EXHIBIT 4.3
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CENTRAL ORIGINATING LEASE TRUST
SECURED NOTES
COLT 200_-_ INDENTURE
DATED AS OF ___, 200_
CENTRAL ORIGINATING LEASE TRUST
AND
_____________,
AS COLT INDENTURE TRUSTEE
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TABLE OF CONTENTS
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ARTICLE I DEFINITIONS AND INCORPORATION BY REFERENCE..................... 3
SECTION 1.1 Definitions; Rules of Construction...................... 3
SECTION 1.2 Incorporation by Reference of Trust Indenture Act....... 3
ARTICLE II THE SECURED NOTES............................................. 4
SECTION 2.1 Form.................................................... 4
SECTION 2.2 Execution, Authentication and Delivery.................. 4
SECTION 2.3 Registration; Registration of Transfer and Exchange of
COLT 200_-_ Secured Notes............................... 5
SECTION 2.4 Mutilated, Destroyed, Lost or Stolen COLT 200_-_ Secured
Notes................................................... 7
SECTION 2.5 Payment of Principal and Interest....................... 8
SECTION 2.6 Persons Deemed Secured Noteholders...................... 9
SECTION 2.7 Cancellation of COLT 200_-_ Secured Notes............... 9
SECTION 2.8 Release of COLT 200_-_ Trust Estate..................... 9
SECTION 2.9 Seller and XXXX as COLT 200_-_ Secured Noteholders...... 10
SECTION 2.10 Tax Treatment........................................... 10
ARTICLE III COVENANTS.................................................... 10
SECTION 3.1 Payment of Principal and Interest and Other Amounts..... 10
SECTION 3.2 Maintenance of Agency Office............................ 10
SECTION 3.3 Money for Payments to Be Held in Trust.................. 11
SECTION 3.4 Existence............................................... 12
SECTION 3.5 Protection of COLT 200_-_ Trust Estate; Acknowledgment
of Pledge............................................... 12
SECTION 3.6 Opinions as to COLT 200_-_ Collateral................... 13
SECTION 3.7 Performance of Obligations; Servicing of Series 200_-_
Lease Assets............................................ 14
SECTION 3.8 Negative Covenants...................................... 15
SECTION 3.9 Annual Statement as to Compliance....................... 16
SECTION 3.10 Consolidation, Merger, Etc., of Trust; Disposition of
Trust Assets............................................ 16
SECTION 3.11 Successor or Transferee................................. 18
SECTION 3.12 No Other Business....................................... 18
SECTION 3.13 No Borrowing............................................ 18
SECTION 3.14 Guarantees, Loans, Advances and Other Liabilities....... 18
SECTION 3.15 Servicer's Obligations.................................. 19
SECTION 3.16 Capital Expenditures.................................... 19
SECTION 3.17 Restricted Payments..................................... 19
SECTION 3.18 Notice of Events of Default............................. 19
SECTION 3.19 Further Instruments and Acts............................ 19
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TABLE OF CONTENTS
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SECTION 3.20 COLT Indenture Trustee's Assignment of Administrative
Lease Assets and Warranty Lease Assets and Sale or
Other Distribution of the Related Vehicles.............. 20
SECTION 3.21 Representations and Warranties by COLT to the COLT
Indenture Trustee....................................... 20
SECTION 3.22 Maintenance of Separate Records for Each Series......... 21
ARTICLE IV SATISFACTION AND DISCHARGE.................................... 21
SECTION 4.1 Satisfaction and Discharge of COLT Indenture............ 21
SECTION 4.2 Application of Trust Money.............................. 22
SECTION 4.3 Repayment of Monies Held by Paying Agent................ 22
SECTION 4.4 Duration of Position of COLT Indenture Trustee.......... 22
ARTICLE V DEFAULT AND REMEDIES........................................... 23
SECTION 5.1 Events of Default....................................... 23
SECTION 5.2 Acceleration of Maturity; Rescission and Annulment...... 24
SECTION 5.3 Collection of Indebtedness and Suits for Enforcement by
COLT Indenture Trustee.................................. 25
SECTION 5.4 Remedies; Priorities.................................... 27
SECTION 5.5 Optional Preservation of the Series 200_-_ Lease Assets. 28
SECTION 5.6 Limitation of Suits..................................... 28
SECTION 5.7 Unconditional Rights of the COLT 200_-_ Secured
Noteholders to Receive Principal and Interest........... 29
SECTION 5.8 Restoration of Rights and Remedies...................... 29
SECTION 5.9 Rights and Remedies Cumulative.......................... 30
SECTION 5.10 Delay or Omission, Not a Waiver......................... 30
SECTION 5.11 Control by the COLT 200_-_ Secured Noteholders.......... 30
SECTION 5.12 Waiver of Past Defaults................................. 31
SECTION 5.13 Undertaking for Costs................................... 31
SECTION 5.14 Waiver of Stay or Extension Laws........................ 32
SECTION 5.15 Action on COLT 200_-_ Secured Notes..................... 32
SECTION 5.16 Performance and Enforcement of Certain Obligations...... 32
ARTICLE VI THE COLT INDENTURE TRUSTEE.................................... 33
SECTION 6.1 Duties of COLT Indenture Trustee........................ 33
SECTION 6.2 Rights of COLT Indenture Trustee........................ 34
SECTION 6.3 COLT Indenture Trustee May Own COLT 200_-_ Secured
Notes................................................... 35
SECTION 6.4 COLT Indenture Trustee's Disclaimer..................... 35
SECTION 6.5 Notice of Default....................................... 35
SECTION 6.6 Reports by COLT Indenture Trustee....................... 35
SECTION 6.7 Compensation; Indemnity................................. 36
SECTION 6.8 Replacement of COLT Indenture Trustee................... 37
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SECTION 6.9 Merger or Consolidation of COLT Indenture Trustee....... 38
SECTION 6.10 Appointment of Co-COLT Indenture Trustee or Separate
COLT Indenture Trustee.................................. 38
SECTION 6.11 Eligibility; Disqualification........................... 40
SECTION 6.12 Preferential Collection of Claims Against COLT.......... 40
SECTION 6.13 Representations and Warranties of COLT Indenture Trustee 40
SECTION 6.14 COLT Indenture Trustee May Enforce Claims Without
Possession of COLT 200_-_ Secured Notes................. 41
SECTION 6.15 Suit for Enforcement.................................... 41
SECTION 6.16 Rights of COLT 200_-_ Secured Noteholders to Direct COLT
Indenture Trustee....................................... 41
ARTICLE VII COLT 200_-_ SECURED NOTEHOLDERS' LISTS AND REPORTS........... 42
SECTION 7.1 COLT to Furnish COLT Indenture Trustee Names and
Addresses of COLT 200_-_ Secured Noteholders............ 42
SECTION 7.2 Preservation of Information, Communications to COLT
200_-_ Secured Noteholders.............................. 42
SECTION 7.3 Reports by COLT......................................... 42
SECTION 7.4 Reports by Trustee...................................... 43
ARTICLE VIII ACCOUNTS, DISBURSEMENTS AND RELEASES.................... 43
SECTION 8.1 Collection of Money..................................... 43
SECTION 8.2 Designated Accounts; Allocations; Payments.............. 43
SECTION 8.3 General Provisions Regarding Designated Accounts........ 44
SECTION 8.4 Release of the COLT 200_-_ Trust Estate................. 44
SECTION 8.5 Opinion of Counsel...................................... 45
ARTICLE IX SUPPLEMENTAL INDENTURES....................................... 45
SECTION 9.1 Supplemental Indentures Without Consent of COLT 200_-_
Secured Noteholders..................................... 45
SECTION 9.2 Supplemental Indentures with Consent of COLT 200_-_
Secured Noteholders..................................... 47
SECTION 9.3 Execution of Supplemental Indentures.................... 48
SECTION 9.4 Effect of Supplemental Indenture........................ 48
SECTION 9.5 Conformity with Trust Indenture Act..................... 49
SECTION 9.6 Reference in COLT 200_-_ Secured Notes to Supplemental
Indentures.............................................. 49
ARTICLE X REDEMPTION OF COLT 200_-_ SECURED NOTES........................ 49
SECTION 10.1 Redemption.............................................. 49
SECTION 10.2 COLT 200_-_ Secured Notes Payable on Redemption Date.... 49
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ARTICLE XI MISCELLANEOUS................................................. 49
SECTION 11.1 Compliance Certificates and Opinions, Etc............... 49
SECTION 11.2 Form of Documents Delivered to COLT Indenture Trustee... 51
SECTION 11.3 Acts of COLT 200_-_ Secured Noteholders................. 52
SECTION 11.4 Notices, Etc., to COLT Indenture Trustee, COLT and
Rating Agencies......................................... 53
SECTION 11.5 Notices to COLT 200_-_ Secured Noteholders; Waiver...... 53
SECTION 11.6 Alternate Payment and Notice Provisions................. 54
SECTION 11.7 Conflict with Trust Indenture Act....................... 54
SECTION 11.8 Effect of Headings and Table of Contents................ 54
SECTION 11.9 Successors and Assigns.................................. 54
SECTION 11.10 Severability............................................ 54
SECTION 11.11 Benefits of COLT Indenture.............................. 55
SECTION 11.12 Legal Holidays.......................................... 55
SECTION 11.13 GOVERNING LAW........................................... 55
SECTION 11.14 Counterparts............................................ 55
SECTION 11.15 Recording of COLT Indenture............................. 55
SECTION 11.16 No Recourse............................................. 55
SECTION 11.17 No Petition............................................. 56
SECTION 11.18 Inspection.............................................. 56
SECTION 11.19 Indemnification by and Reimbursement of the Servicer.... 57
SECTION 11.20 Series Liabilities...................................... 57
SECTION 11.21 Subordination........................................... 57
EXHIBIT A FORM OF COLT 200_-_ SECURED NOTE
EXHIBIT B FORM OF CERTIFICATION
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COLT 200_-_ INDENTURE, dated as of ___, 200_ (this "COLT Indenture"),
between CENTRAL ORIGINATING LEASE TRUST, a Delaware statutory trust ("COLT"),
and _________, a national banking association, as indenture trustee (as COLT
Indenture Trustee and not in its individual capacity, the "COLT Indenture
Trustee").
Each party agrees as follows for the benefit of the other parties and
for the equal and ratable benefit of the Holders of the COLT 200_-_ Secured
Notes:
GRANTING CLAUSE
COLT hereby Grants to the COLT Indenture Trustee, for the equal and
ratable benefit of each Holder of a COLT 200_-_ Secured Note, a security
interest in, and its transfer, assignment and conveyance of, without recourse,
the following:
(i) all right, title and interest of COLT in, to and under the Series
200_-_ Leases listed on the Series 200_-_ Lease Assets Schedule attached as
Schedule A to the COLT Sale and Contribution Agreement and all beneficial
interest in the Vehicles related to the Series 200_-_ Lease Assets under the
VAULT Trust Agreement, and all monies due thereunder on and after the Cutoff
Date and with respect to the Vehicles, to the extent permitted by law, all
accessions thereto;
(ii) the interest of COLT in any proceeds from claims on any physical
damage, credit life, credit disability or other insurance policies covering the
related Vehicles or Lessees;
(iii) the interest of COLT in any proceeds from recourse against
Dealers on the Series 200_-_ Lease Assets;
(iv) all right, title and interest of COLT in, to and under the COLT
200_-_ Lease Assets Assignment;
(v) all right, title and interest of COLT in, to and under the VAULT
Trust Agreement (solely with respect to the Vehicles related to Series 200_-_
Lease Assets);
(vi) all right, title and interest of COLT in, to and under the COLT
Servicing Agreement and any other COLT 200_-_ Basic Document;
(vii) all right, title and interest of COLT in, to and under the funds
on deposit from time to time in the Designated Accounts, including all
Designated Account Property; and
(viii) the present and future claims, demands, causes and choses in
action in respect of any or all the foregoing and all payments on or under and
all proceeds of every kind and nature whatsoever in respect of any or all the
foregoing, including all proceeds of the conversion of any or all of the
foregoing, voluntary or involuntary, into cash or other liquid property, all
cash proceeds, accounts, accounts receivable, notes, drafts, acceptances,
chattel paper, checks, deposit accounts, insurance proceeds, investment
property, payment intangibles, general intangibles, condemnation awards, rights
to payment of any and every kind and other forms of obligations and receivables,
instruments and other property which at any time constitute
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all or part of or are included in the proceeds of any of the foregoing
(collectively, and together with the Direct COLT Pledge, the "COLT 200_-_
Collateral").
In addition, 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 any Vehicle related to the
Series 200_-_ Lease Assets (and not merely a beneficial interest in VAULT
representing an interest in the legal title to such Vehicle), COLT hereby
grants, equally and ratably, to each COLT 200_-_ Secured Noteholder a security
interest in all of COLT's rights in such Vehicle, to secure its obligations
under the COLT Indenture (the assets pledged under such security interest, the
"Direct COLT Pledge"). The Direct COLT Pledge shall constitute part of the COLT
200_-_ Collateral for all purposes hereunder, and each COLT 200_-_ Secured
Noteholder, by its acceptance thereof, hereby appoints the COLT Indenture
Trustee as its agent to act with respect to the Direct COLT Pledge as it is
required to act with respect to the remainder of the COLT 200_-_ Collateral in
accordance with this COLT Indenture.
The foregoing Grant has been made and will continue to be made in
trust to secure the payment of principal of and interest on, and any other
amounts owing in respect of, the COLT 200_-_ Secured Notes, equally and ratably
without prejudice, priority or distinction among the Holders of the COLT 200_-_
Secured Notes and to secure compliance with the provisions of this COLT
Indenture, all as provided in this COLT Indenture. This COLT Indenture
constitutes a security agreement under the UCC.
The foregoing Grant includes all rights, powers and options (but none
of the obligations, if any) of COLT under any agreement or instrument included
in the COLT 200_-_ Collateral, including the immediate and continuing right to
claim for, collect, receive and give receipt for principal and interest payments
in respect of the Series 200_-_ Lease Assets included in the COLT 200_-_
Collateral and all other monies payable under the COLT 200_-_ Collateral, 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 COLT or otherwise and generally to do and receive anything that COLT is or
may be entitled to do or receive under or with respect to the COLT 200_-_
Collateral.
Furthermore, on the Series 200_-_ Closing Date, VAULT shall grant a
security interest in the Pledged Collateral to each COLT 200_-_ Secured
Noteholder, to the extent set forth in the VAULT Security Agreement. The Pledged
Collateral shall constitute part of the COLT 200_-_ Trust Estate for all
purposes hereunder, and each COLT 200_-_ Secured Noteholder, by its acceptance
thereof, hereby appoints the COLT Indenture Trustee as its agent to act with
respect to the Pledged Collateral as it is required to act with respect to the
remainder of the COLT 200_-_ Trust Estate in accordance with this COLT
Indenture.
The Holders of the COLT 200_-_ Secured Notes shall enjoy solely the
security of the COLT 200_-_ Trust Estate and shall have no recourse to the
assets included in the Series Portfolio securing any other Series of Secured
Notes or any other assets of COLT.
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The COLT Indenture Trustee, as indenture trustee on behalf of each
Holder of the COLT 200_-_ Secured Notes, acknowledges such Grant and accepts the
trusts under this COLT Indenture in accordance with the provisions of this COLT
Indenture.
ARTICLE I
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.1 Definitions; Rules of Construction. Capitalized terms used
in this COLT Indenture but not defined herein are defined in and shall have the
meanings assigned to them in the COLT Series Definitions set forth in Part I of
Exhibit A to the COLT Servicing Agreement, or if not defined therein, shall have
the meanings assigned to them in the COLT Program Definitions set forth in Part
I of Exhibit I to the Third Amended and Restated Declaration of Trust, dated as
of March 25, 2004 (as amended, modified or supplemented from time to time, the
"Declaration"), by Deutsche Bank Trust Company Delaware, as COLT Owner Trustee,
and acknowledged, accepted and agreed by Central Originating Lease, LLC ("COLT,
LLC"), as Residual Certificateholder, and General Motors Acceptance Corporation
("GMAC"). All references herein to Articles, Sections, subsections and exhibits
are to Articles, Sections, subsections and exhibits of this COLT Indenture
unless otherwise specified. All terms defined in this COLT Indenture shall have
the defined meanings when used in any certificate, notice, COLT 200_-_ Secured
Note or other document made or delivered pursuant hereto unless otherwise
defined therein. The rules of construction set forth in Part II of Exhibit A to
the COLT Servicing Agreement shall be applicable to this COLT Indenture.
SECTION 1.2 Incorporation by Reference of Trust Indenture Act.
Whenever this COLT Indenture refers to a provision of the TIA, such provision is
incorporated by reference in and made a part of this COLT Indenture. The
following TIA terms used in this COLT Indenture have the following meanings:
"Commission" means the Securities and Exchange Commission;
"indenture securities" means the COLT 200_-_ Secured Notes;
"indenture security holder" means a COLT 200_-_ Secured Noteholder;
"indenture to be qualified" means this COLT Indenture;
"indenture trustee" means the COLT Indenture Trustee;
"obligor" on the indenture securities means COLT and any other obligor on
the indenture securities.
All other TIA terms used in this COLT Indenture that are defined by the
TIA, defined by reference to another statute or defined by a Commission rule
have the respective meanings assigned to them by such definitions.
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ARTICLE II
THE SECURED NOTES
SECTION 2.1 Form.
(a) Each COLT 200_-_ Secured Note, together, in each case, with the
COLT Indenture Trustee's certificate of authentication, shall be substantially
in the form set forth in Exhibit A, in each case with such appropriate
insertions, omissions, substitutions and other variations as are required or
permitted by this COLT Indenture, and each such COLT 200_-_ Secured Note may
have such letters, numbers or other marks of identification and such legends or
endorsements placed thereon as may, consistently herewith, be determined to be
appropriate by the officers executing such COLT 200_-_ Secured Notes, as
evidenced by their execution of the COLT 200_-_ Secured Notes, or as may be
required to comply with any law or with any rule or regulation made pursuant
thereto or with any rule or regulation of any stock exchange on which such COLT
200_-_ Secured Notes may be listed or to conform to usage. Any portion of the
text of any COLT 200_-_ Secured Note may be set forth on the reverse thereof,
with an appropriate reference thereto on the face of the COLT 200_-_ Secured
Note. The COLT 200_-_ Secured Notes shall be secured by the COLT 200_-_ Trust
Estate as set forth in this COLT Indenture.
(b) The COLT 200_-_ Secured Notes shall be typewritten, printed,
lithographed or engraved or produced by any combination of these methods (with
or without steel engraved borders), all as determined by the officers executing
such COLT 200_-_ Secured Notes, as evidenced by their execution of such COLT
200_-_ Secured Notes.
(c) Each COLT 200_-_ Secured Note shall relate to and identify the
Series 200_-_ Lease Assets originated in a particular state (as evidenced by the
certificates of title issued for such Series 200_-_ Lease Assets and reflected
on the Seller's system), and shall be issued in the initial Secured Note
Principal Balance set forth on the face thereof, which shall be equal to 98.50%
of the sum of the Initial ABS Values of the Series 200_-_ Lease Assets of such
COLT 200_-_ Secured Note (with respect to each COLT 200_-_ Secured Note, the
"Initial Secured Note Principal Balance").
(d) The terms of the COLT 200_-_ Secured Notes as provided for in
Exhibit A are part of the terms of this COLT Indenture.
SECTION 2.2 Execution, Authentication and Delivery.
(a) Each COLT 200_-_ Secured Note shall be dated the date of its
authentication and shall be issuable as a registered COLT 200_-_ Secured Note.
(b) The COLT 200_-_ Secured Notes shall be executed on behalf of COLT
by any of its Authorized Officers. The signature of any such Authorized Officer
on the COLT 200_-_ Secured Notes may be manual or facsimile.
(c) COLT 200_-_ Secured Notes bearing the manual or facsimile
signature of individuals who were at any time Authorized Officers of COLT shall
bind COLT, notwithstanding that such individuals or any of them have ceased to
hold such office prior to the
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authentication and delivery of such COLT 200_-_ Secured Notes or did not hold
such office at the date of such COLT 200_-_ Secured Notes.
(d) The COLT Indenture Trustee, in exchange for the Grant of the COLT
200_-_ Collateral, simultaneously with the Grant to the COLT Indenture Trustee
of the COLT 200_-_ Collateral, and the constructive delivery to the COLT
Indenture Trustee of the Series 200_-_ Lease Assets and the other components and
assets of the COLT 200_-_ Collateral, shall cause to be authenticated and
delivered to or upon the order of COLT, a COLT 200_-_ Secured Note for each
state in which any Series 200_-_ Lease Asset was originated.
(e) No COLT 200_-_ Secured Notes shall be entitled to any benefit
under this COLT Indenture or be valid or obligatory for any purpose, unless
there appears on such COLT 200_-_ Secured Note a certificate of authentication
substantially in the form set forth in Exhibit A executed by the COLT Indenture
Trustee by the manual signature of one of its Authorized Officers, and such
certificate upon any COLT 200_-_ Secured Note shall be conclusive evidence, and
the only evidence, that such COLT 200_-_ Secured Note has been duly
authenticated and delivered hereunder.
SECTION 2.3 Registration; Registration of Transfer and Exchange of
COLT 200_-_ Secured Notes.
(a) COLT shall cause to be kept the Secured Note Register, comprising
separate registers for each of the COLT 200_-_ Secured Notes, in which, subject
to such reasonable regulations as COLT may prescribe, COLT shall provide for the
registration of the COLT 200_-_ Secured Notes and the registration of transfers
and exchanges of the COLT 200_-_ Secured Notes. The COLT Indenture Trustee shall
initially be the Secured Note Registrar for the purpose of registering the COLT
200_-_ Secured Notes and transfers or exchanges of the COLT 200_-_ Secured Notes
as herein provided. Upon any resignation of any Secured Note Registrar, COLT
shall promptly appoint a successor Secured Note Registrar or, if it elects not
to make such an appointment, assume the duties of the Secured Note Registrar.
(b) If a Person other than the COLT Indenture Trustee is appointed by
COLT as Secured Note Registrar, COLT will give the COLT Indenture Trustee prompt
written notice of the appointment of such Secured Note Registrar and of the
location, and any change in the location, of the Secured Note Register. The COLT
Indenture Trustee shall have the right to inspect the Secured Note Register at
all reasonable times and to obtain copies thereof. The COLT Indenture Trustee
shall have the right to rely upon a certificate executed on behalf of the
Secured Note Registrar by a Responsible Officer thereof as to the names and
addresses of the COLT 200_-_ Secured Noteholders and the Secured Note Principal
Balances and number of such COLT 200_-_ Secured Notes.
(c) Upon surrender for registration of transfer of any COLT 200_-_
Secured Note at the Corporate Trust Office of the COLT Indenture Trustee or
Agency Office of COLT (and following the delivery, in the former case, of such
COLT 200_-_ Secured Notes to COLT by the COLT Indenture Trustee), COLT shall
execute, the COLT Indenture Trustee shall authenticate and the COLT 200_-_
Secured Noteholder shall obtain from the COLT Indenture
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Trustee, in the name of the designated transferee or transferees, one or more
new COLT 200_-_ Secured Notes in any authorized denominations, of a like Secured
Note Principal Balance.
(d) At the option of the COLT 200_-_ Secured Noteholder, COLT 200_-_
Secured Notes may be exchanged for other COLT 200_-_ Secured Notes in any
authorized denominations, of a like Secured Note Principal Balance, upon
surrender of such COLT 200_-_ Secured Notes to be exchanged at the Corporate
Trust Office of the COLT Indenture Trustee or the Agency Office of COLT (and
following the delivery of such COLT 200_-_ Secured Notes to COLT by the COLT
Indenture Trustee), COLT shall execute, and the COLT Indenture Trustee shall
authenticate and the COLT 200_-_ Secured Noteholder shall obtain from the COLT
Indenture Trustee, such COLT 200_-_ Secured Notes which the COLT 200_-_ Secured
Noteholder making the exchange is entitled to receive.
(e) All COLT 200_-_ Secured Notes issued upon any registration of
transfer or exchange of other COLT 200_-_ Secured Notes shall be the valid
obligations of COLT, evidencing the same debt, and entitled to the same benefits
under this COLT Indenture, as the COLT 200_-_ Secured Notes surrendered upon
such registration of transfer or exchange.
(f) Every COLT 200_-_ Secured Note presented or surrendered for
registration of transfer or exchange shall be duly endorsed by, or be
accompanied by a written instrument of transfer in form satisfactory to the COLT
Indenture Trustee and the Secured Note Registrar, duly executed by the Holder
thereof or such Holder's attorney duly authorized in writing, with such
signature guaranteed by a commercial bank or trust company located, or having a
correspondent located, in the City of New York or the city in which the
Corporate Trust Office of the COLT Indenture Trustee is located, or by a member
firm of a national securities exchange, and such other documents as the COLT
Indenture Trustee may require.
(g) No service charge shall be made to a Holder for any registration
of transfer or exchange of COLT 200_-_ Secured Notes, but COLT or the COLT
Indenture Trustee may require payment of a sum sufficient to cover any tax or
other governmental charge that may be imposed in connection with any
registration of transfer or exchange of COLT 200_-_ Secured Notes, other than
exchanges pursuant to Section 9.6 not involving any transfer.
(h) By acquiring a COLT 200_-_ Secured Note, each purchaser and
transferee shall be deemed to represent and warrant that either (a) it is not
acquiring the COLT 200_-_ Secured Note with the plan assets of a Benefit Plan or
(b) the acquisition, holding and disposition of the COLT 200_-_ Secured Note
will not give rise to a non-exempt prohibited transaction under Section 406(a)
of ERISA or Section 4975 of the Code.
(i) The preceding provisions of this Section 2.3 notwithstanding, COLT
shall not be required to transfer or make exchanges, and the Secured Note
Registrar need not register transfers or exchanges, of (i) COLT 200_-_ Secured
Notes that have been selected for redemption pursuant to Article X, if
applicable; or (ii) COLT 200_-_ Secured Notes that are due for final payment
within 15 days of submission to the Corporate Trust Office or the Agency Office.
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SECTION 2.4 Mutilated, Destroyed, Lost or Stolen COLT 200_-_ Secured
Notes.
(a) If (i) any mutilated COLT 200_-_ Secured Note is surrendered to
the COLT Indenture Trustee, or the COLT Indenture Trustee receives evidence to
its satisfaction of the destruction, loss or theft of any COLT 200_-_ Secured
Note, and (ii) there is delivered to COLT and the COLT Indenture Trustee such
security or indemnity as may be required by each such Person to hold each such
Person harmless, then, in the absence of notice to COLT, the Secured Note
Registrar or the COLT Indenture Trustee that such COLT 200_-_ Secured Note has
been acquired by a bona fide purchaser, COLT shall execute and upon COLT's
request the COLT Indenture Trustee shall authenticate and deliver, in exchange
for or in lieu of any such mutilated, destroyed, lost or stolen COLT 200_-_
Secured Note, a replacement COLT 200_-_ Secured Note of a like Secured Note
Principal Balance; provided, however, that if any such destroyed, lost or stolen
COLT 200_-_ Secured Note, but not a mutilated COLT 200_-_ Secured Note, shall
have become or within seven days shall be due and payable, or shall have been
called for redemption, instead of issuing a replacement COLT 200_-_ Secured
Note, COLT may make payment to the Holder of such destroyed, lost or stolen COLT
200_-_ Secured Note when so due or payable or upon the Redemption Date, if
applicable, without surrender thereof.
(b) If, after the delivery of a replacement COLT 200_-_ Secured Note
or payment in respect of a destroyed, lost or stolen COLT 200_-_ Secured Note
pursuant to Section 2.4(a), a bona fide purchaser of the original COLT 200_-_
Secured Note in lieu of which such replacement COLT 200_-_ Secured Note was
issued presents for payment such original COLT 200_-_ Secured Note, COLT and the
COLT Indenture Trustee shall be entitled to recover such replacement COLT 200_-_
Secured Note (or such payment) from (i) any Person to whom it was delivered,
(ii) the Person taking such replacement COLT 200_-_ Secured Note from the Person
to whom such replacement COLT 200_-_ Secured Note was delivered; or (iii) any
assignee of such Person, except a bona fide purchaser, and COLT and the COLT
Indenture Trustee shall be entitled to recover upon the security or indemnity
provided therefor to the extent of any loss, damage, cost or expense incurred by
COLT or the COLT Indenture Trustee in connection therewith.
(c) In connection with the issuance of any replacement COLT 200_-_
Secured Note under this Section 2.4, COLT may require the payment by the Holder
of such COLT 200_-_ Secured Note of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
reasonable expenses (including all fees and expenses of the COLT Indenture
Trustee) connected therewith.
(d) Any duplicate COLT 200_-_ Secured Note issued pursuant to this
Section 2.4 in replacement for any mutilated, destroyed, lost or stolen COLT
200_-_ Secured Note shall constitute an original additional contractual
obligation of COLT, whether or not the mutilated, destroyed, lost or stolen COLT
200_-_ Secured Note shall be found at any time or be enforced by any Person, and
shall be entitled to all the benefits of this COLT Indenture equally and
proportionately with any and all other COLT 200_-_ Secured Notes duly issued
hereunder.
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(e) The provisions of this Section 2.4 are exclusive and shall
preclude (to the extent lawful) all other rights and remedies with respect to
the replacement or payment of mutilated, destroyed, lost or stolen COLT 200_-_
Secured Notes.
SECTION 2.5 Payment of Principal and Interest.
(a) Each COLT 200_-_ Secured Note shall accrue interest from and
including the Series 200_-_ Closing Date on the Secured Note Principal Balance
of such COLT 200_-_ Secured Note, until but excluding the date on which the
Secured Note Principal Balance of such COLT 200_-_ Secured Note is reduced to
zero. Interest shall accrue on each COLT 200_-_ Secured Note at the COLT 200_-_
Secured Note Rate. On each Payment Date, each COLT 200_-_ Secured Note shall be
paid interest in an amount equal to the Secured Note Interest Distributable
Amount payable to such COLT 200_-_ Secured Note in accordance with Section
3.03(c)(ii) of the COLT Servicing Agreement on such Payment Date. Any instalment
of interest payable on the COLT 200_-_ Notes shall be punctually paid or duly
provided for with funds set aside in the COLT Collection Account on the
applicable Payment Date and shall be paid to the Person in whose name such COLT
200_-_ Secured Note is registered in the Secured Note Register on the applicable
Record Date, by wire transfer in immediately available funds to the account or
accounts designated in writing by such Holder to the COLT Indenture Trustee on
or prior to the related Record Date.
(b) To the extent of funds available therefor, the outstanding
principal amount of each COLT 200_-_ Secured Note shall be paid in instalments
on each Payment Date, in the amounts and in accordance with the priorities set
forth in Section 3.03(c)(iii) of the COLT Servicing Agreement. The outstanding
principal amount of the COLT 200_-_ Secured Notes shall be due and payable in
full on the Final Maturity Date. All principal payments on the COLT 200_-_
Secured Notes shall be made pro rata to the COLT 200_-_ Secured Noteholders, as
provided in Section 3.03(c)(iii) of the COLT Servicing Agreement. Any instalment
of principal payable on any COLT 200_-_ Secured Note shall be punctually paid or
duly provided for with funds set aside in the COLT Collection Account
established with respect to the Series 200_-_ Lease Assets on the applicable
Payment Date and shall be paid to the Person in whose name such COLT 200_-_
Secured Note is registered in the Secured Note Register on the applicable Record
Date by wire transfer in immediately available funds to the account or accounts
designated by such Holder on or prior to the related Record Date, except for the
Redemption Price for the COLT 200_-_ Secured Notes redeemed pursuant to Section
10.1, which shall be payable as provided herein. The funds represented by any
such wire transfers in respect of interest or principal returned undelivered
shall be held in accordance with Section 3.3.
(c) From and after the occurrence of an Event of Default and a
declaration in accordance with Section 5.2(a) that the COLT 200_-_ Secured Notes
have become immediately due and payable, until such time as all Events of
Default have been cured or waived as provided in Section 5.2(b), all interest
and principal payments shall be allocated pro rata among the Holders of all of
the COLT 200_-_ Secured Notes on the basis of the Secured Note Principal
Balances of COLT 200_-_ Secured Notes held by such Holders.
(d) With respect to any Payment Date on which the final instalment of
principal and interest on a COLT 200_-_ Secured Note is to be paid, the COLT
Indenture
8
Trustee on behalf of COLT shall notify each COLT 200_-_ Secured Noteholders of
record as of the Record Date for such Payment Date of the fact that the final
instalment of principal and interest on such COLT 200_-_ Secured Note is to be
paid on such Payment Date. With respect to any COLT 200_-_ Secured Notes, such
notice shall be sent not later than three Business Days after such Record Date
in accordance with Section 11.5(a), and shall specify that such final instalment
shall be payable only upon presentation and surrender of such COLT 200_-_
Secured Note and shall specify the place where such COLT 200_-_ Secured Note may
be presented and surrendered for payment of such instalment and the manner in
which such payment shall be made.
(e) All distributions of principal and interest on the COLT 200_-_
Secured Notes and the CARAT Collection Account Shortfall Amount shall be made by
the COLT Indenture Trustee from the COLT Collection Account solely pursuant to
the calculations and written direction of the Servicer in accordance with
Section 3.03(a) of the COLT Servicing Agreement.
SECTION 2.6 Persons Deemed Secured Noteholders. Prior to due
presentment for registration of transfer of any COLT 200_-_ Secured Note, COLT,
the COLT Indenture Trustee and any agent of COLT or the COLT Indenture Trustee
shall treat the Person in whose name any COLT 200_-_ Secured Note is registered
in the Secured Note Register (as of the day of determination) as the COLT 200_-_
Secured Noteholder for the purpose of receiving payments of principal of and
interest on such COLT 200_-_ Secured Note and for all other purposes whatsoever,
whether or not such COLT 200_-_ Secured Note be overdue, and neither COLT, the
COLT Indenture Trustee nor any agent of COLT or the COLT Indenture Trustee shall
be affected by notice to the contrary.
SECTION 2.7 Cancellation of COLT 200_-_ Secured Notes. All COLT 200_-_
Secured Notes surrendered for payment, redemption, exchange or registration of
transfer shall, if surrendered to any Person other than the COLT Indenture
Trustee, be delivered to the COLT Indenture Trustee and shall be promptly
canceled by the COLT Indenture Trustee. COLT may at any time deliver to the COLT
Indenture Trustee for cancellation any COLT 200_-_ Secured Notes previously
authenticated and delivered hereunder which the Issuer may have acquired in any
manner whatsoever, and all COLT 200_-_ Secured Notes so delivered shall be
promptly canceled by the COLT Indenture Trustee. No COLT 200_-_ Secured Notes
shall be authenticated in lieu of or in exchange for any COLT 200_-_ Secured
Notes canceled as provided in this Section 2.7, except as expressly permitted by
this COLT Indenture. All canceled COLT 200_-_ Secured Notes may be held or
disposed of by the COLT Indenture Trustee in accordance with its standard
retention or disposal policy as in effect at the time unless COLT shall direct
by a COLT Order that they be destroyed or returned to it; provided, however,
that such COLT Order is timely and the COLT 200_-_ Secured Notes have not been
previously disposed of by the COLT Indenture Trustee. The COLT Indenture Trustee
shall certify to COLT upon request that surrendered COLT 200_-_ Secured Notes
have been duly canceled and retained or destroyed, as the case may be.
SECTION 2.8 Release of COLT 200_-_ Trust Estate. The COLT Indenture
Trustee shall release property from the lien of this COLT Indenture and the
VAULT Security Agreement, other than as permitted by Sections 3.20, 8.4 and
11.1, only upon receipt of a COLT
9
Request accompanied by an Officers' Certificate, an Opinion of Counsel (to the
extent required by the TIA) and Independent Certificates in accordance with TIA
Sections 314(c) and 314(d)(1).
SECTION 2.9 Seller and XXXX as COLT 200_-_ Secured Noteholders. Each
of the Seller and XXXX, in their individual or any other capacity, may become
the owner or pledgee of COLT 200_-_ Secured Notes and may otherwise deal with
COLT or its affiliates with the same rights it would have if it were not the
Seller or, with respect to XXXX, an Affiliate of the Seller.
SECTION 2.10 Tax Treatment. COLT and the COLT Indenture Trustee, by
entering into this COLT Indenture, and the COLT 200_-_ Secured Noteholders, by
acquiring any COLT 200_-_ Secured Note or interest therein, (i) express their
intention that the COLT 200_-_ Secured Notes qualify under applicable tax law as
indebtedness secured by the COLT 200_-_ Trust Estate and (ii) unless otherwise
required by appropriate taxing authorities, agree to treat the COLT 200_-_
Secured Notes as indebtedness secured by the COLT 200_-_ Trust Estate for the
purpose of federal income taxes, state and local income and franchise taxes, any
applicable single business tax, including the Michigan single business tax and
any other taxes imposed upon, measured by or based upon gross or net income.
ARTICLE III
COVENANTS
SECTION 3.1 Payment of Principal and Interest and Other Amounts. COLT
shall duly and punctually pay the principal of and interest on the COLT 200_-_
Secured Notes and the CARAT Collection Account Shortfall Amount in accordance
with the terms of the COLT 200_-_ Basic Documents. On each Payment Date and on
the Redemption Date (if applicable), COLT shall cause amounts on deposit in the
COLT Collection Account to be paid to the COLT 200_-_ Secured Noteholders in
accordance with Sections 2.5 and 8.2 and with Section 3.03 of the COLT Servicing
Agreement, less amounts properly withheld under the Code by any Person from a
payment to any COLT 200_-_ Secured Noteholder of interest and/or principal. Any
amounts so withheld shall be considered as having been paid by COLT to such COLT
200_-_ Secured Noteholder for all purposes of this COLT Indenture.
SECTION 3.2 Maintenance of Agency Office. As long as any of the COLT
200_-_ Secured Notes remains outstanding, COLT shall maintain in the Borough of
Manhattan, the City of New York, an office (the "Agency Office"), being an
office or agency where COLT 200_-_ Secured Notes may be surrendered to COLT for
registration of transfer or exchange, and where notices and demands to or upon
COLT in respect of the COLT 200_-_ Secured Notes and this COLT Indenture may be
served. COLT hereby initially appoints the COLT Indenture Trustee to serve as
its agent for the foregoing purposes. COLT shall give prompt written notice to
the COLT Indenture Trustee of the location, and of any change in the location,
of the Agency Office. If at any time COLT shall fail to maintain any such office
or agency or shall fail to furnish the COLT Indenture Trustee with the address
thereof, such surrenders, notices and demands may be made or served at the
Corporate Trust Office of the COLT Indenture Trustee, and COLT hereby appoints
the COLT Indenture Trustee as its agent to receive all such surrenders, notices
and demands.
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SECTION 3.3 Money for Payments to Be Held in Trust.
(a) As provided in Section 8.2(a) and (b), all payments of amounts due
and payable with respect to any COLT 200_-_ Secured Notes that are to be made
from amounts withdrawn from the COLT Collection Account pursuant to Section 3.03
of the COLT Servicing Agreement shall be made on behalf of COLT by the COLT
Indenture Trustee or by another Paying Agent, and no amounts so withdrawn from
the COLT Collection Account for payments of such COLT 200_-_ Secured Notes shall
be paid over to COLT except as provided in this Section 3.3.
(b) On or before the Redemption Date, COLT shall cause the Servicer to
deposit into the COLT Collection Account, pursuant to Section 6.01 of the COLT
Servicing Agreement, the Optional Purchase Price. On or before each Payment
Date, COLT shall deposit or cause to be deposited in the COLT Collection
Account, pursuant to Section 3.03(b) of the COLT Servicing Agreement, an
aggregate sum sufficient to pay the amounts then becoming due with respect to
the COLT 200_-_ Secured Notes and the CARAT Collection Account Shortfall Amount,
such sum to be held in trust for the benefit of the Persons entitled thereto.
(c) COLT shall cause each Paying Agent other than the COLT Indenture
Trustee to execute and deliver to the COLT Indenture Trustee an instrument in
which such Paying Agent shall agree with the COLT Indenture Trustee (and if the
Servicer acts as Paying Agent, it hereby so agrees), subject to the provisions
of this Section 3.3, that such Paying Agent shall:
(i) hold all sums held by it for the payment of amounts due with
respect to the COLT 200_-_ Secured Notes in trust for the benefit of the
Persons entitled thereto until such sums shall be paid to such Persons or
otherwise disposed of as herein provided and pay such sums to such Persons
as herein provided;
(ii) give the COLT Indenture Trustee notice of any default by
COLT (or any other obligor upon the COLT 200_-_ Secured Notes) of which it
has actual knowledge in the making of any payment required to be made with
respect to the COLT 200_-_ Secured Notes;
(iii) at any time during the continuance of any such default,
upon the written request of the COLT Indenture Trustee, forthwith pay to
the COLT Indenture Trustee all sums so held in trust by such Paying Agent;
(iv) immediately resign as a Paying Agent and forthwith pay to
the COLT Indenture Trustee all sums held by it in trust for the payment of
the COLT 200_-_ Secured Notes if at any time it ceases to meet the
standards required to be met by a Paying Agent in effect at the time of
determination; and
(v) comply with all requirements of the Code with respect to the
withholding from any payments made by it on the COLT 200_-_ Secured Notes
of any applicable withholding taxes imposed thereon and with respect to any
applicable reporting requirements in connection therewith.
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(d) COLT may at any time, for the purpose of obtaining the
satisfaction and discharge of this COLT Indenture or for any other purpose, by a
COLT Order direct any Paying Agent to pay to the COLT Indenture Trustee all sums
held in trust by such Paying Agent, such sums to be held by COLT Indenture
Trustee upon the same trusts as those upon which the sums were held by such
Paying Agent; and upon such payment by any Paying Agent to the COLT Indenture
Trustee, such Paying Agent shall be released from all further liability with
respect to such money.
(e) Subject to applicable laws with respect to escheat of funds, any
distribution to any COLT 200_-_ Secured Noteholder returned to the COLT
Indenture Trustee or any Paying Agent for any reason, held by the COLT Indenture
Trustee or such Paying Agent in trust for the payment of any amount due with
respect to any COLT 200_-_ Secured Note and remaining unclaimed for one year
after such amount has become due and payable shall be discharged from such trust
and be paid to COLT by the COLT Indenture Trustee or such Paying Agent to COLT
upon receipt of a COLT Request; and such COLT 200_-_ Secured Noteholder shall
thereafter, as an unsecured general creditor, look only to COLT for payment
thereof (but only to the extent of the amounts so paid to COLT), and all
liability of the COLT Indenture Trustee or such Paying Agent with respect to
such trust money shall thereupon cease; provided, however, that the COLT
Indenture Trustee or such Paying Agent, before being required to make any such
payment, may at the expense of COLT cause to be published once, in a newspaper
published in the English language, customarily published on each Business Day
and of general circulation in the City of New York, notice that such money
remains unclaimed and that, after a date specified therein, which shall not be
less than 30 days from the date of such publication, any unclaimed balance of
such money then remaining shall be paid to COLT. The COLT Indenture Trustee may
also adopt and employ, at the expense of COLT, any other reasonable means of
notification of such payment (including mailing notice of such repayment of any
COLT 200_-_ Secured Noteholder whose right to or interest in monies due and
payable but not claimed is determinable from the records of the Secured Note
Registrar, at the last address of record for each COLT 200_-_ Secured
Noteholder).
SECTION 3.4 Existence. COLT shall keep in full effect its existence,
rights and franchises as a statutory trust under the laws of the State of
Delaware (unless it becomes, or any successor trust hereunder is or becomes,
organized under the laws of any other State or of the United States of America,
in which case COLT shall keep in full effect its existence, rights and
franchises under the laws of such other jurisdiction) and shall obtain and
preserve its qualification to do business in each jurisdiction in which such
qualification is or shall be necessary to protect the validity and
enforceability of this COLT Indenture, the COLT 200_-_ Secured Notes, the COLT
200_-_ Collateral and each other instrument or agreement included in the COLT
200_-_ Trust Estate.
SECTION 3.5 Protection of COLT 200_-_ Trust Estate; Acknowledgment of
Pledge.
(a) COLT shall from time to time execute and deliver all such
supplements and amendments hereto and authorize or execute, as applicable, and
deliver all such financing statements, continuation statements, instruments of
further assurance and other instruments, and shall take such other action
necessary or advisable to:
12
(i) maintain or preserve the lien and security interest (and the
priority thereof) of this COLT Indenture or carry out more effectively the
purposes hereof, including by making the necessary filings of financing
statements or amendments thereto within sixty days after the occurrence of
any of the following and by promptly notifying the COLT Indenture Trustee
in writing of any such filings: (A) any change in COLT's true legal name or
any of its trade names, (B) any change in COLT's jurisdiction of
organization, (C) any merger or consolidation or other change in COLT's
identity or organizational structure or jurisdiction in which COLT is
located for purposes of the UCC and (D) any other change or occurrence that
would make any financing statement or amendment thereto seriously
misleading within the meaning of Section 9-506 of the UCC;
(ii) perfect, publish notice of or protect the validity of any
Grant made or to be made by this COLT Indenture and the priority thereof;
(iii) enforce the rights of the COLT Indenture Trustee and the
COLT 200_-_ Secured Noteholders in the COLT 200_-_ Trust Estate; or
(iv) preserve and defend title to the COLT 200_-_ Trust Estate
and the rights of the COLT Indenture Trustee and the COLT 200_-_ Secured
Noteholders in such COLT 200_-_ Trust Estate against the claims of all
Persons and parties;
and COLT hereby designates the COLT Indenture Trustee its agent and
attorney-in-fact to authorize and/or execute any financing statement,
continuation statement or other instrument required pursuant to this Section
3.5.
(b) COLT hereby authorizes the COLT Indenture Trustee to file all
financing statements naming COLT as debtor that are necessary or advisable to
perfect, make effective or continue the lien and security interest of this COLT
Indenture and the VAULT Security Agreement with respect to the COLT 200_-_ Trust
Estate, and authorizes the COLT Indenture Trustee to take any such action
without its signature.
SECTION 3.6 Opinions as to COLT 200_-_ Collateral.
(a) On the Series 200_-_ Closing Date, COLT shall furnish to the COLT
Indenture Trustee and each COLT 200_-_ Secured Noteholder an Opinion of Counsel
either stating that, in the opinion of such counsel, such action has been taken
with respect to the recording and filing of this COLT Indenture, any indentures
supplemental hereto and any other requisite documents, and with respect to the
authorization, execution and filing of any financing statements and continuation
statements as are necessary to perfect and make effective the lien and security
interest of this COLT Indenture in the related COLT 200_-_ Collateral and
reciting the details of such action, or stating that, in the opinion of such
counsel, no such action is necessary to make such lien and security interest
effective.
(b) On or before March 15 in each calendar year, beginning March 15,
200_, COLT shall furnish to the COLT Indenture Trustee and each COLT 200_-_
Secured Noteholder an Opinion of Counsel either stating that, in the opinion of
such counsel, such action has been taken with respect to the recording, filing,
re-recording and refiling of this COLT Indenture, any
13
indentures supplemental hereto and any other requisite documents and with
respect to the authorization, execution and filing of any financing statements
and continuation statements as is necessary to maintain the lien and security
interest created by this COLT Indenture and reciting the details of such action
or stating that in the opinion of such counsel no such action is necessary to
maintain the lien and security interest created by this COLT Indenture. Such
Opinion of Counsel shall also describe the recording, filing, re-recording and
refiling of this COLT Indenture, any indentures supplemental hereto and any
other requisite documents and the authorization and filing of any financing
statements and continuation statements that will, in the opinion of such
counsel, be required to maintain the lien and security interest created by this
COLT Indenture until March 15 in the following calendar year.
SECTION 3.7 Performance of Obligations; Servicing of Series 200_-_
Lease Assets.
(a) COLT shall not take any action and shall use its reasonable
efforts not to permit any action to be taken by others that would release any
Person from any of such Person's material covenants or obligations under any
instrument or agreement included in the COLT 200_-_ Trust Estate or that would
result in the amendment, hypothecation, subordination, termination or discharge
of, or impair the validity or effectiveness of, any such instrument or
agreement, except as otherwise expressly provided in this COLT Indenture, any
other COLT 200_-_ Basic Document or such other instrument or agreement.
(b) COLT may contract with other Persons to assist it in performing
its duties under this COLT Indenture, and any performance of such duties by a
Person identified to the COLT Indenture Trustee in the COLT 200_-_ Basic
Documents or an Officer's Certificate of COLT shall be deemed to be action taken
by COLT. Initially, COLT has contracted with the Servicer to assist COLT in
performing its duties under this COLT Indenture.
(c) COLT shall punctually perform and observe all of its obligations
and agreements contained in this COLT Indenture, any other COLT 200_-_ Basic
Documents and in the instruments and agreements included in the COLT 200_-_
Trust Estate, including filing or causing to be filed all UCC financing
statements and continuation statements required to be filed under the terms of
this COLT Indenture and any other COLT 200_-_ Basic Document in accordance with
and within the time periods provided for herein or therein.
(d) If COLT shall have knowledge of the occurrence of a Servicer
Default under the COLT Servicing Agreement, COLT shall promptly (and in any
event within five Business Days) notify the COLT Indenture Trustee, the COLT
200_-_ Secured Noteholders and the Rating Agencies in writing thereof, and shall
specify in such notice the response or action, if any, COLT has taken or is
taking with respect to such default. If any such Servicer Default shall arise
from the failure of the Servicer to perform any of its duties or obligations
under the COLT Servicing Agreement with respect to the Series 200_-_ Lease
Assets, COLT and the COLT Indenture Trustee shall take all reasonable steps
available to them pursuant to such COLT Servicing Agreement to remedy such
failure.
(e) Without derogating from the absolute nature of the assignment
granted under this COLT Indenture with respect to the COLT 200_-_ Collateral and
under the VAULT
14
Security Agreement with respect to the Pledged Collateral or the rights of the
COLT Indenture Trustee and the COLT 200_-_ Secured Noteholders hereunder or
under the VAULT Security Agreement, COLT agrees that it shall not, without the
prior written consent of the COLT Indenture Trustee and the COLT 200_-_ Secured
Noteholders, amend, modify, waive, supplement, terminate or surrender, or agree
to any amendment, modification, supplement, termination, waiver or surrender of,
the terms of any assets included in the COLT 200_-_ Trust Estate or any of COLT
200_-_ Basic Documents, or waive timely performance or observance by any party
under any of the COLT 200_-_ Basic Documents.
SECTION 3.8 Negative Covenants. So long as any COLT 200_-_ Secured
Notes are Outstanding, COLT shall not:
(a) sell, transfer, exchange or otherwise dispose of any of the
properties or assets included in the COLT 200_-_ Trust Estate, except COLT may
cause the Servicer to: (i) collect, liquidate, sell or otherwise dispose of
COLT's interest in the Series 200_-_ Lease Assets (including any Warranty Lease
Assets, Administrative Lease Assets, and Liquidating Lease Assets, and any
related Vehicles); (ii) make cash payments out of the Designated Accounts and
Payment Ahead Servicing Account; and (iii) take other actions, in each case as
permitted by the COLT 200_-_ Basic Documents;
(b) claim any credit on, or make any deduction from the principal and
interest payable in respect of COLT 200_-_ Secured Notes (other than amounts
withheld from such payments under the Code or applicable state law) or assert
any claim against any present or former COLT 200_-_ Secured Noteholder by reason
of the payment of the taxes levied or assessed upon any part of the COLT 200_-_
Trust Estate;
(c) voluntarily commence any insolvency, readjustment of debt,
marshaling of assets and liabilities or other proceeding, or apply for an order
by a court or agency or supervisory authority for the winding-up or liquidation
of its affairs or any other event specified in Section 5.1(f); or
(d) either (i) permit the validity or effectiveness of this COLT
Indenture or any other COLT 200_-_ Basic Documents to be impaired, or permit the
lien of this COLT Indenture in the related COLT 200_-_ Collateral or the lien of
the VAULT Security Agreement in the Pledged Collateral to be amended,
hypothecated, subordinated, terminated or discharged, or permit any Person to be
released from any covenants or obligations with respect to the COLT 200_-_
Secured Notes under this COLT Indenture except as may be expressly permitted
hereby, (ii) permit any lien, charge, excise, claim, security interest, mortgage
or other encumbrance (other than the lien of this COLT Indenture in the COLT
200_-_ Collateral and the lien of the VAULT Security Agreement in the Pledged
Collateral) to be created on or extend to or otherwise arise upon or burden the
COLT 200_-_ Trust Estate or any part thereof or any interest therein or the
proceeds thereof (other than tax liens, mechanics' liens and other liens that
arise by operation of law or as otherwise contemplated by the COLT 200_-_ Basic
Documents) or (iii) permit the lien of this COLT Indenture not to constitute a
valid first priority security interest in the COLT 200_-_ Collateral or the lien
of the VAULT Security Agreement not to constitute a valid first priority
security interest in the Pledged Collateral (in each case, other than with
respect to any such tax, mechanics' or other lien).
15
SECTION 3.9 Annual Statement as to Compliance. Until the COLT 200_-_
Secured Notes have been paid in full, COLT shall deliver to the COLT Indenture
Trustee and the COLT 200_-_ Secured Noteholders, on or before March 15 of each
year, beginning March 15, 200_, an Officer's Certificate signed by an Authorized
Officer of COLT, dated as of December 31 of the preceding year, stating that:
(a) a review of the activities of COLT during the preceding 12-month
period (or, with respect to the first such Officer's Certificate, such period as
shall have elapsed since the Series 200_-_ Closing Date) and of COLT's
performance under this COLT Indenture has been made under such Authorized
Officer's supervision; and
(b) to the best of such Authorized Officer's knowledge, based on such
review, COLT has fulfilled all of its obligations under this COLT Indenture
throughout such period, or, if there has been a default in the fulfillment of
any such obligation, specifying each such default known to such Authorized
Officer and the nature and status thereof.
SECTION 3.10 Consolidation, Merger, Etc., of Trust; Disposition of
Trust Assets.
(a) COLT shall not consolidate or merge with or into any other Person,
unless:
(i) the Person (if other than COLT) formed by or surviving such
consolidation or merger shall be a Person organized and existing under the
laws of the United States of America or any State or the District of
Columbia, and shall expressly assume, by an indenture supplemental hereto,
executed and delivered to the COLT Indenture Trustee, in form satisfactory
to the COLT Indenture Trustee, the due and timely payment of the principal
of and interest on all COLT 200_-_ Secured Notes and the performance or
observance of every agreement and covenant of this COLT Indenture on the
part of COLT to be performed or observed, all as provided herein;
(ii) immediately after giving effect to such merger or
consolidation, no Default or Event of Default shall have occurred and be
continuing;
(iii) the Approval Condition shall have been satisfied with
respect to such transaction and such Person;
(iv) any action as is necessary to maintain the lien and security
interest created by this COLT Indenture in the COLT 200_-_ Collateral shall
have been taken; and
(v) COLT shall have delivered to the COLT Indenture Trustee an
Officer's Certificate and an Opinion of Counsel addressed to COLT and the
COLT Indenture Trustee, each stating:
(A) that such consolidation or merger and such supplemental
indenture comply with this Section 3.10;
16
(B) that such consolidation or merger and such supplemental
indenture shall have no material adverse tax consequences to COLT or any
COLT 200_-_ Secured Noteholder; and
(C) that all conditions precedent herein provided for in this
Section 3.10 have been complied with, which shall include any filing
required by the Exchange Act.
(b) Except as otherwise expressly permitted by this COLT Indenture or
any other COLT 200_-_ Basic Documents, COLT shall not sell, convey, exchange,
transfer or otherwise dispose of any of the properties or assets included in the
COLT 200_-_ Trust Estate to any Person, unless:
(i) the Person that acquires such properties or assets of COLT
(A) shall be a United States citizen or a Person organized and existing
under the laws of the United States of America or any State or the District
of Columbia and (B) by an indenture supplemental hereto, executed and
delivered to the COLT Indenture Trustee, in form satisfactory to the COLT
Indenture Trustee:
(1) expressly assumes the due and punctual payment of the
principal of and interest on all COLT 200_-_ Secured Notes, and the
performance or observance of every agreement and covenant of this COLT
Indenture on the part of COLT to be performed or observed, all as
provided herein;
(2) expressly agrees that all right, title and interest so
sold, conveyed, exchanged, transferred or otherwise disposed of shall
be subject and subordinate to the rights of COLT 200_-_ Secured
Noteholders;
(3) unless otherwise provided in such supplemental
indenture, expressly agrees to indemnify, defend and hold harmless
COLT against and from any loss, liability or expense arising under or
related to this COLT Indenture and the COLT 200_-_ Secured Notes; and
(4) expressly agrees that such Person (or if a group of
Persons, then one specified Person) shall make all filings with the
Commission (and any other appropriate Person) required by the Exchange
Act in connection with the COLT 200_-_ Secured Notes;
(ii) immediately after giving effect to such transaction, no
Default or Event of Default shall have occurred and be continuing;
(iii) the Approval Condition shall have been satisfied with
respect to such transaction and such Person for the COLT 200_-_ Secured
Notes;
(iv) any action as is necessary to maintain the lien and security
interest created by this COLT Indenture in the COLT 200_-_ Collateral shall
have been taken; and
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(v) COLT shall have delivered to the COLT Indenture Trustee an
Officer's Certificate and an Opinion of Counsel addressed to COLT, each
stating that:
(A) such sale, conveyance, exchange, transfer or disposition and
such supplemental indenture comply with this Section 3.10;
(B) such sale, conveyance, exchange, transfer or disposition and
such supplemental indenture have no material adverse tax consequence to
COLT or to any COLT 200_-_ Secured Noteholder; and
(C) that all conditions precedent herein provided for in this
Section 3.10 have been complied with, which shall include any filing
required by the Exchange Act.
SECTION 3.11 Successor or Transferee.
(a) Upon any consolidation or merger of COLT in accordance with
Section 3.10(a), the Person formed by or surviving such consolidation or merger
(if other than COLT) shall succeed to, and be substituted for, and may exercise
every right and power of, COLT under this COLT Indenture and the other COLT
200_-_ Basic Documents with the same effect as if such Person had been named as
COLT herein.
(b) Upon a conveyance or transfer of all or substantially all the
assets and properties included in the COLT 200_-_ Collateral pursuant to Section
3.10(b), COLT shall be released from every covenant and agreement of this COLT
Indenture and the other COLT 200_-_ Basic Documents to be observed or performed
on the part of COLT with respect to the COLT 200_-_ Secured Notes immediately
upon the delivery of written notice to the COLT Indenture Trustee from the
Person acquiring such assets and properties stating that COLT is to be so
released.
SECTION 3.12 No Other Business. COLT shall not engage in any business
or activity other than acquiring, holding and managing the COLT 200_-_ Trust
Estate and the proceeds therefrom in the manner contemplated by the COLT 200_-_
Basic Documents, issuing COLT 200_-_ Secured Notes and the COLT 200_-_
Certificate, making payments on COLT 200_-_ Secured Notes and the COLT 200_-_
Certificate and such other activities that are necessary, suitable or convenient
to accomplish the foregoing or are incidental thereto or are otherwise described
or set forth in Section 2.3 of the Declaration.
SECTION 3.13 No Borrowing. COLT shall not issue, incur, assume,
guarantee or otherwise become liable, directly or indirectly, for any
indebtedness for money borrowed other than indebtedness for money borrowed in
respect of the COLT 200_-_ Secured Notes, money borrowed in respect of any other
Series of Secured Notes or otherwise in accordance with the COLT 200_-_ Basic
Documents including Section 2.3 of the Declaration.
SECTION 3.14 Guarantees, Loans, Advances and Other Liabilities. Except
as contemplated by this COLT Indenture or the other COLT 200_-_ Basic Documents,
COLT shall not make any loan or advance or credit to, or guarantee (directly or
indirectly or by an instrument having the effect of assuring another's payment
or performance on any obligation or capability
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of so doing or otherwise), endorse or otherwise become contingently liable,
directly or indirectly, in connection with the obligations, stocks or dividends
of, or own, purchase, repurchase or acquire (or agree contingently to do so) any
stock, obligations, assets or securities of, or any other interest in, or make
any capital contribution to, any other Person.
SECTION 3.15 Servicer's Obligations. COLT shall use its best efforts
to cause the Servicer to comply with its obligations under Sections 2.15, 2.16
and 2.17 of the COLT Servicing Agreement.
SECTION 3.16 Capital Expenditures. COLT shall not make any expenditure
(whether by long-term or operating lease or otherwise) for capital assets
(either real, personal or intangible property) other than the purchase of the
Series 200_-_ Lease Assets and other related property and rights from time to
time pursuant to the COLT Sale and Contribution Agreement.
SECTION 3.17 Restricted Payments. Except for payments of principal or
interest on the COLT 200_-_ Secured Notes or payment on the CARAT Collection
Account Shortfall Amount, so long as any COLT 200_-_ Secured Notes are
Outstanding, COLT shall not, directly or indirectly:
(a) pay any dividend or make any distribution from collections
received on the COLT 200_-_ Trust Estate (by reduction of capital or otherwise),
whether in cash, property, securities or a combination thereof, to the COLT
Owner Trustee or the Series 200_-_ Certificateholder or otherwise, in each case
with respect to any ownership or equity interest or similar security in or of
the Series 200_-_ Portfolio or to the Servicer;
(b) redeem, purchase, retire or otherwise acquire for value any such
ownership or equity interest or similar security of the Series 200_-_ Portfolio;
or
(c) set aside or otherwise segregate any amounts for any such purpose;
provided, however, that COLT may make, or cause to be made (x) distributions to
the Servicer, the COLT Indenture Trustee, the COLT Owner Trustee and the Series
200_-_ Certificateholder as permitted by, and to the extent funds are available
for such purpose under, the COLT 200_-_ Basic Documents and (y) distributions
from any other Series Portfolio in accordance with the transaction documents
related to such other Series Portfolio. COLT shall not, directly or indirectly,
make payments to or distributions from the COLT Collection Account except in
accordance with the COLT 200_-_ Basic Documents.
SECTION 3.18 Notice of Events of Default. COLT agrees to give the COLT
Indenture Trustee, each COLT 200_-_ Secured Noteholder and the Rating Agencies
prompt written notice of each Event of Default, each Servicer Default under the
COLT Servicing Agreement, each default on the part of the Servicer of its
obligations under the COLT 200_-_ Basic Documents and each default on the part
of the Seller of its obligations under the COLT Sale and Contribution Agreement.
SECTION 3.19 Further Instruments and Acts. Upon request of the COLT
Indenture Trustee, COLT shall execute and deliver such further instruments and
do such further
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acts as may be reasonably necessary or proper to carry out more
effectively the purpose of this COLT Indenture.
SECTION 3.20 COLT Indenture Trustee's Assignment of Administrative
Lease Assets and Warranty Lease Assets and Sale or Other Distribution of the
Related Vehicles. Upon receipt of the Administrative Purchase Payment with
respect to any Administrative Lease Asset or the Warranty Payment with respect
to any Warranty Lease Asset, in each case into the COLT Collection Account, the
COLT Indenture Trustee shall assign, without recourse, representation or
warranty, (x) such Warranty Lease Asset to the Seller under the COLT Sale and
Contribution Agreement, or (y) such Administrative Lease Asset to the Servicer
under the COLT Servicing Agreement, as the case may be, all the COLT Indenture
Trustee's right, title and interest in and to such purchased Series 200_-_ Lease
Asset, all monies due thereon, the security interest in the related Vehicle and
any and all proceeds, rights and remedies relating thereto, such assignment
being an assignment outright and not for security; and the Seller or the
Servicer, as applicable, shall thereupon own such Series 200_-_ Lease Asset, and
all such security and documents, free of any further obligation to the COLT
Indenture Trustee, the COLT 200_-_ Secured Noteholders or the COLT 200_-_
Certificateholder with respect thereto. In addition, the Servicer shall have the
right to sell or otherwise dispose of the Vehicles related to the Series 200_-_
Lease Assets in accordance with the COLT Servicing Agreement. Upon the sale or
other disposition of any such Vehicle by the Servicer, the lien of the COLT
Indenture Trustee shall be automatically released upon the Servicer's receipt of
the proceeds of any such sale or liquidation.
If in any enforcement suit or legal proceeding it is held that the
Servicer under the COLT Servicing Agreement may not enforce a Series 200_-_
Lease Asset included in the COLT 200_-_ Collateral on the ground that it is not
a real party in interest or a holder entitled to enforce the Series 200_-_ Lease
Asset, the COLT Indenture Trustee shall, at the Servicer's expense and written
direction (which may be by electronic mail or other electronic transmission),
take such steps as the Servicer deems necessary to enforce such Series 200_-_
Lease Asset, including bringing suit in the COLT Indenture Trustee's name or the
names of the COLT 200_-_ Secured Noteholders and/or the COLT 200_-_
Certificateholder.
SECTION 3.21 Representations and Warranties by COLT to the COLT
Indenture Trustee. COLT hereby represents and warrants to the COLT Indenture
Trustee as follows as of the Series 200_-_ Closing Date:
(a) Good Title. No interest in any Series 200_-_ Lease Asset has been
sold, transferred, assigned or pledged by COLT to any Person other than the COLT
Indenture Trustee as of the Series 200_-_ Closing Date (except that GMAC, as
initial holder of the COLT 200_-_ Secured Notes, has been named as the
lienholder and VAULT has been named the legal titleholder on the certificates of
title of the related Vehicles); immediately prior to the conveyance of such
Series 200_-_ Lease Assets pursuant to this COLT Indenture, COLT had good and
marketable title thereto, free of any Lien; and, upon execution and delivery of
this COLT Indenture, the COLT Indenture Trustee shall have all of the right,
title and interest of COLT in, to and under the Series 200_-_ Lease Assets, free
of any Lien; and
(b) All Filings Made. All filings (including UCC filings) and
notations necessary in any jurisdiction to give the COLT Indenture Trustee (or,
with respect to the Direct
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COLT Pledge, each COLT 200_-_ Secured Noteholder) a first priority perfected
security interest in the COLT 200_-_ Collateral have been made.
SECTION 3.22 Maintenance of Separate Records for Each Series. So long
as any COLT 200_-_ Secured Note remains Outstanding and pursuant to Section
3.2(a) of the Declaration, COLT shall maintain separate and distinct records
with respect to the Series 200_-_ Lease Assets and the remainder of the Series
200_-_ Portfolio and the Series 200_-_ Lease Assets and the remainder of the
Series 200_-_ Portfolio shall be held and accounted for separately from any
other Trust Assets allocated to any other Series Portfolio or the Residual
Interest.
ARTICLE IV
SATISFACTION AND DISCHARGE
SECTION 4.1 Satisfaction and Discharge of COLT Indenture. This COLT
Indenture shall cease to be of further effect except as to: (i) rights of
registration of transfer and exchange; (ii) substitution of mutilated,
destroyed, lost or stolen COLT 200_-_ Secured Notes; (iii) rights of COLT 200_-_
Secured Noteholders to receive payments of principal thereof and interest
thereon; (iv) Sections 3.3, 3.4, 3.5, 3.6, 3.10, 3.12, 3.13, 3.18, and 3.20; (v)
the rights, obligations and immunities of the COLT Indenture Trustee hereunder
(including the rights of the COLT Indenture Trustee under Section 6.7 and the
obligations of the COLT Indenture Trustee under Sections 4.2 and 4.4); and (vi)
the rights of COLT 200_-_ Secured Noteholders as beneficiaries hereof with
respect to the property so deposited with the COLT Indenture Trustee payable to
all or any of them, and the COLT Indenture Trustee, on demand of and at the
expense of COLT, shall execute proper instruments acknowledging satisfaction and
discharge of this COLT Indenture with respect to the COLT 200_-_ Secured Notes,
if:
(a) either:
(i) all COLT 200_-_ Secured Notes theretofore authenticated and
delivered (other than (A) COLT 200_-_ Secured Notes that have been
destroyed, lost or stolen and that have been replaced or paid as provided
in Section 2.4 and (B) COLT 200_-_ Secured Notes for whose payment money
has theretofore been deposited in trust or segregated and held in trust by
COLT and thereafter repaid to COLT or discharged from such trust, as
provided in Section 3.3) have been delivered to the COLT Indenture Trustee
for cancellation; or
(ii) all COLT 200_-_ Secured Notes not theretofore delivered to
the COLT Indenture Trustee for cancellation:
(A) have become due and payable,
(B) will be due and payable on their respective Final Maturity
Dates within one year, or
(C) are to be called for redemption within one year under
arrangements satisfactory to the COLT Indenture Trustee for the giving of
notice of redemption by the
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COLT Indenture Trustee in the name, and at the expense, of COLT or such
COLT 200_-_ Secured Notes have been redeemed in accordance with Section
10.1,
and COLT, in the case of clause (A), (B) or (C) of subsection 4.1(a)(ii)
above, has irrevocably deposited or caused to be irrevocably deposited with
the COLT Indenture Trustee cash or direct obligations of or obligations
guaranteed by the United States of America (which will mature prior to the
date such amounts are payable), in trust for such purpose, in an amount
sufficient to pay and discharge the entire unpaid principal and accrued
interest on such COLT 200_-_ Secured Notes not theretofore delivered to the
COLT Indenture Trustee for cancellation when due on the Final Maturity Date
for such COLT 200_-_ Secured Notes or the Redemption Date for such COLT
200_-_ Secured Notes (if such COLT 200_-_ Secured Notes have been called
for redemption pursuant to Section 10.1), as the case may be;
(b) COLT has paid or caused to be paid all amounts and has performed
all obligations which COLT may owe to the COLT Indenture Trustee personally or
to the COLT Indenture Trustee for the benefit of the COLT 200_-_ Secured
Noteholders under this COLT Indenture and any other COLT 200_-_ Basic Documents;
and
(c) COLT has delivered to the COLT Indenture Trustee and to the COLT
200_-_ Secured Noteholders an Officer's Certificate of COLT, an Opinion of
Counsel and (if required by the TIA or the COLT Indenture Trustee) an
Independent Certificate from a firm of certified public accountants, each
meeting the applicable requirements of Section 11.1(a) and each stating that all
conditions precedent herein provided for relating to the satisfaction and
discharge of this COLT Indenture have been complied with.
SECTION 4.2 Application of Trust Money. All monies deposited with the
COLT Indenture Trustee pursuant to Section 4.1 shall be held in trust and
applied by it, in accordance with the provisions of the COLT 200_-_ Secured
Notes and this COLT Indenture and the applicable provisions of the COLT
Servicing Agreement, to the payment, either directly or through any Paying
Agent, as the COLT Indenture Trustee may determine, to the Holders of the
particular COLT 200_-_ Secured Notes for the payment or redemption of which such
monies have been deposited with the COLT Indenture Trustee, of all sums due and
to become due in accordance with this COLT Indenture and any other COLT 200_-_
Basic Documents; but such monies need not be segregated from other funds except
to the extent required herein, in the COLT Servicing Agreement or by applicable
law.
SECTION 4.3 Repayment of Monies Held by Paying Agent. In connection
with the satisfaction and discharge of this COLT Indenture with respect to the
COLT 200_-_ Secured Notes, all monies then held by any Paying Agent other than
the COLT Indenture Trustee under the provisions of this COLT Indenture with
respect to all such COLT 200_-_ Secured Notes shall, upon demand of COLT, be
paid to the COLT Indenture Trustee to be held and applied according to Section
3.3 and thereupon such Paying Agent shall be released from all further liability
with respect to such monies.
SECTION 4.4 Duration of Position of COLT Indenture Trustee.
Notwithstanding the earlier payment in full of all principal and interest due to
all COLT 200_-_
22
Secured Noteholders under the terms of the COLT 200_-_ Secured Notes and the
cancellation of such COLT 200_-_ Secured Notes pursuant to Section 4.1, the COLT
Indenture Trustee shall continue to act in the capacity as COLT Indenture
Trustee hereunder for the benefit of the COLT 200_-_ Certificateholder and the
COLT Indenture Trustee, and for the benefit of such COLT 200_-_
Certificateholder, shall comply with its obligations under the COLT Servicing
Agreement, as appropriate, until such time as all distributions due to the
Holder of the Series 200_-_ Certificate have been paid in full.
ARTICLE V
DEFAULT AND REMEDIES
SECTION 5.1 Events of Default. For the purposes of this COLT
Indenture, "Event of Default" wherever used herein, means any one of the
following events:
(a) failure to pay the full Secured Note Interest Distributable Amount
on any COLT 200_-_ Secured Note on any Payment Date, and such default shall
continue unremedied for a period of five days; or
(b) except as set forth in Section 5.1(c), failure to pay any
principal of any COLT 200_-_ Secured Note as and when the same becomes due and
payable, and such default continues unremedied for a period of 30 days after
there shall have been given, by registered or certified mail, to the Servicer by
the COLT Indenture Trustee or to the Servicer and the COLT Indenture Trustee by
the Holders of not less than 25% of the Outstanding Amount of the COLT 200_-_
Secured Notes, a written notice specifying such default and demanding that it be
remedied and stating that such notice is a "Notice of Default" hereunder; or
(c) failure to pay in full the Secured Note Principal Balance of any
COLT 200_-_ Secured Notes by the Final Maturity Date; or
(d) default in the observance or performance in any material respect
of any covenant or agreement of COLT made in this COLT Indenture (other than a
covenant or agreement a default in the observance or performance of which is
specifically dealt with elsewhere in this Section 5.1) which failure materially
and adversely affects the rights of the COLT 200_-_ Secured Noteholders, and
such default shall continue or not be cured for a period of 30 days (x) after
there shall have been given, by registered or certified mail, to COLT, the
Seller (or the Servicer, as applicable) by the COLT Indenture Trustee or to
COLT, the Seller (or the Servicer, as applicable) and the COLT Indenture Trustee
by the Holders of at least 25% of the Outstanding Amount of the COLT 200_-_
Secured Notes, a written notice specifying such default, demanding that it be
remedied and stating that such notice is a "Notice of Default" hereunder; or
(e) the filing of a decree or order for relief by a court having
jurisdiction in the premises in respect of COLT or any substantial part of the
COLT 200_-_ Trust Estate in an involuntary case under any applicable federal or
state bankruptcy, insolvency or other similar law now or hereafter in effect, or
appointing a receiver, liquidator, assignee, custodian, trustee, sequestrator or
similar official of COLT or for any substantial part of the COLT 200_-_ Trust
23
Estate, or ordering the winding-up or liquidation of COLT's affairs, and such
decree or order shall remain unstayed and in effect for a period of 90
consecutive days; or
(f) the commencement by COLT of a voluntary case under any applicable
federal or state bankruptcy, insolvency or other similar law now or hereafter in
effect, or the consent of COLT to the entry of an order for relief in an
involuntary case under any such law, or the consent by COLT to the appointment
or taking possession by a receiver, liquidator, assignee, custodian, trustee,
sequestrator or similar official of COLT or for any substantial part of the COLT
200_-_ Trust Estate, or the making by COLT of any general assignment for the
benefit of creditors, or the failure by COLT generally to pay its debts as such
debts become due, or the taking of action by COLT in furtherance of any of the
foregoing.
COLT shall deliver to the COLT Indenture Trustee and the COLT 200_-_ Secured
Noteholders promptly (and in any event within five Business Days) after learning
of the occurrence thereof, written notice in the form of an Officer's
Certificate of any event which with the giving of notice and the lapse of time
would become an Event of Default under Section 5.1(d), its status and what
action COLT is taking or proposes to take with respect thereto.
SECTION 5.2 Acceleration of Maturity; Rescission and Annulment.
(a) If an Event of Default should occur and be continuing, then and in
every such case, unless the principal amount of the COLT 200_-_ Secured Notes
shall have already become due and payable, either the COLT Indenture Trustee or
the holders of COLT 200_-_ Secured Notes representing not less than a majority
of the Outstanding Amount of the COLT 200_-_ Secured Notes may declare all the
COLT 200_-_ Secured Notes to be immediately due and payable, by a notice in
writing to COLT and to the COLT Indenture Trustee if given by the COLT 200_-_
Secured Noteholders setting forth the Event of Default or Events of Default, and
upon any such declaration the unpaid principal amount of the COLT 200_-_ Secured
Notes, together with accrued and unpaid interest thereon through the date of
acceleration, shall become immediately due and payable.
(b) At any time after such declaration of acceleration of maturity of
the COLT 200_-_ Secured Notes has been made and before a judgment or decree for
payment of the money due thereunder has been obtained by the COLT Indenture
Trustee as hereinafter provided in this Article V, the holders of COLT 200_-_
Secured Notes representing not less than a majority of the Outstanding Amount of
the COLT 200_-_ Secured Notes, by written notice to COLT and the COLT Indenture
Trustee, may waive all Defaults set forth in the notice delivered pursuant to
Section 5.2(a) and rescind and annul such declaration and its consequences;
provided, however, that no such rescission and annulment shall extend to or
affect any subsequent Event of Default or impair any right consequent thereto;
and provided, further, that if the COLT Indenture Trustee or the COLT 200_-_
Secured Noteholders shall have proceeded to enforce any right under this COLT
Indenture and such Proceedings shall have been discontinued or abandoned because
of such rescission and annulment or for any other reason, or such Proceedings
shall have been determined adversely to the COLT Indenture Trustee or the COLT
200_-_ Secured Noteholders, then and in every such case, the COLT Indenture
Trustee, COLT and the COLT 200_-_ Secured Noteholders, as the case may be, shall
be restored to their respective former positions and rights hereunder, and all
rights, remedies and powers of the COLT Indenture Trustee, COLT and the
24
COLT 200_-_ Secured Noteholders, as the case may be, shall continue as though no
such Proceedings had been commenced.
SECTION 5.3 Collection of Indebtedness and Suits for Enforcement by
COLT Indenture Trustee.
(a) COLT covenants that if an Event of Default occurs and such Event
of Default has not been waived pursuant to Section 5.12, then COLT shall, upon
demand of the COLT Indenture Trustee, pay to the COLT Indenture Trustee, for the
ratable benefit of the COLT 200_-_ Secured Noteholders in accordance with their
respective Secured Note Principal Balances, the entire amount then due and
payable on the COLT 200_-_ Secured Notes for principal and interest, with
interest upon the overdue principal and overdue interest at the COLT 200_-_
Secured Note Rate and any CARAT Collection Account Shortfall Amount and in
addition thereto such further amount as shall be sufficient to cover the costs
and expenses of collection, including the reasonable compensation, expenses,
disbursements and advances of the COLT Indenture Trustee and its agents and
counsel.
(b) If COLT shall fail forthwith to pay such amounts upon such demand,
the COLT Indenture Trustee, in its own name and as trustee of an express trust,
may institute a Proceeding for the collection of the sums so due and unpaid, and
may prosecute such Proceeding to judgment or final decree, and may enforce the
same against COLT or other obligor upon the COLT 200_-_ Secured Notes and
collect in the manner provided by law out of the property of the COLT 200_-_
Trust Estate, the monies adjudged or decreed to be payable.
(c) If an Event of Default occurs and is continuing, the COLT
Indenture Trustee may, as more particularly provided in Section 5.4, in its
discretion, proceed to protect and enforce its rights and the rights of the COLT
200_-_ Secured Noteholders, by such appropriate Proceedings as the COLT
Indenture Trustee shall deem most effective to protect and enforce any such
rights, whether for the specific enforcement of any covenant or agreement in
this COLT Indenture or in aid of the exercise of any power granted herein, or to
enforce any other proper remedy or legal or equitable right vested in the COLT
Indenture Trustee by this COLT Indenture or by applicable law.
(d) If there shall be pending, relative to COLT or any other obligor
upon the COLT 200_-_ Secured Notes or any Person having or claiming an ownership
interest in the COLT 200_-_ Trust Estate, Proceedings under Title 11 of the
United States Code or any other applicable federal or state bankruptcy,
insolvency or similar law, or if a receiver, assignee or trustee in bankruptcy
or reorganization, liquidator, sequestrator or similar official shall have been
appointed for or taken possession of COLT or its property or such obligor or
Person, or in case of any other comparable judicial Proceedings relative to COLT
or other obligor upon the COLT 200_-_ Secured Notes, or to the creditors or
property of COLT or such other obligor, the COLT Indenture Trustee, irrespective
of whether the principal of any COLT 200_-_ Secured Notes shall then be due and
payable as therein expressed or by declaration or otherwise and irrespective of
whether the COLT Indenture Trustee shall have made any demand pursuant to the
provisions of this Section 5.3, shall be entitled and empowered, by intervention
in such Proceedings or otherwise:
25
(i) to file and prove a claim or claims for the whole amount of
principal and interest and all other amounts owing and unpaid in respect of the
COLT 200_-_ Secured Notes, and any CARAT Collection Account Shortfall Amount and
to file such other papers or documents as may be necessary or advisable in order
to have the claims of the COLT Indenture Trustee (including any claim for
reasonable compensation to the COLT Indenture Trustee and each predecessor
trustee, and their respective agents, attorneys and counsel, and for
reimbursement of all expenses and liabilities incurred, and all advances made,
by the COLT Indenture Trustee and each predecessor trustee, except as a result
of negligence or bad faith) and of the COLT 200_-_ Secured Noteholders allowed
in such Proceedings;
(ii) unless prohibited by applicable law and regulations, to vote on
behalf of the Holders of the COLT 200_-_ Secured Notes in any election of a
trustee, a standby trustee or Person performing similar functions in any such
Proceedings;
(iii) to collect and receive any monies or other property payable or
deliverable on any such claims and to distribute all amounts received with
respect to the claims of the COLT 200_-_ Secured Noteholders and of the COLT
Indenture Trustee on their behalf; and
(iv) to file such proofs of claim and other papers or documents as may
be necessary or advisable in order to have the claims of the COLT Indenture
Trustee or the COLT 200_-_ Secured Noteholders allowed in any judicial
proceedings relative to COLT, its creditors and its property;
and any trustee, receiver, liquidator, custodian or other similar official in
any such Proceeding is hereby authorized by each of such COLT 200_-_ Secured
Noteholders to make payments to the COLT Indenture Trustee for application in
accordance with the priorities set forth in the COLT 200_-_ Basic Documents,
and, if the COLT Indenture Trustee shall consent to the making of payments
directly to such COLT 200_-_ Secured Noteholders, to pay to the COLT Indenture
Trustee such amounts as shall be sufficient to cover reasonable compensation to
the COLT Indenture Trustee, each predecessor trustee and their respective
agents, attorneys and counsel, and all other expenses and liabilities incurred,
and all advances made, by the COLT Indenture Trustee and each predecessor
trustee except as a result of negligence or bad faith.
(e) Nothing herein contained shall be deemed to authorize the COLT
Indenture Trustee to authorize or consent to or vote for or accept or adopt on
behalf of any COLT 200_-_ Secured Noteholder any plan of reorganization,
arrangement, adjustment or composition affecting the COLT 200_-_ Secured Notes
or the rights of any Holder thereof or to authorize the COLT Indenture Trustee
to vote in respect of the claim of any COLT 200_-_ Secured Noteholder in any
such proceeding except, as aforesaid, to vote for the election of a trustee in
bankruptcy or similar Person.
(f) All rights of action and of asserting claims under this COLT
Indenture, or under any of the COLT 200_-_ Secured Notes may be enforced by the
COLT Indenture Trustee without the possession of any of the COLT 200_-_ Secured
Notes or the production thereof in any trial or other Proceedings relative
thereto, and any such Proceedings instituted by the COLT Indenture Trustee shall
be brought in its own name as trustee of an express trust, and any recovery of
judgment, subject to the payment of the expenses, disbursements and compensation
26
of the COLT Indenture Trustee, each predecessor COLT Indenture Trustee and their
respective agents and attorneys, shall be for the benefit of the COLT 200_-_
Secured Noteholders in accordance with the priorities set forth in the COLT
200_-_ Basic Documents.
(g) In any Proceedings brought by the COLT Indenture Trustee (and also
any Proceedings involving the interpretation of any provision of this COLT
Indenture to which the COLT Indenture Trustee shall be a party), the COLT
Indenture Trustee shall be held to represent all the COLT 200_-_ Secured
Noteholders, and it shall not be necessary to make any the COLT 200_-_ Secured
Noteholders a party to any such Proceedings.
SECTION 5.4 Remedies; Priorities.
(a) If an Event of Default shall have occurred and be continuing and
the COLT 200_-_ Secured Notes have been accelerated under Section 5.2(a), the
COLT Indenture Trustee may do one or more of the following (subject to Sections
5.3 and 5.5):
(i) institute Proceedings in its own name and as trustee of an
express trust for the collection of all amounts then due and payable on
such COLT 200_-_ Secured Notes, under this COLT Indenture with respect
thereto, whether by declaration of acceleration or otherwise, enforce any
judgment obtained, and collect from the COLT 200_-_ Trust Estate and any
other obligor upon such COLT 200_-_ Secured Notes monies adjudged due;
(ii) institute Proceedings from time to time for the complete or
partial foreclosure of this COLT Indenture with respect to the COLT 200_-_
Collateral and of the VAULT Security Agreement with respect to the Pledged
Collateral;
(iii) exercise any remedies of a secured party under the UCC and
take any other appropriate action to protect and enforce the rights and
remedies of the COLT Indenture Trustee and the COLT 200_-_ Secured
Noteholders; and
(iv) sell the COLT 200_-_ Trust Estate, or any portion thereof or
rights or interest therein, at one or more public or private sales called
and conducted in any manner permitted by law or elect to have COLT maintain
possession of the COLT 200_-_ Trust Estate, including the Series 200_-_
Lease Assets included therein, and continue to apply collections on such
Series 200_-_ Lease Assets as if there had been no declaration of
acceleration; provided, however, that the COLT Indenture Trustee may not
sell or otherwise liquidate the COLT 200_-_ Trust Estate following an Event
of Default and acceleration of the COLT 200_-_ Secured Notes, except as is
set forth in Section 3.20, unless (i)(A) the Holders of all of the
aggregate Outstanding Amount of the COLT 200_-_ Secured Notes consent
thereto, (B) the proceeds of such sale or liquidation distributable to the
Holders of the COLT 200_-_ Secured Notes are sufficient to discharge in
full the principal of and the accrued interest on the COLT 200_-_ Secured
Notes as of the date of such sale or liquidation or (C) (x) there has been
an Event of Default under Section 5.1(a), (b) or (c) or otherwise arising
from a failure to make a required payment of principal on the COLT 200_-_
Secured Notes, (y) the COLT Indenture Trustee determines that the COLT
200_-_ Trust Estate will not continue to provide sufficient
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funds for the payment of principal of and interest on the COLT 200_-_
Secured Notes as and when they would have become due if the COLT 200_-_
Secured Notes had not been declared due and payable and (z) the COLT
Indenture Trustee obtains the consent of the Holders of all of the
aggregate Outstanding Amount of the COLT 200_-_ Secured Notes, and (ii) 10
days' prior written notice of sale or liquidation has been given to the
Rating Agencies. In determining such sufficiency or insufficiency with
respect to clauses (B) and (C), the COLT Indenture Trustee may, but need
not, obtain and rely upon an opinion of an Independent investment banking
or accounting firm of national reputation as to the feasibility of such
proposed action and as to the sufficiency of the COLT 200_-_ Trust Estate
for such purpose.
(b) If the COLT Indenture Trustee collects any money or property
pursuant to this Article V, it shall pay out the money or property in the
following order:
FIRST: to the COLT Indenture Trustee for amounts due under
Section 6.7 and then to the COLT Owner Trustee for amounts due to the COLT
Owner Trustee (not including amounts due for payments to the Series 200_-_
Certificateholder) under Section 6.9 of the Declaration; and
SECOND: to the COLT Collection Account for distribution in the
following priority: (i) payment in full of the accrued and unpaid interest
on the COLT 200_-_ Secured Notes; (ii) payment in full of unpaid principal
balance of the COLT 200_-_ Secured Notes; (iii) to the CARAT Collection
Account towards payment in full of any CARAT Collection Account Shortfall
Amount and (iv) the remainder shall be distributed in accordance with the
instructions of the COLT 200_-_ Certificateholder.
SECTION 5.5 Optional Preservation of the Series 200_-_ Lease Assets.
If the COLT 200_-_ Secured Notes have been declared to be due and payable under
Section 5.2 following an Event of Default and such declaration and its
consequences have not been rescinded and annulled in accordance with Section
5.2(b), the COLT Indenture Trustee may, but need not, elect to take and maintain
possession of the COLT 200_-_ Trust Estate. It is the desire of the parties
hereto and the COLT 200_-_ Secured Noteholders that there be at all times
sufficient funds for the payment of principal of and interest on the COLT 200_-_
Secured Notes, and the COLT Indenture Trustee shall take such desire into
account when determining whether or not to take and maintain possession of the
COLT 200_-_ Trust Estate. In determining whether to take and maintain possession
of the COLT 200_-_ Trust Estate, the COLT Indenture Trustee may, but need not,
obtain and rely upon an opinion of an Independent investment banking or
accounting firm of national reputation as to the feasibility of such proposed
action and as to the sufficiency of the COLT 200_-_ Trust Estate for such
purpose.
SECTION 5.6 Limitation of Suits. No Holder of any COLT 200_-_ Secured
Note shall have any right to institute any Proceeding, judicial or otherwise,
with respect to this COLT Indenture, or for the appointment of a receiver or
trustee, or for any other remedy hereunder, unless:
(a) such Holder has previously given written notice to the COLT
Indenture Trustee of a continuing Event of Default;
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(b) the Holders of not less than 25% of the Outstanding Amount of the
COLT 200_-_ Secured Notes have made written request to the COLT Indenture
Trustee to institute such Proceeding in respect of such Event of Default in its
own name as COLT Indenture Trustee hereunder;
(c) such Holder or Holders have offered to the COLT Indenture Trustee
reasonable indemnity against the costs, expenses and liabilities to be incurred
in complying with such request;
(d) the COLT Indenture Trustee for 60 days after the earlier of (x)
its receipt of such notice, request and offer of indemnity and (y) any similar
notice, request and offer of indemnity to the CARAT Indenture Trustee under
Section 5.6 of the CARAT Indenture, has failed to institute such Proceedings;
and
(e) no direction inconsistent with such written request has been given
to the COLT Indenture Trustee during such 60-day period by the Holders of a
majority of the Outstanding Amount of the COLT 200_-_ Secured Notes;
it being understood and intended that no one or more Holders of the COLT 200_-_
Secured Notes shall have any right in any manner whatever by virtue of, or by
availing of, any provision of this COLT Indenture to affect, disturb or
prejudice the rights of any other Holders of the COLT 200_-_ Secured Notes or to
obtain or to seek to obtain priority or preference over any other Holders of the
COLT 200_-_ Secured Notes or to enforce any right under this COLT Indenture,
except in the manner herein provided and for the equal, ratable (on the basis of
the respective aggregate amount of principal and interest, respectively, due and
unpaid on the COLT 200_-_ Secured Note held by such COLT 200_-_ Secured
Noteholder) and common benefit of all Holders of the COLT 200_-_ Secured Notes.
For the protection and enforcement of the provisions of this Section 5.6, each
and every COLT 200_-_ Secured Noteholder shall be entitled to such relief as can
be given either at law or in equity.
If the COLT Indenture Trustee shall receive conflicting or
inconsistent requests and indemnity from two or more groups of Holders of the
COLT 200_-_ Secured Notes, each representing less than a majority of the
Outstanding Amount of the COLT 200_-_ Secured Notes, the COLT Indenture Trustee
shall take the action requested by the group representing the higher percentage
of the Outstanding Amount of the COLT 200_-_ Secured Notes.
SECTION 5.7 Unconditional Rights of the COLT 200_-_ Secured
Noteholders to Receive Principal and Interest. Notwithstanding any other
provisions in this COLT Indenture, the Holder of any COLT 200_-_ Secured Note
shall have the right, which is absolute and unconditional, to receive payment of
the principal of and interest on such COLT 200_-_ Secured Note on or after the
respective due dates thereof expressed in such COLT 200_-_ Secured Note or in
this COLT Indenture and to institute suit for the enforcement of any such
payment, and such right shall not be impaired without the consent of such
Holder.
SECTION 5.8 Restoration of Rights and Remedies. If the COLT Indenture
Trustee or any COLT 200_-_ Secured Noteholder has instituted any Proceeding to
enforce any right or remedy under this COLT Indenture and such Proceeding has
been discontinued or
29
abandoned for any reason or has been determined adversely to the COLT Indenture
Trustee or to such COLT 200_-_ Secured Noteholder, then and in every such case
COLT, the COLT Indenture Trustee and the COLT 200_-_ Secured Noteholders shall,
subject to any determination in such Proceeding, be restored severally to their
respective former positions hereunder, and thereafter all rights and remedies of
the COLT Indenture Trustee and the COLT 200_-_ Secured Noteholders shall
continue as though no such Proceeding had been instituted.
SECTION 5.9 Rights and Remedies Cumulative. No right or remedy herein
conferred upon or reserved to the COLT Indenture Trustee or to the COLT 200_-_
Secured Noteholders is intended to be exclusive of any other right or remedy,
and every right and remedy shall, to the extent permitted by law, be cumulative
and in addition to every other right and remedy given hereunder or now or
hereafter existing at law or in equity or otherwise. The assertion or employment
of any right or remedy hereunder, or otherwise, shall not prevent the concurrent
assertion or employment of any other appropriate right or remedy.
SECTION 5.10 Delay or Omission, Not a Waiver. No delay or omission of
the COLT Indenture Trustee or any Holder of any COLT 200_-_ Secured Note to
exercise any right or remedy accruing upon any Default or Event of Default shall
impair any such right or remedy or constitute a waiver of any such Default or
Event of Default or an acquiescence therein. Every right and remedy given by
this Article V or by law to the COLT Indenture Trustee or to the COLT 200_-_
Secured Noteholders may be exercised from time to time, and as often as may be
deemed expedient, by the COLT Indenture Trustee or by the COLT 200_-_ Secured
Noteholders, as the case may be.
SECTION 5.11 Control by the COLT 200_-_ Secured Noteholders. The
Holders of a majority of the Outstanding Amount of the COLT 200_-_ Secured Notes
shall, subject to provision being made for indemnification against costs,
expenses and liabilities in a form satisfactory to the COLT Indenture Trustee,
have the right to direct the time, method and place of conducting any Proceeding
for any remedy available to the COLT Indenture Trustee with respect to the COLT
200_-_ Secured Notes or exercising any trust or power conferred on the COLT
Indenture Trustee; provided, however, that:
(a) such direction shall not be in conflict with any rule of law or
with this COLT Indenture;
(b) subject to the express terms of Section 5.4, any direction to the
COLT Indenture Trustee to sell or liquidate the COLT 200_-_ Trust Estate shall
be by the Holders of COLT 200_-_ Secured Notes representing not less than 100%
of the Outstanding Amount of the COLT 200_-_ Secured Notes;
(c) if the conditions set forth in Section 5.5 have been satisfied and
the COLT Indenture Trustee elects to retain the COLT 200_-_ Trust Estate
pursuant to Section 5.5, then any direction to the COLT Indenture Trustee by
Holders of COLT 200_-_ Secured Notes representing less than 100% of the
Outstanding Amount of the COLT 200_-_ Secured Notes to sell or liquidate the
COLT 200_-_ Trust Estate shall be of no force and effect; and
30
(d) the COLT Indenture Trustee may take any other action deemed proper
by the COLT Indenture Trustee that is not inconsistent with such direction;
provided, however, that, subject to Section 6.1, the COLT Indenture Trustee need
not take any action that it determines might cause it to incur any liability
with respect to which the COLT Indenture Trustee shall have reasonable grounds
to believe that adequate indemnity against such liability is not assured to it
or might materially adversely affect the rights of the COLT 200_-_ Secured
Noteholders not consenting to such action.
SECTION 5.12 Waiver of Past Defaults.
(a) Prior to the declaration of the acceleration of the maturity of
the COLT 200_-_ Secured Notes as provided in Section 5.2, the Holders of not
less than a majority of the Outstanding Amount of the COLT 200_-_ Secured Notes
may waive any past Default or Event of Default and its consequences except a
Default or Event of Default (i) in the payment of principal of or interest on
any of the COLT 200_-_ Secured Notes or (ii) in respect of a covenant or
provision hereof that cannot be modified or amended without the consent of the
Holder of each such COLT 200_-_ Secured Note. In the case of any such waiver,
COLT, the COLT Indenture Trustee and the COLT 200_-_ Secured Noteholders shall
be restored to their former positions and rights hereunder, respectively; but no
such waiver shall extend to any subsequent or other Default or Event of Default
or impair any right consequent thereto.
(b) Upon any such waiver, such Default or Event of Default shall cease
to exist and be deemed to have been cured and not to have occurred (and any
Event of Default arising from any such Default shall be deemed to have been
cured and not to have occurred) for every purpose of this COLT Indenture; but no
such waiver shall extend to any subsequent or other Default or Event of Default
or impair any right consequent thereto.
SECTION 5.13 Undertaking for Costs. All parties to this COLT Indenture
agree, and each Holder of any COLT 200_-_ Secured Note by such Holder's
acceptance thereof shall be deemed to have agreed, that any court may in its
discretion require, in any Proceeding for the enforcement of any right or remedy
under this COLT Indenture, or in any Proceeding against the COLT Indenture
Trustee for any action taken, suffered or omitted by it as COLT Indenture
Trustee, the filing by any party litigant in such Proceeding of an undertaking
to pay the costs of such Proceeding, and that such court may in its discretion
assess reasonable costs, including reasonable attorneys' fees and expenses,
against any party litigant in such Proceeding, having due regard to the merits
and good faith of the claims or defenses made by such party litigant; but the
provisions of this Section 5.13, shall not apply to:
(a) any Proceeding instituted by the COLT Indenture Trustee;
(b) any Proceeding instituted by any COLT 200_-_ Secured Noteholder or
group of COLT 200_-_ Secured Noteholders holding in the aggregate more than 10%
of the Outstanding Amount of the COLT 200_-_ Secured Notes; or
(c) any Proceeding instituted by any COLT 200_-_ Secured Noteholder
for the enforcement of the payment of principal of or interest on any COLT
200_-_ Secured Note on
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or after the respective due dates expressed in such COLT 200_-_ Secured Note and
in this COLT Indenture (or, in the case of redemption, on or after the
Redemption Date).
SECTION 5.14 Waiver of Stay or Extension Laws. COLT covenants (to the
extent that it may lawfully do so) that it shall not at any time insist upon, or
plead or in any manner whatsoever, claim or take the benefit or advantage of,
any stay or extension law wherever enacted, now or at any time hereafter in
force, that may affect the covenants or the performance of this COLT Indenture.
COLT (to the extent that it may lawfully do so) hereby expressly waives all
benefit or advantage of any such law, and covenants that it shall not hinder,
delay or impede the execution of any power herein granted to the COLT Indenture
Trustee, but shall suffer and permit the execution of every such power as though
no such law had been enacted.
SECTION 5.15 Action on COLT 200_-_ Secured Notes. The COLT Indenture
Trustee's right to seek and recover judgment on the COLT 200_-_ Secured Notes or
under this COLT Indenture shall not be affected by the seeking, obtaining or
application of any other relief under or with respect to this COLT Indenture.
Neither the lien of this COLT Indenture in the COLT 200_-_ Collateral or the
lien of the VAULT Security Agreement in the Pledged Collateral nor any rights or
remedies of the COLT Indenture Trustee or the COLT 200_-_ Secured Noteholders
shall be impaired by the recovery of any judgment by the COLT Indenture Trustee
against COLT or by the levy of any execution under such judgment upon any
portion of the COLT 200_-_ Trust Estate or upon any of the assets of COLT. Any
money or property collected by the COLT Indenture Trustee shall be applied in
accordance with Section 5.4(b).
SECTION 5.16 Performance and Enforcement of Certain Obligations.
(a) Promptly following a request from the COLT Indenture Trustee to do
so and at the Servicer's expense, COLT agrees to take all such lawful action as
the COLT Indenture Trustee may request to compel or secure the performance and
observance by the Seller and the Servicer of their respective obligations to
COLT under or in connection with the COLT 200_-_ Basic Documents in accordance
with the terms thereof, and to exercise any and all rights, remedies, powers and
privileges lawfully available to COLT under or in connection with the COLT
200_-_ Basic Documents to the extent and in the manner directed by the COLT
Indenture Trustee, including the transmission of notices of default on the part
of the Seller or the Servicer thereunder and the institution of legal or
administrative actions or proceedings to compel or secure performance by the
Seller or the Servicer of each of their obligations under the COLT 200_-_ Basic
Documents.
(b) If an Event of Default has occurred and is continuing, the COLT
Indenture Trustee may, and, at the direction (which direction shall be in
writing or by telephone (confirmed in writing promptly thereafter)) of the
Holders of 66-2/3% of the Outstanding Amount of the COLT 200_-_ Secured Notes
shall, exercise all rights, remedies, powers, privileges and claims of COLT
against the Seller or the Servicer under or in connection with the COLT 200_-_
Basic Documents, including the right or power to take any action to compel or
secure performance or observance by the Seller or the Servicer of each of their
obligations to COLT thereunder and to give any consent, request, notice,
direction, approval, extension or waiver under the COLT 200_-_ Basic Documents,
and any right of COLT to take such action shall be suspended.
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ARTICLE VI
THE COLT INDENTURE TRUSTEE
SECTION 6.1 Duties of COLT Indenture Trustee.
(a) If an Event of Default has occurred and is continuing, the COLT
Indenture Trustee shall exercise the rights and powers vested in it by this COLT
Indenture and use the same degree of care and skill in their exercise as a
prudent person would exercise or use under the circumstances in the conduct of
such person's own affairs.
(b) Except during the continuance of an Event of Default, the COLT
Indenture Trustee undertakes to perform such duties and only such duties as are
specifically set forth in this COLT Indenture and the COLT Servicing Agreement
and no implied covenants or obligations shall be read into this COLT Indenture
or the COLT Servicing Agreement against the COLT Indenture Trustee; and
(c) In the absence of bad faith on its part, the COLT Indenture
Trustee may conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon certificates or opinions
furnished to the COLT Indenture Trustee and conforming to the requirements of
this COLT Indenture; provided, however, that the COLT Indenture Trustee shall
examine the certificates and opinions to determine whether or not they conform
to the requirements of this COLT Indenture.
(d) The COLT Indenture Trustee may not be relieved from liability for
its own negligent action, its own negligent failure to act or its own willful
misconduct or bad faith, except that:
(i) this Section 6.1(d) does not limit the effect of Section
6.1(b);
(ii) the COLT Indenture Trustee shall not be liable for any error
of judgment made in good faith by a Responsible Officer unless it is proved
that the COLT Indenture Trustee was negligent in ascertaining the pertinent
facts; and
(iii) the COLT Indenture Trustee shall not be liable with respect
to any action it takes or omits to take in good faith in accordance with a
direction received by it pursuant to any provision of this COLT Indenture
or any other COLT 200_-_ Basic Document.
(e) The COLT Indenture Trustee shall not be liable for interest on any
money received by it except as the COLT Indenture Trustee may agree in writing
with COLT.
(f) Money held in trust by the COLT Indenture Trustee need not be
segregated from other funds except to the extent required by law or the terms of
this COLT Indenture, the COLT Servicing Agreement or the other COLT 200_-_ Basic
Documents.
(g) No provision of this COLT Indenture or any other COLT 200_-_ Basic
Document shall require the COLT Indenture Trustee to expend or risk its own
funds or otherwise incur financial liability in the performance of any of its
duties hereunder or in the exercise of any
33
of its rights or powers, if it shall have reasonable grounds to believe that
repayments of such funds or adequate indemnity against such risk or liability is
not reasonably assured to it.
(h) Every provision of this COLT Indenture and each other COLT 200_-_
Basic Document relating to the COLT Indenture Trustee shall be subject to the
provisions of this Section 6.1 and to the provisions of the TIA.
(i) The COLT Indenture Trustee shall have no liability or
responsibility for the acts or omissions of any other party to any of the COLT
200_-_ Basic Documents.
(j) In no event shall the COLT Indenture Transfer be liable for any
damages in the nature of special, indirect or consequential damages, however
styled, including lost profits, even if the COLT Indenture Trustee has been
advised of the likelihood of such loss or damage.
SECTION 6.2 Rights of COLT Indenture Trustee.
(a) The COLT Indenture Trustee may conclusively rely on any document
believed by it to be genuine and to have been signed or presented by the proper
Person. The COLT Indenture Trustee need not investigate any fact or matter
stated in the document.
(b) Before the COLT Indenture Trustee acts or refrains from acting, it
may require an Officer's Certificate or an Opinion of Counsel. The COLT
Indenture Trustee shall not be liable for any action it takes or omits to take
in good faith in reliance on such Officer's Certificate or Opinion of Counsel.
(c) The COLT Indenture Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or through
agents or attorneys or a custodian or nominee, and the COLT Indenture Trustee
shall not be responsible for any misconduct or negligence on the part of, or for
the supervision of, any such agent, attorney, custodian or nominee appointed
with due care by it hereunder.
(d) The COLT Indenture Trustee shall not be liable for any action it
takes or omits to take in good faith which it believes to be authorized or
within its rights or powers; provided, however, that the COLT Indenture
Trustee's conduct does not constitute willful misconduct, negligence or bad
faith.
(e) The COLT Indenture Trustee may consult with counsel, and the
advice or opinion of counsel with respect to legal matters relating to this COLT
Indenture and the COLT 200_-_ Secured Notes shall be full and complete
authorization and protection from liability in respect to any action taken,
omitted or suffered by it hereunder in good faith and in accordance with the
advice or opinion of such counsel.
(f) The COLT Indenture Trustee shall be under no obligation to
exercise any of the rights or powers vested in it by this COLT Indenture at the
request or direction of any of the Holders pursuant to this COLT Indenture,
unless such Holders shall have offered to the COLT Indenture Trustee security or
indemnity satisfactory to the COLT Indenture Trustee against the costs, expenses
and liabilities which might be incurred by it in compliance with such request or
direction.
34
(g) The COLT Indenture Trustee shall not be bound to make any
investigation into the facts or matters stated in any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction, consent,
order, bond, debenture, note, other evidence of indebtedness or other paper or
document, but the COLT Indenture Trustee, in its discretion, may make such
further inquiry or investigation into such facts or matters as it may see fit.
(h) The COLT Indenture Trustee shall not be deemed to have notice of
any Default, Event of Default or Servicer Default unless a Responsible Officer
of the COLT Indenture Trustee has actual knowledge thereof or unless written
notice of any event which is in fact such a default is received by the COLT
Indenture Trustee at the Corporate Trust Office of the COLT Indenture Trustee,
and such notice references the COLT 200_-_ Secured Notes and this COLT
Indenture.
(i) The rights, privileges, protections, immunities and benefits given
to the COLT Indenture Trustee, including, without limitation, its right to be
indemnified, are extended to, and shall be enforceable by, the COLT Indenture
Trustee in each of its capacities hereunder.
SECTION 6.3 COLT Indenture Trustee May Own COLT 200_-_ Secured Notes.
The COLT Indenture Trustee in its individual or any other capacity may become
the owner or pledgee of COLT 200_-_ Secured Notes and the Secured Notes of any
other Series and may otherwise deal with COLT, the Servicer or any of their
respective Affiliates with the same rights it would have if it were not COLT
Indenture Trustee; provided, however, that the COLT Indenture Trustee shall
comply with Sections 6.10 and 6.11. Any Paying Agent, Secured Note Registrar,
co-registrar or co-paying agent may do the same with like rights.
SECTION 6.4 COLT Indenture Trustee's Disclaimer. The COLT Indenture
Trustee shall not be responsible for and makes no representation as to the
validity or adequacy of any COLT 200_-_ Basic Document, including this COLT
Indenture or the COLT 200_-_ Secured Notes, it shall not be accountable for
COLT's use of the proceeds from the COLT 200_-_ Secured Notes, and it shall not
be responsible for any statement of COLT in the COLT Indenture or in any
document issued in connection with the sale of any COLT 200_-_ Secured Notes or
in the COLT 200_-_ Secured Notes other than the COLT Indenture Trustee's
certificate of authentication.
SECTION 6.5 Notice of Default. If a Default occurs and is continuing
and if it is known to a Responsible Officer of the COLT Indenture Trustee, the
COLT Indenture Trustee shall mail to each COLT 200_-_ Secured Noteholder notice
of the Default within 90 days after it occurs. Except in the case of a Default
in payment of principal or of interest on any COLT 200_-_ Secured Note, the COLT
Indenture Trustee may withhold the notice if and so long as it in good faith
determines that withholding the notice is in the interest of the COLT 200_-_
Secured Noteholders.
SECTION 6.6 Reports by COLT Indenture Trustee.
(a) To the extent any COLT 200_-_ Secured Noteholder does not receive
such documents or information directly, the COLT Indenture Trustee shall deliver
to each such COLT 200_-_ Secured Noteholder, as applicable, the documents and
information set forth in Article
35
VII, and, in addition, all such information with respect to the COLT 200_-_
Secured Notes as may be required to enable such Holder to prepare its federal
and state income tax returns.
(b) The COLT Indenture Trustee shall:
(i) deliver to XXXX, XXXX, the COLT Owner Trustee, the CARAT
Owner Trustee and the Servicer a report of its assessment of compliance
with the minimum Servicing Criteria regarding general servicing, cash and
collection administration, investor remittances and reporting, and pool
asset administration during the preceding calendar year, including
disclosure of any material instance of non-compliance identified by the
COLT Indenture Trustee, as required by Rule 13a-18 and Rule 15d-18 of the
Exchange Act, and Item 1122 of Regulation AB under the Securities Act;
(ii) cause a firm of registered public accountants that is
qualified and independent within the meaning of Rule 2-01 of Regulation S-X
under the Securities Act to deliver to XXXX, XXXX, the COLT Owner Trustee,
the CARAT Owner Trustee and the Servicer an attestation report that
satisfies the requirements of Rule 13a-18 or Rule 15d-18 under the Exchange
Act, as applicable, on the assessment of compliance with Servicing Criteria
with respect to the prior calendar year for inclusion in COLT's or the
Trust's 10-K filing; such attestation report shall be in accordance with
Rule 1-02(a)(3) and Rule 2-02(g) of Regulation S-X under the Securities Act
and the Exchange Act; and
(iii) deliver to XXXX, XXXX and any other Person that will be
responsible for signing the certification (a "Sarbanes Certification")
required by Rule 13a-14(d) and Rule 15d-14(d) under the Exchange Act
(pursuant to Section 302 of the Xxxxxxxx-Xxxxx Act of 2002) on behalf of
XXXX, XXXX or the Trust with respect to the CARAT 200_-SN_ securitization
transaction a certification substantially in the form attached hereto as
Exhibit B or such form as mutually agreed upon by XXXX, XXXX and the COLT
Indenture Trustee; the COLT Indenture Trustee acknowledges that the parties
identified in this clause (iii) may rely on the certification provided by
the COLT Indenture Trustee pursuant to such clause in signing a Sarbanes
Certification and filing such with the Commission.
(c) The reports referred to in Section 6.6(b) shall be delivered on or
before March 15 of each year that a 10-K filing is required to be filed by COLT
or the Trust, beginning March 15, 200_.
SECTION 6.7 Compensation; Indemnity.
(a) COLT shall cause the Servicer to pay to the COLT Indenture Trustee
from time to time such compensation for its services as is set forth in the COLT
Servicing Agreement. The COLT Indenture Trustee's compensation shall not be
limited by any law on compensation of a trustee of an express trust. COLT shall
cause the Servicer pursuant to the COLT Servicing Agreement to reimburse the
COLT Indenture Trustee for all reasonable out-of-pocket expenses incurred or
made by it, including costs of collection, in addition to the compensation for
its services. Such expenses shall include the reasonable compensation and
expenses, disbursements
36
and advances of the COLT Indenture Trustee's agents, external counsel,
accountants and experts. COLT shall cause the Servicer to indemnify the COLT
Indenture Trustee in accordance with the COLT Servicing Agreement.
(b) COLT's obligations to the COLT Indenture Trustee pursuant to
Section 6.7(a) shall survive the discharge of this COLT Indenture. When the COLT
Indenture Trustee incurs expenses after the occurrence of a Default specified in
Section 5.1(e) or (f), the expenses are intended to constitute expenses of
administration under Title 11 of the United States Code or any other applicable
federal or state bankruptcy, insolvency or similar law.
SECTION 6.8 Replacement of COLT Indenture Trustee.
(a) The COLT Indenture Trustee may at any time give notice of its
intent to resign by so notifying COLT and the COLT 200_-_ Secured Noteholders;
provided, however, that no such resignation shall become effective and the COLT
Indenture Trustee shall not resign prior to the time set forth in Section
6.8(c). The Holders of a majority of the Outstanding Amount of the COLT 200_-_
Secured Notes may remove the COLT Indenture Trustee by so notifying the COLT
Indenture Trustee and may appoint a successor COLT Indenture Trustee. Such
resignation or removal shall become effective in accordance with Section 6.8(c).
COLT shall remove the COLT Indenture Trustee if:
(i) the COLT Indenture Trustee fails to comply with Section 6.11;
(ii) the COLT Indenture Trustee is adjudged bankrupt or
insolvent;
(iii) a receiver or other public officer takes charge of the COLT
Indenture Trustee or its property; or
(iv) the COLT Indenture Trustee otherwise becomes incapable of
acting.
(b) If the COLT Indenture Trustee gives notice of its intent to resign
or is removed or if a vacancy exists in the office of COLT Indenture Trustee for
any reason (the COLT Indenture Trustee in such event being referred to herein as
the retiring COLT Indenture Trustee), COLT shall promptly appoint and designate
a successor COLT Indenture Trustee.
(c) A successor COLT Indenture Trustee shall deliver a written
acceptance of its appointment and designation to the retiring COLT Indenture
Trustee and to COLT. Thereupon the resignation or removal of the retiring COLT
Indenture Trustee shall become effective, and the successor COLT Indenture
Trustee shall have all the rights, powers and duties of the COLT Indenture
Trustee under this COLT Indenture. The successor COLT Indenture Trustee shall
mail a notice of its succession to the COLT 200_-_ Secured Noteholders. The
retiring COLT Indenture Trustee shall promptly transfer all property held by it
as COLT Indenture Trustee to the successor COLT Indenture Trustee.
(d) If a successor COLT Indenture Trustee does not take office within
60 days after the retiring COLT Indenture Trustee gives notice of its intent to
resign or is removed, the retiring COLT Indenture Trustee, COLT or the Holders
of a majority of the Outstanding Amount
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of the COLT 200_-_ Secured Notes may petition any court of competent
jurisdiction for the appointment and designation of a successor COLT Indenture
Trustee.
(e) If the COLT Indenture Trustee fails to comply with Section 6.11,
any COLT 200_-_ Secured Noteholder may petition any court of competent
jurisdiction for the removal of the COLT Indenture Trustee and the appointment
of a successor COLT Indenture Trustee.
(f) Notwithstanding the replacement of the COLT Indenture Trustee
pursuant to this Section 6.8, COLT's obligations under Section 6.7 and the
Servicer's corresponding obligations under the COLT Servicing Agreement shall
continue for the benefit of the retiring COLT Indenture Trustee.
SECTION 6.9 Merger or Consolidation of COLT Indenture Trustee.
(a) Any corporation into which the COLT Indenture Trustee may be
merged or with which it may be consolidated, or any corporation resulting from
any merger or consolidation to which the COLT Indenture Trustee shall be a
party, or any corporation succeeding to the corporate trust business of the COLT
Indenture Trustee, shall be the successor of the COLT Indenture Trustee under
this COLT Indenture; provided, however, that such corporation shall be eligible
under the provisions of Section 6.11, without the execution or filing of any
instrument or any further act on the part of any of the parties to this COLT
Indenture.
(b) If at the time such successor or successors by merger or
consolidation to the COLT Indenture Trustee shall succeed to the trusts created
by this COLT Indenture, any of the COLT 200_-_ Secured Notes shall have been
authenticated but not delivered, any such successor to the COLT Indenture
Trustee may adopt the certificate of authentication of any predecessor trustee,
and deliver such COLT 200_-_ Secured Notes so authenticated; and in case at that
time any of the COLT 200_-_ Secured Notes shall not have been authenticated, any
successor to the COLT Indenture Trustee may authenticate such COLT 200_-_
Secured Notes either in the name of any predecessor hereunder or in the name of
the successor to the COLT Indenture Trustee. In all such cases such certificate
of authentication shall have the same full force as is provided anywhere in the
COLT 200_-_ Secured Notes or herein with respect to the certificate of
authentication of the COLT Indenture Trustee.
SECTION 6.10 Appointment of Co-COLT Indenture Trustee or Separate COLT
Indenture Trustee.
(a) Notwithstanding any other provisions of this COLT Indenture, at
any time, for the purpose of meeting any legal requirement of any jurisdiction
in which any part of the COLT 200_-_ Trust Estate may at the time be located,
the COLT Indenture Trustee shall have the power and may execute and deliver all
instruments to appoint one or more Persons to act as a co-trustee or
co-trustees, jointly with the COLT Indenture Trustee, or separate indenture
trustees, of all or any part of the COLT 200_-_ Trust Estate and to vest in such
Person or Persons, in such capacity and for the benefit of the COLT 200_-_
Secured Noteholders, such title to the COLT 200_-_ Trust Estate, or any part
hereof, and, subject to the other provisions of this Section 6.10, such powers,
duties, obligations, rights and trusts as the COLT Indenture Trustee may
consider
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necessary or desirable. No co-indenture trustee or separate indenture trustee
hereunder shall be required to meet the terms of eligibility as a successor
trustee under Section 6.11 and no notice to COLT 200_-_ Secured Noteholders of
the appointment of any co-indenture trustee or separate indenture trustee shall
be required under Section 6.8.
(b) Every separate indenture trustee and co-indenture trustee shall,
to the extent permitted by law, be appointed and act subject to the following
provisions and conditions:
(i) all rights, powers, duties and obligations conferred or
imposed upon the COLT Indenture Trustee shall be conferred or imposed upon
and exercised or performed by the COLT Indenture Trustee and such separate
trustee or co-trustee jointly (it being understood that such separate
indenture trustee or co-indenture trustee is not authorized to act
separately without the COLT Indenture Trustee joining in such act), except
to the extent that under any law of any jurisdiction in which any
particular act or acts are to be performed the COLT Indenture Trustee shall
be incompetent or unqualified to perform such act or acts, in which event
such rights, powers, duties and obligations (including the holding of title
to the COLT 200_-_ Trust Estate or any portion thereof in any such
jurisdiction) shall be exercised and performed singly by such separate
trustee or co-trustee, but solely at the direction of the COLT Indenture
Trustee;
(ii) no co-indenture trustee or separate indenture trustee
hereunder shall be personally liable by reason of any act or omission of
any other co-indenture trustee or separate indenture trustee hereunder; and
(iii) the COLT Indenture Trustee may at any time accept the
resignation of or remove any separate indenture trustee or co-indenture
trustee.
(c) Any notice, request or other writing given to the COLT Indenture
Trustee shall be deemed to have been given to each of the then separate
indenture trustees and co-indenture trustees, as effectively as if given to each
of them. Every instrument appointing any separate trustee or co-trustee shall
refer to this COLT Indenture and the conditions of this Article VI. Each
separate indenture trustee and co-indenture trustee, upon its acceptance of the
trusts conferred, shall be vested with the estates or property specified in its
instrument of appointment, either jointly with the COLT Indenture Trustee or
separately, as may be provided therein, subject to all the provisions of this
COLT Indenture, specifically including every provision of this COLT Indenture
relating to the conduct of, affecting the liability of, or affording protection
to, the COLT Indenture Trustee. Every such instrument shall be filed with the
COLT Indenture Trustee.
(d) Any separate indenture trustee or co-indenture trustee may at any
time appoint the COLT Indenture Trustee as its agent or attorney-in-fact with
full power and authority, to the extent not prohibited by law, to do any lawful
act under or in respect of this COLT Indenture on its behalf and in its name. If
any separate indenture trustee or co-indenture trustee shall die, become
incapable of acting, resign or be removed, all of its estates, properties,
rights, remedies and trusts shall vest in and be exercised by the COLT Indenture
Trustee, to the extent permitted by law, without the appointment of a new or
successor co-indenture trustee or successor indenture trustee.
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SECTION 6.11 Eligibility; Disqualification. The COLT Indenture Trustee
shall at all times satisfy the requirements of TIA Section 310(a). The COLT
Indenture Trustee shall have a combined capital and surplus of at least
$50,000,000 as set forth in its most recent published annual report of condition
and (unless waived by Moody's, if Xxxxx'x is rating the COLT 200_-_ Secured
Notes) it shall have a long term unsecured debt rating of Baa3 or better by
Moody's. The COLT Indenture Trustee shall comply with TIA Section 310(b);
provided, however, that there shall be excluded from the operation of TIA
Section 310(b)(1) any indenture or indentures under which other securities of
COLT are outstanding if the requirements for such exclusion set forth in TIA
Section 310(b)(1) are met.
SECTION 6.12 Preferential Collection of Claims Against COLT. The COLT
Indenture Trustee shall comply with TIA Section 311(a), excluding any creditor
relationship listed in TIA Section 311(b). A trustee who has resigned or been
removed shall be subject to TIA Section 311(a) to the extent indicated therein.
SECTION 6.13 Representations and Warranties of COLT Indenture Trustee.
The COLT Indenture Trustee represents and warrants as of the Series 200_-_
Closing Date that:
(a) the COLT Indenture Trustee (i) is a national banking association
duly organized, validly existing and in good standing under the laws of the
United States of America and (ii) satisfies the eligibility requirements set
forth in Section 6.11;
(b) the COLT Indenture Trustee has full power, authority and legal
right to execute, deliver and perform this COLT Indenture and any other COLT
200_-_ Basic Document to which it is a party, and has taken all necessary action
to authorize the execution, delivery and performance by it of this COLT
Indenture and any other COLT 200_-_ Basic Document to which it is a party;
(c) the execution, delivery and performance by the COLT Indenture
Trustee of this COLT Indenture and any other COLT 200_-_ Basic Document to which
it is a party (i) shall not violate any provision of any law or regulation
governing the banking and trust powers of the COLT Indenture Trustee or any
order, writ, judgment or decree of any court, arbitrator, or Governmental
Authority applicable to the COLT Indenture Trustee or any of its assets, (ii)
shall not violate any provision of the corporate charter or by-laws of the COLT
Indenture Trustee and (iii) shall not violate any provision of, or constitute,
with or without notice or lapse of time, a default under, or result in the
creation or imposition of any lien on any properties included in the COLT 200_-_
Trust Estate pursuant to the provisions of any mortgage, indenture, contract,
agreement or other undertaking to which it is a party, which violation, default
or lien could reasonably be expected to have a materially adverse effect on the
COLT Indenture Trustee's performance or ability to perform its duties under this
COLT Indenture and any other COLT 200_-_ Basic Document to which it is a party
or on the transactions contemplated hereunder and thereunder;
(d) the execution, delivery and performance by the COLT Indenture
Trustee of this COLT Indenture and any other COLT 200_-_ Basic Document to which
it is a party shall not require the authorization, consent or approval of, the
giving of notice to, the filing or
40
registration with, or the taking of any other action in respect of, any
Governmental Authority or agency regulating the banking and corporate trust
activities of the COLT Indenture Trustee; and
(e) this COLT Indenture and any other COLT 200_-_ Basic Document to
which it is a party have been duly executed and delivered by the COLT Indenture
Trustee and constitutes the legal, valid and binding agreement of the COLT
Indenture Trustee, enforceable in accordance with their terms.
SECTION 6.14 COLT Indenture Trustee May Enforce Claims Without
Possession of COLT 200_-_ Secured Notes. All rights of action and claims under
this COLT Indenture or the COLT 200_-_ Secured Notes may be prosecuted and
enforced by the COLT Indenture Trustee without the possession of any of the COLT
200_-_ Secured Notes or the production thereof in any proceeding relating
thereto, and any such proceeding instituted by the COLT Indenture Trustee shall
be brought in its own name as COLT Indenture Trustee. Any recovery of judgment
shall, after provision for the payment of the reasonable compensation, expenses,
disbursements and advances of the COLT Indenture Trustee, its agents and
counsel, be for the ratable benefit of the COLT 200_-_ Secured Noteholders in
respect of which such judgment has been obtained.
SECTION 6.15 Suit for Enforcement. If an Event of Default shall occur
and be continuing, the COLT Indenture Trustee, in its discretion may, subject to
the provisions of Section 6.1, proceed to protect and enforce its rights and the
rights of the COLT 200_-_ Secured Noteholders under this COLT Indenture by a
Proceeding whether for the specific performance of any covenant or agreement
contained in this COLT Indenture or in aid of the execution of any power granted
in this COLT Indenture or for the enforcement of any other legal, equitable or
other remedy as the COLT Indenture Trustee, being advised by counsel, shall deem
necessary to protect and enforce any of the rights of the COLT Indenture Trustee
or the COLT 200_-_ Secured Noteholders.
SECTION 6.16 Rights of COLT 200_-_ Secured Noteholders to Direct COLT
Indenture Trustee. The Holders of not less than a majority of the Outstanding
Amount of the COLT 200_-_ Secured Notes, shall have the right to direct the
time, method and place of conducting any Proceeding for any remedy available to
the COLT Indenture Trustee or exercising any trust or power conferred on the
COLT Indenture Trustee; provided, however, that subject to Section 6.1, the COLT
Indenture Trustee shall have the right to decline to follow any such direction
if the COLT Indenture Trustee being advised by counsel determines that the
action so directed may not lawfully be taken, or if the COLT Indenture Trustee
in good faith shall, by a Responsible Officer, determine that the proceedings so
directed would be illegal or subject it to personal liability; and provided,
further, that nothing in this COLT Indenture shall impair the right of the COLT
Indenture Trustee to take any action deemed proper by the COLT Indenture Trustee
and which is not inconsistent with such direction by the COLT 200_-_ Secured
Noteholders.
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ARTICLE VII
COLT 200_-_ SECURED NOTEHOLDERS' LISTS AND REPORTS
SECTION 7.1 COLT to Furnish COLT Indenture Trustee Names and Addresses
of COLT 200_-_ Secured Noteholders. COLT shall furnish or cause to be furnished
by the Servicer to the COLT Indenture Trustee (a) not more than five days before
each Payment Date, a list, in such form as the COLT Indenture Trustee may
reasonably require, of the names and addresses of the Holders of COLT 200_-_
Secured Notes as of the close of business on the related Record Date, and (b) at
such other times as the COLT Indenture Trustee may request in writing, within 14
days after receipt by COLT of any such request, a list of similar form and
content as of a date not more than 10 days prior to the time such list is
furnished; provided, however, that so long as the COLT Indenture Trustee is the
Secured Note Registrar, no such list shall be required to be furnished.
SECTION 7.2 Preservation of Information, Communications to COLT 200_-_
Secured Noteholders.
(a) The COLT Indenture Trustee shall preserve, in as current a form as
is reasonably practicable, the names and addresses of the Holders of COLT 200_-_
Secured Notes contained in the most recent list furnished to the COLT Indenture
Trustee as provided in Section 7.1 and the names and addresses of Holders of
COLT 200_-_ Secured Notes received by the COLT Indenture Trustee in its capacity
as Secured Note Registrar. The COLT Indenture Trustee may destroy any list
furnished to it as provided in such Section 7.1 upon receipt of a new list so
furnished.
(b) COLT 200_-_ Secured Noteholders may communicate pursuant to TIA
Section 312(b) with other COLT 200_-_ Secured Noteholders with respect to their
rights under this COLT Indenture or under the COLT 200_-_ Secured Notes.
(c) COLT, the COLT Indenture Trustee and the Secured Note Registrar
shall have the protection of TIA Section 312(c).
SECTION 7.3 Reports by COLT
(a) COLT shall:
(i) file with the COLT Indenture Trustee within 15 days after
COLT is required to file the same with the Commission, copies of the annual
reports and of the information, documents and other reports (or copies of
such portions of any of the foregoing as the Commission may from time to
time by rules and regulations prescribe) which COLT may be required to file
with the Commission pursuant to Section 13 or 15(d) of the Exchange Act or
Item 1122 of Regulation AB;
(ii) file with the COLT Indenture Trustee and the Commission in
accordance with rules and regulations prescribed from time to time by the
Commission such additional information, documents and reports with respect
to compliance by COLT with the conditions and covenants of this COLT
Indenture as may be required from time to time by such rules and
regulations; and
42
(iii) supply to the COLT Indenture Trustee (and the COLT
Indenture Trustee shall transmit by mail to all COLT 200_-_ Secured
Noteholders described in TIA Section 313(c)) such summaries of any
information, documents and reports required to be filed by the Issuer
pursuant to clauses (i) and (ii) of this Section 7.3(a) as may be required
by rules and regulations prescribed from time to time by the Commission.
(b) Unless COLT otherwise determines, the fiscal year of COLT shall
end on December 31 of such year.
SECTION 7.4 Reports by Trustee. If required by TIA Section
313(a),within 60 days after each August 15, beginning with August 15, 200_, the
COLT Indenture Trustee shall mail to each COLT 200_-_ Secured Noteholder as
required by TIA Section 313(c) a brief report dated as of such date that
complies with TIA Section 313(a). The COLT Indenture Trustee also shall comply
with TIA Section 313(b). A copy of any report delivered pursuant to this Section
7.4(a) shall, at the time of its mailing to COLT 200_-_ Secured Noteholders, be
filed by the COLT Indenture Trustee with the Commission and each stock exchange,
if any, on which the COLT 200_-_ Secured Notes are listed. COLT shall notify the
COLT Indenture Trustee if and when the COLT 200_-_ Secured Notes are listed on
any stock exchange.
ARTICLE VIII
ACCOUNTS, DISBURSEMENTS AND RELEASES
SECTION 8.1 Collection of Money. Except as otherwise expressly
provided herein, the COLT Indenture Trustee may demand payment or delivery of,
and shall receive and collect, directly and without intervention or assistance
of any fiscal agent or other intermediary, all money and other property payable
to or receivable by the COLT Indenture Trustee pursuant to this COLT Indenture
and the COLT 200_-_ Basic Documents. The COLT Indenture Trustee shall apply all
such money received by it with respect to the COLT 200_-_ Trust Estate as
provided in this COLT Indenture, the COLT Servicing Agreement and any other COLT
200_-_ Basic Document to which it is a party. Except as otherwise expressly
provided in this COLT Indenture, if any default occurs in the making of any
payment or performance under any agreement or instrument that is part of the
COLT 200_-_ Trust Estate, the COLT Indenture Trustee may take such action as may
be appropriate to enforce such payment or performance, including the institution
and prosecution of appropriate Proceedings. Any such action shall be without
prejudice to any right to claim an Event of Default under this COLT Indenture
and any right to proceed thereafter as provided in Article V.
SECTION 8.2 Designated Accounts; Allocations; Payments.
(a) On or prior to the Series 200_-_ Closing Date, COLT shall cause
the Servicer to establish and maintain, in the name of the COLT Indenture
Trustee, for the benefit of the COLT 200_-_ Secured Noteholders, the Designated
Accounts in accordance with the COLT Servicing Agreement.
(b) On or before each Payment Date, (i) amounts shall be deposited in
the COLT Collection Account as provided in Section 3.03(a) and (b) of the COLT
Servicing Agreement and (ii) the Aggregate Secured Note Interest Distributable
Amount for such Payment
43
Date, the Secured Note Principal Distributable Amount for such Payment Date and
all other amounts payable on such Payment Date pursuant to Section 3.03(c) of
the COLT Servicing Agreement, shall be transferred from the COLT Collection
Account to the COLT 200_-_ Secured Noteholders and the CARAT Collection Account,
as applicable, as and to the extent provided in Section 3.03(c) of the COLT
Servicing Agreement.
SECTION 8.3 General Provisions Regarding Designated Accounts.
(a) So long as no Default or Event of Default shall have occurred and
be continuing, all or a portion of the funds in the Designated Accounts shall be
invested in Eligible Investments and reinvested by the COLT Indenture Trustee
upon a COLT Order, subject to the provisions of the COLT Servicing Agreement.
COLT shall not direct the COLT Indenture Trustee to make any investment of any
funds or to sell any investment held in any of the Designated Accounts unless
the security interest granted and perfected in such account shall continue to be
perfected in such investment or the proceeds of such sale, in either case
without any further action by any Person, and, in connection with any direction
to the COLT Indenture Trustee to make any such investment or sale, if requested
by the COLT Indenture Trustee, COLT shall deliver to the COLT Indenture Trustee
an Opinion of Counsel acceptable to the COLT Indenture Trustee, to such effect.
(b) Subject to Section 6.1(c), the COLT Indenture Trustee shall not in
any way be held liable by reason of any insufficiency in any of the Designated
Accounts resulting from any loss on any Eligible Investment included therein
except for losses attributable to the COLT Indenture Trustee's failure to make
payments on such Eligible Investments issued by the COLT Indenture Trustee, in
its commercial capacity as principal obligor and not as trustee, in accordance
with their terms.
(c) If (i) COLT shall have failed to give written investment
directions for any funds on deposit in the Designated Accounts to the COLT
Indenture Trustee by 11:00 A.M., New York City time (or such other time as may
be agreed by COLT and the COLT Indenture Trustee) on any Business Day or (ii) a
Default or Event of Default shall have occurred and be continuing with respect
to the COLT 200_-_ Secured Notes but the COLT 200_-_ Secured Notes shall not
have been declared due and payable pursuant to Section 5.2, or (iii) if the COLT
200_-_ Secured Notes shall have been declared due and payable following an Event
of Default, but amounts collected or receivable from the COLT 200_-_ Trust
Estate are being applied in accordance with Section 5.5 as if there had not been
such a declaration, then the COLT Indenture Trustee shall, to the fullest extent
practicable, invest and reinvest funds in the Designated Accounts in "Citi
Institutional Liquid Reserves, Fund #349."
SECTION 8.4 Release of the COLT 200_-_ Trust Estate.
(a) Subject to the payment of its fees and expenses pursuant to
Section 6.7, the COLT Indenture Trustee may, and when required by the provisions
of this COLT Indenture shall, execute instruments to release property from the
lien of this COLT Indenture, or convey the COLT Indenture Trustee's interest in
the same, in a manner and under circumstances that are consistent with the
provisions of this COLT Indenture. No party relying upon an instrument executed
by the COLT Indenture Trustee as provided in this Article VIII, shall be bound
to
44
ascertain the COLT Indenture Trustee's authority, inquire into the satisfaction
of any conditions precedent or see to the application of any monies.
(b) The COLT Indenture Trustee shall, at such time as there are no
COLT 200_-_ Secured Notes Outstanding and all sums due to the COLT Indenture
Trustee pursuant to Section 6.7 and any CARAT Collection Account Shortfall
Amount pursuant to Section 3.03(c) of the COLT Servicing Agreement have been
paid, notify COLT thereof in writing and upon receipt of a COLT Request, release
any remaining portion of the COLT 200_-_ Trust Estate that secured the COLT
200_-_ Secured Notes from the lien of this COLT Indenture and release to COLT or
any other Person entitled thereto any funds then on deposit in the Designated
Accounts. The COLT Indenture Trustee shall release property from the lien of
this COLT Indenture pursuant to this Section 8.4(b) only upon receipt by it of a
COLT Request, an Officer's Certificate and an Opinion of Counsel and (if
required by the TIA) Independent Certificate in accordance with TIA Sections.
314(c) and 314(d)(1) meeting the applicable requirements of Section 11.1.
SECTION 8.5 Opinion of Counsel. The COLT Indenture Trustee shall
receive at least seven days' notice when requested by COLT to take any action
pursuant to Section 8.4, accompanied by copies of any instruments involved, and
the COLT Indenture Trustee shall also require as a condition to such action, an
Opinion of Counsel, in form and substance satisfactory to the COLT Indenture
Trustee, stating the legal effect of any such action, outlining the steps
required to complete the same, and concluding that all conditions precedent to
the taking of such action have been complied with and such action shall not
materially and adversely impair the security for the COLT 200_-_ Secured Notes
or the rights of the COLT 200_-_ Secured Noteholders in contravention of the
provisions of this COLT Indenture; provided, however, that such Opinion of
Counsel shall not be required to express an opinion as to the fair value of the
COLT 200_-_ Trust Estate. Counsel rendering any such opinion may rely, without
independent investigation, on the accuracy and validity of any certificate or
other instrument delivered to the COLT Indenture Trustee pursuant to the
provisions of this COLT Indenture in connection with any such action.
ARTICLE IX
SUPPLEMENTAL INDENTURES
SECTION 9.1 Supplemental Indentures Without Consent of COLT 200_-_
Secured Noteholders.
(a) Without the consent of the Holders of any COLT 200_-_ Secured
Notes but with prior notice to the Rating Agencies, COLT and the COLT Indenture
Trustee, when authorized by a COLT Order, at any time and from time to time, may
enter into one or more indentures supplemental hereto (which shall conform to
the provisions of the Trust Indenture Act as in force at the date of the
execution thereof), in form satisfactory to the COLT Indenture Trustee, for any
of the following purposes:
(i) to correct or amplify the description of any property at any
time subject to the lien of this COLT Indenture, or better to assure,
convey and confirm unto the COLT Indenture Trustee any property subject or
required to be subjected to the lien
45
of this COLT Indenture, or to subject additional property to the lien of
this COLT Indenture;
(ii) to evidence the succession, in compliance with Section 3.11
and the applicable provisions hereof, of another Person to COLT, and the
assumption by any such successor of the covenants of COLT contained herein
and in the COLT 200_-_ Secured Notes;
(iii) to add to the covenants of COLT for the benefit of the COLT
200_-_ Secured Noteholders or to surrender any right or power herein
conferred upon COLT;
(iv) to convey, transfer, assign, mortgage or pledge any property
to or with the COLT Indenture Trustee;
(v) to cure any ambiguity or to correct or supplement any
provision herein or in any supplemental indenture which may be inconsistent
with any other provision herein or in any supplemental indenture or in any
COLT 200_-_ Basic Document;
(vi) to evidence and provide for the acceptance of the
appointment hereunder by a successor or additional indenture trustee with
respect to the COLT 200_-_ Secured Notes and the COLT Indenture and to add
to or change any of the provisions of this COLT Indenture as shall be
necessary to facilitate the administration of the trust hereunder by more
than one indenture trustee, pursuant to the requirements of Article VI; or
(vii) to modify, eliminate or add to the provisions of this COLT
Indenture to such extent as shall be necessary to effect the qualification
of this COLT Indenture under the TIA or under any similar federal statute
hereafter enacted and to add to this COLT Indenture such other provisions
as may be expressly required by the TIA, and the COLT Indenture Trustee is
hereby authorized to join in the execution of any such supplemental
indenture and to make any further appropriate agreements and stipulations
that may be therein contained.
(b) COLT and the COLT Indenture Trustee, when authorized by a COLT
Order, may, also without the consent of any of the COLT 200_-_ Secured
Noteholders but with prior notice to the Rating Agencies, at any time and from
time to time enter into one or more indentures supplemental hereto for the
purpose of adding any provisions to, changing in any manner, or eliminating any
of the provisions of, this COLT Indenture or modifying in any manner the rights
of the COLT 200_-_ Secured Noteholders under this COLT Indenture; provided,
however, that such action shall not, as evidenced by an Opinion of Counsel,
adversely affect in any material respect the interests of any COLT 200_-_
Secured Noteholder unless such COLT 200_-_ Secured Noteholders' consent is
obtained.
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SECTION 9.2 Supplemental Indentures with Consent of COLT 200_-_
Secured Noteholders.
(a) COLT and the COLT Indenture Trustee, when authorized by a COLT
Order, also may, with prior notice to the Rating Agencies and with the written
consent of the Holders of not less than a majority of the Outstanding Amount of
COLT 200_-_ Secured Notes, by Act of such Holders delivered to COLT and the COLT
Indenture Trustee, enter into an indenture or indentures supplemental hereto for
the purpose of adding any provisions to, changing in any manner, or eliminating
any of the provisions of, this COLT Indenture or modifying in any manner the
rights of the COLT 200_-_ Secured Noteholders under this COLT Indenture;
provided, however, that no such supplemental indenture shall, without the
consent of the Holder of each Outstanding COLT 200_-_ Secured Note affected
thereby:
(i) change the due date of any instalment of principal of or
interest on any COLT 200_-_ Secured Note, or reduce the principal amount
thereof, the interest rate applicable thereto, change any place of payment
where, or the coin or currency in which, any COLT 200_-_ Secured Note or
any interest thereon is payable, or impair the right to institute suit for
the enforcement of the provisions of this COLT Indenture requiring the
application of funds available therefor, as provided in Article V, to the
payment of any such amount due on the COLT 200_-_ Secured Notes on or after
the respective due dates thereof;
(ii) reduce the percentage of the Outstanding Amount of the COLT
200_-_ Secured Notes, the consent of the Holders of which is required for
any such supplemental indenture or the consent of the Holders of which is
required for any waiver of compliance with certain provisions of this COLT
Indenture or certain defaults hereunder and their consequences as provided
for in this COLT Indenture;
(iii) modify or alter the provisions of the proviso to the
definition of the term "Outstanding";
(iv) reduce the percentage of the Outstanding Amount of the COLT
200_-_ Secured Notes required to direct the COLT Indenture Trustee to sell
or liquidate the COLT 200_-_ Trust Estate pursuant to Section 5.4 if the
proceeds of such sale would be insufficient to pay the principal amount of
and accrued but unpaid interest on the Outstanding COLT 200_-_ Secured
Notes;
(v) modify any provision of this Section 9.2 to decrease the
required minimum percentage of the Outstanding Amount of the COLT 200_-_
Secured Notes necessary to approve any amendments to any provisions of this
COLT Indenture or any of the COLT 200_-_ Basic Documents;
(vi) modify any of the provisions of this COLT Indenture in such
manner as to affect the calculation of the amount of any payment of
interest or principal due on any COLT 200_-_ Secured Notes on any Payment
Date (including the calculation of any of the individual components of such
calculation), or modify or alter the
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provisions of this COLT Indenture regarding the voting of COLT 200_-_
Secured Notes held by COLT, the Seller or any Affiliate of either of them;
or
(vii) permit the creation of any Lien ranking prior to or on a
parity with the Lien of this COLT Indenture with respect to any part of the
COLT 200_-_ Collateral or of the VAULT Security Agreement with respect to
any part of the Pledged Collateral or, except as otherwise permitted or
contemplated herein, terminate the Lien of this COLT Indenture on any
property at any time subject hereto or deprive the Holder of any COLT
200_-_ Secured Note of the security afforded by the lien of this COLT
Indenture.
(b) The COLT Indenture Trustee may in its discretion determine whether
or not any COLT 200_-_ Secured Notes would be affected (such that the consent of
each Secured Noteholder would be required) by any supplemental indenture
proposed pursuant to this Section 9.2 and any such determination shall be
conclusive and binding upon the Holders of all COLT 200_-_ Secured Notes,
whether authenticated and delivered thereunder before or after the date upon
which such supplemental indenture becomes effective. The COLT Indenture Trustee
shall not be liable for any such determination made in good faith.
(c) It shall be sufficient if an Act of COLT 200_-_ Secured
Noteholders approves the substance, but not the form, of any proposed
supplemental indenture.
(d) Promptly after the execution by COLT and the COLT Indenture
Trustee of any supplemental indenture pursuant to this Section 9.2, the COLT
Indenture Trustee shall mail to the COLT 200_-_ Secured Noteholders to which
such amendment or supplemental indenture relates a notice setting forth in
general terms the substance of such supplemental indenture. Any failure of the
COLT Indenture Trustee to mail such notice, or any defect therein, shall not,
however, in any way impair or affect the validity of any such supplemental
indenture.
SECTION 9.3 Execution of Supplemental Indentures. In executing, or
permitting the additional trusts created by any supplemental indenture permitted
by this Article IX or the modifications thereby of the trusts created by this
COLT Indenture, the COLT Indenture Trustee shall be entitled to receive, and
subject to Sections 6.1 and 6.2, shall be fully protected in relying upon, an
Opinion of Counsel stating that the execution of such supplemental indenture is
authorized or permitted by this Article IX. The COLT Indenture Trustee may, but
shall not be obligated to, enter into any such supplemental indenture that
affects the COLT Indenture Trustee's own rights, duties, liabilities or
immunities under this COLT Indenture or otherwise.
SECTION 9.4 Effect of Supplemental Indenture. Upon the execution of
any supplemental indenture pursuant to the provisions hereof, this COLT
Indenture shall be and be deemed to be modified and amended in accordance
therewith with respect to the Secured Notes affected thereby, and the respective
rights, limitations of rights, obligations, duties, liabilities and immunities
under this COLT Indenture of the COLT Indenture Trustee, COLT and the COLT
200_-_ Secured Noteholders shall thereafter be determined, exercised and
enforced hereunder subject in all respects to such modifications and amendments,
and all the terms and conditions of any such supplemental indenture shall be and
be deemed to be part of the terms and conditions of this COLT Indenture for any
and all purposes.
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SECTION 9.5 Conformity with Trust Indenture Act. Every amendment of
this COLT Indenture and every supplemental indenture executed pursuant to this
Article IX shall conform to the requirements of the TIA as then in effect so
long as this COLT Indenture shall then be qualified under the TIA.
SECTION 9.6 Reference in COLT 200_-_ Secured Notes to Supplemental
Indentures. COLT 200_-_ Secured Notes authenticated and delivered after the
execution of any supplemental indenture pursuant to this Article IX may, and if
required by the COLT Indenture Trustee shall, bear a notation in form approved
by the COLT Indenture Trustee as to any matter provided for in such supplemental
indenture. If COLT or the COLT Indenture Trustee shall so determine, new COLT
200_-_ Secured Notes so modified as to conform, in the opinion of the COLT
Indenture Trustee and COLT, to any such supplemental indenture may be prepared
and executed by COLT and authenticated and delivered by the COLT Indenture
Trustee in exchange for Outstanding COLT 200_-_ Secured Notes of a like Secured
Note Principal Balance.
ARTICLE X
REDEMPTION OF COLT 200_-_ SECURED NOTES
SECTION 10.1 Redemption. The COLT 200_-_ Secured Notes are subject to
redemption in whole, but not in part, upon the exercise by the Servicer of its
option to purchase the Series 200_-_ Lease Assets pursuant to Section 6.01 of
the COLT Servicing Agreement. The date on which such redemption shall occur is
the Optional Purchase Date identified by the Servicer in its notice of exercise
of such purchase option (the "Redemption Date"). The purchase price for the COLT
200_-_ Secured Notes shall be equal to the applicable Redemption Price. The
Servicer shall furnish the COLT Indenture Trustee and the COLT 200_-_ Secured
Noteholders notice of such optional repurchase pursuant to Section 6.0 of the
COLT Servicing Agreement and of the redemption of the COLT 200_-_ Secured Notes,
which notice shall identify the place where the COLT 200_-_ Secured Notes are to
be surrendered for payment of the Redemption Price. The COLT Indenture Trustee
(based on such notice) shall withdraw from the COLT Collection Account and pay
to the COLT 200_-_ Secured Noteholders on the Redemption Date, the aggregate
Redemption Price of the COLT 200_-_ Secured Notes.
SECTION 10.2 COLT 200_-_ Secured Notes Payable on Redemption Date. The
COLT 200_-_ Secured Notes shall, following notice of redemption as required by
Section 6.1 of the COLT Servicing Agreement, on the Redemption Date cease to be
Outstanding for purposes of this COLT Indenture and shall thereafter represent
only the right to receive the applicable Redemption Price and (unless COLT shall
default in the payment of such Redemption Price) no interest shall accrue on
such Redemption Price for any period after the date to which accrued interest is
calculated for purposes of calculating such Redemption Price.
ARTICLE XI
MISCELLANEOUS
SECTION 11.1 Compliance Certificates and Opinions, Etc.
(a) Upon any application or request by COLT to the COLT Indenture
Trustee to take any action under any provision of this COLT Indenture, COLT
shall furnish to the COLT
49
Indenture Trustee: (i) an Officer's Certificate stating that all conditions
precedent, if any, provided for in this COLT Indenture relating to the proposed
action have been complied with, (ii) an Opinion of Counsel stating that in the
opinion of such counsel all such conditions precedent, if any, have been
complied with and (iii) (if required by the TIA) an Independent Certificate from
a firm of certified public accountants meeting the applicable requirements of
this Section 11.1, except that, in the case of any such application or request
as to which the furnishing of such documents is specifically required by any
provision of this COLT Indenture, no additional certificate or opinion need be
furnished. Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this COLT Indenture shall include:
(i) a statement that each signatory of such certificate or
opinion has read or has caused to be read such covenant or condition and
the definitions herein relating thereto;
(ii) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(iii) a statement that, in the judgment of each such signatory,
such signatory has made such examination or investigation as is necessary
to enable such signatory to express an informed opinion as to whether or
not such covenant or condition has been complied with; and
(iv) a statement as to whether, in the opinion of each such
signatory, such condition or covenant has been complied with.
(b) (i) Prior to the deposit with the COLT Indenture Trustee of any
COLT 200_-_ Trust Estate or other property or securities that is to be made the
basis for the release of any property or securities subject to the lien of this
COLT Indenture, COLT shall, in addition to any obligation imposed in Section
11.1(a) or elsewhere in this COLT Indenture, furnish to the COLT Indenture
Trustee an Officer's Certificate certifying or stating the opinion of each
Person signing such certificate as to the fair value (within 90 days of such
deposit) to COLT of the COLT 200_-_ Trust Estate or other property or securities
to be so deposited.
(ii) Whenever COLT is required to furnish to the COLT Indenture
Trustee an Officers' Certificate certifying or stating the opinion of any
signer thereof as to the matters described in clause (b)(i) above, COLT
shall also deliver to the COLT Indenture Trustee an Independent Certificate
as to the same matters, if the fair value to COLT of the securities to be
so deposited and of all other such securities made the basis of any such
withdrawal or release since the commencement of the then current fiscal
year of COLT, as set forth in the certificates delivered pursuant to clause
(b)(i) above and this clause (b)(ii), is 10% or more of the Outstanding
Amount of the COLT 200_-_ Secured Notes, but such a certificate need not be
furnished with respect to any securities so deposited, if the fair value
thereof to COLT as set forth in the related Officers' Certificate is less
than $25,000 or less than one percent of the Outstanding Amount of the COLT
200_-_ Secured Notes.
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(iii) Other than with respect to the release of any
Administrative Lease Assets, Warranty Lease Assets, Liquidating Lease Asset
or the sale or other disposition of any related Vehicle in accordance with
the COLT Servicing Agreement, whenever any property or securities are to be
released from the lien of this COLT Indenture, COLT shall also furnish to
the COLT Indenture Trustee an Officer's Certificate certifying or stating
the opinion of each Person signing such certificate as to the fair value
(within 90 days of such release) of the property or securities proposed to
be released and stating that in the opinion of such Person the proposed
release will not impair the security under this COLT Indenture in
contravention of the provisions hereof.
(iv) Whenever COLT is required to furnish to the COLT Indenture
Trustee an Officer's Certificate certifying or stating the opinion of any
signatory thereof as to the matters described in clause (b)(iii) above,
COLT shall also furnish to the COLT Indenture Trustee an Independent
Certificate as to the same matters if the fair value of the property or
securities and of all other property, other than Administrative Lease
Assets, Warranty Lease Assets, Liquidating Lease Asset or the sale of any
other Vehicle in accordance with the COLT Servicing Agreement, or
securities released from the lien of this COLT Indenture since the
commencement of the then current calendar year, as set forth in the
certificates required by clause (b)(iii) above and this clause (b)(iv),
equals 10% or more of the Outstanding Amount of the COLT 200_-_ Secured
Notes, but such certificate need not be furnished in the case of any
release of property or securities if the fair value thereof as set forth in
the related Officer's Certificate is less than $25,000 or less than one
percent of the Outstanding Amount of the COLT 200_-_ Secured Notes.
(v) Notwithstanding Section 2.10 or any other provision of this
Section 11.1, COLT may (A) collect, liquidate, sell or otherwise dispose of
Series 200_-_ Lease Assets proceeds of both as and to the extent permitted
or required by the COLT 200_-_ Basic Documents, (B) make cash payments out
of any Designated Accounts as and to the extent permitted or required by
the COLT 200_-_ Basic Documents and (C) take any other action not
inconsistent with the TIA.
SECTION 11.2 Form of Documents Delivered to COLT Indenture
Trustee.
(a) In any case where several matters are required to be certified by,
or covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
(b) Any certificate or opinion of an Authorized Officer of COLT may be
based, insofar as it relates to legal matters, upon a certificate or opinion of,
or representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to the matters upon which his certificate or opinion is based are
erroneous. Any such certificate of an Authorized Officer or Opinion of Counsel
may be based, insofar as it relates to factual matters, upon a certificate or
opinion of, or representations by, an officer or officers of the Servicer, the
Seller or COLT, stating that the
51
information with respect to such factual matters is in the possession of the
Servicer, the Seller or COLT, unless such counsel knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to such matters are erroneous.
(c) Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this COLT Indenture, they may, but need not, be consolidated
and form one instrument.
(d) Whenever in this COLT Indenture, in connection with any
application or certificate or report to the COLT Indenture Trustee, it is
provided that COLT shall deliver any document as a condition of the granting of
such application, or as evidence of COLT's compliance with any term hereof, it
is intended that the truth and accuracy, at the time of the granting of such
application or at the effective date of such certificate or report (as the case
may be), of the facts and opinions stated in such document shall in such case be
conditions precedent to the right of COLT to have such application granted or to
the sufficiency of such certificate or report. The foregoing shall not, however,
be construed to affect the COLT Indenture Trustee's right to rely upon the truth
and accuracy of any statement or opinion contained in any such document as
provided in Article VI.
SECTION 11.3 Acts of COLT 200_-_ Secured Noteholders.
(a) Any request, demand, authorization, direction, notice, consent,
waiver or other action provided by this COLT Indenture to be given or taken by
COLT 200_-_ Secured Noteholders may be embodied in and evidenced by one or more
instruments of substantially similar tenor signed by such COLT 200_-_ Secured
Noteholders in person or by agents duly appointed in writing and shall be
subject to Section 5.11; and except as herein otherwise expressly provided such
action shall become effective when such instrument or instruments are delivered
to the COLT Indenture Trustee, and, where it is hereby expressly required, to
COLT. Such instrument or instruments (and the action embodied therein and
evidenced thereby) are herein sometimes referred to as the "Act" of the COLT
200_-_ Secured Noteholders, as applicable, signing such instrument or
instruments. Proof of execution of any such instrument or of a writing
appointing any such agent shall be sufficient for any purpose of this COLT
Indenture and (subject to Section 6.1) conclusive in favor of the COLT Indenture
Trustee and COLT, if made in the manner provided in this Section 11.3.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved in any manner that the COLT Indenture
Trustee deems sufficient.
(c) The ownership of COLT 200_-_ Secured Notes shall be proved by the
Secured Note Register.
(d) Any request, demand, authorization, direction, notice, consent,
waiver or other action by the Holder of any COLT 200_-_ Secured Notes shall bind
the Holder of every COLT 200_-_ Secured Note issued upon the registration
thereof or in exchange therefor or in lieu thereof, in respect of anything done,
omitted or suffered to be done by the COLT Indenture Trustee or COLT in reliance
thereon, whether or not notation of such action is made upon such COLT 200_-_
Secured Note.
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SECTION 11.4 Notices, Etc., to COLT Indenture Trustee, COLT and Rating
Agencies. Any request, demand, authorization, direction, notice, consent, waiver
or Act of COLT 200_-_ Secured Noteholders or other documents provided or
permitted by this COLT Indenture to be made upon, given or furnished to or filed
with:
(a) the COLT Indenture Trustee by any COLT 200_-_ Secured Noteholder
or by COLT shall be made, given, furnished or filed in writing to or with the
COLT Indenture Trustee at its Corporate Trust Office, or
(b) COLT by the COLT Indenture Trustee or by any COLT 200_-_ Secured
Noteholder shall be sufficient for every purpose hereunder if in writing and
either sent by electronic facsimile transmission (with hard copy to follow via
first class mail) or mailed, by certified mail, return receipt requested, or by
overnight mail to COLT and the COLT Owner Trustee each at the address specified
in Part III of Exhibit I to the Declaration.
COLT shall promptly transmit any notice received by it from the COLT
200_-_ Secured Noteholders to the COLT Indenture Trustee and the COLT Indenture
Trustee shall likewise promptly transmit any notice received by it from the COLT
200_-_ Secured Noteholders to COLT.
(c) Notices required to be given to the Rating Agencies by COLT, the
COLT Indenture Trustee or the COLT Owner Trustee shall be delivered as specified
in Part III to Exhibit A to the COLT Servicing Agreement.
SECTION 11.5 Notices to COLT 200_-_ Secured Noteholders; Waiver.
(a) Where this COLT Indenture provides for notice to the COLT 200_-_
Secured Noteholders of any condition or event, such notice shall be sufficiently
given (unless otherwise herein expressly provided) if it is in writing and
mailed, first-class, postage prepaid to each COLT 200_-_ Secured Noteholder
affected by such event, at such Person's address as it appears on the Secured
Note Register, not later than the latest date, and not earlier than the earliest
date, prescribed for the giving of such notice. If notice to COLT 200_-_ Secured
Noteholders 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 Noteholder
shall affect the sufficiency of such notice with respect to other 200_-_ Secured
Noteholders, and any notice that is mailed in the manner herein provided shall
conclusively be presumed to have been duly given regardless of whether such
notice is in fact actually received.
(b) Where this COLT Indenture provides for notice in any manner, such
notice may be waived in writing by any Person entitled to receive such notice,
either before or after the event, and such waiver shall be the equivalent of
such notice. Waivers of notice by COLT 200_-_ Secured Noteholders shall be filed
with the COLT Indenture Trustee but such filing shall not be a condition
precedent to the validity of any action taken in reliance upon such a waiver.
(c) In case, by reason of the suspension of regular mail service as a
result of a strike, work stoppage or similar activity, it shall be impractical
to mail notice of any event of COLT 200_-_ Secured Noteholders when such notice
is required to be given pursuant to any
53
provision of this COLT Indenture, then any manner of giving such notice as shall
be satisfactory to the COLT Indenture Trustee shall be deemed to be a sufficient
giving of such notice.
(d) Where this COLT Indenture provides for notice to the Rating
Agencies, failure to give such notice shall not affect any other rights or
obligations created hereunder, and shall not under any circumstance constitute
an Event of Default.
SECTION 11.6 Alternate Payment and Notice Provisions.
Notwithstanding any provision of this COLT Indenture or any of the
COLT 200_-_ Secured Notes to the contrary, COLT may enter into any agreement
with any Holder of a COLT 200_-_ Secured Note providing for a method of payment,
or notice by the COLT Indenture Trustee or any Paying Agent to such Holder, that
is different from the methods provided for in this COLT Indenture for such
payments or notices. COLT shall furnish to the COLT Indenture Trustee a copy of
each such agreement and the COLT Indenture Trustee shall cause payments to be
made and notices to be given in accordance with such agreements at the expense
of COLT.
SECTION 11.7 Conflict with Trust Indenture Act.
(a) If any provision hereof limits, qualifies or conflicts with
another provision hereof that is required to be included in this COLT Indenture
by any of the provisions of the TIA, such required provision shall control.
(b) The provisions of TIA Sections 310 through 317 that impose duties
on any Person (including the provisions automatically deemed included herein
unless expressly excluded by this COLT Indenture) are a part of and govern this
COLT Indenture, whether or not physically contained herein.
SECTION 11.8 Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of Contents are
for convenience only and shall not affect the construction hereof.
SECTION 11.9 Successors and Assigns.
(a) All covenants and agreements in this COLT Indenture and the COLT
200_-_ Secured Notes by COLT shall bind its successors and assigns, whether so
expressed or not.
(b) All covenants and agreements of the COLT Indenture Trustee in this
COLT Indenture shall bind its successors and assigns, whether so expressed or
not.
SECTION 11.10 Severability.
In case any provision in this COLT Indenture or in the COLT 200_-_
Secured Notes shall be invalid, illegal or unenforceable, the validity, legality
and enforceability of the remaining provisions shall not in any way be affected
or impaired thereby.
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SECTION 11.11 Benefits of COLT Indenture.
Nothing in this COLT Indenture or in the COLT 200_-_ Secured Notes,
express or implied, shall give to any Person, other than the parties hereto and
their successors hereunder, and to the extent expressly provided herein, the
COLT 200_-_ Secured Noteholders and any other Person with an ownership interest
in any part of the COLT 200_-_ Trust Estate, any benefit or any legal or
equitable right, remedy or claim under this COLT Indenture.
SECTION 11.12 Legal Holidays.
If the date on which any payment is due shall not be a Business Day,
then (notwithstanding any other provision of the COLT 200_-_ Secured Notes or
this COLT Indenture) payment need not be made on such date, but may be made on
the next succeeding Business Day with the same force and effect as if made on
the date on which nominally due, and no interest shall accrue for the period
from and after any such nominal date.
SECTION 11.13 GOVERNING LAW.
THIS COLT INDENTURE 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 COLT INDENTURE SHALL
BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
SECTION 11.14 Counterparts.
This COLT Indenture may be executed in any number of counterparts,
each of which so executed shall be deemed to be an original, but all such
counterparts shall together constitute but one and the same instrument.
SECTION 11.15 Recording of COLT Indenture.
If this COLT Indenture is subject to recording in any appropriate
public recording offices, such recording is to be effected by COLT and at its
expense accompanied by an Opinion of Counsel (which may be counsel to the COLT
Indenture Trustee or any other counsel reasonably acceptable to the COLT
Indenture Trustee) to the effect that such recording is necessary either for the
protection of the Secured Noteholders or any other Person secured hereunder or
for the enforcement of any right or remedy granted to the COLT Indenture Trustee
under this COLT Indenture.
SECTION 11.16 No Recourse.
(a) Each COLT 200_-_ Secured Noteholder agrees by acceptance of a COLT
200_-_ Secured Note (or interest therein) that no recourse may be taken,
directly or indirectly, with respect to the obligations of COLT, the COLT Owner
Trustee or the COLT Indenture
55
Trustee on the COLT 200_-_ Secured Notes or under this COLT Indenture or any
certificate or other writing delivered in connection herewith or therewith,
against:
(i) the COLT Indenture Trustee or the COLT Owner Trustee in its
individual capacity;
(ii) any owner of a beneficial interest in COLT;
(iii) any partner, owner, beneficiary, agent, officer, director
or employee of the COLT Indenture Trustee or the COLT Owner Trustee in its
individual capacity, any holder of a beneficial interest in COLT, the COLT
Owner Trustee or the COLT Indenture Trustee or of any successor or assign
of the COLT Indenture Trustee or the COLT Owner Trustee in its individual
capacity (or any of their successors or assigns), except as any such Person
may have expressly agreed (it being understood that the COLT Indenture
Trustee and the COLT Owner Trustee have no such obligation in their
individual capacity) and except that any such partner, owner or beneficiary
shall be fully liable, to the extent provided by applicable law, for any
unpaid consideration for stock, unpaid capital contribution or failure to
pay any instalment or call owing to such entity. For all purposes of this
COLT Indenture, in the performance of any duties or obligations of COLT
hereunder, the COLT Owner Trustee shall be subject to, and entitled to the
benefits of, the terms and provisions of Articles IV, V and VI of the
Declaration; or
(iv) COLT or any portion of the assets of COLT other than with
respect to the COLT 200_-_ Trust Estate.
(b) Except as expressly provided in the COLT 200_-_ Basic Documents,
neither the Seller, the Servicer, the COLT Indenture Trustee nor the COLT Owner
Trustee in their respective individual capacities, any owner of a beneficial
interest in COLT, nor any of their respective partners, owners, beneficiaries,
agents, officers, directors, employees or successors or assigns, shall be
personally liable for, nor shall recourse be had to any of them for, the payment
of principal of or interest on, or performance of, or omission to perform, any
of the covenants, obligations or indemnifications contained in the COLT 200_-_
Secured Notes or this COLT Indenture.
SECTION 11.17 No Petition.
Each of the COLT Indenture Trustee by entering this COLT Indenture and
each Holder of a COLT 200_-_ Secured Note, by its acceptance thereof, hereby
covenants and agrees that prior to the date which is one year and one day after
the payment in full of all COLT 200_-_ Secured Notes, it shall not institute
against, or join any other Person in instituting against, COLT any bankruptcy,
reorganization, arrangement, insolvency or liquidation proceedings or other
similar proceeding under the laws of the United States or any state of the
United States. This Section 11.17 shall survive the termination of this COLT
Indenture.
SECTION 11.18 Inspection.
COLT agrees that, on reasonable prior notice, it shall permit any
representative of the COLT Indenture Trustee, during COLT's normal business
hours, to examine all the books of
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account, records, reports and other papers of COLT, to make copies and extracts
therefrom, to cause such books to be audited by Independent certified public
accountants, and to discuss COLT's affairs, finances and accounts with COLT's
officers, employees and Independent certified public accountants, all at such
reasonable times and as often as may be reasonably requested. The COLT Indenture
Trustee shall and shall cause its representatives to hold in confidence all such
information except to the extent disclosure may be required by law (and all
reasonable applications for confidential treatment are unavailing) and except to
the extent that the COLT Indenture Trustee may reasonably determine that such
disclosure is consistent with its obligations hereunder.
SECTION 11.19 Indemnification by and Reimbursement of the Servicer.
The COLT Indenture Trustee acknowledges and agrees to reimburse (i) the Servicer
and its directors, officers, employees and agents in accordance with the COLT
Servicing Agreement and (ii) the Seller and its directors, officers, employees
and agents in accordance with the COLT Servicing Agreement. The COLT Indenture
Trustee further acknowledges and accepts the conditions and limitations with
respect to the Servicer's obligation to indemnify, defend and hold the COLT
Indenture Trustee harmless as set forth in the COLT Servicing Agreement for any
Series.
SECTION 11.20 Series Liabilities. It is expressly understood and
agreed by each COLT 200_-_ Secured Noteholder, by its acceptance of its COLT
200_-_ Secured Note, 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 each Series Portfolio and the COLT 200_-_ Trust Estate
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 each Series of Secured Notes, shall be
enforceable against the related Series Portfolio of COLT only, and not against
the assets of COLT generally or any other Series Portfolio securing any other
Series of Secured Notes.
SECTION 11.21 Subordination. COLT and each Holder of a COLT 200_-_
Secured Note, by accepting its COLT 200_-_ Secured Note, acknowledges and agrees
that such COLT 200_-_ Secured Note represents indebtedness of COLT and does not
represent an interest in any other assets of COLT allocated to any other Series
Portfolio (including by virtue of any deficiency claim in respect of obligations
not paid or otherwise satisfied from the COLT 200_-_ Trust Estate and proceeds
thereof). In furtherance of and not in derogation of the foregoing, to the
extent COLT enters into other securitization transactions, including in
connection with the issuance of other Series of Secured Notes, each of COLT and
each COLT 200_-_ Secured Noteholder, by accepting its COLT 200_-_ Secured Note,
acknowledges and agrees that it shall have no right, title or interest in or to
any assets (or interests therein) (other than the COLT 200_-_ Trust Estate)
conveyed or purported to be conveyed or pledged by COLT to another Person or
Persons in connection therewith (whether by way of a sale, capital contribution
or by virtue of the granting of a lien) ("Other Assets"). To the extent that,
notwithstanding the agreements and provisions contained in the preceding
sentences of this subsection, COLT or any COLT 200_-_ Secured Noteholder either
(a) asserts an interest or claim to, or benefit from, Other Assets, whether
asserted against or through the COLT Indenture Trustee or any other Person, or
(b) is deemed to have any such interest, claim or benefit in or from Other
Assets, whether by operation of law, legal process, pursuant to applicable
provisions of insolvency laws or otherwise (including by virtue of Section
1111(b) of the federal Bankruptcy Code or any successor
57
provision having similar effect under the Bankruptcy Code), and whether deemed
asserted against or through the COLT Indenture Trustee or any other Person, then
COLT and each COLT 200_-_ Secured Noteholder, by accepting its COLT 200_-_
Secured Note, further acknowledges and agrees that any such interest, claim or
benefit in or from Other Assets is and shall be expressly subordinated to the
indefeasible payment in full of all obligations and liabilities of COLT which,
under the terms of the relevant documents relating to the securitization of such
Other Assets, are entitled to be paid from, entitled to the benefits of, or
otherwise secured by such Other Assets (whether or not any such entitlement or
security interest is legally perfected or otherwise entitled to a priority of
distribution or application under applicable law, including insolvency laws, and
whether asserted against the COLT 200_-_ Secured Noteholder), including the
payment of post-petition interest on such other obligations and liabilities.
This subordination agreement shall be deemed a subordination agreement within
the meaning of Section 510(a) of the Bankruptcy Code. Each COLT 200_-_ Secured
Noteholder further acknowledges and agrees that no adequate remedy at law exists
for a breach of this Section 11.21 and the terms of this Section 11.21 may be
enforced by an action for specific performance. The provisions of this Section
11.21 shall be for the third party benefit of those entitled to rely thereon and
shall survive the termination of this COLT Indenture.
58
IN WITNESS WHEREOF, COLT and the COLT Indenture Trustee have caused
this COLT Indenture to be duly executed by their respective officers, thereunto
duly authorized, all as of the day and year first above written.
CENTRAL ORIGINATING LEASE TRUST
By: _______________________,
not in its individual capacity but
solely as COLT Owner Trustee
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
_________, as COLT Indenture Trustee
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
S-1 COLT 200_-_Indenture
EXHIBIT A TO THE
COLT 200_-_ INDENTURE
FORM OF COLT 200_-_ SECURED NOTE
Date of Issuance: ___________________
Initial Secured Note Principal Balance: $__________________
Secured Note Rate: _____ % per annum
State of Lease Origination: ___________________
Aggregate Initial ABS Value of All
Related Series 200_-_ Lease Assets: ___________________
Central Originating Lease Trust, a Delaware statutory trust ("COLT"), for
value received, hereby promises to pay on each Payment Date to _________, not in
its individual capacity but solely as COLT Indenture Trustee, as pledgee of
CAPITAL AUTO RECEIVABLES ASSET TRUST 200_-_, the sum of (x) the Secured Note
Interest Distributable Amount due on such COLT 200_-_ Secured Note on such
Payment Date, plus (y) the holder of this COLT 200_-_ Secured Note's portion of
the aggregate amount payable on such Payment Date in respect of principal on the
COLT 200_-_ Secured Notes pursuant to Sections 2.5(b) and 3.1 of the COLT
Indenture (as defined below) pro rata based on the Secured Note Principal
Balance of each such COLT 200_-_ Secured Note. The principal of this COLT 200_-_
Secured Note shall be due and payable in full on the Final Maturity Date, unless
an optional redemption of the COLT 200_-_ Secured Notes has occurred pursuant to
Section 10.1 of the COLT Indenture in which case such unpaid principal shall be
due on the Redemption Date.
Pursuant to the COLT Indenture, dated as of ___, 200_ (as amended, modified
or otherwise supplemented from time to time, the "COLT Indenture"), between COLT
and _________, a national banking association, as COLT indenture trustee (in its
capacity as COLT indenture trustee and not its individual capacity, the "COLT
Indenture Trustee"), COLT grants (x) to the COLT Indenture Trustee on behalf of
the COLT 200_-_ Secured Noteholders a security interest in the COLT 200_-_
Collateral (other than the Direct COLT Pledge) to the extent set forth therein,
and (y) to each COLT 200_-_ Secured Noteholder, 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
any Vehicle related to the Series 200_-_ Lease Assets (and not merely a
beneficial interest in VAULT representing an interest in the legal title to such
Vehicle), a security interest in all of COLT's rights in such Vehicle. In
addition, pursuant to the VAULT Pledge and Security Agreement, dated as of ___,
200_, by Vehicle Asset Universal Leasing Trust ("VAULT") and acknowledged and
agreed by COLT, General Motors Acceptance Corporation, Capital Auto Receivables,
Inc., and Capital Auto Receivables Asset Trust 200_-_, VAULT pledges to each
COLT 200_-_ Secured Noteholder a security interest in all of VAULT's legal title
to the Vehicles related to the Series 200_-_ Lease Assets to the extent set
forth therein.
The sole source for payment of this COLT 200_-_ Secured Note and all other
COLT 200_-_ Secured Notes is limited to the COLT 200_-_ Trust Estate and such
other funds as COLT may from time to time pledge to secure the payment of the
COLT 200_-_ Secured Notes; it
A-1
being understood that any other assets of COLT included in any other Series
Portfolio or the Residual Interest shall not be available to make payments on
the COLT 200_-_ Secured Notes.
Capitalized terms not otherwise defined herein shall have the meanings set
forth in the COLT Indenture.
A-2
This COLT 200_-_ Secured Note is a valid and binding obligation of COLT.
CENTRAL ORIGINATING LEASE TRUST
By: _________________________,
not in its individual capacity, but
solely as COLT Owner Trustee
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
Dated: , 200
---------- -
A-3
COLT INDENTURE TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the COLT 200_-_ Secured Notes designed above and referred to in
the within-mentioned COLT Indenture.
_________, not in its individual
capacity but solely as COLT Indenture
Trustee
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
A-4
Payment hereunder shall be made to the holder of this COLT 200_-_ Secured
Note in accordance with the COLT Indenture and the COLT Servicing Agreement.
Each COLT 200_-_ Noteholder or Note Owner will be deemed to represent and
warrant that either (A) it is not (i) an "employee benefit plan" (as defined in
Section 3(3) of the United States Employee Retirement Income Security Act of
1974, as amended ("ERISA"), that is subject to the provisions of Title I of
ERISA, (ii) a "plan" as described in Section 4975(e)(1) of the Internal Revenue
Code of 1974, as amended (the "Code") or (iii) an entity whose underlying assets
include plan assets by reason of a plan's investment in the entity or (B) the
purchase, holding and disposition of the COLT 200_-_ Note will not result in a
non-exempt prohibited transaction under Section 406(a) of ERISA or Section 4975
of the Code.
Pursuant to Section 11.17 of the COLT Indenture, the COLT Indenture Trustee
and each holder of this COLT 200_-_ Secured Note, by its acceptance of this COLT
200_-_ Secured Note, covenants and agrees that it shall not, prior to the date
which is one year and one day after the payment in full of all COLT 200_-_
Secured Notes issued by COLT, acquiesce, petition or otherwise invoke or cause
COLT to invoke the process of any court or governmental authority for the
purpose of commencing or sustaining a case against COLT under any federal or
state bankruptcy, insolvency, reorganization or similar law or appointing a
receiver, liquidator, assignee, trustee, custodian, sequestrator or other
similar official of COLT or any substantial part of its property, or ordering
the winding up or liquidation of the affairs of COLT.
The obligations of COLT under this COLT 200_-_ Secured Note shall be
non-recourse to COLT and any other asset of COLT or any COLT 200_-_
Certificateholder except to the extent described herein.
This COLT 200_-_ Secured Note shall be effective when executed,
authenticated and delivered in accordance with the COLT Indenture.
THIS COLT 200_-_ SECURED NOTE SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE DOMESTIC LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO
THE PRINCIPLES OF CONFLICTS OF LAWS THEREOF OR OF ANY OTHER JURISDICTION (EXCEPT
SECTIONS 5-1401 AND 5-1402 OF THE NEW YORK GENERAL OBLIGATIONS LAW), AND THE
OBLIGATIONS, RIGHTS AND REMEDIES OF THE HEREOF UNDER THIS COLT 200_-_ SECURED
NOTE SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
COLT agrees, and by acquiring this COLT 200_-_ Secured Note or interest
therein the holder of this COLT 200_-_ Secured Note or interest therein agrees,
to treat this COLT 200_-_ Secured Note as indebtedness for federal income tax,
state and local income and franchise tax, Michigan single business tax, and any
other taxes imposed upon, measured by or based upon gross or net income.
It is expressly understood and agreed by the holder of this COLT 200_-_
Secured Note that (a) the COLT Indenture and this COLT 200_-_ Secured Note are
executed and delivered by ____________, not individually or personally but
solely as COLT Owner Trustee, (b) each of the representations, undertakings and
agreements herein and therein made on the part of COLT is
A-5
made and intended not as a personal representation, undertaking or agreement by
_____________ but is made and intended for the purpose of binding only COLT, and
(c) under no circumstances shall ________________ be personally liable for the
payment of any indebtedness or expenses of COLT or be liable for the breach or
failure of any obligation, representation, warranty or covenant made or
undertaken by COLT under the COLT Indenture and this COLT 200_-_ Secured Note.
A-6
EXHIBIT B TO THE
COLT 200_-_ INDENTURE
FORM OF CERTIFICATION
Re: the ______________________________ dated as of ____________________ (the
"Agreement"), among _________________________________________________________.
I, ______________________________, the ______________________________ of
______________________________ (the "Company"), certify to Central Originating
Lease Trust ("COLT") and Capital Auto Receivables, Inc. ("XXXX"), and its
officers, with the knowledge and intent that they will rely upon this
certification, that:
(1) I have reviewed the report on assessment of the Company's compliance
provided in accordance with Rules 13a-18 and 15d-18 under the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and Item 1122 of
Regulation AB (the "Servicing Assessment"), and the registered public accounting
firm's attestation report provided in accordance with Rules 13a-18 and 15d-18
under the Exchange Act and Section 1122(b) of Regulation AB (the "Attestation
Report") that were delivered by the Company to XXXX, XXXX, the COLT Owner
Trustee or the CARAT Owner Trustee pursuant to the Agreement (collectively, the
"Company Information");
(2) To the best of my knowledge, the Company Information, taken as a whole,
does not contain any untrue statement of a material fact or omit to state a
material fact necessary to make the statements made, in the light of the
circumstances under which such statements were made, not misleading with respect
to the period of time covered by the Company Information; and
(3) To the best of my knowledge, all of the Company Information required to
be provided by the Company under the Agreement has been provided to XXXX, XXXX,
the COLT Owner Trustee or the CARAT Owner Trustee.
Dated:
---------------------------------
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
B-1
