EXHIBIT 3.2
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THIRD AMENDED AND RESTATED DECLARATION OF TRUST
dated as of March 25, 2004
DEUTSCHE BANK TRUST COMPANY DELAWARE
As COLT Owner Trustee
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TABLE OF CONTENTS
(continued)
PAGE
ARTICLE I DEFINITIONS AND INCORPORATION BY REFERENCE................................................ 1
SECTION 1.1 Definitions...................................................................... 1
ARTICLE II ORGANIZATION.............................................................................. 1
SECTION 2.1 Name............................................................................. 1
SECTION 2.2 Office........................................................................... 2
SECTION 2.3 Purposes and Powers.............................................................. 2
SECTION 2.4 Appointment of COLT Owner Trustee................................................ 2
SECTION 2.5 Declaration of Trust............................................................. 2
SECTION 2.6 Liability of Certificateholders.................................................. 3
SECTION 2.7 Title to Trust Property.......................................................... 3
SECTION 2.8 Situs of Trust................................................................... 3
ARTICLE III BENEFICIAL INTERESTS IN TRUST............................................................. 4
SECTION 3.1 The Residual Interest............................................................ 4
SECTION 3.2 Series of Beneficial Interests................................................... 5
ARTICLE IV THE CERTIFICATES.......................................................................... 6
SECTION 4.1 Form of the Certificates......................................................... 6
SECTION 4.2 Registration; Registration of Transfer and Exchange of Certificates.............. 7
SECTION 4.3 Mutilated, Destroyed, Lost or Stolen Certificates................................ 8
SECTION 4.4 Persons Deemed Certificateholders................................................ 9
SECTION 4.5 Access to List of Certificateholders' Names and Addresses........................ 9
SECTION 4.6 Maintenance of Corporate Trust Office............................................ 9
ARTICLE V ACTIONS BY OWNER TRUSTEE.................................................................. 9
SECTION 5.1 Prior Notice to Certificateholders with Respect to Certain Matters............... 9
SECTION 5.2 Action by Certificateholders with Respect to Certain Matters..................... 10
SECTION 5.3 Action by Certificateholders with Respect to Bankruptcy.......................... 10
SECTION 5.4 Restrictions on Certificateholders' Power........................................ 11
SECTION 5.5 Control by Certificateholders.................................................... 11
SECTION 5.6 Application of Collections....................................................... 11
ARTICLE VI THE OWNER TRUSTEE......................................................................... 11
SECTION 6.1 Duties of COLT Owner Trustee..................................................... 11
SECTION 6.2 Rights of COLT Owner Trustee..................................................... 12
SECTION 6.3 Acceptance of Trusts and Duties.................................................. 12
SECTION 6.4 Action upon Instruction by Certificateholders.................................... 14
SECTION 6.5 Furnishing of Documents.......................................................... 15
SECTION 6.6 Representations and Warranties of COLT Owner Trustee............................. 15
SECTION 6.7 Reliance; Advice of Counsel...................................................... 16
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TABLE OF CONTENTS
(continued)
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SECTION 6.8 COLT Owner Trustee May Not Own Certificates...................................... 16
SECTION 6.9 Compensation and Indemnity....................................................... 16
SECTION 6.10 Replacement of COLT Owner Trustee................................................ 17
SECTION 6.11 Merger or Consolidation of COLT Owner Trustee.................................... 18
SECTION 6.12 Appointment of Co-Trustee or Separate Trustee.................................... 18
SECTION 6.13 Eligibility Requirements for COLT Owner Trustee.................................. 19
ARTICLE VII TERMINATION OF DECLARATION................................................................ 20
SECTION 7.1 Termination of Declaration....................................................... 20
ARTICLE VIII MISCELLANEOUS............................................................................. 21
SECTION 8.1 No Legal Title to Owner Trust Estate............................................. 21
SECTION 8.2 Limitations on Rights of Others.................................................. 21
SECTION 8.3 Notices.......................................................................... 21
SECTION 8.4 Amendment........................................................................ 21
SECTION 8.5 Severability..................................................................... 22
SECTION 8.6 Counterparts..................................................................... 22
SECTION 8.7 Successors and Assigns........................................................... 22
SECTION 8.8 No Petition Covenant............................................................. 22
SECTION 8.9 No Recourse...................................................................... 23
SECTION 8.10 Headings......................................................................... 23
SECTION 8.11 Governing Law.................................................................... 23
EXHIBITS
Exhibit A Form of Certificate of Trust
Exhibit B Form of Residual Certificate
Exhibit I Definitions
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THIRD AMENDED AND RESTATED DECLARATION OF TRUST, dated as of March
25, 2004, by DEUTSCHE BANK TRUST COMPANY DELAWARE, a Delaware banking
corporation, acting hereunder not in its individual capacity but solely as owner
trustee (the "COLT Owner Trustee"), and acknowledged, accepted and agreed to by
CENTRAL ORIGINATING LEASE, LLC, a Delaware limited liability company, as a
certificateholder and the initial beneficiary with respect to the Trust referred
to below and as an obligor with respect to certain terms hereof (together with
any successor in interest, "COLT, LLC", or in its capacity as certificateholder,
the "Residual Certificateholder").
WHEREAS, the COLT Owner Trustee is party to the Amended and Restated
Declaration of Trust, dated as of March 15, 1996 (the "Old Declaration" or "Old
Declaration of Trust"), by the COLT Owner Trustee and acknowledged by CORRAL,
L.P., in its capacity as a certificateholder of the Trust, as amended and
restated by the Second Amended and Restated Declaration of Trust, executed on
March 17, 2003 (the "Second Declaration" or "Second Declaration of Trust"), by
the COLT Owner Trustee and acknowledged by General Motors Acceptance Corporation
("GMAC"), in its capacity as a certificateholder of the Trust.
WHEREAS, the only certificate of the Trust (the "Existing
Certificate") is currently owned by COLT, LLC;
WHEREAS, COLT, LLC agrees to deliver the Existing Certificate to the
Owner Trustee for cancellation in connection with its receipt of the Residual
Certificate issued hereunder pursuant to Section 3.1(a); and
WHEREAS, in connection with the creation of Series Portfolios and
the issuance of Series Certificates in accordance with the Series Supplements to
be entered into between the parties hereto from time to time hereunder, the
parties hereto have agreed to amend and restate the Declaration of Trust as set
forth below;
NOW, THEREFORE, the COLT 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 Third 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 in Part I of
Exhibit I hereto and the rules of construction set forth in Part II of Exhibit I
hereto shall be applicable to this Declaration of Trust.
ARTICLE II
ORGANIZATION
SECTION 2.1 Name. The Trust continued hereby shall be known as "Central
Originating Lease Trust" or "COLT," in which name the COLT 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 COLT
Owner Trustee at its Corporate Trust Office or at such other address in Delaware
as the COLT Owner Trustee may designate by written notice to the Residual
Certificateholder.
SECTION 2.3 Purposes and Powers. The purpose of the Trust is to engage,
and the Trust shall have the power and authority to engage, in the following
activities:
(a) to acquire, accept contributions of, manage, administer and hold the
Lease Assets;
(b) to issue and sell from time to time the Certificates pursuant to
this Declaration and to sell, transfer, exchange or redeem the Certificates as
permitted hereunder;
(c) to issue and sell from time to time evidences of indebtedness, in
each case the proceeds of which shall be used to purchase additional Lease
Assets or to repay maturing indebtedness, and to make any other payments
contemplated by any other Basic Document;
(d) to make distributions of cash and other property to the
Certificateholders and to pay the organizational, start-up and transactional
expenses of the Trust;
(e) to assign, grant, transfer, pledge, mortgage and convey the Owner
Trust Estate;
(f) to enter into and perform its obligations under the Basic Documents
and any Series Basic Documents to which it is a party;
(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 and any applicable
Series 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 payment of outstanding
indebtedness.
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, any applicable Series Basic Documents or as required by applicable
law.
SECTION 2.4 Appointment of COLT Owner Trustee. Each of the Residual
Certificateholder and GMAC hereby confirms, effective as of the date hereof, the
appointment of the COLT Owner Trustee, as trustee of the Trust under this
Declaration, to have all the rights, powers and duties set forth herein.
SECTION 2.5 Declaration of Trust. The COLT 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
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Basic Documents and the applicable Series Basic Documents. It is the intention
of the parties hereto that the Trust shall constitute a statutory trust under
the Statutory Trust Statute, that this Declaration and any agreement entered
into among the Certificateholders, with respect to the internal affairs of the
Trust, shall constitute the governing instrument of such statutory 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 Statutory 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
(i) when the Certificates are legally or beneficially owned by two or more
Persons, as a partnership and (ii) when the Certificates are legally or
beneficially owned by one Person, as a disregarded entity for purposes of
Treasury Regulation 301.7701-3, and in each case, that the provisions of this
Declaration shall be construed in accordance with such intent. The COLT Owner
Trustee shall have all rights, powers and duties set forth herein and, to the
extent not inconsistent herewith, in the Statutory Trust Statute with respect to
accomplishing the purposes of the Trust. The COLT Owner Trustee agrees to file
an amended Certificate of Trust on the date hereof to provide the notice of the
limitations on interseries liability that is required under the Statutory Trust
Statute.
SECTION 2.6 Liability of Certificateholders. (a) No Certificateholder
shall have any personal liability for any liability or obligation of the Trust.
(b) To the extent provided for in any Servicing Agreement relating to
the Trust Assets allocated to any Series Portfolio, any Trust Assets allocated
to such Series Portfolio shall be released to or at the direction of the related
Series Certificateholder immediately following the termination of the related
COLT Indenture and full and indefeasible payment of the related Series of
Secured Notes.
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 COLT 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 COLT 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 COLT Owner Trustee
(in its individual capacity but not as COLT Owner Trustee) from having employees
within or without the State of Delaware. Payments shall be received by the
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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 of the COLT Owner Trustee in Delaware.
ARTICLE III
BENEFICIAL INTERESTS IN TRUST
SECTION 3.1 The Residual Interest. (a) The Residual Certificateholder
shall hold an exclusive, divided equity beneficial interest (the "Residual
Interest") in all assets of the Trust, other than those identified Trust Assets
that are from time to time allocated by the Trust, upon the written direction of
the Residual Certificateholder and otherwise in accordance with Section 3.2
hereof, into one or more Series Portfolios (the "Residual Trust Assets"). Except
as otherwise provided for herein, all collections and amounts received with
respect to the Residual Interest shall be distributed or retained by the COLT
Owner Trustee, as directed in writing from time to time by the Residual
Certificateholder. Any assignee or pledgee of a Residual Interest or Residual
Certificate must, prior to or contemporaneously with the grant of any such
assignment, pledge or security interest: (i) execute and deliver to the Trust a
no petition covenant substantially similar to that set forth in Section 8.8, and
(ii) execute and deliver to the Trust an agreement, among itself and each
assignee or pledgee from time to time of any Series or Series Certificate, to
release all claims to the Trust Assets allocated to any Series Portfolio.
Nothing contained herein shall be deemed to limit the rights of the holder of
the Residual Interest to enter into participation agreements pursuant to which
the holder grants one or more participation interests in the Residual Interest.
(b) Subject to the delivery of the Existing Certificate to the COLT
Owner Trustee by COLT, LLC on the date hereof, the Residual Interest initially
shall be represented by a single trust certificate (together with any
replacements thereof, the "Residual Certificate"), in substantially the form of
Exhibit B hereto, with such appropriate insertions, omissions, substitutions and
other variations as are required by this Declaration and may have such letters,
numbers or other marks of identification and such legends and endorsements
placed thereon as may, consistently herewith, be directed in writing by the
Residual Certificateholder. Any portion of any Residual Certificate may be set
forth on the reverse or subsequent pages thereof. Each Residual Certificate
shall be printed, lithographed, typewritten, mimeographed, photocopied or
otherwise produced or may be produced in any other manner as may, consistently
herewith, be determined by the Residual Certificateholder.
(c) The Residual Interest shall be a separate series of the Trust as
provided in Section 3806(b)(2) of the Statutory Trust Statute. The debts,
liabilities, obligations and expenses incurred, contracted for or otherwise
existing with respect to the Residual Interest or the related Residual Trust
Assets shall be enforceable against such Residual Trust Assets only, and not
against the assets of the Trust generally or against any assets allocated to a
Series Portfolio. Except to the extent required by law or specified in this
Declaration, the Residual Interest shall not be subject to claims, debts,
liabilities, expenses or obligations arising from or with respect to any Series.
No creditor or holder of a claim relating to assets allocated to the Residual
Interest shall be entitled to maintain any action against or recover any assets
allocated to any Series in respect of such claim (whether such assets were
Residual Trust Assets at any time since such claim arose).
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(d) The COLT Owner Trustee shall perform such duties, have such
responsibilities and adhere to such standards of care as are specified in
Article VI of this Declaration with respect to the Residual Interest.
(e) No interest in the Residual Interest, the Residual Trust Assets or
Residual Certificate shall be transferred, assigned, sold or conveyed if, as the
result of such transfer, assignment, sale or conveyance, the Trust would become
a publicly traded partnership.
SECTION 3.2 Series of Beneficial Interests. (a) The COLT Owner Trustee
shall from time to time, as directed in writing by the Residual
Certificateholder and without the consent of the Series Certificateholders,
identify and allocate or cause to be identified and allocated on the books and
records of the Trust one or more separate portfolios of Trust Assets to be
accounted for independently within the Trust (each such portfolio, a "Series
Portfolio"). Upon their allocation to a Series Portfolio, such Trust Assets
shall no longer be assets of, or allocated to, the Residual Interest (unless and
until specifically reallocated to the Residual Interest from that Series
Portfolio pursuant to the terms of the related Series Basic Documents). The
equity beneficial interest in each such Series Portfolio shall constitute a
separate series of equity beneficial interests ("Series") in the Trust. Separate
and distinct records shall be maintained for each Series Portfolio and the Trust
Assets associated with each Series shall be held and accounted for separately
from the other assets of the Trust or any other Series. The COLT Owner Trustee
shall execute and deliver, on behalf of the Trust, to or upon the written order
of the Residual Certificateholder, one or more Series Certificates evidencing
each Series, each Series representing a specific divided interest in (but only
in) such identified Series Portfolio and the Trust Assets allocated thereto,
including with respect to each Vehicle included in any such Series Portfolio,
the Disposition Proceeds received with respect to the disposition of any
Vehicle, whether occurring prior to the expiration of maturity of the related
Lease (whether by way of voluntary or involuntary early termination of the
Lease, insurance payment or purchase by the lessee or a third-party), or upon
expiration at the maturity of the related Lease, and whether or not the
Disposition Proceeds exceed the Stated Residual Value of such Vehicle.
(b) Each Series shall be represented by a single certificate (each, a
"Series Certificate") to be issued by the Trust and shall be created by the
execution of a supplement to this Declaration (each, a "Series Supplement"),
which Series Supplement shall specify the terms and provisions pursuant to which
a Series Certificate shall be issued with respect to such Series; the form of
any Series Certificate to be issued in connection therewith; the initial Trust
Assets to be included in such Series Portfolio; the arrangements, if any,
whereby additional Trust Assets may be added subsequently to the Series
Portfolio; the Series Basic Documents to be entered into by the Trust with
respect to such Series; and other relevant terms and provisions specific to such
Series; all as shall be prescribed and established by the Residual
Certificateholder. Each Series Supplement shall provide for the application of
all net proceeds received with respect to the Series Portfolio and the related
Series Certificate, including any mandatory distributions to the holders of the
related Series Certificates, but shall require an express written waiver of any
claim by any holder of any Series Certificate (which waiver may be set forth in
such Series Certificate) to any proceeds or assets of the Trust other than the
Trust Assets included from time to time within the Series Portfolio allocated to
that Series and those proceeds or assets derived from or earned by such Trust
Assets.
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(c) Each Series shall be a separate series of the Trust as provided in
Section 3806(b)(2) of the Statutory Trust Statute. The debts, liabilities,
obligations and expenses incurred, contracted for or otherwise existing with
respect to each Series or the related Series Portfolio shall be enforceable
against such Series Portfolio only, and not against any other Series Portfolio
or the Residual Trust Assets. Except to the extent required by law or specified
in this Declaration or in the related Series Supplement, Trust Assets with
respect to a particular Series shall not be subject to claims, debts,
liabilities, expenses or obligations arising from or with respect to the Trust,
the COLT Owner Trustee, the Residual Interest or any other Series in respect of
such claim. No creditor or holder of a claim relating to assets allocated to any
Series shall be entitled to maintain any action against or recover any assets
allocated to the Residual Interest or any other Series Portfolio. Notice of this
limitation on interseries liabilities shall be set forth in the Certificate of
Trust of the Trust (whether originally or by amendment) as filed or to be filed
in the Office of the Secretary of State of the State of Delaware pursuant to the
Statutory Trust Statute, and upon the giving of such notice in the Certificate
of Trust, the statutory provisions of Section 3804 of the Statutory Trust
Statute relating to limitations on interseries liabilities (and the statutory
effect under Section 3804 of setting forth such notice in the Certificate of
Trust) shall become applicable to the Trust and each Series and the Residual
Interest. Any purchaser, assignee or pledgee of an interest in a Series or
Series Certificate must, prior to or contemporaneously with the grant of any
such assignment, pledge or security interest, (i) give to the Trust a
non-petition covenant substantially similar to that set forth in Section 8.8,
and (ii) execute an agreement for the benefit of each holder, assignee or
pledgee from time to time of the Residual Interest or Residual Certificate and
any other Series or Series Certificate, to release all claims to the assets of
the Trust allocated to the Residual Interest and each other Series Portfolio and
in the event that such release is not given effect, to fully subordinate all
claims it may be deemed to have against the assets of the Trust allocated to the
Residual Interest and each other Series Portfolio. In the event of a sale or
assignment of a Series, such purchaser or assignee shall be a beneficiary of the
Trust in the manner and to the extent set forth in the Series Certificate so
acquired and in the applicable Series Supplement.
(d) The COLT Owner Trustee shall perform such duties, have such
responsibilities and adhere to such standards of care as are specified in
Article VI of this Declaration with respect to each Series created hereunder.
(e) No interest in any Series, Series Certificate or Series Portfolio
shall be transferred, assigned, sold or conveyed if, as the result of such
transfer, assignment, sale or conveyance, the Trust would become a publicly
traded partnership.
ARTICLE IV
THE CERTIFICATES
SECTION 4.1 Form of the Certificates. (a) The Residual Certificates shall
be substantially in the form of Exhibit B hereto and the Series Certificates
shall be substantially in the form attached to the related Series Supplement.
The Certificates shall be issued as fully registered definitive certificates
("Definitive Certificates"). The Certificates shall be executed on behalf of the
Trust by the manual or facsimile signature of a Responsible Officer of the COLT
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
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Trust, shall be duly issued and fully paid and non-assessable, fractional
divided interests in the Trust, 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 COLT
Owner Trustee or Deutsche Bank Trust Company Americas, as the COLT 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 4.2 Registration; Registration of Transfer and Exchange of
Certificates. (a) Deutsche Bank Trust Company Americas 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 4.6, 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.
(b) Upon surrender for any permitted registration of transfer or
exchange of any Certificate at the office or agency maintained pursuant to
Section 4.6, the COLT Owner Trustee shall execute on behalf of the Trust,
authenticate and deliver (or shall cause Deutsche Bank Trust Company Americas,
as its authenticating agent, to authenticate and deliver), in the name of the
designated transferee or transferees, a new Certificate dated the date of
authentication by the COLT Owner Trustee or any authenticating agent. Such new
Certificate shall represent a divided interest in the Trust Assets represented
by the Certificate being replaced thereby. 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 COLT Owner Trustee in writing that such transfer of the Certificate is
permitted. No certificate may be acquired by or transferred to or for the
account of (i) an employee benefit plan (as defined in Section 3(3) of ERISA)
that is subject to the provisions of Title I of ERISA, (ii) a plan described in
Section 4975(e)(1) of the Code, or (iii) any entity whose underlying assets
include plan assets by reason of a plan's investment in the entity (each, a
"Benefit Plan"). By accepting and holding a Certificate, the holder of such
Certificate shall be deemed to have represented and warranted that it is not a
Benefit Plan and is not purchasing on behalf of a Benefit Plan.
(c) 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 COLT Owner
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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 COLT Owner Trustee or Certificate Registrar in accordance with
its customary practices.
(d) No service charge shall be made for any registration of transfer or
exchange of Certificates, but the COLT 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 other reasonable expenses in
connection with any transfer or exchange of Certificates.
SECTION 4.3 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 COLT 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 COLT Owner Trustee that such
Certificate has been acquired by a protected purchaser, the COLT Owner Trustee
shall execute on behalf of the Trust and shall authenticate and deliver (or
shall cause Deutsche Bank Trust Company Americas, 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 COLT 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 4.3(a), a
protected purchaser of the original Certificate in lieu of which such
replacement Certificate was issued presents for payment such original
Certificate, the COLT 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 protected 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 COLT Owner Trustee in connection therewith.
(c) No service charge shall be made for the issuance of any replacement
Certificate under this Section 4.3, but the COLT 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 COLT Owner Trustee and the Certificate Registrar) connected therewith.
(d) Any duplicate Certificate issued pursuant to this Section 4.3 in
replacement of any mutilated, destroyed, lost or stolen Certificate shall
constitute an original additional nonassessable (except as otherwise provided
herein or therein) divided interest in the Trust, whether or not the mutilated,
destroyed, lost or stolen Certificate shall be found at any time or be
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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 4.3 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 4.4 Persons Deemed Certificateholders. Prior to due presentation
of a Certificate for registration of transfer or exchange, the COLT 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 COLT
Owner Trustee nor the Certificate Registrar shall be affected by any notice to
the contrary.
SECTION 4.5 Access to List of Certificateholders' Names and Addresses.
With respect to each Series, the Certificate Registrar shall furnish or cause to
be furnished to the Servicer and any Series Certificateholder or the Residual
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 for that particular Series 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,
GMAC, the COLT 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 4.6 Maintenance of Corporate Trust Office. The COLT Owner Trustee
shall maintain an office or offices or agency or agencies where notices and
demands to or upon the COLT Owner Trustee in respect of the Certificates, the
Basic Documents and the Series Basic Documents may be served. The COLT Owner
Trustee initially designates its Corporate Trust Office as its principal office
for such purposes. The COLT Owner Trustee shall give prior written notice to
GMAC and to the Certificateholders of any change in the location of any such
office or agency. In no event, however, shall the COLT Owner Trustee change the
office or agency designated for the foregoing purposes to any other jurisdiction
unless the COLT 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 Deutsche Bank Trust Company Americas, 60 Wall Street,
New York, New York 10005, Attention: Corporate Trust and Agency Group, 26th
Floor. The Certificate Registrar shall give prior written notice to the COLT
Owner Trustee, GMAC and the Certificateholders of any change in location of such
office or agency.
ARTICLE V
ACTIONS BY OWNER TRUSTEE
SECTION 5.1 Prior Notice to Certificateholders with Respect to Certain
Matters. Except as otherwise provided in this Article V, the COLT Owner Trustee
shall not take action
9
with respect to the following matters, unless (i) the COLT Owner Trustee shall
have notified the Certificateholders of each affected Series in writing of the
proposed action at least 30 days before the taking of such action, and (ii) such
Certificateholders shall not have notified the COLT 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; or
(c) the incurring of any indebtedness, or the assumption or guaranty of
any indebtedness of any other entity, other than (i) indebtedness incurred or
guaranteed in connection with the issuance of the Certificates, the issuance of
any Secured Notes or the purchase of additional Lease Assets as contemplated
hereunder; (ii) indebtedness to the Servicer incurred or guaranteed in
connection with the Trust's performance of its obligations under the Basic
Documents or any Series Basic Documents to which it is a party, which
indebtedness will provide that for so long as any such obligation of the Trust
under the Basic Documents or the related Series Basic Documents is outstanding,
such indebtedness will only be payable to the extent the Trust has available
cash with respect to the related Series to pay such indebtedness; and (iii)
indebtedness with respect to any Series where the Person to whom the
indebtedness is owing has delivered to the Trust an undertaking that it (x) will
not institute against, or join any other person in instituting against, the
Trust any bankruptcy, reorganization, arrangement, insolvency or liquidation
proceeding or other proceeding under any federal or state bankruptcy or similar
law, that it will not look to property or assets of the Trust in respect to such
obligations, and that such obligations shall not constitute a claim against the
Trust if the Trust's assets with respect to such Series are insufficient to pay
in full such obligations after the payment in full of all amounts due and owing
to the related series of Secured Notes, in each case for one year and one day
after the termination of this Declaration, and (y) acknowledges and agrees that
its rights to repayment of any such indebtedness are expressly subordinated to
the payment of all amounts due and owing on the related Series of Secured Notes.
SECTION 5.2 Action by Certificateholders with Respect to Certain Matters.
Except as otherwise expressly agreed by the Certificateholders of each affected
Series (or, with respect to clause (ii), the amendment provisions of any Basic
Document) and the delivery of prior notice to each Rating Agency, the COLT 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 5.3 Action by Certificateholders with Respect to Bankruptcy. The
COLT 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 and the delivery to the COLT Owner Trustee of a certificate
signed by each such Certificateholder and
10
certifying that such Certificateholder reasonably believes that the Trust is
insolvent; provided, however, that under no circumstances shall the COLT Owner
Trustee commence or join in commencing any such proceedings prior to the date
which is one year and one day after the termination of this Declaration with
respect to the Trust.
SECTION 5.4 Restrictions on Certificateholders' Power. The
Certificateholders shall not direct the COLT 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 COLT Owner Trustee under this Declaration, any
other Basic Document or any Series Basic Document or would be contrary to
Section 2.3, nor shall the COLT Owner Trustee be obligated to follow any such
direction, if given.
SECTION 5.5 Control by Certificateholders. Except as expressly provided
otherwise in any provision providing for the consent or action of
Certificateholders in any Basic Document only, any action that may be taken or
consent that may be given or withheld by the Certificateholders under this
Declaration, any other Basic Document or any applicable Series Basic Document
may be taken, given or withheld only by the unanimous consent of the of
Certificateholders evidencing beneficial interests in the Series Portfolio that
would be affected by such consent or action.
SECTION 5.6 Application of Collections. All amounts received by the
Servicer on behalf of the Trust with respect to the Residual Trust Assets shall
be allocated and distributed in accordance with the instructions of the
Certificateholders as provided in Article 3 of the Residual COLT Servicing
Agreement. All amounts received by the Servicer on behalf of the Trust with
respect to the Trust Assets allocated to a particular Series shall be allocated
and distributed in accordance with the COLT Servicing Agreement related to that
Series.
ARTICLE VI
THE OWNER TRUSTEE
SECTION 6.1 Duties of COLT Owner Trustee. (a) The COLT Owner Trustee
undertakes to perform such duties, and only such duties, as are specifically set
forth in this Declaration, the other Basic Documents and any Series Basic
Documents, including the administration of the Trust in the interest of the
Certificateholders, subject to the Basic Documents and any applicable Series
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 COLT Owner Trustee shall be
deemed to have discharged all of its duties and responsibilities hereunder and
under the Basic Documents and any applicable Series Basic Documents to the
extent the Servicer has agreed in any Servicing Agreement to perform any act or
to discharge any duty of the COLT Owner Trustee hereunder or under any other
Basic Document or any applicable Series Basic Documents, and the COLT Owner
Trustee shall not be liable for the default or failure of the Servicer to carry
out its obligations under any Servicing Agreement.
(c) In the absence of bad faith on its part, the COLT Owner Trustee may
conclusively rely upon certificates or opinions furnished to the COLT Owner
Trustee and conforming to the
11
requirements of this Declaration in determining the truth of the statements and
the correctness of the opinions contained therein; provided, however, that the
COLT 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 COLT Owner Trustee may not be relieved from liability for its
own negligent action, its own negligent failure to act or its own willful
misconduct, except that:
(i) this Section 6.1(d) shall not limit the effect of Sections
6.1(a) or 6.1(b);
(ii) the COLT 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 COLT Owner Trustee was negligent in ascertaining the pertinent
facts; and
(iii) the COLT 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 or
any applicable Series Basic Document.
(e) Monies received by the COLT Owner Trustee hereunder need not be
segregated in any manner except to the extent required by law, the Basic
Documents or any applicable Series Basic Documents, may be deposited under such
general conditions as may be prescribed by law, and the COLT Owner Trustee shall
not be liable for any interest thereon.
(f) The COLT 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 COLT Owner
Trustee, result in the Trust's becoming taxable as a corporation. The
Certificateholders shall not direct or cause the COLT Owner Trustee to take
action that would violate the provisions of this Section 6.1(f).
SECTION 6.2 Rights of COLT Owner Trustee. The COLT Owner Trustee is hereby
authorized and directed to execute and deliver, on behalf of the Trust, the
Basic Documents, any Series Basic Documents and each certificate or other
document attached as an exhibit to or contemplated by the Basic Documents or the
Series Basic Documents to which the Trust is to be a party, in such form as the
Servicer shall approve as evidenced conclusively by the COLT Owner Trustee's
execution thereof. In addition to the foregoing, the COLT Owner Trustee is
authorized, but shall not be obligated, to take all actions required of the
Trust pursuant to the Basic Documents and the Series Basic Documents. The COLT
Owner Trustee is further authorized from time to time to take such action as the
Servicer shall request with respect to any Basic Document or the Series Basic
Documents that the Servicer shall determine to be necessary or appropriate in
connection with its servicing obligations under any Servicing Agreement.
SECTION 6.3 Acceptance of Trusts and Duties. Except as otherwise provided
in this Article VI, in accepting the trusts hereby created Deutsche Bank Trust
Company Delaware acts solely as COLT Owner Trustee hereunder and not in its
individual capacity and all Persons having any claim against the COLT Owner
Trustee by reason of the transactions contemplated by this Declaration, any
other Basic Document or any applicable Series Basic Documents shall look only to
the Owner Trust Estate for payment or satisfaction thereof. The COLT Owner
Trustee accepts the trusts hereby created and agrees to perform its duties
hereunder with respect
12
to such trusts but only upon the terms of this Declaration, the other Basic
Documents and any applicable Series Basic Documents. The COLT 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, the other Basic Documents
and any applicable Series Basic Documents. The COLT Owner Trustee shall not be
liable or accountable hereunder or under any Basic Document or any applicable
Series Basic Documents 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 COLT Owner Trustee to
the Certificateholders. In particular, but not by way of limitation:
(a) the COLT 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 or any 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 GMAC, the Servicer or any Dealer with any representation or
warranty made under any Basic Document or any applicable Series Basic Document
or in any related document or the accuracy of any such representation or
warranty or any action of the Servicer, GMAC, any Dealer or any other Person
taken in the name of the COLT Owner Trustee;
(b) the COLT 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, GMAC or Certificateholders holding the Certificates as described
in Section 5.5;
(c) no provision of this Declaration or any other Basic Document shall
require the COLT Owner Trustee to expend or risk funds or otherwise incur any
financial liability in the performance of any of its rights or powers as COLT
Owner Trustee hereunder or under any other Basic Document, if the COLT 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 COLT Owner Trustee be liable for
indebtedness evidenced by or other obligations of the Trust arising under any of
the Basic Documents or Series Basic Documents;
(e) the COLT 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 the Servicer 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, any Series Basic Documents, the Certificates (other than
the execution of the Certificates or the certificate of authentication on the
Certificates) or any Lease Assets or related documents, and the COLT Owner
Trustee shall in no event assume or incur any
13
liability, duty or obligation to any Certificateholder, other than as expressly
provided for herein and in the other Basic Documents and the applicable Series
Basic Documents;
(f) the COLT Owner Trustee shall not be liable for the default or
misconduct of the Servicer, GMAC or any Dealer under any of the Basic Documents
or otherwise, and the COLT 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 any
Servicing Agreement;
(g) the COLT 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, any other Basic
Document or any applicable Series Basic Document or in relation to this
Declaration, any other Basic Document or any applicable Series Basic Document,
at the request, order or direction of any of the Certificateholders, unless such
Certificateholders have offered to the COLT Owner Trustee security or indemnity
satisfactory to it against the costs, expenses and liabilities that may be
incurred by the COLT Owner Trustee (including the reasonable fees and expenses
of its counsel) therein or thereby; the right of the COLT Owner Trustee to
perform any discretionary act enumerated in this Declaration, in any other Basic
Document or any applicable Series Basic Document shall not be construed as a
duty, and the COLT Owner Trustee shall only be answerable for its negligence or
willful misconduct in the performance of any such act; and
(h) the provisions of this Declaration, to the extent that they restrict
the duties and liabilities of the COLT Owner Trustee otherwise existing at law
or in equity, are agreed by the Trust, GMAC, the Servicer, the
Certificateholders and all other Persons to replace such other duties and
liabilities of the COLT Owner Trustee.
SECTION 6.4 Action upon Instruction by Certificateholders. (a) Subject to
Section 5.4, the Certificateholders may by written instruction direct the COLT
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
5.5.
(b) Notwithstanding the foregoing, the COLT Owner Trustee shall not be
required to take any action hereunder or under any other Basic Document if the
COLT 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
COLT Owner Trustee or is contrary to the terms hereof or of any other Basic
Document or is otherwise contrary to law.
(c) Whenever the COLT 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 COLT 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 COLT Owner Trustee acts in good faith in
accordance with any such instruction received, the COLT Owner Trustee shall not
be liable on account of such action to any Person. If the COLT Owner Trustee
shall not, in the reasonable judgment of the COLT Owner Trustee, have received
14
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 interests
of the Certificateholders, and the COLT Owner Trustee shall have no liability to
any Person for any such action or inaction.
SECTION 6.5 Furnishing of Documents. The COLT Owner Trustee shall furnish
to the Certificateholders 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 COLT Owner
Trustee under the Basic Documents or any applicable Series Basic Documents.
SECTION 6.6 Representations and Warranties of COLT Owner Trustee. The COLT
Owner Trustee, in its individual capacity, hereby represents and warrants to
GMAC and 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 law, statute, rule, or regulation governing the
banking and trust powers of the COLT Owner Trustee or any order, writ, judgment
or decree of any court, arbitrator or Governmental Authority applicable to the
COLT Owner Trustee or any of its assets, (ii) shall not violate any provision of
the corporate charter or by-laws of the COLT Owner 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 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 COLT Owner Trustee's performance or ability to
perform its duties as COLT Owner Trustee under this Declaration or on the
transactions contemplated in this Declaration.
(d) The execution, delivery and performance by the COLT 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.
(e) This Declaration has been duly executed and delivered by the COLT
Owner Trustee and constitutes the legal, valid and binding agreement of the COLT
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
15
general and by general principles of equity, regardless of whether such
enforceability is considered in a proceeding in equity or at law.
SECTION 6.7 Reliance; Advice of Counsel. (a) The COLT 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 COLT 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 COLT 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 COLT 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 COLT 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 Deutsche Bank Trust Company Americas to execute and
deliver any Basic Document, Certificate, or other documents related thereto and
to take any action in connection therewith on behalf of the COLT Owner Trustee)
pursuant to agreements entered into with any of them, and the COLT 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 COLT Owner Trustee with reasonable care; and (ii) may
consult with counsel, accountants and other professionals to be selected with
reasonable care by it. The COLT 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.
SECTION 6.8 COLT Owner Trustee May Not Own Certificates. The COLT Owner
Trustee in its individual or any other capacity may deal with GMAC, the Servicer
and the Dealers in transactions in the same manner as it would have if it were
not the COLT Owner Trustee; provided, however, that the COLT Owner Trustee may
not become an owner or pledgee of Certificates.
SECTION 6.9 Compensation and Indemnity. GMAC hereby agrees to (i)
compensate Deutsche Bank Trust Company Delaware and Deutsche Bank Trust Company
Americas in accordance with a separate fee agreement, (ii) reimburse each of
Deutsche Bank Trust Company Delaware and Deutsche Bank Trust Company Americas
for all reasonable expenses in connection with the exercise and performance of
their rights and duties hereunder (including reasonable fees and expenses of
counsel and other experts) and (iii) indemnify, defend and hold harmless
Deutsche Bank Trust Company Delaware and Deutsche Bank Trust Company Americas
and any of their respective officers, directors, employees and agents (the
"Indemnified Persons") from and against any and all losses, damages,
liabilities, claims, actions, suits, costs,
16
expenses, disbursements (including the reasonable fees and expenses of counsel),
taxes and penalties of any kind and nature whatsoever (collectively, the
"Expenses"), to the extent that such Expenses arise out of or are imposed upon
or asserted at any time against such Indemnified Persons with respect to the
performance of this Declaration, the creation, operation or termination of the
Trust or the transactions contemplated hereby; provided, however, that GMAC
shall not be required to indemnify any Indemnified Person for any Expenses which
are a result of the willful misconduct, bad faith or negligence (except for
errors in judgment) of such Indemnified Person. The obligations of GMAC under
this Section 6.9 shall survive the termination of this Declaration of Trust.
SECTION 6.10 Replacement of COLT Owner Trustee. (a) The COLT 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 COLT Owner Trustee by delivering a written instrument to the
resigning COLT Owner Trustee and the successor COLT Owner Trustee. If no
successor COLT Owner Trustee shall have been appointed and have accepted
appointment within 30 days after the giving of such notice of resignation, the
resigning COLT Owner Trustee may petition any court of competent jurisdiction
for the appointment of a successor COLT Owner Trustee. The Servicer shall remove
the COLT Owner Trustee if:
(i) the COLT Owner Trustee shall cease to be eligible in
accordance with the provisions of Section 6.13 and shall fail to resign
after written request therefor by the Servicer;
(ii) the COLT 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 COLT Owner Trustee or of its property or affairs
for the purpose of rehabilitation, conservation or liquidation; or
(iv) the COLT Owner Trustee shall otherwise be incapable of acting.
(b) If the COLT Owner Trustee resigns or is removed or if a vacancy
exists in the office of COLT Owner Trustee for any reason, the Servicer shall
promptly appoint a successor COLT Owner Trustee by written instrument, in
duplicate (one copy of which instrument shall be delivered to the outgoing COLT
Owner Trustee so removed and one copy to the successor COLT Owner Trustee) and
shall pay all fees owed to the outgoing COLT Owner Trustee.
(c) Any resignation or removal of the COLT Owner Trustee and appointment
of a successor COLT Owner Trustee pursuant to any of the provisions of this
Section 6.10 shall not become effective until a written acceptance of
appointment is delivered by the successor COLT Owner Trustee to the outgoing
COLT Owner Trustee and the Servicer and all fees and expenses due to the
outgoing COLT Owner Trustee are paid. Any successor COLT Owner Trustee appointed
pursuant to this Section 6.10 shall be eligible to act in such capacity in
accordance with Section 6.13 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 COLT Owner Trustee. The Servicer shall
17
provide notice of such resignation or removal of the COLT Owner Trustee to the
Certificateholders.
(d) The predecessor COLT Owner Trustee shall upon payment of its fees
and expenses deliver to the successor COLT Owner Trustee all documents and
statements and monies held by it under this Declaration. The Servicer and the
predecessor COLT 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 COLT Owner Trustee all such rights, powers,
duties and obligations.
(e) Upon acceptance of appointment by a successor COLT Owner Trustee
pursuant to this Section 6.10, the Servicer shall deliver notice of the
successor of such COLT Owner Trustee to the Certificateholders.
(f) No COLT Owner Trustee shall be personally liable for any action or
omission of any successor COLT Owner Trustee.
SECTION 6.11 Merger or Consolidation of COLT Owner Trustee. Any Person
into which the COLT Owner Trustee may be merged or converted or with which it
may be consolidated, or any Person resulting from any merger, conversion or
consolidation to which the COLT Owner Trustee shall be a party, or any Person
succeeding to all or substantially all of the corporate trust business of the
COLT Owner Trustee, shall be the successor of the COLT Owner Trustee hereunder,
provided such Persons shall be eligible pursuant to Section 6.13, 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 COLT Owner Trustee shall
deliver notice of such merger, consolidation or succession to the Servicer and
the Certificateholders.
SECTION 6.12 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 COLT Owner Trustee acting jointly shall have the power and
shall execute and deliver all instruments to appoint one or more Persons
approved by the COLT Owner Trustee to act as co-trustee or co-trustees, jointly
with the COLT 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 6.12, such powers, duties,
obligations, rights and trusts as the Servicer and the COLT 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
COLT 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 6.13 and no
notice of the appointment of any co-trustee or separate trustee shall be
required pursuant to Section 6.10.
(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:
18
(i) all rights, powers, duties and obligations conferred or
imposed upon the COLT Owner Trustee shall be conferred upon and exercised
or performed by the COLT 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 COLT 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 COLT 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 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 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 COLT 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 COLT 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 VI. 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
COLT 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 COLT Owner Trustee. Each such instrument shall be
filed with the COLT Owner Trustee and a copy thereof given to the Servicer.
(d) Any separate trustee or co-trustee may at any time appoint the COLT
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 COLT Owner Trustee, to the extent permitted by law, without the
appointment of a new or successor trustee.
SECTION 6.13 Eligibility Requirements for COLT Owner Trustee. The COLT
Owner Trustee shall at all times: (a) be a corporation satisfying the provisions
of Section 3807(a) of the Statutory 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 6.13, 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
COLT Owner
19
Trustee shall cease to be eligible in accordance with the provisions of this
Section 6.13, the COLT Owner Trustee shall resign immediately in the manner and
with the effect specified in Section 6.10.
ARTICLE VII
TERMINATION OF DECLARATION
SECTION 7.1 Termination of Declaration. (a) This Declaration (other than
Section 6.9) and the Trust shall terminate and be of no further force or effect
on the final distribution by the COLT Owner Trustee of all monies or other
property or proceeds of the Owner Trust Estate in accordance with the terms of
this Declaration, any other Basic Documents and any applicable Series Basic
Documents (the "Trust Termination Date") after the Trust is dissolved and wound
up in accordance with Section 3808 of the Statutory Trust Act. The bankruptcy,
liquidation, dissolution, death or incapacity of any Certificateholder 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) The holders of all of the Certificates representing the Trust Assets
then owned by the Trust may direct the COLT Owner Trustee to dissolve and
terminate the Trust; provided, however, that such Certificateholders may not so
direct the COLT Owner Trustee unless all obligations of the Trust are fully and
indefeasibly paid or provided for.
(c) Upon receiving direction from the Certificateholders to dissolve and
terminate the Trust as provided in Section 7.1(b) above, notice of any
termination of the Trust, specifying the date upon which the Certificateholders
shall surrender their Certificates to the COLT Owner Trustee for payment of the
final distribution upon redemption and cancellation, shall be given by the COLT
Owner Trustee by a letter to all the Certificateholders mailed within five
Business Days of receipt of notice of such termination from the
Certificateholders stating: (i) the date upon or with respect to which the Owner
Trust Estate will be distributed to the Certificateholders upon presentation and
surrender of the Certificates at the office of the COLT Owner Trustee therein
designated; (ii) the amount of any such final distribution; and (iii) that
distribution will be made only upon presentation and surrender of the
Certificates at the office of the Certificate Registrar. The COLT Owner Trustee
shall give such notice to the Certificate Registrar (if other than the COLT
Owner Trustee) at the time such notice is given to Certificateholders. Upon
presentation and surrender of the Certificates pursuant to this Section 6.1(c),
the COLT Owner Trustee, subject to payment or reasonable provision for payment
of all liabilities of the Trust or any Series, shall cause to be distributed to
each Certificateholder the Trust property allocated to such Certificateholder's
Series Portfolio.
(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 COLT 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 COLT Owner
20
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 GMAC and, upon GMAC's request, shall be distributed by the COLT Owner Trustee
to GMAC.
(e) Upon the winding up of the Trust, the COLT 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 Statutory Trust Statute and thereupon the Trust shall terminate.
ARTICLE VIII
MISCELLANEOUS
SECTION 8.1 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 receive distributions with respect to
their divided ownership interest therein only in accordance with this
Declaration, the other Basic Documents and any applicable Series 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 8.2 Limitations on Rights of Others. The provisions of this
Declaration are solely for the benefit of the COLT Owner Trustee, COLT, LLC, 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 8.3 Notices. All demands, notices and communications upon or to
COLT, LLC, the Servicer or the COLT Owner Trustee or the Certificateholders
under this Declaration shall be delivered as specified in Part III of Exhibit I
hereto.
SECTION 8.4 Amendment.
(a) This Declaration may be amended by written agreement between the
Residual Certificateholder and the COLT Owner Trustee (entered into by the COLT
Owner Trustee at the written direction of the Residual Certificateholder) and
(unless otherwise provided in a Series Supplement) without the consent of any
other Person for one or more of the following purposes: (A) to add to the
covenants and agreements pursuant to this Declaration for the benefit of the
holders of the Secured Notes or the Certificates; (B) to cure any ambiguity or
to correct or supplement any defective or inconsistent provision contained in
this Declaration or in any amendment to this Declaration; or (C) to add such
provisions with respect to matters or questions arising under this Declaration
as may be necessary or desirable and not inconsistent with this Declaration;
provided, however, that such action shall not adversely affect in any material
21
respect the interests of any Securitization Party, Certificateholder or Secured
Noteholder, as applicable; and provided, further, that an Opinion of Counsel
shall be furnished to the COLT Owner Trustee or its designated agent to the
effect that (i) such amendment is authorized or permitted by this Section 8.4,
(ii) all conditions precedent, if any, to the execution and delivery of such
amendment have been satisfied in all material respects and (iii) the execution
and delivery of such amendment will not (A) materially adversely affect the
federal or any applicable state income or franchise taxation of any outstanding
Secured Notes, Certificates or of the Trust and (B) cause the Trust to be
taxable as a corporation for federal or any applicable state income or franchise
tax purposes.
(b) In addition to the amendments authorized pursuant to Section 8.4(a),
this Declaration may be amended from time to time by written agreement between
the COLT Owner Trustee, all of the Certificateholders and all parties specified
in any Series Supplements or any other Series Basic Documents for the purpose of
adding any provisions to or changing in any manner or eliminating any of the
provisions of this Declaration; provided, however, that, so long as any Rated
Notes are outstanding, the effectiveness of any amendment pursuant to this
Section 8.4(b) shall be subject to the COLT Owner Trustee's receipt of written
confirmation from each Rating Agency that such amendment will not result in a
reduction or withdrawal of such Rating Agency's rating on any Rated Notes.
(c) Promptly after the execution of any such amendment or consent, the
COLT Owner Trustee or its designated agent shall furnish a copy of such
amendment or consent to the Certificateholders, the Secured Noteholders, the
Servicer, the Securitization Parties, any Person specified in a Series
Supplement, and any Rating Agency.
SECTION 8.5 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 8.6 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 8.7 Successors and Assigns. All covenants and agreements contained
herein shall be binding upon, and inure to the benefit of, GMAC, the Trust, the
COLT 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 8.8 No Petition Covenant. Notwithstanding any other provision of
this Declaration, any other Basic Document or any applicable Series Basic
Document and notwithstanding any prior termination of this Declaration, each
Certificateholder and the COLT Owner Trustee shall not, prior to the date which
is one year and one day after the termination of this Declaration with respect
to the Trust, acquiesce, petition or otherwise invoke or cause the
22
Trust to invoke the process of any Governmental Authority for the purpose of
commencing or sustaining a case against the Trust under any federal or state
bankruptcy, insolvency or similar law or appointing a receiver, liquidator,
assignee, trustee, custodian, sequestrator or other similar official of the
Trust or any substantial part of its property, or ordering the winding up or
liquidation of the affairs of the Trust.
SECTION 8.9 No Recourse. Each Certificateholder by accepting a Certificate
acknowledges that such Certificateholder's Certificates represent equity
beneficial interests in the Trust and the Owner Trust Estate only and do not
represent interests in or obligations of GMAC, the Servicer, the COLT 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, the other Basic Documents or the related Series
Basic Documents.
SECTION 8.10 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.
SECTION 8.11 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.
23
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.
DEUTSCHE BANK TRUST COMPANY DELAWARE,
as COLT Owner Trustee
By: ____________________________________
Name: Elizabeth Ferry
Title: Assistant Vice President
Acknowledged, accepted and agreed
as of this _____ day of March, 2004.
CENTRAL ORIGINATING LEASE, LLC, as Residual Certificateholder
By:__________________________________________
Name: C.A. Ondrick
Title: Senior Project Manager - Securitization
GENERAL MOTORS ACCEPTANCE CORPORATION
By:___________________________________________
Name: Karen A. Sabatowski
Title: Director - Securitization and Cash Management
Third Amended and Restated
Declaration of Trust
S-1
EXHIBIT A TO THE
DECLARATION OF TRUST
FORM OF RESTATED CERTIFICATE OF TRUST OF
CENTRAL ORIGINATING LEASE TRUST
THIS Restated Certificate of Trust (this "Restated Certificate") of
Central Originating Lease Trust (the "Trust"), is being executed and filed by
the undersigned, as trustee, to amend and restate that certain Certificate of
Trust (the "Original Certificate") that was filed on March 12, 1996, under the
Delaware Statutory Trust Act (12 Del. Code, Section 3801 et seq.) (the "Act").
The Original Certificate is hereby amended and restated in its
entirety to read as follows:
1. Name. The name of the statutory 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 Deutsche Bank Trust Company Delaware, 1011
Centre Road, Suite 200, Wilmington, Delaware 19805-1266.
3.. Series. Pursuant to Section 3806(b)(2) of the Act, the Trust
shall issue one or more series of beneficial interests having the rights and
preferences set forth in the governing instrument of the Trust, as the same may
be amended from time to time (each a "Series").
4. Notice of Limitation of Liabilities of each Series. Pursuant to
Section 3804(a) of the Act, there shall be a limitation on liabilities of each
Series such that (a) the debts, liabilities, obligations and expenses incurred,
contracted for or otherwise existing with respect to a particular Series shall
be enforceable against the assets of such Series only, and not against the
assets of the Trust generally or the assets of any other Series thereof and (b)
none of the debts, liabilities, obligations and expenses incurred, contracted
for or otherwise existing with respect to the Trust generally or any other
Series thereof shall be enforceable against the assets of such Series.
5. Effective Date. This Restated Certificate shall be effective on
March 16, 2004.
A-1
IN WITNESS WHEREOF, the undersigned has executed this Restated
Certificate in accordance with Section 3811(a)(2) of the Act.
DEUTSCHE BANK TRUST COMPANY DELAWARE,
not in its individual capacity but
solely as trustee
By: _____________________________________
Name: ___________________________________
Title: __________________________________
A-2
EXHIBIT B TO THE
DECLARATION OF TRUST
FORM OF RESIDUAL CERTIFICATE
NUMBER 100% BENEFICIAL INTEREST
R-1
CENTRAL ORIGINATING LEASE TRUST
RESIDUAL CERTIFICATE
Evidencing the divided equity beneficial interest in all assets of
the Trust other than those identified Trust Assets that are from time to time
allocated by the Trust to one or more Series Portfolios of Trust Assets (the
"Residual Trust Assets"), which includes a pool of automobile and light truck
leases and related vehicles sold, originated, transferred or conveyed to the
Trust.
(THIS RESIDUAL CERTIFICATE DOES NOT REPRESENT AN INTEREST IN OR
OBLIGATION OF GENERAL MOTORS ACCEPTANCE CORPORATION, CENTRAL ORIGINATING LEASE,
LLC OR ANY OF THEIR AFFILIATES, EXCEPT TO THE EXTENT DESCRIBED BELOW.)
THIS CERTIFIES THAT [ ] is the registered owner of a
nonassessable, fully-paid, divided equity beneficial interest in the Residual
Trust Assets of CENTRAL ORIGINATING LEASE TRUST, a Delaware statutory trust (the
"Trust").
The Trust exists pursuant to the Third Amended and Restated
Declaration of Trust, executed on March 25, 2004, by the COLT Owner Trustee and
acknowledged by Central Originating Lease, LLC, in its capacity as a
certificateholder of the Trust, and General Motors Acceptance Corporation (the
"Declaration"), a summary of certain of the pertinent provisions of which is set
forth below. To the extent not otherwise defined herein, the capitalized terms
used herein have the meanings assigned to them in the Declaration.
This Residual Certificate is issued under and is subject to the
terms, provisions and conditions of Section 3.1 of the Declaration, to which
Declaration the holder of this Residual Certificate by virtue of the acceptance
hereof assents and by which such holder is bound. The provisions and conditions
of the Declaration are hereby incorporated by reference as though set forth in
their entirety herein.
THIS RESIDUAL CERTIFICATE 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.
THIS RESIDUAL CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, (THE "ACT") AND THE
B-1
VARIOUS STATE SECURITIES LAWS. NO TRANSFER OF THIS RESIDUAL CERTIFICATE OR ANY
INTEREST HEREIN SHALL BE MADE UNLESS SUCH TRANSFER IS MADE PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE ACT AND APPLICABLE STATE SECURITIES
LAWS OR IS MADE IN A TRANSACTION THAT DOES NOT REQUIRE REGISTRATION UNDER THE
ACT OR ANY APPLICABLE STATE SECURITIES LAWS, IN EACH CASE IN ACCORDANCE WITH
SECTION 4.2(B) OF THE DECLARATION.
This Residual Certificate may not be acquired by or for the account
of or with the assets of (a) an employee benefit plan (as defined in Section
3(3) of ERISA) that is subject to the provisions of Title I of ERISA, (b) a plan
described in Section 4975(e)(1) of the Internal Revenue Code of 1986, as amended
or (c) any entity whose underlying assets include plan assets by reason of a
plan's investment in the entity (each, a "Benefit Plan"). By accepting and
holding this Residual Certificate, the holder hereof shall be deemed to have
represented and warranted that it is not a Benefit Plan and is not purchasing on
behalf of a Benefit Plan.
No interest in the Residual Trust Assets or this Residual
Certificate shall be transferred, assigned, sold or conveyed if, as the result
of such transfer, assignment, sale or conveyance, the Trust would become a
publicly traded partnership.
B-2
IN WITNESS WHEREOF, the COLT Owner Trustee has caused this
Certificate to be duly executed.
CENTRAL ORIGINATING LEASE TRUST
By: DEUTSCHE BANK TRUST COMPANY
DELAWARE, not in its individual capacity,
but solely as the COLT Owner Trustee
By: __________________________________________
Dated: _______________________________________
B-3
OWNER TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is the Certificate referred to in the within-mentioned Declaration.
DEUTSCHE BANK TRUST COMPANY DELAWARE,
as the COLT Owner Trustee
By: DEUTSCHE BANK TRUST COMPANY AMERICAS,
as Authenticating Agent
By: ______________________________________
Authorized Signatory
B-4
EXHIBIT I
TO THIRD AMENDED AND RESTATED DECLARATION OF TRUST
PART I -- COLT PROGRAM DEFINITIONS
"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": the Declaration, the VAULT Trust Agreement, the COLT
Designation and all other agreements entered into by or in connection with COLT,
excluding any agreements entered into solely with respect to a particular
Series.
"Benefit Plan": set forth in Section 4.2(b) of the Declaration.
"Business Day": a day other than a Saturday, Sunday or other day on which
commercial banks in Wilmington, Delaware or New York, New York are authorized or
required by law to close.
"Certificate of Trust" or "Original Certificate": the Certificate of Trust
pursuant to which COLT was established on March 15, 1996, substantially in the
form attached as Exhibit A to the Declaration of Trust, as the same may be
amended and restated from time to time.
"Certificate Register": the register of Certificates and
Certificateholders specified in Section 4.2 of the Declaration of Trust.
"Certificate Registrar": the registrar at any time of the Certificate
Register, appointed pursuant to Section 4.2(a) of the Declaration of Trust.
"Certificateholder": a Person in whose name a Certificate is registered
from time to time pursuant to the terms of the Declaration of Trust.
"Certificates": the certificates of equity beneficial interest in COLT,
including Residual Certificates and Series Certificates.
"Code": the Internal Revenue Code of 1986 as amended, and the Treasury
Regulations promulgated thereunder.
"COLT": Central Originating Lease Trust, a Delaware statutory trust
created by the Declaration of Trust.
"COLT Designation": the Designation of Trust Beneficiary and Creation of
Sub-Trust, dated as of March 15, 1996, between GMAC, as Servicer and Initial
Trust Beneficiary and COLT, and acknowledged by PNC Bank, Delaware, as trustee,
pursuant to which COLT became a Trust Beneficiary under the VAULT Trust
Agreement.
"COLT Indenture": with respect to each Series of Secured Notes, the COLT
Indenture pursuant to which the related Secured Notes are issued.
"COLT, LLC": Central Originating Lease, LLC, or any successor thereto.
"COLT Owner Trustee": Deutsche Bank Trust Company 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.
"COLT Sale and Contribution Agreement": with respect to any Series, the
COLT Sale and Contribution Agreement dated as of the related Series Closing
Date, between GMAC and COLT, pursuant to which the related Lease Assets are sold
by GMAC to COLT.
"COLT Servicing Agreement": with respect to each Series and the related
Lease Assets, the COLT Servicing Agreement, dated as of the related Series
Closing Date, between COLT, the Servicer and the indenture trustee for such
Series of Secured Notes, as the same may be amended, supplemented or otherwise
modified from time to time.
"Corporate Trust Office": with respect to the COLT Owner Trustee, the
principal office at which at any particular time the corporate trust business of
the COLT Owner Trustee is administered, which office is initially located at
1011 Centre Road, Suite 200, Wilmington, Delaware 19805-1266.
"Dealer": any Person that is a General Motors Corporation franchised
dealer or an Affiliate of a General Motors Corporation franchised dealer that
participates in a leasing program with COLT, GMAC or another beneficiary of
VAULT.
"Declaration of Trust" or "Declaration": the Third Amended and Restated
Declaration of Trust by Deutsche Bank Trust Company Delaware, as COLT Owner
Trustee, dated as of March 25, 2004, acknowledged, accepted and agreed to by
COLT, LLC, and GMAC, as the same may be amended, supplemented or otherwise
modified from time to time.
"Definitive Certificates": as set forth in Section 4.1 of the Declaration.
"Disposition Proceeds": with respect to any Series of Secured Notes and
the related Lease Assets included in the related Series Portfolio, as set forth
in Exhibit A to the related COLT Servicing Agreement.
"ERISA": the Employee Retirement Income Security Act of 1974, as amended.
"Fitch": Fitch Ratings or any successor thereto.
"GMAC": General Motors Acceptance Corporation.
- 2 -
"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.
"IRS": the Internal Revenue Service, or any successor thereto.
"Lease Asset": a Program Lease and the Vehicle related thereto.
"Lien": any security interest, lien, charge, pledge, equity or encumbrance
of any kind.
"Moody's": Moody's Investors Service, Inc., or any successor thereto.
"Old Declaration of Trust" or "Old Declaration": as defined in the
preamble of the Declaration of Trust.
"Opinion of Counsel": a written opinion of legal counsel who may be an
employee of the Servicer.
"Owner Trust Estate": all right, title and interest of COLT in, to and
under the Lease Assets from time to time and all other property of COLT from
time to time, including all rights, interests and claims of the COLT Owner
Trustee and COLT under or in connection with any Basic Documents.
"Person": an individual, partnership, corporation, business or statutory
trust, limited liability company, joint stock company, trust, unincorporated
association, joint venture, Governmental Authority or other entity of whatever
nature.
"Program Leases": automobile and light truck leases sold, assigned,
transferred or conveyed to COLT, including all other agreements related thereto
and all rights and obligations thereunder.
"Rated Notes": with respect to each Series of Secured Notes, each class of
notes secured by an interest in such Series of Secured Notes, which has been
rated by a Rating Agency at the request of the Servicer.
"Rating Agency": with respect to any Series of Secured Notes, any or all
of Fitch, Moody's, S&P or any other nationally recognized statistical rating
organization selected by the Servicer to rate the Secured Notes of such Series
(or if such Series of Secured Notes are not rated, any Rated Notes secured by
such Series of Secured Notes), as specified in the related COLT Indenture.
"Record Date": the close of business on the last Business Day of each
calendar month.
"Residual Certificate": as set forth in Section 3.1(b) of the Declaration.
"Residual Certificateholder": COLT, LLC or its successors and assigns in
such capacity.
- 3 -
"Residual COLT Servicing Agreement": the Amended and Restated Residual
COLT Servicing Agreement, dated as of March 25, 2004, between GMAC, as Servicer,
and COLT, as the same may be amended, supplemented or otherwise modified from
time to time.
"Residual Interest": as set forth in Section 3.1(a) of the Declaration.
"Residual Trust Assets": as set forth in Section 3.1(a) of the
Declaration.
"Responsible Officer": when used with respect to COLT or the COLT Owner
Trustee, any officer of Deutsche Bank Trust Company Americas acting under a
valid power of attorney from the COLT Owner Trustee, or any officer within the
Corporate Trust Office of the COLT Owner Trustee including any Vice President,
Assistant Vice President, Secretary, Assistant Secretary, Treasurer, Assistant
Treasurer or any other officer of the COLT Owner Trustee customarily performing
functions similar to those performed by any of the above designated officers and
also, with respect to a particular matter, any other officer to whom such matter
is referred because of such officer's knowledge of and familiarity with the
particular subject.
"Restated Certificate: the restated certificate of trust substantially in
the form set forth in Exhibit A to the Declaration.
"S&P": Standard & Poor's, a division of The McGraw-Hill Companies, Inc.,
or any successor thereto.
"Second Declaration" or "Second Declaration of Trust": as set forth in the
preamble of this Declaration of Trust.
"Secured Note": with respect to any Series, any secured note issued by
COLT pursuant to the COLT Indenture related to such Series.
"Secured Noteholder": with respect to any Secured Note of any Series and
any date of determination, the Person in whose name such Secured Note is
registered in the Secured Note Register related to such Series on such date.
"Securities Act": the Securities Act of 1933, as amended.
"Securitization": (i) financing transactions of any sort undertaken by the
Residual Certificateholder or an Affiliate thereof or a Special Purpose Entity
secured, directly or indirectly, by Trust Assets, by the Residual Interest or by
any Series or any interest therein (including any financing undertaken in
connection with the issuance and assignment of a Series and related Series
Certificates), (ii) any sale by the Residual Certificateholder or an Affiliate
thereof or a Special Purpose Entity of any interest in one or more Series, or
(iii) any other asset securitization, sale-leaseback, secured loan or similar
transaction involving Trust Assets or any equity beneficial interest therein or
in COLT.
"Securitization Parties": those Persons party to a Securitization.
- 4 -
"Series": each separate series of equity beneficial interests in COLT
created by a Series Supplement to which Lease Assets are intended to be
allocated, the Lease Assets allocated thereto or the Secured Notes related
thereto, as the context requires.
"Series Basic Documents" with respect to any Series, the COLT Sale and
Contribution Agreement, the COLT Servicing Agreement, COLT Indenture, the
related Secured Notes, the related Series Certificate, and any other agreements
or documents entered into by COLT with respect to such Series and/or the sale,
transfer, pledge or Securitization of the related Series Portfolio.
"Series Closing Date": with respect to any Series, the date of the related
Series Supplement, unless otherwise set forth in the related COLT Servicing
Agreement.
"Series Certificate": a Certificate created and issued from time to time
under a Series Supplement representing a separate series of equity beneficial
interests in COLT.
"Series Certificateholder" with respect to each Series, the holder of the
related Series Certificate.
"Series Portfolio": has the meaning set forth in Section 3.2(a) of the
Declaration.
"Series Supplement": each of the supplements to the Declaration of Trust
entered into from time to time by the Residual Certificateholder and the COLT
Owner Trustee for the purpose of issuing Series Certificates.
"Servicer": GMAC, as servicer under the Servicing Agreement, or any
successor servicer under the Servicing Agreement.
"Servicing Agreement": (x) with respect to any Series Portfolio and Series
of Secured Notes, the COLT Servicing Agreement related to such Series, as the
same may be amended, supplemented or otherwise modified from time to time, and
(y) with respect to the Residual Certificates and the Residual Trust Assets, the
Residual COLT Servicing Agreement, as the same may be amended, supplemented or
otherwise modified from time to time.
"Special Purpose Entity": any special purpose corporation, partnership,
limited partnership, trust, statutory trust, limited liability company or other
entity created for one or more Securitizations.
"Stated Residual Value": with respect to any Series of Secured Notes and
the Lease Assets included in the related Series Portfolio, as set forth in
Exhibit A to the related COLT Servicing Agreement.
"Statutory Trust Act": 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..
"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.
- 5 -
"Transfer Direction": with respect to any Series, the Transfer Direction,
dated as of the applicable Series Closing Date, pursuant to which GMAC instructs
the VAULT Trustee to hold legal title to the Vehicles related to the Lease
Assets included in the related Series Portfolio as nominee for the benefit of
COLT.
"Trust Assets": those assets comprising the Owner Trust Estate.
"VAULT": Vehicle Asset Universal Leasing Trust, a Delaware statutory trust
created under the Statutory Trust Statute pursuant to the VAULT Trust Agreement.
"VAULT Trust Agreement": the Second Amended and Restated Trust and
Servicing Agreement, dated as of March 25, 2004, between GMAC, as Servicer and
Initial Trust Beneficiary, and the VAULT Trustee, and acknowledged and agreed by
COLT, as Trust Beneficiary, as the same may be amended, supplemented or
otherwise modified from time to time.
"VAULT Trustee": Chase Manhattan Bank USA, National Association, 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 or GMAC is the trust beneficiary.
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PART II - RULES OF CONSTRUCTION
(a) Accounting Terms. As used in this Appendix or the Basic Documents,
accounting terms which are not defined, and accounting terms partly
defined, herein or therein shall have the respective meanings given
to them under generally accepted accounting principles. To the
extent that the definitions of accounting terms in this Appendix or
the Basic Documents are inconsistent with the meanings of such terms
under generally accepted accounting principles, the definitions
contained in this Appendix or the Basic Documents will control.
(b) "Hereof," etc. The words "hereof," "herein" and "hereunder" and
words of similar import when used in this Appendix or any Basic
Document will refer to this Appendix or such Basic Document as a
whole and not to any particular provision of this Appendix or such
Basic Document; and Section, Schedule and Exhibit references
contained in this Appendix or any Basic Document are references to
Sections, Schedules and Exhibits in or to this Appendix or such
Basic Document unless otherwise specified. The word "or" is not
exclusive.
(c) Reference to Payment Dates. With respect to any Payment Date, the
"related Collection Period," and the "related Determination Date,"
will mean the Collection Period and Determination Date,
respectively, immediately preceding such Payment Date, and the
relationships among Collection Periods and Determination Dates will
be correlative to the foregoing relationships.
(d) Number and Gender. Each defined term used in this Appendix or the
Basic Documents has a comparable meaning when used in its plural or
singular form. Each gender-specific term used in this Appendix or
the Basic Documents has a comparable meaning whether used in a
masculine, feminine or gender-neutral form.
(e) Including. Whenever the term "including" (whether or not that term
is followed by the phrase "but not limited to" or "without
limitation" or words of similar effect) is used in this Appendix or
the Basic Documents in connection with a listing of items within a
particular classification, that listing will be interpreted to be
illustrative only and will not be interpreted as a limitation on, or
exclusive listing of, the items within that classification.
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PART III -- NOTICE ADDRESSES AND PROCEDURES
All requests, demands, directions, consents, waivers, notices,
authorizations and communications provided or permitted under any Basic Document
to be made upon, given or furnished to or filed with GMAC, COLT, LLC, the Trust,
VAULT, the COLT Owner Trustee or the VAULT Trustee shall be in writing,
personally delivered, sent by facsimile with a copy to follow via first class
mail or mailed by certified mail-return receipt requested, and shall be deemed
to have been duly given upon receipt:
(a) in the case of COLT, LLC, at the following address:
200 Renaissance Center
12th Floor, MC: 482-B12-C24
Detroit, MI 48265,
(b) in the case of the Servicer, at the following address:
Director - Securitization and Cash Management
General Motors Acceptance Corporation
200 Renaissance Center
12th Floor, MC: 482-B12-C24
Detroit, MI 48265,
(c) in the case of the Trust or the COLT Owner Trustee, to the
COLT Owner Trustee at its Corporate Trust Office, as set forth
below:
Deutsche Bank Trust Company Delaware
1011 Centre Road
Suite 200
Wilmington, DE 19805-1266,
with a copy to:
Deutsche Bank Trust Company Americas,
Attention: Corporate Trust & Agency Group - Structured
Finance Services
60 Wall Street
26th floor
Mail Stop: NYC60-2606
New York, NY 10005
Phone (212) 250-2946
Fax (212) 797-8606/8607
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(d) in the case of VAULT or the VAULT Trustee, at its Trust Office
as set forth below:
Chase Manhattan Bank USA, National Association
500 Stanton Christiana Road
Floor 3
Ops 4
Newark, DE 19713
Phone (302) 552-6280,
(e) 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 Agreement.
Where any Basic Document provides for notice to Secured Noteholders or
Certificateholders of any condition or event, such notice shall be sufficiently
given (unless otherwise herein expressly provided) if it is sent by electronic
facsimile (with hard copy to follow via first class mail) or mailed by first
class mail or sent by overnight courier, and shall be deemed to have been duly
given upon receipt, to each Secured Noteholder or Certificateholder affected by
such condition or event, at such Person's address as it appears on the Secured
Note Register or Certificate Register, as applicable, not later than the latest
date, and not earlier than the earliest date, prescribed in such Basic Document
for the giving of such notice. If notice to Secured Noteholders or
Certificateholders is given by mail, neither the failure to mail such notice nor
any defect in any notice so mailed to any particular Secured Noteholders or
Certificateholders shall affect the sufficiency of such notice with respect to
other Secured Noteholders or Certificateholders, and any notice that is mailed
in the manner herein provided shall conclusively be presumed to have been duly
given regardless of whether such notice is in fact actually received.
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