EXHIBIT 99.2
================================================================================
CUSTODIAN AGREEMENT
BETWEEN
GMAC LLC
CUSTODIAN
AND
WHOLESALE AUTO RECEIVABLES LLC
DEPOSITOR
DATED AS OF ____________, 20___
================================================================================
THIS CUSTODIAN AGREEMENT, dated as of _________, 20__ is made between
GMAC LLC, a Delaware limited liability company (referred to herein as "GMAC" in
its capacity as depositor of the Receivables specified herein and as "Custodian"
in its capacity as Custodian of such Receivables), and Wholesale Auto
Receivables LLC, a Delaware limited liability company (the "Depositor").
WHEREAS, simultaneously herewith, GMAC (referred to as the "Seller" in
its capacity as seller of the Receivables) and the Depositor are entering into a
Pooling and Servicing Agreement, dated as of the date hereof (the "Pooling and
Servicing Agreement," the capitalized terms defined therein being used herein
with the same meanings), pursuant to which the Seller shall sell, transfer and
assign to the Depositor without recourse all of its right, title and interest
in, to and under the Eligible Receivables existing or arising in the Scheduled
Accounts;
WHEREAS, in connection with such sale, transfer and assignment, the
Pooling and Servicing Agreement provides that the Depositor shall simultaneously
enter into a custodian agreement pursuant to which the Depositor shall revocably
appoint the Custodian as custodian of the Floor Plan Financing Agreements
between GMAC and each Dealer and any other documents and instruments pertaining
to such Eligible Receivables (the "Eligible Receivables Files");
WHEREAS, the Pooling and Servicing Agreement contemplates that the
Depositor will enter into the Trust Sale and Servicing Agreement with SWIFT
Master Auto Receivables Trust, a Delaware statutory trust (the "Issuing
Entity"), pursuant to which the Depositor shall sell, transfer and assign to the
Issuing Entity without recourse all of the Depositor's right, title and interest
in and to such Eligible Receivables and under the aforementioned custodian
agreement;
WHEREAS, in connection with such sale, transfer and assignment, the
Depositor desires for the Custodian to act as custodian of such Eligible
Receivables for the benefit of the Issuing Entity; and
WHEREAS, GMAC will retain the Receivables in the Scheduled Accounts
not so sold, transferred and assigned to the Depositor (the "Retained
Receivables") and, in connection therewith, the Depositor desires for (and GMAC
is willing to agree and accept) the Custodian to act as custodian of the
Wholesale Security Agreements between GMAC and each Dealer and any other
documents and instruments pertaining to the Receivables retained by GMAC (the
"Retained Receivables Files," and together with the Eligible Receivables Files,
the "Receivables Files");
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. Appointment of Custodian; Acknowledgment of Receipt. Subject to the
terms and conditions hereof, the Depositor hereby appoints the Custodian, and
the Custodian hereby accepts such appointment, to act as agent of the Depositor
as Custodian to maintain custody of the Eligible Receivables Files pertaining to
the Eligible Receivables conveyed to the Depositor from time to time under the
Pooling and Servicing Agreement. The Custodian hereby
acknowledges that the Depositor desires to transfer and assign all of its right,
title and interest in, to and under such Eligible Receivables and this Custodian
Agreement to the Issuing Entity pursuant to the Trust Sale and Servicing
Agreement. The Custodian hereby agrees, in connection with such transfer and
assignment, to act as Custodian for the benefit of the Issuing Entity with
respect to such Receivables. Subject to the terms and conditions hereof and at
the request of the Depositor, GMAC hereby appoints the Custodian, and the
Custodian hereby accepts such appointment, to act as agent of GMAC as Custodian
to maintain custody of the Retained Receivables Files pertaining to the Retained
Receivables. In performing its duties hereunder, the Custodian agrees to act
with reasonable care, using that degree of skill and attention that the
Custodian exercises with respect to receivable files relating to comparable
wholesale receivables that the Custodian services and holds for itself or
others. The Custodian hereby acknowledges receipt of the Receivables Files for
(i) each Eligible Receivable conveyed to the Depositor and (ii) each Retained
Receivable on the date hereof.
2. Maintenance at Office. The Custodian agrees to maintain each
Receivables 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
Custodian as shall from time to time be identified to the Issuing Entity upon 30
days' prior written notice or with third party vendors as shall be deemed
appropriate by the Custodian.
3. Duties of Custodian.
(a) Safekeeping. The Custodian shall hold each Receivables File
described herein on behalf of the Depositor, the Issuing Entity, the Servicer or
GMAC, as the case may be, for the use and benefit of the Depositor, the Issuing
Entity, the Servicer, the Seller and the Interested Parties, as applicable, and
maintain such accurate and complete accounts, records and computer systems
pertaining to each Receivables File described herein as shall enable the Seller,
the Servicer, the Depositor and the Issuing Entity to comply with their
respective obligations under the Pooling and Servicing Agreement and the Trust
Sale and Servicing Agreement. Each Receivable subject hereto shall be identified
as such on the books and records of the Custodian to the extent the Custodian
reasonably determines to be necessary to comply with the terms and conditions of
the Pooling and Servicing Agreement and the Trust Sale and Servicing Agreement.
The Custodian shall conduct, or cause to be conducted, periodic physical
inspections of the Receivables Files held by it under this Custodian Agreement,
and of the related accounts, records and computer systems, in such a manner as
shall enable the Issuing Entity, GMAC and the Custodian to verify the accuracy
of the Custodian's inventory and record keeping. The Custodian shall promptly
report to the Issuing Entity or GMAC, as applicable, any failure on its part to
hold the related Receivables 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 Custodian's security
requirements applicable to its own employees having access to similar records
held by the Custodian, the Custodian shall permit the Issuing Entity, GMAC or
their respective duly authorized representatives, attorneys or auditors to
inspect the related Receivables Files described herein and the related accounts,
records and computer systems maintained by the Custodian pursuant hereto at such
times as the Issuing Entity or GMAC may reasonably request.
-2-
(c) Release of Documents. The Custodian shall release any Receivable
(and its related Receivables File) to the Seller, the Depositor, the Servicer or
the Issuing Entity, as appropriate, under the circumstances provided in the
Pooling and Servicing Agreement and the Trust Sale and Servicing Agreement or,
in the case of the Retained Receivables, as otherwise requested by GMAC (so long
as such request is not inconsistent with the terms of the Pooling and Servicing
Agreement and the Trust Sale and Servicing Agreement).
(d) Administration; Reports. In general, the Custodian shall attend to
all non-discretionary details in connection with maintaining custody of the
Receivables Files as described herein. In addition, the Custodian shall assist
the Issuing Entity or the Servicer, as applicable, generally in the preparation
of routine reports to the Securityholders, if any, or to regulatory bodies, to
the extent necessitated by the Custodian's custody of the Receivables Files
described herein.
(e) Servicing. The 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 Receivables) set forth in the Pooling and Servicing Agreement, the
Trust Sale and Servicing Agreement and the Indenture and hereby agrees to
maintain the Receivables Files in a manner consistent therewith. The Custodian
further agrees to cooperate with the Servicer in the Servicer's performance of
its duties under the Pooling and Servicing Agreement and the Trust Sale and
Servicing Agreement.
(f) Regulation AB Compliance. If at any time the Custodian is not also
serving as Servicer under the Pooling and Servicing Agreement, the Custodian
shall:
(i) deliver to the Servicer on or before March 1 of each year,
beginning March 1, 20__, a report, dated as of December 31 of the preceding
calendar year, of its assessment of compliance with the Servicing Criteria
applicable to it with respect to such calendar year (or, in the case of the
first year, since no later than the Initial Closing Date), including disclosure
of any material instance of non-compliance identified by the Custodian, as
required by Rule 13a-18 and 15d-18 of the Exchange Act and Item 1122 of
Regulation AB under the Securities Act, and
(ii) cause a firm of registered public accountants that is qualified
and independent within the meaning of Rule 2-01 of Regulation S-X under the
Securities Act to deliver to the Servicer on or before March 1 of each year,
beginning March 1, 20__, an attestation report that satisfies the requirements
of Rule 13a-18 or Rule 15d-18 under the Exchange Act, as applicable, of the
assessment of compliance with Servicing Criteria with respect to the prior
calendar year (or, in the case of the first year, since no later than the
Closing Date).
The reports under this Section 3(f) shall be delivered within the time
periods specified above, unless the Issuing Entity is not required to file
periodic reports under the Exchange Act or any other law, in which case such
reports may be delivered on or before April 15 of each calendar year, beginning
April 15, 20__.
-3-
4. Instructions; Authority to Act. The Custodian shall be deemed to
have received proper instructions from the Issuing Entity, the Servicer or GMAC,
as the case may be, with respect to the Receivables 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 the
Issuing Entity, the Servicer or GMAC, as the case may be (or, as appropriate, a
trustee on behalf of the Issuing Entity), may be received and accepted by the
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.
5. Indemnification By the Custodian. The Custodian agrees to indemnify
the Issuing Entity, GMAC and each trustee with respect to any Securities 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 the
Issuing Entity, GMAC or any such trustee as the result of any act or omission in
any way relating to the maintenance and custody by the Custodian of the
Receivables Files described herein; provided, however, that the Custodian shall
not be liable to the Issuing Entity, GMAC or any such trustee, respectively, for
any portion of any such amount resulting from the willful misfeasance, bad faith
or negligence of the Issuing Entity, GMAC or any such trustee, respectively.
6. Advice of Counsel. The Custodian, GMAC, the Depositor and, upon
execution of the Trust Sale and Servicing Agreement, the Issuing Entity further
agree that the 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.
7. Effective Period, Termination, and Amendment; Interpretive and
Additional Provisions. This Custodian Agreement shall become effective as of the
date hereof, shall continue in full force and effect until terminated as
hereinafter provided, and may be amended at any time by mutual agreement of the
parties hereto; provided, however, that any amendments with respect to
provisions regarding Other Assets shall be subject to the satisfaction of the
Rating Agency Condition. This Custodian Agreement may be terminated by either
party by written notice to the other party, such termination to take effect no
sooner than 60 days after the date of such notice. Notwithstanding the
foregoing, if GMAC resigns as Servicer under the Trust Sale and Servicing
Agreement or if all of the rights and obligations of the Servicer have been
terminated under the Trust Sale and Servicing Agreement, this Custodian
Agreement may be terminated by the Issuing Entity or GMAC or by any Persons to
whom the Issuing Entity or GMAC has assigned its rights hereunder. As soon as
practicable after the termination of this Custodian Agreement, the Custodian
shall deliver the Receivables Files described herein to the Issuing Entity, the
Issuing Entity's agent or GMAC at such place or places as the Issuing Entity or
GMAC may reasonably designate.
8. GOVERNING LAW. THIS CUSTODIAN AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK, WITHOUT
REFERENCE TO THE CONFLICT OF LAW PROVISIONS THEREOF OR OF ANY OTHER JURISDICTION
OTHER THAN SECTION 5-1401 AND SECTION 5-1402 OF THE NEW YORK
-4-
GENERAL OBLIGATIONS LAW, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES
HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
9. Notices. All demands, notices and communications upon or to the
Custodian, the Depositor and GMAC under this Custodian Agreement shall be
delivered as specified in Appendix B to the Trust Sale and Servicing Agreement.
10. Binding Effect. This Custodian Agreement shall be binding upon and
shall inure to the benefit of the Depositor, GMAC, the Issuing Entity, the
Custodian and their respective successors and assigns, including the Issuing
Entity.
11. Severability of Provisions. If any one or more of the covenants,
agreements, provisions or terms of this 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 Custodian Agreement and shall in no way affect the
validity or enforceability of the other provisions of this Custodian Agreement.
12. Assignment. This Custodian Agreement may not be assigned by the
Custodian without prior written notice to the Rating Agencies and prior written
consent from the Depositor or GMAC or any Persons to whom the Depositor or GMAC
has assigned its rights hereunder, as applicable; provided, however, this
Custodian Agreement may be assigned by the Custodian to any entity that is then
acting as Servicer or to any entity more than 50% of the voting interests of
which are owned, directly or indirectly, by General Motors or GMAC.
13. 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.
14. Counterparts. This 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.
* * * * *
-5-
IN WITNESS WHEREOF, each of the parties hereto has caused this
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.
WHOLESALE AUTO RECEIVABLES LLC
By:
------------------------------------
Name: [Wholesale signatory]
Title: [_______________]
GMAC LLC,
as owner of the Retained Receivables
By:
------------------------------------
Name: [GMAC signatory]
Title: [Director - U.S. Securitization]
GMAC LLC,
as Custodian
By:
------------------------------------
Name: [GMAC signatory]
Title: [Director - U.S. Securitization]
