EXHIBIT NO. 99.16
CAPITAL AUTO RECEIVABLES ASSET TRUST 2007-SN1
COLT 2007-SN1 CUSTODIAN AGREEMENT
BETWEEN
GMAC LLC,
AS COLT CUSTODIAN
AND
CENTRAL ORIGINATING LEASE TRUST
DATED AS OF JUNE 7, 2007
TABLE OF CONTENTS
1. Definitions............................................................. 1
2. Appointment of COLT Custodian; Acknowledgment of Receipt................ 1
3. Maintenance of Records.................................................. 2
4. Duties of COLT Custodian................................................ 2
5. Instructions; Authority to Act.......................................... 3
6. Indemnification by the COLT Custodian................................... 3
7. Advice of Counsel....................................................... 3
8. Limitation on Liability of COLT Custodian and Others.................... 4
9. Effective Period, Termination, and Amendment; Interpretive and
Additional Provisions................................................... 4
10. Governing Law........................................................... 6
11. Notices................................................................. 6
12. Binding Effect.......................................................... 6
13. Severability of Provisions.............................................. 6
14. Assignment.............................................................. 6
15. Headings................................................................ 6
16. Counterparts............................................................ 6
17. No Third-Party Beneficiaries............................................ 6
18. Merger and Integration.................................................. 7
19. Series Liabilities...................................................... 7
20. No Bankruptcy Petition.................................................. 7
21. Limitation of Liability................................................. 7
22. Merger and Consolidation of the COLT Custodian.......................... 7
-i-
THIS COLT 2007-SN1 CUSTODIAN AGREEMENT, dated as of June 7, 2007 (this
"COLT Custodian Agreement"), is made between GMAC LLC, a Delaware limited
liability company ("GMAC"), as COLT Custodian (in such capacity, the "COLT
Custodian"), and CENTRAL ORIGINATING LEASE TRUST, a Delaware statutory trust
("COLT").
WHEREAS, simultaneously herewith GMAC (in its capacity as seller of the
Series 2007-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 2007-SN1 Closing Date, to COLT without recourse all of
its right, title and interest in and to the Series 2007-SN1 Lease Assets;
WHEREAS, in connection with such sale, transfer and assignment of the
Series 2007-SN1 Lease Assets, 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
2007-SN1 Lease Asset Files pertaining to the Series 2007-SN1 Lease Assets; and
WHEREAS, in connection with such sale, transfer and assignment, COLT
desires for the COLT Custodian to act as custodian of the Series 2007-SN1 Lease
Assets;
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 The Bank of New York Trust
Company, 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
Declaration of Trust, dated as of December 13, 2006 (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.
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
2007-SN1 Lease Asset Files pertaining to the Series 2007-SN1 Lease Assets.
The COLT Custodian acknowledges that COLT has
Custodian Agreement
(COLT 2007-SN1)
pledged the Vehicles related to the Series 2007-SN1 Lease Assets to the
COLT 2007-SN1 Secured Noteholders and has pledged the remainder of the COLT
2007-SN1 Collateral to the COLT Indenture Trustee under the COLT Indenture
for the equal and ratable benefit of the COLT 2007-SN1 Secured Noteholders
and agrees to hold the Series 2007-SN1 Lease Assets on behalf of the Series
2007-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 2007-SN1 Lease Asset File for
each Series 2007-SN1 Lease Asset listed on the Series 2007-SN1 Lease Assets
Schedule.
3. Maintenance of Records. The COLT Custodian agrees to maintain each
Series 2007-SN1 Lease Asset File at one of its branch offices or with third
party vendors as shall be deemed appropriate by the COLT Custodian.
4. Duties of COLT Custodian.
(a) Safekeeping. The COLT Custodian shall hold each Series
2007-SN1 Lease Asset File described herein on behalf of the Series 2007-SN1
Further Holders and shall maintain such accurate and complete accounts,
records and computer systems pertaining to each Series 2007-SN1 Lease Asset
described herein as shall enable COLT to comply with its obligations under
the COLT Sale and Contribution Agreement and the other COLT 2007-SN1 Basic
Documents. Each Series 2007-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 COLT 2007-SN1 Basic Documents. The COLT Custodian
shall conduct, or cause to be conducted, periodic physical inspections of
the Series 2007-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 2007-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
2007-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 2007-SN1 Lease Asset (and its related Series 2007-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 COLT 2007-SN1 Basic Documents.
(d) Administration; Reports. In general, the COLT Custodian shall
attend to all non-discretionary details in connection with maintaining
custody of the Series 2007-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 2007-SN1 Secured
Notes, if any, or to regulatory bodies, to the extent necessitated by the
COLT Custodian's custody of the Series 2007-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 2007-SN1 Lease Assets) set forth in the COLT Servicing
Agreement and the other COLT 2007-SN1 Basic Documents and hereby agrees to
maintain the Series 2007-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 COLT 2007-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
2007-SN1 Lease Asset Files described herein upon its receipt of written
instructions signed by an Authorized Officer of COLT. 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 2007-SN1 Further Holders for any and all
liabilities, obligations, losses, damages, payments, costs or expenses of
any kind whatsoever that may be imposed on, incurred or asserted against
COLT or any Series 2007-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 2007-SN1 Lease Asset Files described herein;
provided, however, that the COLT Custodian shall not be liable to COLT or
any Series 2007-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 2007-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. Limitation on Liability of COLT Custodian and Others.
(a) Neither the COLT Custodian nor any of the directors or
officers or employees or agents of the COLT Custodian shall be under any
liability to COLT, the COLT 2007-SN1 Secured Noteholders, the COLT 2007-SN1
Certificateholders, or any successors or assigns of the foregoing, except
as specifically provided in the COLT 2007-SN1 Basic Documents, for any
action taken or for refraining from the taking of any action pursuant to
the COLT 2007-SN1 Basic Documents or for reasonable errors in judgment;
provided, however, that this provision shall not protect the COLT Custodian
or any such Person against any liability that would otherwise be imposed by
reason of willful misfeasance, bad faith or negligence (except errors in
judgment) in the performance of duties or by reason of a breach of its
obligations and duties herein.
(b) Except as provided in the COLT 2007-SN1 Basic Documents, the
COLT Custodian shall not be under any obligation to appear in, prosecute or
defend any proceeding that is not incidental to its duties to act as
custodian of the Series 2007-SN1 Lease Assets and the other Sold Assets in
accordance with the COLT 2007-SN1 Basic Documents and that in its opinion
may involve it in any unreimbursed expense or liability; provided, however,
that the COLT Custodian may undertake any reasonable action that it may
deem necessary or desirable in respect of the COLT 2007-SN1 Basic Documents
and the rights and duties of the parties to the COLT 2007-SN1 Basic
Documents and the interests of the COLT 2007-SN1 Noteholders and COLT
2007-SN1 Certificateholders in the COLT 2007-SN1 Basic Documents. In such
event, the legal expenses and costs for such action and any liability
resulting therefrom shall be expenses, costs and liabilities of COLT and
the COLT Custodian shall be entitled to be reimbursed therefor after the
receipt of notice and invoice from the COLT Custodian listing any such
expense in reasonable detail.
9. 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.
(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 2007-SN1 Secured Noteholders or
the COLT 2007-SN1 Certificateholder.
(c) This Agreement may also be amended from time to time by the
COLT Custodian and COLT with the consent of the Holders of a majority of
the then Outstanding Amount of the COLT 2007-SN1 Secured Notes and the COLT
2007-SN1 Certificateholder, which consent, whether given pursuant to this
Section 9 or pursuant to
any other provision herein, shall be conclusive and binding on such Persons
and on all future holders of COLT 2007-SN1 Certificates and COLT 2007-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 2007-SN1 Certificateholder or COLT 2007-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 2007-SN1 Lease Assets or
distributions that shall be required to be made on any COLT 2007-SN1
Secured Note, or (ii) reduce the percentage in this Section 9 required to
consent to any action or amendment, without the consent of all of the
holders of the COLT 2007-SN1 Secured Notes then outstanding.
(d) Prior to the execution of any amendment or consent pursuant
to this Section 9, the COLT Custodian shall furnish written notice of the
substance of such amendment or consent to the Rating Agencies (if any Rated
Notes are outstanding), each COLT 2007-SN1 Secured Noteholder and the COLT
2007-SN1 Certificateholder.
(e) It shall not be necessary for the consent of the COLT
2007-SN1 Secured Noteholders or the COLT 2007-SN1 Certificateholder
pursuant to Section 9(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 the COLT 2007-SN1 Secured Noteholders or the COLT
2007-SN1 Certificateholder provided for in this COLT Custodian Agreement)
and of evidencing the authorization of the execution thereof by the COLT
2007-SN1 Secured Noteholders and the COLT 2007-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 2007-SN1 Secured
Notes, which consent, whether given pursuant to this Section 9 or pursuant
to any other provision herein shall be conclusive and binding on such
Persons and on all future holders of COLT 2007-SN1 Secured Notes, such
termination to take effect no sooner than 60 days after the date of such
notice. Notwithstanding the foregoing, if GMAC resigns as the Servicer
under the COLT 2007-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 shall immediately terminate. COLT
is granting a security interest in its rights under this COLT Custodian
Agreement in connection with the CARAT 2007-SN1 transaction. COLT also
acknowledges that the CARAT Indenture Trustee will be granted a security
interest in that grant. As soon as practicable after the termination of
this COLT Custodian Agreement, the COLT Custodian shall deliver the Series
2007-SN1 Lease Asset Files described herein to the CARAT Indenture Trustee
or the agent of the CARAT Indenture Trustee at such place or places the
CARAT Indenture Trustee may reasonably designate, if both a CARAT Event of
Default and a COLT Event of Default have occurred and are continuing, and
otherwise to the COLT Indenture Trustee or the agent
of the COLT Indenture Trustee at such place or places as the COLT Indenture
Trustee may reasonably designate.
10. 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 (OTHER THAN SECTIONS 5-1401 AND 5-1402 OF THE NEW
YORK GENERAL OBLIGATIONS LAW), AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF
THE PARTIES UNDER THIS COLT CUSTODIAN AGREEMENT SHALL BE DETERMINED IN
ACCORDANCE WITH SUCH LAWS.
11. 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.
12. 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.
13. 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 and 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.
14. Assignment. Notwithstanding anything to the contrary contained in
this COLT Custodian Agreement, this COLT Custodian Agreement may be
assigned by the COLT Custodian without the consent of any other Person to a
corporation, limited liability company or other entity that is a successor
(by merger, consolidation or purchase of assets) to the COLT Custodian, or
that more than 50% of the voting interests of which is owned, directly or
indirectly, by GMAC or General Motors, provided that such organization
executes an agreement of assumption as provided in Section 4.02 of the COLT
Servicing Agreement.
15. 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.
16. 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.
17. 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.
18. 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.
19. Series Liabilities. It is expressly understood and agreed by the
COLT Custodian that Series 2007-SN1 is a separate series of COLT as
provided in Section 3806(b)(2) of the Statutory Trust Act. As such,
separate and distinct records shall be maintained for Series 2007-SN1 Lease
Assets and the Trust Assets associated with Series 2007-SN1 Lease Assets
shall be held and accounted for separately from the other assets of COLT or
any other Series. The debts, liabilities, obligations and expenses
incurred, contracted for or otherwise existing with respect to the Series
2007-SN1 Lease Assets, including the COLT 2007-SN1 Secured Notes and the
obligations of COLT to the Seller and any other Interested Party under this
Agreement, shall be enforceable against the Series 2007-SN1 Lease Assets
only, and not against COLT generally or the assets securing any other
Series Portfolio.
20. 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.
21. 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
2007-SN1 Basic Documents.
22. Merger and Consolidation of the COLT Custodian. Any corporation,
limited liability company or other entity (i) into which the COLT Custodian
may be merged or consolidated, (ii) resulting from any merger, conversion
or consolidation to which the COLT Custodian shall be a party, or (iii)
succeeding to business of the COLT Custodian, or (iv) more than 50% of the
voting stock (or, if not a corporation, other
voting interests) of which is owned, directly or indirectly, by GMAC or
General Motors, which corporation or entity in any of the foregoing cases
executes an agreement of assumption to perform every obligation of the COLT
Custodian under this Agreement and the other COLT 2007-SN1 Basic Documents,
shall be the successor to the COLT Custodian under this Agreement without
the execution or filing of any document or any further act on the part of
any of the parties to this Agreement. The COLT Custodian shall provide 10
days prior notice of any merger, consolidation or succession pursuant to
this Section 22 to the Rating Agencies (if any Rated Notes are
outstanding), the Servicer, the COLT Indenture Trustee and the COLT Owner
Trustee.
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/ Jenna Kaufman
------------------------------------
Name: Jenna Kaufman
Title: Attorney-in-Fact
By: /s/ Aranka R. Paul
------------------------------------
Name: Aranka R. Paul
Title: Attorney-in-Fact
GMAC LLC,
as COLT Custodian
By: /s/ C.J. Vannatter
------------------------------------
Name: C.J. Vannatter
Title: Director - Global Securitization