EXHIBIT NO. 99.17
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CAPITAL AUTO RECEIVABLES ASSET TRUST 2007-SN1
POOLING AND ADMINISTRATION AGREEMENT
BETWEEN
CAPITAL AUTO RECEIVABLES LLC
AND
GMAC LLC
DATED AS OF JUNE 7, 2007
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TABLE OF CONTENTS
PAGE
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ARTICLE I DEFINITIONS.................................................... 2
Section 1.1 Definitions.............................................. 2
Section 1.2 Owner of a COLT 2007-SN1 Secured Note.................... 2
ARTICLE II PURCHASE AND SALE OF COLT 2007-SN1 SECURED NOTES.............. 2
Section 2.1 Purchase and Sale of COLT 2007-SN1 Secured Notes......... 2
Section 2.2 Secured Notes Purchase Price............................. 3
Section 2.3 The Closing.............................................. 3
ARTICLE III ADMINISTRATION OF THE COLT 2007-SN1 SECURED NOTES............ 3
Section 3.1 Duties of the Trust Administrator........................ 3
Section 3.2 Maintenance of Security Interests in COLT 2007-SN1
Secured Notes............................................ 5
Section 3.3 Covenants, Representations and Warranties of the Trust
Administrator............................................ 5
Section 3.4 Purchase of COLT 2007-SN1 Secured Notes Upon Breach of
Covenant................................................. 6
Section 3.5 Administration Fee; Payment of Certain Expenses by Trust
Administrator............................................ 7
Section 3.6 Trust Administrator's Accounting......................... 7
Section 3.7 Application of Payments.................................. 7
ARTICLE IV REPRESENTATIONS AND WARRANTIES................................ 8
Section 4.1 Representations and Warranties as to the COLT 2007-SN1
Secured Notes............................................ 8
Section 4.2 Additional Representations and Warranties of GMAC........ 10
Section 4.3 Representations and Warranties of XXXX................... 11
ARTICLE V ADDITIONAL AGREEMENTS.......................................... 12
Section 5.1 Conflicts With Further Transfer and Administration
Agreements............................................... 12
Section 5.2 Protection of Title; Filings............................. 12
Section 5.3 Other Liens or Interests................................. 13
Section 5.4 Repurchase Events........................................ 13
Section 5.5 Indemnification.......................................... 13
Section 5.6 Further Assignments...................................... 14
TABLE OF CONTENTS
(continued)
PAGE
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Section 5.7 Further Assurances....................................... 14
ARTICLE VI CONDITIONS.................................................... 14
Section 6.1 Conditions to Obligation of XXXX......................... 14
Section 6.2 Conditions to Obligation of GMAC......................... 15
ARTICLE VII MISCELLANEOUS PROVISIONS..................................... 16
Section 7.1 Amendment................................................ 16
Section 7.2 Survival................................................. 16
Section 7.3 Notices.................................................. 16
Section 7.4 Governing Law............................................ 16
Section 7.5 Waivers.................................................. 16
Section 7.6 Costs and Expenses....................................... 16
Section 7.7 Confidential Information................................. 16
Section 7.8 Headings................................................. 16
Section 7.9 Counterparts............................................. 17
Section 7.10 No Petition Covenant..................................... 17
Section 7.11 Limitations on Rights of Others.......................... 17
Section 7.12 Merger and Consolidation of GMAC or XXXX................. 17
Section 7.13 Assignment............................................... 17
EXHIBITS
EXHIBIT A Form of First Step Secured Notes Assignment
APPENDIX A Definitions, Rules of Construction and Notices
THIS POOLING AND ADMINISTRATION AGREEMENT, dated as of June 7, 2007,
between CAPITAL AUTO RECEIVABLES LLC, a Delaware limited liability company
(together with its successors and assigns "XXXX"), and GMAC LLC, a Delaware
limited liability company ("GMAC", and GMAC in its capacity as seller of the
COLT 2007-SN1 Secured Notes and the "Trust Administrator" in its capacity as
administrator for the COLT 2007-SN1 Secured Notes).
WHEREAS, GMAC desires to sell the COLT 2007-SN1 Secured Notes, each of
which is secured by a lien on and security interest in the Series 2007-SN1 Lease
Assets, all proceeds thereof, including insurance proceeds and any and all
rights under any guarantees or similar obligations relating to such Series
2007-SN1 Lease Assets or proceeds thereof;
WHEREAS, GMAC, as holder of COLT 2007-SN1 Secured Notes, has certain rights
to receive payments with respect to the Series 2007-SN1 Lease Assets, and to the
other proceeds and rights described herein;
WHEREAS, XXXX desires to purchase the COLT 2007-SN1 Secured Notes and
related rights owned by GMAC and GMAC is willing to sell the COLT 2007-SN1
Secured Notes and related rights to XXXX;
WHEREAS, XXXX may wish to sell or otherwise transfer the COLT 2007-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 2007-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 2007-SN1 Secured Notes and related rights
and issues the Securities (the Trust Sale and Administration Agreement, the
Second Step Secured Notes Assignment, the CARAT Indenture, the Trust Agreement,
the CARAT 2007-SN1 Notes and the CARAT 2007-SN1 Certificate, being collectively
the "Further Transfer and Administration Agreements") that GMAC shall administer
the COLT 2007-SN1 Secured Notes; and
WHEREAS, the Trust Administrator is willing to administer the COLT 2007-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 2007-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 (all such parties under the Further
Transfer and Administration Agreements being "Interested Parties") with respect
to the COLT 2007-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:
ARTICLE I
DEFINITIONS
Section 1.1 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 1.2 Owner of a COLT 2007-SN1 Secured Note. For purposes of this
Agreement, the "Owner" of a COLT 2007-SN1 Secured Note shall mean XXXX until the
sale, transfer, assignment or other conveyance of such COLT 2007-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 2007-SN1 Secured Note
from and after the time that such Person shall acquire such COLT 2007-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 2007-SN1 SECURED NOTES
Section 2.1 Purchase and Sale of COLT 2007-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
2007-SN1 Secured Notes and all monies due thereunder on and after the Series
2007-SN1 Closing Date;
(b) all right, title and interest of GMAC in, to and under the First
Step Secured Notes Assignment;
(c) all right, title and interest of GMAC in, to and under the VAULT
Security Agreement; and
(d) the present and future claims, demands, causes and choses in
action in respect of any or all the foregoing described in clauses (a), (b) and
(c) above and all payments on or under and all proceeds of every kind and nature
whatsoever in respect of any or all the
CARAT 2007-SN1
Pooling and Administration Agreement
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 (d) 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 2007-SN1 Secured Notes contemplated by this Agreement and the First
Step Secured Notes Assignment shall constitute a sale of the COLT 2007-SN1
Secured Notes and the other First Step Purchased Property from GMAC to XXXX and
the beneficial interest in and title to the COLT 2007-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 2007-SN1 Secured Notes,
the Series 2007-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 2007-SN1 Lease Assets.
Section 2.2 Secured Notes Purchase Price. In consideration for the First
Step Purchased Property, XXXX shall, on or about the Series 2007-SN1 Closing
Date, pay to GMAC an amount equal to the Initial Aggregate Secured Note
Principal Balance in respect of the COLT 2007-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 $2,302,510,133.28 shall be
paid to GMAC in immediately available funds.
Section 2.3 The Closing. The sale and purchase of the COLT 2007-SN1 Secured
Notes shall take place at the offices of Mayer, Brown, Xxxx & Maw LLP, 00 Xxxxx
Xxxxxx Xxxxx, Xxxxxxx, Xxxxxxxx 00000, on the Series 2007-SN1 Closing Date 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.
ARTICLE III
ADMINISTRATION OF THE COLT 2007-SN1 SECURED NOTES
Section 3.1 Duties of the Trust Administrator.
(a) The Trust Administrator is hereby appointed and authorized to act
as agent for the Owner of the COLT 2007-SN1 Secured Notes and in such capacity
shall administer the
COLT 2007-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 2007-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 2007-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
2007-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 2007-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 2007-SN1 Secured Note a legal
proceeding, whether through judicial process or (with respect to repossession of
any Vehicle related to a Series 2007-SN1 Lease Asset) non-judicial process, 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 2007-SN1 Secured Note. If the Trust Administrator commences or
participates in such a legal proceeding in its own name, the Owner of such COLT
2007-SN1 Secured Note shall be deemed to have automatically assigned such COLT
2007-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 2007-SN1
Secured Note. At the Trust Administrator's request from time to time, the Owner
of a COLT 2007-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 2007-SN1 Secured Note to execute and deliver in the Trust
Administrator's name any notices, demands, claims, complaints, responses,
affidavits or other documents or instruments in connection with any such
proceeding. Any Owner of COLT 2007-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 2007-SN1 Secured Note of equivalent authority
and rights.
Section 3.2 Maintenance of Security Interests in COLT 2007-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 2007-SN1 Secured Note in the Series 2007-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 2007-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 3.3 Covenants, Representations and Warranties of the Trust
Administrator. As of the Series 2007-SN1 Closing Date, the Trust Administrator
hereby makes the following representations, warranties and covenants on which
XXXX relies in accepting the COLT 2007-SN1 Secured Notes hereunder and pursuant
to the First Step Secured Notes Assignment, and on which the Issuer shall rely
in accepting the COLT 2007-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
2007-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 Lien securing the related COLT 2007-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 as an entity in good standing
under the laws of its State of formation, 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 administer the COLT
2007-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 entity in good standing, and has obtained all
necessary licenses and approvals, in all jurisdictions in which the
ownership or lease of property or the conduct of its business requires 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 limited liability company 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 certificate
of formation or limited liability company agreement 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 (other than
tax liens and any other Liens that attach by operation of law) upon any of
its properties pursuant to the terms of any such indenture, agreement,
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. There are no Proceedings pending or, to the
Trust Administrator's knowledge, 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.
Section 3.4 Purchase of COLT 2007-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 2007-SN1 Secured Note
materially and adversely affected by such breach 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 2007-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 3.5 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 2007-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 3.6 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 2007-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 registration number on such COLT 2007-SN1 Secured
Note (as set forth in the Schedule of Secured Notes). With respect to any COLT
2007-SN1 Secured Notes for which XXXX is the Owner, the Trust Administrator
shall deliver to XXXX such accountings relating to such COLT 2007-SN1 Secured
Notes and the actions of the Trust Administrator with respect thereto as XXXX
may reasonably request.
Section 3.7 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 4.1 Representations and Warranties as to the COLT 2007-SN1 Secured
Notes. GMAC makes the following representations and warranties as to the COLT
2007-SN1 Secured Notes related thereto on which XXXX relies in accepting the
COLT 2007-SN1 Secured Notes. Such representations and warranties speak as of the
Series 2007-SN1 Closing Date, and shall survive the sale, transfer and
assignment of the COLT 2007-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 2007-SN1 Secured Notes. GMAC has instructed the
Secured Note Registrar to identify the CARAT Indenture Trustee as the registered
holder of the COLT 2007-SN1 Secured Notes, in each case in the Secured Note
Register.
(b) Terms of COLT 2007-SN1 Secured Notes. Each COLT 2007-SN1 Secured
Note: (i) was issued by COLT to fund a portion of the purchase price of the
related pool of Series 2007-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 2007-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 2007-SN1 Secured
Note and (v) prior to the sale of the COLT 2007-SN1 Secured Notes to XXXX under
this Agreement, the COLT 2007-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 2007-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 2007-SN1 Secured Notes in Force. No COLT 2007-SN1 Secured
Note has been satisfied, subordinated or rescinded, and the related Series
2007-SN1 Lease Assets securing each such COLT 2007-SN1 Secured Note have not
been released from the Lien of the related COLT 2007-SN1 Secured Note in whole
or in part.
(e) No Waiver or Amendment. Since the Series 2007-SN1 Closing Date, no
provision of a COLT 2007-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 2007-SN1
Secured Note.
(g) No Liens. To the best of GMAC's knowledge: (1) there are no Liens
(other than tax liens and any other Liens that attach by operation of law) or
claims that have been filed for work, labor or materials affecting any Series
2007-SN1 Lease Assets securing any COLT 2007-SN1 Secured Note that are or may be
Liens (other than tax liens and any other Liens that attach by operation of law)
prior to, or equal or coordinate with, the security interest in the Series
2007-SN1 Lease Assets granted pursuant to the COLT 0000-XX0 Xxxxxxxxx, (2) 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 2007-SN1 Secured Note, and (3) no tax lien has been filed and no claim
related thereto is being asserted with respect to any COLT 2007-SN1 Secured
Note.
(h) Good Title. No COLT 2007-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 2007-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 (other than tax liens and any other
Liens that attach by operation of law). Upon execution and delivery of this
Agreement and the related First Step Secured Notes Assignment by GMAC, XXXX
shall have all of the right, title and interest of GMAC in and to 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).
(i) Lawful Assignment. No COLT 2007-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 2007-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 2007-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 2007-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 2007-SN1 Secured Notes. Each COLT 2007-SN1
Secured Note has a maturity date on January 17, 2012 or prior to the last of the
Final Scheduled Distribution Dates.
(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
2007-SN1 Secured Notes from GMAC
to XXXX, this Agreement creates a valid and continuing security interest (as
defined in the applicable UCC) in the COLT 2007-SN1 Secured Notes in favor of
XXXX which security interest is prior to all other Liens (other than tax liens
and any other Liens that attach by operation of law), and is enforceable as such
as against creditors of and purchasers from GMAC.
Section 4.2 Additional Representations and Warranties of GMAC. GMAC hereby
represents and warrants to XXXX as of the Series 2007-SN1 Closing Date, both in
its capacity as the seller of the COLT 2007-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 an entity in good standing under the laws of the State of
Delaware, with power and authority to own its properties and to conduct its
business as such properties are presently owned and such business is presently
conducted;
(b) Due Qualification. GMAC is duly qualified to do business as a
foreign entity in good standing, and has obtained all necessary licenses and
approvals, in all jurisdictions in which the ownership or lease of property or
the conduct of its business requires or shall require such qualification;
(c) Power and Authority. GMAC has the power and authority to execute
and deliver this Agreement, the First Step Secured Notes Assignment and each
other CARAT Basic Document to which it is a party 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 2007-SN1 Secured Notes as provided
herein and in the Further Transfer and Administration Agreements, and has duly
authorized such sale and assignment to XXXX by all necessary limited liability
company action; and the execution, delivery and performance of this Agreement,
the First Step Secured Notes Assignment and each other CARAT Basic Document to
which it is a party have been duly authorized by GMAC by all necessary limited
liability company 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 2007-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, the First Step Secured Notes Assignment and each other CARAT
Basic Document to which GMAC is a party and the fulfillment of the terms of this
Agreement, the First Step Secured Notes Assignment and each other CARAT Basic
Document to which GMAC is a party 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 formation or limited
liability company agreement 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 (other than tax liens and
any other Liens that attach by operation of law) upon any of its properties
pursuant to the terms of any such indenture, agreement, mortgage, deed of trust
or other instrument, other than this Agreement, the First Step Secured Notes
Assignment and each other CARAT Basic Document to which GMAC is a party 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. There are no Proceedings pending or, to GMAC's
knowledge, 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 or any other CARAT Basic Document to which GMAC is
a party, (B) seeking to prevent the consummation of any of the transactions
contemplated by this Agreement, the First Step Secured Notes Assignment or any
other CARAT Basic Document to which GMAC is a party, 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, the First Step Secured Notes Assignment or any other CARAT
Basic Document to which GMAC is a party.
Section 4.3 Representations and Warranties of XXXX. XXXX hereby represents
and warrants to GMAC as of the Series 2007-SN1 Closing Date:
(a) Organization and Good Standing. XXXX has been duly organized and
is validly existing as an entity in good standing under the laws of the State of
Delaware, with power and authority to own its properties and to conduct its
business as such properties are presently owned and such business is presently
conducted, and had at all relevant times, and now has, power, authority and
legal right to acquire, own and pledge the COLT 2007-SN1 Secured Notes;
(b) Due Qualification. XXXX is duly qualified to do business as a
foreign entity in good standing, and has obtained all necessary licenses and
approvals in all jurisdictions in which the ownership or lease of property or
the conduct of its business requires such 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 or limited liability company 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 its certificate of
formation, limited liability company agreement or similar governing document),
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 (other than tax liens and any other Liens that attach by
operation of law) upon any of its properties pursuant to the terms of any such
indenture, agreement or other instrument, other than 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
(e) No Proceedings. There are no Proceedings pending or, to CARI's
knowledge 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 5.1 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 5.2 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 2007-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.
(b) Name Change. GMAC shall not change its State of organization or
its name, identity or 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 30 days prior written notice thereof.
(c) Executive Office; Maintenance of Offices. GMAC shall give XXXX at
least 30 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 2007-SN1 Secured Notes and its
principal executive office within the United States of America.
(d) New Debtor. In the event that GMAC shall change the jurisdiction
in which it is formed, 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 5.3 Other Liens or Interests. Except for the conveyances hereunder
and under the First Step Secured Notes Assignment and as contemplated by the
Further Transfer and Administration Agreements, GMAC shall not sell, pledge,
assign or transfer the COLT 2007-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 (other than tax liens and any other Liens that attach
by operation of law) on any interest therein, and GMAC shall defend the right,
title and interest of XXXX in, to and under such COLT 2007-SN1 Secured Notes or
any other First Step Purchased Property against all claims of third parties
claiming through or under GMAC.
Section 5.4 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 2007-SN1
Secured Note (a "Repurchase Event"), GMAC shall repurchase such COLT 2007-SN1
Secured Note from the Issuer (if the Issuer is then the Owner of such COLT
2007-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
2007-SN1 Secured Note for which XXXX is the Owner, GMAC agrees to repurchase
such COLT 2007-SN1 Secured Note from XXXX for an amount and upon the same terms
as GMAC would be obligated to repurchase such COLT 2007-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 2007-SN1 Secured
Note as if GMAC had purchased such COLT 2007-SN1 Secured Note from the Issuer as
the Owner thereof. It is understood and agreed that the obligation of GMAC to
repurchase any COLT 2007-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 5.5 Indemnification. GMAC shall indemnify XXXX for any liability as
a result of the failure of a COLT 2007-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 5.6 Further Assignments. GMAC acknowledges that XXXX may, pursuant
to the Further Transfer and Administration Agreements, sell the COLT 2007-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 2007-SN1 Secured Notes and the
other First Step Purchased Property and this Agreement and the First Step
Secured Notes Assignment.
Section 5.7 Further Assurances. Each party will do such acts, and execute
and deliver to any other party such additional documents or instruments as may
be reasonably requested in order to effect the purposes of this Agreement and to
better assure and confirm unto the requesting party its rights, powers and
remedies hereunder.
ARTICLE VI
CONDITIONS
Section 6.1 Conditions to Obligation of XXXX. The obligation of XXXX to
purchase the COLT 2007-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 2007-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 2007-SN1 Closing Date.
(b) No Repurchase Event. No Repurchase Event shall have occurred on or
prior to the Series 2007-SN1 Closing Date.
(c) Documents to be Delivered By GMAC.
(i) The Assignment. On the Series 2007-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 2007-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 2007-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 2007-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 2007-SN1 Closing Date.
(iii) Other Documents. On the Series 2007-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 6.2 Conditions to Obligation of GMAC. The obligation of GMAC to
sell the COLT 2007-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 2007-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
2007-SN1 Closing Date.
(b) Secured Notes Purchase Price. On the Series 2007-SN1 Closing Date,
XXXX shall pay to GMAC the Secured Notes Purchase Price as provided in Section
2.02.
ARTICLE VII
MISCELLANEOUS PROVISIONS
Section 7.1 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 7.2 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 7.3 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 7.4 Governing Law. THIS AGREEMENT 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 AGREEMENT SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
Section 7.5 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 7.6 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 2007-SN1 Secured Notes and
the other First Step Purchased Property and the enforcement of any obligation of
GMAC hereunder.
Section 7.7 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
2007-SN1 Secured Notes, under the Further Transfer and Administration Agreements
or as required by law.
Section 7.8 Headings. The headings of the various Articles and Sections
herein are for convenience of reference only and shall not define or limit any
of the terms or provisions hereof.
Section 7.9 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 2007-SN1 Notes and the
CARAT 2007-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.
Section 7.12 Merger and Consolidation of GMAC or XXXX. Any corporation,
limited liability company or other entity (i) into which either of GMAC or XXXX
may be merged or consolidated, (ii) resulting from any merger or consolidation
to which either of GMAC or XXXX shall be a party, (iii) succeeding to the
business of either of GMAC or XXXX, or (iv) more than 50% of the voting stock
(or, if not a corporation, other voting interests) of which is owned, directly
or indirectly, by GMAC or General Motors, which corporation or entity in any of
the foregoing cases executes an agreement of assumption to perform every
obligation of either of GMAC or XXXX under this Agreement and the other CARAT
Basic Documents, shall be the successor to either of GMAC or XXXX under this
Agreement without the execution or filing of any document or any further act on
the part of any of the parties to this Agreement. GMAC or XXXX, as applicable,
shall provide 10 days prior notice of any merger, consolidation or succession
pursuant to this Section 7.12 to the Rating Agencies (if any Rated Notes are
outstanding), the Servicer, the CARAT Indenture Trustee and the CARAT Owner
Trustee.
Section 7.13 Assignment. Notwithstanding anything to the contrary contained
in this Agreement, this Agreement may be assigned by GMAC or XXXX without the
consent of any other Person to a corporation or other organization that is a
successor (by merger, consolidation or purchases of assets) to GMAC or XXXX (as
applicable), or that more than 50% of the voting interests of which is owned,
directly or indirectly, by GMAC or General Motors, provided that such
organization executes an agreement of assumption as provided in Section 3.03 of
the Trust Sale and Administration Agreement.
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.
GMAC LLC
By: /s/ X.X. Xxxxxxxxx
------------------------------------
Name: X.X. Xxxxxxxxx
Title: Director - Global Securitization
CAPITAL AUTO RECEIVABLES LLC
By: /s/ P.M. Surhigh
------------------------------------
Name: P.M. Surhigh
Title: Vice President
EXHIBIT A
FORM OF FIRST STEP SECURED NOTES ASSIGNMENT
PURSUANT TO POOLING AND ADMINISTRATION AGREEMENT
For value received, in accordance with the Pooling and Administration
Agreement, dated as of June 7, 2007 (the "Pooling and Administration
Agreement"), between GMAC LLC, a Delaware limited liability company ("GMAC"),
and Capital Auto Receivables LLC, a Delaware limited liability company ("XXXX"),
GMAC does hereby sell, assign, transfer and otherwise convey unto XXXX, without
recourse, (i) all right, title and interest of GMAC in, to and under the COLT
2007-SN1 Secured Notes and all monies due thereunder on and after the Series
2007-SN1 Closing Date; (ii) all right, title and interest of GMAC in, to and
under the First Step Secured Notes Assignment; (iii) all right, title and
interest of GMAC in, to and under the VAULT Security Agreement; and (iv) the
present and future claims, demands, causes and choses in action in respect of
any or all the foregoing described in clauses (a), (b) and (c) 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 (i) through (iv) 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 2007-SN1 Secured Notes contemplated by this Agreement and the First
Step Secured Notes Assignment shall constitute a sale of the COLT 2007-SN1
Secured Notes and the other First Step Purchased Property from GMAC to XXXX and
the beneficial interest in and title to the COLT 2007-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 2007-SN1 Secured Notes,
the Series 2007-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 2007-SN1 Lease Assets.
The Seller hereby represents that as of the Series 2007-SN1 Closing Date,
the Initial Aggregate Secured Note Principal Balance was $2,325,007,063.65.
THIS 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 (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 FIRST STEP SECURED NOTES ASSIGNMENT SHALL BE
DETERMINED IN ACCORDANCE WITH SUCH LAWS.
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.
IN WITNESS WHEREOF, the undersigned has caused this Assignment to be duly
executed as of the date first above written.
GMAC LLC
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
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 2007-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 2007-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 2007-SN1, as amended and supplemented from time to time.
