(i) file with the Indenture Trustee, within fifteen (15) days after the Issuing Entity is required to file the same with the Commission, copies of the annual reports and of the information, documents and other reports (or copies of such portions of any of the foregoing as the Commission may from time to time by rules and regulations prescribe) which the Issuing Entity may be required to file with the Commission pursuant to Section 13 or 15(d) of the Exchange Act or Item 1122 of Regulation AB;
(ii) file with the Indenture Trustee and the Commission in accordance with rules and regulations prescribed from time to time by the Commission such additional information, documents and reports with respect to compliance by the Issuing Entity with the conditions and covenants of this Indenture as may be required from time to time by such rules and regulations; and
(iii) supply to the Indenture Trustee (and the Indenture Trustee shall transmit by mail to all Noteholders described in TIA § 313(c)) such summaries of any information, documents and reports required to be filed by the Issuing Entity pursuant to clauses (i) and (ii) of this Section 7.3(a) as may be required by rules and regulations prescribed from time to time by the Commission.
(b) Unless the Issuing Entity otherwise determines, the fiscal year of the Issuing Entity shall end on December 31 of such year.
SECTION 7.4 Reports by Trustee.
(a) If required by TIA § 313(a), within sixty (60) days after each August 15, beginning with August 15, 2008, the Indenture Trustee shall mail to each Noteholder as required by TIA § 313(c) a brief report dated as of such date that complies with TIA § 313(a). The Indenture Trustee also shall comply with TIA § 313(b). A copy of any report delivered pursuant to this Section 7.4(a) shall, at the time of its mailing to Noteholders, be filed by the Indenture Trustee with the Commission and each stock exchange, if any, on which the Notes are listed. The Issuing Entity shall notify the Indenture Trustee if and when the Notes are listed on any stock exchange.
(b) On each Distribution Date the Indenture Trustee shall include with each payment to each Noteholder a copy of the statement for the related Monthly Period or Periods applicable to such Distribution Date as required pursuant to Section 4.09 of the Trust Sale and Servicing Agreement.
ARTICLE VIII
ACCOUNTS, DISBURSEMENTS AND RELEASES
SECTION 8.1
Collection of Money. Except as otherwise expressly provided herein, the Indenture Trustee may demand payment or delivery of, and shall receive and collect, directly and without intervention or assistance of any fiscal agent or other intermediary, all money and other property payable to or receivable by the Indenture Trustee pursuant to this Indenture and the Trust Sale and Servicing Agreement. The Indenture Trustee shall apply all such money received by it as provided in this Indenture. Except as otherwise expressly provided in this Indenture, if any default occurs in the making of any payment or performance under any
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agreement or instrument that is part of the Trust Estate, the Indenture Trustee may take such action as may be appropriate to enforce such payment or performance, including the institution and prosecution of appropriate Proceedings. Any such action shall be without prejudice to any right to claim a Default or Event of Default under this Indenture and any right to proceed thereafter as provided in Article V.
SECTION 8.2 Designated Accounts; Payments.
(a) On or prior to the Closing Date, the Issuing Entity shall cause the Servicer to establish and maintain, in the name of the Indenture Trustee for the benefit of the Financial Parties (and with respect to the Reserve Account, for the benefit of the Servicer) the Designated Accounts as provided in Articles IV and V of the Trust Sale and Servicing Agreement.
(b) On or before each Distribution Date, (i) amounts shall be deposited in the Collection Account as provided in Section 4.06 of the Trust Sale and Servicing Agreement and (ii) the Aggregate Noteholders Interest Distributable Amount and the Aggregate Noteholders Principal Distributable Amount shall be transferred from the Collection Account to the Note Distribution Account as and to the extent provided in Section 4.06 of the Trust Sale and Servicing Agreement.
(c) On each Distribution Date, the Indenture Trustee shall notify the Account Holder to apply and, as required, distribute to the Noteholders all amounts on deposit in the Note Distribution Account (subject to the Servicers rights under Section 5.03 of the Trust Sale and Servicing Agreement to Investment Earnings) in the following order of priority and in the amounts determined as described below:
(i) On each Distribution Date, except as otherwise provided in clause (iii) below, the amount deposited in the Note Distribution Account in respect of interest on the Notes shall be applied in the following order of priority, to the extent of remaining funds after all earlier priorities have been satisfied, and any amount so applied shall be paid on such Distribution Date to the holders of Notes of each applicable Class:
(A) the Aggregate Class A Interest Distributable Amount shall be paid to the holders of the Class A Notes;
(B) the Aggregate Class B Interest Distributable Amount shall be paid to the holders of the Class B Notes;
(C) the Aggregate Class C Interest Distributable Amount shall be paid to the holders of the Class C Notes; and
(D) the Aggregate Class D Interest Distributable Amount shall be paid to the holders of the Class D Notes;
provided however, if there are not sufficient funds to so pay the entire amount specified in any of the foregoing priorities for a particular class of Notes, then the amount available for such class of Notes shall be paid to the Holders thereof ratably on the basis of the total amount of accrued and unpaid interest owing to each such Holder.
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(ii) Unless otherwise provided in clause (iii) below, (A) an amount equal to the Aggregate Noteholders Principal Distributable Amount shall be applied to each class of Notes in the following amounts and in the following order of priority and any amount so applied shall be paid on such Distribution Date to the Holders of such class of Notes:
| (1) | | a portion of such amount, equal to the result obtained by multiplying the Aggregate Noteholders Principal Distributable Amount by a fraction, the numerator of which is the outstanding principal balance of the Class A-PT Notes and the denominator of which is the outstanding principal balance of all the Class A Notes, will be applied to the Class A-PT Notes until the Class A-PT Notes are paid in full, and |
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| (2) | | the remainder of such amounts will be applied: |
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| | | First, to the Class A-1a Notes and the Class A-1b Notes, ratably in accordance with the Note Principal Balance of the Class A-1a Notes and the Class A-1b Notes, until the Outstanding Amounts of the Class A-1a Notes and Class A-1b Notes are reduced to zero; |
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| | | Second, to the Class A-2a Notes and the Class A-2b Notes, ratably in accordance with the Note Principal Balance of the Class A-2a Notes and the Class A-2b Notes, until the Outstanding Amounts of the Class A-2a Notes and Class A-2b Notes are reduced to zero; |
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| | | Third, to the Class A-3 Notes, until the Outstanding Amount of the Class A-3 Notes is reduced to zero; and |
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| | | Fourth, to the Class A-4a Notes and the Class A-4b Notes, ratably in accordance with the Note Principal Balance of the Class A-4a Notes and the Class A-4b Notes, until the Outstanding Amounts of the Class A-4a Notes and Class A-4b Notes are reduced to zero. |
(B) on or after the Distribution Date on which the Class A Notes have been paid in full, an amount equal to the Aggregate Noteholders Principal Distributable Amount, or the remaining portion thereof, shall be applied to the other classes of Notes in the following amounts and in the following order of priority and any amount so applied shall be paid on such Distribution Date to the Holders of such other classes of Notes:
| | | First, to the Class B Notes, until the Outstanding Amount of the Class B Notes is reduced to zero; |
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| | | Second, to the Class C Notes, until the Outstanding Amount of the Class C Notes is reduced to zero; and |
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| | | Third, to the Class D Notes, until the Outstanding Amount of the Class D Notes is reduced to zero. |
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(iii) If the Notes have been declared immediately due and payable following an Event of Default as provided in Section 5.2, until such time as all Events of Default have been cured or waived as provided in Section 5.2(b), any amounts deposited in the Note Distribution Account shall be applied in accordance with Section 2.7(c).
SECTION 8.3 General Provisions Regarding Accounts
(a) So long as no Default or Event of Default shall have occurred and be continuing, all or a portion of the funds in the Designated Accounts shall be invested in Eligible Investments and reinvested by the Indenture Trustee upon Issuing Entity Order, subject to the provisions of Section 5.01(b) of the Trust Sale and Servicing Agreement. The Issuing Entity shall not direct the Indenture Trustee to make any investment of any funds or to sell any investment held in any of the Designated Accounts unless the security interest granted and perfected in such account shall continue to be perfected in such investment or the proceeds of such sale, in either case without any further action by any Person, and, in connection with any direction to the Indenture Trustee to make any such investment or sale, if requested by the Indenture Trustee, the Issuing Entity shall deliver to the Indenture Trustee an Opinion of Counsel acceptable to the Indenture Trustee, to such effect.
(b) Subject to Section 6.1(c), the Indenture Trustee shall not in any way be held liable by reason of any insufficiency in any of the Designated Accounts resulting from any loss on any Eligible Investment included therein except for losses attributable to the Indenture Trustees failure to make payments on such Eligible Investments issued by the Indenture Trustee, in its commercial capacity as principal obligor and not as trustee, in accordance with their terms.
(c) If (i) the Issuing Entity shall have failed to give investment directions for any funds on deposit in the Designated Accounts to the Indenture Trustee by 11:00 a.m., New York City Time (or such other time as may be agreed by the Issuing Entity and the Indenture Trustee) on any Business Day; or (ii) a Default or Event of Default shall have occurred and be continuing with respect to the Notes but the Notes shall not have been declared due and payable pursuant to Section 5.2, or, if such Notes shall have been declared due and payable following an Event of Default, but amounts collected or receivable from the Trust Estate are being applied in accordance with Section 5.5 as if there had not been such a declaration; then the Indenture Trustee shall, to the fullest extent practicable, invest and reinvest funds in the Designated Accounts in one or more Eligible Investments selected by the Indenture Trustee.
SECTION 8.4 Release of Trust Estate.
(a) Subject to the payment of its fees and expenses pursuant to Section 6.7, the Indenture Trustee may, and when required by the provisions of this Indenture shall, execute instruments to release property from the Lien of this Indenture, or convey the Indenture Trustees interest in the same, in a manner and under circumstances that are consistent with the provisions of this Indenture. No party relying upon an instrument executed by the Indenture Trustee as provided in this Article VIII shall be bound to ascertain the Indenture Trustees authority, inquire into the satisfaction of any conditions precedent or see to the application of any monies.
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(b) The Indenture Trustee shall, at such time as there are no Notes Outstanding and all sums due to the Indenture Trustee pursuant to Section 6.7 have been paid and all amounts owing under each Third Party Instrument have been paid, release any remaining portion of the Trust Estate that secured the Notes and the other Secured Obligations from the Lien of this Indenture and release to the Issuing Entity or any other Person entitled thereto any funds then on deposit in the Designated Accounts. The Indenture Trustee shall release property from the Lien of this Indenture pursuant to this Section 8.4(b) only upon receipt by it of an Issuing Entity Request and an Officers Certificate, an Opinion of Counsel and (if required by the TIA) Independent Certificates in accordance with TIA §§ 314(c) and 314(d)(1) meeting the applicable requirements of Section 11.1.
SECTION 8.5 Opinion of Counsel. The Indenture Trustee shall receive at least seven (7) days notice when requested by the Issuing Entity to take any action pursuant to Section 8.4(a), accompanied by copies of any instruments involved, and the Indenture Trustee shall also require as a condition to such action, an Opinion of Counsel, in form and substance satisfactory to the Indenture Trustee, stating the legal effect of any such action, outlining the steps required to complete the same, and concluding that all conditions precedent to the taking of such action have been complied with and such action shall not materially and adversely impair the security for the Secured Obligations or the rights of the Secured Parties in contravention of the provisions of this Indenture; provided, however, that such Opinion of Counsel shall not be required to express an opinion as to the fair value of the Trust Estate. Counsel rendering any such opinion may rely, without independent investigation, on the accuracy and validity of any certificate or other instrument delivered to the Indenture Trustee in connection with any such action.
ARTICLE IX
SUPPLEMENTAL INDENTURES
SECTION 9.1 Supplemental Indentures Without Consent of Noteholders.
(a) Without the consent of the Holders of any Notes but with prior notice to the Rating Agencies, the Issuing Entity and the Indenture Trustee, when authorized by an Issuing Entity Order, at any time and from time to time, may enter into one or more indentures supplemental hereto (which shall conform to the provisions of the Trust Indenture Act as in force at the date of the execution thereof), in form satisfactory to the Indenture Trustee, for any of the following purposes:
(i) to correct or amplify the description of any property at any time subject to the Lien of this Indenture, or better to assure, convey and confirm unto the Indenture Trustee any property subject or required to be subjected to the Lien of this Indenture, or to subject to additional property to the Lien of this Indenture;
(ii) to evidence the succession, in compliance with Section 3.10 and the applicable provisions hereof, of another Person to the Issuing Entity, and the assumption by any such successor of the covenants of the Issuing Entity contained herein and in the Notes contained;
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(iii) to add to the covenants of the Issuing Entity, for the benefit of the Securityholders or to surrender any right or power herein conferred upon the Issuing Entity;
(iv) to convey, transfer, assign, mortgage or pledge any property to or with the Indenture Trustee;
(v) to cure any ambiguity, to correct or supplement any provision herein or in any supplemental indenture which may be inconsistent with any other provision herein or in any supplemental indenture or in any other Basic Document;
(vi) to evidence and provide for the acceptance of the appointment hereunder by a successor or additional trustee with respect to the Notes and to add to or change any of the provisions of this Indenture as shall be necessary to facilitate the administration of the trusts hereunder by more than one trustee, pursuant to the requirements of Article VI; or
(vii) to modify, eliminate or add to the provisions of this Indenture to such extent as shall be necessary to effect the qualification of this Indenture under the TIA or under any similar federal statute hereafter enacted and to add to this Indenture such other provisions as may be expressly required by the TIA, and the Indenture Trustee is hereby authorized to join in the execution of any such supplemental indenture and to make any further appropriate agreements and stipulations that may be therein contained.
(b) The Issuing Entity and the Indenture Trustee, when authorized by an Issuing Entity Order, may, also without the consent of any of the Noteholders but with prior notice to the Rating Agencies at any time and from time to time enter into one or more indentures supplemental hereto for the purpose of adding any provisions to, changing in any manner, or eliminating any of the provisions of, this Indenture or modifying in any manner the rights of the Noteholders under this Indenture; provided, however, that such action shall not, as evidenced by an Opinion of Counsel, adversely affect in any material respect the interests of any Noteholder.
SECTION 9.2 Supplemental Indentures With Consent of Noteholders.
(a) The Issuing Entity and the Indenture Trustee, when authorized by an Issuing Entity Order, also may, with prior notice to the Rating Agencies and with the consent of the Holders of not less than a majority of the Outstanding Amount of the Controlling Class, by Act of such Holders delivered to the Issuing Entity and the Indenture Trustee, enter into an indenture or indentures supplemental hereto for the purpose of adding any provisions to, changing in any manner, or eliminating any of the provisions of, this Indenture or of modifying in any manner the rights of the Noteholders under this Indenture; provided, however, that no such supplemental indenture shall, without the consent of the Holder of each Outstanding Note affected thereby:
(i) change the due date of any instalment of principal of or interest on any Note, or reduce the principal amount thereof, the interest rate applicable thereto, or the Redemption Price with respect thereto, change any place of payment where, or the coin or currency in which, any Note or any interest thereon is payable, or impair the right to institute suit for the enforcement of the provisions of this Indenture requiring the application of funds
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available therefor, as provided in Article V, to the payment of any such amount due on the Notes on or after the respective due dates thereof (or, in the case of redemption, on or after the Redemption Date);
(ii) reduce the percentage of the Outstanding Amount of the Controlling Class, the consent of the Holders of which is required for any such supplemental indenture, or the consent of the Holders of which is required for any waiver of compliance with certain provisions of this Indenture or certain defaults hereunder and their consequences as provided for in this Indenture;
(iii) modify or alter the provisions of the proviso to the definition of the term Outstanding;
(iv) reduce the percentage of the Outstanding Amount of the Notes required to direct the Indenture Trustee to sell or liquidate the Trust Estate pursuant to Section 5.4 if the proceeds of such sale would be insufficient to pay the principal amount of and accrued but unpaid interest on the Outstanding Notes;
(v) modify any provision of this Section 9.2 to decrease the required minimum percentage necessary to approve any amendments to any provisions of this Indenture or any of the Basic Documents;
(vi) modify any of the provisions of this Indenture in such manner as to affect the calculation of the amount of any payment of interest or principal due on any Note on any Distribution Date (including the calculation of any of the individual components of such calculation), or modify or alter the provisions of the Indenture regarding the voting of Notes held by the Issuing Entity, the Depositor or any Affiliate of either of them; or
(vii) permit the creation of any Lien ranking prior to or on a parity with the Lien of this Indenture with respect to any part of the Trust Estate or, except as otherwise permitted or contemplated herein, terminate the Lien of this Indenture on any property at any time subject thereto or deprive the Holder of any Note of the security afforded by the Lien of this Indenture.
(b) The Indenture Trustee may in its discretion determine whether or not any Notes would be affected (such that the consent of each Noteholder would be required) by any supplemental indenture proposed pursuant to this Section 9.2 and any such determination shall be binding upon the Holders of all Notes, whether authenticated and delivered thereunder before or after the date upon which such supplemental indenture becomes effective. The Indenture Trustee shall not be liable for any such determination made in good faith.
(c) It shall be sufficient if an Act of Noteholders approves the substance, but not the form, of any proposed supplemental indenture.
(d) Promptly after the execution by the Issuing Entity and the Indenture Trustee of any supplemental indenture pursuant to this Section 9.2, the Indenture Trustee shall mail to the Noteholders to which such amendment or supplemental indenture relates a notice setting forth in general terms the substance of such supplemental indenture. Any failure of the
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Indenture Trustee to mail such notice, or any defect therein, shall not, however, in any way impair or affect the validity of any such supplemental indenture.
SECTION 9.3 Execution of Supplemental Indentures. In executing, or permitting the additional trusts created by, any supplemental indenture permitted by this Article IX or the modifications thereby of the trusts created by this Indenture, the Indenture Trustee shall be entitled to receive, and subject to Sections 6.1 and 6.2, shall be fully protected in relying upon, an Opinion of Counsel stating that the execution of such supplemental indenture is authorized or permitted by this Indenture. The Indenture Trustee may, but shall not be obligated to, enter into any such supplemental indenture that affects the Indenture Trustees own rights, duties, liabilities or immunities under this Indenture or otherwise.
SECTION 9.4 Effect of Supplemental Indenture. Upon the execution of any supplemental indenture pursuant to the provisions hereof, this Indenture shall be and be deemed to be modified and amended in accordance therewith with respect to the Notes affected thereby, and the respective rights, limitations of rights, obligations, duties, liabilities and immunities under this Indenture of the Indenture Trustee, the Issuing Entity and the Noteholders shall thereafter be determined, exercised and enforced hereunder subject in all respects to such modifications and amendments, and all the terms and conditions of any such supplemental indenture shall be and be deemed to be part of the terms and conditions of this Indenture for any and all purposes.
SECTION 9.5 Conformity with Trust Indenture Act. Every amendment of this Indenture and every supplemental indenture executed pursuant to this Article IX shall conform to the requirements of the TIA as then in effect so long as this Indenture shall then be qualified under the TIA.
SECTION 9.6 Reference in Notes to Supplemental Indentures. Notes authenticated and delivered after the execution of any supplemental indenture pursuant to this Article IX may, and if required by the Indenture Trustee shall, bear a notation in form approved by the Indenture Trustee as to any matter provided for in such supplemental indenture. If the Issuing Entity or the Indenture Trustee shall so determine, new Notes so modified as to conform, in the opinion of the Indenture Trustee and the Issuing Entity, to any such supplemental indenture may be prepared and executed by the Issuing Entity and authenticated and delivered by the Indenture Trustee in exchange for Outstanding Notes of the same class.
ARTICLE X
REDEMPTION OF NOTES
SECTION 10.1
Redemption. The Notes are subject to redemption in whole, but not in part, upon the exercise by the Servicer (or the Holder of all the Certificates that is not the Depositor or any Affiliate thereof) of its option to purchase the Receivables pursuant to
Section 8.01 of the Trust Sale and Servicing Agreement. The date on which such redemption shall occur is the Distribution Date following the Optional Purchase Date identified by Servicer in its notice of exercise of such purchase option (the
Redemption Date). The purchase price for the Notes shall be equal to the applicable Redemption Price. The Servicer or the Issuing Entity shall furnish the Rating Agencies notice of such redemption. If the Notes are to be redeemed pursuant
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to this Section 10.1, the Servicer or the Issuing Entity shall furnish notice thereof to the Indenture Trustee not later than twenty-five (25) days prior to the Redemption Date and the Indenture Trustee (based on such notice) shall withdraw from the Collection Account and deposit into the Note Distribution Account, on the Redemption Date, the aggregate Redemption Price of the Notes, whereupon all such Notes shall be due and payable on the Redemption Date.
SECTION 10.2 Form of Redemption Notice. (a) Notice of redemption of the Notes under Section 10.1 shall be given by the Indenture Trustee by first-class mail, postage prepaid, mailed not less than five (5) days prior to the applicable Redemption Date to each Noteholder of record at such Noteholders address appearing in the Note Register.
(a) All notices of redemption shall state:
(i) the Redemption Date;
(ii) the applicable Redemption Price; and
(iii) the place where Notes are to be surrendered for payment of the Redemption Price (which shall be the Agency Office of the Issuing Entity to be maintained as provided in Section 3.2).
(b) Notice of redemption of the Notes shall be given by the Indenture Trustee in the name and at the expense of the Issuing Entity. Failure to give notice of redemption, or any defect therein, to any Holder of any Note shall not impair or affect the validity of the redemption of any other Note.
SECTION 10.3 Notes Payable on Redemption Date. The Notes shall, following notice of redemption as required by Section 10.2, on the Redemption Date cease to be Outstanding for purposes of this Indenture and shall thereafter represent only the right to receive the applicable Redemption Price and (unless the Issuing Entity shall default in the payment of such Redemption Price) no interest shall accrue on such Redemption Price for any period after the date to which accrued interest is calculated for purposes of calculating such Redemption Price.
ARTICLE XI
MISCELLANEOUS
SECTION 11.1 Compliance Certificates and Opinions, etc.
(a) Upon any application or request by the Issuing Entity to the Indenture Trustee to take any action under any provision of this Indenture, the Issuing Entity shall furnish to the Indenture Trustee: (i) an Officers Certificate stating that all conditions precedent, if any, provided for in this Indenture relating to the proposed action have been complied with, (ii) an Opinion of Counsel stating that in the opinion of such counsel all such conditions precedent, if any, have been complied with, and (iii) (if required by the TIA) an Independent Certificate from a firm of certified public accountants meeting the applicable requirements of this Section 11.1, except that, in the case of any such application or request as to which the furnishing of such documents is specifically required by any provision of this Indenture, no additional certificate or
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opinion need be furnished. Every certificate or opinion with respect to compliance with a condition or covenant provided for in this Indenture shall include:
(i) a statement that each signatory of such certificate or opinion has read or has caused to be read such covenant or condition and the definitions herein relating thereto;
(ii) a brief statement as to the nature and scope of the examination or investigation upon which the statements or opinions contained in such certificate or opinion are based;
(iii) a statement that, in the judgment of each such signatory, such signatory has made such examination or investigation as is necessary to enable such signatory to express an informed opinion as to whether or not such covenant or condition has been complied with; and
(iv) a statement as to whether, in the opinion of each such signatory, such condition or covenant has been complied with.
(b) (i) Prior to the deposit with the Indenture Trustee of any Collateral or other property or securities that is to be made the basis for the release of any property or securities subject to the Lien of this Indenture, the Issuing Entity shall, in addition to any obligation imposed in Section 11.1(a) or elsewhere in this Indenture, furnish to the Indenture Trustee an Officers Certificate certifying or stating the opinion of each Person signing such certificate as to the fair value (within ninety (90) days of such deposit) to the Issuing Entity of the Collateral or other property or securities to be so deposited.
(ii) Whenever the Issuing Entity is required to furnish to the Indenture Trustee an Officers Certificate certifying or stating the opinion of any signer thereof as to the matters described in clause (b)(i) above, the Issuing Entity shall also deliver to the Indenture Trustee an Independent Certificate as to the same matters, if the fair value to the Issuing Entity of the securities to be so deposited and of all other such securities made on the basis of any such withdrawal or release since the commencement of the then current fiscal year of the Issuing Entity, as set forth in the certificates delivered pursuant to clause (i) above and this clause (b)(ii), is 10% or more of the Outstanding Amount of the Notes, but such a certificate need not be furnished with respect to any securities so deposited, if the fair value thereof to the Issuing Entity as set forth in the related Officers Certificate is less than $25,000 or less than one percent of the Outstanding Amount of the Notes.
(iii) Other than with respect to the release of any Warranty Receivables, Administrative Receivables or Liquidating Receivables, whenever any property or securities are to be released from the Lien of this Indenture, the Issuing Entity shall also furnish to the Indenture Trustee an Officers Certificate certifying or stating the opinion of each Person signing such certificate as to the fair value (within ninety (90) days of such release) of the property or securities proposed to be released and stating that in the opinion of such Person the proposed release will not impair the security under this Indenture in contravention of the provisions hereof.
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(iv) Whenever the Issuing Entity is required to furnish to the Indenture Trustee an Officers Certificate certifying or stating the opinion of any signatory thereof as to the matters described in clause (b)(iii) above, the Issuing Entity shall also furnish to the Indenture Trustee an Independent Certificate as to the same matters if the fair value of the property or securities and of all other property, other than Warranty Receivables, Administrative Receivables and Liquidating Receivables, or securities released from the lien of this Indenture since the commencement of the then current calendar year, as set forth in the certificates required by clause (b)(iii) above and this clause (b)(iv), equals 10% or more of the Outstanding Amount of the Notes, but such certificate need not be furnished in the case of any release of property or securities if the fair value thereof as set forth in the related Officers Certificate is less than $25,000 or less than one percent of the then Outstanding Amount of the Notes.
(v) Notwithstanding Section 2.9 or any other provision of this Section 11.1, the Issuing Entity may (A) collect, liquidate, sell or otherwise dispose of Receivables as and to the extent permitted or required by the Basic Documents, (B) make cash payments out of the Designated Accounts and the Certificate Distribution Account as and to the extent permitted or required by the Basic Documents and (C) take any other action not inconsistent with the TIA.
SECTION 11.2 Form of Documents Delivered to Indenture Trustee.
(a) In any case where several matters are required to be certified by, or covered by an opinion of, any specified Person, it is not necessary that all such matters be certified by, or covered by the opinion of, only one such Person, or that they be so certified or covered by only one document, but one such Person may certify or give an opinion with respect to some matters and one or more other such Persons as to other matters, and any such Person may certify or give an opinion as to such matters in one or several documents.
(b) Any certificate or opinion of an Authorized Officer of the Issuing Entity may be based, insofar as it relates to legal matters, upon a certificate or opinion of, or representations by, counsel, unless such officer knows, or in the exercise of reasonable care should know, that any certificate, opinion or representation with respect to the matters upon which his certificate or opinion is based is erroneous. Any such certificate of an Authorized Officer or Opinion of Counsel may be based, insofar as it relates to factual matters, upon a certificate or opinion of, or representations by, an officer or officers of the Servicer, the Depositor, the Issuing Entity or the Administrator, stating that the information with respect to such factual matters is in the possession of the Servicer, the Depositor, the Issuing Entity or the Administrator, unless such counsel knows, or in the exercise of reasonable care should know, that the certificate or opinion or representations with respect to such matters are erroneous.
(c) Where any Person is required to make, give or execute two or more applications, requests, consents, certificates, statements, opinions or other instruments under this Indenture, they may, but need not, be consolidated and form one instrument.
(d) Whenever in this Indenture, in connection with any application or certificate or report to the Indenture Trustee, it is provided that the Issuing Entity shall deliver any document as a condition of the granting of such application, or as evidence of the Issuing
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Entitys compliance with any term hereof, it is intended that the truth and accuracy, at the time of the granting of such application or at the effective date of such certificate or report (as the case may be), of the facts and opinions stated in such document shall in such case be conditions precedent to the right of the Issuing Entity to have such application granted or to the sufficiency of such certificate or report. The foregoing shall not, however, be construed to affect the Indenture Trustees right to rely upon the truth and accuracy of any statement or opinion contained in any such document as provided in Article VI.
SECTION 11.3 Acts of Noteholders.
(a) Any request, demand, authorization, direction, notice, consent, waiver or other action provided by this Indenture to be given or taken by Noteholders or a class of Noteholders may be embodied in and evidenced by one or more instruments of substantially similar tenor signed by such Noteholders in person or by agents duly appointed in writing; and except as herein otherwise expressly provided such action shall become effective when such instrument or instruments are delivered to the Indenture Trustee, and, where it is hereby expressly required, to the Issuing Entity. Such instrument or instruments (and the action embodied therein and evidenced thereby) are herein sometimes referred to as the Act of the Noteholders signing such instrument or instruments. Proof of execution of any such instrument or of a writing appointing any such agent shall be sufficient for any purpose of this Indenture and (subject to Section 6.1) conclusive in favor of the Indenture Trustee and the Issuing Entity, if made in the manner provided in this Section 11.3.
(b) The fact and date of the execution by any person of any such instrument or writing may be proved in any manner that the Indenture Trustee deems sufficient.
(c) The ownership of Notes shall be proved by the Note Register.
(d) Any request, demand, authorization, direction, notice, consent, waiver or other action by the Holder of any Notes (or any one or more Predecessor Notes) shall bind the Holder of every Note issued upon the registration thereof or in exchange therefor or in lieu thereof, in respect of anything done, omitted or suffered to be done by the Indenture Trustee or the Issuing Entity in reliance thereon, whether or not notation of such action is made upon such Note.
SECTION 11.4 Notices, etc., to Indenture Trustee, Issuing Entity and Rating Agencies. Any request, demand, authorization, direction, notice, consent, waiver or Act of Noteholders or other documents provided or permitted by this Indenture to be made upon, given or furnished to or filed with:
(a) the Indenture Trustee by any Noteholder or by the Issuing Entity shall be sufficient for every purpose hereunder if made, given, furnished or filed in writing to or with the Indenture Trustee at its Corporate Trust Office, or
(b) the Issuing Entity by the Indenture Trustee or by any Noteholder shall be sufficient for every purpose hereunder if in writing and either sent by electronic facsimile transmission (with hard copy to follow via first class mail) or mailed, by certified mail, return
55
receipt requested to the Issuing Entity and the Owner Trustee each at the address specified in Appendix B to the Trust Sale and Servicing Agreement.
The Issuing Entity shall promptly transmit any notice received by it from the Noteholders to the Indenture Trustee. The Indenture Trustee shall likewise promptly transmit any notice received by it from the Noteholders to the Issuing Entity.
(c) Notices required to be given to the Rating Agencies by the Issuing Entity and the Indenture Trustee or the Owner Trustee shall be delivered as specified in Appendix B to the Trust Sale and Servicing Agreement.
SECTION 11.5 Notices to Noteholders; Waiver.
(a) Where this Indenture provides for notice to Noteholders of any event, such notice shall be sufficiently given (unless otherwise herein expressly provided) if it is in writing and mailed, first-class, postage prepaid to each Noteholder affected by such event, at such Persons address as it appears on the Note Register, not later than the latest date, and not earlier than the earliest date, prescribed for the giving of such notice. If notice to Noteholders is given by mail, neither the failure to mail such notice nor any defect in any notice so mailed to any particular Noteholder shall affect the sufficiency of such notice with respect to other Noteholders, and any notice that is mailed in the manner herein provided shall conclusively be presumed to have been duly given regardless of whether such notice is in fact actually received.
(b) Where this Indenture provides for notice in any manner, such notice may be waived in writing by any Person entitled to receive such notice, either before or after the event, and such waiver shall be the equivalent of such notice. Waivers of notice by Noteholders shall be filed with the Indenture Trustee but such filing shall not be a condition precedent to the validity of any action taken in reliance upon such a waiver.
(c) In case, by reason of the suspension of regular mail service as a result of a strike, work stoppage or similar activity, it shall be impractical to mail notice of any event of Noteholders when such notice is required to be given pursuant to any provision of this Indenture, then any manner of giving such notice as shall be satisfactory to the Indenture Trustee shall be deemed to be a sufficient giving of such notice.
(d) Where this Indenture provides for notice to the Rating Agencies, failure to give such notice shall not affect any other rights or obligations created hereunder, and shall not under any circumstance constitute an Event of Default.
SECTION 11.6
Alternate Payment and Notice Provisions. Notwithstanding any provision of this Indenture or any of the Notes to the contrary, the Issuing Entity may enter into any agreement with any Holder of a Note providing for a method of payment, or notice by the Indenture Trustee or any Paying Agent to such Holder, that is different from the methods provided for in this Indenture for such payments or notices. The Issuing Entity shall furnish to the Indenture Trustee a copy of each such agreement and the Indenture Trustee shall cause payments to be made and notices to be given in accordance with such agreements.
56
SECTION 11.7 Conflict with Trust Indenture Act.
(a) If any provision hereof limits, qualifies or conflicts with another provision hereof that is required to be included in this Indenture by any of the provisions of the TIA, such required provision shall control.
(b) The provisions of TIA §§ 310 through 317 that impose duties on any Person (including the provisions automatically deemed included herein unless expressly excluded by this Indenture) are a part of and govern this Indenture, whether or not physically contained herein.
SECTION 11.8 Effect of Headings and Table of Contents. The Article and Section headings herein and the table of contents are for convenience only and shall not affect the construction hereof.
SECTION 11.9 Successors and Assigns.
(a) All covenants and agreements in this Indenture and the Notes by the Issuing Entity shall bind its successors and assigns, whether so expressed or not.
(b) All covenants and agreements of the Indenture Trustee in this Indenture shall bind its successors and assigns, whether so expressed or not.
SECTION 11.10 Severability. In case any provision in this Indenture or in the Notes shall be invalid, illegal or unenforceable, the validity, legality, and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
SECTION 11.11 Benefits of Indenture. Nothing in this Indenture or in the Notes, express or implied, shall give to any Person, other than the parties hereto and their successors hereunder, and to the extent expressly provided herein, the Noteholders, the Certificateholders, any other party secured hereunder, any other Person with an ownership interest in any part of the Trust Estate and any holder of a Third Party Instrument, any benefit or any legal or equitable right, remedy or claim under this Indenture. The holder of a Third Party Instrument shall be a third-party beneficiary to this Agreement only to the extent that it has any rights specified herein or rights with respect to this Indenture specified under the Swap Counterparty Rights Agreement.
SECTION 11.12 Legal Holidays. If the date on which any payment is due shall not be a Business Day, then (notwithstanding any other provision of the Notes or this Indenture) payment need not be made on such date, but may be made on the next succeeding Business Day with the same force and effect as if made on the date on which nominally due, and no interest shall accrue for the period from and after any such nominal date.
SECTION 11.13
Governing Law. THIS INDENTURE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK, WITHOUT REFERENCE TO ITS CONFLICT OF LAW PROVISIONS OTHER THAN SECTION 5-1401 AND SECTION 5-1402 OF THE NEW YORK GENERAL OBLIGATIONS LAW, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE
57
PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
SECTION 11.14 Counterparts. This Indenture may be executed in any number of counterparts, each of which so executed shall be deemed to be an original, but all such counterparts shall together constitute but one and the same instrument.
SECTION 11.15 Recording of Indenture. If this Indenture is subject to recording in any appropriate public recording offices, such recording is to be effected by the Issuing Entity and at its expense accompanied by an Opinion of Counsel (which may be counsel to the Indenture Trustee or any other counsel reasonably acceptable to the Indenture Trustee) to the effect that such recording is necessary either for the protection of the Noteholders or any other Person secured hereunder or for the enforcement of any right or remedy granted to the Indenture Trustee under this Indenture.
SECTION 11.16 No Recourse. No recourse may be taken, directly or indirectly, with respect to the obligations of the Issuing Entity, the Owner Trustee or the Indenture Trustee on the Notes or under this Indenture or any certificate or other writing delivered in connection herewith or therewith, against:
(a) the Indenture Trustee or the Owner Trustee in its individual capacity;
(b) the Depositor or any other owner of a beneficial interest in the Issuing Entity; or
(c) any partner, owner, beneficiary, agent, officer, director, employee or agent of the Indenture Trustee or the Owner Trustee in its individual capacity, the Depositor or any other holder of a beneficial interest in the Issuing Entity, the Owner Trustee or the Indenture Trustee or of any successor or assign of the Indenture Trustee or the Owner Trustee in its individual capacity (or any of their successors or assigns), except as any such Person may have expressly agreed (it being understood that the Indenture Trustee and the Owner Trustee have no such obligations in their individual capacity) and except that any such partner, owner or beneficiary shall be fully liable, to the extent provided by applicable law, for any unpaid consideration for stock, unpaid capital contribution or failure to pay any instalment or call owing to such entity. For all purposes of this Indenture, in the performance of any duties or obligations of the Issuing Entity hereunder, the Owner Trustee shall be subject to, and entitled to the benefits of, the terms and provisions of Articles VI, VII and VIII of the Trust Agreement.
SECTION 11.17
No Petition. The Indenture Trustee, by entering into this Indenture, and each Noteholder and Note Owner, by accepting a Note (or interest therein) issued hereunder, hereby covenant and agree that they shall not, prior to the date which is one year and one day after the termination of this Indenture with respect to the Issuing Entity pursuant to
Section 4.1, acquiesce, petition or otherwise invoke or cause the Depositor or the Issuing Entity to invoke the process of any court or government authority for the purpose of commencing or sustaining a case against the Depositor or the Issuing Entity under any federal or state bankruptcy, insolvency or similar law or appointing a receiver, liquidator, assignee, trustee, custodian, sequestrator or other similar official of the Depositor or the Issuing Entity or any
58
substantial part of its property, or ordering the winding up or liquidation of the affairs of the Depositor or the Issuing Entity.
SECTION 11.18 Inspection. The Issuing Entity agrees that, on reasonable prior notice, it shall permit any representative of the Indenture Trustee, during the Issuing Entitys normal business hours, to examine all the books of account, records, reports, and other papers of the Issuing Entity, to make copies and extracts therefrom, to cause such books to be audited by Independent certified public accountants, and to discuss the Issuing Entitys affairs, finances and accounts with the Issuing Entitys officers, employees and Independent certified public accountants, all at such reasonable times and as often as may be reasonably requested. The Indenture Trustee shall and shall cause its representatives to hold in confidence all such information except to the extent disclosure may be required by law (and all reasonable applications for confidential treatment are unavailing) and except to the extent that the Indenture Trustee may reasonably determine that such disclosure is consistent with its obligations hereunder.
SECTION 11.19 Indemnification by and Reimbursement of Servicer. The Indenture Trustee acknowledges and agrees to reimburse (i) the Servicer and its directors, officers, employees and agents in accordance with Section 6.03(b) of the Trust Sale and Servicing Agreement and (ii) the Depositor and its directors, officers, employees and agents in accordance with Section 3.04 of the Trust Sale and Servicing Agreement. The Indenture Trustee further acknowledges and accepts the conditions and limitations with respect to the Servicers obligation to indemnify, defend and hold the Indenture Trustee harmless as set forth in Section 6.01(a)(iv) of the Trust Sale and Servicing Agreement.
* * * * *
59
IN WITNESS WHEREOF, the Issuing Entity and the Indenture Trustee have caused this Indenture to be duly executed by their respective officers, thereunto duly authorized, as of the day and year first above written.
| | | | |
| CAPITAL AUTO RECEIVABLES ASSET TRUST 2007-2 | |
| By: | DEUTSCHE BANK TRUST COMPANY | |
| | DELAWARE, not in its individual capacity | |
| | but solely as Owner Trustee | |
| | |
| By: | /s/ Jenna Kaufman | |
| | Name: | Jenna Kaufman | |
| | Title: | Attorney-In-Fact | |
| | |
| By: | /s/ Aranka R. Paul | |
| | Name: | Aranka R. Paul | |
| | Title: | Attorney-In-Fact | |
|
| THE BANK OF NEW YORK TRUST COMPANY, N.A., not in its individual capacity but solely as Indenture Trustee | |
| By: | /s/ Keith R. Richardson | |
| | Name: | Keith R. Richardson | |
| | Title: | Vice President | |
|
|
STATE OF NEW YORK ) |
) ss |
COUNTY OF BRONX ) |
BEFORE ME, the undersigned authority, a Notary Public in and for said county and state, on this day, personally appeared Jenna Kaufman and Aranka R. Paul, known to me to be the person and officer whose name is subscribed to the foregoing instrument and acknowledged to me that the same was the act of the said Capital Auto Receivables Asset Trust 2007-2, a Delaware statutory trust, and that she executed the same as the act of said statutory trust for the purpose and consideration therein expressed, and in the capacities therein stated.
GIVEN UNDER MY HAND AND SEAL OF OFFICE, this the 23rd day of August, 2007.
| | | | |
| | |
| /s/ Winsome Ferguson | |
| Notary Public in and for the State of New York | |
| | |
|
My commission expires:
March 3, 2011
|
STATE OF ILLINOIS ) |
) ss |
COUNTY OF COOK ) |
BEFORE ME, the undersigned authority, a Notary Public in and for said county and state, on this day personally appeared Keith R. Richardson, known to me to be the person and officer whose name is subscribed to the foregoing instrument and acknowledged to me that the same was the act of the said The Bank of New York Trust Company, N.A., a national banking association organized under the laws of the United States of America, and that he executed the same as the act of said national banking association for the purpose and consideration therein stated.
GIVEN UNDER MY HAND AND SEAL OF OFFICE, this 23rd day of August, 2007.
| | | | |
| | |
| /s/ T. Muzquiz | |
| Notary Public in and for the State of Illinois | |
| | |
|
My commission expires:
7/29/09
EXHIBIT A
LOCATIONS OF SCHEDULE OF RECEIVABLES
The Schedule of Receivables is on file at the offices of:
1. | | The Indenture Trustee |
|
2. | | The Owner Trustee |
|
3. | | GMAC |
|
4. | | The Depositor |
A-1
EXHIBIT B
FORM OF NOTE DEPOSITORY AGREEMENT FOR THE NOTES
B-1
EXHIBIT C-1
FORM OF [CLASS A-1A FIXED RATE] [CLASS A-1B FLOATING RATE]
ASSET BACKED NOTES, RULE 144A
NO. R-
SEE REVERSE FOR CERTAIN DEFINITIONS
CUSIP NO. _____
THIS RULE 144A GLOBAL [CLASS A-1A] [CLASS A-1B] NOTE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE U.S. SECURITIES ACT), OR UNDER THE SECURITIES OR BLUE SKY LAWS OF ANY STATE IN THE UNITED STATES OR ANY FOREIGN SECURITIES LAWS. BY ITS ACCEPTANCE OF THIS RULE 144A GLOBAL [CLASS A-1A] [CLASS A-1B] NOTE (OR INTEREST THEREIN) THE HOLDER OF THIS RULE 144A GLOBAL [CLASS A-1A] [CLASS A-1B] NOTE (OR SUCH INTEREST) IS DEEMED TO REPRESENT TO THE DEPOSITOR AND THE INDENTURE TRUSTEE THAT IT IS A QUALIFIED INSTITUTIONAL BUYER AS DEFINED IN RULE 144A UNDER THE U.S. SECURITIES ACT AND IS ACQUIRING THIS RULE 144A GLOBAL [CLASS A-1A] [CLASS A-1B] NOTE (OR INTEREST THEREIN) FOR ITS OWN ACCOUNT (AND NOT FOR THE ACCOUNT OF OTHERS) OR AS A FIDUCIARY OR AGENT FOR OTHERS (WHICH OTHERS ALSO ARE QUALIFIED INSTITUTIONAL BUYERS).
NO SALE, PLEDGE OR OTHER TRANSFER OF THIS RULE 144A GLOBAL [CLASS A-1A] [CLASS A-1B] NOTE (OR INTEREST THEREIN) MAY BE MADE BY ANY PERSON UNLESS EITHER (i) SUCH SALE, PLEDGE OR OTHER TRANSFER IS MADE TO A PERSON WHOM THE TRANSFEROR REASONABLY BELIEVES AFTER DUE INQUIRY IS A QUALIFIED INSTITUTIONAL BUYER (AS DEFINED IN RULE 144A), ACTING FOR ITS OWN ACCOUNT (AND NOT FOR THE ACCOUNT OF OTHERS) OR AS A FIDUCIARY OR AGENT FOR OTHERS (WHICH OTHERS ALSO ARE QUALIFIED INSTITUTIONAL BUYERS) TO WHOM NOTICE IS GIVEN THAT THE SALE, PLEDGE OR OTHER TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (ii) SUCH SALE, PLEDGE OR OTHER TRANSFER OCCURS OUTSIDE OF THE UNITED STATES TO A NON-U.S. PERSON IN ACCORDANCE WITH RULE 903 OR RULE 904 OF REGULATION S OF THE U.S. SECURITIES ACT AND THAT PERSON DELIVERS ANY NECESSARY CERTIFICATIONS PURSUANT TO TERMS OF THE INDENTURE, OR (iii) SUCH SALE, PLEDGE OR OTHER TRANSFER IS OTHERWISE MADE IN A TRANSACTION EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE U.S. SECURITIES ACT, IN WHICH CASE (A) THE INDENTURE TRUSTEE SHALL REQUIRE THAT BOTH THE PROSPECTIVE TRANSFEROR AND THE PROSPECTIVE TRANSFEREE CERTIFY TO THE INDENTURE TRUSTEE AND THE DEPOSITOR IN WRITING THE FACTS SURROUNDING SUCH TRANSFER, WHICH CERTIFICATION
C-1-1
SHALL BE IN FORM AND SUBSTANCE SATISFACTORY TO THE INDENTURE TRUSTEE AND THE DEPOSITOR, AND (B) THE INDENTURE TRUSTEE SHALL REQUIRE A WRITTEN OPINION OF COUNSEL (WHICH SHALL NOT BE AT THE EXPENSE OF THE DEPOSITOR, THE ADMINISTRATOR, THE SERVICER, THE ISSUING ENTITY OR THE INDENTURE TRUSTEE) SATISFACTORY TO THE DEPOSITOR AND THE INDENTURE TRUSTEE TO THE EFFECT THAT SUCH TRANSFER WILL NOT VIOLATE THE U.S. SECURITIES ACT.
EACH HOLDER OF A [CLASS A-1A] [CLASS A-1B] NOTE WILL BE DEEMED TO REPRESENT AND WARRANT THAT EITHER (1) IT IS NOT (a) AN EMPLOYEE BENEFIT PLAN (AS DEFINED IN SECTION 3(3) OF THE UNITED STATES EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED (ERISA), THAT IS SUBJECT TO PROVISIONS OF TITLE I OF ERISA, (b) A PLAN DESCRIBED IN SECTION 4975(e)(1) OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE CODE), (c) ANY ENTITY WHOSE UNDERLYING ASSETS INCLUDE PLAN ASSETS BY REASON OF AN EMPLOYEE BENEFIT PLANS OR A PLANS INVESTMENT IN THE ENTITY OR (d) ANY OTHER PLAN THAT IS SUBJECT TO ANY LAW THAT IS SUBSTANTIALLY SIMILAR TO ERISA OR SECTION 4975 OF THE CODE OR (2) THE PURCHASE AND HOLDING OF THE [CLASS A-1A] [CLASS A-1B] NOTE WILL NOT RESULT IN A NON-EXEMPT PROHIBITED TRANSACTION UNDER SECTION 406(a) OF ERISA OR SECTION 4975 OF THE CODE OR A VIOLATION OF ANY SUBSTANTIALLY SIMILAR APPLICABLE LAW.
EACH [CLASS A-1A] [CLASS A-1B] NOTEHOLDER OR NOTE OWNER, BY ACCEPTANCE OF A [CLASS A-1A] [CLASS A-1B] NOTE OR, IN THE CASE OF A NOTE OWNER, A BENEFICIAL INTEREST IN A [CLASS A-1A] [CLASS A-1B] NOTE, COVENANTS AND AGREES THAT NO RECOURSE MAY BE TAKEN, DIRECTLY OR INDIRECTLY, WITH RESPECT TO THE OBLIGATIONS OF THE ISSUING ENTITY, THE CARAT OWNER TRUSTEE OR THE INDENTURE TRUSTEE ON THE [CLASS A-1A] [CLASS A-1B] NOTES OR UNDER THE INDENTURE OR ANY CERTIFICATE OR OTHER WRITING DELIVERED IN CONNECTION THEREWITH, AGAINST (i) THE INDENTURE TRUSTEE OR THE CARAT OWNER TRUSTEE IN THEIR INDIVIDUAL CAPACITIES, (ii) THE DEPOSITOR OR ANY OTHER OWNER OF A BENEFICIAL INTEREST IN THE ISSUING ENTITY OR (iii) ANY PARTNER, OWNER, BENEFICIARY, AGENT, OFFICER, DIRECTOR OR EMPLOYEE OF THE INDENTURE TRUSTEE OR THE CARAT OWNER TRUSTEE IN THEIR INDIVIDUAL CAPACITIES, ANY HOLDER OF A BENEFICIAL INTEREST IN THE ISSUING ENTITY, THE CARAT OWNER TRUSTEE OR THE INDENTURE TRUSTEE OR OF ANY SUCCESSOR OR ASSIGN OF THE INDENTURE TRUSTEE OR THE CARAT OWNER TRUSTEE IN THEIR INDIVIDUAL CAPACITIES, EXCEPT AS ANY SUCH PERSON MAY HAVE EXPRESSLY AGREED AND EXCEPT THAT ANY SUCH PARTNER, OWNER OR BENEFICIARY SHALL BE FULLY LIABLE, TO THE EXTENT PROVIDED BY APPLICABLE LAW, FOR ANY UNPAID CONSIDERATION FOR STOCK, UNPAID CAPITAL CONTRIBUTION OR FAILURE TO PAY ANY INSTALLMENT OR CALL OWING TO SUCH ENTITY.
EACH [CLASS A-1A] [CLASS A-1B] NOTEHOLDER OR NOTE OWNER, BY ACCEPTANCE OF A [CLASS A-1A] [CLASS A-1B] NOTE OR, IN THE CASE OF A NOTE
C-1-2
OWNER, A BENEFICIAL INTEREST IN A [CLASS A-1A] [CLASS A-1B] NOTE, COVENANTS AND AGREES THAT BY ACCEPTING THE BENEFITS OF THE INDENTURE SUCH [CLASS A-1A] [CLASS A-1B] NOTEHOLDER WILL NOT, PRIOR TO THE DATE WHICH IS ONE YEAR AND ONE DAY AFTER THE TERMINATION OF THE INDENTURE WITH RESPECT TO THE ISSUING ENTITY, ACQUIESCE, PETITION OR OTHERWISE INVOKE OR CAUSE THE DEPOSITOR OR THE ISSUING ENTITY TO INVOKE THE PROCESS OF ANY COURT OR GOVERNMENT AUTHORITY FOR THE PURPOSE OF COMMENCING OR SUSTAINING A CASE AGAINST THE DEPOSITOR OR THE ISSUING ENTITY UNDER ANY FEDERAL OR STATE BANKRUPTCY, INSOLVENCY OR SIMILAR LAW OR APPOINTING A RECEIVER, LIQUIDATOR, ASSIGNEE, TRUSTEE, CUSTODIAN, SEQUESTRATOR OR OTHER SIMILAR OFFICIAL OF THE DEPOSITOR OR THE ISSUING ENTITY OR ANY SUBSTANTIAL PART OF ITS PROPERTY, OR ORDERING THE WINDING UP OR LIQUIDATION OF THE AFFAIRS OF THE DEPOSITOR OR THE ISSUING ENTITY.
EACH [CLASS A-1A] [CLASS A-1B] NOTEHOLDER OR NOTE OWNER, BY ACCEPTANCE OF A [CLASS A-1A] [CLASS A-1B] NOTE OR, IN THE CASE OF A NOTE OWNER, A BENEFICIAL INTEREST IN A [CLASS A-1A] [CLASS A-1B] NOTE, EXPRESSES ITS INTENTION THAT THIS [CLASS A-1A] [CLASS A-1B] NOTE QUALIFIES UNDER APPLICABLE TAX LAW AS INDEBTEDNESS SECURED BY THE COLLATERAL AND, UNLESS OTHERWISE REQUIRED BY APPROPRIATE TAXING AUTHORITIES, AGREES TO TREAT THE [CLASS A-1A] [CLASS A-1B] NOTES AS INDEBTEDNESS SECURED BY THE COLLATERAL FOR THE PURPOSE OF FEDERAL INCOME TAXES, STATE AND LOCAL INCOME AND FRANCHISE TAXES, MICHIGAN SINGLE BUSINESS TAX, AND ANY OTHER TAXES IMPOSED UPON, MEASURED BY OR BASED UPON GROSS OR NET INCOME.
CAPITAL AUTO RECEIVABLES ASSET TRUST 2007-2
[CLASS A-1A 5.60493%] [CLASS A-1B FLOATING RATE] ASSET BACKED NOTES
CAPITAL AUTO RECEIVABLES ASSET TRUST 2007-2, a statutory trust organized and existing under the laws of the State of Delaware (herein referred to as the Issuing Entity), for value received, hereby promises to pay to Cede & Co., or registered assigns, the principal sum of DOLLARS ($ ) or such lesser outstanding amount as may be payable in accordance with the Indenture (as defined on the reverse side of this Note), on each Distribution Date, in an amount equal to the result obtained by multiplying (i) a fraction, the numerator of which is the initial principal amount hereof and the denominator of which is the aggregate initial principal amount for such [Class A-1a] [Class A-1b] Notes by (ii) the aggregate amount, if any, payable on such Distribution Date from the Note Distribution Account in respect of principal on the [Class A-1a] [Class A-1b] Notes pursuant to Sections 2.7, 3.1 and 8.2(c) of the Indenture; provided, however, that the entire unpaid principal amount of this Note shall be due and payable on August 15, 2008 (the Final Scheduled Distribution Date). The Issuing Entity shall pay interest on this [Class A-1a] [Class A-1b] Note at the rate per annum shown above on each Distribution Date until the principal of this [Class A-1a] [Class A-1b] Note is paid or made available for payment on the principal amount of this [Class A-1a] [Class A-1b] Note outstanding on the preceding Distribution Date (after giving effect to all
C-1-3
payments of principal made on the preceding Distribution Date (or, for the initial Distribution Date, the outstanding principal balance on the Closing Date)). Interest on the [Class A-1a] [Class A-1b] Notes will accrue from and including the Closing Date and will be payable on each Distribution Date in an amount equal to the Note Class Interest Distributable Amount for such Distribution Date for the [Class A-1a] [Class A-1b] Notes. Interest will be computed on the basis of actual number of days elapsed from and including the prior Distribution Date (or, in the case of the first Distribution Date, from and including the Closing Date) to but excluding the current Distribution Date and a 360-day year. Such principal of and interest on this [Class A-1a] [Class A-1b] Note shall be paid in the manner specified on the reverse hereof. All interest payments on each class of Notes on any Distribution Date shall be made pro rata to the Noteholders of such class entitled thereto.
The principal of and interest on this [Class A-1a] [Class A-1b] Note are payable in such coin or currency of the United States of America which, at the time of payment, is legal tender for payment of public and private debts. All payments made by the Issuing Entity with respect to this [Class A-1a] [Class A-1b] Note shall be applied first to interest due and payable on this [Class A-1a] [Class A-1b] Note as provided above and then to the unpaid principal of this [Class A-1a] [Class A-1b] Note.
Reference is made to the further provisions of this [Class A-1a] [Class A-1b] Note set forth on the reverse hereof, which shall have the same effect as though fully set forth on the face of this [Class A-1a] [Class A-1b] Note.
Unless the certificate of authentication hereon has been executed by the Indenture Trustee whose name appears below by manual signature, this [Class A-1a] [Class A-1b] Note shall not be entitled to any benefit under the Indenture referred to on the reverse hereof or be valid or obligatory for any purpose.
C-1-4
IN WITNESS WHEREOF, the Issuing Entity has caused this instrument to be signed, manually or in facsimile, by its Authorized Officer.
Dated: August 23, 2007
| | | | |
CAPITAL AUTO RECEIVABLES ASSET TRUST 2007-2 | |
By: | DEUTSCHE BANK TRUST COMPANY | |
| DELAWARE, not in its individual capacity | |
| but solely as Owner Trustee | |
| |
By: | | |
| Name: | | |
| Title: | | |
| |
By: | | |
| Name: | | |
| Title: | | |
|
INDENTURE TRUSTEES CERTIFICATE OF AUTHENTICATION
This is one of the Notes designed above and referred to in the within-mentioned Indenture.
| | | | |
| THE BANK OF NEW YORK TRUST COMPANY, N.A., not in its individual capacity but solely as Indenture Trustee | |
| By: | | |
| | Name: | | |
| | Title: | | |
C-1-5
REVERSE OF NOTE
This Note is one of a duly authorized issue of Notes of the Issuing Entity, designated as its [Class A-1a 5.60493%] [Class A-1b Floating Rate] Asset Backed Notes (herein called the [Class A-1a Notes]) [Class A-1b Notes]), all issued under an indenture, dated as of August 23, 2007 (such indenture, as amended or supplemented, is herein called the Indenture), between the Issuing Entity and The Bank of New York Trust Company, N.A., as trustee (the Indenture Trustee, which term includes any successor trustee under the Indenture), to which Indenture and all indentures supplemental thereto reference is hereby made for a statement of the respective rights and obligations thereunder of the Issuing Entity, the Indenture Trustee and the Noteholders. The [Class A-1a] [Class A-1b] Notes are one of several duly authorized classes of Notes of the Issuing Entity issued pursuant to the Indenture (collectively, as to all Notes of all such classes, the Notes). The Notes are governed by and subject to all terms of the Indenture (which terms are incorporated herein and made a part hereof), to which Indenture the Holder of this [Class A-1a] [Class A-1b] Note by virtue of acceptance hereof assents and by which such Holder is bound. All capitalized terms used and not otherwise defined in this [Class A-1a] [Class A-1b] Note that are defined in the Indenture shall have the meanings assigned to them in or pursuant to the Indenture.
The [Class A-1a] [Class A-1b] Notes and all other Notes issued pursuant to the Indenture are and will be equally and ratably secured by the Collateral pledged as security therefor as provided in the Indenture.
Each Noteholder or Note Owner will be deemed to represent and warrant that either (1) it is not acquiring the Note with (i) the assets of an employee benefit plan (as defined in Section 3(3) of ERISA), that is subject to provisions of Title I of ERISA, (ii) a plan described in Section 4975(e)(1) of the Code, (iii) an entity whose underlying assets include plan assets by reason of an employee benefit plans or a plans investment in the entity or (iv) any other plan that is subject to any law that is substantially similar to ERISA or Section 4975 of the Code, or (2) the acquisition and holding of the Note will not give rise to a non-exempt prohibited transaction under Section 406(a) of ERISA or Section 4975 of the Code or a violation of any substantially similar applicable law.
Each Noteholder or Note Owner, by acceptance of a [Class A-1a] [Class A-1b] Note or, in the case of a Note Owner, a beneficial interest in a [Class A-1a] [Class A-1b] Note, covenants and agrees that no recourse may be taken, directly or indirectly, with respect to the obligations of the Issuing Entity, the Owner Trustee or the Indenture Trustee on the Notes or under the Indenture or any certificate or other writing delivered in connection therewith, against (i) the Indenture Trustee or the Owner Trustee in their individual capacities, (ii) the Depositor or any other owner of a beneficial interest in the Issuing Entity or (iii) any partner, owner, beneficiary, agent, officer, director or employee of the Indenture Trustee or the Owner Trustee in their individual capacities, any holder of a beneficial interest in the Issuing Entity, the Owner Trustee or the Indenture Trustee or of any successor or assign of the Indenture Trustee or the Owner Trustee in their individual capacities, except as any such Person may have expressly agreed and except that any such partner, owner or beneficiary shall be fully liable, to the extent provided by applicable law, for any unpaid consideration for stock, unpaid capital contribution or failure to pay any instalment or call owing to such entity.
C-1-6
Each Noteholder or Note Owner, by acceptance of a [Class A-1a] [Class A-1b] Note or, in the case of a Note Owner, a beneficial interest in a [Class A-1a] [Class A-1b], covenants and agrees that by accepting the benefits of the Indenture such Noteholder or Note Owner will not, prior to the date which is one year and one day after the termination of the Indenture with respect to the Issuing Entity, acquiesce, petition or otherwise invoke or cause the Depositor or the Issuing Entity to invoke the process of any court or government authority for the purpose of commencing or sustaining a case against the Depositor or the Issuing Entity under any federal or state bankruptcy, insolvency or similar law or appointing a receiver, liquidator, assignee, trustee, custodian, sequestrator or other similar official of the Depositor or the Issuing Entity or any substantial part of its property, or ordering the winding up or liquidation of the affairs of the Depositor or the Issuing Entity.
Each Noteholder, by acceptance of a [Class A-1a] [Class A-1b] Note or, in the case of a Note Owner, a beneficial interest in a [Class A-1a] [Class A-1b] Note, expresses its intention that this [Class A-1a] [Class A-1b] Note qualifies under applicable tax law as indebtedness secured by the Collateral and, unless otherwise required by appropriate taxing authorities, agrees to treat the [Class A-1a] [Class A-1b] Notes as indebtedness secured by the Collateral for the purpose of federal income taxes, state and local income and franchise taxes, Michigan single business tax, and any other taxes imposed upon, measured by or based upon gross or net income.
Prior to the due presentment for registration of transfer of this [Class A-1a] [Class A-1b] Note, the Issuing Entity, the Indenture Trustee and any agent of the Issuing Entity or the Indenture Trustee may treat the Person in whose name this [Class A-1a] [Class A-1b] Note (as of the day of determination or as of such other date as may be specified in the Indenture) is registered as the owner hereof for all purposes, whether or not this Note shall be overdue, and none of the Issuing Entity, the Indenture Trustee or any such agent shall be affected by notice to the contrary.
The Indenture permits, with certain exceptions as therein provided, the amendment thereof and the modification of the rights and obligations of the Issuing Entity and the rights of the Noteholders under the Indenture at any time by the Issuing Entity with the consent of the Holders of Notes representing a majority of the Outstanding Amount of the Controlling Class. The Indenture also contains provisions permitting the Holders of Notes representing specified percentages of the Outstanding Amount of the Controlling Class, on behalf of the Holders of all [Class A-1a] [Class A-1b] Notes, to waive compliance by the Issuing Entity with certain provisions of the Indenture and certain past defaults under the Indenture and their consequences. Any such consent or waiver by the Holder of this [Class A-1a] [Class A-1b] Note (or any one of more Predecessor Notes) shall be conclusive and binding upon such Holder and upon all future Holders of this [Class A-1a] [Class A-1b] Note and of any Note issued upon the registration of transfer hereof or in exchange hereof or in lieu hereof whether or not notation of such consent or waiver is made upon this [Class A-1a] [Class A-1b] Note. The Indenture also permits the Indenture Trustee to amend or waive certain terms and conditions set forth in the Indenture without the consent of the Noteholders.
The term Issuing Entity as used in this [Class A-1a] [Class A-1b] Note includes any successor to the Issuing Entity under the Indenture.
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The Issuing Entity is permitted by the Indenture, under certain circumstances, to merge or consolidate, subject to the rights of the Indenture Trustee and the Holders of Notes under the Indenture.
The Notes are issuable only in registered form in denominations as provided in the Indenture, subject to certain limitations therein set forth.
This [Class A-1a] [Class A-1b] Note and the Indenture shall be construed in accordance with the laws of the State of New York, without reference to its conflict of law provisions, and the obligations, rights and remedies of the parties hereunder and thereunder shall be determined in accordance with such laws.
No reference herein to the Indenture and no provision of this [Class A-1a] [Class A-1b] Note or of the Indenture shall alter or impair the obligation of the Issuing Entity, which is absolute and unconditional, to pay the principal of and interest on this [Class A-1a] [Class A-1b] Note at the times, place and rate, and in the coin or currency herein prescribed.
Anything herein to the contrary notwithstanding, except as expressly provided in the Basic Documents, neither the Depositor, the Servicer, the Indenture Trustee nor the Owner Trustee in their respective individual capacities, any owner of a beneficial interest in the Issuing Entity, nor any of their respective partners, beneficiaries, agents, officers, directors, employees or successors or assigns, shall be personally liable for, nor shall recourse be had to any of them for, the payment of principal of or interest on, or performance of, or omission to perform, any of the covenants, obligations or indemnifications contained in this [Class A-1a] [Class A-1b] Note or the Indenture, it being expressly understood that said covenants, obligations and indemnifications have been made by the Owner Trustee solely as the Owner Trustee in the assets of the Issuing Entity. The Holder of this [Class A-1a] [Class A-1b] Note by the acceptance hereof agrees that, except as expressly provided in the Basic Documents, in the case of an Event of Default under the Indenture, the Holder shall have no claim against any of the foregoing for any deficiency, loss or claim therefrom; provided, however, that nothing contained herein shall be taken to prevent recourse to, and enforcement against, the assets of the Issuing Entity for any and all liabilities, obligations and undertakings contained in the Indenture or in this [Class A-1a] [Class A-1b] Note.
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ASSIGNMENT
Social Security or taxpayer I.D. or other identifying number of assignee
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
(name and address of assignee)
the within Note and all rights thereunder, and hereby irrevocably constitutes and appoints , as attorney, to transfer said Note on the books kept for registration thereof, with full power of substitution in the premises.
| | | | | | |
Dated: | | | | | | 1 |
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| | | | | | |
| | | | Signature Guaranteed: | | |
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| | |
1 | | NOTE: The signature to this assignment must correspond with the name of the registered owner as it appears on the face of the within Note in every particular, without alteration, enlargement or any change whatsoever. |
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EXHIBIT C-2
FORM OF [CLASS A-1A FIXED RATE] [CLASS A-1B FLOATING RATE] ASSET
BACKED NOTES, REGULATION S
NO. R-
SEE REVERSE FOR CERTAIN DEFINITIONS
CUSIP NO. _____
THIS PERMANENT REGULATION S GLOBAL [CLASS A-1A] [CLASS A-1B] NOTE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE U.S. SECURITIES ACT), OR UNDER THE SECURITIES OR BLUE SKY LAWS OF ANY STATE IN THE UNITED STATES OR ANY FOREIGN SECURITIES LAWS. BY ITS ACCEPTANCE OF THIS PERMANENT REGULATION S GLOBAL [CLASS A-1A] [CLASS A-1B] NOTE (OR INTEREST THEREIN) THE HOLDER OF THIS PERMANENT REGULATION S GLOBAL [CLASS A-1A] [CLASS A-1B] NOTE (OR SUCH INTEREST) IS DEEMED TO REPRESENT TO THE DEPOSITOR AND THE INDENTURE TRUSTEE THAT IT IS A NON-U.S. PERSON (AS DEFINED IN REGULATION S) WHO ACQUIRED THE [CLASS A-1A] [CLASS A-1B] NOTE OUTSIDE OF THE UNITED STATES IN ACCORDANCE WITH REGULATION S.
NO SALE, PLEDGE OR OTHER TRANSFER OF THIS PERMANENT REGULATION S GLOBAL [CLASS A-1A] [CLASS A-1B] NOTE (OR INTEREST THEREIN) MAY BE MADE BY ANY PERSON UNLESS EITHER (i) SUCH SALE, PLEDGE OR OTHER TRANSFER IS MADE TO A PERSON WHOM THE TRANSFEROR REASONABLY BELIEVES AFTER DUE INQUIRY IS A QUALIFIED INSTITUTIONAL BUYER (AS DEFINED IN RULE 144A), ACTING FOR ITS OWN ACCOUNT (AND NOT FOR THE ACCOUNT OF OTHERS) OR AS A FIDUCIARY OR AGENT FOR OTHERS (WHICH OTHERS ALSO ARE QUALIFIED INSTITUTIONAL BUYERS) TO WHOM NOTICE IS GIVEN THAT THE SALE, PLEDGE OR TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A (ii) SUCH SALE, PLEDGE OR OTHER TRANSFER OCCURS OUTSIDE OF THE UNITED STATES TO A NON-U.S. PERSON IN ACCORDANCE WITH RULE 903 OR RULE 904 OF REGULATION S OF THE SECURITIES ACT AND THAT PERSON DELIVERS ANY NECESSARY CERTIFICATIONS PURSUANT TO THE INDENTURE, OR (iii) SUCH SALE, PLEDGE OR OTHER TRANSFER IS OTHERWISE MADE IN A TRANSACTION EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE U.S. SECURITIES ACT, IN WHICH CASE (A) THE INDENTURE TRUSTEE SHALL REQUIRE THAT BOTH THE PROSPECTIVE TRANSFEROR AND THE PROSPECTIVE TRANSFEREE CERTIFY TO THE INDENTURE TRUSTEE AND THE DEPOSITOR IN WRITING THE FACTS SURROUNDING SUCH TRANSFER, WHICH CERTIFICATION SHALL BE IN FORM AND SUBSTANCE SATISFACTORY TO THE
C-2-1
INDENTURE TRUSTEE AND THE DEPOSITOR, AND (B) THE INDENTURE TRUSTEE SHALL REQUIRE A WRITTEN OPINION OF COUNSEL (WHICH SHALL NOT BE AT THE EXPENSE OF THE DEPOSITOR, THE ADMINISTRATOR, THE SERVICER, THE ISSUING ENTITY OR THE INDENTURE TRUSTEE) SATISFACTORY TO THE DEPOSITOR AND THE INDENTURE TRUSTEE TO THE EFFECT THAT SUCH TRANSFER WILL NOT VIOLATE THE U.S. SECURITIES ACT.
EACH HOLDER OF A [CLASS A-1A] [CLASS A-1B] NOTE WILL BE DEEMED TO REPRESENT AND WARRANT THAT EITHER (1) IT IS NOT (a) AN EMPLOYEE BENEFIT PLAN (AS DEFINED IN SECTION 3(3) OF THE UNITED STATES EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED (ERISA), THAT IS SUBJECT TO PROVISIONS OF TITLE I OF ERISA, (b) A PLAN DESCRIBED IN SECTION 4975(e)(1) OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE CODE), (c) ANY ENTITY WHOSE UNDERLYING ASSETS INCLUDE PLAN ASSETS BY REASON OF AN EMPLOYEE BENEFIT PLANS OR A PLANS INVESTMENT IN THE ENTITY OR (d) ANY OTHER PLAN THAT IS SUBJECT TO ANY LAW THAT IS SUBSTANTIALLY SIMILAR TO ERISA OR SECTION 4975 OF THE CODE OR (2) THE PURCHASE AND HOLDING OF THE [CLASS A-1A] [CLASS A-1B] NOTE WILL NOT RESULT IN A NON-EXEMPT PROHIBITED TRANSACTION UNDER SECTION 406(a) OF ERISA OR SECTION 4975 OF THE CODE OR A VIOLATION OF ANY SUBSTANTIALLY SIMILAR APPLICABLE LAW.
EACH [CLASS A-1A] [CLASS A-1B] NOTEHOLDER OR NOTE OWNER, BY ACCEPTANCE OF A [CLASS A-1A] [CLASS A-1B] NOTE OR, IN THE CASE OF A NOTE OWNER, A BENEFICIAL INTEREST IN A [CLASS A-1A] [CLASS A-1B] NOTE, COVENANTS AND AGREES THAT NO RECOURSE MAY BE TAKEN, DIRECTLY OR INDIRECTLY, WITH RESPECT TO THE OBLIGATIONS OF THE ISSUING ENTITY, THE CARAT OWNER TRUSTEE OR THE INDENTURE TRUSTEE ON THE [CLASS A-1A] [CLASS A-1B] NOTES OR UNDER THE INDENTURE OR ANY CERTIFICATE OR OTHER WRITING DELIVERED IN CONNECTION THEREWITH, AGAINST (i) THE INDENTURE TRUSTEE OR THE CARAT OWNER TRUSTEE IN THEIR INDIVIDUAL CAPACITIES, (ii) THE DEPOSITOR OR ANY OTHER OWNER OF A BENEFICIAL INTEREST IN THE ISSUING ENTITY OR (iii) ANY PARTNER, OWNER, BENEFICIARY, AGENT, OFFICER, DIRECTOR OR EMPLOYEE OF THE INDENTURE TRUSTEE OR THE CARAT OWNER TRUSTEE IN THEIR INDIVIDUAL CAPACITIES, ANY HOLDER OF A BENEFICIAL INTEREST IN THE ISSUING ENTITY, THE CARAT OWNER TRUSTEE OR THE INDENTURE TRUSTEE OR OF ANY SUCCESSOR OR ASSIGN OF THE INDENTURE TRUSTEE OR THE CARAT OWNER TRUSTEE IN THEIR INDIVIDUAL CAPACITIES, EXCEPT AS ANY SUCH PERSON MAY HAVE EXPRESSLY AGREED AND EXCEPT THAT ANY SUCH PARTNER, OWNER OR BENEFICIARY SHALL BE FULLY LIABLE, TO THE EXTENT PROVIDED BY APPLICABLE LAW, FOR ANY UNPAID CONSIDERATION FOR STOCK, UNPAID CAPITAL CONTRIBUTION OR FAILURE TO PAY ANY INSTALLMENT OR CALL OWING TO SUCH ENTITY.
EACH [CLASS A-1A] [CLASS A-1B] NOTEHOLDER OR NOTE OWNER, BY ACCEPTANCE OF A [CLASS A-1A] [CLASS A-1B] NOTE OR, IN THE CASE OF A NOTE OWNER, A BENEFICIAL INTEREST IN A [CLASS A-1A] [CLASS A-1B] NOTE,
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COVENANTS AND AGREES THAT BY ACCEPTING THE BENEFITS OF THE INDENTURE SUCH [CLASS A-1A] [CLASS A-1B] NOTEHOLDER WILL NOT, PRIOR TO THE DATE WHICH IS ONE YEAR AND ONE DAY AFTER THE TERMINATION OF THE INDENTURE WITH RESPECT TO THE ISSUING ENTITY, ACQUIESCE, PETITION OR OTHERWISE INVOKE OR CAUSE THE DEPOSITOR OR THE ISSUING ENTITY TO INVOKE THE PROCESS OF ANY COURT OR GOVERNMENT AUTHORITY FOR THE PURPOSE OF COMMENCING OR SUSTAINING A CASE AGAINST THE DEPOSITOR OR THE ISSUING ENTITY UNDER ANY FEDERAL OR STATE BANKRUPTCY, INSOLVENCY OR SIMILAR LAW OR APPOINTING A RECEIVER, LIQUIDATOR, ASSIGNEE, TRUSTEE, CUSTODIAN, SEQUESTRATOR OR OTHER SIMILAR OFFICIAL OF THE DEPOSITOR OR THE ISSUING ENTITY OR ANY SUBSTANTIAL PART OF ITS PROPERTY, OR ORDERING THE WINDING UP OR LIQUIDATION OF THE AFFAIRS OF THE DEPOSITOR OR THE ISSUING ENTITY.
EACH [CLASS A-1A] [CLASS A-1B] NOTEHOLDER OR NOTE OWNER, BY ACCEPTANCE OF A [CLASS A-1A] [CLASS A-1B] NOTE OR, IN THE CASE OF A NOTE OWNER, A BENEFICIAL INTEREST IN A [CLASS A-1A] [CLASS A-1B] NOTE, EXPRESSES ITS INTENTION THAT THIS [CLASS A-1A] [CLASS A-1B] NOTE QUALIFIES UNDER APPLICABLE TAX LAW AS INDEBTEDNESS SECURED BY THE COLLATERAL AND, UNLESS OTHERWISE REQUIRED BY APPROPRIATE TAXING AUTHORITIES, AGREES TO TREAT THE [CLASS A-1A] [CLASS A-1B] NOTES AS INDEBTEDNESS SECURED BY THE COLLATERAL FOR THE PURPOSE OF FEDERAL INCOME TAXES, STATE AND LOCAL INCOME AND FRANCHISE TAXES, MICHIGAN SINGLE BUSINESS TAX, AND ANY OTHER TAXES IMPOSED UPON, MEASURED BY OR BASED UPON GROSS OR NET INCOME.
CAPITAL AUTO RECEIVABLES ASSET TRUST 2007-2
[CLASS A-1A 5.60493%] [CLASS A-1B FLOATING RATE] ASSET BACKED NOTES
CAPITAL AUTO RECEIVABLES ASSET TRUST 2007-2, a statutory trust organized and existing under the laws of the State of Delaware (herein referred to as the Issuing Entity), for value received, hereby promises to pay to [Cede & Co.], or registered assigns, the principal sum of DOLLARS ($ ) or such lesser amount as may be payable in accordance with the Indenture (as defined on the reverse side of this Note), on each Distribution Date in an amount equal to the result obtained by multiplying (i) a fraction, the numerator of which is the initial principal amount hereof and the denominator of which is the aggregate initial principal amount for such [Class A-1a] [Class A-1b] Notes, by (ii) the aggregate amount, if any, payable on such Distribution Date from the Note Distribution Account in respect of principal on the [Class A-1a] [Class A-1b] Notes pursuant to Sections 2.7, 3.1 and 8.2(c) of the Indenture; provided, however, that the entire unpaid principal amount of this [Class A-1a] [Class A-1b] Note shall be due and payable on August 15, 2008 (the Final Scheduled Distribution Date). The Issuing Entity shall pay interest on this [Class A-1a] [Class A-1b] Note at the per annum rate shown above on each Distribution Date until the principal of this [Class A-1a] [Class A-1b] Note is paid or made available for payment on the principal amount of this [Class A-1a] [Class A-1b] Note outstanding on the preceding Distribution Date (after giving effect to all payments of principal made on the preceding Distribution Date (or, for the initial
C-2-3
Distribution Date, the outstanding principal balance on the Closing Date)). Interest on the [Class A-1a] [Class A-1b] Notes will accrue from and including the Closing Date and will be payable on each Distribution Date in an amount equal to the Note Class Interest Distributable Amount for such Distribution Date for the [Class A-1a] [Class A-1b] Notes. Interest will be computed on the basis of actual number of days elapsed from and including the prior Distribution Date (or, in the case of the first Distribution Date, from and including the Closing Date) to but excluding the current Distribution Date and a 360-day year. Such principal of and interest on this [Class A-1a] [Class A-1b] Note shall be paid in the manner specified on the reverse hereof. All interest payments on each class of Notes on any Distribution Date shall be made pro rata to the Noteholders of such class entitled thereto.
The principal of and interest on this [Class A-1a] [Class A-1b] Note are payable in such coin or currency of the United States of America which, at the time of payment, is legal tender for payment of public and private debts. All payments made by the Issuing Entity with respect to this [Class A-1a] [Class A-1b] Note shall be applied first to interest due and payable on this [Class A-1a] [Class A-1b] Note as provided above and then to the unpaid principal of this [Class A-1a] [Class A-1b] Note.
Reference is made to the further provisions of this [Class A-1a] [Class A-1b] Note set forth on the reverse hereof, which shall have the same effect as though fully set forth on the face of this [Class A-1a] [Class A-1b] Note.
Unless the certificate of authentication hereon has been executed by the Indenture Trustee whose name appears below by manual signature, this [Class A-1a] [Class A-1b] Note shall not be entitled to any benefit under the Indenture referred to on the reverse hereof or be valid or obligatory for any purpose.
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IN WITNESS WHEREOF, the Issuing Entity has caused this instrument to be signed, manually or in facsimile, by its Authorized Officer.
Dated: August 23, 2007
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CAPITAL AUTO RECEIVABLES ASSET TRUST 2007-2 | |
By: | DEUTSCHE BANK TRUST COMPANY | |
| DELAWARE, not in its individual capacity | |
| but solely as Owner Trustee | |
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By: | | |
| Name: | | |
| Title: | | |
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By: | | |
| Name: | | |
| Title: | | |
|
INDENTURE TRUSTEES CERTIFICATE OF AUTHENTICATION
This is one of the Notes designed above and referred to in the within-mentioned Indenture.
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| THE BANK OF NEW YORK TRUST COMPANY, N.A., not in its individual capacity but solely as Indenture Trustee | |
| By: | | |
| | Name: | | |
| | Title: | | |
C-2-5
REVERSE OF NOTE
This Note is one of a duly authorized issue of Notes of the Issuing Entity, designated as its [Class A-1a 5.60493%] [Class A-1b Floating Rate] Asset Backed Notes (herein called the [Class A-1a Notes] [Class A-1b Notes]), all issued under an indenture, dated as of August 23, 2007 (such indenture, as amended or supplemented, is herein called the Indenture), between the Issuing Entity and The Bank of New York Trust Company, N.A., as trustee (the Indenture Trustee, which term includes any successor trustee under the Indenture), to which Indenture and all indentures supplemental thereto reference is hereby made for a statement of the respective rights and obligations thereunder of the Issuing Entity, the Indenture Trustee and the Noteholders. The [Class A-1a] [Class A-1b] Notes are one of several duly authorized classes of Notes of the Issuing Entity issued pursuant to the Indenture (collectively, as to all Notes of all such classes, the Notes). The Notes are governed by and subject to all terms of the Indenture (which terms are incorporated herein and made a part hereof), to which Indenture the Holder of this [Class A-1a] [Class A-1b] Note by virtue of acceptance hereof assents and by which such Holder is bound. All capitalized terms used and not otherwise defined in this [Class A-1a] [Class A-1b] Note that are defined in the Indenture, as supplemented or amended, shall have the meanings assigned to them in or pursuant to the Indenture.
The [Class A-1a] [Class A-1b] Notes and all other Notes issued pursuant to the Indenture are and will be equally and ratably secured by the Collateral pledged as security therefor as provided in the Indenture.
Each Noteholder or Note Owner will be deemed to represent and warrant that either (1) it is not acquiring the Note with (i) the assets of an employee benefit plan (as defined in Section 3(3) of ERISA), that is subject to provisions of Title I of ERISA, (ii) a plan described in Section 4975(e)(1) of the Code, (iii) an entity whose underlying assets include plan assets by reason of an employee benefit plans or a plans investment in the entity or (iv) any other plan that is subject to any law that is substantially similar to ERISA or Section 4975 of the Code, or (2) the acquisition and holding of the Note will not give rise to a non-exempt prohibited transaction under Section 406(a) of ERISA or Section 4975 of the Code or a violation of any substantially similar applicable law.
Each Noteholder or Note Owner, by acceptance of a [Class A-1a] [Class A-1b] Note or, in the case of a Note Owner, a beneficial interest in [Class A-1a] [Class A-1b] Note, covenants and agrees that no recourse may be taken, directly or indirectly, with respect to the obligations of the Issuing Entity, the Owner Trustee or the Indenture Trustee on the Notes or under the Indenture or any certificate or other writing delivered in connection therewith, against (i) the Indenture Trustee or the Owner Trustee in their individual capacities, (ii) the Depositor or any other owner of a beneficial interest in the Issuing Entity or (iii) any partner, owner, beneficiary, agent, officer, director or employee of the Indenture Trustee or the Owner Trustee in their individual capacities, any holder of a beneficial interest in the Issuing Entity, the Owner Trustee or the Indenture Trustee or of any successor or assign of the Indenture Trustee or the Owner Trustee in their individual capacities, except as any such Person may have expressly agreed and except that any such partner, owner or beneficiary shall be fully liable, to the extent provided by applicable law, for any unpaid consideration for stock, unpaid capital contribution or failure to pay any instalment or call owing to such entity.
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Each Noteholder or Note Owner, by acceptance of a [Class A-1a] [Class A-1b] Note or, in the case of a Note Owner, a beneficial interest in a [Class A-1a] [Class A-1b] Note, covenants and agrees that by accepting the benefits of the Indenture such Noteholder or Note Owner will not, prior to the date which is one year and one day after the termination of the Indenture with respect to the Issuing Entity, acquiesce, petition or otherwise invoke or cause the Depositor or the Issuing Entity to invoke the process of any court or government authority for the purpose of commencing or sustaining a case against the Depositor or the Issuing Entity under any federal or state bankruptcy, insolvency or similar law or appointing a receiver, liquidator, assignee, trustee, custodian, sequestrator or other similar official of the Depositor or the Issuing Entity or any substantial part of its property, or ordering the winding up or liquidation of the affairs of the Depositor or the Issuing Entity.
Each Noteholder, by acceptance of a [Class A-1a] [Class A-1b] Note or, in the case of a Note Owner, a beneficial interest in a [Class A-1a] [Class A-1b] Note, expresses its intention that this [Class A-1a] [Class A-1b] Note qualifies under applicable tax law as indebtedness secured by the Collateral and, unless otherwise required by appropriate taxing authorities, agrees to treat the [Class A-1a] [Class A-1b] Notes as indebtedness secured by the Collateral for the purpose of federal income taxes, state and local income and franchise taxes, Michigan single business tax, and any other taxes imposed upon, measured by or based upon gross or net income.
Prior to the due presentment for registration of transfer of this [Class A-1a] [Class A-1b] Note, the Issuing Entity, the Indenture Trustee and any agent of the Issuing Entity or the Indenture Trustee may treat the Person in whose name this [Class A-1a] [Class A-1b] Note (as of the day of determination or as of such other date as may be specified in the Indenture) is registered as the owner hereof for all purposes, whether or not this Note shall be overdue, and none of the Issuing Entity, the Indenture Trustee or any such agent shall be affected by notice to the contrary.
The Indenture permits, with certain exceptions as therein provided, the amendment thereof and the modification of the rights and obligations of the Issuing Entity and the rights of the Noteholders under the Indenture at any time by the Issuing Entity with the consent of the Holders of Notes representing a majority of the Outstanding Amount of the Controlling Class. The Indenture also contains provisions permitting the Holders of Notes representing specified percentages of the Outstanding Amount of the Controlling Class, on behalf of the Holders of all the [Class A-1a] [Class A-1b] Notes, to waive compliance by the Issuing Entity with certain provisions of the Indenture and certain past defaults under the Indenture and their consequences. Any such consent or waiver by the Holder of this [Class A-1a] [Class A-1b] Note (or any one of more Predecessor Notes) shall be conclusive and binding upon such Holder and upon all future Holders of this [Class A-1a] [Class A-1b] Note and of any Note issued upon the registration of transfer hereof or in exchange hereof or in lieu hereof whether or not notation of such consent or waiver is made upon this [Class A-1a] [Class A-1b] Note. The Indenture also permits the Indenture Trustee to amend or waive certain terms and conditions set forth in the Indenture without the consent of the Noteholders.
The term Issuing Entity as used in this [Class A-1a] [Class A-1b] Note includes any successor to the Issuing Entity under the Indenture.
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The Issuing Entity is permitted by the Indenture, under certain circumstances, to merge or consolidate, subject to the rights of the Indenture Trustee and the Holders of Notes under the Indenture.
The Notes are issuable only in registered form in denominations as provided in the Indenture, subject to certain limitations therein set forth.
This [Class A-1a] [Class A-1b] Note and the Indenture shall be construed in accordance with the laws of the State of New York, without reference to its conflict of law provisions, and the obligations, rights and remedies of the parties hereunder and thereunder shall be determined in accordance with such laws.
No reference herein to the Indenture and no provision of this [Class A-1a] [Class A-1b] Note or of the Indenture shall alter or impair the obligation of the Issuing Entity, which is absolute and unconditional, to pay the principal of and interest on this [Class A-1a] [Class A-1b] Note at the times, place and rate, and in the coin or currency herein prescribed.
Anything herein to the contrary notwithstanding, except as expressly provided in the Basic Documents, neither the Depositor, the Servicer, the Indenture Trustee nor the Owner Trustee in their respective individual capacities, any owner of a beneficial interest in the Issuing Entity, nor any of their respective partners, beneficiaries, agents, officers, directors, employees or successors or assigns, shall be personally liable for, nor shall recourse be had to any of them for, the payment of principal of or interest on, or performance of, or omission to perform, any of the covenants, obligations or indemnifications contained in this [Class A-1a] [Class A-1b] Note or the Indenture, it being expressly understood that said covenants, obligations and indemnifications have been made by the Owner Trustee solely as the Owner Trustee in the assets of the Issuing Entity. The Holder of this [Class A-1a] [Class A-1b] Note by the acceptance hereof agrees that, except as expressly provided in the Basic Documents, in the case of an Event of Default under the Indenture, the Holder shall have no claim against any of the foregoing for any deficiency, loss or claim therefrom; provided, however, that nothing contained herein shall be taken to prevent recourse to, and enforcement against, the assets of the Issuing Entity for any and all liabilities, obligations and undertakings contained in the Indenture or in this [Class A-1a] [Class A-1b] Note.
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ASSIGNMENT
Social Security or taxpayer I.D. or other identifying number of assignee
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
(name and address of assignee)
the within Note and all rights thereunder, and hereby irrevocably constitutes and appoints , as attorney, to transfer said Note on the books kept for registration thereof, with full power of substitution in the premises.
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Dated: | | | | | | 2 |
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| | | | Signature Guaranteed: | | |
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2 | | NOTE: The signature to this assignment must correspond with the name of the registered owner as it appears on the face of the within Note in every particular, without alteration, enlargement or any change whatsoever. |
C-2-9
EXHIBIT C-3
FORM OF CLASS A-2A AND CLASS A-4A FIXED RATE ASSET BACKED
NOTES
NO. R-
SEE REVERSE FOR CERTAIN DEFINITIONS
CUSIP NO.
Unless this Note is presented by an authorized representative of The Depository Trust Company, a New York corporation (DTC), to the Issuing Entity or its agent for registration of transfer, exchange or payment, and any Note issued is registered in the name of Cede & Co. or in such other name as is requested by an authorized representative of DTC (and any payment is made to Cede & Co. or to such other entity as is requested by an authorized representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner hereof, Cede & Co., has an interest herein.
THE PRINCIPAL OF THIS NOTE IS PAYABLE AS SET FORTH HEREIN. ACCORDINGLY, THE OUTSTANDING PRINCIPAL AMOUNT OF THIS NOTE AT ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ON THE FACE HEREOF.
CAPITAL AUTO RECEIVABLES ASSET TRUST 2007-2
[CLASS A-2A] [CLASS A-4A] % ASSET BACKED NOTES
CAPITAL AUTO RECEIVABLES ASSET TRUST 2007-2, a statutory trust organized and existing under the laws of the State of Delaware (herein referred to as the Issuing Entity), for value received, hereby promises to pay to Cede & Co., or registered assigns, the principal sum of DOLLARS ($ ) or such lesser outstanding amount as may be payable in accordance with the Indenture (as defined on the reverse side of this Note), on each Distribution Date, in an amount equal to the result obtained by multiplying (i) a fraction, the numerator of which is the initial principal amount hereof and the denominator of which is the aggregate initial principal amount for such [Class A-2a] [Class A-4a] Notes by (ii) the aggregate amount, if any, payable on such Distribution Date from the Note Distribution Account in respect of principal on the [Class A-2a] [Class A-4a] Notes pursuant to Sections 2.7, 3.1 and 8.2(c) of the Indenture; provided, however, that the entire unpaid principal amount of this Note shall be due and payable on (the Final Scheduled Distribution Date) unless the Note is earlier redeemed pursuant to Section 10.1 of the Indenture, in which case such unpaid principal amount shall be due on the Redemption Date. The Issuing Entity shall pay interest on this Note at the rate per annum shown above on each Distribution Date until
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the principal of this Note is paid or made available for payment on the principal amount of this Note outstanding on the preceding Distribution Date (after giving effect to all payments of principal made on the preceding Distribution Date (or, for the initial Distribution Date, the outstanding principal balance on the Closing Date)). Interest on the [Class A-2a] [Class A-4a] Notes will accrue from and including the Closing Date and will be payable on each Distribution Date in an amount equal to the Note Class Interest Distributable Amount for such Distribution Date for the [Class A-2a] [Class A-4a]. Interest will be computed on the basis of a 360-day year of twelve 30-day months (or, in the case of the initial Distribution Date, a 22 day period). Such principal of and interest on this Note shall be paid in the manner specified on the reverse hereof. All interest payments on each class of Notes on any Distribution Date shall be made pro rata to the Noteholders of such class entitled thereto.
The principal of and interest on this Note are payable in such coin or currency of the United States of America which, at the time of payment, is legal tender for payment of public and private debts. All payments made by the Issuing Entity with respect to this Note shall be applied first to interest due and payable on this Note as provided above and then to the unpaid principal of this Note.
Reference is made to the further provisions of this Note set forth on the reverse hereof, which shall have the same effect as though fully set forth on the face of this Note.
Unless the certificate of authentication hereon has been executed by the Indenture Trustee whose name appears below by manual signature, this Note shall not be entitled to any benefit under the Indenture referred to on the reverse hereof or be valid or obligatory for any purpose.
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IN WITNESS WHEREOF, the Issuing Entity has caused this instrument to be signed, manually or in facsimile, by its Authorized Officer.
Dated: August 23, 2007
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CAPITAL AUTO RECEIVABLES ASSET TRUST 2007-2 By: DEUTSCHE BANK TRUST COMPANY DELAWARE, not in its individual capacity but solely as Owner Trustee | | |
By: | | | |
| Name: | | | |
| Title: | | | |
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By: | | | |
| Name: | | |
| Title: | | | |
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INDENTURE TRUSTEES CERTIFICATE OF AUTHENTICATION
This is one of the Notes designed above and referred to in the within-mentioned Indenture.
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| THE BANK OF NEW YORK TRUST COMPANY, N.A., not in its individual capacity but solely as Indenture Trustee | |
| By: | | |
| | Name: | | |
| | Title: | | |
C-3-3
REVERSE OF NOTE
This Note is one of a duly authorized issue of Notes of the Issuing Entity, designated as [Class A-2a] [Class A-4a] % Asset Backed Notes (herein called the [Class A-2a] [Class A-4a] Notes), all issued under an indenture, dated as of August 23, 2007 (such indenture, as amended or supplemented, is herein called the Indenture), between the Issuing Entity and The Bank of New York Trust Company, N.A., as trustee (the Indenture Trustee, which term includes any successor trustee under the Indenture), to which Indenture and all indentures supplemental thereto reference is hereby made for a statement of the respective rights and obligations thereunder of the Issuing Entity, the Indenture Trustee and the Noteholders. The [Class A-2a] [Class A-4a] Notes are one of several duly authorized classes of Notes of the Issuing Entity issued pursuant to the Indenture (collectively, as to all Notes of all such classes, the Notes). The Notes are governed by and subject to all terms of the Indenture (which terms are incorporated herein and made a part hereof), to which Indenture the Holder of this Note by virtue of acceptance hereof assents and by which such Holder is bound. All capitalized terms used and not otherwise defined in this Note that are defined in the Indenture shall have the meanings assigned to them in or pursuant to the Indenture.
The [Class A-2a] [Class A-4a] Notes and all other Notes issued pursuant to the Indenture are and will be equally and ratably secured by the Collateral pledged as security therefor as provided in the Indenture.
Each Noteholder or Note Owner will be deemed to represent and warrant that either (1) it is not acquiring the Note with (i) the assets of an employee benefit plan (as defined in Section 3(3) of ERISA), that is subject to provisions of Title I of ERISA, (ii) a plan described in Section 4975(e)(1) of the Code, (iii) an entity whose underlying assets include plan assets by reason of an employee benefit plans or a plans investment in the entity or (iv) any other plan that is subject to any law that is substantially similar to ERISA or Section 4975 of the Code, or (2) the acquisition and holding of the Note will not give rise to a non-exempt prohibited transaction under Section 406(a) of ERISA or Section 4975 of the Code or a violation of any substantially similar applicable law.
Each Noteholder or Note Owner, by acceptance of a Note or, in the case of a Note Owner, a beneficial interest in a Note, covenants and agrees that no recourse may be taken, directly or indirectly, with respect to the obligations of the Issuing Entity, the Owner Trustee or the Indenture Trustee on the Notes or under the Indenture or any certificate or other writing delivered in connection therewith, against (i) the Indenture Trustee or the Owner Trustee in their individual capacities, (ii) the Depositor or any other owner of a beneficial interest in the Issuing Entity or (iii) any partner, owner, beneficiary, agent, officer, director or employee of the Indenture Trustee or the Owner Trustee in their individual capacities, any holder of a beneficial interest in the Issuing Entity, the Owner Trustee or the Indenture Trustee or of any successor or assign of the Indenture Trustee or the Owner Trustee in their individual capacities, except as any such Person may have expressly agreed and except that any such partner, owner or beneficiary shall be fully liable, to the extent provided by applicable law, for any unpaid consideration for stock, unpaid capital contribution or failure to pay any instalment or call owing to such entity.
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Each Noteholder or Note Owner, by acceptance of a Note or, in the case of a Note Owner, a beneficial interest in a Note, covenants and agrees that by accepting the benefits of the Indenture such Noteholder or Note Owner will not, prior to the date which is one year and one day after the termination of the Indenture with respect to the Issuing Entity, acquiesce, petition or otherwise invoke or cause the Depositor or the Issuing Entity to invoke the process of any court or government authority for the purpose of commencing or sustaining a case against the Depositor or the Issuing Entity under any federal or state bankruptcy, insolvency or similar law or appointing a receiver, liquidator, assignee, trustee, custodian, sequestrator or other similar official of the Depositor or the Issuing Entity or any substantial part of its property, or ordering the winding up or liquidation of the affairs of the Depositor or the Issuing Entity.
Each Noteholder, by acceptance of a Note or, in the case of a Note Owner, a beneficial interest in a Note, expresses its intention that this Note qualifies under applicable tax law as indebtedness secured by the Collateral and, unless otherwise required by appropriate taxing authorities, agrees to treat the Notes as indebtedness secured by the Collateral for the purpose of federal income taxes, state and local income and franchise taxes, Michigan single business tax, and any other taxes imposed upon, measured by or based upon gross or net income.
Prior to the due presentment for registration of transfer of this Note, the Issuing Entity, the Indenture Trustee and any agent of the Issuing Entity or the Indenture Trustee may treat the Person in whose name this Note (as of the day of determination or as of such other date as may be specified in the Indenture) is registered as the owner hereof for all purposes, whether or not this Note shall be overdue, and none of the Issuing Entity, the Indenture Trustee or any such agent shall be affected by notice to the contrary.
The Indenture permits, with certain exceptions as therein provided, the amendment thereof and the modification of the rights and obligations of the Issuing Entity and the rights of the Noteholders under the Indenture at any time by the Issuing Entity with the consent of the Holders of Notes representing a majority of the Outstanding Amount of the Controlling Class. The Indenture also contains provisions permitting the Holders of Notes representing specified percentages of the Outstanding Amount of the Controlling Class, on behalf of the Holders of all the Notes, to waive compliance by the Issuing Entity with certain provisions of the Indenture and certain past defaults under the Indenture and their consequences. Any such consent or waiver by the Holder of this Note (or any one of more Predecessor Notes) shall be conclusive and binding upon such Holder and upon all future Holders of this Note and of any Note issued upon the registration of transfer hereof or in exchange hereof or in lieu hereof whether or not notation of such consent or waiver is made upon this Note. The Indenture also permits the Indenture Trustee to amend or waive certain terms and conditions set forth in the Indenture without the consent of the Noteholders.
The term Issuing Entity as used in this Note includes any successor to the Issuing Entity under the Indenture.
The Issuing Entity is permitted by the Indenture, under certain circumstances, to merge or consolidate, subject to the rights of the Indenture Trustee and the Holders of Notes under the Indenture.
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The Notes are issuable only in registered form in denominations as provided in the Indenture, subject to certain limitations therein set forth.
This Note and the Indenture shall be construed in accordance with the laws of the State of New York, without reference to its conflict of law provisions, and the obligations, rights and remedies of the parties hereunder and thereunder shall be determined in accordance with such laws.
No reference herein to the Indenture and no provision of this Note or of the Indenture shall alter or impair the obligation of the Issuing Entity, which is absolute and unconditional, to pay the principal of and interest on this Note at the times, place and rate, and in the coin or currency herein prescribed.
Anything herein to the contrary notwithstanding, except as expressly provided in the Basic Documents, neither the Depositor, the Servicer, the Indenture Trustee nor the Owner Trustee in their respective individual capacities, any owner of a beneficial interest in the Issuing Entity, nor any of their respective partners, beneficiaries, agents, officers, directors, employees or successors or assigns, shall be personally liable for, nor shall recourse be had to any of them for, the payment of principal of or interest on, or performance of, or omission to perform, any of the covenants, obligations or indemnifications contained in this Note or the Indenture, it being expressly understood that said covenants, obligations and indemnifications have been made by the Owner Trustee solely as the Owner Trustee in the assets of the Issuing Entity. The Holder of this Note by the acceptance hereof agrees that, except as expressly provided in the Basic Documents, in the case of an Event of Default under the Indenture, the Holder shall have no claim against any of the foregoing for any deficiency, loss or claim therefrom; provided, however, that nothing contained herein shall be taken to prevent recourse to, and enforcement against, the assets of the Issuing Entity for any and all liabilities, obligations and undertakings contained in the Indenture or in this Note.
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ASSIGNMENT
Social Security or taxpayer I.D. or other identifying number of assignee
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
(name and address of assignee)
the within Note and all rights thereunder, and hereby irrevocably constitutes and appoints , as attorney, to transfer said Note on the books kept for registration thereof, with full power of substitution in the premises.
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Dated: | | | | | | 3 |
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| | | | Signature Guaranteed: | | |
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3 | | NOTE: The signature to this assignment must correspond with the name of the registered owner as it appears on the face of the within Note in every particular, without alteration, enlargement or any change whatsoever. |
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EXHIBIT C-4
FORM OF CLASS A-PT, CLASS A-2B, CLASS A-3 AND CLASS A-4B FLOATING RATE ASSET BACKED
NOTES
NO. R-
SEE REVERSE FOR CERTAIN DEFINITIONS
CUSIP NO.
Unless this Note is presented by an authorized representative of The Depository Trust Company, a New York corporation (DTC), to the Issuing Entity or its agent for registration of transfer, exchange or payment, and any Note issued is registered in the name of Cede & Co. or in such other name as is requested by an authorized representative of DTC (and any payment is made to Cede & Co. or to such other entity as is requested by an authorized representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner hereof, Cede & Co., has an interest herein.
THE PRINCIPAL OF THIS NOTE IS PAYABLE AS SET FORTH HEREIN. ACCORDINGLY, THE OUTSTANDING PRINCIPAL AMOUNT OF THIS NOTE AT ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ON THE FACE HEREOF.
CAPITAL AUTO RECEIVABLES ASSET TRUST 2007-2
[CLASS A-PT] [CLASS A-2B] [CLASS A-3] [CLASS A-4B] FLOATING RATE ASSET
BACKED NOTES
CAPITAL AUTO RECEIVABLES ASSET TRUST 2007-2, a statutory trust organized and existing under the laws of the State of Delaware (herein referred to as the Issuing Entity), for value received, hereby promises to pay to Cede & Co., or registered assigns, the principal sum of DOLLARS ($ ) or such lesser outstanding amount as may be payable in accordance with the Indenture (as defined on the reverse side of this Note), on each Distribution Date, in an amount equal to the result obtained by multiplying (i) a fraction, the numerator of which is the initial principal amount hereof and the denominator of which is the initial aggregate principal amount for such [Class A-PT] [Class A-2b] [Class A-3] [Class A-4b] Notes, by (ii) the aggregate amount, if any, payable on such Distribution Date from the Note Distribution Account in respect of principal on the [Class A-PT] [Class A-2b] [Class A-3] [Class A-4b] Notes pursuant to Sections 2.7, 3.1 and 8.2(c) of the Indenture; provided, however, that the entire unpaid principal amount of this Note shall be due and payable on [ , ] (the Final Scheduled Distribution Date) unless the Note is earlier redeemed pursuant to Section 10.1 of the Indenture, in which case such unpaid principal amount shall be
C-4-1
due on the Redemption Date. The Issuing Entity shall pay interest on this Note on each Distribution Date until the principal of this Note is paid or made available for payment on the principal amount of this Note outstanding on the preceding Distribution Date (after giving effect to all payments of principal made on the preceding Distribution Date (or, for the initial Distribution Date, the outstanding principal balance on the Closing Date)). Interest on the [Class A-PT] [Class A-2b] [Class A-3] [Class A-4b] Notes will accrue from and including the Closing Date and will be payable on each Distribution Date in an amount equal to the Note Class Interest Distributable Amount for such Distribution Date for the [Class A-PT] [Class A-2b] [Class A-3] [Class A-4b] Notes. Interest will be computed on the basis of actual number of days elapsed from and including the prior Distribution Date (or, in the case of the first Distribution Date, from and including the Closing Date) to but excluding the current Distribution Date and a 360-day year. Such principal of and interest on this Note shall be paid in the manner specified on the reverse hereof. All interest payments on each class of Notes on any Distribution Date shall be made pro rata to the Noteholders of such class entitled thereto.
The principal of and interest on this Note are payable in such coin or currency of the United States of America which, at the time of payment, is legal tender for payment of public and private debts. All payments made by the Issuing Entity with respect to this [Class A-PT] [Class A-2b] [Class A-3] [Class A-4b] Note shall be applied first to interest due and payable on this Note as provided above and then to the unpaid principal of this Note.
Reference is made to the further provisions of this Note set forth on the reverse hereof, which shall have the same effect as though fully set forth on the face of this Note.
Unless the certificate of authentication hereon has been executed by the Indenture Trustee whose name appears below by manual signature, this Note shall not be entitled to any benefit under the Indenture referred to on the reverse hereof or be valid or obligatory for any purpose.
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IN WITNESS WHEREOF, the Issuing Entity has caused this instrument to be signed, manually or in facsimile, by its Authorized Officer.
Dated: August 23, 2007
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CAPITAL AUTO RECEIVABLES ASSET TRUST 2007-2 By: DEUTSCHE BANK TRUST COMPANY DELAWARE, not in its individual capacity but solely as Owner Trustee | | |
By: | | | |
| Name: | | | |
| Title: | | | |
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By: | | | |
| Name: | | | |
| Title: | | | |
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INDENTURE TRUSTEES CERTIFICATE OF AUTHENTICATION
This is one of the Notes designed above and referred to in the within-mentioned Indenture.
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| THE BANK OF NEW YORK TRUST COMPANY, N.A., not in its individual capacity but solely as Indenture Trustee | |
| By: | | |
| | Name: | | |
| | Title: | | |
C-4-3
REVERSE OF NOTE
This Note is one of a duly authorized issue of Notes of the Issuing Entity, designated as its [Class A-PT] [Class A-2b] [Class A-3] [Class A-4b] Floating Rate Asset Backed Notes (herein called the [Class A-PT Notes] [Class A-2b Notes] [Class A-3 Notes] [Class A-4b Notes), all issued under an indenture, dated as of August 23, 2007 (such indenture, as amended or supplemented, is herein called the Indenture), between the Issuing Entity and The Bank of New York Trust Company, N.A., as trustee (the Indenture Trustee, which term includes any successor trustee under the Indenture), to which Indenture and all indentures supplemental thereto reference is hereby made for a statement of the respective rights and obligations thereunder of the Issuing Entity, the Indenture Trustee and the Noteholders. The [Class A-PT] [Class A-2b] [Class A-3] [Class A-4b] Notes are one of several duly authorized classes of Notes of the Issuing Entity issued pursuant to the Indenture (collectively, as to all Notes of all such classes, the Notes). The Notes are governed by and subject to all terms of the Indenture (which terms are incorporated herein and made a part hereof), to which Indenture the Holder of this Note by virtue of acceptance hereof assents and by which such Holder is bound. All capitalized terms used and not otherwise defined in this Note that are defined in the Indenture shall have the meanings assigned to them in or pursuant to the Indenture.
The [Class A-PT] [Class A-2b] [Class A-3] [Class A-4b] Notes and all other Notes issued pursuant to the Indenture are and will be equally and ratably secured by the Collateral pledged as security therefor as provided in the Indenture.
Each Noteholder or Note Owner will be deemed to represent and warrant that either (1) it is not acquiring the Note with (i) the assets of an employee benefit plan (as defined in Section 3(3) of ERISA), that is subject to provisions of Title I of ERISA, (ii) a plan described in Section 4975(e)(1) of the Code, (iii) an entity whose underlying assets include plan assets by reason of an employee benefit plans or a plans investment in the entity or (iv) any other plan that is subject to any law that is substantially similar to ERISA or Section 4975 of the Code, or (2) the acquisition and holding of the Note will not give rise to a non-exempt prohibited transaction under Section 406(a) of ERISA or Section 4975 of the Code or a violation of any substantially similar applicable law.
Each Noteholder or Note Owner, by acceptance of a Note or, in the case of a Note Owner, a beneficial interest in a Note, covenants and agrees that no recourse may be taken, directly or indirectly, with respect to the obligations of the Issuing Entity, the Owner Trustee or the Indenture Trustee on the Notes or under the Indenture or any certificate or other writing delivered in connection therewith, against (i) the Indenture Trustee or the Owner Trustee in their individual capacities, (ii) the Depositor or any other owner of a beneficial interest in the Issuing Entity or (iii) any partner, owner, beneficiary, agent, officer, director or employee of the Indenture Trustee or the Owner Trustee in their individual capacities, any holder of a beneficial interest in the Issuing Entity, the Owner Trustee or the Indenture Trustee or of any successor or assign of the Indenture Trustee or the Owner Trustee in their individual capacities, except as any such Person may have expressly agreed and except that any such partner, owner or beneficiary shall be fully liable, to the extent provided by applicable law, for any unpaid consideration for stock, unpaid capital contribution or failure to pay any instalment or call owing to such entity.
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Each Noteholder or Note Owner, by acceptance of a Note or, in the case of a Note Owner, a beneficial interest in a Note, covenants and agrees that by accepting the benefits of the Indenture such Noteholder or Note Owner will not, prior to the date which is one year and one day after the termination of the Indenture with respect to the Issuing Entity, acquiesce, petition or otherwise invoke or cause the Depositor or the Issuing Entity to invoke the process of any court or government authority for the purpose of commencing or sustaining a case against the Depositor or the Issuing Entity under any federal or state bankruptcy, insolvency or similar law or appointing a receiver, liquidator, assignee, trustee, custodian, sequestrator or other similar official of the Depositor or the Issuing Entity or any substantial part of its property, or ordering the winding up or liquidation of the affairs of the Depositor or the Issuing Entity.
Each Noteholder, by acceptance of a Note or, in the case of a Note Owner, a beneficial interest in a Note, expresses its intention that this Note qualifies under applicable tax law as indebtedness secured by the Collateral and, unless otherwise required by appropriate taxing authorities, agrees to treat the Notes as indebtedness secured by the Collateral for the purpose of federal income taxes, state and local income and franchise taxes, Michigan single business tax, and any other taxes imposed upon, measured by or based upon gross or net income.
Prior to the due presentment for registration of transfer of this Note, the Issuing Entity, the Indenture Trustee and any agent of the Issuing Entity or the Indenture Trustee may treat the Person in whose name this Note (as of the day of determination or as of such other date as may be specified in the Indenture) is registered as the owner hereof for all purposes, whether or not this Note shall be overdue, and none of the Issuing Entity, the Indenture Trustee or any such agent shall be affected by notice to the contrary.
The Indenture permits, with certain exceptions as therein provided, the amendment thereof and the modification of the rights and obligations of the Issuing Entity and the rights of the Noteholders under the Indenture at any time by the Issuing Entity with the consent of the Holders of Notes representing a majority of the Outstanding Amount of all the Controlling Class. The Indenture also contains provisions permitting the Holders of Notes representing specified percentages of the Outstanding Amount of the Controlling Class, on behalf of the Holders of all the Notes, to waive compliance by the Issuing Entity with certain provisions of the Indenture and certain past defaults under the Indenture and their consequences. Any such consent or waiver by the Holder of this Note (or any one of more Predecessor Notes) shall be conclusive and binding upon such Holder and upon all future Holders of this Note and of any Note issued upon the registration of transfer hereof or in exchange hereof or in lieu hereof whether or not notation of such consent or waiver is made upon this Note. The Indenture also permits the Indenture Trustee to amend or waive certain terms and conditions set forth in the Indenture without the consent of the Noteholders.
The term Issuing Entity as used in this Note includes any successor to the Issuing Entity under the Indenture.
The Issuing Entity is permitted by the Indenture, under certain circumstances, to merge or consolidate, subject to the rights of the Indenture Trustee and the Holders of Notes under the Indenture.
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The Notes are issuable only in registered form in denominations as provided in the Indenture, subject to certain limitations therein set forth.
This Note and the Indenture shall be construed in accordance with the laws of the State of New York, without reference to its conflict of law provisions, and the obligations, rights and remedies of the parties hereunder and thereunder shall be determined in accordance with such laws.
No reference herein to the Indenture and no provision of this Note or of the Indenture shall alter or impair the obligation of the Issuing Entity, which is absolute and unconditional, to pay the principal of and interest on this Note at the times, place and rate, and in the coin or currency herein prescribed.
Anything herein to the contrary notwithstanding, except as expressly provided in the Basic Documents, neither the Depositor, the Servicer, the Indenture Trustee nor the Owner Trustee in their respective individual capacities, any owner of a beneficial interest in the Issuing Entity, nor any of their respective partners, beneficiaries, agents, officers, directors, employees or successors or assigns, shall be personally liable for, nor shall recourse be had to any of them for, the payment of principal of or interest on, or performance of, or omission to perform, any of the covenants, obligations or indemnifications contained in this Note or the Indenture, it being expressly understood that said covenants, obligations and indemnifications have been made by the Owner Trustee solely as the Owner Trustee in the assets of the Issuing Entity. The Holder of this Note by the acceptance hereof agrees that, except as expressly provided in the Basic Documents, in the case of an Event of Default under the Indenture, the Holder shall have no claim against any of the foregoing for any deficiency, loss or claim therefrom; provided, however, that nothing contained herein shall be taken to prevent recourse to, and enforcement against, the assets of the Issuing Entity for any and all liabilities, obligations and undertakings contained in the Indenture or in this Note.
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ASSIGNMENT
Social Security or taxpayer I.D. or other identifying number of assignee
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
(name and address of assignee)
the within Note and all rights thereunder, and hereby irrevocably constitutes and appoints , as attorney, to transfer said Note on the books kept for registration thereof, with full power of substitution in the premises.
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Dated: | | | | | | 4 |
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| | | | Signature Guaranteed: | | |
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4 | | NOTE: The signature to this assignment must correspond with the name of the registered owner as it appears on the face of the within Note in every particular, without alteration, enlargement or any change whatsoever. |
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EXHIBIT C-5
FORM OF CLASS B AND CLASS C FIXED RATE ASSET BACKED NOTES,
RULE 144A
NO. R-
SEE REVERSE FOR CERTAIN DEFINITIONS
CUSIP NO.
THIS RULE 144A GLOBAL [CLASS B] [CLASS C] NOTE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE U.S. SECURITIES ACT), OR UNDER THE SECURITIES OR BLUE SKY LAWS OF ANY STATE IN THE UNITED STATES OR ANY FOREIGN SECURITIES LAWS. BY ITS ACCEPTANCE OF THIS RULE 144A GLOBAL [CLASS B] [CLASS C] NOTE (OR INTEREST THEREIN) THE HOLDER OF THIS RULE 144A GLOBAL [CLASS B] [CLASS C] NOTE (OR SUCH INTEREST) IS DEEMED TO REPRESENT TO THE DEPOSITOR AND THE INDENTURE TRUSTEE THAT IT IS A QUALIFIED INSTITUTIONAL BUYER AS DEFINED IN RULE 144A UNDER THE U.S. SECURITIES ACT AND IS ACQUIRING THIS RULE 144A GLOBAL [CLASS B] [CLASS C] NOTE (OR INTEREST THEREIN) FOR ITS OWN ACCOUNT (AND NOT FOR THE ACCOUNT OF OTHERS) OR AS A FIDUCIARY OR AGENT FOR OTHERS (WHICH OTHERS ALSO ARE QUALIFIED INSTITUTIONAL BUYERS).
NO SALE, PLEDGE OR OTHER TRANSFER OF THIS RULE 144A GLOBAL [CLASS B] [CLASS C] NOTE (OR INTEREST THEREIN) MAY BE MADE BY ANY PERSON UNLESS EITHER (i) SUCH SALE, PLEDGE OR OTHER TRANSFER IS MADE TO A PERSON WHOM THE TRANSFEROR REASONABLY BELIEVES AFTER DUE INQUIRY IS A QUALIFIED INSTITUTIONAL BUYER (AS DEFINED IN RULE 144A), ACTING FOR ITS OWN ACCOUNT (AND NOT FOR THE ACCOUNT OF OTHERS) OR AS A FIDUCIARY OR AGENT FOR OTHERS (WHICH OTHERS ALSO ARE QUALIFIED INSTITUTIONAL BUYERS) TO WHOM NOTICE IS GIVEN THAT THE SALE, PLEDGE OR OTHER TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (ii) SUCH SALE, PLEDGE OR OTHER TRANSFER OCCURS OUTSIDE OF THE UNITED STATES TO A NON-U.S. PERSON IN ACCORDANCE WITH RULE 903 OR RULE 904 OF REGULATION S OF THE U.S. SECURITIES ACT AND THAT PERSON DELIVERS ANY NECESSARY CERTIFICATIONS PURSUANT TO TERMS OF THE INDENTURE, OR (iii) SUCH SALE, PLEDGE OR OTHER TRANSFER IS OTHERWISE MADE IN A TRANSACTION EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE U.S. SECURITIES ACT, IN WHICH CASE (A) THE INDENTURE TRUSTEE SHALL REQUIRE THAT BOTH THE PROSPECTIVE TRANSFEROR AND THE PROSPECTIVE TRANSFEREE CERTIFY TO THE INDENTURE TRUSTEE AND THE DEPOSITOR IN
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WRITING THE FACTS SURROUNDING SUCH TRANSFER, WHICH CERTIFICATION SHALL BE IN FORM AND SUBSTANCE SATISFACTORY TO THE INDENTURE TRUSTEE AND THE DEPOSITOR, AND (B) THE INDENTURE TRUSTEE SHALL REQUIRE A WRITTEN OPINION OF COUNSEL (WHICH SHALL NOT BE AT THE EXPENSE OF THE DEPOSITOR, THE ADMINISTRATOR, THE SERVICER, THE ISSUING ENTITY OR THE INDENTURE TRUSTEE) SATISFACTORY TO THE DEPOSITOR AND THE INDENTURE TRUSTEE TO THE EFFECT THAT SUCH TRANSFER WILL NOT VIOLATE THE U.S. SECURITIES ACT.
EACH HOLDER OF A [CLASS B] [CLASS C] NOTE WILL BE DEEMED TO REPRESENT AND WARRANT THAT EITHER (1) IT IS NOT (a) AN EMPLOYEE BENEFIT PLAN (AS DEFINED IN SECTION 3(3) OF THE UNITED STATES EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED (ERISA), THAT IS SUBJECT TO PROVISIONS OF TITLE I OF ERISA, (b) A PLAN DESCRIBED IN SECTION 4975(e)(1) OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE CODE), (c) ANY ENTITY WHOSE UNDERLYING ASSETS INCLUDE PLAN ASSETS BY REASON OF AN EMPLOYEE BENEFIT PLANS OR A PLANS INVESTMENT IN THE ENTITY OR (d) ANY OTHER PLAN THAT IS SUBJECT TO ANY LAW THAT IS SUBSTANTIALLY SIMILAR TO ERISA OR SECTION 4975 OF THE CODE OR (2) THE PURCHASE AND HOLDING OF THE [CLASS B] [CLASS C] NOTE WILL NOT RESULT IN A NON-EXEMPT PROHIBITED TRANSACTION UNDER SECTION 406(a) OF ERISA OR SECTION 4975 OF THE CODE OR A VIOLATION OF ANY SUBSTANTIALLY SIMILAR APPLICABLE LAW.
EACH [CLASS B] [CLASS C] NOTEHOLDER OR NOTE OWNER, BY ACCEPTANCE OF A [CLASS B] [CLASS C] NOTE OR, IN THE CASE OF A NOTE OWNER, A BENEFICIAL INTEREST IN A [CLASS B] [CLASS C] NOTE, COVENANTS AND AGREES THAT NO RECOURSE MAY BE TAKEN, DIRECTLY OR INDIRECTLY, WITH RESPECT TO THE OBLIGATIONS OF THE ISSUING ENTITY, THE CARAT OWNER TRUSTEE OR THE INDENTURE TRUSTEE ON THE [CLASS B] [CLASS C] NOTES OR UNDER THE INDENTURE OR ANY CERTIFICATE OR OTHER WRITING DELIVERED IN CONNECTION THEREWITH, AGAINST (i) THE INDENTURE TRUSTEE OR THE CARAT OWNER TRUSTEE IN THEIR INDIVIDUAL CAPACITIES, (ii) THE DEPOSITOR OR ANY OTHER OWNER OF A BENEFICIAL INTEREST IN THE ISSUING ENTITY OR (iii) ANY PARTNER, OWNER, BENEFICIARY, AGENT, OFFICER, DIRECTOR OR EMPLOYEE OF THE INDENTURE TRUSTEE OR THE CARAT OWNER TRUSTEE IN THEIR INDIVIDUAL CAPACITIES, ANY HOLDER OF A BENEFICIAL INTEREST IN THE ISSUING ENTITY, THE CARAT OWNER TRUSTEE OR THE INDENTURE TRUSTEE OR OF ANY SUCCESSOR OR ASSIGN OF THE INDENTURE TRUSTEE OR THE CARAT OWNER TRUSTEE IN THEIR INDIVIDUAL CAPACITIES, EXCEPT AS ANY SUCH PERSON MAY HAVE EXPRESSLY AGREED AND EXCEPT THAT ANY SUCH PARTNER, OWNER OR BENEFICIARY SHALL BE FULLY LIABLE, TO THE EXTENT PROVIDED BY APPLICABLE LAW, FOR ANY UNPAID CONSIDERATION FOR STOCK, UNPAID CAPITAL CONTRIBUTION OR FAILURE TO PAY ANY INSTALLMENT OR CALL OWING TO SUCH ENTITY.
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EACH [CLASS B] [CLASS C] NOTEHOLDER OR NOTE OWNER, BY ACCEPTANCE OF A [CLASS B] [CLASS C] NOTE OR, IN THE CASE OF A NOTE OWNER, A BENEFICIAL INTEREST IN A [CLASS B] [CLASS C] NOTE, COVENANTS AND AGREES THAT BY ACCEPTING THE BENEFITS OF THE INDENTURE SUCH [CLASS B] [CLASS C] NOTEHOLDER WILL NOT, PRIOR TO THE DATE WHICH IS ONE YEAR AND ONE DAY AFTER THE TERMINATION OF THE INDENTURE WITH RESPECT TO THE ISSUING ENTITY, ACQUIESCE, PETITION OR OTHERWISE INVOKE OR CAUSE THE DEPOSITOR OR THE ISSUING ENTITY TO INVOKE THE PROCESS OF ANY COURT OR GOVERNMENT AUTHORITY FOR THE PURPOSE OF COMMENCING OR SUSTAINING A CASE AGAINST THE DEPOSITOR OR THE ISSUING ENTITY UNDER ANY FEDERAL OR STATE BANKRUPTCY, INSOLVENCY OR SIMILAR LAW OR APPOINTING A RECEIVER, LIQUIDATOR, ASSIGNEE, TRUSTEE, CUSTODIAN, SEQUESTRATOR OR OTHER SIMILAR OFFICIAL OF THE DEPOSITOR OR THE ISSUING ENTITY OR ANY SUBSTANTIAL PART OF ITS PROPERTY, OR ORDERING THE WINDING UP OR LIQUIDATION OF THE AFFAIRS OF THE DEPOSITOR OR THE ISSUING ENTITY.
EACH [CLASS B] [CLASS C] NOTEHOLDER OR NOTE OWNER, BY ACCEPTANCE OF A CLASS A 1 NOTE OR, IN THE CASE OF A NOTE OWNER, A BENEFICIAL INTEREST IN A [CLASS B] [CLASS C] NOTE, EXPRESSES ITS INTENTION THAT THIS [CLASS B] [CLASS C] NOTE QUALIFIES UNDER APPLICABLE TAX LAW AS INDEBTEDNESS SECURED BY THE COLLATERAL AND, UNLESS OTHERWISE REQUIRED BY APPROPRIATE TAXING AUTHORITIES, AGREES TO TREAT THE [CLASS B] [CLASS C] NOTES AS INDEBTEDNESS SECURED BY THE COLLATERAL FOR THE PURPOSE OF FEDERAL INCOME TAXES, STATE AND LOCAL INCOME AND FRANCHISE TAXES, MICHIGAN SINGLE BUSINESS TAX, AND ANY OTHER TAXES IMPOSED UPON, MEASURED BY OR BASED UPON GROSS OR NET INCOME.
CAPITAL AUTO RECEIVABLES ASSET TRUST 2007-2
[CLASS B] [CLASS C] [ ]% ASSET BACKED NOTES
CAPITAL AUTO RECEIVABLES ASSET TRUST 2007-2, a statutory trust organized and existing under the laws of the State of Delaware (herein referred to as the Issuing Entity), for value received, hereby promises to pay to Cede & Co., or registered assigns, the principal sum of DOLLARS ($ ) or such lesser outstanding amount as may be payable in accordance with the Indenture (as defined on the reverse side of this Note), on each Distribution Date, in an amount equal to the result obtained by multiplying (i) a fraction, the numerator of which is the initial principal amount hereof and the denominator of which is the aggregate initial principal amount for such [Class B] [Class C] Notes by (ii) the aggregate amount, if any, payable on such Distribution Date from the Note Distribution Account in respect of principal on the [Class B] [Class C] Notes pursuant to Sections 2.7, 3.1 and 8.2(c) of the Indenture; provided, however, that the entire unpaid principal amount of this Note shall be due and payable on February 18, 2014 (the Final Scheduled Distribution Date) unless the Note is earlier redeemed pursuant to Section 10.1 of the Indenture, in which case such unpaid principal amount shall be due on the Redemption Date. The Issuing Entity shall pay interest on
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this [Class B] [Class C] Note at the rate per annum shown above on each Distribution Date until the principal of this [Class B] [Class C] Note is paid or made available for payment on the principal amount of this [Class B] [Class C] Note outstanding on the preceding Distribution Date (after giving effect to all payments of principal made on the preceding Distribution Date (or, for the initial Distribution Date, the outstanding principal balance on the Closing Date)). Interest on the [Class B] [Class C] Notes will accrue from and including the Closing Date and will be payable on each Distribution Date in an amount equal to the Note Class Interest Distributable Amount for such Distribution Date for the [Class B] [Class C] Notes. Interest will be computed on the basis of a 360-day year of twelve 30-day months (or, in the case of the initial Distribution Date, a 22 day period). Such principal of and interest on this [Class B] [Class C] Note shall be paid in the manner specified on the reverse hereof. All interest payments on each class of Notes on any Distribution Date shall be made pro rata to the Noteholders of such class entitled thereto.
The principal of and interest on this [Class B] [Class C] Note are payable in such coin or currency of the United States of America which, at the time of payment, is legal tender for payment of public and private debts. All payments made by the Issuing Entity with respect to this [Class B] [Class C] Note shall be applied first to interest due and payable on this [Class B] [Class C] Note as provided above and then to the unpaid principal of this [Class B] [Class C] Note.
Reference is made to the further provisions of this [Class B] [Class C] Note set forth on the reverse hereof, which shall have the same effect as though fully set forth on the face of this [Class B] [Class C] Note.
Unless the certificate of authentication hereon has been executed by the Indenture Trustee whose name appears below by manual signature, this [Class B] [Class C] Note shall not be entitled to any benefit under the Indenture referred to on the reverse hereof or be valid or obligatory for any purpose.
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IN WITNESS WHEREOF, the Issuing Entity has caused this instrument to be signed, manually or in facsimile, by its Authorized Officer.
Dated: August 23, 2007
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CAPITAL AUTO RECEIVABLES ASSET TRUST 2007-2 By: DEUTSCHE BANK TRUST COMPANY DELAWARE, not in its individual capacity but solely as Owner Trustee | | |
By: | | | |
| Name: | | | |
| Title: | | | |
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By: | | | |
| Name: | | | |
| Title: | | | |
|
INDENTURE TRUSTEES CERTIFICATE OF AUTHENTICATION
This is one of the Notes designed above and referred to in the within-mentioned Indenture.
| | | | |
| THE BANK OF NEW YORK TRUST COMPANY, N.A., not in its individual capacity but solely as Indenture Trustee | |
| By: | | |
| | Name: | | |
| | Title: | | |
|
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REVERSE OF NOTE
This Note is one of a duly authorized issue of Notes of the Issuing Entity, designated as its [Class B] [Class C] [___]% Asset Backed Notes (herein called the [Class B] [Class C] Notes), all issued under an indenture, dated as of August 23, 2007 (such indenture, as amended or supplemented, is herein called the Indenture), between the Issuing Entity and The Bank of New York Trust Company, N.A., as trustee (the Indenture Trustee, which term includes any successor trustee under the Indenture), to which Indenture and all indentures supplemental thereto reference is hereby made for a statement of the respective rights and obligations thereunder of the Issuing Entity, the Indenture Trustee and the Noteholders. The [Class B] [Class C] Notes are one of several duly authorized classes of Notes of the Issuing Entity issued pursuant to the Indenture (collectively, as to all Notes of all such classes, the Notes). The Notes are governed by and subject to all terms of the Indenture (which terms are incorporated herein and made a part hereof), to which Indenture the Holder of this [Class B] [Class C] Note by virtue of acceptance hereof assents and by which such Holder is bound. All capitalized terms used and not otherwise defined in this [Class B] [Class C] Note that are defined in the Indenture shall have the meanings assigned to them in or pursuant to the Indenture.
The [Class B] [Class C] Notes and all other Notes issued pursuant to the Indenture are and will be equally and ratably secured by the Collateral pledged as security therefor as provided in the Indenture.
Each Noteholder or Note Owner will be deemed to represent and warrant that either (1) it is not acquiring the Note with (i) the assets of an employee benefit plan (as defined in Section 3(3) of ERISA), that is subject to provisions of Title I of ERISA, (ii) a plan described in Section 4975(e)(1) of the Code, (iii) an entity whose underlying assets include plan assets by reason of an employee benefit plans or a plans investment in the entity or (iv) any other plan that is subject to any law that is substantially similar to ERISA or Section 4975 of the Code, or (2) the acquisition and holding of the Note will not give rise to a non-exempt prohibited transaction under Section 406(a) of ERISA or Section 4975 of the Code or a violation of any substantially similar applicable law.
Each Noteholder or Note Owner, by acceptance of a [Class B] [Class C] Note or, in the case of a Note Owner, a beneficial interest in a [Class B] [Class C] Note, covenants and agrees that no recourse may be taken, directly or indirectly, with respect to the obligations of the Issuing Entity, the Owner Trustee or the Indenture Trustee on the Notes or under the Indenture or any certificate or other writing delivered in connection therewith, against (i) the Indenture Trustee or the Owner Trustee in their individual capacities, (ii) the Depositor or any other owner of a beneficial interest in the Issuing Entity or (iii) any partner, owner, beneficiary, agent, officer, director or employee of the Indenture Trustee or the Owner Trustee in their individual capacities, any holder of a beneficial interest in the Issuing Entity, the Owner Trustee or the Indenture Trustee or of any successor or assign of the Indenture Trustee or the Owner Trustee in their individual capacities, except as any such Person may have expressly agreed and except that any such partner, owner or beneficiary shall be fully liable, to the extent provided by applicable law, for any unpaid consideration for stock, unpaid capital contribution or failure to pay any instalment or call owing to such entity.
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Each Noteholder or Note Owner, by acceptance of a [Class B] [Class C] Note or, in the case of a Note Owner, a beneficial interest in a [Class B] [Class C] Note, covenants and agrees that by accepting the benefits of the Indenture such Noteholder or Note Owner will not, prior to the date which is one year and one day after the termination of the Indenture with respect to the Issuing Entity, acquiesce, petition or otherwise invoke or cause the Depositor or the Issuing Entity to invoke the process of any court or government authority for the purpose of commencing or sustaining a case against the Depositor or the Issuing Entity under any federal or state bankruptcy, insolvency or similar law or appointing a receiver, liquidator, assignee, trustee, custodian, sequestrator or other similar official of the Depositor or the Issuing Entity or any substantial part of its property, or ordering the winding up or liquidation of the affairs of the Depositor or the Issuing Entity.
Each Noteholder, by acceptance of a [Class B] [Class C] Note or, in the case of a Note Owner, a beneficial interest in a [Class B] [Class C] Note, expresses its intention that this [Class B] [Class C] Note qualifies under applicable tax law as indebtedness secured by the Collateral and, unless otherwise required by appropriate taxing authorities, agrees to treat the [Class B] [Class C] Notes as indebtedness secured by the Collateral for the purpose of federal income taxes, state and local income and franchise taxes, Michigan single business tax, and any other taxes imposed upon, measured by or based upon gross or net income.
Prior to the due presentment for registration of transfer of this [Class B] [Class C] Note, the Issuing Entity, the Indenture Trustee and any agent of the Issuing Entity or the Indenture Trustee may treat the Person in whose name this [Class B] [Class C] Note (as of the day of determination or as of such other date as may be specified in the Indenture) is registered as the owner hereof for all purposes, whether or not this Note shall be overdue, and none of the Issuing Entity, the Indenture Trustee or any such agent shall be affected by notice to the contrary.
The Indenture permits, with certain exceptions as therein provided, the amendment thereof and the modification of the rights and obligations of the Issuing Entity and the rights of the Noteholders under the Indenture at any time by the Issuing Entity with the consent of the Holders of Notes representing a majority of the Outstanding Amount of the Controlling Class. The Indenture also contains provisions permitting the Holders of Notes representing specified percentages of the Outstanding Amount of the Controlling Class, on behalf of the Holders of all the [Class B] [Class C] Notes, to waive compliance by the Issuing Entity with certain provisions of the Indenture and certain past defaults under the Indenture and their consequences. Any such consent or waiver by the Holder of this [Class B] [Class C] Note (or any one of more Predecessor Notes) shall be conclusive and binding upon such Holder and upon all future Holders of this [Class B] [Class C] Note and of any Note issued upon the registration of transfer hereof or in exchange hereof or in lieu hereof whether or not notation of such consent or waiver is made upon this [Class B] [Class C] Note. The Indenture also permits the Indenture Trustee to amend or waive certain terms and conditions set forth in the Indenture without the consent of the Noteholders.
The term Issuing Entity as used in this [Class B] [Class C] Note includes any successor to the Issuing Entity under the Indenture.
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The Issuing Entity is permitted by the Indenture, under certain circumstances, to merge or consolidate, subject to the rights of the Indenture Trustee and the Holders of Notes under the Indenture.
The Notes are issuable only in registered form in denominations as provided in the Indenture, subject to certain limitations therein set forth.
This [Class B] [Class C] Note and the Indenture shall be construed in accordance with the laws of the State of New York, without reference to its conflict of law provisions, and the obligations, rights and remedies of the parties hereunder and thereunder shall be determined in accordance with such laws.
No reference herein to the Indenture and no provision of this [Class B] [Class C] Note or of the Indenture shall alter or impair the obligation of the Issuing Entity, which is absolute and unconditional, to pay the principal of and interest on this [Class B] [Class C] Note at the times, place and rate, and in the coin or currency herein prescribed.
Anything herein to the contrary notwithstanding, except as expressly provided in the Basic Documents, neither the Depositor, the Servicer, the Indenture Trustee nor the Owner Trustee in their respective individual capacities, any owner of a beneficial interest in the Issuing Entity, nor any of their respective partners, beneficiaries, agents, officers, directors, employees or successors or assigns, shall be personally liable for, nor shall recourse be had to any of them for, the payment of principal of or interest on, or performance of, or omission to perform, any of the covenants, obligations or indemnifications contained in this [Class B] [Class C] Note or the Indenture, it being expressly understood that said covenants, obligations and indemnifications have been made by the Owner Trustee solely as the Owner Trustee in the assets of the Issuing Entity. The Holder of this [Class B] [Class C] Note by the acceptance hereof agrees that, except as expressly provided in the Basic Documents, in the case of an Event of Default under the Indenture, the Holder shall have no claim against any of the foregoing for any deficiency, loss or claim therefrom; provided, however, that nothing contained herein shall be taken to prevent recourse to, and enforcement against, the assets of the Issuing Entity for any and all liabilities, obligations and undertakings contained in the Indenture or in this [Class B] [Class C] Note.
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ASSIGNMENT
Social Security or taxpayer I.D. or other identifying number of assignee
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
(name and address of assignee)
the within Note and all rights thereunder, and hereby irrevocably constitutes and appoints , as attorney, to transfer said Note on the books kept for registration thereof, with full power of substitution in the premises.
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Dated: | | | | | | 5 |
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| | | | Signature Guaranteed: | | |
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5 | | NOTE: The signature to this assignment must correspond with the name of the registered owner as it appears on the face of the within Note in every particular, without alteration, enlargement or any change whatsoever. |
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EXHIBIT C-6
FORM OF CLASS B AND CLASS C FIXED RATE ASSET BACKED NOTES,
REGULATION S
NO. R-
SEE REVERSE FOR CERTAIN DEFINITIONS
CUSIP NO.
THIS PERMANENT REGULATION S GLOBAL [CLASS B] [CLASS C] NOTE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE U.S. SECURITIES ACT), OR UNDER THE SECURITIES OR BLUE SKY LAWS OF ANY STATE IN THE UNITED STATES OR ANY FOREIGN SECURITIES LAWS. BY ITS ACCEPTANCE OF THIS PERMANENT REGULATION S GLOBAL [CLASS B] [CLASS C] NOTE (OR INTEREST THEREIN) THE HOLDER OF THIS PERMANENT REGULATION S GLOBAL [CLASS B] [CLASS C] NOTE (OR SUCH INTEREST) IS DEEMED TO REPRESENT TO THE DEPOSITOR AND THE INDENTURE TRUSTEE THAT IT IS A NON-U.S. PERSON (AS DEFINED IN REGULATION S) WHO ACQUIRED THE [CLASS B] [CLASS C] NOTE OUTSIDE OF THE UNITED STATES IN ACCORDANCE WITH REGULATION S.
NO SALE, PLEDGE OR OTHER TRANSFER OF THIS PERMANENT REGULATION S GLOBAL [CLASS B] [CLASS C] NOTE (OR INTEREST THEREIN) MAY BE MADE BY ANY PERSON UNLESS EITHER (i) SUCH SALE, PLEDGE OR OTHER TRANSFER IS MADE TO A PERSON WHOM THE TRANSFEROR REASONABLY BELIEVES AFTER DUE INQUIRY IS A QUALIFIED INSTITUTIONAL BUYER (AS DEFINED IN RULE 144A), ACTING FOR ITS OWN ACCOUNT (AND NOT FOR THE ACCOUNT OF OTHERS) OR AS A FIDUCIARY OR AGENT FOR OTHERS (WHICH OTHERS ALSO ARE QUALIFIED INSTITUTIONAL BUYERS) TO WHOM NOTICE IS GIVEN THAT THE SALE, PLEDGE OR TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A (ii) SUCH SALE, PLEDGE OR OTHER TRANSFER OCCURS OUTSIDE OF THE UNITED STATES TO A NON-U.S. PERSON IN ACCORDANCE WITH RULE 903 OR RULE 904 OF REGULATION S OF THE SECURITIES ACT AND THAT PERSON DELIVERS ANY NECESSARY CERTIFICATIONS PURSUANT TO THE INDENTURE, OR (iii) SUCH SALE, PLEDGE OR OTHER TRANSFER IS OTHERWISE MADE IN A TRANSACTION EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE U.S. SECURITIES ACT, IN WHICH CASE (A) THE INDENTURE TRUSTEE SHALL REQUIRE THAT BOTH THE PROSPECTIVE TRANSFEROR AND THE PROSPECTIVE TRANSFEREE CERTIFY TO THE INDENTURE TRUSTEE AND THE DEPOSITOR IN WRITING THE FACTS SURROUNDING SUCH TRANSFER, WHICH CERTIFICATION SHALL BE IN FORM AND SUBSTANCE SATISFACTORY TO THE INDENTURE TRUSTEE AND THE DEPOSITOR, AND (B) THE INDENTURE TRUSTEE SHALL REQUIRE A WRITTEN OPINION OF COUNSEL (WHICH SHALL NOT BE AT THE
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EXPENSE OF THE DEPOSITOR, THE ADMINISTRATOR, THE SERVICER, THE ISSUING ENTITY OR THE INDENTURE TRUSTEE) SATISFACTORY TO THE DEPOSITOR AND THE INDENTURE TRUSTEE TO THE EFFECT THAT SUCH TRANSFER WILL NOT VIOLATE THE U.S. SECURITIES ACT.
EACH HOLDER OF A [CLASS B] [CLASS C] NOTE WILL BE DEEMED TO REPRESENT AND WARRANT THAT EITHER (1) IT IS NOT (a) AN EMPLOYEE BENEFIT PLAN (AS DEFINED IN SECTION 3(3) OF THE UNITED STATES EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED (ERISA), THAT IS SUBJECT TO PROVISIONS OF TITLE I OF ERISA, (b) A PLAN DESCRIBED IN SECTION 4975(e)(1) OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE CODE), (c) ANY ENTITY WHOSE UNDERLYING ASSETS INCLUDE PLAN ASSETS BY REASON OF AN EMPLOYEE BENEFIT PLANS OR A PLANS INVESTMENT IN THE ENTITY OR (d) ANY OTHER PLAN THAT IS SUBJECT TO ANY LAW THAT IS SUBSTANTIALLY SIMILAR TO ERISA OR SECTION 4975 OF THE CODE OR (2) THE PURCHASE AND HOLDING OF THE [CLASS B] [CLASS C] NOTE WILL NOT RESULT IN A NON-EXEMPT PROHIBITED TRANSACTION UNDER SECTION 406(a) OF ERISA OR SECTION 4975 OF THE CODE OR A VIOLATION OF ANY SUBSTANTIALLY SIMILAR APPLICABLE LAW.
EACH [CLASS B] [CLASS C] NOTEHOLDER OR NOTE OWNER, BY ACCEPTANCE OF A [CLASS B] [CLASS C] NOTE OR, IN THE CASE OF A NOTE OWNER, A BENEFICIAL INTEREST IN A [CLASS B] [CLASS C] NOTE, COVENANTS AND AGREES THAT NO RECOURSE MAY BE TAKEN, DIRECTLY OR INDIRECTLY, WITH RESPECT TO THE OBLIGATIONS OF THE ISSUING ENTITY, THE CARAT OWNER TRUSTEE OR THE INDENTURE TRUSTEE ON THE [CLASS B] [CLASS C] NOTES OR UNDER THE INDENTURE OR ANY CERTIFICATE OR OTHER WRITING DELIVERED IN CONNECTION THEREWITH, AGAINST (i) THE INDENTURE TRUSTEE OR THE CARAT OWNER TRUSTEE IN THEIR INDIVIDUAL CAPACITIES, (ii) THE DEPOSITOR OR ANY OTHER OWNER OF A BENEFICIAL INTEREST IN THE ISSUING ENTITY OR (iii) ANY PARTNER, OWNER, BENEFICIARY, AGENT, OFFICER, DIRECTOR OR EMPLOYEE OF THE INDENTURE TRUSTEE OR THE CARAT OWNER TRUSTEE IN THEIR INDIVIDUAL CAPACITIES, ANY HOLDER OF A BENEFICIAL INTEREST IN THE ISSUING ENTITY, THE CARAT OWNER TRUSTEE OR THE INDENTURE TRUSTEE OR OF ANY SUCCESSOR OR ASSIGN OF THE INDENTURE TRUSTEE OR THE CARAT OWNER TRUSTEE IN THEIR INDIVIDUAL CAPACITIES, EXCEPT AS ANY SUCH PERSON MAY HAVE EXPRESSLY AGREED AND EXCEPT THAT ANY SUCH PARTNER, OWNER OR BENEFICIARY SHALL BE FULLY LIABLE, TO THE EXTENT PROVIDED BY APPLICABLE LAW, FOR ANY UNPAID CONSIDERATION FOR STOCK, UNPAID CAPITAL CONTRIBUTION OR FAILURE TO PAY ANY INSTALLMENT OR CALL OWING TO SUCH ENTITY.
EACH [CLASS B] [CLASS C] NOTEHOLDER OR NOTE OWNER, BY ACCEPTANCE OF A [CLASS B] [CLASS C] NOTE OR, IN THE CASE OF A NOTE OWNER, A BENEFICIAL INTEREST IN A [CLASS B] [CLASS C] NOTE, COVENANTS AND AGREES THAT BY ACCEPTING THE BENEFITS OF THE INDENTURE SUCH [CLASS B] [CLASS C] NOTEHOLDER WILL NOT, PRIOR TO THE DATE WHICH IS ONE
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YEAR AND ONE DAY AFTER THE TERMINATION OF THE INDENTURE WITH RESPECT TO THE ISSUING ENTITY, ACQUIESCE, PETITION OR OTHERWISE INVOKE OR CAUSE THE DEPOSITOR OR THE ISSUING ENTITY TO INVOKE THE PROCESS OF ANY COURT OR GOVERNMENT AUTHORITY FOR THE PURPOSE OF COMMENCING OR SUSTAINING A CASE AGAINST THE DEPOSITOR OR THE ISSUING ENTITY UNDER ANY FEDERAL OR STATE BANKRUPTCY, INSOLVENCY OR SIMILAR LAW OR APPOINTING A RECEIVER, LIQUIDATOR, ASSIGNEE, TRUSTEE, CUSTODIAN, SEQUESTRATOR OR OTHER SIMILAR OFFICIAL OF THE DEPOSITOR OR THE ISSUING ENTITY OR ANY SUBSTANTIAL PART OF ITS PROPERTY, OR ORDERING THE WINDING UP OR LIQUIDATION OF THE AFFAIRS OF THE DEPOSITOR OR THE ISSUING ENTITY.
EACH [CLASS B] [CLASS C] NOTEHOLDER OR NOTE OWNER, BY ACCEPTANCE OF A [CLASS B] [CLASS C] NOTE OR, IN THE CASE OF A NOTE OWNER, A BENEFICIAL INTEREST IN A [CLASS B] [CLASS C] NOTE, EXPRESSES ITS INTENTION THAT THIS [CLASS B] [CLASS C] NOTE QUALIFIES UNDER APPLICABLE TAX LAW AS INDEBTEDNESS SECURED BY THE COLLATERAL AND, UNLESS OTHERWISE REQUIRED BY APPROPRIATE TAXING AUTHORITIES, AGREES TO TREAT THE [CLASS B] [CLASS C] NOTES AS INDEBTEDNESS SECURED BY THE COLLATERAL FOR THE PURPOSE OF FEDERAL INCOME TAXES, STATE AND LOCAL INCOME AND FRANCHISE TAXES, MICHIGAN SINGLE BUSINESS TAX, AND ANY OTHER TAXES IMPOSED UPON, MEASURED BY OR BASED UPON GROSS OR NET INCOME.
CAPITAL AUTO RECEIVABLES ASSET TRUST 2007-2
[CLASS B] [CLASS C] ______% ASSET BACKED NOTES
CAPITAL AUTO RECEIVABLES ASSET TRUST 2007-2, a statutory trust organized and existing under the laws of the State of Delaware (herein referred to as the Issuing Entity), for value received, hereby promises to pay to [Cede & Co.], or registered assigns, the principal sum of _________ DOLLARS ($_________) or such lesser amount as may be payable in accordance with the Indenture (as defined on the reverse side of this Note), on each Distribution Date in an amount equal to the result obtained by multiplying (i) a fraction, the numerator of which is the initial principal amount hereof and the denominator of which is the aggregate initial principal amount for such [Class B] [Class C] Notes, by (ii) the aggregate amount, if any, payable on such Distribution Date from the Note Distribution Account in respect of principal on the [Class B] [Class C] Notes pursuant to Sections 2.7, 3.1 and 8.2(c) of the Indenture; provided, however, that the entire unpaid principal amount of this [Class B] [Class C] Note shall be due and payable on February 18, 2014 (the Final Scheduled Distribution Date) unless the [Class B] [Class C] Note is earlier redeemed pursuant to Section 10.1 of the Indenture, in which case such unpaid principal amount shall be due on the Redemption Date. The Issuing Entity shall pay interest on this [Class B] [Class C] Note at the per annum rate shown above on each Distribution Date until the principal of this [Class B] [Class C] Note is paid or made available for payment on the principal amount of this [Class B] [Class C] Note outstanding on the preceding Distribution Date (after giving effect to all payments of principal made on the preceding Distribution Date (or, for the initial Distribution Date, the outstanding principal
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balance on the Closing Date)). Interest on the [Class B] [Class C] Notes will accrue from and including the Closing Date and will be payable on each Distribution Date in an amount equal to the Note Class Interest Distributable Amount for such Distribution Date for the [Class B] [Class C] Notes. Interest will be computed on the basis of a 360-day year of twelve 30-day months (or, in the case of the initial Distribution Date, a 22 day period) to but excluding the current Distribution Date and a 360-day year. Such principal of and interest on this [Class B] [Class C] Note shall be paid in the manner specified on the reverse hereof. All interest payments on each class of Notes on any Distribution Date shall be made pro rata to the Noteholders of such class entitled thereto.
The principal of and interest on this [Class B] [Class C] Note are payable in such coin or currency of the United States of America which, at the time of payment, is legal tender for payment of public and private debts. All payments made by the Issuing Entity with respect to this [Class B] [Class C] Note shall be applied first to interest due and payable on this [Class B] [Class C] Note as provided above and then to the unpaid principal of this [Class B] [Class C] Note.
Reference is made to the further provisions of this [Class B] [Class C] Note set forth on the reverse hereof, which shall have the same effect as though fully set forth on the face of this [Class B] [Class C] Note.
Unless the certificate of authentication hereon has been executed by the Indenture Trustee whose name appears below by manual signature, this [Class B] [Class C] Note shall not be entitled to any benefit under the Indenture referred to on the reverse hereof or be valid or obligatory for any purpose.
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IN WITNESS WHEREOF, the Issuing Entity has caused this instrument to be signed, manually or in facsimile, by its Authorized Officer.
Dated: August 23, 2007
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CAPITAL AUTO RECEIVABLES ASSET TRUST 2007-2 By: DEUTSCHE BANK TRUST COMPANY DELAWARE, not in its individual capacity but solely as Owner Trustee | | |
By: | | | |
| Name: | | | |
| Title: | | | |
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By: | | | |
| Name: | | | |
| Title: | | | |
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INDENTURE TRUSTEES CERTIFICATE OF AUTHENTICATION
This is one of the Notes designed above and referred to in the within-mentioned Indenture.
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| THE BANK OF NEW YORK TRUST COMPANY, N.A., not in its individual capacity but solely as Indenture Trustee | |
| By: | | |
| | Name: | | |
| | Title: | | |
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REVERSE OF NOTE
This Note is one of a duly authorized issue of Notes of the Issuing Entity, designated as its [Class B] [Class C] [___]% Asset Backed Notes (herein called the [Class B] [Class C] Notes), all issued under an indenture, dated as of August 23, 2007 (such indenture, as amended or supplemented, is herein called the Indenture), between the Issuing Entity and The Bank of New York Trust Company, N.A., as trustee (the Indenture Trustee, which term includes any successor trustee under the Indenture), to which Indenture and all indentures supplemental thereto reference is hereby made for a statement of the respective rights and obligations thereunder of the Issuing Entity, the Indenture Trustee and the Noteholders. The [Class B] [Class C] Notes are one of several duly authorized classes of Notes of the Issuing Entity issued pursuant to the Indenture (collectively, as to all Notes of all such classes, the Notes). The Notes are governed by and subject to all terms of the Indenture (which terms are incorporated herein and made a part hereof), to which Indenture the Holder of this [Class B] [Class C] Note by virtue of acceptance hereof assents and by which such Holder is bound. All capitalized terms used and not otherwise defined in this [Class B] [Class C] Note that are defined in the Indenture, as supplemented or amended, shall have the meanings assigned to them in or pursuant to the Indenture.
The [Class B] [Class C] Notes and all other Notes issued pursuant to the Indenture are and will be equally and ratably secured by the Collateral pledged as security therefor as provided in the Indenture.
Each Noteholder or Note Owner will be deemed to represent and warrant that either (1) it is not acquiring the Note with (i) the assets of an employee benefit plan (as defined in Section 3(3) of ERISA), that is subject to provisions of Title I of ERISA, (ii) a plan described in Section 4975(e)(1) of the Code, (iii) an entity whose underlying assets include plan assets by reason of an employee benefit plans or a plans investment in the entity or (iv) any other plan that is subject to any law that is substantially similar to ERISA or Section 4975 of the Code, or (2) the acquisition and holding of the Note will not give rise to a non-exempt prohibited transaction under Section 406(a) of ERISA or Section 4975 of the Code or a violation of any substantially similar applicable law.
Each Noteholder or Note Owner, by acceptance of a [Class B] [Class C] Note or, in the case of a Note Owner, a beneficial interest in a [Class B] [Class C] Note, covenants and agrees that no recourse may be taken, directly or indirectly, with respect to the obligations of the Issuing Entity, the Owner Trustee or the Indenture Trustee on the Notes or under the Indenture or any certificate or other writing delivered in connection therewith, against (i) the Indenture Trustee or the Owner Trustee in their individual capacities, (ii) the Depositor or any other owner of a beneficial interest in the Issuing Entity or (iii) any partner, owner, beneficiary, agent, officer, director or employee of the Indenture Trustee or the Owner Trustee in their individual capacities, any holder of a beneficial interest in the Issuing Entity, the Owner Trustee or the Indenture Trustee or of any successor or assign of the Indenture Trustee or the Owner Trustee in their individual capacities, except as any such Person may have expressly agreed and except that any such partner, owner or beneficiary shall be fully liable, to the extent provided by applicable law, for any unpaid consideration for stock, unpaid capital contribution or failure to pay any instalment or call owing to such entity.
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Each Noteholder or Note Owner, by acceptance of a [Class B] [Class C] Note or, in the case of a Note Owner, a beneficial interest in a [Class B] [Class C] Note, covenants and agrees that by accepting the benefits of the Indenture such Noteholder or Note Owner will not, prior to the date which is one year and one day after the termination of the Indenture with respect to the Issuing Entity, acquiesce, petition or otherwise invoke or cause the Depositor or the Issuing Entity to invoke the process of any court or government authority for the purpose of commencing or sustaining a case against the Depositor or the Issuing Entity under any federal or state bankruptcy, insolvency or similar law or appointing a receiver, liquidator, assignee, trustee, custodian, sequestrator or other similar official of the Depositor or the Issuing Entity or any substantial part of its property, or ordering the winding up or liquidation of the affairs of the Depositor or the Issuing Entity.
Each Noteholder, by acceptance of a [Class B] [Class C] Note or, in the case of a Note Owner, a beneficial interest in a [Class B] [Class C] Note, expresses its intention that this [Class B] [Class C] Note qualifies under applicable tax law as indebtedness secured by the Collateral and, unless otherwise required by appropriate taxing authorities, agrees to treat the [Class B] [Class C] Notes as indebtedness secured by the Collateral for the purpose of federal income taxes, state and local income and franchise taxes, Michigan single business tax, and any other taxes imposed upon, measured by or based upon gross or net income.
Prior to the due presentment for registration of transfer of this [Class B] [Class C] Note, the Issuing Entity, the Indenture Trustee and any agent of the Issuing Entity or the Indenture Trustee may treat the Person in whose name this [Class B] [Class C] Note (as of the day of determination or as of such other date as may be specified in the Indenture) is registered as the owner hereof for all purposes, whether or not this Note shall be overdue, and none of the Issuing Entity, the Indenture Trustee or any such agent shall be affected by notice to the contrary.
The Indenture permits, with certain exceptions as therein provided, the amendment thereof and the modification of the rights and obligations of the Issuing Entity and the rights of the Noteholders under the Indenture at any time by the Issuing Entity with the consent of the Holders of Notes representing a majority of the Outstanding Amount of the Controlling Class. The Indenture also contains provisions permitting the Holders of Notes representing specified percentages of the Outstanding Amount of the Controlling Class, on behalf of the Holders of all the [Class B] [Class C] Notes, to waive compliance by the Issuing Entity with certain provisions of the Indenture and certain past defaults under the Indenture and their consequences. Any such consent or waiver by the Holder of this [Class B] [Class C] Note (or any one of more Predecessor Notes) shall be conclusive and binding upon such Holder and upon all future Holders of this [Class B] [Class C] Note and of any Note issued upon the registration of transfer hereof or in exchange hereof or in lieu hereof whether or not notation of such consent or waiver is made upon this [Class B] [Class C] Note. The Indenture also permits the Indenture Trustee to amend or waive certain terms and conditions set forth in the Indenture without the consent of the Noteholders.
The term Issuing Entity as used in this [Class B] [Class C] Note includes any successor to the Issuing Entity under the Indenture.
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The Issuing Entity is permitted by the Indenture, under certain circumstances, to merge or consolidate, subject to the rights of the Indenture Trustee and the Holders of Notes under the Indenture.
The Notes are issuable only in registered form in denominations as provided in the Indenture, subject to certain limitations therein set forth.
This [Class B] [Class C] Note and the Indenture shall be construed in accordance with the laws of the State of New York, without reference to its conflict of law provisions, and the obligations, rights and remedies of the parties hereunder and thereunder shall be determined in accordance with such laws.
No reference herein to the Indenture and no provision of this [Class B] [Class C] Note or of the Indenture shall alter or impair the obligation of the Issuing Entity, which is absolute and unconditional, to pay the principal of and interest on this [Class B] [Class C] Note at the times, place and rate, and in the coin or currency herein prescribed.
Anything herein to the contrary notwithstanding, except as expressly provided in the Basic Documents, neither the Depositor, the Servicer, the Indenture Trustee nor the Owner Trustee in their respective individual capacities, any owner of a beneficial interest in the Issuing Entity, nor any of their respective partners, beneficiaries, agents, officers, directors, employees or successors or assigns, shall be personally liable for, nor shall recourse be had to any of them for, the payment of principal of or interest on, or performance of, or omission to perform, any of the covenants, obligations or indemnifications contained in this [Class B] [Class C] Note or the Indenture, it being expressly understood that said covenants, obligations and indemnifications have been made by the Owner Trustee solely as the Owner Trustee in the assets of the Issuing Entity. The Holder of this [Class B] [Class C] Note by the acceptance hereof agrees that, except as expressly provided in the Basic Documents, in the case of an Event of Default under the Indenture, the Holder shall have no claim against any of the foregoing for any deficiency, loss or claim therefrom; provided, however, that nothing contained herein shall be taken to prevent recourse to, and enforcement against, the assets of the Issuing Entity for any and all liabilities, obligations and undertakings contained in the Indenture or in this [Class B] [Class C] Note.
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ASSIGNMENT
Social Security or taxpayer I.D. or other identifying number of assignee
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
(name and address of assignee)
the within Note and all rights thereunder, and hereby irrevocably constitutes and appoints , as attorney, to transfer said Note on the books kept for registration thereof, with full power of substitution in the premises.
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Dated: | | | | | | 6 |
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| | | | Signature Guaranteed: | | |
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6 | | NOTE: The signature to this assignment must correspond with the name of the registered owner as it appears on the face of the within Note in every particular, without alteration, enlargement or any change whatsoever. |
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EXHIBIT C-7
FORM OF CLASS D FIXED RATE ASSET BACKED NOTES
NO. R-
SEE REVERSE FOR CERTAIN DEFINITIONS
CUSIP NO.
THIS CLASS D NOTE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE U.S. SECURITIES ACT), OR UNDER THE SECURITIES OR BLUE SKY LAWS OF ANY STATE IN THE UNITED STATES OR ANY FOREIGN SECURITIES LAWS. BY ITS ACCEPTANCE OF THIS CLASS D NOTE (OR INTEREST THEREIN) THE HOLDER OF THIS CLASS D NOTE (OR SUCH INTEREST), IF OTHER THAN THE DEPOSITOR, IS DEEMED TO REPRESENT TO THE DEPOSITOR AND THE INDENTURE TRUSTEE THAT IT IS A QUALIFIED INSTITUTIONAL BUYER AS DEFINED IN RULE l44A UNDER THE U.S. SECURITIES ACT AND IS ACQUIRING THIS CLASS D NOTE (OR INTEREST THEREIN) FOR ITS OWN ACCOUNT (AND NOT FOR THE ACCOUNT OF OTHERS) OR AS A FIDUCIARY OR AGENT FOR OTHERS (WHICH OTHERS ALSO ARE QUALIFIED INSTITUTIONAL BUYERS) OR HAS OTHERWISE ACQUIRED AN INTEREST IN THE CLASS D NOTE IN A TRANSACTION EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE U.S. SECURITIES ACT.
NO SALE, PLEDGE OR OTHER TRANSFER OF THIS CLASS D NOTE (OR INTEREST THEREIN) MAY BE MADE BY ANY PERSON UNLESS (i) SUCH SALE, PLEDGE OR OTHER TRANSFER IS MADE TO THE DEPOSITOR, (ii) AT THE TIME OF SUCH SALE, PLEDGE OR OTHER TRANSFER, THIS CLASS D NOTE IS ELIGIBLE FOR RESALE PURSUANT TO RULE l44A UNDER THE U.S. SECURITIES ACT, AND SUCH SALE, PLEDGE OR OTHER TRANSFER IS MADE TO A PERSON WHO THE TRANSFEROR REASONABLY BELIEVES AFTER DUE INQUIRY IS A QUALIFIED INSTITUTIONAL BUYER (AS DEFINED IN RULE l44A), ACTING FOR ITS OWN ACCOUNT (AND NOT FOR THE ACCOUNT OF OTHERS) OR AS A FIDUCIARY OR AGENT FOR OTHERS (WHICH OTHERS ALSO ARE QUALIFIED INSTITUTIONAL BUYERS) TO WHOM NOTICE IS GIVEN THAT THE SALE, PLEDGE OR OTHER TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, OR (iii) SUCH SALE, PLEDGE OR OTHER TRANSFER IS OTHERWISE MADE IN A TRANSACTION EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE U.S. SECURITIES ACT, IN WHICH CASE (A) THE INDENTURE TRUSTEE SHALL REQUIRE THAT BOTH THE PROSPECTIVE TRANSFEROR AND THE PROSPECTIVE TRANSFEREE CERTIFY TO THE INDENTURE TRUSTEE AND THE DEPOSITOR IN WRITING THE FACTS SURROUNDING SUCH TRANSFER, WHICH CERTIFICATION SHALL BE IN FORM
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AND SUBSTANCE SATISFACTORY TO THE INDENTURE TRUSTEE AND THE DEPOSITOR, AND (B) THE INDENTURE TRUSTEE SHALL REQUIRE A WRITTEN OPINION OF COUNSEL (WHICH SHALL NOT BE AT THE EXPENSE OF THE DEPOSITOR, THE ADMINISTRATOR, THE SERVICER, THE ISSUING ENTITY OR THE INDENTURE TRUSTEE) SATISFACTORY TO THE DEPOSITOR AND THE INDENTURE TRUSTEE TO THE EFFECT THAT SUCH TRANSFER WILL NOT VIOLATE THE U.S. SECURITIES ACT. NO SALE, PLEDGE OR OTHER TRANSFER MAY BE MADE TO ANY ONE PERSON FOR CLASS D NOTES WITH AN INITIAL FACE AMOUNT OF LESS THAN $500,000 (OR SUCH OTHER AMOUNT AS THE DEPOSITOR MAY DETERMINE IN ORDER TO PREVENT THE ISSUING ENTITY FROM BEING TREATED AS A PUBLICLY TRADED PARTNERSHIP UNDER SECTION 7704 OF THE UNITED STATES INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE INTERNAL REVENUE CODE), BUT IN NO EVENT LESS THAN $250,000) AND, IN THE CASE OF ANY PERSON ACTING ON BEHALF OF ONE OR MORE THIRD PARTIES (OTHER THAN A BANK (AS DEFINED IN SECTION 3(a)(2) OF THE U.S. SECURITIES ACT) ACTING IN ITS FIDUCIARY CAPACITY), FOR CLASS D NOTES WITH A FACE AMOUNT OF LESS THAN SUCH AMOUNT FOR EACH SUCH THIRD PARTY. ANY ATTEMPTED TRANSFER IN CONTRAVENTION OF THE IMMEDIATELY PRECEDING RESTRICTION WILL BE VOID AB INITIO AND THE PURPORTED TRANSFEROR WILL CONTINUE TO BE TREATED AS THE OWNER OF THE CLASS D NOTES FOR ALL PURPOSES. THE ISSUING ENTITY WILL WITHHOLD U.S. INCOME TAX AT A RATE OF 35% (OR WHATEVER RATE IS OTHERWISE REQUIRED BY LAW) ON INTEREST INCOME ALLOCABLE TO A NOTEHOLDER WHO IS NOT A UNITED STATES PERSON WITHIN THE MEANING OF SECTION 7701(a)(30) OF THE INTERNAL REVENUE CODE AS IF SUCH INTEREST INCOME IS INCOME EFFECTIVELY CONNECTED WITH A TRADE OR BUSINESS IN THE UNITED STATES.
THIS CLASS D NOTE (OR AN INTEREST THEREIN) MAY NOT BE ACQUIRED BY OR FOR THE ACCOUNT OF (1) AN EMPLOYEE BENEFIT PLAN (AS DEFINED IN SECTION 3(3) OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED, (ERISA)), THAT IS SUBJECT TO THE PROVISIONS OF TITLE I OF ERISA, (2) A PLAN DESCRIBED IN SECTION 4975(e)(1) OF THE INTERNAL REVENUE CODE, OR (3) ANY ENTITY WHOSE UNDERLYING ASSETS INCLUDE PLAN ASSETS BY REASON OF AN EMPLOYEE BENEFIT PLANS OR A PLANS INVESTMENT IN THE ENTITY, OTHER THAN AN INSURANCE COMPANY GENERAL ACCOUNT (AS DEFINED IN PROHIBITED TRANSACTION CLASS EXEMPTION (PTCE) 95-60) WHOSE UNDERLYING ASSETS INCLUDE LESS THAN 25% PLAN ASSETS AND FOR WHICH THE PURCHASE AND HOLDING OF THE CLASS D NOTES IS ELIGIBLE FOR AND SATISFIES ALL CONDITIONS FOR RELIEF UNDER PTCE 95-60. THIS CLASS D NOTE (OR AN INTEREST THEREIN) ALSO MAY NOT BE ACQUIRED BY OR FOR THE ACCOUNT OF AN EMPLOYEE BENEFIT PLAN OR PLAN THAT IS NOT SUBJECT TO THE PROVISIONS OF TITLE I OF ERISA (INCLUDING, WITHOUT LIMITATION, FOREIGN OR GOVERNMENTAL PLANS) IF SUCH ACQUISITION WOULD RESULT IN A NON-EXEMPT PROHIBITED TRANSACTION UNDER, OR A VIOLATION OF, ANY APPLICABLE LAW THAT IS SUBSTANTIALLY SIMILAR TO ERISA OR SECTION 4975 OF THE INTERNAL REVENUE CODE. EACH HOLDER OF A CLASS D NOTE, BY ACCEPTING THIS CLASS D NOTE, WILL BE DEEMED TO HAVE
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REPRESENTED AND WARRANTED THAT IT IS NOT SUBJECT TO THE FOREGOING LIMITATIONS.
EACH HOLDER OF A CLASS D CLASS D NOTE, BY ACCEPTING THIS CLASS D NOTE, AGREES TO TREAT THE CLASS D NOTES AS INDEBTEDNESS FOR FEDERAL, STATE AND LOCAL INCOME AND FRANCHISE TAX PURPOSES.
EACH NOTEHOLDER OR NOTE OWNER, BY ITS ACCEPTANCE OF THIS CLASS D NOTE (OR INTEREST HEREIN), COVENANTS AND AGREES THAT SUCH CLASS D NOTEHOLDER OR NOTE OWNER, AS THE CASE MAY BE, SHALL NOT, PRIOR TO THE DATE WHICH IS ONE YEAR AND ONE DAY AFTER THE TERMINATION OF THE INDENTURE, ACQUIESCE, PETITION OR OTHERWISE INVOKE OR CAUSE THE DEPOSITOR OR THE ISSUING ENTITY TO INVOKE THE PROCESS OF ANY COURT OR GOVERNMENTAL AUTHORITY FOR THE PURPOSE OF COMMENCING OR SUSTAINING A CASE AGAINST THE DEPOSITOR UNDER ANY FEDERAL OR STATE BANKRUPTCY, INSOLVENCY, REORGANIZATION OR SIMILAR LAW OR APPOINTING A RECEIVER, LIQUIDATOR, ASSIGNEE, TRUSTEE, CUSTODIAN, SEQUESTRATOR OR OTHER SIMILAR OFFICIAL OF THE DEPOSITOR OR THE ISSUING ENTITY OR ANY SUBSTANTIAL PART OF THE PROPERTY OF EITHER OF THEM, OR ORDERING THE WINDING UP OR LIQUIDATION OF THE AFFAIRS OF THE DEPOSITOR OR THE ISSUING ENTITY.
CAPITAL AUTO RECEIVABLES ASSET TRUST 2007-2
CLASS D 8.30% ASSET BACKED NOTES
CAPITAL AUTO RECEIVABLES ASSET TRUST 2007-2, a statutory trust organized and existing under the laws of the State of Delaware (herein referred to as the Issuing Entity), for value received, hereby promises to pay to _______, or registered assigns, the principal sum of _______ DOLLARS ($_______) or such lesser outstanding amount as may be payable in accordance with the Indenture (as defined on the reverse side of this Note), on each Distribution Date in an amount equal to the result obtained by multiplying (i) a fraction, the numerator of which is the initial principal amount hereof and the denominator of which is the initial aggregate principal amount for such Class D Notes, by (ii) the aggregate amount, if any, payable on such Distribution Date from the Note Distribution Account in respect of principal on the Class D Notes pursuant to Sections 2.7, 3.1 and 8.2(c) of the Indenture; provided, however, that the entire unpaid principal amount of this Class D Note shall be due and payable on February 18, 2014 (the Final Scheduled Distribution Date) unless the Note is earlier redeemed pursuant to Section 10.1 of the Indenture, in which case such unpaid principal amount shall be due on the Redemption Date.. The Issuing Entity shall pay interest on this Class D Note at the rate per annum shown above on each Distribution Date until the principal of this Class D Note is paid or made available for payment on the principal amount of this Class D Note outstanding on the preceding Distribution Date (after giving effect to all payments of principal made on the preceding Distribution Date (or, for the initial Distribution Date, the outstanding principal balance on the Closing Date)). Interest on the Class D Notes will accrue from and including the Closing Date and will be payable on each Distribution Date in an amount equal to the Note Class Interest Distributable Amount for such
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Distribution Date for the Class D Notes. Interest will be computed on the basis of a 360-day year of twelve 30-day months (or, in the case of the initial Distribution Date, a 22 day period). Such principal of and interest on this Class D Note shall be paid in the manner specified on the reverse hereof. All interest payments on each class of Notes on any Distribution Date shall be made pro rata to the Noteholders of such class entitled thereto.
The principal of and interest on this Class D Note are payable in such coin or currency of the United States of America which, at the time of payment, is legal tender for payment of public and private debts. All payments made by the Issuing Entity with respect to this Class D Note shall be applied first to interest due and payable on this Note as provided above and then to the unpaid principal of this Class D Note.
Reference is made to the further provisions of this Class D Note set forth on the reverse hereof, which shall have the same effect as though fully set forth on the face of this Class D Note.
Unless the certificate of authentication hereon has been executed by the Indenture Trustee whose name appears below by manual signature, this Class D Note shall not be entitled to any benefit under the Indenture referred to on the reverse hereof or be valid or obligatory for any purpose.
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IN WITNESS WHEREOF, the Issuing Entity has caused this instrument to be signed, manually or in facsimile, by its Authorized Officer.
Dated: August 23, 2007
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CAPITAL AUTO RECEIVABLES ASSET TRUST 2007-2 By: DEUTSCHE BANK TRUST COMPANY DELAWARE, not in its individual capacity but solely as Owner Trustee | | |
By: | | | |
| Name: | | | |
| Title: | | | |
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By: | | | |
| Name: | | | |
| Title: | | | |
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INDENTURE TRUSTEES CERTIFICATE OF AUTHENTICATION
This is one of the Notes designed above and referred to in the within-mentioned Indenture.
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| THE BANK OF NEW YORK TRUST COMPANY, N.A., not in its individual capacity but solely as Indenture Trustee | |
| By: | | |
| | Name: | | |
| | Title: | | |
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REVERSE OF NOTE
This Note is one of a duly authorized issue of Notes of the Issuing Entity, designated as its Class D 8.30% Asset Backed Notes (herein called the Class D Notes), all issued under an indenture, dated as of August 23, 2007 (such indenture, as amended or supplemented, is herein called the Indenture), between the Issuing Entity and The Bank of New York Trust Company, N.A., as trustee (the Indenture Trustee, which term includes any successor trustee under the Indenture), to which Indenture and all indentures supplemental thereto reference is hereby made for a statement of the respective rights and obligations thereunder of the Issuing Entity, the Indenture Trustee and the Noteholders. The Class D Notes are one of several duly authorized classes of Notes of the Issuing Entity issued pursuant to the Indenture (collectively, as to all Notes of all such classes, the Notes). The Notes are governed by and subject to all terms of the Indenture (which terms are incorporated herein and made a part hereof), to which Indenture the Holder of this Class D Note by virtue of acceptance hereof assents and by which such Holder is bound. All capitalized terms used and not otherwise defined in this Class D Note that are defined in the Indenture shall have the meanings assigned to them in or pursuant to the Indenture.
The Class D Notes and all other Notes issued pursuant to the Indenture are and will be equally and ratably secured by the Collateral pledged as security therefor as provided in the Indenture.
Each Noteholder or Note Owner, by acceptance of a Class D Note or, in the case of a Note Owner, a beneficial interest in a Class D Note, covenants and agrees that no recourse may be taken, directly or indirectly, with respect to the obligations of the Issuing Entity, the Owner Trustee or the Indenture Trustee on the Notes or under the Indenture or any certificate or other writing delivered in connection therewith, against (i) the Indenture Trustee or the Owner Trustee in their individual capacities, (ii) the Depositor or any other owner of a beneficial interest in the Issuing Entity or (iii) any partner, owner, beneficiary, agent, officer, director or employee of the Indenture Trustee or the Owner Trustee in their individual capacities, any holder of a beneficial interest in the Issuing Entity, the Owner Trustee or the Indenture Trustee or of any successor or assign of the Indenture Trustee or the Owner Trustee in their individual capacities, except as any such Person may have expressly agreed and except that any such partner, owner or beneficiary shall be fully liable, to the extent provided by applicable law, for any unpaid consideration for stock, unpaid capital contribution or failure to pay any instalment or call owing to such entity.
Each Noteholder or Note Owner, by acceptance of a Class D Note or, in the case of a Note Owner, a beneficial interest in a Class D Note, covenants and agrees that by accepting the benefits of the Indenture such Noteholder or Note Owner will not, prior to the date which is one year and one day after the termination of the Indenture with respect to the Issuing Entity, acquiesce, petition or otherwise invoke or cause the Depositor or the Issuing Entity to invoke the process of any court or government authority for the purpose of commencing or sustaining a case against the Depositor or the Issuing Entity under any federal or state bankruptcy, insolvency or similar law or appointing a receiver, liquidator, assignee, trustee, custodian, sequestrator or other similar official of the Depositor or the Issuing Entity or any substantial part of its property, or ordering the winding up or liquidation of the affairs of the Depositor or the Issuing Entity.
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Each Noteholder, by acceptance of a Class D Note or, in the case of a Note Owner, a beneficial interest in a Class D Note, expresses its intention that this Class D Note qualifies under applicable tax law as indebtedness secured by the Collateral and, unless otherwise required by appropriate taxing authorities, agrees to treat the Class D Notes as indebtedness secured by the Collateral for the purpose of federal income taxes, state and local income and franchise taxes, Michigan single business tax, and any other taxes imposed upon, measured by or based upon gross or net income.
Prior to the due presentment for registration of transfer of this Class D Note, the Issuing Entity, the Indenture Trustee and any agent of the Issuing Entity or the Indenture Trustee may treat the Person in whose name this Class D Note (as of the day of determination or as of such other date as may be specified in the Indenture) is registered as the owner hereof for all purposes, whether or not this Note shall be overdue, and none of the Issuing Entity, the Indenture Trustee or any such agent shall be affected by notice to the contrary.
The Indenture permits, with certain exceptions as therein provided, the amendment thereof and the modification of the rights and obligations of the Issuing Entity and the rights of the Noteholders under the Indenture at any time by the Issuing Entity with the consent of the Holders of Notes representing a majority of the Outstanding Amount of the Controlling Class. The Indenture also contains provisions permitting the Holders of Notes representing specified percentages of the Outstanding Amount of the Controlling Class, on behalf of the Holders of all the Class D Notes, to waive compliance by the Issuing Entity with certain provisions of the Indenture and certain past defaults under the Indenture and their consequences. Any such consent or waiver by the Holder of this Class D Note (or any one of more Predecessor Notes) shall be conclusive and binding upon such Holder and upon all future Holders of this Class D Note and of any Note issued upon the registration of transfer hereof or in exchange hereof or in lieu hereof whether or not notation of such consent or waiver is made upon this Class D Note. The Indenture also permits the Indenture Trustee to amend or waive certain terms and conditions set forth in the Indenture without the consent of the Noteholders.
The term Issuing Entity as used in this Class D Note includes any successor to the Issuing Entity under the Indenture.
The Issuing Entity is permitted by the Indenture, under certain circumstances, to merge or consolidate, subject to the rights of the Indenture Trustee and the Holders of Notes under the Indenture.
The Notes are issuable only in registered form in denominations as provided in the Indenture, subject to certain limitations therein set forth.
This Class D Note and the Indenture shall be construed in accordance with the laws of the State of New York, without reference to its conflict of law provisions, and the obligations, rights and remedies of the parties hereunder and thereunder shall be determined in accordance with such laws.
No reference herein to the Indenture and no provision of this Class D Note or of the Indenture shall alter or impair the obligation of the Issuing Entity, which is absolute and
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unconditional, to pay the principal of and interest on this Class D Note at the times, place and rate, and in the coin or currency herein prescribed.
Anything herein to the contrary notwithstanding, except as expressly provided in the Basic Documents, neither the Depositor, the Servicer, the Indenture Trustee nor the Owner Trustee in their respective individual capacities, any owner of a beneficial interest in the Issuing Entity, nor any of their respective partners, beneficiaries, agents, officers, directors, employees or successors or assigns, shall be personally liable for, nor shall recourse be had to any of them for, the payment of principal of or interest on, or performance of, or omission to perform, any of the covenants, obligations or indemnifications contained in this Class D Note or the Indenture, it being expressly understood that said covenants, obligations and indemnifications have been made by the Owner Trustee solely as the Owner Trustee in the assets of the Issuing Entity. The Holder of this Class D Note by the acceptance hereof agrees that, except as expressly provided in the Basic Documents, in the case of an Event of Default under the Indenture, the Holder shall have no claim against any of the foregoing for any deficiency, loss or claim therefrom; provided, however, that nothing contained herein shall be taken to prevent recourse to, and enforcement against, the assets of the Issuing Entity for any and all liabilities, obligations and undertakings contained in the Indenture or in this Class D Note.
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ASSIGNMENT
Social Security or taxpayer I.D. or other identifying number of assignee
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
(name and address of assignee)
the within Note and all rights thereunder, and hereby irrevocably constitutes and appoints , as attorney, to transfer said Note on the books kept for registration thereof, with full power of substitution in the premises.
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Dated: | | | | | | 7 |
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7 | | NOTE: The signature to this assignment must correspond with the name of the registered owner as it appears on the face of the within Note in every particular, without alteration, enlargement or any change whatsoever. |
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EXHIBIT D
FORM OF CERTIFICATION
Re: the ______________________________ dated as of August 23, 2007 (the Agreement), among _________________________________.
I, _______________, the __________________ of The Bank of New York Trust Company, N.A. (the Company), certify to Capital Auto Receivables LLC (the Depositor), and its officers, with the knowledge and intent that they will rely upon this certification, that:
(1) I have reviewed the report on assessment of the Companys compliance provided in accordance with Rules 13a-18 and 15d-18 under the Securities Exchange Act of 1934, as amended (the Exchange Act) and Item 1122 of Regulation AB, and the registered public accounting firms attestation report provided in accordance with Rules 13a-18 and 15d-18 under the Exchange Act and Section 1122(b) of Regulation AB that were delivered by the Company to the Depositor pursuant to the Agreement (collectively, the Company Information);
(2) To the best of my knowledge, the Company Information, taken as a whole, does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in the light of the circumstances under which such statements were made, not misleading with respect to the period of time covered by the Company Information; and
(3) To the best of my knowledge, all of the Company Information required to be provided by the Company under the Agreement has been provided to the Depositor.
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| | By: The Bank of New York Trust Company, N.A., not in its individual capacity but solely as Indenture Trustee |
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