, INC., a Delaware corporation ("XXXX"), and
GENERAL MOTORS ACCEPTANCE CORPORATION, a Delaware corporation ("GMAC" in its
capacity as seller of the COLT 2005-SN1 Secured Notes and the "Trust
Administrator" in its capacity as administrator for the COLT 2005-SN1 Secured
Notes).
WHEREAS, GMAC desires to sell the COLT 2005-SN1 Secured Notes, each of
which is secured by a lien on and security interest in the Series 2005-SN1 Lease
Assets, all proceeds thereof, including insurance proceeds and any and all
rights under any guarantees or similar obligations relating to such Series
2005-SN1 Lease Assets or proceeds thereof;
WHEREAS, GMAC, as holder of COLT 2005-SN1 Secured Notes, has certain
rights to receive payments with respect to the Series 2005-SN1 Lease Assets, and
to the other proceeds and rights described herein;
WHEREAS, XXXX desires to purchase the COLT 2005-SN1 Secured Notes and
related rights owned by GMAC and GMAC is willing to sell the COLT 2005-SN1
Secured Notes and related rights to XXXX;
WHEREAS, XXXX may wish to sell or otherwise transfer the COLT 2005-SN1
Secured Notes and related rights, or interests therein, to a trust, corporation,
partnership or other entity (any such entity being the "Issuer");
WHEREAS, the Issuer may issue debentures, notes, participations,
certificates of beneficial interest, partnership interests or other interests or
securities (collectively, any such issued interests or securities being
"Securities") to fund its acquisition of the COLT 2005-SN1 Secured Notes and
related rights;
WHEREAS, the Issuer may wish to provide in the agreements pursuant to
which it acquires its interest in the COLT 2005-SN1 Secured Notes and related
rights and issues the Securities (all such agreements, including the Trust Sale
and Administration Agreement and the CARAT Indenture, being collectively the
"Further Transfer and Administration Agreements") that GMAC shall administer the
COLT 2005-SN1 Secured Notes; and
WHEREAS, the Trust Administrator is willing to administer the COLT
2005-SN1 Secured Notes in accordance with the terms hereof for the benefit of
XXXX and, by its execution of the Further Transfer and Administration
Agreements, will be willing to administer the COLT 2005-SN1 Secured Notes in
accordance with the terms of such Further Transfer and Administration Agreements
for the benefit of the Issuer and each other party identified or described
herein or in the Further Transfer and Administration Agreements as having an
interest as owner, trustee, secured party, or holder of Securities (the Issuer
and all such parties under the Further Transfer and Administration Agreements
being "Interested Parties") with respect to the COLT 2005-SN1 Secured Notes, and
the proceeds thereof, as the interests of such parties may appear from time to
time.
NOW, THEREFORE, in consideration of the premises and the mutual covenants
herein contained, the parties hereto agree as follows:
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ARTICLE I
DEFINITIONS
SECTION 1.01 Definitions. Certain capitalized terms used in this Agreement
are defined in and shall have the respective meanings assigned to them in Part I
of Appendix A to this Agreement. All references herein to "the Agreement" or
"this Agreement" are to this Pooling and Administration Agreement as it may be
amended, supplemented or modified from time to time, and all references herein
to Articles and Sections are to Articles or Sections of this Agreement unless
otherwise specified. The rules of construction set forth in Part II of such
Appendix A shall be applicable to this Agreement.
SECTION 1.02 Owner of a COLT 2005-SN1 Secured Note. For purposes of this
Agreement, the "Owner" of a COLT 2005-SN1 Secured Note shall mean XXXX until the
sale, transfer, assignment or other conveyance of such COLT 2005-SN1 Secured
Note by XXXX pursuant to the terms of the Further Transfer and Administration
Agreements, and thereafter shall mean the Issuer; provided, however, that GMAC
or XXXX, as applicable, shall be the "Owner" of any COLT 2005-SN1 Secured Note
from and after the time that such Person shall acquire such COLT 2005-SN1
Secured Note, whether pursuant to Section 3.04 or 5.04 of this Agreement, any
provision of the Further Transfer and Administration Agreements or otherwise.
ARTICLE II
PURCHASE AND SALE OF COLT 2005-SN1 SECURED NOTES
SECTION 2.01 Purchase and Sale of COLT 2005-SN1 Secured Notes. On such
date as is acceptable to XXXX and GMAC, subject to satisfaction of the
conditions specified in Article VI and the First Step Secured Notes Assignment
(and, in any event, immediately prior to consummation of the related
transactions contemplated by the Further Transfer and Administration
Agreements), and in consideration of CARI's payment to GMAC of the Secured Notes
Purchase Price, GMAC shall sell, transfer, assign and otherwise convey to XXXX,
without recourse:
(a) all right, title and interest of GMAC in, to and under the COLT
2005-SN1 Secured Notes and all monies due thereunder on and after the Series
2005-SN1 Closing Date;
(b) all right, title and interest of GMAC in, to and under the COLT
2005-SN1 Trust Estate securing the COLT 2005-SN1 Secured Notes, including: (i)
the Series 2005-SN1 Lease Assets and all monies due thereunder on and after the
Cutoff Date and with respect to the Vehicles and, to the extent permitted by
law, any accessions thereto, (ii) the interest of GMAC in any proceeds from
claims on any physical damage, credit life, credit disability or other insurance
policies covering Vehicles or Lessees and (iii) the interest of GMAC in any
proceeds from recourse against Dealers on the Series 2005-SN1 Lease Assets;
(c) all right, title and interest of GMAC in, to and under the First
Step Secured Notes Assignment;
(d) all right, title and interest of GMAC in, to and under (i) the
VAULT Trust Agreement (solely with respect to the Vehicles related to Series
2005-SN1 Lease Assets), (ii) the
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COLT Indenture, (iii) the COLT Sale and Contribution Agreement, (iv) the COLT
Custodian Agreement and (v) the COLT Servicing Agreement; and
(e) the present and future claims, demands, causes and choses in
action in respect of any or all the foregoing described in clauses (a) through
(d) above and all payments on or under and all proceeds of every kind and nature
whatsoever in respect of any or all the foregoing, including all proceeds of the
conversion of any or all of the foregoing, voluntary or involuntary, into cash
or other liquid property, all cash proceeds, accounts, accounts receivable,
notes, drafts, acceptances, chattel paper, checks, deposit accounts, insurance
proceeds, investment property, payment intangibles, general intangibles,
condemnation awards, rights to payment of any and every kind and other forms of
obligations and receivables, instruments and other property which at any time
constitute all or part of or are included in the proceeds of any of the
foregoing.
The property described in clauses (a) through (e) above is referred to
herein collectively as the "First Step Purchased Property."
It is the intention of GMAC and XXXX that the transfer and assignment of
the COLT 2005-SN1 Secured Notes contemplated by this Agreement and the First
Step Secured Notes Assignment shall constitute a sale of the COLT 2005-SN1
Secured Notes and the other First Step Purchased Property from GMAC to XXXX and
the beneficial interest in and title to the COLT 2005-SN1 Secured Notes and the
other First Step Purchased Property shall not be part of GMAC's estate in the
event of the filing of a bankruptcy petition by or against GMAC under any
bankruptcy law.
The foregoing sale contemplated by this Agreement and the First Step
Secured Notes Assignment does not constitute and is not intended to result in
any assumption by XXXX of (i) any obligation of GMAC to the Lessees, Dealers,
insurers or any other Person in connection with the COLT 2005-SN1 Secured Notes,
the Series 2005-SN1 Lease Assets, any Dealer Agreements, any insurance policies
or any agreement or instrument relating to any of them and (ii) any obligation
or liability of COLT or ownership of the Series 2005-SN1 Lease Assets.
SECTION 2.02 Secured Notes Purchase Price. In consideration for the First
Step Purchased Property, XXXX shall, on or about the Series 2005-SN1 Closing
Date, pay to GMAC an amount equal to the Initial Aggregate Secured Note
Principal Balance in respect of the COLT 2005-SN1 Secured Notes (the "Secured
Notes Purchase Price"), and GMAC shall execute and deliver to XXXX an assignment
in the form attached as Exhibit A (the "First Step Secured Notes Assignment"). A
portion of the Secured Notes Purchase Price equal to $1,936,508,205.74 shall be
paid to GMAC in immediately available funds.
SECTION 2.03 The Closing. The sale and purchase of the COLT 2005-SN1
Secured Notes shall take place at the offices of Mayer, Brown, Xxxx & Maw LLP,
000 Xxxxx XxXxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx 00000, at a date and time mutually
agreeable to GMAC and XXXX, and may occur simultaneously with the closing of
transactions contemplated by the Further Transfer and Administration Agreements.
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ARTICLE III
ADMINISTRATION OF THE COLT 2005-SN1 SECURED NOTES
SECTION 3.01 Duties of the Trust Administrator.
(a) The Trust Administrator is hereby appointed and authorized to
act as agent for the Owner of the COLT 2005-SN1 Secured Notes and in such
capacity shall administer the COLT 2005-SN1 Secured Notes with reasonable care,
using that degree of skill and attention that the Trust Administrator exercises
with respect to comparable property that it administers for itself or others.
The Trust Administrator hereby accepts such appointment and authorization and
agrees to perform the duties of Trust Administrator with respect to the COLT
2005-SN1 Secured Notes set forth herein and in the Further Transfer and
Administration Agreements.
(b) The Trust Administrator's duties shall include posting of all
payments on the COLT 2005-SN1 Secured Notes, accounting for collections and
furnishing monthly and annual statements to XXXX and any other Persons
designated herein with respect to distributions, generating federal income tax
information, giving any required notices or instructions to XXXX or the CARAT
Owner Trustee and performing the other duties specified herein. Subject to the
provisions of Section 3.02, the Trust Administrator shall follow its customary
standards, policies and procedures and shall have full power and authority,
acting alone, to do any and all things in connection with such administration
that it may deem necessary or desirable.
(c) Without limiting the generality of the foregoing, the Trust
Administrator is hereby authorized and empowered by the Owner of the COLT
2005-SN1 Secured Notes, pursuant to this Section 3.01, to execute and deliver,
on behalf of all Interested Parties, or any of them, any and all instruments of
satisfaction or cancellation, or of partial or full release or discharge, and
all other comparable instruments, with respect to the COLT 2005-SN1 Secured
Notes. The Trust Administrator is hereby authorized to commence, in its own name
or in the name of the Owner of such COLT 2005-SN1 Secured Note a legal
proceeding to enforce all obligations of GMAC and XXXX under this Agreement and
under the Further Transfer and Administration Agreements or to commence or
participate in a legal proceeding (including a bankruptcy proceeding) relating
to or involving a COLT 2005-SN1 Secured Note. If the Trust Administrator
commences or participates in such a legal proceeding in its own name, the Owner
of such COLT 2005-SN1 Secured Note shall be deemed to have automatically
assigned such COLT 2005-SN1 Secured Note to the Trust Administrator for the
benefit of the Interested Parties for purposes of commencing or participating in
any such proceeding as a party or claimant. Upon such automatic assignment, the
Trust Administrator will be, and will have all the rights and duties of, a
secured party under the UCC and other applicable law with respect to such COLT
2005-SN1 Secured Note. At the Trust Administrator's request from time to time,
the Owner of a COLT 2005-SN1 Secured Note assigned under this Section 3.01 shall
provide the Trust Administrator with evidence of the assignment in trust for the
benefit of the Interested Parties as may be reasonably necessary for the Trust
Administrator to take any of the actions set forth in the following sentence.
(d) The Trust Administrator is hereby authorized and empowered by
the Owner of a COLT 2005-SN1 Secured Note to execute and deliver in the Trust
Administrator's name any notices, demands, claims, complaints, responses,
affidavits or other documents or
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instruments in connection with any such proceeding. Any Owner of COLT 2005-SN1
Secured Notes shall furnish the Trust Administrator with any powers of attorney
and other documents and take any other steps which the Trust Administrator may
deem necessary or appropriate to enable the Trust Administrator to carry out its
administrative duties under this Agreement and the Further Transfer and
Administration Agreements. Except to the extent required by the preceding two
sentences, the authority and rights granted to the Trust Administrator in this
Section 3.01 shall be nonexclusive and shall not be construed to be in
derogation of the retention by the Owner of a COLT 2005-SN1 Secured Note of
equivalent authority and rights.
SECTION 3.02 Maintenance of Security Interests in COLT 2005-SN1 Secured
Notes. The Trust Administrator shall, in accordance with its customary
practices, policies and procedures and at its own expense, take such steps as
are necessary to maintain perfection of the security interest created by each
COLT 2005-SN1 Secured Note in the Series 2005-SN1 Lease Assets and other First
Step Purchased Property as set forth in Section 2.09 of the COLT Servicing
Agreement. The Owner of each COLT 2005-SN1 Secured Note hereby authorizes the
Trust Administrator to re-perfect such security interest on behalf of such
Owner, as necessary for any reason.
SECTION 3.03 Covenants, Representations and Warranties of the Trust
Administrator. As of the Series 2005-SN1 Closing Date, the Trust Administrator
hereby makes the following representations, warranties and covenants on which
XXXX relies in accepting the COLT 2005-SN1 Secured Notes hereunder and pursuant
to the First Step Secured Notes Assignment, and on which the Issuer shall rely
in accepting the COLT 2005-SN1 Secured Notes and executing and delivering the
Securities under the Further Transfer and Administration Agreements.
(a) The Trust Administrator covenants that from and after the Series
2005-SN1 Closing Date:
(i) Liens in Force. Except as contemplated in this Agreement
or the Further Transfer and Administration Agreements, the Trust Administrator
shall not release in whole or in part any part of the COLT 0000-XX0 Xxxxx Xxxxxx
from the security interest securing the related COLT 2005-SN1 Secured Note; and
(ii) No Impairment. The Trust Administrator shall do nothing
to impair the rights or security interest of XXXX or any Interested Party in and
to the First Step Purchased Property.
(b) Upon the execution of this Agreement and the Further Transfer
and Administration Agreements, the Trust Administrator represents and warrants
to the Issuer and XXXX, in addition to the representations and warranties in
Sections 4.01 and 4.02 being true as of the date of the closing thereunder, that
as of such closing:
(i) Organization and Good Standing. The Trust Administrator
has been duly organized and is validly existing and in good standing under the
laws of its state of incorporation, with power and authority to own its
properties and to conduct its business as such properties are presently owned
and such business is presently conducted, and had at all relevant
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times, and now has, power, authority and legal right to administer the COLT
2005-SN1 Secured Notes as provided herein and in the Further Transfer and
Administration Agreements;
(ii) Due Qualification. The Trust Administrator is duly
qualified to do business as a foreign corporation in good standing, and has
obtained all necessary licenses and approvals, in all jurisdictions in which the
ownership or lease of property or the conduct of its business requires or shall
require such qualification;
(iii) Power and Authority. The Trust Administrator has the
power and authority to execute and deliver this Agreement and the Further
Transfer and Administration Agreements and to carry out the terms of such
agreements; and the Trust Administrator's execution, delivery and performance of
this Agreement and the Further Transfer and Administration Agreements have been
duly authorized by the Trust Administrator by all necessary corporate action;
(iv) Binding Obligation. The Further Transfer and
Administration Agreements and this Agreement, when duly executed and delivered,
shall constitute the legal, valid and binding obligations of the Trust
Administrator enforceable in accordance with their respective terms, except as
enforceability may be limited by bankruptcy, insolvency, reorganization, or
other similar laws affecting the enforcement of creditors' rights in general and
by general principles of equity, regardless of whether such enforceability is
considered in a proceeding in equity or at law;
(v) No Violation. The consummation by the Trust Administrator
of the transactions contemplated by this Agreement and the Further Transfer and
Administration Agreements, and the fulfillment by the Trust Administrator of the
terms hereof and thereof, shall not conflict with, result in any breach of any
of the terms and provisions of, or constitute (with or without notice or lapse
of time) a default under, the articles of incorporation or by-laws of the Trust
Administrator, or any indenture, agreement, mortgage, deed of trust or other
instrument to which the Trust Administrator is a party or by which it is bound,
or result in the creation or imposition of any Lien upon any of its properties
pursuant to the terms of any such indenture, agreement, mortgage, deed of trust
or other instrument, other than this Agreement and the Further Transfer and
Administration Agreements, or violate any law or, to the best of the Trust
Administrator's knowledge, any order, rule or regulation applicable to the Trust
Administrator of any court or of any federal or state regulatory body,
administrative agency or other governmental instrumentality having jurisdiction
over the Trust Administrator or any of its properties; and
(vi) No Proceedings. To the Trust Administrator's knowledge,
there are no proceedings or investigations pending, or threatened, before any
court, regulatory body, administrative agency or other tribunal or governmental
instrumentality having jurisdiction over the Trust Administrator or its
properties (A) asserting the invalidity of this Agreement and the Further
Transfer and Administration Agreements or any Securities issued thereunder, (B)
seeking to prevent the issuance of such Securities or the consummation of any of
the transactions contemplated by the Further Transfer and Administration
Agreements, or (C) seeking any determination or ruling that might materially and
adversely affect this Agreement, the performance by the Trust Administrator of
its obligations under, or the validity or enforceability of, the Further
Transfer and Administration Agreements.
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SECTION 3.04 Purchase of COLT 2005-SN1 Secured Notes Upon Breach of
Covenant. Upon discovery by any of the Trust Administrator, XXXX or any party
under the Further Transfer and Administration Agreements of a breach of any of
the covenants set forth in Sections 3.02 and 3.03, the party discovering such
breach shall give prompt written notice thereof to the other parties thereto. As
of the last day of the second Monthly Period following its discovering or
receiving notice of such breach (or, at the Trust Administrator's election, the
last day of the first Monthly Period so following), the Trust Administrator
shall, unless it shall have cured such breach in all material respects, purchase
from the Owner thereof any COLT 2005-SN1 Secured Note materially and adversely
affected by such breach as determined by such Owner and, on the related
Distribution Date, the Trust Administrator shall pay the Administrative Purchase
Payment. It is understood and agreed that the obligation of the Trust
Administrator to purchase any COLT 2005-SN1 Secured Note with respect to which
such a breach has occurred and is continuing shall, if such obligation is
fulfilled, constitute the sole remedy against the Trust Administrator for such
breach available to XXXX or any Interested Party.
SECTION 3.05 Administration Fee; Payment of Certain Expenses by Trust
Administrator. The Trust Administrator is entitled to receive the Administration
Fee out of payments on the COLT 2005-SN1 Secured Notes. The Trust Administrator
shall also be entitled to Investment Earnings as, and to the extent, set forth
in the Further Transfer and Administration Agreements. Subject to any
limitations on the Trust Administrator's liability under the Further Transfer
and Administration Agreements, the Trust Administrator shall be required to pay
all expenses incurred by it in connection with its activities under this
Agreement and under the Further Transfer and Administration Agreements
(including fees and disbursements of the Issuer, any trustees (including of the
CARAT Indenture Trustee pursuant to Section 6.7 of the CARAT Indenture) and
independent accountants, taxes imposed on the Trust Administrator, expenses
incurred in connection with distributions and reports to holders of Securities
and all other fees and expenses not expressly stated under this Agreement or the
Further Transfer and Administration Agreements to be for the account of the
holders of Securities).
SECTION 3.06 Trust Administrator's Accounting. On each Determination Date
under a Further Transfer and Administration Agreement, the Trust Administrator
shall deliver to each of the trustees and other applicable parties under the
Further Transfer and Administration Agreements and to XXXX and the Rating
Agencies a Trust Administrator's Accounting with respect to the immediately
preceding Monthly Period executed by the President or any Vice President of the
Trust Administrator containing all information necessary to each such party for
making any distributions required by the Further Transfer and Administration
Agreements, and all information necessary to each such party for sending any
statements required under the Further Transfer and Administration Agreements.
COLT 2005-SN1 Secured Notes to be purchased by the Trust Administrator under
Sections 3.06 or 5.04 or to be repurchased by XXXX or GMAC under the Further
Transfer and Administration Agreements as of the last day of any Monthly Period
shall be identified by the name of the state identified on such COLT 2005-SN1
Secured Note (as set forth in the Schedule of Secured Notes). With respect to
any COLT 2005-SN1 Secured Notes for which XXXX is the Owner, the Trust
Administrator shall deliver to XXXX such accountings relating to such COLT
2005-SN1 Secured Notes and the actions of the Trust Administrator with respect
thereto as XXXX may reasonably request.
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SECTION 3.07 Application of Payments. For the purposes of this Agreement
and the Further Transfer and Administration Agreements, no later than each
Distribution Date all payments for the related Monthly Period shall be applied
by the Trust Administrator as described in Section 4.05 of the Trust Sale and
Administration Agreement. With respect to each Administrative Secured Note and
Warranty Secured Note, payments shall be applied in the same manner.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.01 Representations and Warranties as to the COLT 2005-SN1
Secured Notes. GMAC makes the following representations and warranties as to the
COLT 2005-SN1 Secured Notes related thereto on which XXXX relies in accepting
the COLT 2005-SN1 Secured Notes. Such representations and warranties speak as of
the Series 2005-SN1 Closing Date, and shall survive the sale, transfer and
assignment of the COLT 2005-SN1 Secured Notes and the other First Step Purchased
Property to XXXX and the subsequent assignment and transfer pursuant to the
Further Transfer and Administration Agreements:
(a) Custody of COLT 2005-SN1 Secured Notes. GMAC has instructed the
Secured Note Registrar to identify the CARAT Indenture Trustee as the registered
holder of the COLT 2005-SN1 Secured Notes, in each case in the Secured Note
Register.
(b) Terms of COLT 2005-SN1 Secured Notes. Each COLT 2005-SN1 Secured
Note: (i) was issued by COLT to fund a portion of the purchase price of the
related pool of Series 2005-SN1 Lease Assets, (ii) has created or shall create a
valid, binding and enforceable first priority security interest in favor of GMAC
or the COLT Indenture Trustee on behalf of GMAC in the Series 2005-SN1 Lease
Assets, which security interest is assignable by GMAC to XXXX, (iii) contains
enforceable provisions to render the rights and remedies of the holder thereof
adequate for realization against the collateral of the benefits of the security,
(iv) shall yield interest at the rate set forth in such COLT 2005-SN1 Secured
Note and (v) prior to the sale of the COLT 2005-SN1 Secured Notes to XXXX under
this Agreement, the COLT 2005-SN1 Secured Notes constitute "chattel paper,"
"payment intangibles," "promissory notes" or "certificated securities" within
the meaning of the applicable UCC.
(c) Binding Obligation. Each COLT 2005-SN1 Secured Note represents
the genuine, legal, valid and binding payment obligation of COLT thereon, in
each case enforceable by the holder thereof in accordance with its terms, except
as enforceability may be limited by bankruptcy, insolvency, reorganization or
similar laws affecting the enforcement of creditors' rights in general and by
equity, regardless of whether such enforceability is considered in a proceeding
in equity or at law.
(d) COLT 2005-SN1 Secured Notes in Force. No COLT 2005-SN1 Secured
Note has been satisfied, subordinated or rescinded, and the related Series
2005-SN1 Lease Assets securing each such COLT 2005-SN1 Secured Note have not
been released from the Lien of the related COLT 2005-SN1 Secured Note in whole
or in part.
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(e) No Waiver or Amendment. Since the Series 2005-SN1 Closing Date,
no provision of a COLT 2005-SN1 Secured Note has been waived, amended or
modified in any respect.
(f) No Defenses. No right of rescission, setoff, counterclaim or
defense has been asserted or threatened with respect to any COLT 2005-SN1
Secured Note.
(g) No Liens. To the best of GMAC's knowledge: (1) there are no
liens or claims that have been filed for work, labor or materials affecting any
Series 2005-SN1 Lease Assets securing any COLT 2005-SN1 Secured Note that are or
may be liens prior to, or equal or coordinate with, the security interest in the
Series 2005-SN1 Lease Assets granted by the COLT 2005-SN1 Secured Note and (2)
no tax lien has been filed and no claim related thereto is being asserted with
respect to any COLT 2005-SN1 Secured Note; no contribution failure has occurred
with respect to any Pension Plan which is sufficient to give rise to a lien
under Section 302(f) of ERISA with respect to any COLT 2005-SN1 Secured Note.
(h) Good Title. No COLT 2005-SN1 Secured Note has been sold,
transferred, assigned or pledged by GMAC to any Person other than XXXX.
Immediately prior to the conveyance of the COLT 2005-SN1 Secured Notes pursuant
to this Agreement and the First Step Secured Notes Assignment, GMAC had good and
marketable title thereto, free of any Lien. Upon execution and delivery of this
Agreement by GMAC, XXXX shall have all of the right, title and interest of GMAC
in and to the COLT 2005-SN1 Secured Notes, the unpaid indebtedness evidenced
thereby and the collateral security therefor, free of any Lien.
(i) Lawful Assignment. No COLT 2005-SN1 Secured Note was issued, or
is subject to the laws of, any jurisdiction the laws of which would make
unlawful the sale, transfer and assignment of such COLT 2005-SN1 Secured Note
under this Agreement, the Trust Sale and Administration Agreement or the CARAT
Indenture, as applicable.
(j) All Filings Made. All filings (including UCC filings) necessary
in any jurisdiction to give XXXX a first priority perfected ownership interest
in the First Step Purchased Property have been made. Other than the security
interest granted to XXXX pursuant to this Agreement, GMAC has not pledged,
assigned, sold, granted a security interest in, or otherwise conveyed any of the
COLT 2005-SN1 Secured Notes; GMAC has not authorized the filing of, and is not
aware of, any financing statements against GMAC that include a description of
collateral covering the COLT 2005-SN1 Secured Notes other than the financing
statements relating to the security interests granted to XXXX under this
Agreement, or any financing statement that has been terminated. GMAC is not
aware of any judgment or tax lien filings against it.
(k) Maturity of COLT 2005-SN1 Secured Notes. Each COLT 2005-SN1
Secured Note has a maturity date on December 15, 2009.
(l) Security Interest Created. While it is the intention of GMAC and
XXXX that the transfer and assignment contemplated by this Agreement and the
First Step Secured Notes Assignment shall constitute the sale of the COLT
2005-SN1 Secured Notes from GMAC to XXXX, this Agreement creates a valid and
continuing security interest (as defined in the
9
applicable UCC) in the COLT 2005-SN1 Secured Notes in favor of XXXX which
security interest is prior to all other Liens, and is enforceable as such as
against creditors of and purchasers from GMAC.
SECTION 4.02 Additional Representations and Warranties of GMAC. GMAC
hereby represents and warrants to XXXX as of the Series 2005-SN1 Closing Date,
both in its capacity as the seller of the COLT 2005-SN1 Secured Notes hereunder
and in its capacity as Trust Administrator, that:
(a) Organization and Good Standing. GMAC has been duly organized and
is validly existing as a corporation in good standing under the laws of the
State of Delaware, with power and authority to own its properties and to conduct
its business as such properties are presently owned and such business is
presently conducted;
(b) Due Qualification. GMAC is duly qualified to do business as a
foreign corporation in good standing, and has obtained all necessary licenses
and approvals, in all jurisdictions in which the ownership or lease of property
or the conduct of its business requires or shall require such qualification;
(c) Power and Authority. GMAC has the power and authority to execute
and deliver this Agreement and the First Step Secured Notes Assignment and to
carry out its terms; GMAC has full power and authority to sell and assign the
property to be sold and assigned to XXXX and to administer the COLT 2005-SN1
Secured Notes as provided herein and in the Further Transfer and Administration
Agreements, has duly authorized such sale and assignment to XXXX by all
necessary corporate action; and the execution, delivery and performance of this
Agreement and the First Step Secured Notes Assignment have been duly authorized
by GMAC by all necessary corporate action;
(d) Valid Sale; Binding Obligation. This Agreement and the First
Step Secured Notes Assignment, when duly executed and delivered, shall
constitute a valid sale, transfer and assignment of the COLT 2005-SN1 Secured
Notes and other First Step Purchased Property enforceable against creditors of
and purchasers from GMAC; and this Agreement together with the First Step
Secured Notes Assignment, when duly executed and delivered, shall constitute a
legal, valid and binding obligation of GMAC enforceable in accordance with its
terms, except as enforceability may be limited by bankruptcy, insolvency,
reorganization or other similar laws affecting the enforcement of creditors'
rights in general and by general principles of equity, regardless of whether
such enforceability is considered in a proceeding in equity or at law;
(e) No Violation. The consummation of the transactions contemplated
by this Agreement and the First Step Secured Notes Assignment and the
fulfillment of the terms of this Agreement and the First Step Secured Notes
Assignment shall not conflict with, result in any breach of any of the terms and
provisions of, or constitute (with or without notice or lapse of time) a default
under, the articles of incorporation or by-laws of GMAC, or any indenture,
agreement, mortgage, deed of trust or other instrument to which GMAC is a party
or by which it is bound, or result in the creation or imposition of any Lien
upon any of its properties pursuant to the terms of any such indenture,
agreement, mortgage, deed of trust or other instrument, other
10
than this Agreement and the First Step Secured Notes Assignment or violate any
law or, to the best of GMAC's knowledge, any order, rule or regulation
applicable to GMAC of any court or of any federal or state regulatory body,
administrative agency or other governmental instrumentality having jurisdiction
over GMAC or any of its properties; and
(f) No Proceedings. To GMAC's knowledge, there are no proceedings or
investigations pending, or threatened, before any court, regulatory body,
administrative agency or other tribunal or governmental instrumentality having
jurisdiction over GMAC or its properties (A) asserting the invalidity of this
Agreement and the First Step Secured Notes Assignment, (B) seeking to prevent
the consummation of any of the transactions contemplated by this Agreement and
the First Step Secured Notes Assignment, or (C) seeking any determination or
ruling that might materially and adversely affect the performance by GMAC of its
obligations under, or the validity or enforceability of, this Agreement and the
First Step Secured Notes Assignment.
SECTION 4.03 Representations and Warranties of XXXX. XXXX hereby
represents and warrants to GMAC as of the Series 2005-SN1 Closing Date:
(a) Organization and Good Standing. XXXX has been duly organized and
is validly existing as a corporation in good standing under the laws of the
State of Delaware, with power and authority to own its properties and to conduct
its business as such properties are presently owned and such business is
presently conducted, and had at all relevant times, and now has, power,
authority and legal right to acquire and own the COLT 2005-SN1 Secured Notes;
(b) Due Qualification. XXXX is duly qualified to do business as a
foreign corporation in good standing, and has obtained all necessary licenses
and approvals in all jurisdictions in which the ownership or lease of property
or the conduct of its business requires such qualification;
(c) Power and Authority. XXXX has the power and authority to execute
and deliver this Agreement and the First Step Secured Notes Assignment and to
carry out its terms and the execution, delivery and performance of this
Agreement and the First Step Secured Notes Assignment have been duly authorized
by XXXX by all necessary corporate action;
(d) No Violation. The consummation of the transactions contemplated
by this Agreement and the First Step Secured Notes Assignment and the
fulfillment of the terms of this Agreement and the First Step Secured Notes
Assignment shall not conflict with, result in any breach of any of the terms and
provisions of or constitute (with or without notice or lapse of time) a default
under, the certificate of incorporation or by-laws of XXXX, or any indenture,
agreement, mortgage, deed of trust or other instrument to which XXXX is a party
or by which it is bound, or result in the creation or imposition of any Lien
upon any of its properties pursuant to the terms of any such indenture,
agreement or other instrument, other than any Further Transfer and
Administration Agreement or violate any law or, to the best of CARI's knowledge,
any order, rule or regulation applicable to XXXX of any court or of any federal
or state regulatory body, administrative agency or other governmental
instrumentality having jurisdiction over XXXX or any of its properties; and
11
(e) No Proceedings. To CARI's knowledge, there are no proceedings or
investigations pending, or threatened, before any court, regulatory body,
administrative agency or other tribunal or governmental instrumentality having
jurisdiction over XXXX or its properties (i) asserting the invalidity of this
Agreement and the First Step Secured Notes Assignment, or (ii) seeking any
determination or ruling that might materially and adversely affect the
performance by XXXX of its obligations under, or the validity or enforceability
of, this Agreement and the First Step Secured Notes Assignment.
ARTICLE V
ADDITIONAL AGREEMENTS
SECTION 5.01 Conflicts With Further Transfer and Administration
Agreements. To the extent that any provision of Sections 5.02 through 5.04 of
this Agreement conflicts with any provision of the Further Transfer and
Administration Agreements, the Further Transfer and Administration Agreements
shall govern.
SECTION 5.02 Protection of Title; Filings. (a) GMAC shall authorize and
execute, as applicable, and file such financing statements and cause to be
authorized and executed, as applicable, and filed such continuation and other
statements, all in such manner and in such places as may be required by law
fully to preserve, maintain and protect the interest of XXXX under this
Agreement and the First Step Secured Notes Assignment in the COLT 2005-SN1
Secured Notes and the other First Step Purchased Property and in the proceeds
thereof. GMAC shall deliver (or cause to be delivered) to XXXX file-stamped
copies of, or filing receipts for, any document filed as provided above, as soon
as available following such filing GMAC hereby authorizes XXXX and its assigns
to file all such financing statements and to file such financing statements
without its signature.
(a) Name Change. GMAC shall not change its state of organization or
its name, identity or corporate structure in any manner that would, could or
might make any financing statement or continuation statement filed by GMAC in
accordance with Section 5.02(a) seriously misleading within the meaning of the
UCC, unless it shall have given XXXX at least 60 days prior written notice
thereof.
(b) Executive Office; Maintenance of Offices. GMAC shall give XXXX
at least 60 days prior written notice of any relocation of its principal
executive office if, as a result of such relocation, the applicable provisions
of the UCC would require the filing of any amendment of any previously filed
financing or continuation statement or of any new financing statement. GMAC
shall at all times maintain each office from which it administers COLT 2005-SN1
Secured Notes and its principal executive office within the United States of
America.
(c) New Debtor. In the event that GMAC shall change the jurisdiction
in which it is incorporated or otherwise enter into any transaction which would
result in a "new debtor" (as defined in the UCC) succeeding to the obligations
of GMAC hereunder, GMAC shall comply fully with the obligations of Section
5.02(a).
SECTION 5.03 Other Liens or Interests. Except for the conveyances
hereunder and under the First Step Secured Notes Assignment and as contemplated
by the Further Transfer
12
and Administration Agreements, GMAC shall not sell, pledge, assign or transfer
the COLT 2005-SN1 Secured Notes and the other First Step Purchased Property to
any other Person, or grant, create, incur, assume or suffer to exist any Lien on
any interest therein, and GMAC shall defend the right, title and interest of
XXXX in, to and under such COLT 2005-SN1 Secured Notes against all claims of
third parties claiming through or under GMAC.
SECTION 5.04 Repurchase Events. By its execution of the Further Transfer
and Administration Agreements to which it is a party, GMAC shall acknowledge the
assignment by XXXX of such of its right, title and interest in, to and under
this Agreement and the First Step Secured Notes Assignment to the Issuer as
shall be provided in the Further Transfer and Administration Agreements. GMAC
hereby covenants and agrees with XXXX for the benefit of XXXX and the Interested
Parties that in the event of a breach of (i) any of GMAC's representations and
warranties contained in Section 4.01 hereof with respect to any COLT 2005-SN1
Secured Note (a "Repurchase Event"), GMAC shall repurchase such COLT 2005-SN1
Secured Note from the Issuer (if the Issuer is then the Owner of such COLT
2005-SN1 Secured Note) on the date and for the amount specified in the Further
Transfer and Administration Agreements, without further notice from XXXX
hereunder. Upon the occurrence of a Repurchase Event with respect to a COLT
2005-SN1 Secured Note for which XXXX is the Owner, GMAC agrees to repurchase
such COLT 2005-SN1 Secured Note from XXXX for an amount and upon the same terms
as GMAC would be obligated to repurchase such COLT 2005-SN1 Secured Note from
the Issuer if the Issuer was then the Owner thereof, and upon payment of such
amount, GMAC shall have such rights with respect to such COLT 2005-SN1 Secured
Note as if GMAC had purchased such COLT 2005-SN1 Secured Note from the Issuer as
the Owner thereof. It is understood and agreed that the obligation of GMAC to
repurchase any COLT 2005-SN1 Secured Note as to which a breach has occurred and
is continuing shall, if such obligation is fulfilled, constitute the sole remedy
against GMAC for such breach available to XXXX or any Interested Party.
SECTION 5.05 Indemnification. GMAC shall indemnify XXXX for any liability
as a result of the failure of a COLT 2005-SN1 Secured Note to be issued in
compliance with all requirements of law. This indemnity obligation shall be in
addition to any obligation that GMAC may otherwise have.
SECTION 5.06 Further Assignments. GMAC acknowledges that XXXX may,
pursuant to the Further Transfer and Administration Agreements, sell the COLT
2005-SN1 Secured Notes and the other First Step Purchased Property to the Issuer
and assign its rights hereunder and under the First Step Secured Notes
Assignment to the Issuer, subject to the applicable terms and conditions of the
Further Transfer and Administration Agreements, and that the Issuer may in turn
further pledge, assign or transfer its rights in the COLT 2005-SN1 Secured Notes
and the other First Step Purchased Property and this Agreement and the First
Step Secured Notes Assignment.
13
ARTICLE VI
CONDITIONS
SECTION 6.01 Conditions to Obligation of XXXX. The obligation of XXXX to
purchase the COLT 2005-SN1 Secured Notes hereunder and pursuant to the First
Step Secured Notes Assignment is subject to the satisfaction of the following
conditions:
(a) Representations and Warranties True. The representations and
warranties of GMAC hereunder shall be true and correct as of the Series 2005-SN1
Closing Date, with the same effect as if then made, and GMAC shall have
performed all obligations to be performed by it hereunder on or prior to the
Series 2005-SN1 Closing Date.
(b) No Repurchase Event. No Repurchase Event shall have occurred on
or prior to the Series 2005-SN1 Closing Date.
(c) Documents to be Delivered By GMAC.
(i) The Assignment. On the Series 2005-SN1 Closing Date, GMAC
shall execute and deliver the First Step Secured Notes Assignment.
(ii) Evidence of UCC Filing. On or prior to the Series
2005-SN1 Closing Date, GMAC shall record and file, at its own expense, a UCC-1
financing statement in each jurisdiction in which required by applicable law,
authorized by and naming GMAC as seller or debtor, naming XXXX as purchaser or
secured party, naming the COLT 2005-SN1 Secured Notes and the other First Step
Purchased Property as collateral, meeting the requirements of the laws of each
such jurisdiction and in such manner as is necessary to perfect the sale,
transfer, assignment and conveyance of such COLT 2005-SN1 Secured Notes and
other First Step Purchased Property to XXXX. GMAC shall deliver a file-stamped
copy, or other evidence satisfactory to XXXX of such filing, to XXXX on or prior
to the Series 2005-SN1 Closing Date.
(iii) Other Documents. On the Series 2005-SN1 Closing Date,
GMAC shall provide such other documents as XXXX may reasonably request.
(d) Other Transactions. The transactions contemplated by the Further
Transfer and Administration Agreements shall be consummated to the extent that
such transactions are intended to be substantially contemporaneous with the
transactions hereunder.
SECTION 6.02 Conditions to Obligation of GMAC. The obligation of GMAC to
sell the COLT 2005-SN1 Secured Notes to XXXX hereunder is subject to the
satisfaction of the following conditions:
(a) Representations and Warranties True. The representations and
warranties of XXXX hereunder shall be true and correct as of the Series 2005-SN1
Closing Date with the same effect as if then made, and XXXX shall have performed
all obligations to be performed by it hereunder on or prior to the Series
2005-SN1 Closing Date.
(b) Secured Notes Purchase Price. On the Series 2005-SN1 Closing
Date, XXXX shall pay to GMAC the Secured Notes Purchase Price as provided in
Section 2.02.
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ARTICLE VII
MISCELLANEOUS PROVISIONS
SECTION 7..01 Amendment. This Agreement may be amended from time to time
(subject to any expressly applicable amendment provision of the Further Transfer
and Administration Agreements) by a written amendment duly executed and
delivered by GMAC and XXXX; provided, however, that any material amendment shall
also require that prior written notice be given to the Rating Agencies.
SECTION 7.02 Survival. The representations and warranties of GMAC set
forth in Articles IV and V of this Agreement and of the Trust Administrator set
forth in Section 3.03 of this Agreement shall remain in full force and effect
and shall survive the closing under Section 2.03 and the closing under the
Further Transfer and Administration Agreements.
SECTION 7.03 Notices. All demands, notices and communications upon or to
GMAC or XXXX under this Agreement shall be delivered as specified in Part III of
Appendix A to this Agreement.
SECTION 7.04 GOVERNING LAW. THIS AGREEMENT AND THE FIRST STEP SECURED
NOTES ASSIGNMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
INTERNAL LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO THE PRINCIPLES OF
CONFLICTS OF LAWS THEREOF OR OF ANY OTHER JURISDICTION (EXCEPT SECTIONS 5-1401
AND 5-1402 OF THE NEW YORK GENERAL OBLIGATIONS LAW), AND THE OBLIGATIONS, RIGHTS
AND REMEDIES OF THE PARTIES UNDER THIS AGREEMENT SHALL BE DETERMINED IN
ACCORDANCE WITH SUCH LAWS.
SECTION 7.05 Waivers. No failure or delay on the part of XXXX in
exercising any power, right or remedy under this Agreement or the First Step
Secured Notes Assignment shall operate as a waiver thereof, nor shall any single
or partial exercise of any such power, right or remedy preclude any other or
further exercise thereof or the exercise of any other power, right or remedy.
SECTION 7.06 Costs and Expenses. GMAC agrees to pay all reasonable
out-of-pocket costs and expenses of XXXX, including fees and expenses of
counsel, in connection with the perfection as against third parties of CARI's
right, title and interest in, to and under the COLT 2005-SN1 Secured Notes and
the other First Step Purchased Property and the enforcement of any obligation of
GMAC hereunder.
SECTION 7.07 Confidential Information. XXXX agrees that it shall neither
use nor disclose to any person the names and addresses of the Lessees, except in
connection with the enforcement of CARI's rights hereunder, under the COLT
2005-SN1 Secured Notes, under the Further Transfer and Administration Agreements
or as required by law.
SECTION 7.08 Headings. The headings of the various Articles and Sections
herein are for convenience of reference only and shall not define or limit any
of the terms or provisions hereof.
15
SECTION 7.09 Counterparts. This Agreement may be executed in two or more
counterparts and by different parties on separate counterparts, each of which
shall be an original, but all of which together shall constitute one and the
same instrument.
SECTION 7.10 No Petition Covenant. Notwithstanding any prior termination
of this Agreement, GMAC shall not, prior to the date which is one year and one
day after the final distribution with respect to the CARAT 2005-SN1 Notes and
the CARAT 2005-SN1 Certificates to the Note Distribution Account or the
Certificate Distribution Account, respectively, as applicable, acquiesce,
petition or otherwise invoke or cause XXXX to invoke the process of any court or
government authority for the purpose of commencing or sustaining a case against
XXXX under any federal or state bankruptcy, insolvency or similar law or
appointing a receiver, liquidator, assignee, trustee, custodian, sequestrator or
other similar official of XXXX or any substantial part of its property, or
ordering the winding up or liquidation of the affairs of XXXX.
SECTION 7.11 Limitations on Rights of Others. The provisions of this
Agreement and the First Step Secured Notes Assignment are solely for the benefit
of GMAC and XXXX and, to the extent expressly provided herein, the Interested
Parties, and nothing in this Agreement, whether express or implied, shall be
construed to give to any other Person any legal or equitable right, remedy or
claim in, under, or in respect of this Agreement or any covenants, conditions or
provisions contained herein.
16
IN WITNESS WHEREOF, the parties hereby have caused this Agreement to be
executed by their respective officers thereunto duly authorized as of the date
and year first above written.
GENERAL MOTORS ACCEPTANCE CORPORATION
By: /s/ X.X. Xxxx
Name: X.X. Xxxx
Title: Director - U.S. Securitization
CAPITAL AUTO RECEIVABLES, INC.
By: /s/ X.X. Xxxxxxxxx
Name: X.X. Xxxxxxxxx
Title: Vice President
CARAT 2005-SN1
Pooling and Administration Agreement
S-1
EXHIBIT A
FORM OF FIRST STEP SECURED NOTES ASSIGNMENT PURSUANT TO
POOLING AND ADMINISTRATION AGREEMENT
(a) For value received, in accordance with the Pooling and
Administration Agreement, dated as of April 28, 2005 (the "Pooling and
Administration Agreement"), between General Motors Acceptance Corporation, a
Delaware corporation ("GMAC"), and Capital Auto Receivables, Inc., a Delaware
corporation ("XXXX"), GMAC does hereby sell, assign, transfer and otherwise
convey to XXXX, without recourse, (i) all right, title and interest of GMAC in,
to and under the COLT 2005-SN1 Secured Notes and all monies due thereunder on
and after the Series 2005-SN1 Closing Date; (ii) all right, title and interest
of GMAC in, to and under the COLT 2005-SN1 Trust Estate securing the COLT
2005-SN1 Secured Notes, including: (A) the Series 2005-SN1 Lease Assets and all
monies due thereunder on and after the Cutoff Date and with respect to the
Vehicles and, to the extent permitted by law, any accessions thereto, (B) the
interest of GMAC in any proceeds from claims on any physical damage, credit
life, credit disability or other insurance policies covering Vehicles or Lessees
and (C) the interest of GMAC in any proceeds from recourse against Dealers on
the Series 2005-SN1 Lease Assets; (iii) all right, title and interest of GMAC
in, to and under (A) the VAULT Trust Agreement (solely with respect to the
Vehicles related to Series 2005-SN1 Lease Assets), (B) the COLT Indenture, (C)
the COLT Sale and Contribution Agreement, (D) the COLT Custodian Agreement and
(E) the COLT Servicing Agreement; and (iv) the present and future claims,
demands, causes and choses in action in respect of any or all the foregoing
described above and all payments on or under and all proceeds of every kind and
nature whatsoever in respect of any or all the foregoing, including all proceeds
of the conversion of any or all of the foregoing, voluntary or involuntary, into
cash or other liquid property, all cash proceeds, accounts, accounts receivable,
notes, drafts, acceptances, chattel paper, checks, deposit accounts, insurance
proceeds, investment property, payment intangibles, general intangibles,
condemnation awards, rights to payment of any and every kind and other forms of
obligations and receivables, instruments and other property which at any time
constitute all or part of or are included in the proceeds of any of the
foregoing (clauses (i) through (iv) collectively, the "First Step Purchased
Property").
It is the intention of GMAC and XXXX that the transfer and assignment of
the COLT 2005-SN1 Notes contemplated by this First Step Secured Notes Assignment
shall constitute a sale of the COLT 2005-SN1 Secured Notes and the other First
Step Purchased Property from GMAC to XXXX and the beneficial interest in and
title to the COLT 2005-SN1 Secured Notes and the other First Step Purchased
Property shall not be part of GMAC's estate in the event of the filing of a
bankruptcy petition by or against GMAC under any bankruptcy law.
The foregoing sale contemplated by this First Step Secured Notes
Assignment does not constitute and is not intended to result in any assumption
by XXXX of (i) any obligation of the undersigned to the Lessees, Dealers,
insurers or any other Person in connection with the COLT 2005-SN1 Secured Notes,
Series 2005-SN1 Lease Assets, any Dealer agreements, any insurance policies or
any agreement or instrument relating to any of them and (ii) any obligation or
liability of COLT or ownership of the Series 2005-SN1 Lease Assets.
A-1
This Assignment is made pursuant to and upon the representations,
warranties and agreements on the part of the undersigned contained in the
Pooling and Administration Agreement and is to be governed by the Pooling and
Administration Agreement.
Capitalized terms used herein and not otherwise defined shall have the
meaning assigned to them in the Pooling and Administration Agreement.
A-2
IN WITNESS WHEREOF, the undersigned has caused this Assignment to be duly
executed as of the date first above written.
GENERAL MOTORS ACCEPTANCE CORPORATION
By:__________________________________
Name:
Title:
CARAT 2005-SN1
Pooling and Administration Agreement
APPENDIX A
PART I
For ease of reference, capitalized terms defined herein have been
consolidated with and are contained in Appendix A to the Trust Sale and
Administration Agreement of even date herewith among GMAC, XXXX and Capital Auto
Receivables Asset Trust 2005-SN1, as amended and supplemented from time to time.
PART II
For ease of reference, the rules of construction have been
consolidated with and are contained in Part II of Appendix A to the Trust Sale
and Administration Agreement of even date herewith among GMAC, XXXX and Capital
Auto Receivables Asset Trust 2005-SN1, as amended and supplemented from time to
time.
PART III
For ease of reference, the notice addresses and procedures have been
consolidated with and are contained in Appendix B to the Trust Sale and
Administration Agreement of even date herewith among GMAC, XXXX and Capital Auto
Receivables Asset Trust 2005-SN1, as amended and supplemented from time to time.
