EXHIBIT 99.4
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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
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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 ............................ 5
SECTION 2.05 Realization Upon Defaulted Series 200_-_ Lease Assets ... 5
SECTION 2.06 Scheduled Expiration of Series 200_-_ Leases ............ 5
SECTION 2.07 Payment and Reimbursement of Liquidation Expenses ....... 6
SECTION 2.08 Maintenance of Insurance Policies ....................... 6
SECTION 2.09 Maintenance of Enforceable Ownership Interest, Beneficial
Ownership Interest and Security Interest in the Related
Vehicles ................................................ 6
SECTION 2.10 Custody of Lease Files .................................. 7
SECTION 2.11 Waivers, Modifications and Extensions on the Series
200_-_ Lease Assets ..................................... 7
SECTION 2.12 Covenants, Representations and Warranties of Servicer ... 8
SECTION 2.13 Purchase of Series 200_-_ Lease Assets Upon Breach of
Covenant ................................................ 9
SECTION 2.14 Basic Servicing Fees; Additional Servicing Fees;
Supplemental Servicing Fees; Payment of Certain Expenses
by Servicer ............................................. 10
SECTION 2.15 Servicer's Certificate .................................. 11
SECTION 2.16 Annual Statement as to Compliance; Notice of Servicer
Default ................................................. 12
SECTION 2.17 Annual Report of Assessment of Compliance with Servicing
Criteria ................................................ 13
SECTION 2.18 Access to Certain Documentation and Information Regarding
Series 200_-_ Lease Assets .............................. 13
SECTION 2.19 Series 200_-_ Lease Assets Schedule ..................... 13
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TABLE OF CONTENTS
(continued)
PAGE
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SECTION 2.20 Additional Servicer Duties .............................. 14
SECTION 2.21 Transfers of Legal Title to Vehicle ..................... 15
ARTICLE III ESTABLISHMENT OF ACCOUNTS; DISTRIBUTIONS .................... 15
SECTION 3.01 Establishment of COLT Collection Account and Payment
Ahead Servicing Account ................................. 15
SECTION 3.02 Reserve Account ......................................... 18
SECTION 3.03 Distributions ........................................... 19
SECTION 3.04 COLT Collections ........................................ 20
SECTION 3.05 Application of COLT Collections ......................... 21
SECTION 3.06 Advances ................................................ 22
ARTICLE IV THE SERVICER ................................................. 23
SECTION 4.01 Liability of Servicer; Indemnities ...................... 23
SECTION 4.02 Merger or Consolidation of, or Assumption of the
Obligations of, the Servicer ............................ 24
SECTION 4.03 Limitation on Liability of Servicer and Others .......... 24
SECTION 4.04 Delegation of Duties .................................... 25
SECTION 4.05 Servicer Not to Resign .................................. 25
ARTICLE V SERVICER DEFAULTS ............................................. 26
SECTION 5.01 Servicer Defaults ....................................... 26
SECTION 5.02 Consequences of a Servicer Default ...................... 27
SECTION 5.03 COLT Indenture Trustee to Act; Appointment of
Successor ............................................... 27
SECTION 5.04 Notification to the Series 200_-_ Further Holders and the
Rating Agencies ......................................... 28
SECTION 5.05 Waiver of Past Servicer Defaults ........................ 28
SECTION 5.06 Repayment of Outstanding Advances ....................... 28
ARTICLE VI OPTIONAL PURCHASE; TERMINATION ............................... 28
SECTION 6.01 Optional Repurchase of All Series 200_-_ Lease Assets ... 28
SECTION 6.02 Termination of Agreement ................................ 29
ARTICLE VII MISCELLANEOUS PROVISIONS .................................... 29
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TABLE OF CONTENTS
(continued)
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SECTION 7.01 Amendment ............................................... 29
SECTION 7.02 Protection of Title to COLT ............................. 30
SECTION 7.03 Notices ................................................. 31
SECTION 7.04 Governing Law ........................................... 31
SECTION 7.05 Severability of Provisions .............................. 31
SECTION 7.06 Third-Party Beneficiaries ............................... 31
SECTION 7.07 Headings ................................................ 31
SECTION 7.08 Binding Effect .......................................... 31
SECTION 7.09 Execution in Counterparts ............................... 31
SECTION 7.10 Rights Cumulative ....................................... 31
SECTION 7.11 Further Assurances ...................................... 32
SECTION 7.12 No Waiver ............................................... 32
SECTION 7.13 Series Liabilities ...................................... 32
SECTION 7.14 No Bankruptcy Petition .................................. 32
SECTION 7.15 Limitation of Liability ................................. 32
SECTION 7.16 Information to Be Provided by the COLT Indenture
Trustee ................................................. 33
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EXHIBITS
EXHIBIT A COLT Series Definitions
EXHIBIT B Form of COLT Custodian Agreement
EXHIBIT C Form of COLT Pull Ahead Funding 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
____________, a national banking association, 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, a Delaware
limited liability company ("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
COLT 200_-_ Servicing Agreement
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_-_ 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 its
COLT 200_-_ Certificate 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, remarketing returned Vehicles,
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,
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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.
(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, which shall be
substantially in the form attached as Exhibit C hereto, or (ii) in accordance
with Section 2.11; 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
permit a Lessee under a Series 200_-_ Lease Asset to participate in such Pull
Ahead Program, and the Servicer shall modify such Series 200_-_ Lease by
accepting the Pull Ahead Payment from GMAC in lieu of receiving Monthly Lease
Payments from the related Lessee, if (but only if) the conditions to
participation specified in the provision to the first sentence of Section 2.01
of the COLT Pull Ahead Funding Agreement have been satisfied. On the first
business day of each Collection Period, the Servicer (if the Servicer is not
GMAC) shall notify GMAC, as agent for General Motors Corporation, of the
aggregate amount of Pull Ahead Payments for the immediately preceding Collection
Period. If GMAC, as agent for General Motors Corporation, does not
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timely deposit all Pull Ahead Payments in the Collection Account, the Servicer
(including any successor servicer) shall use commercially reasonable efforts to
collect any such unpaid Pull Ahead Payments. 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) 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. In connection with
any Pull Ahead Lease Asset, the Servicer shall charge the related Lessee any
applicable Excess Wear and Excess Mileage Charges in accordance with the related
Series 200_-_ Lease and the Servicer's Customary Servicing Practices, and the
Servicer shall deposit any amounts received from the related Lessee on account
thereof into the COLT Collection Account in accordance with Section 3.04.
(c) Upon the return of a Vehicle to a Dealer following the expiration or
termination of the related 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 such 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
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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 such Series 200_-_ Lease prior to
its Scheduled Lease End Date, 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. In connection with the
sale of any Vehicle in accordance with this Section 2.04, the Servicer shall, on
behalf of COLT, give instructions to VAULT to convey title to such Vehicle to
the purchaser thereof.
SECTION 2.05 Realization Upon Defaulted Series 200_-_ 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 related Series 200_-_ Lease.
The Servicer shall follow its Customary Servicing Practices, which practices,
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. In connection with the sale of any Vehicle in accordance with this
Section 2.06, the Servicer shall, on behalf of COLT, give instructions to VAULT
to convey title to such Vehicle to the purchaser thereof.
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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 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. 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.
(b) 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 amount as are
customary for a lessor of leased vehicles consistent with the insurance policy
or policies procured and maintained from time to time by Servicer or on its
behalf for the Servicer's own portfolio of retail automotive leases and related
leased vehicles; provided, however, that the insurance policy or policies
procured and maintained by or on behalf of the Servicer may be subject to
commercially reasonable deductibles and retentions; 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 the Servicer's long-term unsecured debt rating
is at least "BBB-" by S&P and "Baa3" by Xxxxx'x, the Servicer may, instead of
procuring and maintaining such insurance policies, indemnify COLT for losses
arising out of the types of risks that would be covered under such insurance
policies. If COLT incurs a loss with respect to a Series 200_-_ Lease Asset that
(i) arises out of the types of risks that would be covered under the insurance
policies described in Section 2.08(a) above, and (ii) is not paid under an
insurance policy, the Servicer shall deposit, from its own funds, an amount
equal to such loss into the COLT Collection Account in accordance with Section
3.04, and such amount shall be included in COLT Collections with respect to such
Series 200_-_ Lease Asset.
SECTION 2.09 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
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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 2.10 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;
(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 2.11 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
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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 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 2.11(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.
SECTION 2.12 Covenants, Representations and Warranties of Servicer. (a) The
Servicer covenants, with respect to each Series 200_-_ Lease Asset, that from
and after the 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, 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
8
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 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 2.13 Purchase of Series 200_-_ Lease Assets Upon Breach of
Covenant. Upon discovery by the Servicer, the COLT Owner Trustee or any Series
200_-_ Further Holder
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of a breach of any of the covenants set forth in Sections 2.09, 2.11(a) and
2.12(a) that materially and adversely affects any Series 200_-_ Lease Asset, 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 the related 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 2.13, 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 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 2.14 Basic Servicing Fees; Additional Servicing Fees; Supplemental
Servicing Fees; Payment of Certain Expenses by Servicer. (a) On each Payment
Date, the Servicer (or its designee) shall receive Basic Servicing Fees and
Additional 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 Basic Servicing
Fees and Additional 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 6.9 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
10
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 2.15 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 on deposit in the Payment Ahead Servicing
Account, 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;
(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 Basic Servicing Fee and Additional Servicing Fee payable to
the Servicer with respect to the related Collection Period;
(v) the amount, if any, to be withdrawn from the Reserve Account on
such Payment Date;
(vi) the Reserve Account Available Amount on such Payment Date (after
giving effect to any withdrawals to be made on such date) and the Reserve
Account Required Amount on such Payment Date;
(vii) the number and 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 number and 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 Noteholders' Principal
Distributable Amount for such Payment Date;
(viii) updated pool composition information as of the end of the
Collection Period, such as weighted average implied lease rate, weighted
average life, weighted average remaining term, prepayment amounts, turn-in
rates and residual value realization rates;
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(ix) delinquency and loss information for the period and any material
changes in determining or defining delinquencies, charge-offs and
uncollectible accounts;
(x) the COLT 200_-_ Secured Note Rate;
(xi) the aggregate Secured Note Monthly Accrued Interest for the
related Collection Period;
(xii) the Secured Note Interest Distributable Amount for such Payment
Date;
(xiii) the Secured Note Principal Distributable Amount for such
Payment Date;
(xiv) 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;
(xv) the aggregate Warranty Payment;
(xvi) the aggregate Administrative Purchase Payment; and
(xvii) material changes in the solicitation, credit-granting,
underwriting, origination, acquisition or pool selection criteria or
procedures used to acquire or select the Series 200_-_ Lease Assets, if
any.
SECTION 2.16 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 all information required under Item 1123 of Regulation AB,
including 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
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 the COLT Indenture Trustee or the COLT Owner Trustee, respectively,
addressed to the applicable Corporate Trust Office.
(b) The Servicer shall deliver to COLT and the Trust, on or before March 15
of each year, beginning on March 15, 200_, a report regarding the Servicer's
assessment of compliance within the Servicing Criteria during the immediately
preceding calendar year, as required under Rules 13a-18 and 15d-18 of the
Exchange Act and Item 1122 of Regulation AB.
(c) 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
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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 2.17 Annual Report of Assessment of Compliance with Servicing
Criteria.
(a) The Servicer shall cause a firm of independent certified public
accountants, who may also render other services to the Servicer or its
Affiliates, to deliver to COLT, the Trust, the COLT Indenture Trustee, the COLT
Owner Trustee, the CARAT Indenture Trustee and the CARAT Owner Trustee on or
before March 15 of each year, beginning March 15, 200_, a report (the "Report of
Assessment of Compliance with Servicing Criteria") delivered to the Board of
Directors of the Servicer and to the COLT Indenture Trustee, the COLT Owner
Trustee, the CARAT Indenture Trustee and the CARAT Owner Trustee that satisfies
the requirements of Rule 13a-18 or Rule 15d-18 under the Exchange Act and Item
1122 of Regulation AB, as applicable, on the assessment of compliance with
Servicing Criteria with respect to the prior calendar year.
(b) A copy of the Report of Assessment of Compliance with Servicing
Criteria received pursuant to Section 2.17(a) shall be delivered by the Servicer
to the COLT Indenture Trustee, the COLT Owner Trustee, the CARAT Indenture
Trustee and the CARAT Owner Trustee on or before March 15 of each year beginning
March 15, 200_.
(c) A copy the Report of Assessment of Compliance with Servicing
Criteria may be obtained by any CARAT 200_-_ Noteholder or CARAT 200_-_
Certificateholder by a request in writing to COLT or the Trust addressed to the
Corporate Trust Office of the COLT Indenture Trustee, the COLT Owner Trustee,
the CARAT Indenture Trustee or the CARAT Owner Trustee.
SECTION 2.18 Access to Certain Documentation and Information Regarding
Series 200_-_ 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 2.17 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 2.17 as a
result of such obligation shall not constitute a breach of this Section 2.17.
SECTION 2.19 Series 200_-_ Lease Assets 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 allocated as a Series 200_-_ Lease Asset (the
"Series 200_-_ Lease Assets Schedule"). The Series 200_-_ Lease Assets 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 Assets Schedule, the
Servicer shall amend the Series 200_-_ Lease Assets
13
Schedule by the related Payment Date 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 Assets Schedule. Upon request of any Series 200_-_
Further Holder, the Servicer shall prepare a reconciliation of the current
Series 200_-_ Lease Assets Schedule to the last Series 200_-_ Lease Assets
Schedule furnished to such Series 200_-_ Further Holder before such request
indicating the removal of Lease Assets from the Series 200_-_ Lease Assets.
SECTION 2.20 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 Act 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;
(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 of Trust and the COLT 200_-_ Supplement to the
Declaration of Trust with respect to the COLT 200_-_ 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 the COLT 200_-_ Certificates, making a determination
14
as to whether such transfer or exchange complies with such transfer restrictions
and authorized denomination requirements (or waiving compliance), preparing the
COLT 200_-_ 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 COLT
200_-_ Certificates; and
(i) pay costs associated with the appointment of a successor COLT Indenture
Trustee under the COLT Indenture and the appointment of a successor COLT Owner
Trustee under the Declaration of Trust, in each case, from amounts in the COLT
200_-SN__ Trust Estate, 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 2.21 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 Eligible Deposit
Account known as the Central Originating Lease Trust COLT 200_-_ Payment
Ahead Servicing Account (the "Payment Ahead Servicing Account"). The
Payment Ahead Servicing Account shall not be property of COLT.
15
(b) Each of the COLT 200_-_ Accounts shall be Eligible Deposit Accounts
initially established with the COLT Indenture Trustee and maintained by the
Servicer. At any time after the Series 200_-_ Closing Date, the Servicer, upon
30 days written notice to the COLT Indenture Trustee or other Account Holder,
shall have the right to instruct the COLT Indenture Trustee or other Account
Holder to transfer any or all of the COLT 200_-_ Accounts to another Eligible
Institution designated by the Servicer in such notice. No COLT 200_-_ Account
shall be maintained with an Account Holder if the short-term unsecured debt
obligations of such Account Holder cease to have the Required Deposit Rating
(except that any Designated Account may be maintained with an Account Holder
even if the short-term unsecured debt obligations of such Account Holder do not
have the Required Deposit Rating, if such Account Holder maintains such
Designated Account in its corporate trust department). Should an Account Holder
no longer satisfy the requirements in the preceding sentence with respect to any
Designated Account, then the Servicer shall, within ten Business Days (or such
longer period, not to exceed 30 calendar days), with the Account Holder's
assistance as necessary, cause each affected COLT 200_-_ Account (A) to be moved
to an Account Holder that is an Eligible Institution or (B) with respect to the
Designated Accounts only, to be moved to the corporate trust department of the
Account Holder. All amounts held in COLT 200_-_ Accounts shall, to the extent
permitted by applicable laws, rules and regulations, be invested, at the written
direction of the Servicer, by such Account Holder in Eligible Investments. Such
written direction shall constitute certification by the Servicer 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. If the
Servicer has not provided such prior written direction to the Account Holder,
the Account Holder shall invest uninvested funds in "Citi Institutional Liquid
Reserves, Fund # 349." 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. Investment Earnings on funds
deposited in the COLT 200_-_ Accounts shall be payable to the Servicer 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. Each Account Holder holding a COLT 200_-_
Account as provided in this Section 3.01(b) shall be a "Securities
Intermediary." If a 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 Account
Holder 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
16
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 Account Holder 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
17
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, each Account Holder 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 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 "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)(v). On the Series 200_-_ Closing Date, COLT, LLC
shall deposit the Reserve Account Initial Deposit in immediately available funds
into the Reserve Account. The Reserve Account shall be a part of the COLT 200_-_
Trust Estate.
(b) After giving effect to all deposits into or withdrawals from the
Reserve Account on any Payment Date, the Servicer shall pay to COLT, LLC the
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 Basic Servicing
Fee, the Additional Servicing Fee, the Aggregate Noteholders' Principal
Distributable Amount, the Reserve Account Required Amount, the Reserve Account
Available Amount, the Secured Note Principal Balance for each COLT 200_-_
Secured Note, the Aggregate Secured Note Principal Balance, the Secured Note
Monthly Accrued Interest, the Secured Note Interest Distributable Amount, the
Secured Note Principal Distributable Amount, the Available Distribution Amount,
the aggregate Outstanding Advances 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 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 solely 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)) and pay such
amounts to the Servicer, who shall retain such Excess Payments amounts for its
own account, or, if the Monthly Remittance Condition is not satisfied, the COLT
Indenture Trustee, upon written instruction of 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) relating 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 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) 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
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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
Payment Date, and (II) the 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 Basic Servicing Fee for the related
Collection Period (to the extent such Basic Servicing Fee has not been
retained by the Servicer pursuant to Section 3.04(b)) and any unpaid Basic
Servicing Fees from any preceding Payment Date;
(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 Secured 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 CARAT Collection Account, the CARAT Collection
Account Shortfall Amount, if any, for such Payment Date;
(v) fifth, to the Reserve Account, an amount necessary to cause the
Reserve Account Available Amount (after giving effect to any withdrawal
from the Reserve Account pursuant to Section 3.03(b)(iv) on such Payment
Date) to equal the Reserve Account Required Amount on such Payment Date;
(vi) sixth, to the Servicer, an amount equal to the Additional
Servicing Fee, if any, on such Payment Date; and
(vii) seventh, 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;
provided, however, that the Servicer shall deposit into the COLT Collection
Account any Pull Ahead Payments it receives from GMAC, as agent for
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General Motors Corporation, pursuant to Section 2.02(b) on the same day as such
payments are received. 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 instruction to follow 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 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 Basic 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 Basic 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 made by or on behalf of the related Lessee and
received during such Collection Period (other than any prepayment in full in
connection with a termination of the related Series 200_-_ Lease prior to its
Scheduled Lease End Date) 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
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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.
(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, with respect to each Collection
Period and each Series 200_-_ Lease (other than an Administrative Lease Asset, a
Warranty Lease Asset or an Extended Lease), 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") on the second Business Day
of the following Collection Period or, if the Monthly Remittance Condition is
satisfied, on the Business Day preceding the related Payment Date. 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) With respect to each Collection Period and 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, on the second Business Day of the following
Collection Period or, if the Monthly Remittance Condition is satisfied, on the
related Payment Date, 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.
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(c) The Servicer shall be reimbursed for Outstanding Advances with respect
to a Series 200_-_ Lease Asset from subsequent COLT Collections and recoveries
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 and recoveries on any other
Series 200_-_ Lease Assets.
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, the COLT Indenture 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.
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(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 of Trust 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 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.
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 specifically provided in this Agreement, for any
action taken or for refraining from the taking of any action pursuant to this
Agreement or any other COLT 200_-_ Basic Document, or for errors in judgment;
provided, however, that this provision shall not protect the Servicer or any
such
24
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 or any other COLT 200_-_ Basic Document. 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 gross negligence (except errors in judgment)
in the performance of the COLT Owner Trustee's duties under this Agreement, the
COLT Indenture, the Declaration and the COLT 200_-_ Supplement to the
Declaration of Trust 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 of Trust, 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 gross 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. In no event, however, shall the COLT
Indenture Trustee or the COLT Owner Trustee be liable to the Servicer for any
damages in the nature of special, indirect or consequential damages, however
styled, including lost profits, even if either or both of them have been advised
of the likelihood of such loss or damage.
(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 or
any other COLT 200_-_ Basic Document 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 and the Servicer shall be entitled to
reimbursement therefor.
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. 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
25
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.
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 distribution,
payment, transfer or deposit into any COLT 200_-_ Account (including, with
respect to GMAC as Servicer, to obtain and deposit Pull Ahead Payments under
Section 2.02(b), and, with respect to any successor Servicer, to deposit such
amounts, if obtained, pursuant to 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 90 consecutive days; or
26
(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 shall 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 this 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 COLT 200_-_ 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 COLT Indenture Trustee may terminate all of the
rights and obligations of the Servicer under this Agreement but any such
termination shall not relieve the Servicer for any liability that accrued prior
to such termination. 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 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 or deposited in the Payment
Ahead Servicing Account.
SECTION 5.03 COLT Indenture Trustee to Act; Appointment of Successor. On
and after the time the rights and obligations of the Servicer are terminated
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
Basic Servicing Fee, the Additional Servicing Fee and the Supplemental Servicing
Fee. Notwithstanding the above, the COLT Indenture Trustee may, if it shall be
27
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. Costs
associated with the resignation of the Servicer and the appointment of a
successor Servicer will be paid by the COLT Indenture Trustee from amounts in
the COLT 200_-SN___ Trust Estate.
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 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 payment in full of
all obligations under the CARAT 200_-_
28
Notes (such date, the "Optional Purchase Date"). To exercise such option, the
Servicer shall (A) furnish to the COLT 200_-_ Secured Noteholders and the COLT
Indenture Trustee notice of its intention to exercise such option and of the
Optional Purchase Date (such notice to be furnished not later than five Business
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"). 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 (including the
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 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 or
in any other COLT 200_-_ Basic Document, (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 or the COLT 200_-_
Certificateholder.
(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 and the COLT 200_-_ Certificateholder, 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
29
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 and the COLT 200_-_
Certificateholder.
(e) It shall not be necessary for the consent of the COLT 200_-_ Secured
Noteholders or the COLT 200_-_ Certificateholder 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 or the COLT 200_-_ Certificateholder provided for in this Agreement)
and of evidencing the authorization of the execution thereof by the COLT 200_-_
Secured Noteholders and the COLT 200_-_ Certificateholder shall be subject to
such reasonable requirements as the COLT Indenture Trustee or the COLT Owner
Trustee may prescribe, including the establishment of record dates.
(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 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
30
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 the Servicer nor COLT shall at any time hold legal title to any
Vehicles. As long as COLT shall own Series 200_-_ Lease Assets, legal title to
the related Vehicles shall remain with VAULT, 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 INTERNAL LAWS OF THE STATE OF NEW YORK, WITHOUT
REGARD TO THE PRINCIPLES OF CONFLICTS OF LAWS THEREOF OR OF ANY OTHER
JURISDICTION (EXCEPT SECTIONS 5-1401 AND 5-1402 OF THE NEW YORK GENERAL
OBLIGATIONS LAW), AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES UNDER
THIS AGREEMENT SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
SECTION 7.05 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, the Trust 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
31
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.
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
32
any obligation, representation, warranty or covenant made or undertaken by COLT
under this Agreement or the other COLT 200_-_ Basic Documents.
SECTION 7.16 Information to Be Provided by the COLT Indenture Trustee.
(a) The COLT Indenture Trustee agrees to cooperate in good faith with any
reasonable request by COLT or XXXX for information regarding the COLT Indenture
Trustee that is required in order to enable COLT or XXXX to comply with the
provisions of Items 1117, 1119 and 1122 of Regulation AB as it relates to the
COLT Indenture Trustee or to the COLT Indenture Trustee's obligations under this
Agreement and the Indenture.
(b) Except to the extent disclosed by the COLT Indenture Trustee pursuant
to Section 7.16(c) or (d) below, the COLT Indenture Trustee shall be deemed to
have represented to COLT and XXXX on the first day of each Collection Period
with respect to the prior Collection Period that, to the best of its knowledge,
there were no legal or governmental proceedings pending (or known to be
contemplated) against __________ or any property of ______________ that would be
material to any CARAT 200_-_ Noteholder or, to the extent that the CARAT 200_-_
Certificates are registered under the Securities Act for public sale, any holder
of such CARAT 200_-_ Certificates.
(c) The COLT Indenture Trustee shall, as promptly as practicable following
notice to or discovery by the COLT Indenture Trustee of any changes to any
information regarding the COLT Indenture Trustee as is required for the purpose
of compliance with Item 1117 of Regulation AB, provide to COLT and XXXX, in
writing, such updated information.
(d) The COLT Indenture Trustee shall deliver to COLT and XXXX on or before
March 15 of each year, beginning with March 15, 200_, a report of a
representative of the COLT Indenture Trustee with respect to the immediately
preceding calendar year certifying, on behalf of the COLT Indenture Trustee,
that except to the extent otherwise disclosed in writing to COLT and XXXX, to
the best of his or her knowledge, there were no legal or governmental
proceedings pending (or known to be contemplated) against __________ or any
property of _______________ that would be material to any CARAT 200_-_
Noteholder or, to the extent that the CARAT 200_-_ Certificates are registered
under the Securities Act for public sale, any holder of such CARAT 200_-_
Certificates.
(e) The COLT Indenture Trustee shall deliver to COLT and XXXX on or before
March 15 of each year, beginning with March 15, 200_, a report of a
representative of the COLT Indenture Trustee with respect to the immediately
preceding calendar year providing to COLT and XXXX such information regarding
the COLT Indenture Trustee as is required for the purpose of compliance with
Item 1119 of Regulation AB. Such information shall include, at a minimum a
description of any affiliation between the COLT Indenture Trustee and any of the
following parties to the CARAT 200_-SN___ securitization transaction, as such
parties are identified to the COLT Indenture Trustee by COLT and XXXX in writing
in advance of the CARAT 200_-SN___ securitization transaction:
(i) XXXX;
(ii) GMAC;
33
(iii) COLT;
(iv) COLT LLC;
(v) the Trust;
(vi) the Servicer;
(vii) the Trust Administrator;
(viii) the COLT Owner Trustee;
(ix) the CARAT Indenture Trustee;
(x) the CARAT Owner Trustee;
(xi) the Swap Counterparty (as defined in Appendix A of the Trust Sale
and Administration Agreement); and
(xii) any other material transaction party
In connection with the parties listed in clauses (i) and (xii) above, the COLT
Indenture Trustee shall include a description of whether there is, and if so,
the general character of, any business relationship, agreement, arrangement,
transaction or understanding that is entered into outside the ordinary course of
business or is on terms other than would be obtained in an arm's length
transaction with an unrelated third party, apart from the CARAT 200_-SN___
securitization transaction, between the COLT Indenture Trustee and any of the
parties listed above, that currently exists or that existed during the two
calendar years immediately preceding the date of such report and that is
material to an investor's understanding of the asset backed securities issued in
the CARAT 200_-SN___ securitization transaction.
34
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:
---------------------------------
____________, not in its individual
capacity but solely as COLT Indenture
Trustee
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
COLT 200_-_ Servicing Agreement
EXHIBIT A
to the COLT 200_-_ Servicing Agreement
COLT Series Definitions
(attached hereto)
COLT 200_-_ Servicing Agreement
EXHIBIT B
to the COLT 200_-_ Servicing Agreement
FORM OF COLT CUSTODIAN AGREEMENT
(attached hereto)
COLT 200_-_ Servicing Agreement
EXHIBIT C
to the COLT 200_-_ Servicing Agreement
FORM OF COLT PULL AHEAD FUNDING AGREEMENT
(attached hereto)
COLT 200_-_ Servicing Agreement
EXHIBIT A
TO THE COLT 200_-_ SERVICING AGREEMENT
PART I - COLT SERIES DEFINITIONS
When used in any 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, any Payment Date
and the last day of the related Collection Period,
(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 2.13 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 the 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 the 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.
"Account Holder": a bank or trust company whose short-term unsecured debt
obligations have the Required Deposit Rating that holds one or more of the COLT
200_-_ Accounts.
"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.
["Additional Servicing Fee": with respect to any Payment Date, the
additional fee payable to the Servicer for services rendered during the related
Collection Period, which shall be equal to the sum of (a) 1/12th of the
Additional Servicing Fee Rate multiplied by the Aggregate ABS Value of the
Series 200_-_ Lease Assets at the opening of business on the first day of the
related Collection Period (or, for the first Payment Date, the Additional
Servicing Fee Rate multiplied by a fraction, the numerator of which is 60 and
the denominator of which is 360, multiplied by the Aggregate Initial ABS Value)
and (b) any unpaid Additional Servicing Fee from any prior Payment Date.]
["Additional Servicing Fee Rate": __% per annum.]
"Administrative Lease Asset": a Series 200_-_ Lease Asset that the Servicer
is required to purchase pursuant to Section 2.13 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.
"Agency Office": the office of COLT maintained pursuant to Section 3.2 of
the COLT Indenture.
"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 Initial ABS Value": an amount equal to the sum of the Initial
ABS Values of all Series 200_-_ Lease Assets.
"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": on any date of determination,
the sum of the Secured Note Principal Balances for all COLT 200_-_ Secured Notes
on such date.
"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
-2-
Lease Guide Co. and as selected by the Servicer on the date such Series 200_-_
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 during or prior to the related 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 made by the Lessee during the related
Collection Period was less than the Monthly 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.
"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 on the Series 200_-_ Lease Assets during the related Collection Period,
and (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 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 for Outstanding Advances and Liquidation
Expenses withdrawn from the COLT Collection Account on such Payment Date
pursuant to Section 3.03(b)(iii) of the COLT Servicing Agreement.
"Basic 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, a
-3-
fraction, the numerator of which is 60 and denominator of which is 360), and
(iii) the Basic Servicing Fee Rate.
"Basic Servicing Fee Rate": __%
"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.
"CARAT 200_-_ Certificate": as set forth in Appendix A to the Trust Sale
and Administration Agreement.
"CARAT 200_-_ Notes": as set forth in Appendix A to the Trust Sale and
Administration Agreement.
"CARAT Collection Account": the account designated as the "Collection
Account", established and maintained pursuant to Section 5.01(a)(i) of the Trust
Sale and Administration Agreement.
"CARAT Collection Account Shortfall Amount": with respect to any Payment
Date, the excess of (A) the amounts payable from the CARAT Collection Account on
such Payment Date pursuant to Section 4.05(b) of the Trust Sale and
Administration Agreement or, following the occurrence of a CARAT Indenture Event
of Default and a declaration that the CARAT 200_-_ Notes have become immediately
due and payable, pursuant to Section 8.01(b) of the Trust Sale and
Administration Agreement (in each case, other than amounts payable to the
Reserve Account and the CARAT 200_-_ Certificates in accordance with the
priorities of payment set forth therein), over (B) the Total Available Amount
(other than any amounts set forth in clause (i) of the definition thereof) for
such Payment Date.
"CARAT Indenture": the CARAT 200_-_ Indenture, dated as of the Series
200_-_ Closing Date, between the Trust 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 Appendix A to the Trust Sale and Administration Agreement.
"CARAT Indenture Trustee": ______________, or any successor thereto.
"CARAT Owner Trustee": [Deutsche Bank Trust Company Delaware] or any
successor thereto under the Trust Agreement.
"Class A-_ Notes": as set forth in Appendix A to the Trust Sale and
Administration Agreement.
"XXXX": Capital Auto Receivables, Inc., a Delaware corporation.
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"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 Reserve
Account and the Payment Ahead Servicing Account.
"COLT 200_-_ Basic Documents": the Declaration of Trust, the COLT 200_-_
Supplement to the Declaration of Trust, 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 of Trust.
"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_-_ 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": __% 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.
"COLT 200_-_ Supplement to the Declaration of Trust": the COLT 200_-_
Supplement to the Declaration of Trust, 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 of Trust, 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 GMAC,
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.
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"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 Cutoff 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;
(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 for
the related Collection Period pursuant to Section 2.03(b) of the COLT
Servicing Agreement; plus
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(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": _________________, or any successor thereto under
the COLT Indenture.
"COLT, LLC": Central Originating Lease, LLC, or any successor thereto.
"COLT Order": a written order signed in the name of COLT by any of its
Authorized Officers and delivered to the COLT Indenture Trustee.
"COLT Overcollateralization Amount": $__________, which is equal to the
excess of Aggregate Initial ABS Value over the Initial Secured Note Principal
Balance.
"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,
substantially in the form attached as Exhibit C to the COLT Servicing Agreement,
as the same may be amended, supplemented or otherwise modified from time to
time.
"COLT Request": a written request signed in the name of COLT by any of its
Authorized Officers and delivered to the COLT Indenture Trustee.
"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 same may be amended, supplemented or otherwise modified from
time to time.
"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.
"Commission": The Securities and Exchange Commission.
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"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
_________, __________, _____, ____, _____.
"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;
(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
-8-
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 Reserve Account,
collectively.
"Determination Date": the 10th day of each calendar month, or if such 10th
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.
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"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
Indenture 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
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 a credit rating from each of the Rating
Agencies in the highest investment category for short-term unsecured debt
or certificates of deposit granted thereby;
(iii) commercial paper having, at the time of the investment or
contractual commitment to invest therein, a rating from each of the Rating
Agencies in the highest investment category for short-term unsecured debt
or certificates of deposit granted thereby;
(iv) investments in money market funds having a rating from each of
the Rating Agencies in the highest investment category for short-term
unsecured debt or certificates of deposit granted thereby (including funds
for which the Designated Account Owner, the COLT Owner Trustee or the COLT
Indenture Trustee or any of their respective affiliates is investment
manager or advisor, so long as such fund shall have such rating);
(v) bankers' acceptances issued by any depository institution or trust
company referred to in clause (ii) above;
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(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 (A) a depository institution or trust company
(acting as principal) described in clause (ii) or (B) a depository
institution or trust company (x) the deposits of which are insured by FDIC
or (y) the counterparty for which has a rating from each of the Rating
Agencies in the highest investment category for short-term unsecured debt
obligations, the collateral for which is held by a custodial bank for the
benefit of the Designated Account Owner or the COLT Indenture Trustee, is
marked to market daily and is maintained in an amount that exceeds the
amount of such repurchase obligation, and which is required to be
liquidated immediately upon the amount of such collateral being less than
the amount of such repurchase obligation (unless the counterparty
immediately satisfies the repurchase obligation upon being notified of such
shortfall);
(vii) (solely in the case of the Reserve Account) the Class A-_ Notes;
and
(viii) 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. The provisions in
clauses (ii), (iii), (iv), (vi) and (vii) above requiring that certain
investments be rated in the highest investment category granted by each Rating
Agency require such rating from S&P and Xxxxx'x and from Fitch only if Fitch is
then rating such investment. 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 a rating in the investment
category for short term unsecured debt or certificates of deposit shall mean
"P-1" in the case of Xxxxx'x, "A-1" in the case of S&P, and "F-1" in the case of
Fitch.
"ERISA Affiliate": a corporation, trade or business that is, along with
GMAC, a member of a controlled group of corporations or a controlled group of
trades or businesses, as described in Section 414 of the Code or Section 4001 of
ERISA.
"Event of Default": an event described in Section 5.1 of the COLT
Indenture.
"Excess Payment": as set forth in Section 3.05(a) of the COLT Servicing
Agreement.
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"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.
"Exchange Act": as set forth in Appendix A to the Trust Sale and
Administration Agreement.
"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 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 Lease 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 during 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.
"FDIC": Federal Deposit Insurance Corporation or any successor agency.
"Final Maturity Date": the Payment Date in ________, 200_.
"Fitch": Fitch, Inc., or any successor thereto.
"Grant": To mortgage, pledge, bargain, sell, warrant, alienate, remise,
release, convey, assign, transfer, create and xxxxx x xxxx upon, a security
interest in and right of set off against, 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.
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"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 COLT
Order and approved by the COLT Indenture Trustee in the exercise 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
sum of (i) the present value, as of the Cutoff Date (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 the Cutoff Date, discounted from the first day of the
Collection Period in which such Monthly Lease Payment is due to the Cutoff Date,
(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 Cutoff Date (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 Cutoff Date.
"Initial Secured Note Principal Balance": as set forth in Section 2.1(c) 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 2.08(a) of the
COLT Servicing Agreement and (ii) all amounts required to be deposited by the
Servicer pursuant to Section 2.08(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.
-13-
"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 Series 200_-_ Lease
comprising such Series 200_-_ 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.
"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 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.
"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.
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"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": as set forth 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 Xxxxx'x, or (ii) the
Servicer has made any other arrangements satisfactory to the Rating Agencies.
"Notice of Default": as set forth in Section 5.1(b) of the COLT Indenture.
"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": as set forth 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 2.7 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
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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 Trust Sale and
Administration Agreement, the Servicer or an Affiliate of any of the foregoing
Persons shall be disregarded and deemed not to be Outstanding.
"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 Secured Note Principal
Balance of all 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.
"Payment Ahead Servicing Account": as set forth in Section 3.01(a)(ii) of
the COLT Servicing Agreement.
"Payment Date": the fifteenth day of each calendar month, or, if such day
is not a Business Day, the next succeeding Business Day, commencing _____, 200_.
"Payments Ahead": with respect to each Payment Date and a Series 200_-_
Lease, the aggregate of all Excess Payments on such Series 200_-_ Lease received
during or prior to the related Collection Period minus the aggregate of all
Applied Payments Ahead on such Series 200_-_ Lease which were applied on any
prior Payment Date.
"PBGC": the Pension Benefit Guaranty Corporation.
"Perfection Representations": the representations set forth on Schedule B
to the COLT Sale and Contribution Agreement.
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"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.
"Pooling and Administration Agreement": the Pooling and Administration
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.
"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 Series 200_-_ 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 Xxxxx'x, S&P and Fitch (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.
"Regulation AB": Subpart 229.1100 - Asset Backed Securities (Regulation
AB), 17 C.F.R. Sections 229.1100-229.1123, as such regulations may be amended
from time to time and subject to such clarification and interpretation as have
been provided by the Commission in the adopting release (Asset-Backed
Securities, Securities Act Release No. 33-8518. 70 Fed. Reg. 1,506, 1,531
(January 7, 2005)) and as may be provided by the Commission or its staff from
time to time.
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"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.
"Report of Assessment of Compliance with Servicing Criteria": As defined in
Section 2.17(a) of the COLT Servicing Agreement.
"Required Deposit Rating": a rating on short-term unsecured debt
obligations of "P-1" by Xxxxx'x 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.
"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.
"Reserve Account Available Amount": as of any date of determination, the
cash and other Eligible Investments on deposit in the Reserve Account on such
date of determination.
"Reserve Account Excess Amount": with respect to any Payment Date, the
excess, if any, of (i) the Reserve Account Available Amount on such date, over
(ii) the Reserve Account Required Amount on such date.
"Reserve Account Initial Deposit": an amount equal to $________.
"Reserve Account Required Amount": with respect to any Payment Date, an
amount equal to the lesser of (1) the sum of (i) $__________ (which is ___% of
the Aggregate Initial ABS Value of the Series 200_-_ Lease Assets) and (ii) ___%
of the Aggregate ABS Value at the close of business on the last day of the
related Collection Period, and (2) the Aggregate Note Principal Balance (as
defined in the Trust Sale and Administration Agreement).
"Residual Advance": as set forth 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
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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.
"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 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.
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"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, 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 Secured 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)(iii) of the COLT Servicing Agreement or, with respect to the
first Payment Date, the initial Secured Note Principal Balance of such COLT
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.
"Secured Note Principal Balance": with respect to a COLT 200_-_ Secured
Note on any date of determination, an amount equal to __% of the sum of the
Initial ABS Values of the Series 200_-_ Lease Assets acquired by GMAC in the
state related to such COLT 200_-_ Secured Note, reduced by all payments prior to
such date of determination in respect of principal made to the holder of such
COLT 200_-_ Secured Note pursuant to Section 3.03(c)(iii) 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 (after giving effect to any
principal payments made on the COLT 200_-_ Secured Notes on such
preceding Payment Date or with respect to the first Payment Date, on
the Series 200_-_ Closing Date); and
(b) an amount equal to the excess, if any, of (i) the Aggregate Secured
Note Principal Balance at the close of business on the immediately
preceding Payment Date (after giving effect to any principal payments
made on the COLT 200_-_ Secured Notes on such preceding Payment Date
or with respect to the first Payment Date,
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on the Series 200_-_ Closing Date) over (ii) the result of the
Aggregate ABS Value at the close of business on the last day of the
related Collection Period minus the COLT Overcollateralization Amount.
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": the register for the COLT 200_-_ Secured Notes
specified in Section 2.3(a) of the COLT Indenture.
"Secured Note Registrar": initially, the COLT Indenture Trustee, as set
forth in Section 2.3(a) of the COLT Indenture, and thereafter, any other Person
appointed by COLT in accordance with Section 2.3 of the COLT Indenture.
"Secured Notes Transfer and Administration Agreements": as set forth in the
recitals to the COLT Sale and Contribution Agreement.
"Securities Act" : as defined in Section 2.15(a) of the CARAT Indenture.
"Securities Intermediary": as set forth in Section 3.01(b) of the COLT
Servicing Agreement.
"Security Deposit": with respect to any Vehicle, any security deposit made
by the Lessee under the related Series 200_-_ Lease.
"Seller": GMAC, or any successor thereto.
"Series 200_-_": as set forth in Section 10.1(b) of the COLT 200_-_
Supplement to the Declaration of Trust.
"Series 200_-_ Closing Date": _____, 200_.
"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 Files": as set forth in Section 2.04 of the COLT
Sale and Contribution Agreement.
"Series 200_-_ Lease Assets": as of any date of determination, the Lease
Assets listed on the initial Series 200_-_ Lease Assets 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.
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"Series 200_-_ Lease Assets Schedule": as set forth in Section 2.19 of the
COLT Servicing 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 of Trust.
"Series Portfolio": one or more separate portfolios of assets of COLT which
have been identified and allocated on the books and records of COLT pursuant to
Section 3.2 of the Declaration of Trust.
"Servicer": GMAC, or any successor thereto under the COLT Servicing
Agreement.
"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 2.15
of the COLT Servicing Agreement.
"Servicing Criteria": The "servicing criteria" set forth in Item 1122(d) of
Regulation AB.
"Sold Assets": as set forth in Section 2.01(a)(vii) 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.
"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 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 Trust Sale and Administration Agreement.
"Trust": Capital Auto Receivables Asset Trust 200_-_, a Delaware statutory
trust created by the Trust Agreement.
"Trust Administrator": as set forth in Appendix A to the Trust Sale and
Administration Agreement.
"Trust Agreement": the Trust Agreement, dated as of the Series 200_-_
Closing Date, between XXXX and the CARAT Owner Trustee.
"Trust Indenture Act" or "TIA": the Trust Indenture Act of 1939 as in force
on the date hereof, unless otherwise specifically provided.
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"Trust Sale and Administration Agreement": the Trust Sale and
Administration Agreement, dated as of the Series 200_-_ Closing Date, between
XXXX, the Trust and the Trust Administrator, as the same may be amended,
supplemented or otherwise modified from time to time.
"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": as set forth in 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": as set forth in Section 4.04 of the COLT 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 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:
_________
_________
_________
_________
(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:
_________
_________
_____
_____,
with a copy to:
_______________,
Attention: __________________
_________
_________
Mail Stop: ______
_________
Phone (__) _______
Fax (__) ________,
(g) in the case of the CARAT Owner Trustee, the CARAT Indenture
Trustee, XXXX, the Trust or any Rating Agency, as set forth for
such person in Appendix B to the Trust Sale and Administration
Agreement,
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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