EXHIBIT 99.2
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CUSTODIAN AGREEMENT
BETWEEN
GMAC LLC
CUSTODIAN
AND
WHOLESALE AUTO RECEIVABLES LLC
DEPOSITOR
DATED AS OF JUNE 20, 2007
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THIS CUSTODIAN AGREEMENT, dated as of June 20, 2007 is made between
GMAC LLC, a Delaware limited liability company (referred to herein as "GMAC", or
the "Seller" in its capacity as depositor and seller of the Receivables
specified herein, together with any of its successors or assigns in such
capacity permitted pursuant to the Basic Documents, 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, the Seller 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 the Seller 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, the Seller 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 the
Seller is willing to agree and accept) the Custodian to act as custodian of the
Wholesale Security Agreements between the Seller and each Dealer and any other
documents and instruments pertaining to the Receivables retained by the Seller
(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, 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 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
the Seller, 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, the Seller 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 the
Seller, 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, the Seller
or their respective duly authorized representatives, attorneys or auditors to
inspect the related Receivables Files described herein
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and the related accounts, records and computer systems maintained by the
Custodian pursuant hereto at such times as the Issuing Entity or the Seller may
reasonably request.
(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 the Seller
(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, 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 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, 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).
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
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any other law, in which case such reports may be delivered on or before April 15
of each calendar year, beginning April 15, 2009.
4. Instructions; Authority to Act. The Custodian shall be deemed to
have received proper instructions from the Issuing Entity, the Servicer or the
Seller, 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 the Seller, 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, the Seller 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, the Seller 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, the Seller 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, the Seller
or any such trustee, respectively.
6. Advice of Counsel. The Custodian, the Seller, 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
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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 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 the Seller 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, the Seller, 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 the Seller or any Persons to whom the Depositor or
the Seller 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.
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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
By: /s/ Xxxxxx X. Xxxxxxx
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Name: Xxxxxx X. Xxxxxxx
Title: Vice President
GMAC LLC,
as owner of the Retained Receivables
By: /s/ Xxxx X. Xxxxxxxxx
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Name: Xxxx X. Xxxxxxxxx
Title: Director - Global Securitization
GMAC LLC,
as Custodian
By: /s/ Xxxx X. Xxxxxxxxx
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Name: Xxxx X. Xxxxxxxxx
Title: Director - Global Securitization
