EXHIBIT 99.9
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CAPITAL AUTO RECEIVABLES ASSET TRUST 2005-
SN1
COLT 2005-SN1 CUSTODIAN AGREEMENT
BETWEEN
GENERAL MOTORS ACCEPTANCE CORPORATION,
AS COLT CUSTODIAN
AND
CENTRAL ORIGINATING LEASE TRUST
DATED AS OF APRIL 28, 2005
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THIS COLT 2005-SN1 CUSTODIAN AGREEMENT, dated as of April 28, 2005 (this
"COLT Custodian Agreement"), is made between GENERAL MOTORS ACCEPTANCE
CORPORATION, a Delaware corporation ("GMAC"), as COLT Custodian (in such
capacity, the "COLT Custodian"), and CENTRAL ORIGINATING LEASE TRUST, a Delaware
statutory trust ("COLT").
WHEREAS, simultaneously herewith General Motors Acceptance Corporation (in
its capacity as seller of the Series 2005-SN1 Lease Assets, the "Seller"), and
COLT are entering into a COLT Sale and Contribution Agreement, dated as of the
date hereof (as it may be amended, supplemented or modified from time to time,
the "COLT Sale and Contribution Agreement"), pursuant to which GMAC shall sell,
transfer and assign, as of the Series 2005-SN1 Closing Date, to COLT without
recourse all of its right, title and interest in and to the Series 2005-SN1
Lease Assets;
WHEREAS, in connection with such sale, transfer and assignment, the COLT
Sale and Contribution Agreement provides that COLT shall simultaneously enter
into a custodian agreement pursuant to which COLT shall revocably appoint the
COLT Custodian as custodian of the Series 2005-SN1 Lease Asset Files pertaining
to the Series 2005-SN1 Lease Assets;
WHEREAS, in connection with such sale, transfer and assignment, COLT
desires for the COLT Custodian to act as custodian of the Series 2005-SN1 Lease
Assets; and
NOW, THEREFORE, in consideration of the mutual agreements herein contained
and of other good and valuable consideration the receipt and adequacy of which
are hereby acknowledged, the parties agree as follows:
1. Definitions. Capitalized terms used in this COLT Custodian
Agreement are defined in and shall have the meanings assigned to them in the
COLT Series Definitions attached as Part I of Exhibit A to the COLT Servicing
Agreement, dated as of the date hereof (as it may be amended from time to time,
the "COLT Servicing Agreement"), between COLT, GMAC, as servicer (in such
capacity, the "Servicer"), and Citibank, N.A., as indenture trustee (in such
capacity, the "COLT Indenture Trustee"), or if not defined therein, shall have
the meanings assigned to them in the COLT Program Definitions attached as
Exhibit I to the Third Amended and Restated Declaration of Trust, dated as of
March 25, 2004 (as it may be amended from time to time, the "Declaration of
Trust"), by Deutsche Bank Trust Company Delaware, as COLT Owner Trustee, and
acknowledged, accepted and agreed by Central Originating Lease, LLC, as Residual
Certificateholder, and GMAC. All references herein to "this COLT Custodian
Agreement" are to this COLT Custodian Agreement as it may be amended,
supplemented or otherwise modified from time to time.
2. Appointment of COLT Custodian; Acknowledgment of Receipt. Subject
to the terms and conditions hereof, COLT hereby appoints the COLT Custodian, and
the COLT Custodian hereby accepts such appointment, to act as agent of COLT as
COLT Custodian to maintain custody of the Series 2005-SN1 Lease Asset Files
pertaining to the Series 2005-SN1 Lease Assets. The COLT Custodian acknowledges
that COLT has pledged the Vehicles related to the Series 2005-SN1 Lease Assets
to the COLT 2005-SN1 Secured Noteholders and has pledged the remainder of the
COLT 2005-SN1 Collateral to the COLT Indenture Trustee under
the COLT Indenture for the equal and ratable benefit of the COLT 2005-SN1
Secured Noteholders and agrees to hold the Series 2005-SN1 Lease Assets on
behalf of the COLT 2005-SN1 Further Holders. In performing its duties hereunder,
the COLT Custodian agrees to act with reasonable care, using that degree of
skill and attention that the COLT Custodian exercises with respect to automotive
lease files relating to comparable automotive leases that the COLT Custodian
services and holds for itself or others. The COLT Custodian hereby acknowledges
receipt of the Series 2005-SN1 Lease Asset File for each Series 2005-SN1 Lease
Asset listed on the Series 2005-SN1 Lease Assets Schedule.
3. Maintenance at Office. The COLT Custodian agrees to maintain each
Series 2005-SN1 Lease Asset File at one of its branch offices as identified in
the List of Branch Offices attached hereto as Exhibit A, or at such other office
of the COLT Custodian as shall from time to time be identified to COLT upon 30
days' prior written notice.
4. Duties of COLT Custodian.
(a) Safekeeping. The COLT Custodian shall hold each Series
2005-SN1 Lease Asset File described herein on behalf of the COLT 2005-SN1
Further Holders and shall maintain such accurate and complete accounts, records
and computer systems pertaining to each Series 2005-SN1 Lease Asset described
herein as shall enable COLT to comply with its obligations under the COLT Sale
and Contribution Agreement and the other Series 2005-SN1 Basic Documents. Each
Series 2005-SN1 Lease Asset shall be identified as such on the books and records
of the COLT Custodian to the extent the COLT Custodian reasonably determines to
be necessary to comply with the terms and conditions of the COLT Sale and
Contribution Agreement and, if applicable, the other Series 2005-SN1 Basic
Documents. The COLT Custodian shall conduct, or cause to be conducted, periodic
physical inspections of the Series 2005-SN1 Lease Asset Files held by it under
this COLT Custodian Agreement, and of the related accounts, records and computer
systems, in such a manner as shall enable the Servicer and the COLT Custodian to
verify the accuracy of the COLT Custodian's inventory and record keeping. The
COLT Custodian shall promptly report to COLT any failure on its part to hold the
related Series 2005-SN1 Lease Asset File as described herein and maintain its
accounts, records and computer systems as herein provided and promptly take
appropriate action to remedy any such failure.
(b) Access to Records. Subject only to the COLT Custodian's
security requirements applicable to its own employees having access to similar
records held by the COLT Custodian, the COLT Custodian shall permit COLT or the
COLT Indenture Trustee or any of their duly authorized representatives,
attorneys or auditors to inspect the related Series 2005-SN1 Lease Asset Files
described herein and the related accounts, records and computer systems
maintained by the COLT Custodian pursuant hereto at such times as COLT or the
COLT Indenture Trustee may reasonably request.
(c) Release of Documents. The COLT Custodian shall release any
Series 2005-SN1 Lease Asset (and its related Series 2005-SN1 Lease Asset File)
to COLT, the Servicer or the COLT Indenture Trustee, as appropriate, under the
circumstances provided in the COLT Sale and Contribution Agreement, the COLT
Servicing Agreement and the other Series 2005-SN1 Basic Documents.
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(d) Administration; Reports. In general, the COLT Custodian
shall attend to all non-discretionary details in connection with maintaining
custody of the Series 2005-SN1 Lease Asset Files as described herein. In
addition, the COLT Custodian shall assist the Servicer generally in the
preparation of routine reports to the Holders of the COLT 2005-SN1 Secured
Notes, if any, or to regulatory bodies, to the extent necessitated by the COLT
Custodian's custody of the Series 2005-SN1 Lease Asset Files described herein.
(e) Servicing. The COLT Custodian is familiar with the duties
of the Servicer, the servicing procedures and the allocation and distribution
provisions (including those related to principal collections, losses and
recoveries on Series 2005-SN1 Lease Assets) set forth in the COLT Servicing
Agreement and the other Series 2005-SN1 Basic Documents and hereby agrees to
maintain the Series 2005-SN1 Lease Asset Files in a manner consistent therewith.
The COLT Custodian further agrees to cooperate with the Servicer in the
Servicer's performance of its duties under the COLT Servicing Agreement and the
other Series 2005-SN1 Basic Documents.
5. Instructions; Authority to Act. The COLT Custodian shall be
deemed to have received proper instructions from COLT with respect to the Series
2005-SN1 Lease Asset Files described herein upon its receipt of written
instructions signed by an Authorized Officer. A certified copy of a by-law or of
a resolution of the appropriate governing body of COLT (or, as appropriate, a
trustee on behalf of COLT) may be received and accepted by the COLT Custodian as
conclusive evidence of the authority of any such officer to act and may be
considered as in full force and effect until receipt of written notice to the
contrary. Such instructions may be general or specific in terms.
6. Indemnification By the COLT Custodian. The COLT Custodian agrees
to indemnify COLT and the Series 2005-SN1 Further Holders for any and all
liabilities, obligations, losses, damage, payments, costs or expenses of any
kind whatsoever that may be imposed on, incurred or asserted against COLT or any
Series 2005-SN1 Further Holder as the result of any act or omission in any way
relating to the maintenance and custody by the COLT Custodian of the Series
2005-SN1 Lease Asset Files described herein; provided, however, that the COLT
Custodian shall not be liable to COLT or any Series 2005-SN1 Further Holder,
respectively, for any portion of any such amount resulting from the willful
misfeasance, bad faith or negligence of COLT or such Series 2005-SN1 Further
Holder, respectively.
7. Advice of Counsel. The COLT Custodian and COLT further agree that
the COLT Custodian shall be entitled to rely and act upon advice of counsel with
respect to its performance hereunder and shall be without liability for any
action reasonably taken pursuant to such advice, provided that such action is
not in violation of applicable federal or state law.
8. Effective Period, Termination, and Amendment; Interpretive and
Additional Provisions.
(a) This COLT Custodian Agreement shall become effective as of
the date hereof, shall continue in full force and effect until terminated as
hereinafter provided.
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(b) This COLT Custodian Agreement may be amended by the COLT
Custodian and COLT (i) to cure any ambiguity, (ii) to correct or supplement any
provision in this COLT Custodian Agreement that may be defective or inconsistent
with any other provision of this COLT Custodian Agreement, or (iii) to add,
change or eliminate any other provision of this COLT Custodian Agreement in any
manner that shall not adversely affect in any material respect the interests of
the COLT 2005-SN1 Secured Noteholders or the COLT 2005-SN1 Certificateholder.
(c) This Agreement may also be amended from time to time by
the COLT Custodian and COLT with the consent of the COLT 2005-SN1
Certificateholder, if the COLT 2005-SN1 Certificateholder is any Person other
than GMAC or an Affiliate of GMAC, and the Holders of a majority of the then
Outstanding Amount of the COLT 2005-SN1 Secured Notes, which consent, whether
given pursuant to this Section 8 or pursuant to any other provision herein,
shall be conclusive and binding on such Persons and on all future holders of
COLT 2005-SN1 Certificates and COLT 2005-SN1 Secured Notes for the purpose of
adding any provisions to this COLT Custodian Agreement or changing in any manner
or eliminating any of the provisions of this COLT Custodian Agreement, or of
modifying in any manner the rights of the COLT 2005-SN1 Certificateholder or
COLT 2005-SN1 Secured Noteholders; provided, however, that no such amendment
shall (i) increase or reduce in any manner the amount of, or accelerate or delay
the timing of, collections of payments on the Series 2005-SN1 Lease Assets or
distributions that shall be required to be made on any COLT 2005-SN1 Secured
Note, or (ii) reduce the percentage in this Section 8 required to consent to any
action or amendment, without the consent of all of the holders of the COLT
2005-SN1 Secured Notes then outstanding.
(d) Prior to the execution of any amendment or consent
pursuant to this Section 8, the COLT Custodian shall furnish written notice of
the substance of such amendment or consent to the Rating Agencies, each COLT
2005-SN1 Secured Noteholder and the COLT 2005-SN1 Certificateholder.
(e) It shall not be necessary for the consent of the COLT
2005-SN1 Secured Noteholders or the COLT 2005-SN1 Certificateholder pursuant to
Section 8(c) to approve the particular form of any proposed amendment or
consent, but it shall be sufficient if such consent shall approve the substance
thereof. The manner of obtaining such consents (and any other consents of COLT
2005-SN1 Secured Noteholders or the COLT 2005-SN1 Certificateholder provided for
in this COLT Custodian Agreement) and of evidencing the authorization of the
execution thereof by the COLT 2005-SN1 Secured Noteholders and the COLT 2005-SN1
Certificateholder shall be subject to such reasonable requirements as the COLT
Indenture Trustee or the COLT Owner Trustee may prescribe, including the
establishment of record dates.
(f) This COLT Custodian Agreement may be terminated by either
party by written notice to the other party and the consent of the holders of a
majority of the then Outstanding Amount of the COLT 2005-SN1 Secured Notes,
which consent, whether given pursuant to this Section 8 or pursuant to any other
provision herein shall be conclusive and binding on such Persons and on all
future holders of COLT 2005-SN1 Secured Notes, such termination to take effect
no sooner than 60 days after the date of such notice. Notwithstanding the
foregoing, if General Motors Acceptance Corporation resigns as the Servicer
under the Series
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2005-SN1 Basic Documents or if all of the rights and obligations of the Servicer
have been terminated under the COLT Servicing Agreement, this COLT Custodian
Agreement may be terminated by COLT or by any Persons to whom COLT has assigned
its rights hereunder. As soon as practicable after the termination of this COLT
Custodian Agreement, the COLT Custodian shall deliver the Series 2005-SN1 Lease
Asset Files described herein to COLT or COLT's agent at such place or places as
COLT may reasonably designate.
9. GOVERNING LAW. THIS COLT CUSTODIAN AGREEMENT SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK,
WITHOUT REGARD TO THE PRINCIPLES OF CONFLICTS OF LAWS THEREOF OR OF ANY OTHER
JURISDICTION (EXCEPT SECTION 5-1401 AND SECTION 5-1402 OF THE NEW YORK GENERAL
OBLIGATIONS LAW), AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES UNDER
THIS COLT CUSTODIAN AGREEMENT SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
10. Notices. All demands, notices and communications upon or to COLT
or the COLT Owner Trustee on behalf of COLT or the COLT Custodian under this
COLT Custodian Agreement shall be delivered as specified in Part III of Exhibit
A of the COLT Servicing Agreement.
11. Binding Effect. This COLT Custodian Agreement shall be binding
upon and shall inure to the benefit of the parties hereto and their respective
successors and assigns.
12. Severability of Provisions. If any one or more of the covenants,
agreements, provisions or terms of this COLT Custodian Agreement 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 COLT Custodian Agreement and shall in no way affect
the validity or enforceability of the other provisions of this COLT Custodian
Agreement.
13. Assignment. Notwithstanding anything to the contrary contained
in this COLT Custodian Agreement, this COLT Custodian Agreement may not be
assigned by the COLT Custodian without the prior written consent of COLT or any
Persons to whom COLT has assigned its rights hereunder.
14. Headings. The headings of the various Sections herein are for
convenience of reference only and shall not define or limit any of the terms or
provisions hereof.
15. Counterparts. This COLT Custodian Agreement may be executed by
the parties in separate counterparts, each of which when so executed and
delivered shall be an original but all such counterparts shall together
constitute but one and the same instrument.
16. No Third-Party Beneficiaries. This COLT Custodian Agreement
shall inure to the benefit of and be binding upon the parties hereto and their
respective successors and permitted assigns. Except as otherwise expressly
provided in this COLT Custodian Agreement, no other Person shall have any right
or obligation hereunder.
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17. Merger and Integration. Except as specifically stated otherwise
herein, this COLT Custodian Agreement sets forth the entire understanding of the
parties relating to the subject matter hereof, and all prior understandings,
written or oral, are superseded by this COLT Custodian Agreement. This COLT
Custodian Agreement may not be modified, amended, waived, or supplemented except
as provided herein.
18. Series Liabilities. It is expressly understood and agreed by the
COLT Custodian that COLT is a series trust pursuant to Sections 3804 and
3806(b)(2) of the Statutory Trust Act. As such, separate and distinct records
shall be maintained for the Series 2005-SN1 Lease Assets and the Series 2005-SN1
Lease Assets shall be held and accounted for separately from the other assets of
COLT. The debts, liabilities, obligations and expenses incurred, contracted for
or otherwise existing with respect to the Series 2005-SN1 Lease Assets,
including the COLT 2005-SN1 Secured Notes and the obligations of COLT to the
COLT Custodian under this COLT Custodian Agreement, shall be enforceable against
the Series 2005-SN1 Lease Assets only, and not against COLT generally or the
assets securing any other Series of Secured Notes.
19. No Bankruptcy Petition. The COLT Custodian hereby covenants and
agrees that prior to the date which is one year and one day after the payment in
full of all Secured Notes, it shall not institute against, or join any other
Person in instituting against, COLT in any bankruptcy, reorganization,
arrangement, insolvency or liquidation proceedings or other similar proceeding
under the bankruptcy or similar laws of the United States or any state of the
United States. This Section shall survive the termination of this COLT Custodian
Agreement and the termination of the COLT Custodian's rights and obligations
hereunder.
20. Limitation of Liability. It is expressly understood and agreed
by the parties hereto that (a) this COLT Custodian Agreement is executed and
delivered by Deutsche Bank Trust Company Delaware, not individually or
personally but solely as owner trustee of COLT, (b) each of the representations,
undertakings and agreements herein made on the part of COLT is made and intended
not as personal representations, undertakings and agreements by Deutsche Bank
Trust Company Delaware but is made and intended for the purpose of binding only
COLT, and (c) under no circumstances shall Deutsche Bank Trust Company Delaware
be personally liable for the payment of any indebtedness or expenses of COLT or
be liable for the breach or failure of any obligation, representation, warranty
or covenant made or undertaken by COLT under this COLT Custodian Agreement or
the other COLT 2005-SN1 Basic Documents.
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IN WITNESS WHEREOF, each of the parties hereto has caused this COLT
Custodian Agreement to be in its name and on its behalf by a duly authorized
officer as of the day and year first above written.
CENTRAL ORIGINATING LEASE TRUST
By: DEUTSCHE BANK TRUST COMPANY
DELAWARE, not in its individual capacity but
solely as COLT Owner Trustee
By: /s/ Eva Aryeetey
Name: Eva Aryeetey
Title: Attorney-in-Fact
GENERAL MOTORS ACCEPTANCE CORPORATION,
as COLT Custodian
By: /s/ N.L. Bugg
Name: N.L. Bugg
Title: Director - U.S. Securitization
COLT 2005-SN1 Custodian Agreement
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EXHIBIT A
List of Branch Offices
(attached hereto)
COLT Custodian Agreement