EXHIBIT 99.7
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COLT 200_-__ SERVICING AGREEMENT
BETWEEN
CENTRAL ORIGINATING LEASE TRUST,
GENERAL MOTORS ACCEPTANCE CORPORATION,
AS SERVICER
AND
______,
AS COLT INDENTURE TRUSTEE
DATED AS OF ___, 200_
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TABLE OF CONTENTS
PAGE
ARTICLE I DEFINITIONS............................................................................ 1
SECTION 1.01 Definitions.................................................................... 1
ARTICLE II ADMINISTRATION AND SERVICING OF LEASE ASSETS........................................... 1
SECTION 2.01 Duties of the Servicer......................................................... 1
SECTION 2.02 Collection of Series 200 - Lease Payments and Pull Ahead Payments............. 3
SECTION 2.03 Collection and Application of Security Deposits................................ 4
SECTION 2.04 Voluntary Early Terminations................................................... 4
SECTION 2.05 Realization Upon Defaulted Lease Assets........................................ 4
SECTION 2.06 Scheduled Expiration of Series 200 - Leases................................. 5
SECTION 2.07 Payment and Reimbursement of Liquidation Expenses.............................. 5
SECTION 2.08 Third Party Claims............................................................. 5
SECTION 2.09 Maintenance of Insurance Policies.............................................. 5
SECTION 2.10 Maintenance of Enforceable Ownership Interest, Beneficial Ownership
Interest and Security Interest in the related Vehicles......................... 6
SECTION 2.11 Custody of Lease Files......................................................... 6
SECTION 2.12 Waivers, Modifications and Extensions on the Series 200 - Lease Assets...... 7
SECTION 2.13 Covenants, Representations and Warranties of Servicer.......................... 8
SECTION 2.14 Purchase of Lease Assets Upon Breach of Covenant............................... 9
SECTION 2.15 Servicing Fees; Supplemental Servicing Fees; Payment of Certain
Expenses by Servicer........................................................... 10
SECTION 2.16 Servicer's Certificate......................................................... 10
SECTION 2.17 Annual Statement as to Compliance; Notice of Servicer Default.................. 11
SECTION 2.18 Annual Independent Accountants' Report......................................... 12
SECTION 2.19 Access to Certain Documentation and Information Regarding Lease Assets......... 12
SECTION 2.20 Series 200 - Lease Asset Schedule........................................... 12
SECTION 2.21 Additional Servicer Duties..................................................... 13
SECTION 2.22 Transfers of Legal Title to Vehicle............................................ 14
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PAGE
ARTICLE III ESTABLISHMENT OF ACCOUNTS; DISTRIBUTIONS............................................... 14
SECTION 3.01 Establishment of COLT Collection Account and Payment Ahead Servicing
Account........................................................................ 14
SECTION 3.02 COLT 200 - Reserve Account.................................................. 17
SECTION 3.03 Distributions.................................................................. 18
SECTION 3.04 COLT Collections............................................................... 19
SECTION 3.05 Application of COLT Collections................................................ 20
SECTION 3.06 Advances....................................................................... 21
ARTICLE IV THE SERVICER........................................................................... 22
SECTION 4.01 Liability of Servicer; Indemnities............................................. 22
SECTION 4.02 Merger or Consolidation of, or Assumption of the Obligations of,
the Servicer................................................................... 23
SECTION 4.03 Limitation on Liability of Servicer and Others................................. 23
SECTION 4.04 Delegation of Duties........................................................... 24
SECTION 4.05 Servicer Not to Resign......................................................... 24
ARTICLE V SERVICER DEFAULTS...................................................................... 25
SECTION 5.01 Servicer Defaults.............................................................. 25
SECTION 5.02 Consequences of a Servicer Default............................................. 25
SECTION 5.03 COLT Indenture Trustee to Act; Appointment of Successor........................ 26
SECTION 5.04 Notification to the Series 200 - Further Holders and the Rating
Agencies....................................................................... 26
SECTION 5.05 Waiver of Past Servicer Defaults............................................... 27
SECTION 5.06 Repayment of Outstanding Advances.............................................. 27
ARTICLE VI OPTIONAL PURCHASE; TERMINATION......................................................... 27
SECTION 6.01 Optional Repurchase of All Series 200 - Lease Assets........................ 27
SECTION 6.02 Termination of Agreement....................................................... 27
ARTICLE VII MISCELLANEOUS PROVISIONS............................................................... 28
SECTION 7.01 Amendment...................................................................... 28
SECTION 7.02 Protection of Title to COLT.................................................... 29
SECTION 7.03 Notices........................................................................ 29
SECTION 7.04 Governing Law.................................................................. 29
SECTION 7.05 Severability of Provisions..................................................... 30
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SECTION 7.06 Third-Party Beneficiaries...................................................... 30
SECTION 7.07 Headings....................................................................... 30
SECTION 7.08 Binding Effect................................................................. 30
SECTION 7.09 Execution in Counterparts...................................................... 30
SECTION 7.10 Rights Cumulative.............................................................. 30
SECTION 7.11 Further Assurances............................................................. 30
SECTION 7.12 No Waiver...................................................................... 30
SECTION 7.13 Series Liabilities............................................................. 31
SECTION 7.14 No Bankruptcy Petition......................................................... 31
SECTION 7.15 Limitation of Liability........................................................ 31
EXHIBITS
EXHIBIT A COLT Series Definitions
EXHIBIT B Form of COLT Custodian Agreement
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COLT 200_-__ SERVICING AGREEMENT
THIS COLT 200_-__ SERVICING AGREEMENT, dated as of _____, 200 (this "COLT
Servicing Agreement" or this "Agreement"), between CENTRAL ORIGINATING LEASE
TRUST, a Delaware statutory trust ("COLT"), GENERAL MOTORS ACCEPTANCE
CORPORATION, a Delaware corporation ("GMAC"), as servicer (the "Servicer") and
________ , ______________, as COLT Indenture Trustee (the "COLT Indenture
Trustee").
WHEREAS Deutsche Bank Trust Company Delaware, as COLT Owner Trustee (the
"COLT Owner Trustee") has entered into the Third Amended and Restated
Declaration of Trust, dated as of March 25, 2004 (the "Declaration of Trust"),
acknowledged, accepted and agreed by Central Originating Lease, LLC ("COLT,
LLC"), as Residual Certificateholder, and GMAC (as amended, modified or
otherwise supplemented from to time, the "Declaration");
WHEREAS, the COLT Owner Trustee and COLT, LLC, as the Residual
Certificateholder, are entering into a COLT 200_- __Supplement to the
Declaration, dated as of the date hereof, to segregate the Series 200_- __Lease
Assets into a separate Series under the Declaration;
WHEREAS, COLT and the COLT Indenture Trustee are entering into the COLT
Indenture, dated as of the date hereof, to provide for the issuance of the COLT
200_-__ Secured Notes;
WHEREAS, the parties desire to enter into this Agreement to provide for,
among other things, the servicing of Series 200_-__ Lease Assets by the
Servicer;
NOW THEREFORE, in consideration of the premises and the mutual covenants
herein contained, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01 Definitions. Capitalized terms used in this Agreement are
defined in and shall have the meanings assigned to them in the COLT Series
Definitions attached as Exhibit A, or if not defined therein, shall have the
meanings assigned to them in the COLT Program Definitions attached as Exhibit I
to the Declaration. All references herein to "this Agreement" are to this COLT
Servicing Agreement as it may be amended, supplemented or otherwise modified
from time to time.
ARTICLE II
ADMINISTRATION AND SERVICING OF LEASE ASSETS
SECTION 2.01 Duties of the Servicer. (a) The Servicer is hereby authorized
to act as agent for COLT and in such capacity shall manage, service, administer
and make collections on and dispositions of the Series 200_-__ Lease Assets in
accordance with this Agreement with reasonable care, using that degree of skill
and attention that the Servicer exercises with respect to comparable automotive
leases that it services for itself or others. Each of the COLT 200_-__ Secured
Noteholders and the COLT 200_-__ Certificateholder, by acceptance of a COLT
200_-__
COLT Servicing Agreement
KE comments on Servicing Agreement.
Secured Note or the COLT 200_-__ Certificate, as the case may be, authorizes the
Servicer to service, administer and make payments on its COLT 200_-__ Secured
Note or the COLT 200_- Certificates as provided herein. The Servicer hereby
accepts such appointment and authorization and agrees to perform the duties of
Servicer set forth herein with respect to the Series 200_- Lease Assets, the
COLT 200_-__ Secured Notes and the COLT 200_-__ Certificates.
(b) The Servicer's duties shall include collecting and posting of all
payments, responding to inquiries of Lessees, investigating delinquencies,
sending billing statements or coupon books to Lessees, reporting required tax
information (if any) to Lessees, policing the Vehicles, monitoring the status of
insurance policies with respect to the Lessees and the Vehicles, accounting for
collections and furnishing monthly and annual statements to COLT with respect to
distributions, generating federal income tax information, giving, on a timely
basis, any required notices or instructions to the COLT Owner Trustee under the
Declaration, giving any required instructions to VAULT under the VAULT Trust
Agreement and performing the other duties specified herein or in any other COLT
200_-__ Basic Document. Subject to the provisions of this Agreement, the
Servicer shall follow its Customary Servicing Practices and shall have full
power and authority, acting alone, to do any and all things in connection with
such managing, servicing, administering and collecting that it may deem
necessary or desirable.
(c) Without limiting the generality of the foregoing, the Servicer is
hereby designated by COLT as the true and lawful attorney and agent for and on
behalf of COLT, with full power and authority to perform any and all acts
related to managing, servicing, administering and collecting any part of the
COLT 200_-__ Trust Estate and any and all acts otherwise required or permitted
to be performed by the Servicer under this Agreement and the other COLT 200_-
Basic Documents and is hereby authorized and empowered by COLT to execute and
deliver, in its own name or on behalf of COLT, or both of them, as the case may
be, any and all instruments of satisfaction, extension or cancellation, or of
partial release or discharge, and all other comparable instruments, with respect
to Series 200_-__ Lease Assets. The Servicer also has the right, power and
authority to designate in writing other Persons as true and lawful attorneys and
agents for and on behalf of COLT to do anything that the Servicer has the power
to do under this Agreement or the other COLT 200_-__ Basic Documents; provided,
however, that notwithstanding any such designation, the Servicer shall remain
liable for the performance of the duties and obligations of the Servicer
hereunder and thereunder.
(d) In addition, the Servicer shall have the full power and authority to
do or cause to be done any and all things in connection with the servicing and
administration of the Series 200_- Lease Assets that the Servicer may deem
necessary or desirable in connection with arranging for the sale or other
liquidation of the Vehicles upon its receipt of possession thereof. In
connection with any such sale or other liquidation of any such Vehicle, other
than any sale directly or indirectly of such Vehicle to the related Lessee in
accordance with the related Series 200_-__ Lease, the Servicer shall use
commercially reasonable efforts to maximize the Sale Proceeds received in
connection with the sale or other liquidation of any such Vehicle; provided,
however, that the Servicer shall have no liability to COLT or the Series 200_-__
Further Holders in connection with any sale or other liquidation of a Vehicle
related to a Series 200_-__ Lease Asset to the extent the Servicer arranges for
such sale or other liquidation of such Vehicle in accordance with its Customary
Servicing Practices.
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(e) The Servicer is hereby authorized to commence, in its own name or in
the name of COLT, a legal proceeding to enforce a defaulted Series 200_-__ Lease
Asset as contemplated by Section 2.05, to enforce all obligations of COLT under
this Agreement and the other COLT 200_-__ Basic Documents or to commence or
participate in a legal proceeding (including a bankruptcy proceeding) relating
to or involving a Series 200_-__ Lease Asset. If the Servicer commences or
participates in such a legal proceeding in its own name, COLT shall thereupon be
deemed to have automatically assigned such Series 200_-__ Lease Asset to the
Servicer for purposes of commencing or participating in any such proceeding as a
party or claimant, and the Servicer is hereby authorized and empowered by COLT
to execute and deliver in the Servicer's name any notices, demands, claims,
complaints, responses, affidavits or other documents or instruments in
connection with any such proceeding. COLT shall furnish the Servicer with any
powers of attorney and other documents and take any other steps which the
Servicer may deem necessary or appropriate to enable the Servicer to carry out
its servicing and administrative duties under this Agreement and the other COLT
200_-__ Basic Documents. If in any enforcement suit or legal proceeding it is
held that the Servicer may not enforce a Series 200_-__ Lease Asset on the
grounds that it is not a real party in interest or a holder entitled to enforce
such Series 200_-__ Lease Asset, the COLT Owner Trustee shall, at the Servicer's
expense, take such steps as the Servicer deems necessary to enforce such Series
200_-__ Lease Asset, including bringing such suit or proceeding in the COLT
Owner Trustee's name.
SECTION 2.02 Collection of Series 200_-__ Lease Payments and Pull Ahead
Payments. (a) The Servicer shall make commercially reasonable efforts to collect
all payments called for under the terms and provisions of the Series 200_-__
Leases as and when the same shall become due in accordance with the Servicer's
Customary Servicing Practices; provided, however, that any waiver, extension or
modification of the terms of any Series 200_-__ Lease shall be granted by the
Servicer solely (i) pursuant to a Pull Ahead Program in accordance and upon full
compliance with the COLT Pull Ahead Funding Agreement or (ii) in accordance with
Section 2.12; and provided, further, that the Servicer shall have no obligation
to collect any payments required under any Administrative Lease Asset or
Warranty Lease Asset following COLT's receipt of the related Administrative
Purchase Payment or Warranty Payment, as applicable.
(b) If GMAC, in its capacity as agent for General Motors Corporation, or
General Motors Corporation institutes a Pull Ahead Program, the Servicer shall
modify the Series 200_- Lease related to any Pull Ahead Lease Asset by accepting
the Pull Ahead Payment from GMAC in accordance and upon full compliance by GMAC
with the COLT Pull Ahead Funding Agreement in lieu of receiving Monthly Lease
Payments from the related Lessee. In connection with any such modification of a
Series 200_-__ Lease in connection with a Pull Ahead Program, the Servicer shall
obtain the full amount of such Pull Ahead Payment from GMAC and deposit it in
the COLT Collection Account at the time and in the manner required by Section
3.04. Consistent with the foregoing, only the Servicer (or any replacement
servicer or delegate of the Servicer) shall be entitled to modify the Series 200
- Lease related to any Pull Ahead Lease Asset; provided, however, that any such
modification shall be subject to and consistent with the provisions of this
Agreement. Consistent with the foregoing, and notwithstanding anything to the
contrary contained in this Agreement (including Section 4.04 of this Agreement)
or any other COLT 200_-__ Basic Document, General Motors Corporation shall have
no right (and the Servicer will not allow General Motors Corporation) to waive,
extend or modify any provision of any Series 200_-__ Lease whether in connection
with a Pull Ahead Program or otherwise.
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(c) Upon the return of a Vehicle to a Dealer following the expiration or
termination of a Series 200_-__ Lease, the Servicer shall cause the Dealer or an
independent third party to inspect such Vehicle to ascertain whether Excess Wear
and Excess Mileage Charges are due and whether there is a need for any repairs,
and shall cause the Dealer or an independent third party to deliver a vehicle
condition report to the Servicer. The Servicer shall require the Lessee to pay
the Excess Wear and Excess Mileage Charges for each Vehicle in accordance with
the terms of the applicable Series 200_-__ Lease.
SECTION 2.03 Collection and Application of Security Deposits. (a) The
Servicer shall separately account for any Security Deposit related to the Series
200_-__ Lease Assets remitted to it or to COLT as agent and bailee for COLT, and
shall apply the proceeds of such Security Deposits in accordance with applicable
law, its Customary Servicing Practices and the Series 200_-__ Leases, including
that the Servicer shall use the Security Deposit in respect of any defaulted
Series 200_-__ Lease for the payment of any amount resulting from the related
Lessee's default or failure to pay all amounts required to be paid under such
Series 200_-__ Lease and any Excess Wear and Excess Mileage Charges.
(b) In any Collection Period in which a Series 200_-__ Lease becomes a
Liquidating Lease Asset, the Servicer shall deposit into the COLT Collection
Account in accordance with Section 3.04, to the extent permitted by such Series
200_-__ Lease and applicable law, an amount equal to the lesser of (i) the
related Security Deposit and (ii) any amount to which the related Security
Deposit shall apply in accordance with such Series 200_-__ Lease and applicable
law, and such amount shall become part of the COLT Collections on the Series
200_-__ Lease Asset for such Collection Period. The remainder of the related
Security Deposit for any such Series 200_-__ Lease Asset, after the deposit of
the amounts, if any, referenced in the preceding sentence, shall be returned to
the related Lessee by the Servicer; provided, however, that the Servicer may
separately account for a Security Deposit (including any interest therein) until
the Lessee has repaid all other charges owed under such Series 200_-__ Lease. As
additional servicing compensation and as part of its Supplemental Servicing Fee,
the Servicer shall also be entitled to the earnings from the investment of
Security Deposits retained as and to the extent permitted by applicable law and
the applicable Series 200_-__ Lease and to the extent not required to be paid to
the Lessees.
SECTION 2.04 Voluntary Early Terminations. If under any Series 200_-__
Lease the Lessee exercises its option to terminate the Series 200_-__ Lease
prior to the Scheduled Lease End Date of such Series 200_-__ Lease, the Servicer
shall, on behalf of COLT, give instructions to VAULT to convey title to the
related Vehicle to the Person purchasing the related Vehicle. If neither the
Lessee nor the Dealer purchases the related Vehicle, the Servicer shall, as soon
as reasonably practicable, consign such vehicle to a motor vehicle wholesale or
retail dealer for resale, sell such Vehicle at a private or public sale or take
other commercially reasonable actions in order to dispose of such Vehicle.
SECTION 2.05 Realization Upon Defaulted Lease Assets. The Servicer shall
use commercially reasonable efforts, consistent with its Customary Servicing
Practices, to repossess or otherwise comparably gain control of any Vehicle that
it has reasonably determined should be repossessed or otherwise controlled
following a default under the Series 200_-__ Lease related to such Vehicle. The
Servicer shall follow its Customary Servicing Practices, which practices,
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policies and procedures may include, among other things, exercising commercially
reasonable efforts to realize upon any recourse to any Dealers, consigning a
Vehicle to a motor vehicle wholesale or retail dealer for resale, selling such
Vehicle at a public or private sale and taking other actions in order to realize
upon such Series 200_-__ Lease and/or Vehicle. The Servicer is authorized to
commence legal proceedings with respect to a Lease Asset in its own name or in
the name of COLT. In connection with the sale of any Vehicle in accordance with
this Section 2.05, the Servicer shall, on behalf of COLT, give instructions to
VAULT to convey title to such Vehicle to the purchaser thereof.
SECTION 2.06 Scheduled Expiration of Series 200_-__ Leases. At the
Scheduled Lease End Date for each Series 200_-__ Lease, if the Lessee elects to
exercise its option under such Lease to purchase the related Vehicle, the
Servicer shall determine whether the Dealer that originated such Lease or COLT
will sell the Vehicle to the Lessee. If the Dealer is to sell the Vehicle to the
Lessee, upon receipt of the purchase price for such Vehicle from the Dealer and
upon direction from the Dealer, the Servicer shall, on behalf of COLT, give
instructions to VAULT to convey title to such Vehicle to the Lessee. If COLT is
to sell the Vehicle to the Lessee, upon receipt of the Lessee Purchase Amount,
the Servicer shall, on behalf of COLT, give instructions to VAULT to convey
title to such Vehicle to the Lessee. If the Lessee does not exercise its option
to purchase the related Vehicle at the Scheduled Lease End Date, the Servicer
shall determine if a Dealer will purchase such Vehicle. If a Dealer elects to
purchase the related Vehicle, upon receipt of the purchase price for such
Vehicle from the Dealer, the Servicer shall, on behalf of COLT, give
instructions to VAULT to convey title to such Vehicle to such Dealer. If neither
the Lessee nor a Dealer purchases the related Vehicle, the Servicer shall, as
soon as reasonably practicable, consign such vehicle to a wholesale or retail
motor vehicle dealer for resale, sell such Vehicle at a private or public sale
or take other commercially reasonable actions in order to dispose of such
Vehicle.
SECTION 2.07 Payment and Reimbursement of Liquidation Expenses. (a) In
connection with the repossession or sale of any Vehicle, the Servicer shall be
entitled, if such Vehicle shall have sustained any damage, to expend funds in
connection with any repair or towards the repossession of such Vehicle if it has
determined in its discretion that such repair and/or repossession shall increase
the proceeds of liquidation of the Vehicle and related Series 200_-__ Lease by
an amount greater than the amount of such expenses.
(b) The Servicer shall be entitled to be reimbursed for the amount of any
Liquidation Expenses it has paid with respect to each Series 200_-__ Lease Asset
at such time as the related Vehicle has been sold or otherwise disposed of by
the Servicer in accordance with Section 3.03(b)(iii).
SECTION 2.08 Third Party Claims. The Servicer shall promptly notify the
COLT Owner Trustee and the COLT Indenture Trustee upon its learning that a claim
has been made against COLT or VAULT that would have a material adverse impact on
the Series 200_-__ Further Holders, COLT or the Series 200_-__ Lease Assets.
SECTION 2.09 Maintenance of Insurance Policies. (a) The Servicer shall, in
accordance with its Customary Servicing Practices, require that each Lessee
shall have obtained all insurance required to be obtained by the Lessee under
the applicable Series 200_-__ Lease.
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The Servicer shall, in accordance with its Customary Servicing Practices,
monitor such insurance with respect to each Series 200_-__ Lease. If a Lessee
under any Series 200_-__ Lease Asset fails to obtain or maintain any insurance
required under the related Series 200_-__ Lease, the Servicer, in accordance
with its Customary Servicing Practices, may deem the related Series 200_-__
Lease to be in default, and the Servicer shall determine whether to repossess
the related Vehicle in accordance with Section 2.05 or otherwise seek
enforcement of such Series 200_-__ Lease. The Servicer shall, in accordance with
its Customary Servicing Practices, take all such actions as are necessary so
that COLT is and remains insured against at least the types of risks and in at
least the amounts as are customary for a lessor of leased vehicles consistent
with the insurance the Servicer has maintained and maintains from time to time
for its own portfolio of retail automotive leases and related leased vehicles.
(b) The Servicer may, instead of procuring insurance against any liability
COLT may incur relating to the use, ownership or operation of any of the
Vehicles, indemnify COLT for losses arising from any such liability so long as
its long-term unsecured debt rating is at least "BBB-" by S&P and "Baa3" by
Xxxxx'x; provided, however, that the insurance policies procured by the Servicer
may in any event be subject to commercially reasonable deductibles and
retentions; and provided, further, that the Servicer shall notify the Rating
Agencies if the Servicer makes a material change in its insurance practices for
its portfolio of retail automotive leases and related leased vehicles. If COLT
incurs any such uninsured losses with respect to a Series 200_-__ Lease Asset,
the Servicer shall deposit such amounts, from its own funds, into the COLT
Collection Account in accordance with Section 3.04 and such amounts shall be
included in COLT Collections with respect to such Series 200_-__ Lease Asset.
SECTION 2.10 Maintenance of Enforceable Ownership Interest, Beneficial
Ownership Interest and Security Interest in the related Vehicles. The Servicer
shall, in accordance with its Customary Servicing Practices, take such steps as
are necessary to (a) establish and maintain the enforceable ownership interest
of VAULT in the Vehicles related to the Series 200_-__ Lease Assets in
accordance with the VAULT Trust Agreement, (b) establish and maintain COLT's
beneficial ownership interest in the Vehicles related to the Series 200_-__
Lease Assets in accordance with the VAULT Trust Agreement and (c) establish and
maintain the perfection of the COLT 200_-__ Secured Noteholders' security
interest in the Vehicles related to the Series 200_-__ Lease Assets. Each COLT
200_-__ Secured Noteholder hereby authorizes the Servicer to re-perfect such
security interest on its behalf as may be needed from time to time.
SECTION 2.11 Custody of Lease Files. Simultaneously with the execution and
delivery of this Agreement, COLT shall enter into the COLT Custodian Agreement
with the COLT Custodian pursuant to which COLT shall revocably appoint the COLT
Custodian, and the COLT Custodian shall accept such appointment, to act as the
agent of COLT as COLT Custodian of the following documents or instruments, which
shall be constructively delivered to COLT with respect to each Series 200_-__
Lease Asset on behalf of the COLT 200_-__ Secured Noteholders:
(a) the fully executed original of such Series 200_-__ Lease;
(b) documents evidencing or related to any insurance policy covering the
related Vehicle;
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(c) the original application of each Lessee, fully executed by each Lessee
on a form that meets GMAC's customary origination standards;
(d) where permitted by law, the original certificate of title (as soon as
it is received) and otherwise such documents, if any, that GMAC keeps on file in
accordance with its customary procedures indicating that title to the Vehicle is
in the name of VAULT and an interest as first lienholder or secured party is in
the name of GMAC; and
(e) any and all other documents that GMAC keeps on file in accordance with
its customary procedures relating to any Series 200_-__ Lease, Lessee or related
Vehicle, including any written modifications or extensions.
SECTION 2.12 Waivers, Modifications and Extensions on the Series 200_-__
Lease Assets. (a) The Servicer may, in its discretion and in accordance with its
Customary Servicing Practices: (i) waive any late payment charge or penalty
interest provision or any other provision of any Series 200_-__ Lease; (ii)
extend the term of any Series 200_-__ Lease and/or the due date for any payment
due from the Lessee thereunder; (iii) modify any provision of any Series 200_-__
Lease; (iv) accept extended performance under any Series 200_-__ Lease Asset;
and (v) take any other action to waive, extend or modify any of the obligations
of the Lessee under any Series 200_-__ Lease; provided, however, that the
Servicer shall not grant any such waiver, extension or modification or take any
other action if such waiver, extension, modification or other action would (A)
impair the enforceable ownership interest of VAULT, the beneficial ownership
interest of COLT, the Lien of the COLT 200_-__ Secured Noteholders in the
related Vehicle or the Lien of the COLT Indenture Trustee for the ratable
benefit of the COLT 200_-__ Secured Noteholders in such Series 200_-__ Lease,
(B) reduce the aggregate dollar amount of the Monthly Lease Payments due under
any Series 200_-__ Lease Asset, (C) extend the term of any Series 200_-__ Lease
Asset beyond the last day of the sixth Collection Period immediately preceding
the Final Maturity Date of the related COLT 200_-__ Secured Note, or (D) modify
the amounts due from the Lessee upon the termination of any Series 200_-__
Lease, except that the Servicer may reduce the Lessee Purchase Amount under any
Series 200_-__ Lease Asset to the extent that the Servicer has determined, in
its discretion, that the reduction of such Lessee Purchase Amount is reasonably
likely to maximize the Sale Proceeds received by the Servicer in connection with
the sale or other liquidation of the related Vehicle; and provided, further,
that the foregoing provisions shall not prohibit the Servicer's waiver of the
Lessee's payment of one or more Monthly Lease Payments with respect to any Pull
Ahead Lease Asset pursuant to a Pull Ahead Program in accordance with and upon
full compliance by GMAC with the COLT Pull Ahead Funding Agreement pursuant to
Section 2.02(b); and, provided, further, that notwithstanding anything to the
contrary in any COLT 200_-__ Basic Document, the Servicer will not allow General
Motors Corporation to waive, extend or modify any provision of any Series
200_-__ Lease whether in connection with a Pull Ahead Program or otherwise.
(b) Notwithstanding any waiver, extension, modification or other action
taken by the Servicer with respect to a Series 200_-__ Lease in accordance with
Section 2.12(a), the Servicer shall make Monthly Payment Advances and Residual
Advances in accordance with Section 3.06 and shall calculate the ABS Value of
such Series 200_-__ Lease Asset as if such waiver, extension, modification or
other action had not occurred.
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SECTION 2.13 Covenants, Representations and Warranties of Servicer. The
Servicer hereby makes representations, warranties and covenants as follows: (a)
The Servicer covenants, with respect to each Series 200_-__ Lease Asset, that
from and after Series 200_-__ Closing Date:
(i) Legal Title to Vehicles. Except as otherwise expressly
contemplated by this Agreement and the VAULT Trust Agreement, the Servicer
shall maintain VAULT as the legal title holder of the related Vehicles;
(ii) No Impairment. The Servicer shall do nothing to impair the
rights of COLT or the Series 200_-__ Further Holders in and to such Series
200_-__ Lease Assets and shall not create or permit to exist on any of the
Series 200_-__ Lease Assets any Lien that arises from any act or omission
of the Servicer or with respect to which the Servicer has any payment
liability; provided, however, that the foregoing covenant shall not limit
or impair the Servicer's right to receive payments owing to it hereunder,
including repayment of Advances made pursuant to the terms hereof; and
(iii) Payment of Sales and Use Tax Amounts and other State Tax
Covenants. The Servicer shall use commercially reasonable efforts to pay
all amounts it has received from the Lessees under the Series 200_-__
Lease Assets with respect to Sales and Use Tax Amounts to the applicable
taxing authorities as the same shall become due and payable under
applicable law. Upon having actual knowledge of any Lien of any applicable
state taxing authority upon any Series 200_-__ Lease Asset that materially
and adversely affects the interests of the COLT 200_-__ Secured
Noteholders, the Servicer shall use commercially reasonable efforts to
cause any such Series 200_-__ Lease Asset to be released from such Lien.
(b) The Servicer hereby represents and warrants as of the Series 200_-__
Closing Date:
(i) Organization and Good Standing. The Servicer has been duly
organized and is validly existing as a corporation in good standing under
the laws of the State of Delaware, with power and authority to own its
properties and to conduct its business as such properties are presently
owned and such business is presently conducted, and has the power,
authority and legal right to service the Series 200_-__ Lease Assets;
(ii) Due Qualification. The Servicer is duly qualified to do
business as a foreign corporation in good standing, and has obtained all
necessary licenses and approvals, in all jurisdictions in which the
ownership or lease of property or the conduct of its business (including
the servicing of the Series 200_-__ Lease Assets as required by this
Agreement) requires such qualification;
(iii) Power and Authority. The Servicer has the power and authority
to execute and deliver this Agreement and to carry out its terms, and the
execution, delivery and performance of this Agreement have been duly
authorized by the Servicer by all necessary corporate action;
(iv) Binding Obligation. This Agreement constitutes a legal, valid
and binding obligation of the Servicer enforceable in accordance with its
terms, except as enforceability may be limited by bankruptcy, insolvency,
reorganization, or other similar
-8-
laws affecting the enforcement of creditors' rights in general and by
general principles of equity, regardless of whether such enforceability is
considered in a proceeding in equity or at law;
(v) No Violation. The consummation of the transactions contemplated
by this Agreement, and the fulfillment of the terms of this Agreement,
shall not conflict with, result in any breach of any of the terms and
provisions of, or constitute (with or without notice or lapse of time) a
default under, the certificate of incorporation or by-laws of the
Servicer, or any indenture, agreement, mortgage, deed of trust or other
instrument to which the Servicer is a party or by which it is bound,
result in the creation or imposition of any Lien upon any of its
properties pursuant to the terms of any such indenture, agreement,
mortgage, deed of trust or other instrument or violate any law or, to the
best of the Servicer's knowledge, any order, rule or regulation applicable
to the Servicer of any court or of any federal or state regulatory body,
administrative agency or other governmental instrumentality having
jurisdiction over the Servicer or any of its properties; and
(vi) No Proceedings. To the Servicer's knowledge, there are no proceedings
or investigations pending, or threatened, before any court, regulatory body,
administrative agency or other tribunal or governmental instrumentality having
jurisdiction over the Servicer or its properties (A) asserting the invalidity of
this Agreement or any other COLT 200_-__ Basic Document, (B) seeking to prevent
the issuance of the COLT 200_- Secured Notes or the consummation of any of the
transactions contemplated by this Agreement or any other COLT 200_-__ Basic
Document, or (C) seeking any determination or ruling that might materially and
adversely affect the performance by the Servicer of its obligations under, or
the validity or enforceability of, this Agreement or any other COLT 200_-__
Basic Document.
SECTION 2.14 Purchase of Lease Assets Upon Breach of Covenant. Upon
discovery by the Servicer, the COLT Owner Trustee or any Series 200_-__ Further
Holder of a breach of any of the covenants set forth in Sections 2.10, 2.12(a)
and 2.13(a), the party discovering such breach shall give prompt written notice
to the other. As of the last day of the second Collection Period following its
discovering or receiving notice of such breach (or, at the Servicer's election,
the last day of the first Collection Period so following), the Servicer shall,
unless it shall have cured such breach in all material respects, purchase from
COLT any Series 200_-__ Lease Asset materially and adversely affected by such
breach and, on or prior to such Payment Date, the Servicer shall pay the
Administrative Purchase Payment, and shall be entitled to receive the Released
Administrative Amount, if any. The obligation of the Servicer to purchase any
Series 200_-__ Lease Asset with respect to which such a breach has occurred and
is continuing shall, if such obligation is fulfilled, constitute the sole remedy
against the Servicer for such breach available to the Series 200_-__ Further
Holders or COLT.
Upon payment of the Administrative Purchase Payment with respect to any
Administrative Lease Asset pursuant to this Section 2.14, COLT shall assign to
the Servicer, without recourse, representation or warranty, all of COLT's right,
title and interest in and to such Series 200_-__ Lease Asset, all monies due
thereon, proceeds from insurance policies to the extent relating to such Series
200_-__ Lease Asset or the related Lessee and the interests of COLT
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in rebates of premiums and other amounts relating to insurance policies to the
extent relating to such Series 200_-__ Lease Asset and any documents relating
thereto, such assignment being an assignment outright and not for security; and
the Servicer shall thereupon own the same free of all further obligation to COLT
and the Series 200_-__ Further Holders with respect thereto. The Servicer shall
then release its claim for reimbursement of the portion of any Outstanding
Advances made with respect to such Administrative Lease Asset.
SECTION 2.15 Servicing Fees; Supplemental Servicing Fees; Payment of
Certain Expenses by Servicer. (a) On each Payment Date, the Servicer (or its
designee) shall receive Servicing Fees out of the Available Distribution Amount
in respect of the Series 200_-__ Lease Assets. The Servicer (or its designee)
shall receive the Supplemental Servicing Fee from any other amounts on account
thereof collected by the Servicer hereunder when and as paid without any
obligation to COLT or any Series 200_-__ Further Holder and shall have no
obligation to deposit any such amount in the COLT Collection Account. To the
extent that any amount of Supplemental Servicing Fees shall be held in the COLT
Collection Account or any other account established hereunder or under any other
COLT 200_-__ Basic Document, such amount shall be withdrawn therefrom and paid
to the Servicer (or its designee) upon presentation of a certificate signed by a
Responsible Officer of the Servicer setting forth, in reasonable detail, the
amount of such Supplemental Servicing Fee.
(b) The Servicer shall pay from its own funds (including Servicing Fees
paid to it but excluding any property in the COLT 200_-__ Trust Estate) all
expenses incurred by it in connection with its activities under this Agreement
and the other COLT 200_-__ Basic Documents, including (i) fees and expenses of
the COLT Owner Trustee under Section 5.9 of the Declaration and under each
Series Supplement to the Declaration, (ii) fees and expenses of the COLT
Indenture Trustee under the COLT Indenture, (iii) fees and expenses of the VAULT
Trustee under the VAULT Trust Agreement, (iv) fees and disbursements of
independent accountants retained in connection with this Agreement, (v) taxes
imposed on the Servicer, expenses incurred in connection with distributions and
reports by the Servicer or on its behalf to the COLT 200_-__ Secured Noteholders
or the COLT 200_-__ Certificateholder, (vi) any Liquidation Expenses with
respect to the Series 200_-__ Lease Assets in accordance with Section 2.07(a),
and (vii) all other fees and expenses not expressly stated under this Agreement
to be for the account of the COLT 200_-__ Secured Noteholders or the COLT
200_-__ Certificateholder; provided, however, that the Servicer shall be
entitled to reimbursement in accordance with Sections 2.07(b) and
3.03(b)(iii)(B) for any Liquidation Expenses incurred with respect to the Series
200_-__ Lease Assets.
SECTION 2.16 Servicer's Certificate. On each Determination Date, the
Servicer shall deliver a Servicer's Certificate to the Series 200_-__ Further
Holders and the Rating Agencies. The Servicer's Certificate shall contain the
following information with respect to the Series 200_- Lease Assets and the COLT
200_-__ Secured Notes for the following Payment Date and the related Collection
Period:
(i) the aggregate amount of Applied Payments Ahead for such Payment
Date and the aggregate amount of Payments Ahead as of the last day of the
related Collection Period and the change in such amount from the last day
of the preceding Collection Period;
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(ii) the aggregate amount of Outstanding Advances after taking into
account all withdrawals and deductions on such Payment Date;
(iii) the amount of COLT Collections for the related Collection
Period;
(iv) the Aggregate ABS Value of the Series 200_-__ Lease Assets at
the opening of business on the first Business Day of the - - related
Collection Period;
(v) the Servicing Fee payable to the Servicer with respect to the
related Collection Period;
(vi) the amount, if any, to be withdrawn from the COLT 200_-__
Reserve Account on such Payment Date;
(vii) the COLT 200_-__ Reserve Account Available Amount on such
Payment Date (after giving effect to any withdrawals to be made on such
date) and the COLT 200_-__ Reserve Account Required Amount on such Payment
Date;
(viii) the Aggregate ABS Value of all Series 200_-__ Lease Assets at
the close of business on the last day of the second preceding Collection
Period, the Aggregate ABS Value of all Series 200_-__ Lease Assets at the
close of business on the last day of the related Collection Period, and
the amount of the Aggregate Principal Payment for such Payment Date;
(ix) the aggregate Secured Note Monthly Accrued Interest for the
related Collection Period;
(x) the Secured Note Interest Distributable Amount for such Payment
Date;
(xi) the Secured Note Principal Distributable Amount for such
Payment Date;
(xii) the Secured Note Principal Carryover Shortfall for such
Payment Date; and
(xiii) the Aggregate Secured Note Principal Balance of the COLT
200_-__ Secured Notes after giving effect to all distributions to - - be
made on such Payment Date.
SECTION 2.17 Annual Statement as to Compliance; Notice of Servicer
Default. (a) The Servicer shall, at its expense, deliver to the COLT Indenture
Trustee and the COLT Owner Trustee, each COLT 200_-__ Secured Noteholder and the
COLT 200_-__ Certificateholder, on or before March 15 of each year, beginning
March 15, 200 , an officer's certificate signed by the President or any Vice
President of the Servicer dated as of December 31 of the immediately preceding
year, in each instance stating that (i) a review of the activities of the
Servicer during the preceding 12-month period (or, with respect to the first
such certificate, such period as shall have elapsed from the Series 200_-__
Closing Date to the date of such certificate) and of the Servicer's performance
under this Agreement and the other COLT 200_-__ Basic Documents has been made
under such officer's supervision, and (ii) to such officer's knowledge, based on
such review, the Servicer has fulfilled all its obligations under such
agreements throughout such
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period, or, if there has been a default in the fulfillment of any such
obligation, specifying each such default known to such officer and the nature
and status thereof. A copy of such certificate may be obtained by any COLT
200_-__ Secured Noteholder or the COLT 200_- Certificateholder by a request in
writing to COLT addressed to the Corporate Trust Office of the COLT Indenture
Trustee or the COLT Owner Trustee, as applicable.
(b) The Servicer shall deliver to the Series 200_-__ Further Holders and
the Rating Agencies promptly after having obtained knowledge thereof, but in no
event later than five Business Days thereafter, written notice in an officer's
certificate of any event which with the giving of notice or lapse of time, or
both, would become a Servicer Default.
SECTION 2.18 Annual Independent Accountants' Report. The Servicer shall,
at its expense, cause a firm of independent accountants, who may render other
services to the Servicer or the Seller, to deliver to the COLT Owner Trustee,
the COLT Indenture Trustee, the COLT 200_-__ Secured Noteholders and the COLT
200_-__ Certificateholder on or before March 15 of each year, beginning March
15, 200 with respect to the 12 months ended on the immediately preceding
December 31 (or, with respect to the first such report, such period as shall
have elapsed from the Series 200_-__ Closing Date to the date of such
certificate), a report (the "Accountant's Report") addressed and delivered to
the Board of Directors of the Servicer and to the COLT Indenture Trustee and the
COLT Owner Trustee. The Accountant's Report shall contain a report to the effect
that such firm has examined the Servicer's assertion that the Servicer has
complied with its Minimum Servicing Standards and that such examination: (i) was
conducted in accordance with the Attestation Protocol and (ii) included
examining, on a test basis, evidence regarding the Servicer's compliance with
its Minimum Servicing Standards. The Accountant's Report shall include an
opinion that the Servicer's assertion with respect to compliance with its
Minimum Servicing Standards is fairly stated in all material respects or shall
report the exceptions that do not permit such opinion. In the event that such
firm requires the COLT Owner Trustee to agree to the examination performed by
such firm, the Servicer shall direct the COLT Owner Trustee in writing to so
agree; it being understood and agreed that the COLT Owner Trustee will deliver
such letter of agreement in conclusive reliance upon the direction of the
Servicer and the COLT Owner Trustee makes no independent inquiry or
investigation as to, and shall have no obligation or liability in respect of,
the sufficiency, validity or correctness of such examination.
SECTION 2.19 Access to Certain Documentation and Information Regarding
Lease Assets. The Servicer shall provide to the Series 200_-__ Further Holders
reasonable access to the documentation regarding the Series 200_-__ Lease
Assets. In each case, such access shall be afforded without charge but only upon
reasonable request and during normal business hours at offices of the Servicer
designated by the Servicer containing such records. Nothing in this Section 2.19
shall derogate from the obligation of the Servicer to observe any applicable law
prohibiting disclosure of information regarding Lessees, and the failure of the
Servicer to provide access as provided in this Section 2.19 as a result of such
obligation shall not constitute a breach of this Section 2.19.
SECTION 2.20 Series 200_-__ Lease Asset Schedule. The Servicer shall
maintain, and shall furnish to any Series 200_-__ Further Holder upon request, a
schedule of Series 200_- Lease Assets in electronic form identifying each Lease
Asset owned by COLT that has been
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allocated as a Series 200_-__ Lease Asset (the "Series 200_-__ Lease Asset
Schedule"). The Series 200_-__ Lease Asset Schedule shall be updated promptly to
reflect the termination of any Series 200_-__ Lease Asset and the removal of any
Series 200_-__ Lease Asset, including any Liquidating Lease Asset,
Administrative Lease Asset, or Warranty Lease Asset. If the Servicer, during a
Collection Period, assigns to a Series 200_-__ Lease Asset an account number
that differs from the account number previously identifying such Series 200_-__
Lease Asset on the Series 200_-__ Lease Asset Schedule, the Servicer shall amend
the Series 200_-__ Lease Asset Schedule by the Payment Date thereafter related
to such Collection Period to report the newly assigned account number. Each such
amendment shall list all new account numbers assigned to Series 200_-__ Lease
Assets during such Collection Period and shall show by cross reference the prior
account numbers identifying such Series 200_-__ Lease Asset on the Series
200_-__ Lease Asset Schedule. Upon request of any Series 200_-__ Further Holder,
the Servicer shall prepare a reconciliation of the current Series 200_-__ Lease
Asset Schedule to the last Series 200_-__ Lease Asset Schedule furnished to such
Series 200_-__ Further Holder before such request indicating the removal of
Lease Assets from the Series 200_-__ Lease Assets.
SECTION 2.21 Additional Servicer Duties. The Servicer shall:
(a) maintain or cause to be maintained the books of COLT on a calendar
year basis on the accrual method of accounting and in compliance with Section
3804(a) of the Statutory Trust Statute with respect to the separate holding and
accounting for the Series 200_-__ Lease Assets and the other assets of the
Series 200_-__ Portfolio;
(b) (i) on behalf of COLT, prepare and file all state, local and federal
tax returns required to be filed by COLT, if any; (ii) send the COLT 200_-__
Secured Noteholders any statements required by state or local tax law; (iii)
provide the COLT Owner Trustee with all information necessary for the COLT Owner
Trustee to send to the COLT 200_- __ Certificateholder the statements required
by federal tax law; and (iv) cause all taxes required to be paid by COLT under
federal, state or local law to be paid (provided that the Servicer shall have no
obligation to pay any taxes required to be paid by COLT other than taxes that
are covered by the indemnification provided by the Servicer in Section
4.01(a)(i));
(c) on behalf of COLT, obtain all licenses, permits and sales tax
exemptions necessary for COLT to conduct the activities contemplated by the COLT
200_-__ Basic Documents;
(d) take such actions as are necessary to cause COLT to be qualified or
licensed to do business in each state where COLT is required to be so qualified
or licensed in order to conduct the activities contemplated by the COLT 200_-__
Basic Documents;
(e) take such actions as are necessary to assure that COLT is at all times
in compliance with all applicable laws, rules, regulations and orders of all
Governmental Authorities;
(f) prepare and file all documents (if any) required to be filed by COLT
under federal and state securities laws;
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(g) maintain all records relating to the COLT 200_-__ Secured Notes,
including all records relating to the issuance, ownership and payment of the
COLT 200_-__ Secured Notes;
(h) exercise the rights and perform the obligations of the Servicer as are
set forth in the Declaration and each Series Supplement to the Declaration with
respect to the Certificates, including cooperating with the COLT Owner Trustee
in enforcing compliance with the transfer restrictions and authorized
denomination requirements applicable to the transfer and exchange of
Certificates, making a determination as to whether such transfer or exchange
complies with such transfer restrictions and authorized denomination
requirements (or waiving compliance), preparing the Certificates for execution
and authentication by the COLT Owner Trustee upon initial issuance, transfer and
exchange and providing the COLT Owner Trustee with written instructions as to
the satisfaction of transfer restrictions and authorized denomination
requirements with respect to the Certificates; and
(i) perform all the duties of COLT under the COLT 200_-__ Basic Documents,
including, making all calculations, and preparing for execution by COLT or the
COLT Owner Trustee or causing the preparation by other appropriate Persons of
all such documents, reports, filings, instruments, certificates, notices and
opinions as it shall be the duty of COLT or the COLT Owner Trustee to prepare,
file or deliver pursuant to the COLT 200_-__ Basic Documents, and at the request
of the COLT Owner Trustee taking all appropriate actions that it is the duty of
COLT or the COLT Owner Trustee to take pursuant to the COLT 200_-__ Basic
Documents. Furthermore, in accordance with the direction of the COLT Owner
Trustee, the Servicer shall administer, perform or supervise the performance of
such other activities in connection with the COLT 200_-__ Collateral (including
the COLT 200_-__ Basic Documents) as are not covered by any of the foregoing
provisions and as are expressly requested by the COLT Owner Trustee and are
reasonably within the capability of the Servicer.
SECTION 2.22 Transfers of Legal Title to Vehicle. If GMAC is both the
Servicer under this Agreement and under the VAULT Trust Agreement, subject to
Section 7.02, GMAC may cause transfers of legal title to the Vehicles required
to be made under this Agreement without delivering the notices or complying with
the formalities required by the VAULT Trust Agreement.
ARTICLE III
ESTABLISHMENT OF ACCOUNTS; DISTRIBUTIONS
SECTION 3.01 Establishment of COLT Collection Account and Payment Ahead
Servicing Account. (a) (i) The Servicer, for the benefit of the COLT 200_-__
Secured Noteholders, shall establish and maintain in the name of the COLT
Indenture Trustee an Eligible Deposit Account known as the Central Originating
Lease Trust 200_-__ Collection Account (the "COLT Collection Account"), bearing
an additional designation clearly indicating that the funds deposited therein
are held for the benefit of the Series 200_-__ Further Holders.
(ii) The Servicer, for the benefit of the Lessees, shall establish
and maintain in the name of the COLT Indenture Trustee an account known as
the Central Originating Lease Trust COLT 200_-__ Payment Ahead
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Servicing Account (the "Payment Ahead Servicing Account"). The Payment
Ahead Servicing Account shall not be property of COLT.
(b) Each of the COLT 200_-__ Accounts shall be segregated accounts
initially established with the COLT Indenture Trustee and maintained by the
Servicer in its discretion with the COLT Indenture Trustee (or another Eligible
Institution) so long as either (i) the deposits of the COLT Indenture Trustee
(or such other Eligible Institution) have the Required Deposit Rating, or (ii)
the COLT 200_-__ Accounts are maintained in the corporate trust department of
the COLT Indenture Trustee (or such other Eligible Institution). All amounts
held in the COLT 200_-__ Accounts shall, to the extent permitted by applicable
laws, rules and regulations, be invested in Eligible Investments, at the written
direction of the Servicer, by the Person at which such COLT 200_-__ Account is
maintained. Such written direction shall certify that any such investment is
authorized by this Section 3.01. Such direction may be a standing direction to
invest all funds from time to time on deposit in an account in a particular
Eligible Investment until subsequent notice from the Servicer. Investments in
Eligible Investments shall be made in the name of the COLT Indenture Trustee or
its nominee or assignee, and, unless otherwise permitted by the Rating Agencies,
may not be sold or disposed of prior to their maturity; provided, however, that
Eligible Investments held in the COLT 200_-__ Reserve Account may be sold or
disposed of prior to their maturity so long as (x) the Servicer directs the COLT
Indenture Trustee to make such sale or disposition, and (y) the Eligible
Investments are sold at a price equal to or greater than the unpaid principal
balance thereof. Should the short-term unsecured debt obligations of the COLT
Indenture Trustee (or any other bank or trust company with which any COLT
200_-__ Account is maintained) no longer have the Required Deposit Rating, then
the Servicer shall, within 10 Business Days (or such longer period not to exceed
30 calendar days, as to which each Rating Agency shall consent), with the COLT
Indenture Trustee's (or such other Eligible Institution) assistance as
necessary, cause each such COLT 200_-__ Account to be moved in the Servicer's
discretion to either (i) a bank or trust company, the short-term unsecured debt
obligations of which shall have the Required Deposit Rating or (ii) the
corporate trust department of the COLT Indenture Trustee (or such other Eligible
Institution). Investment Earnings shall be paid to the Servicer (or its
designee) as Supplemental Servicing Fees. Neither the COLT Owner Trustee nor the
COLT Indenture Trustee shall have any liability for any loss on Eligible
Investments, nor shall the COLT Owner Trustee or the COLT Indenture Trustee have
any liability for transferring funds in or to the COLT 200_-__ Accounts based on
written instructions of the Servicer. The COLT Indenture Trustee or the other
Person holding the Designated Accounts as provided in this Section 3.01(b) shall
be the "Securities Intermediary." If the Securities Intermediary shall be a
Person other than the COLT Indenture Trustee, the Servicer shall obtain the
express agreement of such Person to the obligations of the Securities
Intermediary set forth in this Section 3.01 and an Opinion of Counsel that such
Person can perform such obligations.
(c) With respect to the Designated Account Property, each of the COLT
Indenture Trustee and the Servicer, as applicable, hereby agrees that:
(i) any Designated Account Property that is held in deposit accounts
shall be held solely in Eligible Deposit Accounts; and each such Eligible
Deposit Account shall be subject to the exclusive custody and control of
the Designated Account Owner, and
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the Designated Account Owner or the Servicer on its behalf shall have sole
authority to direct payments with respect thereto;
(ii) any Designated Account Property that constitutes Physical
Property shall be delivered to the Designated Account Owner in accordance
with paragraph (i) of the definition of "Delivery" and shall be held,
pending maturity or disposition, solely by the Designated Account Owner or
a securities intermediary (as such term is defined in 8-102(a)(14) of the
UCC) acting solely for the Designated Account Owner;
(iii) any Designated Account Property that is a book-entry security
held through the Federal Reserve System pursuant to federal book-entry
regulations shall be delivered in accordance with paragraph (ii) of the
definition of "Delivery" and shall be maintained by the Designated Account
Owner, pending maturity or disposition, through continued book-entry
registration of such Designated Account Property as described in such
paragraph;
(iv) any Designated Account Property that is an "uncertificated
security" (as such term is defined in 8-102(a)(18) of the UCC) and that is
not governed by clause (iii) above shall be delivered to the Designated
Account Owner in accordance with paragraph (iii) of the definition of
"Delivery" and shall be maintained by the Designated Account Owner or its
nominee or custodian, pending maturity or disposition, through continued
registration of the Designated Account Owner's (or its nominee's or
custodian's) ownership of such security;
(v) each Designated Account Owner shall maintain each item of
Designated Account Property in the particular Designated Account to which
such item originated and shall not commingle items from different
Designated Accounts; and
(vi) the Servicer agrees to take or cause to be taken such further
actions, to execute, deliver and file or cause to be executed, delivered
and filed such further documents and instruments (including, without
limitation, any UCC financing statements or this Agreement) as may be
necessary in order to perfect the interests of the Designated Account
Owner in the Designated Account Property, including, without limitation,
to promptly execute, deliver and file any financing statements,
amendments, continuation statements, assignments, certificates and other
documents with respect to such interests and to perform all such other
acts as may be necessary in order to perfect or to maintain the perfection
of the Designated Account Owner's security interest.
(d) The Servicer shall have the power, revocable by the COLT Indenture
Trustee, to make withdrawals and payments from the Designated Accounts for the
purpose of permitting the Servicer or the COLT Indenture Trustee to carry out
their respective duties hereunder.
(e) The COLT Indenture Trustee shall possess all right, title and interest
in and to all funds on deposit from time to time in the Designated Accounts and
in all proceeds thereof (except Investment Earnings). Except as otherwise
provided herein, the Designated Accounts shall be under the exclusive dominion
and control of the COLT Indenture Trustee for the benefit
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of the COLT 200_-__ Secured Noteholders and the COLT Indenture Trustee shall
have sole signature power and authority with respect thereto.
(f) The COLT Indenture Trustee and each other Eligible Deposit Institution
with whom a Designated Account is maintained waives any right of set-off,
counterclaim, security interest or bankers' lien to which it might otherwise be
entitled.
(g) At any time that the Monthly Remittance Condition is satisfied, then
(x) Payments Ahead need not be remitted to and deposited in the Payment Ahead
Servicing Account but instead may be remitted to and held by the Servicer and
(y) the Servicer shall not be required to segregate or otherwise hold separate
any Payments Ahead, but the Servicer shall be required to remit Applied Payments
Ahead to the COLT Collection Account in accordance with Section 3.03(b)(ii). The
Servicer shall promptly notify the COLT Indenture Trustee if the Monthly
Remittance Condition ceases to be satisfied. Commencing with the first day of
the first Collection Period that begins at least two Business Days after the day
on which the Monthly Remittance Condition ceases to be satisfied, the Servicer
shall deposit in the Payment Ahead Servicing Account the amount of any Payments
Ahead then held by it, and thereafter, for so long as the Monthly Remittance
Condition continues to be unsatisfied, the Servicer shall deposit any additional
Excess Payments in the Payment Ahead Servicing Account within two Business Days
after receipt thereof. Notwithstanding the foregoing, if the Monthly Remittance
Condition ceases to be satisfied the Servicer may utilize, with respect to any
Payments Ahead then held by it and any additional Excess Payments that it may
subsequently receive, an alternative remittance schedule (which may include a
remittance schedule utilized by the Servicer at a time when the Monthly
Remittance Condition was satisfied), if the Servicer provides the COLT Indenture
Trustee (x) written consent of the COLT 200_-__ Secured Noteholders to such
alternative remittance schedule and (y) written confirmation from the Rating
Agencies that such alternative remittance schedule will not result in the
downgrading or withdrawal by the Rating Agencies of the ratings then assigned to
the Rated Notes. The COLT Indenture Trustee shall be deemed to have no knowledge
of any Servicer Default unless such trustee has received notice of such event or
circumstance from the Seller, the Servicer, or the COLT 200_-__ Secured
Noteholders or unless a Responsible Officer in the Corporate Trust Office of the
COLT Indenture Trustee with knowledge hereof and familiarity herewith has actual
knowledge of such event or circumstance.
SECTION 3.02 COLT 200_-__ Reserve Account. (a) The Servicer, for the
benefit of the COLT 200_-__ Secured Noteholders, shall establish and maintain in
the name of the COLT Indenture Trustee an Eligible Deposit Account known as the
Central Originating Lease Trust COLT 200_-__ Reserve Account (the "COLT 200_-__
Reserve Account"), bearing an additional designation clearly indicating that the
funds deposited therein are held for the benefit of the Series 200_-__ Further
Holders, which shall include the money and other property deposited and held
therein pursuant to this Section 3.02(a) and Section 3.03(c)(iv). On the Series
200_-__ Closing Date, shall deposit the COLT 200_-__ Reserve Account Initial
Deposit in immediately available funds into the COLT 200_-__ Reserve Account.
The COLT 200_-__ Reserve Account shall be a part of the COLT 200_-__ Trust
Estate.
(b) After giving effect to all deposits into or withdrawals from the COLT
200_-__ Reserve Account on any Payment Date, the Servicer shall pay to the COLT
200_-__ Reserve Account Excess Amount on such Payment Date.
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SECTION 3.03 Distributions. (a) On or before each Determination Date, the
Servicer shall calculate the Available Distribution Amount, the Servicing Fee,
the Aggregate Principal Payment, the COLT 200_-__ Reserve Account Required
Amount, the Note Principal Balance, the Aggregate Secured Note Principal
Balance, the Secured Note Monthly Accrued Interest, the Secured Note Interest
Distributable Amount, the Secured Note Principal Distributable Amount and all
other amounts required to determine the amounts, if any, to be deposited into or
paid from each of the COLT Collection Account, the COLT 200_-__ Reserve Account
and the Payment Ahead Servicing Account on or before the related Payment Date.
On or before each Determination Date, the Servicer shall deliver to the COLT
Indenture Trustee a written report specifying the amounts calculated by the
Servicer pursuant to this Section 3.03(a). The COLT Indenture Trustee shall be
entitled to rely upon such report from the Servicer in making any and all
transfers, withdrawals, deposits and distributions pursuant to this Section
3.03.
(b) (i) On or before each Payment Date, the COLT Indenture Trustee shall
withdraw collections made during the related Collection Period that constitute
Excess Payments from the COLT Collection Account (to the extent such amounts
have not been retained by the Servicer pursuant to Section 3.01(g)). The
Servicer shall retain such Excess Payments amounts for its own account, or, if
required pursuant to Section 3.01(g), the Servicer shall deposit such amounts
into the Payment Ahead Servicing Account.
(ii) On or before each Payment Date, the COLT Indenture Trustee
shall transfer from the Payment Ahead Servicing Account (or, if the
Servicer is not required to make deposits to the Payment Ahead Servicing
Account on a daily basis pursuant to Section 3.01(g), the Servicer shall
deposit) to the COLT Collection Account the aggregate Applied Payments
Ahead for such Payment Date.
(iii) On or before each Payment Date, the COLT Indenture Trustee
shall withdraw from the COLT Collection Account and pay to the Servicer an
amount equal to the sum of (A) any Outstanding Advances with respect to
which the Servicer is entitled to reimbursement pursuant to Section
3.06(c) or (d) (to the extent the Servicer has deposited such amounts into
the COLT Collection Account and to the extent the Servicer has not been
previously reimbursed for any such Outstanding Advances pursuant to
Section 3.05(a)), and (B) any Liquidation Expenses (and any unpaid
Liquidation Expenses from prior periods) with --------------- respect to
Series 200_-__ Lease Assets with respect to which the Servicer has sold or
otherwise disposed of the related - - Vehicle during or prior to the
related Collection Period (if the Servicer has not yet deducted such
amounts from Sale Proceeds and has deposited such amounts into the COLT
Collection Account).
(iv) On each Payment Date, the COLT Indenture Trustee shall withdraw
from the COLT 200_-__ Reserve Account, and deposit into the COLT
Collection Account, an amount equal to the lesser of (I) the excess, if
any, of (A) the sum, for such Payment Date, of the amounts specified in
clauses (i) through (iv), (vi) and (vii) of Section 3.03(c), over (B) the
excess of (i) the sum of (x) the COLT Collections with respect to the
Series 200_-__ Lease Assets on such Payment Date, plus (y) the Applied
Extended Lease Payment Amount for such Payment Date, over (ii) the sum of
(x) the amounts withdrawn from the COLT Collection Account with respect to
such Payment Date pursuant to Section 3.03(b)(iii), plus (y) the Unapplied
Extended Lease Payment Amount for such
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Payment Date, and (II) the COLT 200_-__ Reserve Account Available Amount
on such Payment Date.
(c) On each Payment Date, after the withdrawals, deposits and transfers
specified in Section 3.03(b) have been made, to the extent of the Available
Distribution Amount for such Payment Date, the COLT Indenture Trustee shall make
the following distributions from amounts deposited into the COLT Collection
Account in the following order of priority:
(i) first, to the Servicer, the Servicing Fee for the related
Collection Period (to the extent such Servicing Fee has not been retained
by the Servicer pursuant to Section 3.04(b));
(ii) second, to the COLT 200_-__ Secured Noteholders, pro rata based
on the Secured Note Interest Distributable Amount due on each such COLT
200_-__ Secured Note, the Aggregate Secured Note Interest Distributable
Amount due on the COLT 200_-__ Secured Notes on such Payment Date;
(iii) third, to the COLT 200_-__ Secured Noteholders, pro rata based
on the Note Principal Balance of each COLT 200_-__ Secured Note, the
Secured Note Principal Distributable Amount payable on the COLT 200_-__
Secured Notes on such Payment Date;
(iv) fourth, to the COLT 200_-__ Reserve Account, an amount
necessary to cause the COLT 200_-__ Reserve Account Available Amount
(after giving effect to any withdrawal from the COLT 200_-__ Reserve
Account pursuant to Section 3.03(b)(iv) on such Payment Date) to equal the
COLT 200_-__ Reserve Account Required Amount on such Payment Date; and
(v) fifth, the remainder shall be distributed in accordance with the
instructions of the COLT 200_-__ Certificateholder - -- delivered from
time to time.
(d) The parties hereto hereby agree that this Section 3.03 shall supercede
Section 4.1 of the VAULT Trust Agreement with respect to the Series 200 - Lease
Assets.
SECTION 3.04 COLT Collections. (a) If the Monthly Remittance Condition is
not satisfied, commencing with the first day of the first Collection Period that
begins at least two Business Days after the day on which the Monthly Remittance
Condition ceases to be satisfied the Servicer shall remit to the COLT Collection
Account all COLT Collections within two Business Days after receipt thereof.
Notwithstanding the foregoing, if the Monthly Remittance Condition is
unsatisfied, the Servicer may utilize an alternative remittance schedule (which
may include a remittance schedule utilized by the Servicer at a time when the
Monthly Remittance Conditions was satisfied), if the Servicer provides the COLT
Indenture Trustee (x) written consent of the COLT 200_-__ Secured Noteholders to
such alternative remittance schedule and (y) written confirmation from the
Rating Agencies that such alternative remittance schedule will not result in the
downgrading or withdrawal by the Rating Agencies of the ratings then assigned to
the Rated Notes. At all times when the Monthly Remittance Condition is
satisfied, the Servicer (i) shall not be required to segregate or otherwise hold
separate any COLT Collections and Payments Ahead received on the Series 200_-__
Lease Assets and (ii) shall remit an amount
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equal to the COLT Collections received during a Collection Period to the COLT
Collection Account in immediately available funds on or before the related
Payment Date.
(b) Notwithstanding anything to the contrary contained in this Agreement,
for so long as the Monthly Remittance Condition has been satisfied, the Servicer
shall be permitted to retain the Servicing Fee, any Payments Ahead and
reimbursement for any Outstanding Advances and shall deposit into the COLT
Collection Account on each Payment Date only the COLT Collections received by
the Servicer on the Series 200_-__ Lease Assets during the related Collection
Period net of amounts to be distributed to or retained by the Servicer on
account of the Servicing Fee, any Excess Payments and reimbursement of any
Outstanding Advances on the following Payment Date. The Servicer shall, however,
account for all COLT Collections as if all of the deposits and distributions
described herein were made individually.
SECTION 3.05 Application of COLT Collections. For the purposes of this
Agreement and the other COLT 200_-__ Basic Documents, all COLT Collections with
respect to a Series 200_-__ Lease Asset for each Collection Period shall be
applied by the Servicer no later than the related Payment Date as follows:
(a) With respect to each Series 200_-__ Lease Asset (other than an
Administrative Lease Asset, a Warranty Lease Asset or an Extended Lease),
payments by or on behalf of the Lessee that are not Supplemental Servicing Fees,
Excluded Amounts or Sales and Use Tax Amounts shall be applied first to reduce
any Outstanding Advances made pursuant to this Agreement with respect to such
Series 200_-__ Lease Asset. Second, the amount of any such payments that are not
Supplemental Servicing Fees, Excluded Amounts or Sales and Use Tax Amounts in
excess of any such Outstanding Advances with respect to such Series 200_-__
Lease Asset shall be applied to the Monthly Lease Payment with respect to such
Series 200_-__ Lease Asset. With respect to any Series 200_-__ Lease Asset and
any Collection Period, the "Excess Payment" shall equal the excess, if any, of
(x) the amount of the payments by or on behalf of the related Lessee and
received during such Collection Period that are not Supplemental Servicing Fees,
Excluded Amounts, Sales and Use Tax Amounts or Applied Payments Ahead, over (y)
the amounts applied with respect to such Series 200_-__ Lease Asset pursuant to
the two preceding sentences. If the amounts applied under the first two
sentences of this Section 3.05(a) shall be less than the Monthly Lease Payment,
whether as a result of any extension granted to the Lessee or otherwise, then an
amount equal to the Applied Payments Ahead, if any, with respect to such Series
200_-__ Lease Asset shall be applied by the Servicer to the extent of the
shortfall, and the Payments Ahead with respect to such Series 200_-__ Lease
Asset shall be reduced accordingly.
(b) With respect to each Administrative Lease Asset and Warranty Lease
Asset, payments by or on behalf of the Lessee shall be applied in the same
manner in accordance with Section 3.05(a), except that any Released
Administrative Amount or Released Warranty Amount shall be remitted to the
Servicer or the Seller, as applicable. Any Warranty Payment shall be applied to
reduce any Outstanding Advances and such Warranty Payment or an Administrative
Purchase Payment, as applicable, shall be applied to the Monthly Lease Payment,
in each case to the extent that the payments by or on behalf of the Lessee shall
be insufficient, and then to prepay such Series 200_-__ Lease Asset in full.
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(c) With respect to each Extended Lease, payments by or on behalf of the
Lessee that are not Supplemental Servicing Fees, Excluded Amounts or Sales and
Use Tax Amounts shall be applied first to reduce any Outstanding Advances made
pursuant to this Agreement with respect to such Series 200_-__ Lease Asset.
Second, the amount of any such payments that are not Supplemental Servicing
Fees, Excluded Amounts or Sales and Use Tax Amounts in excess of any such
Outstanding Advances with respect to such Extended Lease shall be applied to the
Extended Lease Payment with respect to such Extended Lease.
SECTION 3.06 Advances.
(a) Subject to the following sentence, as of the last day of each
Collection Period, with respect to each Series 200_-__ Lease (other than an
Administrative Lease Asset or a Warranty Lease Asset), if there is a shortfall
in the Monthly Lease Payment remaining after application of the Applied Payments
Ahead pursuant to Section 3.05(a), the Servicer shall advance an amount equal to
such shortfall (such amount, a "Monthly Payment Advance"). The Servicer shall be
obligated to make a Monthly Payment Advance in respect of a Series 200_-__ Lease
only to the extent that the Servicer, in its sole discretion, shall determine
that such Monthly Payment Advance shall be recoverable from subsequent
collections or recoveries on such Series 200_-__ Lease Asset.
(b) As of the last day of each Collection Period, with respect to each
Series 200_-__ Lease (i) which terminated by reason of having reached its
Scheduled Lease End Date 120 days or more prior to the last day of such
Collection Period, and (ii) for which the related Vehicle has not been sold
during or prior to such Collection Period, the Servicer shall advance an amount
(the "Residual Advance") equal to the lesser of (x) the Lease Residual for the
related Vehicle, reduced, in the case of any Series 200_-__ Lease Asset that is
an Extended Lease, by the aggregate amount of any Extended Lease Payments on
such Series 200_-__ Lease Asset received by the Servicer since the Scheduled
Lease End Date of such Series 200_-__ Lease Asset, and (y) the amount that the
Servicer, in its sole discretion, has estimated shall be recoverable from the
sale or other disposition of the Vehicle related to such Series 200_-__ Lease.
(c) The Servicer shall be reimbursed for Outstanding Advances with respect
to a Series 200_-__ Lease Asset from subsequent COLT Collections received with
respect to such Series 200_-__ Lease Asset.
(d) If the sources specified in Section 3.06(c) are insufficient to
reimburse all Outstanding Advances with respect to a Series 200_-__ Lease upon
collection of all amounts expected by the Servicer to be collected with respect
to such Series 200_-__ Lease and the related Vehicle, then the Servicer shall be
entitled to reimbursement of any remaining Outstanding Advances with respect to
such Series 200_-__ Lease from COLT Collections on any other Series 200_-__
Lease Assets.
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ARTICLE IV
THE SERVICER
SECTION 4.01 Liability of Servicer; Indemnities. (a) The Servicer shall be
liable in accordance with this Agreement only to the extent of the obligations
in this Agreement specifically undertaken by the Servicer. Such obligations
shall include the following:
(i) The Servicer shall indemnify, defend and hold harmless COLT, the
COLT Indenture Trustee and the COLT Owner Trustee from and against any
taxes that may at any time be asserted against any such Person with
respect to the transactions contemplated in the COLT 200_-__ Basic
Documents, including any sales, use, gross receipts, general corporation,
tangible personal property, privilege or license taxes (but not including
any taxes asserted with respect to, and as of the date of, the sale of the
Series 200_-__ Lease Assets to COLT or the issuance and original sale of
the COLT 200_-__ Certificates or the COLT 200_-__ Secured Notes, or
asserted with respect to ownership of the Series 200_-__ Lease Assets, or
federal or other income taxes arising out of distributions on the COLT
200_-__ Certificates or COLT 200_-__ Secured Notes, or any fees or
compensation payable to any such Person) and costs and expenses in
defending against the same;
(ii) The Servicer shall defend, indemnify and hold harmless COLT,
the COLT Owner Trustee and each Series 200_-__ Further Holder (each of the
foregoing, an "Indemnified Person") from and against any and all costs,
expenses, losses, damages, claims and liabilities arising out of or
resulting from the use or operation by the Lessee or by the Servicer or
any Affiliate of the Servicer, of any Vehicle related to a Series 200_-__
Lease Asset;
(iii) The Servicer shall indemnify, defend and hold harmless the
Indemnified Persons from and against any and all costs, expenses, losses,
claims, damages and liabilities to the extent that such cost, expense,
loss, claim, damage or liability arose out of, or was imposed upon any
such Indemnified Person through the negligence, willful misfeasance or bad
faith of the Servicer in the performance of its duties under this
Agreement or under any other COLT 200_-__ Basic Document, or by reason of
reckless disregard of its obligations and duties under this Agreement or
any other COLT 200_-__ Basic Documents.
(iv) The Servicer shall indemnify, defend and hold harmless the COLT
Indenture Trustee, the COLT Owner Trustee and their respective agents and
servants from and against all costs, expenses, losses, claims, damages and
liabilities arising out of or incurred in connection with (x) in the case
of the COLT Owner Trustee, the COLT Indenture Trustee's performance of its
duties under the COLT Indenture and any other COLT 200_-__ Basic
Documents, (y) in the case of the COLT Indenture Trustee, the COLT Owner
Trustee's performance of its duties under the Declaration and the COLT
200_-__ Supplement to the Declaration or (z) the acceptance,
administration or performance by, or action or inaction of, the COLT Owner
Trustee or the COLT Indenture Trustee, as applicable, of the trusts and
duties contained in this Agreement or the other COLT 200_-__ Basic
Documents, including the administration of the COLT
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200_-__ Trust Estate, except to the extent that such cost, expense, loss,
claim, damage or liability: (A) is due to the willful misfeasance, bad
faith or negligence (except for errors in judgment) of the Person
indemnified, (B) to the extent otherwise payable to the COLT Owner
Trustee, arises from the COLT Owner Trustee's breach of any of its
representations or warranties set forth in Section 5.6 of the Declaration,
(C) to the extent otherwise payable to the COLT Indenture Trustee, arises
from the COLT Indenture Trustee's breach of any of its representations or
warranties set forth in the COLT Indenture or (D) arises out of or is
incurred in connection with the performance by the COLT Indenture Trustee
of the duties of successor Servicer hereunder.
(b) Indemnification under this Section 4.01 shall include reasonable fees
and expenses of external counsel and expenses of litigation. If the Servicer has
made any indemnity payments pursuant to this Section 4.01 and the recipient
thereafter collects any of such amounts from others, the recipient shall
promptly repay such amounts collected to the Servicer, without interest.
SECTION 4.02 Merger or Consolidation of, or Assumption of the Obligations
of, the Servicer. Any corporation or other entity (a) into which the Servicer
may be merged or consolidated, (b) resulting from any merger, conversion or
consolidation to which the Servicer shall be a party, (c) succeeding to the
business of the Servicer, or (d) more than 50% of the voting stock of which is
owned directly or indirectly by General Motors Corporation and which is
otherwise servicing GMAC's retail lease assets, which corporation or other
entity in any of the foregoing cases executes an agreement of assumption to
perform every obligation of the Servicer under this Agreement, shall be the
successor to the Servicer under this Agreement without the execution or filing
of any paper or any further act on the part of any of the parties to this
Agreement, anything in this Agreement to the contrary notwithstanding. The
Servicer shall provide notice of any merger, conversion, consolidation or
succession pursuant to this Section 4.02 to the Rating Agencies and the COLT
Indenture Trustee prior to the effective date of any such merger, conversion,
consolidation or succession.
SECTION 4.03 Limitation on Liability of Servicer and Others.
(a) Neither the Servicer nor any of the directors or officers or employees
or agents of the Servicer shall be under any liability to COLT or any
Indemnified Person, except as provided in this Agreement, for any action taken
or for refraining from the taking of any action pursuant to this Agreement, or
for errors in judgment; provided, however, that this provision shall not protect
the Servicer or any such Person against any liability that would otherwise be
imposed by reason of willful misfeasance, bad faith or negligence (except errors
in judgment) in the performance of duties or by reason of reckless disregard of
obligations and duties under this Agreement. The Servicer and any director,
officer or employee or agent of the Servicer may rely in good faith on the
advice of counsel or on any document of any kind prima facie properly executed
and submitted by any Person respecting any matters arising under this Agreement.
(b) The Servicer and any director, officer, employee or agent of the
Servicer shall be reimbursed by (x) the COLT Owner Trustee for any contractual
damages, liability or expense incurred by reason of the COLT Owner Trustee's
willful misfeasance, bad faith or negligence (except errors in judgment) in the
performance of the COLT Owner Trustee's duties under this
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Agreement, the COLT Indenture, the Declaration and the COLT 200_-__ Supplement
to the Declaration or by reason of reckless disregard of its obligations and
duties under this Agreement, the COLT Indenture, the Declaration and the COLT
200_-__ Supplement to the Declaration, and (y) the COLT Indenture Trustee for
any contractual damages, liability or expense incurred by reason of the COLT
Indenture Trustee's willful misfeasance, bad faith or negligence (except errors
in judgment) in the performance of the COLT Indenture Trustee's duties under
this Agreement or any other COLT 200_-__ Basic Documents or by reason of
reckless disregard of its obligations and duties under this Agreement or any
other COLT 200_-__ Basic Documents.
(c) Except as provided in this Agreement, the Servicer shall not be under
any obligation to appear in, prosecute or defend any legal action that is not
incidental to its duties to service the Series 200_-__ Lease Assets in
accordance with this Agreement and that in its opinion may involve it in any
expense or liability; provided, however, that the Servicer may undertake any
reasonable action that it may deem necessary or desirable in respect of this
Agreement and the rights and duties of the parties to this Agreement and the
interests of the Series 200_-__ Further Holders under this Agreement. In such
event, the reasonable legal expenses and costs for such action and any liability
resulting therefrom shall be payable from collections received on the Series
200_-__ Lease Assets related to any such legal action.
SECTION 4.04 Delegation of Duties. So long as GMAC acts as Servicer, the
Servicer may, at any time without notice or consent, delegate any duties under
this Agreement to General Motors Corporation or any corporation more than 50% of
the voting stock of which is owned, directly or indirectly, by General Motors
Corporation. The Servicer may at any time perform specific duties as servicer
through sub-contractors who are in the business of servicing automotive retail
leases; provided, however, that no such delegation shall relieve the Servicer of
its responsibility with respect to such duties.
SECTION 4.05 Servicer Not to Resign. Subject to the provisions of Section
4.02, the Servicer shall not resign from the obligations and duties imposed on
it by this Agreement as Servicer except (x) upon determination that the
performance of its duties under this Agreement is no longer permissible under
applicable law or (y) upon determination by the board of directors of the
Servicer that by reason of change in applicable legal requirements the continued
performance by the Servicer of its duties as Servicer under this Agreement would
cause it to be in violation of such legal requirements in a manner that would
result in a material adverse effect on the Servicer or its financial condition,
said determination to be evidenced by resolutions of the board of directors to
such effect (provided that any Servicer other than GMAC may resign if upon such
resignation another successor Servicer will perform the duties of Servicer
hereunder and such Servicer has been approved by the holders of a majority of
the then outstanding principal amount of COLT 200_-__ Secured Notes). Any such
determination permitting the resignation of the Servicer shall be evidenced by
an Opinion of Counsel to such effect delivered to each of the Series 200_-__
Further Holders. No such resignation shall become effective until and unless the
COLT Indenture Trustee or a successor Servicer shall have entered into a
servicing agreement with COLT, such agreement to have substantially the same
provisions of this Agreement. COLT shall not unreasonably fail to consent to
such a servicing agreement. The resigning Servicer shall promptly provide notice
of its resignation to each of the Rating Agencies and Series 200_-__ Further
Holders.
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ARTICLE V
SERVICER DEFAULTS
SECTION 5.01 Servicer Defaults. For purposes of this Agreement, each of
the following shall constitute a "Servicer Default":
(a) any failure by the Servicer to deposit any required payment into any
COLT 200_-__ Account (including to obtain and deposit Pull Ahead Payments under
Section 2.02(b)) or to direct the COLT Indenture Trustee to make any required
distributions from any COLT 200_-__ Account, which failure continues unremedied
for a period of five Business Days after (x) written notice thereof is received
by the Servicer or (y) discovery of such failure by an officer of the Servicer;
(b) any failure on the part of the Servicer to duly observe or perform in
any material respect any other covenants or agreements of the Servicer set forth
in this Agreement or in any other COLT 200_-__ Basic Document, which failure (i)
materially and adversely affects the rights of the COLT 200_-__ Secured
Noteholder, and (ii) continues unremedied for a period of 90 days after (x) the
date on which written notice of such failure shall have been given to the
Servicer or (y) discovery of such failure by an officer of the Servicer;
(c) the entry of a decree or order by a court or agency or supervisory
authority having jurisdiction in the premises for the appointment of a
conservator, receiver or liquidator for the Servicer, in any insolvency,
readjustment of debt, marshalling of assets and liabilities or similar
proceedings, or for the winding up or liquidation of their respective affairs,
and the continuance of any such decree or order unstayed and in effect for a
period of 60 consecutive days; or
(d) the consent by the Servicer to the appointment of a conservator or
receiver or liquidator in any insolvency, readjustment of debt, marshalling of
assets and liabilities, or similar proceedings of or relating to the Servicer or
of or relating to substantially all of its property; or the Servicer shall admit
in writing its inability to pay its debts generally as they become due, file a
petition to take advantage of any applicable insolvency or reorganization
statute, make an assignment for the benefit of its creditors or voluntarily
suspend payment of its obligations.
Notwithstanding the foregoing, there will be no Servicer Default where a
Servicer Default would otherwise exist under clause (a) above for a period of
ten Business Days or under clause (b) for a period of 60 days if the delay or
failure giving rise to the default was caused by an act of God or other similar
occurrence. Upon the occurrence of any of those events, the Servicer shall not
be relieved from using its best efforts to perform its obligations in a timely
manner in accordance with the terms of the COLT Servicing Agreement and the COLT
Sale and Contribution Agreement and the Servicer shall provide the COLT
Indenture Trustee, the COLT Owner Trustee, COLT, LLC and the CARAT Indenture
Trustee, as holder of the Secured Notes, prompt notice of that failure or delay
by it, together with a description of its efforts to so perform its obligations.
SECTION 5.02 Consequences of a Servicer Default. If a Servicer Default has
occurred and is continuing, the holders of at least two-thirds of the then
outstanding principal amount of the COLT 200_-__ Secured Notes may terminate all
of the rights and obligations of the Servicer
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under this Agreement but any such termination shall not relieve the Servicer for
any liability that accrued prior to such termination; provided, however, that
upon the occurrence of any Servicer Default set forth in Section 5.01(c) or (d),
such termination of the Servicer's rights and obligations shall be immediate and
no notice will be required. On or after the receipt by the Servicer of such
written notice, all authority and power of the Servicer under this Agreement,
whether with respect to the Series 200_-__ Lease Assets or otherwise, shall pass
to and be vested in the COLT Indenture Trustee pursuant to and under this
Section 5.02. The COLT Indenture Trustee is authorized and empowered by this
Agreement to execute and deliver, on behalf of the Servicer, as attorney-in-fact
or otherwise, any and all documents and other instruments, and to do or
accomplish all other acts or things necessary or appropriate to effect the
purposes of such notice of termination, whether to complete the transfer and
endorsement of the Series 200_-__ Lease Assets and related documents, or
otherwise. The Servicer agrees to cooperate with the COLT Indenture Trustee in
effecting the termination of the responsibilities and rights of the Servicer
under this Agreement, including, without limitation, the transfer to the COLT
Indenture Trustee for administration by it of all cash amounts that shall at the
time be held by the Servicer for deposit, or have been deposited by the
Servicer, in the COLT 200_-__ Accounts or thereafter received with respect to
the Series 200_-__ Lease Assets and all Payments Ahead that shall at that time
be held by the Servicer.
SECTION 5.03 COLT Indenture Trustee to Act; Appointment of Successor. On
and after the time the Servicer receives a notice of termination pursuant to
Section 5.02, the COLT Indenture Trustee shall be the successor in all respects
to the Servicer in its capacity as servicer under this Agreement and the
transactions set forth or provided for in this Agreement, and shall be subject
to all the responsibilities, restrictions, duties and liabilities relating
thereto placed on the Servicer by the terms and provisions of this Agreement. As
compensation therefor, the COLT Indenture Trustee shall be entitled to such
compensation as the Servicer would have been entitled to under this Agreement if
no such notice of termination had been given, including the Servicing Fee and
the Supplemental Servicing Fee. Notwithstanding the above, the COLT Indenture
Trustee may, if it shall be unwilling so to act, or shall, if it is legally
unable so to act, appoint, or petition a court of competent jurisdiction to
appoint, a successor (i) having a net worth of not less than $100,000,000, (ii)
having a long-term unsecured debt rating from Xxxxx'x of at least "Baa3" (unless
such requirement is expressly waived by Xxxxx'x) and (iii) whose regular
business includes the servicing of automotive receivables, as the successor to
the Servicer under this Agreement in the assumption of all or any part of the
responsibilities, duties or liabilities of the Servicer under this Agreement. In
connection with such appointment and assumption, the COLT Indenture Trustee may
make such arrangements for the compensation of such successor out of payments on
Series 200_-__ Lease Assets as it and such successor shall agree; provided,
however, that no such compensation shall be in excess of that permitted the
Servicer under this Agreement. The COLT Indenture Trustee and such successor
shall take such action, consistent with this Agreement, as shall be necessary to
effectuate any such succession.
SECTION 5.04 Notification to the Series 200_-__ Further Holders and the
Rating Agencies. Upon any termination of, or appointment of a successor to, the
Servicer pursuant to this Article V, the COLT Indenture Trustee shall give
prompt written notice thereof to the Series 200_-__ Further Holders and the
Rating Agencies. The COLT Indenture Trustee shall not be deemed to have
knowledge of any Servicer Default unless the COLT Indenture Trustee has received
notice of such event or circumstance from the Servicer in an officer's
certificate or from
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the COLT 200_-__ Secured Noteholders or, unless a Responsible Officer of the
COLT Indenture Trustee with knowledge hereof and familiarity herewith has actual
knowledge of such event or circumstance. If the Servicer obtains knowledge that
any Servicer Default has occurred, the Servicer shall promptly deliver notice of
such event to the COLT Indenture Trustee, which notice shall set forth in
reasonable detail the nature of the facts surrounding such event.
SECTION 5.05 Waiver of Past Servicer Defaults. The COLT 200_-__ Secured
Noteholders may waive any default by the Servicer in the performance of its
obligations hereunder and its consequences. Upon any such waiver of a past
default, such default shall cease to exist, and any Servicer Default arising
therefrom shall be deemed to have been remedied for every purpose of this
Agreement. No such waiver shall extend to any subsequent or other default or
impair any right consequent thereon.
SECTION 5.06 Repayment of Outstanding Advances. If the identity of the
Servicer shall change, the predecessor Servicer shall be entitled to receive, to
the same extent as if it were still the Servicer hereunder pursuant to Article
III, to the extent of available funds, reimbursement for all Outstanding
Advances that were made by such predecessor Servicer and have not been repaid.
ARTICLE VI
OPTIONAL PURCHASE; TERMINATION
SECTION 6.01 Optional Repurchase of All Series 200_-__ Lease Assets. The
Servicer shall have the option to purchase all but not less than all of the
Series 200_-__ Lease Assets on any Payment Date following the date on which the
Aggregate ABS Value of the Series 200_-__ Lease Assets is less than 10% of the
Aggregate ABS Value of the Series 200_-__ Lease Assets on the Series 200_-__
Closing Date (such date, the "Optional Purchase Date"). To exercise such option,
the Servicer shall (A) furnish to the Series 200_-__ Further Holders notice of
its intention to exercise such option and of the Optional Purchase Date (such
notice to be furnished not later than 25 days prior to such Optional Purchase
Date) and (B) deposit in the COLT Collection Account on such Optional Purchase
Date an amount equal to the Aggregate ABS Value of the Series 200_-__ Lease
Assets on the Optional Purchase Date (such amount, the "Optional Purchase
Price"); provided, however, that such amount (when added to any funds then on
deposit in the COLT 200_-__ Accounts) must be at least equal to the sum of (i)
the Aggregate Secured Note Principal Balance on such Optional Purchase Date and
(ii) the aggregate Secured Note Monthly Accrued Interest on all COLT 200_-__
Secured Notes on such Optional Purchase Date. Upon the making of such deposit in
the COLT Collection Account, the COLT 200_-__ Secured Notes shall be deemed
satisfied and discharged, and the COLT 200_-__ Certificateholder shall succeed
to all interests in and to the COLT 200_-__ Trust Estate (other than the COLT
200_-__ Reserve Account).
SECTION 6.02 Termination of Agreement. This Agreement shall, except as
otherwise provided herein, terminate upon the earliest of: (a) the termination
of COLT pursuant to Article VI of the Declaration; (b) the discharge of the
Servicer in accordance with the terms hereof; or (c) the mutual written consent
of the parties hereto; provided, however, that this Agreement shall not be
terminated unless all principal and interest on the COLT 200_-__ Secured Notes
have been paid in full. Upon termination of this Agreement, the Servicer shall
pay over to COLT, or any
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other Person entitled thereto, all monies held by the Servicer on behalf of COLT
pursuant to this Agreement.
ARTICLE VII
MISCELLANEOUS PROVISIONS
SECTION 7.01 Amendment. (a) This Agreement may be amended by the Servicer,
COLT and the COLT Indenture Trustee without the consent of the COLT 200_-__
Certificateholder or any of the COLT 200_-__ Secured Noteholders (i) to cure any
ambiguity, (ii) to correct or supplement any provision in this Agreement that
may be defective or inconsistent with any other provision of this Agreement,
(iii) to add or supplement any credit enhancement for the benefit of the COLT
200_-__ Secured Noteholders, (iv) to add to the covenants, restrictions or
obligations of the Servicer, the COLT Owner Trustee or (v) to add, change or
eliminate any other provision of this Agreement in any manner that shall not,
adversely affect in any material respect the interests of the COLT 200_-__
Secured Noteholders.
(b) This Agreement may also be amended from time to time by the Servicer,
COLT and the COLT Indenture Trustee with the consent of the holders of a
majority of the then outstanding principal amount of the COLT 200_-__ Secured
Notes, which consent, whether given pursuant to this Section 7.01(b) or pursuant
to any other provision herein, shall be conclusive and binding on such Persons
and on all future holders of COLT 200_-__ Certificates and COLT 200_-__ Secured
Notes for the purpose of adding any provisions to this Agreement or changing in
any manner or eliminating any of the provisions of this Agreement, or of
modifying in any manner the rights of the COLT 200_-__ Certificateholder or COLT
200_-__ Secured Noteholders; provided, however, that no such amendment shall (i)
increase or reduce in any manner the amount of, or accelerate or delay the
timing of, collections of payments on the Series 200_-__ Lease Assets or
distributions that shall be required to be made on any COLT 200_-__ Secured
Note, or (ii) reduce the percentage in this Section 7.01 required to consent to
any action or amendment, without the consent of all of the holders of the COLT
200_-__ Secured Notes then outstanding.
(c) Prior to the execution of any amendment or consent pursuant to Section
7.01(a) or (b), the COLT Indenture Trustee shall furnish written notice of the
substance of such amendment or consent to the Rating Agencies.
(d) Promptly after the execution of any amendment or consent pursuant to
Section 7.01(a) or (b), the COLT Indenture Trustee shall furnish a copy of such
amendment or consent to each COLT 200_-__ Secured Noteholder.
(e) It shall not be necessary for the consent of the COLT 200_-__ Secured
Noteholders pursuant to Section 7.01(b) to approve the particular form of any
proposed amendment or consent, but it shall be sufficient if such consent shall
approve the substance thereof. The manner of obtaining such consents (and any
other consents of COLT 200_-__ Secured Noteholders provided for in this
Agreement) and of evidencing the authorization of the execution thereof by the
COLT 200_-__ Secured Noteholders shall be subject to such reasonable
requirements as the COLT Indenture Trustee may prescribe, including the
establishment of record dates.
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(f) Prior to the execution of any amendment to this Agreement, the COLT
Indenture Trustee and the COLT Owner Trustee shall be entitled to receive and
conclusively rely upon an Opinion of Counsel stating that the execution of such
amendment is authorized or permitted by this Section 7.01. The COLT Indenture
Trustee and the COLT Owner Trustee, may, but shall not be obligated to, enter
into any such amendment which affects such trustee's own rights, duties or
immunities under this Agreement or otherwise.
SECTION 7.02 Protection of Title to COLT. (a) The Servicer shall maintain
accounts and records as to the Series 200_-__ Lease Assets accurately and in
sufficient detail to permit the reader thereof to know at any time the status of
the Series 200_-__ Lease Assets, including payments and recoveries on (or with
respect to) each Series 200_-__ Lease and the amounts deposited in the COLT
Collection Account, the COLT 200_-__ Reserve Account, and the Applied Payment
Ahead Account and any Payments Ahead held by the Servicer in respect of each
Series 200_-__ Lease.
(b) The Servicer shall maintain its computer systems so that the
Servicer's master computer records (including any back-up archives) that refer
to any Series 200_-__ Lease Asset indicate clearly that such Series 200_-__
Lease Asset is owned by COLT. Indication of COLT's ownership of a Series 200_-__
Lease Asset shall be deleted from or modified on the Servicer's computer systems
when, and only when, in the case of a Series 200_-__ Lease, the Series 200_-__
Lease has been paid in full or purchased by the Servicer and, in the case of a
Vehicle, when, and only when, such Vehicle is no longer owned by COLT.
(c) If at any time the Servicer proposes to sell, grant a security
interest in, or otherwise transfer any interest in automotive leases to any
prospective purchaser, lender or other transferee, the Servicer shall give to
such prospective purchaser, lender or other transferee computer tapes, records
or print-outs (including any restored from back-up archives) that, if they refer
in any manner whatsoever to any Series 200_-__ Lease Asset, indicate clearly
that such Series 200_-__ Lease Asset is owned by COLT unless such Series 200_-__
Lease Asset has been paid in full or repurchased by the Seller or purchased by
the Servicer.
(d) Neither Servicer nor COLT shall at any time hold legal title to any
Vehicles. Legal title to the Vehicles shall remain with VAULT with the VAULT
Trustee as nominee for COLT.
SECTION 7.03 Notices. All demands, notices and communications upon or to
GMAC, the Servicer, COLT, the COLT 200__-___ Secured Noteholders or the COLT
Owner Trustee on behalf of COLT under this Agreement shall be delivered as
specified in Part III of Exhibit A.
SECTION 7.04 Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE DOMESTIC LAWS OF THE STATE OF NEW YORK, WITHOUT
REGARD TO THE PRINCIPLES OF CONFLICTS OF LAWS THEREOF OR OF ANY OTHER
JURISDICTION (EXCEPT SECTIONS 5-1401 AND 5-1402 OF THE NEW YORK GENERAL
OBLIGATIONS LAW), AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES UNDER
THIS AGREEMENT SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
-29-
SECTION 7.05 Severability of Provisions. If any one or more of the
covenants, agreements, provisions or terms of this Agreement is for any reason
whatsoever held invalid, then such covenants, agreements, provisions or terms
shall be deemed severable from the remaining covenants, agreements, provisions
or terms of this Agreement and shall in no way affect the validity or
enforceability of the other provisions of this Agreement.
SECTION 7.06 Third-Party Beneficiaries. This Agreement shall inure to the
benefit of and be binding upon and enforceable by the parties hereto, the COLT
Owner Trustee, the COLT 200_-__ Certificateholder, the COLT 200_-__ Secured
Noteholders, CARAT and their respective successors and permitted assigns. Except
as otherwise provided in this Section 7.06, no other Person shall have any right
or obligation hereunder.
SECTION 7.07 Headings. The headings in this Agreement are included for
convenience only and shall not affect the meaning or interpretation of any
provision of this Agreement.
SECTION 7.08 Binding Effect. The provisions of this Agreement shall be
binding upon and inure to the benefit of the respective successors and permitted
assigns of the parties hereto, and all such provisions shall inure to the
benefit of COLT.
SECTION 7.09 Execution in Counterparts. This Agreement may be executed in
any number of counterparts, each of which so executed and delivered shall be
deemed to be an original, but all of which counterparts shall together
constitute but one and the same instrument.
SECTION 7.10 Rights Cumulative. All rights and remedies from time to time
conferred upon or reserved to COLT, the COLT Owner Trustee, and the COLT
Indenture Trustee on behalf of COLT, the Series 200_-__ Further Holders or the
Servicer or to any or all of the foregoing are cumulative, and none is intended
to be exclusive of another. No delay or omission in insisting upon the strict
observance or performance of any provision of this Agreement, or in exercising
any right or remedy, shall be construed as a waiver or relinquishment of such
provision, nor shall it impair such right or remedy. Every right and remedy may
be exercised from time to time and as often as deemed expedient.
SECTION 7.11 Further Assurances. Each party will do such acts, and execute
and deliver to any other party such additional documents or instruments as may
be reasonably requested in order to effect the purposes of this Agreement and to
better assure and confirm unto the requesting party its rights, powers and
remedies hereunder.
SECTION 7.12 No Waiver. No waiver by any party hereto of any one or more
defaults by any other party or parties in the performance of any of the
provisions of this Agreement shall operate or be construed as a waiver of any
future default or defaults, whether of a like or different nature. No failure or
delay on the part of any party in exercising any right, power or remedy
hereunder shall operate as a waiver thereof, nor shall any single or partial
exercise of any such right, power or remedy preclude any other or further
exercise thereof or the exercise of any other right, power or remedy. The
remedies provided for herein are cumulative and are not exclusive of any
remedies that may be available to any party hereto at law, in equity or
otherwise.
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SECTION 7.13 Series Liabilities. It is expressly understood and agreed by
the Servicer, all persons claiming through the Servicer, the COLT 200_-__
Certificateholder and each COLT 200_-__ Secured Noteholder that COLT is a series
trust pursuant to Sections 3804 and 3806(b)(2) of the Statutory Trust Act. As
such, separate and distinct records shall be maintained for Series 200_-__ Lease
Assets and the Series 200_-__ Lease Assets shall be held and accounted for
separately from the other assets of COLT. The debts, liabilities, obligations
and expenses incurred, contracted for or otherwise existing with respect to the
Series 200_-__ Lease Assets, including the COLT 200_-__ Secured Notes, shall be
enforceable against the Series 200_-__ Lease Assets only, and not against COLT
generally or the assets securing any other Series of Secured Notes.
SECTION 7.14 No Bankruptcy Petition. The Servicer hereby covenants and
agrees that prior to the date which is one year and one day after the payment in
full of all Secured Notes, it shall not institute against, or join any other
Person in instituting against, COLT in any bankruptcy, reorganization,
arrangement, insolvency or liquidation proceedings or other similar proceeding
under the bankruptcy or similar laws of the United States or any state of the
United States. This Section 7.14 shall survive the termination of this Agreement
and the resignation or removal of the Servicer under this Agreement.
SECTION 7.15 Limitation of Liability. It is expressly understood and
agreed by the parties hereto that (a) this Agreement is executed and delivered
by Deutsche Bank Trust Company Delaware, not individually or personally but
solely as owner trustee of COLT, (b) each of the representations, undertakings
and agreements herein made on the part of COLT is made and intended not as
personal representations, undertakings and agreements by Deutsche Bank Trust
Company Delaware but is made and intended for the purpose of binding only COLT,
and (c) under no circumstances shall Deutsche Bank Trust Company Delaware be
personally liable for the payment of any indebtedness or expenses of COLT or be
liable for the breach or failure of any obligation, representation, warranty or
covenant made or undertaken by COLT under this Agreement or the other COLT
200_-__ Basic Documents.
-31-
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective officers hereunto duly authorized as of the day and
year first above written.
CENTRAL ORIGINATING LEASE TRUST
By: Deutsche Bank Trust Company Delaware,
not in its individual capacity but solely
as COLT Owner Trustee
By: _____________________________________
Name:
Title:
GENERAL MOTORS ACCEPTANCE
CORPORATION, as Servicer
By: _____________________________________
Name:
Title:
_____, as COLT Indenture Trustee
By: _____________________________________
Name:
Title:
COLT Servicing Agreement
EXHIBIT A
to the COLT 200_-__ Servicing Agreement
(attached hereto)
COLT Servicing Agreement
EXHIBIT A
TO THE COLT 200_-__ SERVICING AGREEMENT
PART I - COLT SERIES DEFINITIONS
When used in any COLT 200_-__ Basic Document, the following terms shall
have the following meanings (such definitions to be applicable to both the
singular and plural forms of such terms):
"ABS Value": with respect to a Series 200_-__ Lease Asset and any Payment
Date,
(a) for each Administrative Lease Asset with respect to which the Servicer
has paid the Administrative Purchase Payment as of the close of business on the
last day of the related Collection Period pursuant to Section 2.14 of the COLT
Servicing Agreement, zero;
(b) for each Warranty Lease Asset with respect to which the Seller has
paid the Warranty Payment as of the close of business on the last day of the
related Collection Period pursuant to Section 4.04 of the COLT Sale and
Contribution Agreement, zero;
(c) for each Series 200_-__ Lease Asset that (i) terminated during or
prior to the related Collection Period and reached its Scheduled Lease End Date
during or prior to the related Collection Period, (ii) became a Pull Ahead Lease
Asset during or prior to the related Collection Period, or (iii) became an
Extended Lease during or prior to the related Collection Period, but, in each
case, that did not become a Liquidating Lease Asset during or prior to such
Collection Period, the Lease Residual;
(d) for each Series 200_-__ Lease Asset that became a Liquidating Lease
Asset during or prior to such Collection Period, zero; and
(e) for each other Series 200_-__ Lease Asset, the sum of (i) the present
value, as of the close of business on the last day of the related Collection
Period (discounted at a rate equal to the Discount Rate and computed on the
basis of a 360-day year comprised of twelve 30-day months), of each Monthly
Lease Payment for such Series 200_-__ Lease Asset due after such last day of the
related Collection Period, discounted from the first day of the Collection
Period in which such Monthly Lease Payment is due to such last day of the
related Collection Period, (ii) the aggregate amount of past due and unpaid
Monthly Lease Payments for which no Advances have been made, and (iii) the
present value, as of the close of business on the last day of the related
Collection Period (discounted at a rate equal to the Discount Rate and computed
on the basis of a 360-day year comprised of twelve 30-day months), of the Lease
Residual for such Series 200_-__ Lease Asset, discounted from the first day of
the Collection Period in which the Scheduled Lease End Date for such Series
200_-__ Lease Asset occurs to the last day of the related Collection Period.
"Accountant's Report" has the meaning assigned to such term in Section
2.18 of the COLT Servicing Agreement.
"Act": an Act as specified in Section 11.3(a) of the COLT Indenture.
"Actual Payment": with respect to a Payment Date and a Series 200_-__
Lease, all payments received by the Servicer from or for the account of the
Lessee during the related Collection Period, except for any Overdue Payments,
Supplemental Servicing Fees, Excluded Amounts or any payments with respect to
Sales and Use Tax Amounts. Actual Payments do not include Applied Payments
Ahead.
"Administrative Lease Asset": a Series 200_-__ Lease Asset that the
Servicer is required to purchase pursuant to Section 2.14 of the COLT Servicing
Agreement.
"Administrative Purchase Payment": with respect to an Administrative Lease
Asset, the ABS Value of such Administrative Lease Asset determined as of the
close of business on the last day of the Collection Period prior to the
Collection Period as of which the Servicer is required (or, if earlier, elects)
to purchase such Administrative Lease Asset.
"Advance": with respect to the Series 200_-__ Lease Assets and any Payment
Date, the amount that the Servicer has advanced pursuant to Section 3.06 of the
COLT Servicing Agreement.
"Aggregate ABS Value": as of any date of determination, an amount equal to
the sum of the ABS Values of all Series 200_-__ Lease Assets on such date.
"Aggregate Principal Payment": with respect to a Payment Date, the
aggregate of the Principal Payments for all Series 200_-__ Lease Assets on such
Payment Date.
"Aggregate Secured Note Interest Distributable Amount"; for any Payment
Date, an amount equal to the sum of the Secured Note Interest Distributable
Amounts for all COLT 200_-__ Secured Notes on such Payment Date.
"Aggregate Secured Note Principal Balance": with respect to all COLT
200_-__ Secured Notes in the aggregate and any date of determination, the
aggregate initial Note Principal Balance of the COLT 200_-__ Secured Notes,
reduced by all payments prior to such date to the COLT 200_-__ Secured
Noteholders in respect of principal on such COLT 200_-__ Secured Notes.
"ALG Residual": with respect to a Series 200_-__ Lease Asset, the
applicable expected value of the related Vehicle at the Scheduled Lease End Date
as determined by Automotive Lease Guide Co. and as selected by the Servicer on
the date such Lease Asset was originated.
"Applied Extended Lease Payment Amount": with respect to each Payment
Date, the amount of any Extended Lease Payments received or deposited by the
Servicer into the COLT Collection Account in the related Collection Period or
any prior Collection Period in respect of Applied Extended Leases for such
Payment Date.
"Applied Extended Leases": with respect to each Payment Date, any Extended
Lease which became a Liquidating Lease Asset during the related Collection
Period.
"Applied Payments Ahead": with respect to a Payment Date and a Series
200_-__ Lease on which the Actual Payment during the related Collection Period
was less than the Monthly
- 2 -
Lease Payment, an amount equal to the lesser of (i) the Payments Ahead with
respect to such Series 200_-__ Lease and (ii) the amount by which the Monthly
Lease Payment exceeds such Actual Payment.
"Approval Condition": with respect to the COLT 200_-__ Secured Notes and
any action or proposed action related thereto, that each Rating Agency then
rating the Rated Notes shall have notified the Servicer, the COLT Owner Trustee
and the COLT Indenture Trustee that such action will not result in a reduction
or withdrawal of its rating on the Rated Notes.
"Attestation Protocol": the procedures, standards, guidance, explanatory
materials and exhibits with respect to the conduct of an attestation program
that are set forth in the preface, introduction and exhibits to The Uniform
Single Attestation Program for Mortgage Bankers effective for fiscal years ended
on or after December 15, 1995 or in any successor program, to the extent such
procedure, standards, guidance, explanatory materials and exhibits are
applicable to the servicing obligations set forth in the COLT Servicing
Agreement.
"Authorization Date": as set forth in Section 5.4 of the COLT Indenture.
"Authorized Officer": With respect to COLT, any officer or agent acting
under power of attorney of the COLT Owner Trustee who is authorized to act for
the COLT Owner Trustee in matters relating to COLT and who is identified on the
list of Authorized Officers delivered by the COLT Owner Trustee to the COLT
Indenture Trustee on the Series 200_-__ Closing Date (as such list may be
modified or supplemented from time to time thereafter) or the power of attorney
and, so long as the COLT Servicing Agreement is in effect, any officer of the
Servicer who is authorized to act for COLT pursuant to the COLT Servicing
Agreement and who is identified on the list of Authorized Officers delivered by
the Servicer to the COLT Indenture Trustee on the Series 200_-__ Closing Date
(as such list may be modified or supplemented from time to time thereafter).
"Available Distribution Amount": with respect to any Payment Date, the sum
of (I) the excess of (A) the sum of (i) the COLT Collections received by the
Servicer with respect to the Series 200_-__ Lease Assets during the related
Collection Period, plus (ii) the Applied Extended Lease Payment Amount for such
Payment Date, over (B) the Unapplied Extended Lease Payment Amount for such
Payment Date, plus (II) the amounts transferred from the COLT 200_-__ Reserve
Account to the COLT Collection Account on such Payment Date pursuant to Section
3.03(b)(iv) of the COLT Servicing Agreement, minus (iii) any amounts withdrawn
from the COLT Collection Account on such Payment Date pursuant to Section
3.03(b)(iii) of the COLT Servicing Agreement.
"Beneficial Interest": with respect to any Vehicle related to a Series
200_-__ Lease Asset, (x) the beneficial interest in VAULT representing an
interest in the legal title to such Vehicle, or (y) or to the extent that,
notwithstanding the terms of the VAULT Trust Agreement and the Statutory Trust
Act, COLT is deemed to hold a direct ownership interest in the legal title to
such Vehicle (and not merely a beneficial interest in VAULT representing an
interest in the legal title to such Vehicle), the direct ownership interest in
the legal title to such Vehicle.
- 3 -
"Buyer": as set forth in the Form of Transfer Certificate contained in
Exhibit B to the COLT Indenture.
"CARAT": Capital Auto Receivables Asset Trust 200_-__, a Delaware
statutory trust created by the CARAT Trust Agreement.
"CARAT Collection Account": the account designated as the "Collection
Account", established and maintained pursuant to Section 5.01(a)(i) of the CARAT
Trust Sale and Servicing Agreement.
"CARAT Collection Account Shortfall Amount": with respect to any Payment
Date, the amounts payable in accordance with Section 3.03(c)(vi) of the COLT
Servicing Agreement on such Payment Date.
"CARAT Indenture": the CARAT Indenture, dated as of the Series 200_-__
Closing Date, between CARAT and the CARAT Indenture Trustee, as the same may be
amended, supplemented or otherwise modified from time to time.
"CARAT Indenture Event of Default": the meaning assigned to the term
"Event of Default" in the Appendix A to the CARAT Trust Sale and Serving
Agreement.
"CARAT Indenture Trustee": Citibank, N.A., a national banking association,
or any successor thereto.
"CARAT Owner Trustee": Deutsche Bank Trust Company Delaware, or any
successor thereto under the CARAT Trust Agreement.
"CARAT Pooling and Servicing Agreement": the CARAT Pooling and Servicing
Agreement, dated as of the Series 200_-__ Closing Date, between GMAC and XXXX,
as the same may be amended, supplemented or otherwise modified from time to
time.
"CARAT Trust Sale and Servicing Agreement": the CARAT Trust Sale and
Servicing Agreement, dated as of the Series 200_-__ Closing Date, between XXXX,
CARAT and the CARAT Indenture Trustee, as the same may be amended, supplemented
or otherwise modified from time to time.
"CARAT Trust Agreement": the CARAT Trust Agreement, dated as of the Series
200_-__ Closing Date, between Capital Auto Receivables, Inc. and the CARAT Owner
Trustee.
"XXXX": Capital Auto Receivables, Inc.
"Collection Period": each calendar month (or, in the case of the first
Collection Period, the period from and including the Cutoff Date to and
including ________, 200_). With respect to any Payment Date, the "related
Collection Period" is the Collection Period preceding the calendar month in
which such Payment Date occurs.
"COLT 200_-__ Account": each of the COLT Collection Account, the COLT
200_-__ Reserve Account and the Payment Ahead Servicing Account.
- 4 -
"COLT 200_-__ Basic Documents": the Declaration, the COLT 200_-__
Supplement to the Declaration, the VAULT Trust Agreement, the COLT 200_-__
Transfer Direction, the COLT Designation, the VAULT Security Agreement, the COLT
Sale and Contribution Agreement, the COLT Indenture, the COLT Servicing
Agreement, the COLT Pull Ahead Funding Agreement, the COLT Custodian Agreement,
the COLT 200_-__ Secured Notes and the COLT 200_-__ Certificate.
"COLT 200_-__ Certificate": each certificate issued pursuant to Section
10.2 of the COLT 200_-__ Supplement to the Declaration.
"COLT 200_-__ Certificateholder": COLT, LLC or any other Person that holds
the COLT 200_-__ Certificate.
"COLT 200_-__ Collateral": as set forth in the Granting Clause of the COLT
Indenture.
"COLT 200_-__ Lease Assets Assignment": as set forth in Section 2.02 of
the COLT Sale and Contribution Agreement and attached as Exhibit A to the COLT
Sale and Contribution Agreement.
"COLT 200_-__ Reserve Account": the account established for the benefit of
the holders of the COLT 200_-__ Secured Notes pursuant to Section 3.02 of the
COLT Servicing Agreement.
"COLT 200_-__ Reserve Account Available Amount": as of any date of
determination, the cash and other Eligible Investments on deposit in the COLT
200_-__ Reserve Account on such date of determination.
"COLT 200_-__ Reserve Account Excess Amount": with respect to any Payment
Date, the excess, if any, of (i) the COLT 200_-__ Reserve Account Available
Amount on such date, over (ii) the COLT 200_-__ Reserve Account Required Amount
on such date.
"COLT 200_-__ Reserve Account Initial Deposit": an amount equal to
$____________.
"COLT 200_-__ Reserve Account Required Amount": with respect to any
Payment Date, an amount equal to the lesser of (i) $__________ (which is ____%
of the Aggregate ABS Value of the Series 200_-__ Lease Assets on the Cut-Off
Date) and (ii) the Note Principal Balance (as defined in the CARAT Trust Sale
and Servicing Agreement).
"COLT 200_-__ Secured Note": each of the Secured Notes, designated as a
COLT 200_-__ Secured Note, issued by COLT pursuant to the COLT Indenture.
"COLT 200_-__ Secured Note Rate": [LIBOR plus] _____% per annum.
"COLT 200_-__ Secured Noteholder" or "Holder": as of any date of
determination, the Person in whose name such COLT 200_-__ Secured Note is
registered in the Secured Note Register on such date.
- 5 -
"COLT 200_-__ Supplement to the Declaration": the COLT 200_-__ Supplement
to the Declaration, dated as of the Series 200_-__ Closing Date, between the
COLT Owner Trustee and COLT, LLC, as Residual Certificateholder, pursuant to
Section 3.2 of the Declaration, as the same may be amended, supplemented or
otherwise modified from time to time.
"COLT 200_-__ Transfer Direction": the COLT 200_-__ Transfer Direction,
dated as of the Series 200_-__ Closing Date, with respect to the transfer by the
Seller to COLT of the Seller's beneficial interest in the Vehicles related to
the Series 200_-__ Lease Assets under the VAULT Trust Agreement, executed by the
Seller, the VAULT Trustee and COLT pursuant to the VAULT Trust Agreement, as the
same may be amended, supplemented or otherwise modified from time to time.
"COLT 200_-__ Trust Estate": all right, title and interest of COLT in, to
and under the COLT 200_-__ Collateral and all right, title and interest of VAULT
in, to and under the Pledged Collateral.
"COLT Collection Account": the account designated as such and established
and maintained pursuant to Section 3.01(a)(i) of the COLT Servicing Agreement.
"COLT Collections": with respect to any Payment Date and the Series
200_-__ Lease Assets, an amount equal to the sum of the following amounts with
respect to the related Collection Period:
(i) the Monthly Lease Payments received with respect to the Series
200_-__ Lease Assets (including Applied Payments Ahead but excluding
Excess Payments made during such Collection Period that are treated as
Payments Ahead);
(ii) all Pull Ahead Payments received or deposited by the Servicer
since the preceding Payment Date (or with respect to the first Payment
Date, since the Series 200_-__ Closing Date) with respect to any Series
200_-__ Lease Assets that became Pull Ahead Lease Assets during or prior
to the related Collection Period;
(iii) all Warranty Payments received or deposited by the Servicer in
respect of the Series 200_-__ Lease Assets during the related Collection
Period;
(iv) all Administrative Purchase Payments received or deposited by
the Servicer in respect of the Series 200_-__ Lease Assets during the
related Collection Period;
(v) all Sale Proceeds received or deposited by the Servicer in
respect of the Series 200_-__ Lease Assets during the related Collection
Period;
(vi) any Monthly Payment Advances and Residual Advances with respect
to such Payment Date;
(vii) all Extended Lease Payments received or deposited by the
Servicer with respect to Extended Leases during the related Collection
Period;
- 6 -
(viii) if such Payment Date is the Optional Purchase Date, the
Optional Purchase Price deposited into the COLT Collection Account by the
Servicer on such Payment Date pursuant to Section 6.01 of the COLT
Servicing Agreement;
(ix) all Insurance Proceeds received with respect to the Series
200_-__ Lease Assets during the related Collection Period;
(x) without double counting any of the amounts specifically set
forth above, the portion of any Security Deposits with respect to the
Series 200_-__ Lease Assets deemed to be included as part of COLT
Collections on the Series 200_-__ Lease Assets for the related Collection
Period pursuant to Section 2.03(b) of the COLT Servicing Agreement; plus
(xi) any other amounts received by the Servicer during the related
Collection Period with respect to the Series 200_-__ Lease Assets, other
than Excluded Amounts, Supplemental Servicing Fees, Excess Payments and
Sales and Use Tax Amounts.
In no event shall the term "COLT Collections" for any Payment Date include
any Excluded Amounts received during the related Collection Period.
"COLT Custodian": General Motors Acceptance Corporation, or another
custodian named from time to time in the COLT Custodian Agreement.
"COLT Custodian Agreement": the COLT 200_-__ Custodian Agreement, dated as
of the Series 200_-__ Closing Date, between the COLT Custodian and the COLT
Owner Trustee, substantially in the form of Exhibit B to the COLT Servicing
Agreement, as the same may be amended, supplemented or otherwise modified from
time to time.
"COLT Indenture": the COLT 200_-__ Indenture, dated as of the Series
200_-__ Closing Date, between COLT and the COLT Indenture Trustee, as the same
may be amended, supplemented or otherwise modified from time to time.
"COLT Indenture Trustee: Citibank, N.A., or any successor thereto under
the COLT Indenture.
"COLT, LLC": Central Originating Lease, LLC, or any successor thereto.
"COLT Pull Ahead Funding Agreement": the COLT 200_-__ Pull Ahead Funding
Agreement, dated as of the Series 200_-__ Closing Date, between GMAC, as agent
for General Motors Corporation, COLT and the COLT Indenture Trustee, as the same
may be amended, supplemented or otherwise modified from time to time.
"COLT Sale and Contribution Agreement": the COLT 200_-__ Sale and
Contribution Agreement, dated as of the Series 200_-__ Closing Date, between
COLT and GMAC, as the Seller, as the same may be amended, supplemented or
otherwise modified from time to time.
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"COLT Servicing Agreement": the COLT 200_-__ Servicing Agreement, dated as
of the Series 200_-__ Closing Date, between GMAC, as servicer, COLT and the COLT
Indenture Trustee, as the same may be amended, supplemented or otherwise
modified from time to time.
"Controlling Party": as set forth in Section 5.3(f) of the COLT Indenture.
"Corporate Trust Office": with respect to the COLT Indenture Trustee, the
principal office at which at any particular time the corporate trust business of
the COLT Indenture Trustee is administered, which office is initially located at
000 Xxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx, 00000.
"Customary Servicing Practices": the customary servicing practices,
procedures and policies utilized by the Servicer with respect to automotive
leases that it services for itself or others, as such practices, procedures and
policies may be changed from time to time.
"Cutoff Date": _______, 200_.
"Default": Any occurrence that is, or with notice or the lapse of time or
both would become, an Event of Default under the COLT Indenture with respect to
the COLT 200_-__ Secured Notes.
"Delivery": when used with respect to Designated Account Property,
"Delivery" means:
(i) with respect to bankers' acceptances, commercial paper,
negotiable certificates of deposit and other obligations that constitute
"instruments" as defined in Section 9-102(a)(47) of the UCC and are
susceptible of physical delivery, transfer thereof to the Designated
Account Owner or its nominee or custodian by physical delivery to the
Designated Account Owner or its nominee or custodian endorsed to, or
registered in the name of, the Designated Account Owner or its nominee or
custodian or endorsed in blank, and, with respect to a "certificated
security" (as defined in Section 8-102 of the UCC) transfer to thereof (A)
by delivery of such certificated security endorsed to, or registered in
the name of, the Designated Account Owner or its nominee or custodian, or
to another person, other than a "securities intermediary" (as defined in
Section 8-102(14) of the UCC), who acquires possession of the certificated
security on behalf of the Designated Account Owner or its nominee or
custodian or, having previously acquired possession of the certificate,
acknowledges in an authenticated record that it holds for the Designated
Account Owner or its nominee or custodian, or (B) by delivery thereof to a
"securities intermediary", who has agreed to hold all such assets
delivered to it as "financial assets" under Article 8 of the applicable
UCC and credit such assets to a "securities account" in which the
Designated Account Owner is the entitlement holder, or (C) by delivery
thereof to a "clearing corporation" (all of the foregoing, the "Physical
Property"), and, in any event, any such Physical Property in registered
form shall be in the name of the Designated Account Owner or its nominee
or custodian; and such additional or alternative procedures as may
hereafter become appropriate to effect the complete transfer of ownership
of any such Designated Account Property to the Designated Account Owner or
its nominee or custodian, consistent with changes in applicable law or
regulations or the interpretation thereof;
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(ii) with respect to any such Designated Account Property that is
any security issued by the U.S. Treasury, the Federal Home Loan Mortgage
Corporation or by the Federal National Mortgage Association that is a
book-entry security held through the Federal Reserve System pursuant to
federal book-entry regulations, the following procedures, all in
accordance with applicable law, including applicable Federal regulations
and Articles 8 and 9 of the UCC: (A) book-entry registration of such
Designated Account Property to an appropriate book-entry account
maintained with a Federal Reserve Bank by a financial intermediary which
is also a "depositary" pursuant to applicable federal regulations and
issuance by such intermediary of a deposit advice or other written
confirmation of such book-entry registration to the Designated Account
Owner or its nominee or custodian of the purchase by the Designated
Account Owner or its nominee or custodian of such book-entry securities,
(B) the making by such financial intermediary of entries in its books and
records identifying such book-entry security held through the Federal
Reserve System pursuant to federal book-entry regulations as belonging to
the Designated Account Owner or its custodian or nominee and indicating
that such custodian holds such Designated Account Property solely as agent
for the Designated Account Owner or its nominee or custodian, (C) the
making by the Designated Account Owner of entries in its books and records
establishing that it holds such Designated Account Property solely as
Designated Account Owner under the terms of Section 3.01 of the COLT
Servicing Agreement, and (E) such additional or alternative procedures as
may hereafter become appropriate to effect complete transfer or ownership
of any such Designated Account Property to the Designated Account Owner,
consistent with changes in applicable law or regulations or the
interpretation thereof; and
(iii) with respect to any item of Designated Account Property that
is an uncertificated security (as defined in Section 8-102(18) of the UCC)
and that is not governed by clause (ii) above, (A) registration on the
books and records of the issuer thereof in the name of the Designated
Account Owner or its nominee or custodian, (B) registration on the books
and records of the issuer thereof in the name of another person, other
than a securities intermediary, who acknowledges that it holds such
uncertificated security for the benefit of the Designated Account Owner or
its nominee or custodian, or (C) the delivery of such uncertificated
security to a securities intermediary who has agreed to hold all such
uncertificated securities delivered to it as "financial assets" under
Article 8 of the applicable UCC and credit such assets to a "securities
account" in which the Designated Account Owner is the entitlement holder.
"Designated Account Owner": with respect to any Designated Account, the
Person in whose name such account is required to be maintained.
"Designated Account Property": all amounts and investments held from time
to time in any Designated Account (whether in the form of deposit accounts,
Physical Property, book-entry securities, uncertificated securities or
otherwise) and all proceeds of the foregoing.
"Designated Accounts": the COLT Collection Account and the COLT 200_-__
Reserve Account, collectively.
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"Determination Date": the 9th day of each calendar month, or if such 9th
day is not a Business Day, the next succeeding Business Day. With respect to any
Payment Date, the "related Determination Date" is the Determination Date
preceding such Payment Date.
"Direct COLT Pledge": as set forth in the Granting Clause of the COLT
Indenture.
"Discount Rate": _____% per annum.
"Early Termination Date": as set forth in the CARAT Interest Rate Swap.
"Eligible Deposit Account": either (i) a segregated account with an
Eligible Institution or (ii) a segregated trust account with the corporate trust
department of a depositary institution organized under the laws of the United
States of America or any one of the states thereof or the District of Columbia
(or any domestic branch of a foreign bank), having corporate trust powers and
acting as trustee for funds deposited in such account, so long as any of the
securities of such depository institution have a credit rating from each Rating
Agency in one of its generic rating categories which signifies investment grade.
"Eligible Institution": either (i) the corporate trust department of the
Designated Account Owner, Deutsche Bank Trust Company Delaware or the COLT Owner
Trustee or (ii) a depository institution organized under the laws of the United
States of America or any one of the states thereof or the District of Columbia
(or any domestic branch of a foreign bank), (A) which has either (1) a long-term
unsecured debt rating acceptable to the Rating Agencies or (2) a short-term
unsecured debt rating or certificate of deposit rating acceptable to the Rating
Agencies and (B) whose deposits are insured by the Federal Deposit Insurance
Corporation.
"Eligible Investments": book-entry securities, negotiable instruments or
securities represented by instruments in bearer or registered form which (at the
time made) evidence:
(i) direct obligations of, and obligations fully guaranteed as to
full and timely payment by, the full faith and credit of the United States
of America;
(ii) demand deposits, time deposits or certificates of deposit of
any depository institution or trust company incorporated under the laws of
the United States of America or any state thereof (or any domestic branch
of a foreign bank) and subject to supervision and examination by Federal
or State banking or depository institution authorities; provided, however,
that at the time of the investment or contractual commitment to invest
therein the commercial paper or other short-term unsecured debt
obligations (other than such obligations the rating of which is based on
the credit of a Person other than such depository institution or trust
company) thereof shall have the highest credit rating from each of the
Rating Agencies;
(iii) commercial paper having, at the time of the investment or
contractual commitment to invest therein, the highest short-term credit
rating from each of the Rating Agencies;
(iv) investments in money market funds having the highest applicable
credit rating from each of the Rating Agencies (including funds for which
the Designated
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Account Owner (or such other Person in whose name the applicable account
is maintained) or the COLT Indenture Trustee or any of their respective
affiliates is investment manager or advisor);
(v) bankers' acceptances issued by any depository institution or
trust company referred to in clause (ii) above;
(vi) repurchase obligations with respect to any security that is a
direct obligation of, or fully guaranteed by, the United States of America
or any agency or instrumentality thereof, the obligations of which are
backed by the full faith and credit of the United States of America, in
either case entered into with an Eligible Institution; or
(vii) any other investment permitted by each of the Rating Agencies;
in each case, other than as permitted by the Rating Agencies, maturing (A) not
later than the Business Day immediately preceding the next Payment Date or (B)
on such next Payment Date if either (x) such investment is in the institution
with which the applicable account is then maintained or (y) the Designated
Account Owner (or such other Person in whose name the applicable account is
maintained) (so long as the short-term unsecured debt obligations of the
Designated Account Owner (or such other Person in whose name the applicable
account is maintained) are rated at least "P-1" by Xxxxx'x and "A-1" by S&P on
the date such investment is made) shall advance funds on such Payment Date in
the amount payable on such investment on such Payment Date pending receipt
thereof to the extent necessary to make distributions on such Payment Date in
accordance with Article III of the COLT Servicing Agreement. For purposes of the
foregoing, (x) unless the Designated Account Owner (or such other Person in
whose name the applicable account is maintained) objects at the time an
investment is made, the Designated Account Owner (or such other Person in whose
name the applicable account is maintained) shall be deemed to have agreed to
make such advance with respect to such investment, and (y) references herein to
the highest short-term credit rating shall mean "P-1" in the case of Xxxxx'x and
"A-1" in the case of S&P.
"Event of Default": an event described in Section 5.1 of the COLT
Indenture.
"Event of Default Sale Notice": as set forth in Section 5.4 of the COLT
Indenture.
"Excess Payment": as set forth in Section 3.05(a) of the COLT Servicing
Agreement.
"Excess Wear and Excess Mileage Charges": with respect to any Series
200_-__ Lease Asset, charges to a Lessee in accordance with the terms of the
related Series 200_-__ Lease upon termination of such Series 200_-__ Lease (i)
as a result of excess wear and tear with respect to the related Vehicle and (ii)
mileage charges incurred for vehicle mileage in excess of the amount permitted
under the Series 200_-__ Lease.
"Excluded Amounts": with respect to any Payment Date and to any Series
200_-__ Lease Asset, the sum of (i) any amounts received by the Servicer during
the related Collection Period with respect to any administrative fees and
parking tickets and fines on the related Vehicle, (ii) premiums paid by the
Servicer or due to the related insurer during the related Collection Period in
connection with the maintenance of insurance with respect to such Series
- 11 -
200_-__ Lease Asset, and (iii) any amounts required under applicable law to be
paid or refunded to the Lessee during the related Collection Period (including
any rebates of premiums with respect to cancellation of any insurance policy or
service contract entered into by such Lessee).
"Extended Lease": any Series 200_-__ Lease that has reached its Scheduled
Lease End Date, with respect to which (x) the Lessee has paid all Monthly Lease
Payments required under the terms of such Series 200_-__ Lease and (y) the
Lessee has agreed with the Servicer to extend the term of such Series 200_-__
Lease and to continue making monthly payments under such Series 200_-__ Lease in
an amount as agreed between the Lessee and the Servicer.
"Extended Lease Payments": with respect to any Extended Lease and any
Collection Period prior to the Collection Period in which the related Vehicle
was sold or otherwise disposed of by the Servicer, any monthly lease payments
due under such Extended Lease after its Scheduled Lease End Date and received by
the Servicer in the related Collection Period, minus any payments in respect of
Sales and Use Tax Amounts required to be paid with respect to such Extended
Lease during such Collection Period.
"Final Maturity Date: the Payment Date in February 200__.
"Grant": To mortgage, pledge, bargain, sell, warrant, alienate, remise,
release, convey, assign, transfer, create and xxxxx x xxxx upon, a security
interest in, deposit, set over and confirm pursuant to the COLT Indenture. A
Grant of the COLT 200_-__ Collateral or of any other agreement or instrument
shall include all rights, powers and options (but none of the obligations) of
the granting party thereunder, including the immediate and continuing right to
claim for, collect, receive and give receipt for principal and interest payments
in respect of, the COLT 200_-__ Collateral and all other moneys payable
thereunder, to give and receive notices and other communications, to make
waivers or other agreements, to exercise all rights and options, to bring
Proceedings in the name of the granting party or otherwise and generally to do
and receive anything that the granting party is or may be entitled to do or
receive thereunder or with respect thereto.
"Holder": with respect to any COLT 200_-__ Secured Note and any date of
determination, the Person in whose name such COLT 200_-__ Secured Note is
registered in the Secured Note Register on such date.
"Independent": when used with respect to any specified Person, the Person
(a) is in fact independent of COLT, the Seller, the Servicer and any Affiliate
of any of the foregoing Persons, (b) does not have any direct financial interest
or any material indirect financial interest in COLT, the Seller, the Servicer or
any Affiliate of any of the foregoing Persons and (c) is not connected with
COLT, the Seller, the Servicer or any Affiliate of any of the foregoing Persons
as an officer, employee, promoter, underwriter, trustee, partner, director or
person performing similar functions.
"Independent Certificate": a certificate or opinion to be delivered to the
COLT Indenture Trustee under the circumstances described in, and otherwise
complying with, the applicable requirements of Section 11.1 of the COLT
Indenture, made by an Independent appraiser or other expert appointed by a Trust
Order and approved by the COLT Indenture Trustee in the exercise
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of reasonable care, and such opinion or certificate shall state that the signer
has read the definition of "Independent" and that the signer is Independent
within the meaning thereof.
"Initial ABS Value": with respect to each Series 200_-__ Lease Asset, the
ABS Value of such Series 200_-__ Lease Asset on the Series 200_-__ Closing Date.
"Initial Note Principal Balance": as set forth in Section 2.1(c) of the
COLT Indenture.
"Institutional Accredited Investor": as set forth in Section 2.13 of the
COLT Indenture.
"Insurance Proceeds": with respect to a Payment Date and a Series 200_-__
Lease Asset, the sum of (i) all amounts received by the Servicer during the
related Collection Period with respect to any insurance policies maintained with
respect to such Series 200_-__ Lease Asset pursuant to Section 2.09(a) of the
COLT Servicing Agreement and (ii) all amounts required to be deposited by the
Servicer pursuant to Section 2.09(b) of the COLT Servicing Agreement during the
related Collection Period.
"Interested Parties": as set forth in the recitals to the COLT Sale and
Contribution Agreement.
"Investment Earnings": investment earnings on investments of funds
deposited in the COLT 200_-__ Accounts, net of losses and investment expenses.
"Lease Residual": with respect to any Series 200_-__ Lease Asset, the
lesser of the Stated Residual Value and the ALG Residual for the related
Vehicle.
"Lessee": with respect to any Series 200_-__ Lease Asset, the lessee or
the co-lessees of the Vehicle and any guarantor of the Program Lease comprising
such Lease Asset.
"Lessee Purchase Amount": with respect to a Vehicle related to a Series
200_-__ Lease Asset that the Lessee is purchasing at the Scheduled Lease End
Date, all amounts payable by the Lessee in connection with such purchase under
the related Series 200_-__ Lease.
["LIBOR": _______________________________________.]
"Liquidating Lease Asset": a Series 200_-__ Lease Asset with respect to
which the first of the following has occurred during a Collection Period:
(a) the related Vehicle was sold or otherwise disposed of by the Servicer
following the scheduled or early termination of the related Series 200_-__
Lease;
(b) the related Series 200_-__ Lease terminated prior to the related
Collection Period and reached its Scheduled Lease End Date more than 120 days
prior to the end of such Collection Period and as of the end of such Collection
Period, the related Vehicle remained unsold;
(c) the related Series 200_-__ Lease became an Extended Lease on its
Scheduled Lease End Date and such Scheduled Lease End Date shall have occurred
more than 120 days
- 13 -
prior to the end of such Collection Period and as of the end of such Collection
Period, the related Vehicle remained unsold; or
(d) the Servicer's records, in accordance with its Customary Servicing
Practices, disclose that all Insurance Proceeds expected to be received have
been received by the Servicer following a casualty or other loss with respect to
the related Vehicle.
"Liquidation Expenses:" with respect to a Series 200_-__ Lease Asset in
respect of which the related Vehicle has been sold or otherwise disposed of by
the Servicer during or prior to the related Collection Period, the amount
charged to the account of the Lessee, in keeping with the Servicer's Customary
Servicing Practices, for refurbishing and disposing of the related Vehicle and
other out-of-pocket costs related to the liquidation, including all
repossession, auction, painting repair, legal and any and all other similar
liquidation, collection and refurbishment costs and expenses.
"Minimum Servicing Standards": servicing standards identified as "Minimum
Servicing Standards" in The Uniform Single Attestation Program for Mortgage
Bankers effective for fiscal years ended on or after December 15, 1995 or in any
successor program, to the extent such standards are applicable to the servicing
obligations set forth in the COLT Servicing Agreement.
"Monthly Lease Payment": with respect to any Series 200_-__ Lease Asset,
the amount required to be paid by the Lessee under the related Series 200_-__
Lease on or prior to each Monthly Lease Payment Date (as such amount may be
modified in connection with any permitted modification or extension), minus any
payments with respect to Sales and Use Tax Amounts required to be paid pursuant
to such Series 200_-__ Lease on or prior to such Monthly Lease Payment Date.
"Monthly Lease Payment Date": with respect to any Series 200_-__ Lease
Asset, the date specified in the related Series 200_-__ Lease as the date on or
before which the Lessee is required to make a payment each month.
"Monthly Payment Advance": has the meaning assigned to such term in
Section 3.06(a) of the COLT Servicing Agreement.
"Monthly Remittance Condition": a condition that shall be satisfied if (A)
GMAC or any Affiliate thereof is the Servicer, (B) no Servicer Default has
occurred and is continuing, and (C) either (i) the short-term unsecured debt of
the Servicer is rated at least "A-1" by S&P and "P-1" by Moody's, or (ii) the
Servicer has made any other arrangements satisfactory to the Rating Agencies.
"Note Principal Balance": with respect to a COLT 200_-__ Secured Note on
any date of determination, an amount equal to ___% of the initial ABS Value of
the leases acquired by GMAC [in the same state] on the Series 200_-__ Closing
Date reduced by all payments prior to such date in respect of principal made to
the holder of such COLT 200_-__ Secured Note pursuant to Section 3.03(c)(iv) of
the COLT Servicing Agreement.
"Notice of Default": as set forth in Section 5.1(b) of the COLT Indenture.
- 14 -
"Officers' Certificate": (i) with respect to any corporation, unless
otherwise specified in this Agreement, a certificate signed by the Chairman of
the Board, Vice Chairman of the Board, President, any Vice President, any
Treasurer, any Assistant Treasurer, any Secretary or any Assistant Secretary of
such corporation, (ii) with respect to any limited liability company, a
certificate signed by any manager of such limited liability company, and (iii)
with respect to COLT, the COLT Owner Trustee or the COLT Indenture Trustee, a
certificate signed by any Responsible Officer thereof.
"Opinion of Counsel": a written opinion of counsel, who may be an employee
of the Servicer or its Affiliates.
"Optional Purchase Date": the meaning assigned to such term in Section
6.01 of the COLT Servicing Agreement.
"Optional Purchase Price": the meaning assigned to such term in Section
6.01 of the COLT Servicing Agreement.
"Outstanding": with respect to any COLT 200_-__ Secured Notes and date of
determination, all such COLT 200_-__ Secured Notes theretofore authenticated and
delivered under the COLT Indenture except:
(1) COLT 200_-__ Secured Notes theretofore canceled by the COLT Indenture
Trustee in accordance with Section 2.9 of the COLT Indenture;
(2) COLT 200_-__ Secured Notes or portions thereof the payment for which
money in the necessary amount has been theretofore deposited with the COLT
Indenture Trustee or any Paying Agent in trust for the Holders of such COLT
200_-__ Secured Notes; provided, however, that if such COLT 200_-__ Secured
Notes are to be redeemed, notice of such redemption has been duly given pursuant
to the COLT Indenture or provision therefore, satisfactory to the COLT Indenture
Trustee, has been made; and
(3) COLT 200_-__ Secured Notes in exchange for or in lieu of other COLT
200_-__ Secured Notes which have been authenticated and delivered pursuant to
the COLT Indenture unless proof satisfactory to the COLT Indenture Trustee is
presented that any such COLT 200_-__ Secured Notes are held by a bona fide
purchaser; provided, however, that in determining whether the Holders of the
requisite Outstanding principal amount of the COLT 200_-__ Secured Notes have
given any request, demand, authorization, direction, notice, consent or waiver
hereunder or under any Basic Document or any COLT 200_-__ Basic Document related
thereto, COLT 200_-__ Secured Notes both legally and beneficially owned by COLT,
the Seller, the Servicer or any Affiliate of any of the foregoing Persons shall
be disregarded and deemed not to be Outstanding. COLT 200_-__ Secured Notes so
owned that have been pledged in good faith may be regarded as Outstanding if the
pledgee establishes to the satisfaction of the COLT Indenture Trustee the
pledgor's right so to act with respect to such COLT 200_-__ Secured Notes and
that the pledgee is not the issuer of the COLT 200_-__ Secured Notes, the Seller
of the Secured Notes under the Secured Notes CARAT Trust Sale and Servicing
Agreement, the Servicer or an Affiliate of any of the foregoing Persons shall be
disregarded and deemed not to be Outstanding.
- 15 -
"Outstanding Advance": as of the last day of a Collection Period and with
respect to a Series 200_-__ Lease Asset, the sum of all Monthly Payment Advances
and Residual Advances made on or prior to such date, minus all payments made or
collections received on or prior to such date that are specified in Section
3.06(c) and (d) of the COLT Servicing Agreement as reducing Outstanding Advances
with respect to such Series 200_-__ Lease Asset.
"Outstanding Amount": as of any date, the aggregate principal amount of
COLT 200_-__ Secured Notes Outstanding at such date.
"Overdue Payment": with respect to a Payment Date and a Series 200_-__
Lease Asset, all payments, other than Supplemental Servicing Fees, Excluded
Amounts and Sales and Use Tax Amounts, received by the Servicer from or for the
account of the related Lessee during the related Collection Period, to the
extent of the portion of any Outstanding Advances made with respect to such
Series 200_-__ Lease Asset.
"Paying Agent": with respect to the COLT Indenture, the COLT Indenture
Trustee or any other Person that meets the eligibility standards for the COLT
Indenture Trustee specified in Section 6.11 of the COLT Indenture and is
authorized by COLT to make the payments to and distributions from the COLT
Collection Account on the COLT 200_-__ Secured Notes on behalf of COLT.
"Payments Ahead": with respect to a Payment Date and a Series 200_-__
Lease, the aggregate of all Excess Payments on such Series 200_-__ Lease
received during the related Collection Period and all prior Collection Periods
minus the aggregate of all Applied Payments Ahead on such Series 200_-__ Lease
which were applied on any prior Payment Date.
"Payment Ahead Servicing Account": as set forth in Section 3.01(a)(ii) of
the COLT Servicing Agreement.
"Payment Date": the fourteenth day of each calendar month, or, if such day
is not a Business Day, the next succeeding Business Day, commencing ________,
200_.
"PBGC": the Pension Benefit Guaranty Corporation.
"Perfection Representations" the representations set forth on Schedule B
to the COLT Sale and Contribution Agreement.
"Physical Property": the property described as such in the definition of
"Delivery."
"Pledged Collateral": as set forth in Section 2 of the VAULT Security
Agreement.
"Principal Payment": with respect to a pool of Series 200_-__ Lease Assets
[originated in the same state], any Payment Date and the related Collection
Period, the excess of the aggregate ABS Value of such Series 200_-__ Lease
Assets as of the close of business on the last day of the Collection Period
preceding such related Collection Period over the ABS Value of such Series
200_-__ Lease Assets as of the close of business on the last day of such related
Collection Period.
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"Proceeding": any suit in equity, action at law or other judicial or
administrative proceeding.
"Pull Ahead Lease Asset": a Series 200_-__ Lease Asset with respect to
which the related Lessee has elected to terminate the related Program Lease
prior to its Scheduled Lease End Date by delivering the related Vehicle to a
Dealer in connection with a Pull Ahead Program.
"Pull Ahead Payment": with respect to any Pull Ahead Lease Asset and any
Payment Date, the sum of (i) all remaining Monthly Lease Payments due in
accordance with the terms of the related Series 200_-__ Lease, (ii) all due and
unpaid Monthly Lease Payments, and (iii) any Pull Ahead Payment that was due but
not paid in full on any prior Payment Date.
"Pull Ahead Program": any program instituted by GMAC, as agent of General
Motors Corporation, or by General Motors Corporation pursuant to which the
Lessee shall be permitted to terminate a Series 200_-__ Lease prior to its
Scheduled Lease End Date without payment by the Lessee of all or a portion of
the remaining Monthly Lease Payments due in accordance with the terms of the
related Series 200_-__ Lease.
"Rated Notes": with respect to the COLT 200_-__ Secured Notes, each class
of notes secured by an interest in the COLT 200_-__ Secured Notes, which has
been rated by a Rating Agency at the request of the Servicer.
"Rating Agency": as of any date, each of Moody's and S&P (if such agency
is then rating the COLT 200_-__ Secured Notes or any Rated Notes secured
thereby).
"Record Date": with respect to any Payment Date, the close of business on
the last Business Day of the preceding calendar month.
"Redemption Date": the date specified as such by COLT in accordance with
Section 10.1 of the COLT Indenture.
"Redemption Price": the price specified as such by COLT in accordance with
Section 10.1 of the COLT Indenture.
"Released Administrative Amount": with respect to an Administrative Lease
Asset, any collections on such Lease Asset remaining or received after payment
of the Administrative Purchase Payment.
"Released Warranty Amount": with respect to a Warranty Lease Asset, any
collections on such Warranty Lease Asset remaining or received after payment of
the Warranty Payment.
"Required Deposit Rating": a rating on short-term unsecured debt
obligations of "P-1" by Moody's and at least "A-1" by S&P or otherwise
acceptable to the Rating Agencies. Any requirement that the short-term unsecured
debt obligations have the "Required Deposit Rating" shall mean that such
short-term unsecured debt obligations have the foregoing required ratings from
each Rating Agency.
- 17 -
"Residual Advance": has the meaning assigned to such term in Section
3.06(b) of the COLT Servicing Agreement.
"Responsible Officer": (1) when used with respect to the COLT Owner
Trustee, any officer of Deutsche Bank Trust Company Americas acting under a
valid power of attorney from the COLT Owner Trustee, or any officer within the
Corporate Trust Office of the COLT Owner Trustee including any Vice President,
Assistant Vice President, Secretary, Assistant Secretary, Treasurer, Assistant
Treasurer or any other officer of the COLT Owner Trustee customarily performing
functions similar to those performed by any of the above designated officers and
also, with respect to a particular matter, any other officer to whom such matter
is referred because of such officer's knowledge of and familiarity with the
particular subject; (2) when used with respect to the COLT Indenture Trustee,
any officer within the Corporate Trust Office (or any successor group of the
COLT Indenture Trustee), including any managing director, vice president,
assistant vice president, secretary, assistant secretary, vice president or any
other officer of the COLT Indenture Trustee customarily performing functions
similar to those performed by any of the above designated officers and also,
with respect to a particular matter, any other officer to whom such matter is
referred because of such officer's knowledge of and familiarity with the
particular subject, in each case having direct responsibility for the
administration of the COLT Indenture; (3) when used with respect to COLT, any
officer of the COLT Owner Trustee and/or the Servicer who is authorized to act
for COLT and who is identified on the list of Responsible Officers delivered by
the COLT Owner Trustee or the Servicer, as applicable, to the COLT Indenture
Trustee on the date hereof (as such list may be modified or supplemented from
time to time thereafter); and (4) when used with respect to the Servicer or any
other payee, the President, any Vice President, Assistant Vice President,
Secretary, Assistant Secretary or any other officer or assistant officer of such
Person customarily performing functions similar to those performed by any of the
above designated officers and also, with respect to a particular matter, any
other officer to whom such matter is referred because of such officer's
knowledge of and familiarity with the particular subject.
"Rule 144A": as set forth in Section 2.13 of the COLT Indenture.
"Sale Proceeds": with respect to any Series 200_-__ Lease Asset and the
Payment Date following the Collection Period in which the related Vehicle was
sold or otherwise disposed of by the Servicer, an amount equal to the sum of the
following:
(i) all proceeds from the sale of the related Vehicle following the
termination of the Series 200_-__ Lease, including any amounts realized
from sales to Dealers, during the related Collection Period, plus
(ii) if such Series 200_-__ Lease terminated prior to its Scheduled
Lease End Date (other than by reason of being a Pull Ahead Lease Asset),
all amounts paid by the Lessee in connection with such early termination
under the Series 200_-__ Lease, plus
(iii) without duplication of any amounts described in clause (i) or
(ii), any other amounts (other than Excluded Amounts, Supplemental
Servicing Fees, Excess Payments, any Extended Lease Payments on such
Series 200_-__ Lease Asset and Sales and Use Tax Amounts) received by the
Servicer during the related Collection Period with
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respect to such Series 200_-__ Lease after its Scheduled Lease End Date,
including all amounts collected by the Servicer in respect of Excess Wear
and Excess Mileage Charges for such Vehicle, minus
(iv) the sum of (a) any Liquidation Expenses with respect to such
Series 200_-__ Lease Asset, (b) any amounts that are required to be paid
or refunded to the Lessee and/or any other Person under applicable law and
(c) any Sales and Use Tax Amounts payable under such Series 200_-__ Lease.
"Sales and Use Tax Amount": the portion of each payment under a Series
200_-__ Lease Asset that is allocable to fees and sales, use or other taxes or
payments due under such Series 200_-__ Lease.
"Scheduled Lease End Date": with respect to any Series 200_-__ Lease
Asset, the date set forth in the related Series 200_-__ Lease as the date on
which such Series 200_-__ Lease is scheduled to expire.
"Secured Note Interest Distributable Amount": with respect to each COLT
200_-__ Secured Note and any Payment Date, the sum of:
(a) the Secured Note Monthly Accrued Interest for such COLT 200_-__
Secured Note on such Payment Date;
(b) any Secured Note Interest Distributable Amount due but not paid with
respect to such COLT 200_-__ Secured Note on the preceding Payment
Date; and
(c) interest on any such unpaid Secured Note Interest Distributable
Amount specified in clause (b) determined by multiplying
(i) the COLT 200_-__ Secured Note Rate during the most recent
Collection Period, by
(ii) the amount of such unpaid Secured Note Interest Distributable
Amount, and by
(iii) 1/12.
"Secured Note Monthly Accrued Interest": with respect to any Payment Date
and each COLT 200_-__ Secured Note, the product of (i) the Note Principal
Balance of such COLT 200_-__ Secured Note at the close of business on the
immediately preceding Payment Date (after giving effect to the distribution of
the Secured Note Principal Distributable Amount on such date in accordance with
Section 3.03(c)(iv) of the COLT Servicing Agreement or, with respect to the
first Payment Date, the initial Note Principal Balance of such Series 200_-__
Secured Note), (ii) 1/12 (or, with respect to the first Payment Date, the actual
number of days from and including the Series 200_-__ Closing Date to but
excluding such Payment Date, divided by 360), and (iii) the COLT 200_-__ Secured
Note Rate.
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"Secured Note Principal Carryover Shortfall": with respect to any Payment
Date, the excess, as of the close of business on such Payment Date of (i) the
Secured Note Principal Distributable Amount for such Payment Date over (ii) the
amount that was actually paid by the COLT Indenture Trustee on such Payment Date
in respect of principal in accordance with Section 3.03(c)(iv) of the COLT
Servicing Agreement.
"Secured Note Principal Distributable Amount": for any Payment Date, the
lesser of:
(a) the Aggregate Secured Note Principal Balance at the close of
business on the immediately preceding Payment Date or in the case of the
first Payment Date, the Aggregate Secured Note Principal Balance on the
Series 200_-__ Closing Date; and
(b) the sum of
(1) the Aggregate Principal Payment, and
(2) the Secured Note Principal Carryover Shortfall as of the
close of business on the preceding Payment Date.
Notwithstanding the foregoing, on the Final Maturity Date for the COLT
200_-__ Secured Notes, the Secured Note Principal Distributable Amount shall
also include the amount that is necessary, after giving effect to other amounts
withdrawn by the COLT Indenture Trustee on such Payment Date and allocable to
payments of principal, to reduce the outstanding principal balance of the COLT
200_-__ Secured Notes to zero.
"Secured Note Register": as set forth in Section 2.4(a) of the COLT
Indenture.
"Secured Note Registrar": initially, the COLT Indenture Trustee, as set
forth in Section 2.4(a) of the COLT Indenture, and thereafter, any other Person
appointed by COLT in accordance with Section 2.4 of the COLT Indenture.
"Secured Notes Transfer and Servicing Agreements": as set forth in the
recitals to the COLT Sale and Contribution Agreement.
"Securities Intermediary": as set forth in Section 3.01(b) of the COLT
Servicing Agreement.
"Security Deposit": with respect to any Vehicle, the security deposit made
by the Lessee under the related Series 200_-__ Lease.
"Seller": GMAC, or any successor thereto.
"Series 200_-__ Closing Date": ________, 200_.
"Series 200_-__": as set forth in Section 10.1(b) of the COLT 200_-__
Supplement to the Declaration.
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"Series 200_-__ Further Holders": the COLT Indenture Trustee, the COLT
Owner Trustee, each COLT 200_-__ Secured Noteholder, the COLT 200_-__
Certificateholder and the CARAT Indenture Trustee.
"Series 200_-__ Lease Asset Schedule": as set forth in Section 2.20 of the
COLT Servicing Agreement.
"Series 200_-__ Lease Assets": as of any date of determination, the Lease
Assets listed on the initial Series 200_-__ Lease Asset Schedule, excluding any
Lease Assets as of such date that constitute Liquidating Lease Assets,
Administrative Lease Assets required to be purchased on or before such date and
Warranty Lease Assets required to be repurchased on or before such date.
"Series 200_-__ Lease Assets Files": as set forth in Section 2.04 of the
COLT Sale and Contribution Agreement.
"Series 200_-__ Leases": the Program Leases relating to the Series 200_-__
Lease Assets.
"Series 200_-__ Portfolio": as set forth in Section 10.1(a) of the COLT
200_-__ Supplement to the Declaration.
"Servicer Default": an event described in Section 5.01 of the COLT
Servicing Agreement.
"Servicer's Certificate": a certificate, completed by and executed on
behalf of the Servicer by a Responsible Officer, in accordance with Section 2.16
of the COLT Servicing Agreement.
"Servicing Fee": with respect to any Payment Date, the product of (i) the
Aggregate ABS Value of the Series 200_-__ Lease Assets at the opening of
business on the first day of the related Collection Period, (ii) 1/12 (or with
respect to the first Payment Date, the actual number of days during the related
Collection Period, divided by 360), and (iii) the Servicing Fee Rate.
"Servicing Fee Rate": _______%.
"Sold Assets": as set forth in Section 2.01(a) of the COLT Sale and
Contribution Agreement.
"Stated Residual Value": with respect to a Series 200_-__ Lease Asset, the
residual value of the related Vehicle as set forth in the related Series 200_-__
Lease.
"Subject Estate": as set forth in Section 5.4 of the COLT Indenture.
"Supplemental Servicing Fee": with respect to a Collection Period, all
Investment Earnings and any late fees, NSF check charges, disposition fees,
purchase option fees, prepayment charges and other administrative fees and
expenses or similar charges with respect to
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the Series 200_-__ Lease Assets, collected (from whatever source) on the Series
200_-__ Lease Assets held by COLT during such Collection Period.
"Total Available Amount": the meaning assigned to such term in the
Appendix A to the CARAT Trust Sale and Serving Agreement.
"UCC": the Uniform Commercial Code as in effect in the relevant
jurisdiction.
"Unapplied Extended Lease Payment Amount": with respect to each Payment
Date, the amount of any Extended Lease Payments deposited into the COLT
Collection Account by the Servicer during the related Collection Period in
respect of Unapplied Extended Leases.
"Unapplied Extended Leases": with respect to each Payment Date, any
Extended Lease which has not become a Liquidating Lease Asset during or prior to
the related Collection Period.
"VAULT Security Agreement": the VAULT Pledge and Security Agreement, dated
as of the Series 200_-__ Closing Date, by VAULT and made in favor of the COLT
200_-__ Secured Noteholders.
"Warranty Lease Asset": any Series 200_-__ Lease Asset that the Seller is
required to repurchase pursuant to Section 4.04 of the COLT Sale and
Contribution Agreement.
"Warranty Payment": with respect to each Warranty Lease Asset, an amount
equal to the sum of (i) the ABS Value of such Warranty Lease Asset determined as
of the close of business on the last day of the Collection Period prior to the
Collection Period as of which the Seller is required (or, if earlier, elects) to
repurchase such Warranty Lease Asset, and (ii) all Outstanding Advances made
with respect to past due and unpaid Monthly Lease Payments due under such
Warranty Lease Asset that remain outstanding on the date of repurchase.
"Warranty Repurchase Event": the meaning assigned to such term in Section
4.04 of the Sale and Contribution Agreement.
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PART II - RULES OF CONSTRUCTION
(a) Accounting Terms. As used in this Appendix or the COLT 200_-__ Basic
Documents, accounting terms which are not defined, and accounting
terms partly defined, herein or therein shall have the respective
meanings given to them under generally accepted accounting
principles. To the extent that the definitions of accounting terms
in this Appendix or the COLT 200_-__ Basic Documents are
inconsistent with the meanings of such terms under generally
accepted accounting principles, the definitions contained in this
Appendix or the COLT 200_-__ Basic Documents will control.
(b) "Hereof," etc. The words "hereof," "herein" and "hereunder" and
words of similar import when used in this Appendix or any COLT
200_-__ Basic Document will refer to this Appendix or such COLT
200_-__ Basic Document as a whole and not to any particular
provision of this Appendix or such COLT 200_-__ Basic Document; and
Section, Schedule and Exhibit references contained in this Appendix
or any COLT 200_-__ Basic Document are references to Sections,
Schedules and Exhibits in or to this Appendix or such COLT 200_-__
Basic Document unless otherwise specified. The word "or" is not
exclusive.
(c) Reference to Payment Dates. With respect to any Payment Date, the
"related Collection Period," and the "related Determination Date,"
will mean the Collection Period and Determination Date,
respectively, immediately preceding such Payment Date, and the
relationships among Collection Periods and Determination Dates will
be correlative to the foregoing relationships.
(d) Number and Gender. Each defined term used in this Appendix or the
COLT 200_-__ Basic Documents has a comparable meaning when used in
its plural or singular form. Each gender-specific term used in this
Appendix or the COLT 200_-__ Basic Documents has a comparable
meaning whether used in a masculine, feminine or gender-neutral
form.
(e) Including. Whenever the term "including" (whether or not that term
is followed by the phrase "but not limited to" or "without
limitation" or words of similar effect) is used in this Appendix or
the COLT 200_-__ Basic Documents in connection with a listing of
items within a particular classification, that listing will be
interpreted to be illustrative only and will not be interpreted as a
limitation on, or exclusive listing of, the items within that
classification.
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PART III -- NOTICE ADDRESSES AND PROCEDURES
All requests, demands, directions, consents, waivers, notices,
authorizations and communications provided or permitted under any COLT 200_-__
Basic Document to be made upon, given or furnished to or filed with the Seller,
the Servicer, the COLT Indenture Trustee, the COLT 200_-__ Secured Noteholders,
the COLT 200_-__ Certificateholder, COLT, the COLT Owner Trustee or the COLT
Custodian shall be in writing, personally delivered, sent by facsimile with a
copy to follow via first class mail or mailed by certified mail-return receipt
requested, and shall be deemed to have been duly given upon receipt:
(a) in the case of the Seller, at the following address:
Director - Securitization and Cash Management
General Motors Acceptance Corporation
000 Xxxxxxxxxxx Xxxxxx
00xx Xxxxx, XX: 482-B12-C24
Xxxxxxx, XX 00000,
(b) in the case of the Servicer, at the following address:
Director - Securitization and Cash Management
General Motors Acceptance Corporation
000 Xxxxxxxxxxx Xxxxxx
00xx Xxxxx, XX: 482-B12-C24
Xxxxxxx, XX 00000,
(c) in the case of the COLT Indenture Trustee, at its Corporate
Trust Office, as set forth below:
Citibank, N.A.
000 Xxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000,
(d) in the case of the COLT 200_-__ Certificateholder, at the
address of the COLT 200_-__ Certificateholder as shown in the Certificate
Register;
(e) in the case of the COLT Custodian, at the following address:
Director - Securitization and Cash Management
General Motors Acceptance Corporation
000 Xxxxxxxxxxx Xxxxxx
00xx Xxxxx, XX: 482-B12-C24
Xxxxxxx, XX 00000,
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(f) in the case of COLT or the COLT Owner Trustee, to the COLT
Owner Trustee at its Corporate Trust Office, as set forth below:
Deutsche Bank Trust Company Delaware
0000 Xxxxxx Xxxx
Xxxxx 000
Xxxxxxxxxx, XX 00000-0000,
with a copy to:
Deutsche Bank Trust Company Americas,
Attention: Corporate Trust & Agency Group -
Structured Finance Services
00 Xxxx Xxxxxx
26th floor
Mail Stop: NYC60-2606
Xxx Xxxx, XX 00000
Phone (000) 000-0000
Fax (000) 000-0000/8607
or at such other address as shall be designated by such Person in a written
notice to the other parties to this Agreement.
Where any COLT 200_-__ Basic Document provides for notice to COLT
200_-__ Secured Noteholders or the COLT 200_-__ Certificateholder of any
condition or event, such notice shall be sufficiently given (unless otherwise
herein expressly provided) if it is sent by electronic facsimile (with hard copy
to follow via first class mail) or mailed by first class mail or sent by
overnight courier, and shall be deemed to have been duly given upon receipt, to
each COLT 200_-__ Secured Noteholder or COLT 200_-__ Certificateholder affected
by such condition or event, at such Person's address as it appears on the
Secured Note Register or Certificate Register, as applicable, not later than the
latest date, and not earlier than the earliest date, prescribed in such Basic
Document for the giving of such notice. If notice to the COLT 200_-__ Secured
Noteholders or the COLT 200_-__ Certificateholder is given by mail, neither the
failure to mail such notice nor any defect in any notice so mailed to any
particular COLT 200_-__ Secured Noteholders or the COLT 200_-__
Certificateholder shall affect the sufficiency of such notice with respect to
other COLT 200_-__ Secured Noteholders or the COLT 200_-__ Certificateholder,
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.
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