--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
EXHIBIT 99.5
CUSTODIAN AGREEMENT
BETWEEN
GENERAL MOTORS ACCEPTANCE CORPORATION
CUSTODIAN
AND
WHOLESALE AUTO RECEIVABLES CORPORATION
SELLER
DATED AS OF ________, ____
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
cust-v5.fin
THIS CUSTODIAN AGREEMENT, dated as of ________, ____, is made
between General Motors Acceptance Corporation, a Delaware corporation (referred
to herein as "GMAC" in its capacity as seller of the Receivables specified
herein and as "CUSTODIAN" in its capacity as Custodian of such Receivables), and
Wholesale Auto Receivables Corporation, a Delaware corporation (the "SELLER").
WHEREAS, simultaneously herewith, GMAC and the Seller 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 GMAC shall sell,
transfer and assign to the Seller without recourse all of its right, title and
interest in, to and under the Eligible Receivables existing or arising in the
Accounts in the Pool of Accounts;
WHEREAS, in connection with such sale, transfer and assignment,
the Pooling and Servicing Agreement provides that the Seller shall
simultaneously enter into a custodian agreement pursuant to which the Seller
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 Seller will enter into the Trust Sale and Servicing Agreement with Superior
Wholesale Inventory Financing Trust [ ], a Delaware business trust (the
"ISSUER"), pursuant to which the Seller shall sell, transfer and assign to the
Issuer without recourse all of the Seller'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 Seller desires for the Custodian to act as custodian of such Eligible
Receivables for the benefit of the Issuer; and
WHEREAS, GMAC will retain the Receivables in the Accounts in the
Pool of Accounts not so sold, transferred and assigned to the Seller (the
"RETAINED RECEIVABLES") and, in connection therewith, the Seller 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 Seller hereby appoints the Custodian,
and the Custodian hereby accepts such appointment, to act as agent of the Seller
as Custodian to maintain custody of the Eligible Receivables Files pertaining to
the Eligible Receivables conveyed to the Seller from time to time under the
Pooling and Servicing Agreement. The Custodian hereby acknowledges that the
Seller
cust-v5.fin
desires to sell, transfer and assign all of its right, title and interest in, to
and under such Eligible Receivables and this Custodian Agreement to the Issuer
pursuant to the Trust Sale and Servicing Agreement. The Custodian hereby agrees,
in connection with such sale, transfer and assignment, to act as Custodian for
the benefit of the Issuer with respect to such Receivables. Subject to the terms
and conditions hereof and at the request of the Seller, 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 Seller 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 Issuer upon 30 days'
prior written notice.
3. DUTIES OF CUSTODIAN.
(a) SAFEKEEPING. The Custodian shall hold each Receivables File
described herein on behalf of the Seller, the Issuer or GMAC, as the case may
be, for the use and benefit of the Seller, the Issuer, GMAC 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 GMAC, the Seller and the Issuer 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 Issuer, GMAC and the Custodian to verify the accuracy of the
Custodian's inventory and record keeping. The Custodian shall promptly report to
the Issuer 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 Issuer, 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 Issuer or GMAC may reasonably request.
cust-v5.fin
- 2 -
(c) RELEASE OF DOCUMENTS. The Custodian shall release any
Receivable (and its related Receivables File) to GMAC, the Seller, the Servicer
or the Issuer, 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 Issuer or GMAC, 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.
4. INSTRUCTIONS; AUTHORITY TO ACT. The Custodian shall be deemed
to have received proper instructions from the Issuer 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 Issuer or
GMAC, as the case may be (or, as appropriate, a trustee on behalf of the
Issuer), 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 Issuer, 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 Issuer, 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 Issuer, GMAC or any such trustee, respectively, for
any portion of any such amount resulting from the wilful misfeasance, bad faith
or gross negligence of the Issuer, GMAC or any such trustee, respectively.
6. ADVICE OF COUNSEL. The Custodian, GMAC, the Seller and, upon
execution of the Trust Sale and Servicing Agreement, the Issuer 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
cust-v5.fin
- 3 -
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. 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 Issuer or GMAC or by any Persons to whom the Issuer 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 Issuer, the Issuer's agent or GMAC at such place or places as the
Issuer or GMAC may reasonably designate.
8. GOVERNING LAW. THIS CUSTODIAN AGREEMENT SHALL BE GOVERNED BY,
AND CONSTRUED IN ACCORDANCE WITH, THE DOMESTIC LAWS OF THE STATE OF NEW YORK
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.
9. NOTICES. All demands, notices and communications upon or to
the Custodian, the Seller and GMAC under this Agreement shall be delivered as
specified in APPENDIX B of the Trust Sale and Servicing Agreement.
10. BINDING EFFECT. This Custodian Agreement shall be binding
upon and shall inure to the benefit of the Seller, GMAC, the Issuer, the
Custodian and their respective successors and assigns, including the Issuer.
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. Notwithstanding anything to the contrary
contained in this Custodian Agreement, this Custodian Agreement may not be
assigned by the Custodian without the prior written consent of the Seller or
GMAC or any Persons to whom the Seller or GMAC has assigned its rights
hereunder, as applicable.
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.
cust-v5.fin
- 4 -
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.
* * * * *
cust-v5.fin
- 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 CORPORATION
By:
Name:
Title:
GENERAL MOTORS ACCEPTANCE CORPORATION,
as owner of the Retained Receivables
By:
Name:
Title:
GENERAL MOTORS ACCEPTANCE CORPORATION,
as Custodian
By:
Name:
Title:
cust-v5.fin
- 6 -
