CUSTODIAN AGREEMENT BETWEEN GMAC LLC CUSTODIAN AND WHOLESALE AUTO RECEIVABLES LLC DEPOSITOR DATED AS OF FEBRUARY 13, 2007
Exhibit 99.2
EXECUTION COPY
EXECUTION COPY
BETWEEN
GMAC LLC
CUSTODIAN
AND
WHOLESALE AUTO RECEIVABLES LLC
DEPOSITOR
DATED AS OF FEBRUARY 13, 2007
THIS CUSTODIAN AGREEMENT, dated as of February 13, 2007 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 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
GMAC 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 Accounts in the Pool
of 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 Superior Wholesale Inventory Financing Trust 2007-AE-1,
a Delaware statutory trust (the “Issuer”), pursuant to which the Depositor shall sell,
transfer and assign to the Issuer 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 Issuer; and
WHEREAS, GMAC will retain the Receivables in the Accounts in the Pool of 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 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
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 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 Depositor, the Issuer or GMAC, as the case may be, for the use and benefit of the
Depositor, 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 Depositor 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.
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(c) Release of Documents. The Custodian shall release any Receivable (and its related
Receivables File) to GMAC, the Depositor, 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.
(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 10 of each year, beginning March
10, 2008, 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
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 15 of each year, beginning March
15, 2008, 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).
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
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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 willful misfeasance,
bad faith or gross negligence of the Issuer, 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 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 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
Depositor and GMAC under this Agreement shall be delivered as specified in Appendix B of the Trust
Sale and Servicing Agreement.
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10. Binding Effect. This Custodian Agreement shall be binding upon and shall inure to
the benefit of the Depositor, 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 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.
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.
* * * * *
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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 |
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| By: | /s/ Xxxx X. Xxxxxxxxx | |||
| Name: | Xxxx X. Xxxxxxxxx | |||
| Title: | Vice President | |||
| GMAC LLC, as owner of the Retained Receivables |
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| By: | /s/ Xxxxx X. Xxxx | |||
| Name: | Xxxxx X. Xxxx | |||
| Title: | Director—U.S. Securitization | |||
| GMAC LLC, as Custodian |
||||
| By: | /s/ Xxxxx X. Xxxx | |||
| Name: | Xxxxx X. Xxxx | |||
| Title: | Director—U.S. Securitization | |||
