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EXHIBIT 3.2
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AMENDED AND RESTATED DECLARATION OF TRUST
dated as of March 15, 1996
BANKERS TRUST (DELAWARE)
As Owner Trustee
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TABLE OF CONTENTS
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ARTICLE I
DEFINITIONS AND INCORPORATION BY REFERENCE
1.1 Definitions........................................................ 1
ARTICLE II
ORGANIZATION
2.1 Name............................................................... 7
2.2 Office............................................................. 7
2.3 Purposes and Powers................................................ 7
2.4 Appointment of Owner Trustee....................................... 8
2.5 Declaration of Trust............................................... 8
2.6 Liability of Certificateholders.................................... 8
2.7 Title to Trust Property............................................ 10
2.8 Situs of Trust..................................................... 10
ARTICLE III
THE CERTIFICATES
3.1 Form of the Certificates........................................... 10
3.2 Issuance of the Certificates....................................... 11
3.3 Registration; Registration of Transfer and
Exchange of Certificates........................................... 11
3.4 Mutilated, Destroyed, Lost or Stolen
Certificates....................................................... 13
3.5 Persons Deemed Certificateholders.................................. 14
3.6 Access to List of Certificateholders' Names
and Addresses...................................................... 14
3.7 Maintenance of Corporate Trust Office.............................. 14
ARTICLE IV
ACTIONS BY OWNER TRUSTEE
4.1 Prior Notice to Certificateholders with
Respect to Certain Matters......................................... 15
4.2 Action by Certificateholders with Respect
to Certain Matters................................................. 15
4.3 Action by Certificateholders with Respect
to Bankruptcy...................................................... 15
4.4 Restrictions on Certificateholders' Power.......................... 16
4.5 Control by Certificateholders...................................... 16
4.6 Application of Trust Funds......................................... 16
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TABLE OF CONTENTS
(CONTINUED)
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ARTICLE V
THE OWNER TRUSTEE
5.1 Duties of Owner Trustee............................................ 16
5.2 Rights of Owner Trustee............................................ 17
5.3 Acceptance of Trusts and Duties.................................... 18
5.4 Action upon Instruction by
Certificateholders................................................. 20
5.5 Furnishing of Documents............................................ 21
5.6 Representations and Warranties of Owner
Trustee............................................................ 21
5.7 Reliance; Advice of Counsel........................................ 22
5.8 Owner Trustee May Own Certificates and
Secured Notes...................................................... 23
5.9 Compensation and Indemnity......................................... 23
5.10 Replacement of Owner Trustee....................................... 23
5.11 Merger or Consolidation of Owner Trustee........................... 24
5.12 Appointment of Co-Trustee or Separate
Trustee............................................................ 25
5.13 Eligibility Requirements for Owner Trustee......................... 27
ARTICLE VI
TERMINATION OF DECLARATION
6.1 Termination of Declaration......................................... 27
6.2 Dissolution upon Bankruptcy of CORRAL, L.P......................... 28
6.3 Distribution of Liquidation Proceeds............................... 29
ARTICLE VII
MISCELLANEOUS
7.1 No Legal Title to Owner Trust Estate............................... 29
7.2 Limitations on Rights of Others.................................... 30
7.3 Notices............................................................ 30
7.4 Severability....................................................... 31
7.5 Counterparts....................................................... 31
7.6 Successors and Assigns............................................. 31
7.7 No Petition Covenant............................................... 31
7.8 No Recourse........................................................ 31
7.9 Headings........................................................... 31
7.10 Governing Law...................................................... 32
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EXHIBITS
Exhibit A Form of Certificate of Trust
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AMENDED AND RESTATED DECLARATION OF TRUST, dated as of March
15, 1996, by BANKERS TRUST (DELAWARE), a Delaware banking corporation, acting
hereunder not in its individual capacity but solely as owner trustee (the "Owner
Trustee"), and acknowledged, accepted and agreed to by CORRAL, L.P., a Delaware
limited partnership, as a certificateholder with respect to the Trust referred
to below and as an obligor with respect to certain terms hereof (together with
any successor in interest as provided in Section 6.2, "CORRAL, L.P.").
The Owner Trustee hereby agrees to hold all assets and funds
in trust transferred to it hereunder as follows:
ARTICLE I
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.1 Definitions. All references herein to "the Declaration" or
"this Declaration" are to this Amended and Restated Declaration of Trust, and
all references herein to Articles, Sections, subsections, Schedules and Exhibits
are to Articles, Sections, subsections, Schedules and Exhibits of this
Declaration, unless otherwise specified. Unless otherwise defined herein,
capitalized terms used herein shall have the meanings set forth below in this
Section 1.1:
"Affiliate": with respect to any specified Person, any other
Person which, directly or indirectly, is in control of, is controlled by, or is
under common control with, such specified Person. For purposes of this
definition, a specified Person shall be deemed to be "controlled by" another
Person if such other Person possesses, directly or indirectly, the power to
direct or cause the direction of the management and policies of such specified
Person, whether by contract or otherwise.
"Basic Documents": this Declaration and all other agreements
entered into by or in connection with the Trust.
"Business Day": a day other than a Saturday, Sunday or other
day on which commercial banks in Wilmington, Delaware, New York, New York or
Chicago, Illinois are authorized or required by law to close.
"Business Trust Statute": Chapter 38 of Title 12 of the
Delaware Code, 12 Del. Code Section 3801 et seq., as the same may be amended
from time to time.
"Capital Contribution": with respect to any Certificate, the
amount of cash required to be contributed to the Trust by the related
Certificateholder pursuant to a Certificateholder Agreement.
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"Certificate Account": the account maintained by the Trust for
each Certificateholder as provided in a Certificateholder Agreement.
"Certificate Balance": as to any Certificate, the aggregate
amount of all Capital Contributions made with respect to such Certificate, less
the aggregate amount of Certificate Balance that has been redeemed pursuant to
the terms of such Certificate and a Certificateholder Agreement.
"Certificate of Trust": the Certificate of Trust pursuant to
which the Trust was established on the Certificate Closing Date, substantially
in the form attached as Exhibit A to the Declaration of Trust.
"Certificate Register": the register of Certificates and
Certificateholders specified in Section 3.2 of the Declaration of Trust.
"Certificate Registrar": the registrar at any time of the
Certificate Register, appointed pursuant to Section 3.2(a) of the Declaration of
Trust.
"Certificate Distribution Subaccount": as defined in a
Servicing Agreement.
"Certificate Investment Subaccount": as defined in a Servicing
Agreement.
"Certificateholder" or "Holder": a Person in whose name a
Certificate is registered from time to time pursuant to the terms of the
Declaration of Trust.
"Certificateholder Agreement": an agreement entered into
between the Owner Trustee and the Certificateholders of the Trust, as the same
may be amended, supplemented or otherwise modified from time to time.
"Certificate Commitment Agreement": a commitment entered into
between the Owner Trustee on behalf of the Trust and each Certificateholder, as
the same may from time to time be amended, supplemented or otherwise modified.
"Certificates": the certificates of beneficial interest in the
Trust.
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"COLT": the Trust created by the Declaration of Trust and
known as the "Central Originating Lease Trust."
"Corporate Trust Office": the principal office at which at any
particular time the corporate trust business of the Owner Trustee is
administered, which office is initially located at 1001 Jefferson Street, Suite
550, Wilmington, Delaware 19801.
"CORRAL, L.P.": as defined in the preamble to the Declaration
of Trust.
"Custodian Agreement": a custodian agreement from time to time
in effect between a custodian and the Owner Trustee, as the same may be amended,
supplemented or otherwise modified from time to time.
"Dealer": any Person that is a General Motors Corporation
franchise dealer or an affiliate of a General Motors Corporation franchise
dealer that participates in a leasing program with the Origination Agent or
COLT.
"Declaration of Trust" or "Declaration": the Amended and
Restated Declaration of Trust by Bankers Trust (Delaware), as Owner Trustee,
dated as of March 15, 1996, acknowledged, accepted and agreed to by CORRAL,
L.P., as the same may be amended, supplemented or otherwise modified from time
to time.
"GMAC": General Motors Acceptance Corporation.
"Governmental Authority": any nation or government, any
federal, state, local or other political subdivision thereof and any entity
exercising executive, legislative, judicial, regulatory or administrative
functions of government.
"Insolvency Event": with respect to a specified Person: (i)
any bankruptcy, reorganization, debt arrangement or other proceeding under any
bankruptcy or insolvency law is commenced with respect to such Person by another
Person, and remains for a period of 90 days undismissed; or (ii) the entry of an
order for relief or a decree or order by a court, agency or supervisory
authority having jurisdiction in the premises for the appointment of a trustee,
conservator, receiver or liquidator for such Person, in any insolvency,
readjustment of debt, marshalling of assets and liabilities or similar
proceedings, or for the winding-up or liquidation of such Person's affairs;
(iii) the consent by such Person to the appointment of a trustee, conservator,
receiver or liquidator in any insolvency, readjustment of debt, marshalling of
assets and liabilities or similar proceedings of or relating to such Person or
of or relating to substantially all of such Person's
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property; or (iv) such Person shall admit in writing its inability to pay its
debts generally as they become due, file a petition to take advantage of any
applicable insolvency or reorganization statute, make an assignment for the
benefit of its creditors or voluntarily suspend payment of its obligations.
"Lease Asset": a Program Lease and the Vehicle related
thereto.
"Lien": any security interest, lien, charge, pledge, equity or
encumbrance of any kind.
"Maximum Certificate Balance": with respect to any
Certificate, the amount designated as such on the face of such Certificate.
"Moody's": Moody's Investors Service, Inc. and its successors.
"Origination Agent": GMAC, as origination agent under the
Origination Agreement, or any successor origination agent under the Origination
Agreement.
"Origination Agreement": an origination agreement between COLT
and the Origination Agent, as the same may be amended, supplemented or otherwise
modified from time to time.
"Owner Trust Estate": all right, title and interest of the
Trust in, to and under the Lease Assets from time to time, all funds on deposit
from time to time in specified Program Accounts and all other property of or
interests in the Trust from time to time, including all rights, interests and
claims of the Owner Trustee and the Trust under or in connection with any Basic
Documents.
"Owner Trustee": Bankers Trust (Delaware), a Delaware banking
corporation, not in its individual capacity but solely as owner trustee, or any
successor owner trustee under the Declaration of Trust.
"Payment Date": the fifteenth day of each calendar month, or,
if such day is not a Business Day, the next succeeding Business Day, commencing
April 15, 1996.
"Person": an individual, partnership, corporation, business
trust, limited liability company, joint stock company, trust, unincorporated
association, joint venture, Governmental Authority or other entity of whatever
nature.
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"Program Account": each of the accounts established and
maintained pursuant to a Certificateholder Agreement and a Servicing Agreement.
"Program Leases": automobile and light truck leases sold,
assigned, transferred or conveyed to COLT.
"Purchaser's Letter": any representation letter required by
the Servicer pursuant to Section 3.2(b) of the Declaration of Trust and signed
by a Certificateholder, as appropriate, in the form (if any) deemed necessary by
the Servicer.
"Rating Agencies": Moody's and S&P.
"Record Date": with respect to any Payment Date, one
Business Day prior to such Payment Date.
"Responsible Officer": when used with respect to the Owner
Trustee, any officer of Bankers Trust Company acting under a valid power of
attorney from the Owner Trustee, or any officer within the Corporate Trust
Office of the Owner Trustee including any Vice President, Assistant Vice
President, Secretary, Assistant Secretary, Treasurer, Assistant Treasurer or any
other officer of the Owner Trustee customarily performing functions similar to
those performed by any of the above designated officers and also, with respect
to a particular matter, any other officer to whom such matter is referred
because of such officer's knowledge of and familiarity with the particular
subject; and when used with respect to the Servicer or any other Payee, the
chief executive officer, the president, any vice president or the
Director-Securitization of the Servicer or such Payee or, with respect to
financial matters, the chief financial officer or Vice President-Finance of the
Servicer.
"S&P": Standard & Poor's Ratings Services, a division of The
McGraw-Hill Companies, Inc., and its successors.
"Secured Notes": non-recourse secured notes of the Trust in
physical or electronic form at the request of the holder from time to time.
"Securities Act": the Securities Act of 1933, as amended.
"Servicer": GMAC, as servicer under the Servicing Agreement,
or any successor servicer under the Servicing Agreement.
"Servicing Agreement": a servicing agreement entered into
between GMAC, as servicer, the Trust and, solely with respect
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to certain sections thereof, CORRAL, L.P., as the same may be amended,
supplemented or otherwise modified from time to time.
"Servicer's Certificate": a certificate, completed by and
executed on behalf of the Servicer by a Responsible Officer, in accordance with
a Servicing Agreement.
"Supplemental Dealer Agreement": a Supplemental Dealer
Agreement entered into between GMAC and a Dealer, as the same may be amended,
supplemented or otherwise modified from time to time.
"Swap Agreement": an Interest Rate and Currency Exchange
Agreement (including the Schedule and Confirmation thereto) entered into between
COLT and a swap provider.
"Trust": Central Originating Lease Trust, a Delaware business
trust created by the Declaration of Trust, also known as "COLT."
"VAULT": Vehicle Asset Universal Leasing Trust, a statutory
business trust created under the Business Trust Statute pursuant to the VAULT
Trust Agreement.
"VAULT Trust Agreement": the First Amended and Restated Trust
and Servicing Agreement, dated as of March 15, 1996, as amended, between GMAC,
as Servicer and Initial Trust Beneficiary, and the VAULT Trustee, as the same
may be amended, supplemented or otherwise modified from time to time.
"VAULT Trustee": PNC Bank, Delaware, as trustee of VAULT under
the VAULT Trust Agreement.
"Vehicle": an automobile or light truck that is or has been
leased under a Program Lease and that is or will be titled in the name of VAULT
and with respect to which COLT is the trust beneficiary.
"Voting Interests": as of any date, the aggregate Maximum
Certificate Balance of all Certificates outstanding (but not including any
unfunded portion of the Maximum Certificate Balance of any Certificate whose
Funding Period (as defined in the Certificateholder Agreement) has expired);
provided, however, that for purposes of this definition Certificates owned by
the Trust or its Affiliates (which shall not include CORRAL, L.P. or its
Affiliates) shall be disregarded and deemed not to be outstanding, except that,
in determining whether the Owner Trustee shall be protected in relying upon any
such request, demand, authorization, direction, notice, consent or waiver, only
Certificates that the Owner Trustee knows to be so owned shall be so
disregarded.
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Certificates so owned that have been pledged in good faith may be regarded as
outstanding if the pledgee establishes to the satisfaction of the Owner Trustee
the pledgor's right so to act with respect to such Certificates and that the
pledgee is not the Trust or its Affiliates.
ARTICLE II
ORGANIZATION
SECTION 2.1 Name. The Trust created hereby shall be known as "Central
Originating Lease Trust" or "COLT," in which name the Owner Trustee may conduct
the business of the Trust, make and execute contracts and other instruments on
behalf of the Trust and sue and be sued on behalf of the Trust.
SECTION 2.2 Office. The office of the Trust shall be in care of the
Owner Trustee at the Corporate Trust Office or at such other address in Delaware
as the Owner Trustee may designate by written notice to CORRAL, L.P.
SECTION 2.3 Purposes and Powers. The purpose of the Trust is to engage
in the following activities:
(a) to acquire, manage, administer and hold the Lease Assets;
(b) to issue and sell from time to time the Certificates pursuant to
this Declaration and the Basic Documents, to request Capital Contributions with
respect to the Certificates and to sell, transfer, exchange or redeem the
Certificates as permitted hereunder and under the Basic Documents;
(c) to issue and sell from time to time Secured Notes and other
evidences of indebtedness, in each case the proceeds of which shall be used to
purchase additional Lease Assets or to repay maturing Secured Notes and to make
any other payments contemplated by a Secured Note or any other Basic Document;
(d) to make payments on the outstanding Secured Notes and Certificates
and to pay the organizational, start-up and transactional expenses of the Trust;
(e) to assign, grant, transfer, pledge, mortgage and convey the
Collateral pursuant to the terms of each Secured Note and to enter into
securitization transactions in which securities, which may include Secured Notes
or other securities backed by Secured Notes, representing an interest in Lease
Assets may be issued either directly by the Trust or through securitization
trusts or other entities;
(f) to enter into and perform its obligations under the Basic Documents
to which it is a party;
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(g) to engage in those activities, including entering into agreements,
that are necessary, suitable or convenient to accomplish the foregoing or are
incidental thereto or connected therewith; and
(h) subject to compliance with the Basic Documents, to engage in such
other activities as may be required in connection with conservation of the Owner
Trust Estate and the making of distributions to the Certificateholders and the
holders of Secured Notes from time to time.
The Trust shall not engage in any activity other than in connection with the
foregoing or other than as required or authorized by the terms of the Basic
Documents or as required by applicable law.
SECTION 2.4 Appointment of Owner Trustee. CORRAL, L.P. hereby appoints
the Owner Trustee as trustee of the Trust, effective as of the date hereof, to
have all the rights, powers and duties set forth herein.
SECTION 2.5 Declaration of Trust. The Owner Trustee hereby declares
that it shall hold the Owner Trust Estate in trust upon and subject to the
conditions set forth herein for the use and benefit of the Certificateholders,
subject to the obligations of the Trust under the Basic Documents. It is the
intention of the parties hereto that the Trust shall constitute a business trust
under the Business Trust Statute, that this Declaration and any agreement
entered into among the Certificateholders shall constitute the governing
instrument of such business trust and that the Certificates shall represent the
equity interests therein. The rights of the Certificateholders shall be
determined herein, in any agreement entered into among the Certificateholders
and in the Business Trust Statute, and the relationship between the parties
hereto created by this Declaration shall not constitute indebtedness for any
purpose. It is the intention of the parties hereto that, solely for purposes of
federal income taxes, state and local income and franchise taxes, Michigan
single business tax and any other taxes imposed upon, measured by or based upon
gross or net income, the Trust shall be treated as a partnership and that the
provisions of this Declaration shall be construed in accordance with such
intent. The Owner Trustee shall have all rights, powers and duties set forth
herein and, to the extent not inconsistent herewith, in the Business Trust
Statute with respect to accomplishing the purposes of the Trust. The Owner
Trustee agrees to file the certificate required under Section 3810 et seq. of
the Business Trust Statute in connection with the formation of the Trust as a
business trust under the Business Trust Statute.
SECTION 2.6 Liability of Certificateholders. (a) No Certificateholder,
other than with respect to CORRAL, L.P. to the extent it specifically agrees,
shall have any personal liability
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for any liability or obligation of the Trust. CORRAL, L.P. shall be liable
directly to and shall indemnify any injured party for all losses, claims,
damages, liabilities and expenses of the Trust to the extent that CORRAL, L.P.
would be liable if the Trust were a partnership under the Delaware Revised
Uniform Limited Partnership Act in which CORRAL, L.P. were a general partner
(and CORRAL, L.P. shall be liable to and indemnify the Trust for any such
losses, claims, damages, liabilities and expenses paid or otherwise borne by the
Trust to the extent that CORRAL, L.P. would have been so liable if the Trust had
had no assets and the injured party had made a claim directly against CORRAL,
L.P.); provided, however, that CORRAL, L.P. shall not be liable for: (i) any
obligations which by their terms or nature are nonrecourse to CORRAL, L.P.,
including, without limitation, any losses incurred by a Certificateholder in its
capacity as an investor in the Certificates or any losses incurred by a holder
of a Secured Note; or (ii) any losses, claims, damages, liabilities and expenses
arising out of the imposition by any taxing authority of any federal, state or
local income or franchise taxes, Michigan single business tax, or any other
taxes imposed on or measured by gross or net income, gross or net receipts,
capital, net worth and similar items (including any interest, penalties or
additions with respect thereto) upon the Certificateholders, the Owner Trustee,
in its individual capacity, any Noteholder, or any Person acting as depositary,
trustee or agent with respect to any Secured Note (including any liabilities,
costs or expenses with respect thereto) with respect to the Lease Assets not
specifically indemnified or represented to hereunder. Any third party creditors
of the Trust (other than in connection with the obligations described in the
proviso to the preceding sentence, for which CORRAL, L.P. shall not be liable)
shall be deemed third party beneficiaries of this Section 2.6. The obligations
of CORRAL, L.P. under this Section 2.6 shall be evidenced by the Certificates
issued to CORRAL, L.P. which for purposes of the Business Trust Statute shall be
deemed to be a separate class of Certificates from all other Certificates issued
by the Trust (whether or not held as a separate Definitive Certificate by
CORRAL, L.P.); provided, however, that the rights and obligations evidenced by
all Certificates, regardless of class, shall be identical (except as may be
provided in any agreement between the Certificateholders). CORRAL, L.P. has not
and will not contractually limit its liability to general creditors of the Trust
except with respect to any liability which is otherwise not a general recourse
obligation of the Trust, and LARI has not and will not contractually limit its
liability to general creditors of the Trust or CORRAL, L.P. except with respect
to any liability which is otherwise not a general recourse obligation of CORRAL,
L.P.
(b) Except as otherwise provided in Section 6.3, to the extent provided
for in Article III of the Servicing Agreement, any property of the Trust not
necessary for the payment of the Trust's obligations or otherwise payable to the
Certificateholders or
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required to be set aside or paid to any account shall be released to CORRAL,
L.P. as specified in a Servicer's Certificate.
SECTION 2.7 Title to Trust Property. (a) Legal title to the Owner Trust
Estate, other than the Vehicles, shall be vested at all times in the Trust as a
separate legal entity except where applicable law in any jurisdiction requires
title to any part of the Owner Trust Estate to be vested in a trustee or
trustees, in which case title shall be deemed to be vested in the Owner Trustee,
a co-trustee and/or a separate trustee, as the case may be.
(b) Legal title to all Vehicles that are a part of the Owner Trust
Estate shall be vested in VAULT or the VAULT Trustee as set forth in the VAULT
Trust Agreement. The Trust shall be the Applicable Trust Beneficiary (as defined
in the VAULT Trust Agreement) with respect to any Vehicles for which title is
held by VAULT or the VAULT Trustee as nominee for the benefit of the Trust.
SECTION 2.8 Situs of Trust. The Trust shall be located and administered
in the State of Delaware. All bank accounts maintained by the Owner Trustee on
behalf of the Trust shall be located in the State of Delaware or New York. The
Trust shall not have any employees in any state other than Delaware; provided,
however, that nothing herein shall restrict or prohibit the Owner Trustee (in
its individual capacity but not as Owner Trustee) from having employees within
or without the State of Delaware. Payments shall be received by the Trust only
in Delaware or New York, and payments shall be made by the Trust only from
Delaware or New York. The only office of the Trust shall be the Corporate Trust
Office in Delaware. To the greatest extent possible, the Owner Trustee shall
conduct the Trust's activities from Delaware, sign documents on behalf of the
Trust in Delaware and maintain bank accounts and business records on behalf of
the Trust in Delaware.
ARTICLE III
THE CERTIFICATES
SECTION 3.1 Form of the Certificates. (a) The Certificates shall be
substantially in the form set forth in a Certificateholder Agreement. The
Certificates shall be issued as fully registered definitive certificates
("Definitive Certificates") and, upon initial issuance on an issuance date, with
Maximum Certificate Balances as specified therein. The acceptance of a
Certificate shall obligate the Certificateholder to contribute capital from time
to time in immediately available funds in an aggregate amount up to the Maximum
Certificate Balance thereof. The Certificates shall be executed on behalf of the
Trust by the manual or facsimile signature of a Responsible Officer of the Owner
Trustee. Certificates bearing the manual or facsimile signatures of individuals
who were, at the time when such signatures shall have been affixed, authorized
to sign on behalf of the Trust, shall be
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duly issued and, subject to any limitations specified in a Certificateholder
Agreement, fully paid and non-assessable, fractional undivided interests in the
Trust in the amount of the Certificate Balance thereof, notwithstanding that
such individuals or any of them shall have ceased to be so authorized prior to
the authentication and delivery of such Certificates or did not hold such
offices at the date of authentication and delivery of such Certificates.
(b) The Definitive Certificates 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 Certificates, as evidenced by their execution of such Certificates.
(c) No Certificate shall entitle its holder to any benefit under this
Declaration of Trust, or shall be valid for any purpose, unless there shall
appear on such Certificate a certificate of authentication executed by the Owner
Trustee or Bankers Trust Company, as the Owner Trustee's authenticating agent,
by manual signature. Such authentication shall constitute conclusive evidence
that such Certificate shall have been duly authenticated and delivered
hereunder. All Certificates shall be dated the date of their authentication.
SECTION 3.2 Issuance of the Certificates. Certificates may be issued
and fundings made with respect to Certificates from time to time as the Owner
Trustee and the Certificateholders may agree.
SECTION 3.3 Registration; Registration of Transfer and Exchange of
Certificates. (a) Bankers Trust Company shall be the initial Certificate
Registrar. The Certificate Registrar shall keep or cause to be kept, at the
office or agency maintained pursuant to Section 3.7, a Certificate Register in
which, subject to such reasonable regulations as it may prescribe, the
Certificate Registrar shall provide for the registration of Certificates and of
transfers and exchanges of Certificates which shall be subject to agreed upon
restrictions.
(b) Upon surrender for any permitted registration of transfer or
exchange of any Certificate at the office or agency maintained pursuant to
Section 3.7, the Owner Trustee shall execute on behalf of the Trust,
authenticate and deliver (or shall cause Bankers Trust Company, as its
authenticating agent, to authenticate and deliver), in the name of the
designated transferee or transferees, one or more new Certificates in authorized
denominations of a like aggregate Certificate Balance dated the date of
authentication by the Owner Trustee or any authenticating agent. Such new
Certificate(s) shall, in the aggregate, have a Maximum Certificate Balance and a
Certificate Balance equal to the Maximum Certificate Balance and the Certificate
Balance of the Certificate(s) being
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replaced thereby. The face of each such new Certificate shall state the Maximum
Certificate Balance thereof. Notwithstanding the foregoing, if, prior to any
such transfer or exchange, the Servicer shall have advised the Owner Trustee and
the Certificate Registrar in writing that a Purchaser's Letter shall be required
with respect to any transfer, such transfer shall not be effective unless the
requirements of Section 7.8 of the Certificateholder Agreement, with respect to
the delivery of a Purchaser's Letter, shall have been complied with. As set
forth in Section 7.8 of the Certificateholder Agreement, by accepting and
holding a Certificate or a beneficial interest therein, the Certificateholder
shall be deemed to have made the representations and warranties contained in the
Certificate. No transfer of any Certificate or interest therein shall be made
unless (i) the Servicer shall have determined that such transfer is made
pursuant to an effective registration statement under the Securities Act and any
applicable state securities law or is made in a transaction that does not
require such registration under the Securities Act or any applicable state
securities laws, and (ii) the Servicer shall have informed the Owner Trustee in
writing that such transfer of the Certificate is permitted.
(c) At the option of a Certificateholder, Certificates may be exchanged
for other Certificates in authorized denominations of a like aggregate
Certificate Balance upon surrender of the Certificates to be exchanged at the
office or agency maintained pursuant to Section 3.7. Whenever any Certificates
are so surrendered for exchange, the Owner Trustee shall execute on behalf of
the Trust, and shall authenticate and deliver (or shall cause Bankers Trust
Company, as its authenticating agent, to authenticate and deliver) one or more
Certificates dated the date of authentication by the Owner Trustee or any such
authenticating agent. Such Certificates shall be delivered to the
Certificateholder making the exchange in accordance with the customary
procedures of the Certificate Registrar.
(d) Every Certificate presented or surrendered for registration of
transfer or exchange shall be accompanied by a written instrument of transfer in
form satisfactory to the Owner Trustee and the Certificate Registrar duly
executed by the Certificateholder or his attorney duly authorized in writing.
Each Certificate surrendered for registration of transfer and exchange shall be
cancelled and subsequently destroyed by the Owner Trustee or Certificate
Registrar in accordance with its customary practices.
(e) No service charge shall be made for any registration of transfer or
exchange of Certificates, but the Owner Trustee or the Certificate Registrar may
require payment of a sum sufficient to cover any tax or governmental charge that
may be imposed and any
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other reasonable expenses in connection with any transfer or exchange of
Certificates.
SECTION 3.4 Mutilated, Destroyed, Lost or Stolen Certificates. (a) If
(i) any mutilated Certificate is surrendered to the Certificate Registrar, or
the Certificate Registrar receives evidence to its satisfaction of the
destruction, loss or theft of any Certificate, and (ii) there is delivered to
the Certificate Registrar, the Owner Trustee and the Trust such security or
indemnity as may be required by them to hold each of them harmless, then, in the
absence of notice to the Certificate Registrar or the Owner Trustee that such
Certificate has been acquired by a bona fide purchaser, the Owner Trustee shall
execute on behalf of the Trust and shall authenticate and deliver (or shall
cause Bankers Trust Company, as its authenticating agent, to authenticate and
deliver), in exchange for or in lieu of any such mutilated, destroyed, lost or
stolen Certificate, a replacement Certificate containing the same terms;
provided, however, that if any such destroyed, lost or stolen Certificate, but
not a mutilated Certificate, shall have become or within seven days shall be due
and payable, then instead of issuing a replacement Certificate the Owner Trustee
may pay such destroyed, lost or stolen Certificate when so due or payable.
(b) If, after the delivery of a replacement Certificate or payment in
respect of a destroyed, lost or stolen Certificate pursuant to Section 3.4(a), a
bona fide purchaser of the original Certificate in lieu of which such
replacement Certificate was issued presents for payment such original
Certificate, the Owner Trustee shall be entitled to recover such replacement
Certificate (or such payment) from the Person to whom it was delivered or any
Person taking such replacement Certificate from such Person to whom such
replacement Certificate was delivered or any assignee of such Person, except a
bona fide purchaser, and shall be entitled to recover upon the security or
indemnity provided therefor to the extent of any loss, damage, cost or expense
incurred by the Owner Trustee in connection therewith.
(c) No service charge shall be made for the issuance of any replacement
Certificate under this Section 3.4, but the Owner Trustee may require the
payment by the Certificateholder of such Certificate 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 the fees and expenses of
the Owner Trustee and the Certificate Registrar) connected therewith.
(d) Any duplicate Certificate issued pursuant to this Section 3.4 in
replacement of any mutilated, destroyed, lost or stolen Certificate shall
constitute an original additional nonassessable (except as otherwise provided
herein or therein) fractional undivided interest in the Trust, whether or not
the mutilated,
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destroyed, lost or stolen Certificate shall be found at any time or be enforced
by anyone, and shall be entitled to all the benefits of this Declaration equally
and proportionately with any and all other Certificates duly issued hereunder.
(e) The provisions of this Section 3.4 are exclusive and shall (to the
extent permitted by law) preclude all other rights and remedies with respect to
the replacement or payment of mutilated, destroyed, lost or stolen Certificates.
SECTION 3.5 Persons Deemed Certificateholders. Prior to due
presentation of a Certificate for registration of transfer or exchange, the
Owner Trustee or the Certificate Registrar may treat the Person in whose name
any Certificate shall be registered in the Certificate Register as the
Certificateholder of such Certificate for the purpose of receiving distributions
with respect thereto and for all other purposes whatsoever, and neither the
Owner Trustee nor the Certificate Registrar shall be affected by any notice to
the contrary.
SECTION 3.6 Access to List of Certificateholders' Names and Addresses.
The Certificate Registrar shall furnish or cause to be furnished to the Servicer
and any Certificateholder, within 15 days after receipt by the Certificate
Registrar of a request therefor from such Person in writing, a list of the names
and addresses of the Certificateholders as of the most recent Record Date. Each
Certificateholder, by receiving and holding a Certificate, shall be deemed to
have agreed not to hold any of the Servicer, CORRAL, L.P., the Owner Trustee or
any other Certificateholder accountable by reason of the disclosure of its name
and address, regardless of the source from which such information was derived.
SECTION 3.7 Maintenance of Corporate Trust Office. The Owner Trustee
shall maintain an office or offices or agency or agencies where notices and
demands to or upon the Owner Trustee in respect of the Certificates and the
Basic Documents may be served. The Owner Trustee initially designates the
Corporate Trust Office as its principal office for such purposes. The Owner
Trustee shall give prior written notice to CORRAL, L.P. and to the
Certificateholders of any change in the location of any such office or agency.
In no event, however, shall the Owner Trustee change the office or agency
designated for the foregoing purposes to any other jurisdiction unless the Owner
Trustee has been advised by counsel that such jurisdiction will not impose any
additional tax upon the Trust or any Certificateholder solely as a result of the
maintenance of such office or agency in such jurisdiction. The Certificate
Registrar shall maintain an office or offices or agency or agencies where
Certificates may be surrendered for registration of transfer, exchange or for
receipt of the final distribution thereon, which on the date hereof shall be
Bankers Trust Company, Four Albany Street, New York, New York 10006. The
Certificate
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Registrar shall give prior written notice to the Owner Trustee, CORRAL, L.P. and
the Certificateholders of any change in location of such office or agency.
ARTICLE IV
ACTIONS BY OWNER TRUSTEE
SECTION 4.1 Prior Notice to Certificateholders with Respect to Certain
Matters. Except as otherwise provided in this Article IV, the Owner Trustee
shall not take action with respect to the following matters, unless (i) the
Owner Trustee shall have notified the Certificateholders in writing of the
proposed action at least 30 days before the taking of such action, and (ii) the
Certificateholders shall not have notified the Owner Trustee in writing prior to
the 30th day after such notice is given that such Certificateholders have
withheld consent or provided alternative direction:
(a) the initiation of any action, claim or lawsuit by the Trust and the
compromise of any action, claim or lawsuit brought by or against the Trust
(other than any action, claim or lawsuit brought by the Servicer in the name of
the Trust to enforce the terms of any Lease Asset, Supplemental Dealer
Agreement, insurance policy or other similar right); or
(b) the appointment pursuant to this Declaration of a successor
Certificate Registrar or the consent to the assignment by the Certificate
Registrar of its obligations under this Declaration.
SECTION 4.2 Action by Certificateholders with Respect to Certain
Matters. (a) The Owner Trustee shall have the power to remove the Servicer under
the Servicing Agreement and appoint a successor Servicer only in accordance with
the provisions of Sections 5.02 and 5.03 of the Servicing Agreement.
(b) Except as otherwise expressly agreed by the Certificateholders (or,
with respect to clause (ii), the amendment provisions of any Basic Document),
the Owner Trustee shall not (i) take any action with respect to any election by
the Trust to file an amendment to the Certificate of Trust, or (ii) amend,
change, modify or terminate any Basic Document.
SECTION 4.3 Action by Certificateholders with Respect to Bankruptcy.
The Owner Trustee shall not have the power to commence a voluntary proceeding in
bankruptcy relating to the Trust without the unanimous prior approval of all
Certificateholders (including CORRAL, L.P. and its Affiliates) and the delivery
to the Owner Trustee of a certificate signed by each such Certificateholder and
certifying that such Certificateholder reasonably believes that the Trust is
insolvent.
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SECTION 4.4 Restrictions on Certificateholders' Power. The
Certificateholders shall not direct the Owner Trustee to take or refrain from
taking any action if such action or inaction would be contrary to any obligation
of the Trust or the Owner Trustee under this Declaration or any other Basic
Document or would be contrary to Section 2.3, nor shall the Owner Trustee be
obligated to follow any such direction, if given.
SECTION 4.5 Control by Certificateholders. Except as expressly provided
in any provision providing for the consent or action of Certificateholders in
any Basic Document, any action that may be taken or consent that may be given or
withheld by the Certificateholders under this Declaration or any other Basic
Document may be taken, given or withheld by Holders of Certificates evidencing
not less than two-thirds of the Voting Interests thereof. Except as described in
the preceding sentence, any written notice of the Certificateholders delivered
pursuant to this Declaration shall be effective if signed by Holders of
Certificates evidencing not less than two-thirds of the Voting Interests thereof
at the time of the delivery of such notice.
SECTION 4.6 Application of Trust Funds. The Servicer shall establish
and maintain in the name of the Trust such Program Accounts for the benefit of
the Certificateholders as the Servicer and the Owner Trustee on behalf of the
Trust shall specify in a Servicing Agreement. The funds held in the Program
Accounts shall be deposited, invested, administered, allocated and distributed
in the manner set forth in a Servicing Agreement.
ARTICLE V
THE OWNER TRUSTEE
SECTION 5.1 Duties of Owner Trustee. (a) The Owner Trustee undertakes
to perform such duties, and only such duties, as are specifically set forth in
this Declaration and the other Basic Documents, including the administration of
the Trust in the interest of the Certificateholders, subject to the Basic
Documents and in accordance with the provisions of this Declaration. No implied
covenants or obligations shall be read into this Declaration.
(b) Notwithstanding the foregoing, the Owner Trustee shall be deemed to
have discharged all of its duties and responsibilities hereunder and under the
Basic Documents to the extent the Servicer has agreed in the Servicing Agreement
to perform any act or to discharge any duty of the Owner Trustee hereunder or
under any other Basic Document, and the Owner Trustee shall not be liable for
the default or failure of the Servicer to carry out its obligations under the
Servicing Agreement.
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(c) In the absence of bad faith on its part, the Owner Trustee may
conclusively rely upon certificates or opinions furnished to the Owner Trustee
and conforming to the requirements of this Declaration in determining the truth
of the statements and the correctness of the opinions contained therein;
provided, however, that the Owner Trustee shall have examined such certificates
or opinions so as to determine compliance of the same with the requirements of
this Declaration.
(d) The Owner Trustee may not be relieved from liability for its own
negligent action, its own negligent failure to act or its own wilful misconduct,
except that:
(i) this Section 5.1(d) shall not limit the effect of Sections
5.1(a) or 5.1(b);
(ii) the Owner Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer unless it is
proved that the Owner Trustee was negligent in ascertaining the
pertinent facts; and
(iii) the Owner 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 hereunder or pursuant to any Basic Document.
(e) Monies received by the Owner Trustee hereunder need not be
segregated in any manner except to the extent required by law or the Basic
Documents, may be deposited under such general conditions as may be prescribed
by law, and the Owner Trustee shall not be liable for any interest thereon.
(f) The Owner Trustee shall not take any action that (i) is
inconsistent with the purposes of the Trust set forth in Section 2.3 or (ii)
would, to the actual knowledge of a Responsible Officer of the Owner Trustee,
result in the Trust's becoming taxable as a corporation. The Certificateholders
shall not direct or cause the Owner Trustee to take action that would violate
the provisions of this Section 5.1(f).
SECTION 5.2 Rights of Owner Trustee. The Owner Trustee is hereby
authorized and directed to execute and deliver, on behalf of the Trust, the
Basic Documents and each certificate or other document attached as an exhibit to
or contemplated by the Basic Documents to which the Trust is to be a party, in
such form as CORRAL, L.P. shall approve as evidenced conclusively by the Owner
Trustee's execution thereof. In addition to the foregoing, the Owner Trustee is
authorized, but shall not be obligated, to take all actions required of the
Trust pursuant to the Basic Documents. The Owner Trustee is further authorized
from time to time to take such action as the Servicer shall request with respect
to any Basic
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Document that the Servicer shall determine to be necessary or appropriate in
connection with its servicing obligations under the Servicing Agreement.
SECTION 5.3 Acceptance of Trusts and Duties. Except as otherwise
provided in this Article V, in accepting the trusts hereby created Bankers Trust
(Delaware) acts solely as Owner Trustee hereunder and not in its individual
capacity and all Persons having any claim against the Owner Trustee by reason of
the transactions contemplated by this Declaration or any other Basic Document
shall look only to the Owner Trust Estate for payment or satisfaction thereof.
The Owner Trustee accepts the trusts hereby created and agrees to perform its
duties hereunder with respect to such trusts but only upon the terms of this
Declaration and the other Basic Documents. The Owner Trustee also agrees to
disburse all moneys actually received by it constituting part of the Owner Trust
Estate upon the terms of this Declaration and the other Basic Documents. The
Owner Trustee shall not be liable or accountable hereunder or under any Basic
Document under any circumstances, except for (i) its negligent action, its
negligent failure to act or its own willful misconduct or (ii) the inaccuracy of
any representation or warranty made by the Owner Trustee to the
Certificateholders. In particular, but not by way of limitation:
(a) the Owner Trustee shall at no time have any responsibility or
liability for or with respect to the legality, validity and enforceability of
any Lease Asset, or the perfection and priority of any security interest created
in the Owner Trust Estate (or any portion thereof) or the maintenance of any
such perfection and priority, or for or with respect to the sufficiency of the
Owner Trust Estate or its ability to generate the payments to be distributed to
Certificateholders under any Certificateholder Agreement or the holders of any
Secured Note or any other creditors of the Trust, including, without limitation:
the existence, condition, location and ownership of any Lease Asset; the
existence and enforceability of any insurance thereof; the validity of the
assignment of any Lease Asset to the Trust or of any intervening assignment; or
the compliance by CORRAL, L.P., the Servicer or any Dealer with any
representation or warranty made under any Basic Document or in any related
document or the accuracy of any such representation or warranty or any action of
the Servicer, CORRAL, L.P., any Dealer or any other Person taken in the name of
the Owner Trustee;
(b) the Owner Trustee shall not be liable with respect to any action
taken or omitted to be taken by it in accordance with the instructions of the
Servicer, CORRAL, L.P. or Certificateholders holding more than the applicable
percentage of the Voting Interests of the Certificates as described in Section
4.5;
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(c) no provision of this Declaration or any other Basic Document shall
require the Owner Trustee to expend or risk funds or otherwise incur any
financial liability in the performance of any of its rights or powers hereunder
or under any other Basic Document, if the Owner Trustee shall have reasonable
grounds for believing that repayment of such funds or adequate indemnity against
such risk or liability is not reasonably assured or provided to it;
(d) under no circumstances shall the Owner Trustee be liable for
indebtedness evidenced by or other obligations of the Trust arising under any of
the Basic Documents, including, without limitation, the principal of and
interest on any outstanding Secured Notes or the Certificate Balance of and
yield on the Certificates;
(e) the Owner Trustee shall not be responsible for or in respect of and
makes no representation as to the validity or sufficiency of any provision of
this Declaration or for the due execution hereof by CORRAL, L.P. or for the
form, character, genuineness, sufficiency, value or validity of either the Trust
or the Owner Trust Estate or for or in respect of the validity or sufficiency of
the Basic Documents, the Secured Notes, the Certificates (other than the
execution of the Certificates or the certificate of authentication on the
Certificates and the execution of the Secured Notes) or any Lease Assets or
related documents, and the Owner Trustee shall in no event assume or incur any
liability, duty or obligation to any holder of Secured Notes or any
Certificateholder, other than as expressly provided for herein and in the other
Basic Documents;
(f) the Owner Trustee shall execute, by original or facsimile
signature, Secured Notes from time to time as requested by the Origination Agent
pursuant to Section 2(b) of the Origination Agreement; provided, however, that
the Owner Trustee shall not otherwise have any responsibility with respect to
the issuance of any Secured Notes or the maintenance of any books or records
with respect to any Secured Notes;
(g) the Owner Trustee shall not be liable for the default or misconduct
of the Servicer, CORRAL, L.P. or any Dealer under any of the Basic Documents or
otherwise, and the Owner Trustee shall have no obligation or liability to
perform the obligations of the Trust under this Declaration or the other Basic
Documents that are required to be performed by the Servicer under the Servicing
Agreement or to perform the obligations of CORRAL, L.P. hereunder;
(h) the Owner Trustee shall be under no obligation to exercise any of
the rights or powers vested in it by this Declaration, or to institute, conduct
or defend any litigation under this Declaration or any other Basic Document or
in relation
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to this Declaration or any other Basic Document, at the request, order or
direction of any of the Certificateholders, unless such Certificateholders have
offered to the Owner Trustee security or indemnity satisfactory to it against
the costs, expenses and liabilities that may be incurred by the Owner Trustee
(including, without limitation, the reasonable fees and expenses of its counsel)
therein or thereby; the right of the Owner Trustee to perform any discretionary
act enumerated in this Declaration or in any other Basic Document shall not be
construed as a duty, and the Owner Trustee shall only be answerable for its
negligence or willful misconduct in the performance of any such act; and
(i) the provisions of this Declaration and any Certificateholder
Agreement, to the extent that they restrict the duties and liabilities of the
Owner Trustee otherwise existing at law or in equity, are agreed by the Trust,
CORRAL, L.P., the Servicer, the Certificateholders and all other Persons to
replace such other duties and liabilities of the Owner Trustee.
SECTION 5.4 Action upon Instruction by Certificateholders. (a) Subject
to Section 4.4, the Certificateholders may by written instruction direct the
Owner Trustee in the management of the Trust. Such direction may be exercised at
any time by written instruction of the Certificateholders pursuant to Section
4.5.
(b) Notwithstanding the foregoing, the Owner Trustee shall not be
required to take any action hereunder or under any other Basic Document if the
Owner Trustee shall have reasonably determined, or shall have been advised by
counsel, that such action is likely to result in liability on the part of the
Owner Trustee or is contrary to the terms hereof or of any other Basic Document
or is otherwise contrary to law.
(c) Whenever the Owner Trustee is unable to decide between alternative
courses of action permitted or required by the terms of this Declaration or any
other Basic Document, or is unsure as to the application, intent, interpretation
or meaning of any provision of this Declaration or the other Basic Documents,
the Owner Trustee shall promptly give notice (in such form as shall be
appropriate under the circumstances) to the Certificateholders requesting
instruction as to the course of action to be adopted, and, to the extent the
Owner Trustee acts in good faith in accordance with any such instruction
received, the Owner Trustee shall not be liable on account of such action to any
Person. If the Owner Trustee shall not, in the reasonable judgment of the Owner
Trustee, have received appropriate instructions within ten days of such notice
(or within such shorter period of time as reasonably may be specified in such
notice or may be necessary under the circumstances) it may, but shall be under
no duty to, take or refrain from taking such action which is consistent, in its
view, with this Declaration or the other Basic Documents, and as it shall deem
to be in the best
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interests of the Certificateholders, and the Owner Trustee shall have no
liability to any Person for any such action or inaction.
SECTION 5.5 Furnishing of Documents. The Owner Trustee shall furnish to
the Certificateholders: (a) promptly upon receipt of a written request therefor,
duplicates or copies of all reports, notices, requests, demands, certificates,
financial statements and any other instruments furnished to the Owner Trustee
under the Basic Documents; and (b) promptly after receipt thereof, copies of the
statements delivered pursuant to Sections 2.14 and 3.10 of the Servicing
Agreement.
SECTION 5.6 Representations and Warranties of Owner Trustee. The Owner
Trustee hereby represents and warrants to CORRAL, L.P., for the benefit of the
Certificateholders, that:
(a) It is a banking corporation duly organized, validly existing and in
good standing under the laws of the State of Delaware.
(b) It has full power, authority and legal right to execute, deliver
and perform this Declaration, and has taken all necessary action to authorize
the execution, delivery and performance by it of this Declaration.
(c) The execution, delivery and performance by it of this Declaration
(i) shall not violate any Requirement of Law governing the banking and trust
powers of the Owner Trustee or any order, writ, judgment or decree of any court,
arbitrator or Governmental Authority applicable to the Owner Trustee or any of
its assets, (ii) shall not violate any provision of the corporate charter or
by-laws of the Owner Trustee, or (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
Trust 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 Owner
Trustee's performance or ability to perform its duties as Owner Trustee under
this Declaration or on the transactions contemplated in this Declaration.
(d) The execution, delivery and performance by the Owner Trustee of
this Declaration shall not require the authorization, consent or approval of,
the giving of notice to, the filing or 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 banks or trust companies in the
jurisdiction in which the Trust was formed.
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(e) This Declaration has been duly executed and delivered by the Owner
Trustee and constitutes the legal, valid and binding agreement of the Owner
Trustee, enforceable in accordance with its terms, except as enforceability may
be limited by bankruptcy, insolvency, reorganization, or other similar laws
affecting the enforcement of creditors' rights in general and by general
principles of equity, regardless of whether such enforceability is considered in
a proceeding in equity or at law.
SECTION 5.7 Reliance; Advice of Counsel. (a) The Owner Trustee shall
incur no liability to anyone in acting upon any signature, instrument, notice,
resolution, request, consent, order, certificate, report, opinion, bond or other
document or paper believed by it to be genuine and believed by it to be signed
by the proper party or parties and need not investigate any fact or matter
pertaining to or in any such document. The Owner Trustee may accept a certified
copy of a resolution of the board of directors or other governing body of any
corporate party as conclusive evidence that such resolution has been duly
adopted by such body and that the same is in full force and effect. As to any
fact or matter the method of the determination of which is not specifically
prescribed herein, the Owner Trustee may for all purposes hereof rely on a
certificate, signed by the president or any vice president or by the treasurer
or other authorized officers of the relevant party, as to such fact or matter,
and such certificate shall constitute full protection to the Owner Trustee for
any action taken or omitted to be taken by it in good faith in reliance thereon.
(b) In the exercise or administration of the trusts hereunder and in
the performance of its duties and obligations under this Declaration and the
other Basic Documents, the Owner Trustee: (i) may act directly or through its
agents, attorneys, custodians or nominees (including the granting of a power of
attorney to officers of Bankers Trust Company to execute and deliver any Basic
Document, Certificate, Secured Note or other documents related thereto and to
take any action in connection therewith on behalf of the Owner Trustee) pursuant
to agreements entered into with any of them, and the Owner Trustee shall not be
liable for the conduct or misconduct of such agents, attorneys, custodians or
nominees if such agents, attorneys, custodians or nominees shall have been
selected by the Owner Trustee with reasonable care; and (ii) may consult with
counsel, accountants and other professionals to be selected with reasonable care
by it. The Owner Trustee shall not be liable for anything done, suffered or
omitted in good faith by it in accordance with the opinion or advice of any such
counsel, accountants or other such Persons and which, according to such opinion
or advice, is not contrary to this Declaration or any other Basic Document.
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SECTION 5.8 Owner Trustee May Own Certificates and Secured Notes. The
Owner Trustee in its individual or any other capacity may become the owner or
pledgee of Secured Notes and may deal with CORRAL, L.P., the Servicer and the
Dealers in transactions in the same manner as it would have if it were not the
Owner Trustee; provided, however, that the Owner Trustee may not become an owner
or pledgee of Certificates.
SECTION 5.9 Compensation and Indemnity. The Owner Trustee shall receive
as compensation for its services hereunder such fees as have been separately
agreed upon before the date hereof between the Servicer and the Owner Trustee,
and the Owner Trustee shall be entitled to be reimbursed by the Servicer for its
other reasonable expenses hereunder, including the reasonable compensation,
expenses and disbursements of such agents, custodians, nominees,
representatives, experts and counsel as the Owner Trustee may employ in
connection with the exercise and performance of its rights and its duties
hereunder. The Servicer shall indemnify the Owner Trustee and its successors,
assigns, agents and servants in accordance with the provisions of a separate
agreement or agreements to be entered into from time to time by and between the
Servicer and the Owner Trustee. The indemnities contained in this Section 5.9
shall survive the resignation or termination of the Owner Trustee or the
termination of this Declaration. Any amounts paid to the Owner Trustee pursuant
to this Article V shall be deemed not to be a part of the Owner Trust Estate
immediately after such payment. The Owner Trustee acknowledges that no recourse
may be had against CORRAL, L.P., the Trust or the Owner Trust Estate with
respect to this Section 5.9.
SECTION 5.10 Replacement of Owner Trustee. (a) The Owner Trustee may
resign at any time and be discharged from the trusts hereby created by giving 30
days' prior written notice thereof to the Servicer. The Servicer may appoint a
successor Owner Trustee by delivering a written instrument to the resigning
Owner Trustee and the successor Owner Trustee. If no successor Owner Trustee
shall have been appointed and have accepted appointment within 30 days after the
giving of such notice of resignation, the resigning Owner Trustee may petition
any court of competent jurisdiction for the appointment of a successor Owner
Trustee. The Servicer shall remove the Owner Trustee if:
(i) the Owner Trustee shall cease to be eligible in accordance
with the provisions of Section 5.13 and shall fail to resign after
written request therefor by the Servicer;
(ii) the Owner Trustee shall be adjudged bankrupt or
insolvent;
(iii) a receiver or other public officer shall be appointed or
take charge or control of the Owner Trustee or of
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its property or affairs for the purpose of rehabilitation, conservation
or liquidation; or
(iv) the Owner Trustee shall otherwise be incapable of acting.
(b) If the Owner Trustee resigns or is removed or if a vacancy exists
in the office of Owner Trustee for any reason, the Servicer shall promptly
appoint a successor Owner Trustee by written instrument, in duplicate (one copy
of which instrument shall be delivered to the outgoing Owner Trustee so removed
and one copy to the successor Owner Trustee) and shall pay all fees owed to the
outgoing Owner Trustee.
(c) Any resignation or removal of the Owner Trustee and appointment of
a successor Owner Trustee pursuant to any of the provisions of this Section 5.10
shall not become effective until a written acceptance of appointment is
delivered by the successor Owner Trustee to the outgoing Owner Trustee and the
Servicer and all fees and expenses due to the outgoing Owner Trustee are paid.
Any successor Owner Trustee appointed pursuant to this Section 5.10 shall be
eligible to act in such capacity in accordance with Section 5.13 and, following
compliance with the preceding sentence, shall become fully vested with all the
rights, powers, duties and obligations of its predecessor under this
Declaration, with like effect as if originally named as Owner Trustee. The
Servicer shall provide notice of such resignation or removal of the Owner
Trustee to the Rating Agencies and the Certificateholders.
(d) The predecessor Owner Trustee shall upon payment of its fees and
expenses deliver to the successor Owner Trustee all documents and statements and
monies held by it under this Declaration. The Servicer and the predecessor Owner
Trustee shall execute and deliver such instruments and do such other things as
may reasonably be required for fully and certainly vesting and confirming in the
successor Owner Trustee all such rights, powers, duties and obligations.
(e) Upon acceptance of appointment by a successor Owner Trustee
pursuant to this Section 5.10, the Servicer shall mail notice of the successor
of such Owner Trustee to the Rating Agencies and the Certificateholders.
(f) No Owner Trustee shall be personally liable for any action or
omission of any successor Owner Trustee.
SECTION 5.11 Merger or Consolidation of Owner Trustee. Any corporation
into which the Owner Trustee may be merged or converted or with which it may be
consolidated, or any corporation resulting from any merger, conversion or
consolidation to which the Owner Trustee shall be a party, or any corporation
succeeding to all or
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substantially all of the corporate trust business of the Owner Trustee, shall be
the successor of the Owner Trustee hereunder, provided such corporation shall be
eligible pursuant to Section 5.13, and without the execution or filing of any
instrument or any further act on the part of any of the parties hereto;
provided, however, that the Owner Trustee shall mail notice of such merger or
consolidation to the Servicer, the Rating Agencies and the Certificateholders.
SECTION 5.12 Appointment of Co-Trustee or Separate Trustee. (a)
Notwithstanding any other provisions of this Declaration, at any time, for the
purpose of meeting any legal requirements of any jurisdiction in which any part
of the Owner Trust Estate or any Vehicle may at the time be located, the
Servicer and the Owner Trustee acting jointly shall have the power and shall
execute and deliver all instruments to appoint one or more Persons approved by
the Owner Trustee to act as co-trustee or co-trustees, jointly with the Owner
Trustee, or as separate trustee or trustees, of all or any part of the Owner
Trust Estate, and to vest in such Person or Persons, in such capacity, such
title to the Owner Trust Estate, or any part thereof, and, subject to the other
provisions of this Section 5.12, such powers, duties, obligations, rights and
trusts as the Servicer and the Owner Trustee may consider necessary or
desirable. If the Servicer shall not have joined in such appointment within 15
days after the receipt by it of a request so to do, the Owner Trustee alone
shall have the power to make such appointment. No co-trustee or separate trustee
under this Declaration shall be required to meet the terms of eligibility as a
successor trustee pursuant to Section 5.13 and no notice of the appointment of
any co-trustee or separate trustee shall be required pursuant to Section 5.10;
provided, however, that GMAC or its Affiliates shall not be eligible as a
co-trustee or separate trustee unless the rating of GMAC's or any such
Affiliate's long-term unsecured debt is at least "BBB-" by S&P and at least
"Baa3" by Moody's.
(b) Each separate trustee and co-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 Owner Trustee shall be conferred upon and exercised or
performed by the Owner Trustee and such separate trustee or co-trustee
jointly (it being understood that such separate trustee or co-trustee
is not authorized to act separately without the Owner 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 Owner 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 Owner
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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 Owner Trustee;
(ii) no trustee under this Declaration shall be personally
liable by reason of any act or omission of any other trustee under this
Declaration; and
(iii) the Servicer and the Owner Trustee acting jointly may at
any time accept the resignation of or remove any separate trustee or
co-trustee.
(c) Any notice, request or other writing given to the Owner Trustee
shall be deemed to have been given to each of the then separate trustees and
co-trustees, as effectively as if given to each of them. Every instrument
appointing any separate trustee or co-trustee shall refer to this Declaration
and the conditions of this Article V. Each separate trustee and co-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
Owner Trustee or separately, as may be provided therein, subject to all of the
provisions of this Declaration, specifically including every provision of this
Declaration relating to the conduct of, affecting the liability of or affording
protection to the Owner Trustee. Each such instrument shall be filed with the
Owner Trustee and a copy thereof given to the Servicer.
(d) Any separate trustee or co-trustee may at any time appoint the
Owner 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 Declaration on its behalf and in its name. If any separate trustee or
co-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 Owner Trustee, to the extent permitted by law, without the
appointment of a new or successor trustee.
(e) Thomas Moskie and Carl H. Nasib, along with their respective
assigns, are hereby appointed as co-trustees with the power to act individually
on behalf of the Trust, with all the powers of the Owner Trustee, and Thomas
Moskie and Carl H. Nasib accept such appointment upon their execution of this
Declaration; provided, however, that such appointment and acceptance shall only
become effective and such co-trustees may only act upon the written direction of
the Owner Trustee and the Servicer. Such appointment may from time to time be
limited or terminated by the co-trustee(s).
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SECTION 5.13 Eligibility Requirements for Owner Trustee. The Owner
Trustee shall at all times: (a) be a corporation satisfying the provisions of
Section 3807(a) of the Business Trust Statute; (b) be authorized to exercise
corporate trust powers; (c) have a combined capital and surplus of at least
$50,000,000 and be subject to supervision or examination by federal or state
authorities; and (d) have (or have a parent which has) a long-term unsecured
debt rating of at least "BBB-" by S&P and at least "Baa3" by Moody's. If such
corporation shall publish reports of condition at least annually, pursuant to
law or the requirements of the aforesaid supervising or examining authority,
then for the purpose of this Section 5.13, the combined capital and surplus of
such corporation shall be deemed to be its combined capital and surplus as set
forth in its most recent report of condition so published. If at any time the
Owner Trustee shall cease to be eligible in accordance with the provisions of
this Section 5.13, the Owner Trustee shall resign immediately in the manner and
with the effect specified in Section 5.10.
ARTICLE VI
TERMINATION OF DECLARATION
SECTION 6.1 Termination of Declaration. (a) This Declaration (other
than Section 5.9) and the Trust shall terminate and be of no further force or
effect on the earlier of: (i) the final distribution by the Owner Trustee of all
monies or other property or proceeds of the Owner Trust Estate in accordance
with the terms of this Declaration and any other Basic Documents or (ii) the
time provided in Section 6.2 (the "Trust Termination Date"). Subject to Section
6.2, the bankruptcy, liquidation, dissolution, death or incapacity of any
Certificateholder (other than CORRAL, L.P.) shall not (x) operate to terminate
this Declaration or the Trust, (y) entitle such Certificateholder's legal
representatives or heirs to claim an accounting or to take any action or
proceeding in any court for a partition or winding up of all or any part of the
Trust or the Owner Trust Estate or (z) otherwise affect the rights, obligations
and liabilities of the parties hereto.
(b) Neither CORRAL, L.P. nor any other Certificateholder shall be
entitled to revoke or terminate the Trust.
(c) Notice of any termination of the Trust, specifying the Payment Date
upon which the Certificateholders shall surrender their Certificates to the
Owner Trustee for payment of the final distribution upon redemption and
cancellation, shall be given by the Owner Trustee by a letter to all the
Certificateholders mailed within five Business Days of receipt of notice of such
termination from the Servicer stating: (i) the Payment Date upon or with respect
to which the Certificate Balance will be reduced to zero, and all accrued and
unpaid yield thereon shall be paid, shall be made upon presentation and
surrender of the Certificates at the
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office of the Owner Trustee therein designated; (ii) the amount of any such
final distribution; and (iii) that the Record Date otherwise applicable to such
Payment Date is not applicable, distribution being made only upon presentation
and surrender of the Certificates at the office of Bankers Trust Company. The
Owner Trustee shall give such notice to the Certificate Registrar (if other than
the Owner Trustee) at the time such notice is given to Certificateholders. Upon
presentation and surrender of the Certificates, the Owner Trustee shall cause to
be distributed to Certificateholders amounts distributable on such Payment Date
pursuant to a Certificateholder Agreement.
(d) If all of the Certificateholders shall not have surrendered their
Certificates for redemption and cancellation within six months after the date
specified in the above mentioned written notice, the Owner Trustee shall give a
second written notice to the remaining Certificateholders to surrender their
Certificates for redemption and cancellation and receive the final distribution
with respect thereto. If within one year after the second notice all the
Certificates shall not have been surrendered for redemption and cancellation,
the Owner Trustee may take appropriate steps, or may appoint an agent to take
appropriate steps, to contact the remaining Certificateholders concerning
surrender of their Certificates, and the cost thereof shall be paid out of the
funds and other assets that shall remain subject to this Declaration. Subject to
applicable laws with respect to escheat of funds, any funds remaining in the
Trust after exhaustion of such remedies in the preceding sentence shall be
deemed property of CORRAL, L.P. and, upon CORRAL, L.P.'s request, shall be
distributed by the Owner Trustee to CORRAL, L.P.
(e) Upon the winding up of the Trust and its termination, the Owner
Trustee shall cause the Certificate of Trust to be cancelled by filing a
certificate of cancellation with the Secretary of State in accordance with the
provisions of Section 3810 of the Business Trust Statute.
SECTION 6.2 Dissolution upon Bankruptcy of CORRAL, L.P. This
Declaration shall be terminated in accordance with Section 6.1 30 days after the
occurrence of an Insolvency Event with respect to CORRAL, L.P.; provided,
however, that this Declaration shall not be so terminated if (x) such Insolvency
Event occurs at a time when there is at least one Certificateholder who is not
CORRAL, L.P. or an Affiliate of CORRAL, L.P. and one Certificateholder who is an
Affiliate of CORRAL, L.P. and (y) before the end of such 30 day period, the
Owner Trustee shall have received written instructions from each of the
Certificateholders (other than CORRAL, L.P. and its Affiliates), to the effect
that each such Certificateholder disapproves of the liquidation of the Owner
Trust Estate and termination of the Trust and naming a successor to CORRAL, L.P.
Promptly after the occurrence of any Insolvency Event with respect
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to CORRAL, L.P.: (i) CORRAL, L.P. shall give the Owner Trustee written notice of
such Insolvency Event; and (ii) the Owner Trustee shall, upon the receipt of
such written notice from CORRAL, L.P., give prompt written notice to the
Certificateholders of the occurrence of such event; provided, however, that any
failure to give a notice required by this sentence shall not prevent or delay in
any manner a termination of the Trust pursuant to the first sentence of this
Section 6.2.
SECTION 6.3 Distribution of Liquidation Proceeds. Notwithstanding
anything to the contrary in this Declaration, (i) upon termination of the Trust
the proceeds of such termination shall be distributed to the Certificateholders
in an amount equal to the Certificate Balances of the respective
Certificateholders, together with accrued and unpaid yield thereon to the date
of such termination, plus an amount equal to the excess, if any, of such
Certificateholder's Capital Account balance over the sum of (x) such
Certificateholder's Certificate Balance and (y) accrued and unpaid yield thereon
to the date of such termination, provided, however, that in no event shall the
amounts distributed to CORRAL, L.P. and its Affiliates exceed their respective
positive Capital Account balances, and upon termination of any
Certificateholders' interest in the Trust the proceeds of such termination shall
be distributed to such Certificateholder in an amount equal to the Certificate
Balance of such Certificateholder, together with accrued and unpaid yield
thereon to the date of such termination, plus an amount equal to the excess, if
any, of such Certificateholder's Capital Account balance over the sum of (x)
such Certificateholder's Certificate Balance and (y) accrued and unpaid yield
thereon to the date of such termination, provided, however, that in no event
shall the amounts distributed to CORRAL, L.P. and its Affiliates exceed their
respective positive Capital Account balances, and (ii) if CORRAL, L.P. has a
deficit balance in its Capital Account following the termination of its interest
in the Trust, as determined after taking into account all Capital Account
adjustments for the Trust taxable year during which such termination occurs
(other than any adjustment for any Capital Contribution of CORRAL, L.P. made
pursuant to this clause (ii)) and after adjusting Capital Accounts for actual or
anticipated profits or losses allocable among the Certificateholders in
accordance with, or as if there had been, an actual disposition of the Trust
properties at their fair market value, CORRAL, L.P. shall make a Capital
Contribution to the Trust in an amount equal to such deficit balance.
ARTICLE VII
MISCELLANEOUS
SECTION 7.1 No Legal Title to Owner Trust Estate. The
Certificateholders shall not have legal title to any part of the Owner Trust
Estate. The Certificateholders shall be entitled to
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receive distributions with respect to their undivided ownership interest therein
only in accordance with this Declaration and the other Basic Documents. No
transfer, by operation of law or otherwise, of any right, title, and interest of
the Certificateholders to and in their ownership interest in the Owner Trust
Estate shall operate to terminate this Declaration or the trusts hereunder or
entitle any transferee to an accounting or to the transfer to it of legal title
to any part of the Owner Trust Estate.
SECTION 7.2 Limitations on Rights of Others. Except as otherwise
provided in Section 2.6, the provisions of this Declaration are solely for the
benefit of the Owner Trustee, CORRAL, L.P., the Certificateholders and the
Servicer, and nothing in this Declaration, whether express or implied, shall be
construed to give to any other Person any legal or equitable right, remedy or
claim in the Owner Trust Estate or under or in respect of this Declaration or
any covenants, conditions or provisions contained herein.
SECTION 7.3 Notices. All demands, notices and communications upon or to
CORRAL, L.P., the Servicer or the Owner Trustee, the Rating Agencies or the
Certificateholders under this Declaration shall be in writing, personally
delivered, sent by electronic facsimile (with hard copy to follow via first
class mail) or mailed by first class mail or sent by overnight courier, and
shall be deemed to have been duly given upon receipt: (a) in the case of CORRAL,
L.P., at the following address: c/o Lease Auto Receivables, Inc., Corporation
Trust Center, 1209 Orange Street, Wilmington, Delaware 19801, with a copy to
General Motors Acceptance Corporation, as Servicer, 3031 West Grand Boulevard,
Detroit, Michigan 48202, Attention: Director-Securitization; (b) in the case of
the Servicer, at the following address: General Motors Acceptance Corporation,
3031 West Grand Boulevard, Detroit, Michigan 48202, Attention:
Director-Securitization; (c) in the case of the Trust or the Owner Trustee, to
the Owner Trustee at its Corporate Trust Office, with a copy to Bankers Trust
Company, Corporate Trust and Agency Group, Four Albany Street, New York, New
York 10006, Attention: Structured Finance Department, 10th Floor; (d) in the
case of Moody's Investors Service, Inc., to Moody's Investors Service, Inc., ABS
Monitoring Department, 99 Church Street, New York, New York 10007; (e) in the
case of Standard & Poor's Ratings Services, to Standard & Poor's Ratings
Services, 26 Broadway (15th Floor), New York, New York 10004, Attention: Asset
Backed Surveillance Department; and (f) in the case of a Certificateholder, at
the address of such Certificateholder as shown in the Certificate Register; or
at such other address as shall be designated by such Person in a written notice
to the other parties to this Declaration.
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SECTION 7.4 Severability. If any one or more of the covenants,
agreements, provisions or terms of this Declaration shall be for any reason
whatsoever held invalid, then such covenants, agreements, provisions or terms
shall be deemed severable from the remaining covenants, agreements, provisions
or terms of this Declaration and shall in no way affect the validity or
enforceability of the other provisions of this Declaration or of the
Certificates or the rights of the holders thereof.
SECTION 7.5 Counterparts. This Declaration may be executed by the
parties hereto in separate counterparts, each of which when so executed and
delivered shall be an original, but all such counterparts shall together
constitute one and the same instrument.
SECTION 7.6 Successors and Assigns. All covenants and agreements
contained herein shall be binding upon, and inure to the benefit of, CORRAL,
L.P., the Trust, the Owner Trustee and each Certificateholder and their
respective successors and permitted assigns, all as herein provided. Any
request, notice, direction, consent, waiver or other instrument or action by a
Certificateholder shall bind the successors and assigns of such
Certificateholder.
SECTION 7.7 No Petition Covenant. Notwithstanding any other provision
of this Declaration or any other Basic Document and notwithstanding any prior
termination of this Declaration, the Trust (or the Owner Trustee on behalf of
the Trust) and each Certificateholder shall not, prior to the date which is one
year and one day after the termination of this Declaration with respect to
CORRAL, L.P., acquiesce, petition or otherwise invoke or cause CORRAL, L.P. to
invoke the process of any Governmental Authority for the purpose of commencing
or sustaining a case against CORRAL, L.P. under any federal or state bankruptcy,
insolvency or similar law or appointing a receiver, liquidator, assignee,
trustee, custodian, sequestrator or other similar official of CORRAL, L.P. or
any substantial part of its property, or ordering the winding up or liquidation
of the affairs of CORRAL, L.P.
SECTION 7.8 No Recourse. Each Certificateholder by accepting a
Certificate acknowledges that such Certificateholder's Certificates represent
beneficial interests in the Trust and the Owner Trust Estate only and do not
represent interests in or obligations of CORRAL, L.P., the Servicer, the Owner
Trustee or any Affiliate thereof and no recourse may be had against such parties
or their assets, except as may be expressly set forth or contemplated in this
Declaration, the Certificates or the other Basic Documents.
SECTION 7.9 Headings. The headings of the various Articles and Sections
herein are for convenience of reference only and shall not define or limit any
of the terms or provisions hereof.
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SECTION 7.10 GOVERNING LAW. THIS DECLARATION SHALL BE CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE, WITHOUT REFERENCE TO ITS
CONFLICT OF LAW PROVISIONS, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE
PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
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IN WITNESS WHEREOF, the parties hereto have caused this
Declaration of Trust to be duly executed by their respective officers hereunto
duly authorized, as of the day and year first above written.
BANKERS TRUST (DELAWARE)
By:
----------------------------------------
Name:
Title:
Acceptance of Co-Trustees:
---------------------------------------------
Name:
---------------------------------------------
Name:
Acknowledged, accepted and agreed
as of this 15th day of March, 1996.
CORRAL, L.P.
By: LEASE AUTO RECEIVABLES, INC.,
as General Partner,
By:
-----------------------------
Name:
Title:
38
EXHIBIT A TO THE
DECLARATION OF TRUST
CERTIFICATE OF TRUST OF
CENTRAL ORIGINATING LEASE TRUST
THIS Certificate of Trust of Central Originating Lease Trust
(the "Trust"), dated as of March 15, 1996, is being duly executed and filed by
Bankers Trust (Delaware), a Delaware banking corporation, as trustee, to form a
business trust under the Delaware Business Trust Act (12 Del. Code, Section 3801
et seq.).
1. Name. The name of the business trust formed hereby is
Central Originating Lease Trust.
2. Delaware Trustee. The name and business address of the
trustee of the Trust in the State of Delaware is Bankers Trust (Delaware), 1001
Jefferson Street, Suite 550, Wilmington, Delaware 19801.
3. This Certificate of Trust shall be effective on March 15,
1996.
IN WITNESS WHEREOF, the undersigned, being the sole trustee of
the Trust, has executed this Certificate of Trust as of the date first above
written.
BANKERS TRUST (DELAWARE),
not in its individual capacity but
solely as Owner Trustee under a
Declaration of Trust, dated as of
March 15, 1996
By:
------------------------
Name:
Title: