EXHIBIT 99.11
================================================================================
CUSTODIAN AGREEMENT
BETWEEN
GENERAL MOTORS ACCEPTANCE CORPORATION
CUSTODIAN
AND
CAPITAL AUTO RECEIVABLES, INC.
SELLER
DATED AS OF AUGUST 14 2003
================================================================================
THIS CUSTODIAN AGREEMENT, dated as of August 14, 2003, is made between
General Motors Acceptance Corporation, a Delaware corporation, as Custodian (the
"Custodian"), and Capital Auto Receivables, Inc., a Delaware corporation (the
"Seller").
WHEREAS, simultaneously herewith General Motors Acceptance Corporation
(in its capacity as seller, "GMAC"), and the Seller are entering into a Pooling
and Servicing Agreement, dated as of the date hereof (as it may be amended,
supplemented or modified from time to time, the "Pooling and Servicing
Agreement,") pursuant to which GMAC shall sell, transfer and assign, as of the
Initial Closing Date, with respect to the Initial Receivables and, as of each
Additional Closing Date, with respect to the Additional Receivables, to the
Seller without recourse all of its right, title and interest in and to the
Receivables;
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 Receivable Files pertaining to the
Receivables;
WHEREAS, the Pooling and Servicing Agreement contemplates that the
Seller may enter into the Further Transfer and Servicing Agreements with the
Issuer, pursuant to which the Seller shall sell, transfer and assign, as of the
Initial Closing Date, with respect to the Initial Receivables, and as of each
Additional Closing Date, with respect to the Additional Receivables, to the
Issuer without recourse all of the Seller's right, title and interest in and to
the Receivables and under the aforementioned custodian agreement;
WHEREAS, in connection with any such sale, transfer and assignment, the
Seller desires for the Custodian to act as custodian of the Receivables for the
benefit of the Issuer; and
WHEREAS, after the execution of the Indenture, the Custodian will act
on behalf of the Indenture Trustee in connection with its duties as custodian of
the Receivables.
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. Certain Definitions. Capitalized terms used but not
otherwise defined herein shall have the respective meanings assigned them in
Part I of Appendix A to the Pooling and Servicing Agreement or in the text of
the Pooling and Servicing Agreement. All references herein to "the Agreement" or
"this Agreement" are to this Custodian Agreement as it may be amended,
supplemented or modified from time to time, the exhibits hereto and the
capitalized terms used herein which are defined in such Appendix A, and all
references herein to Sections and subsections are to Sections and subsections of
this Agreement unless otherwise specified. The rules of construction set forth
in Part II of such Appendix A shall be applicable to this Agreement.
2. 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 Receivable Files pertaining
to the Receivables. The Custodian hereby acknowledges that the
Seller may sell, transfer and assign all of its right, title and interest under
this Custodian Agreement to the Issuer pursuant to the Further Transfer and
Servicing Agreements. The Custodian hereby agrees, in connection with any such
sale, transfer and assignment, to act as Custodian for the benefit of the Issuer
with respect to those Receivables of which from time to time the Issuer is the
Owner (as defined in the Pooling and Servicing Agreement). The Custodian
acknowledges that the Issuer has pledged the Receivables to the Indenture
Trustee under the Indenture and agrees to hold the Receivables on behalf of the
Indenture Trustee for the benefit of the Secured Parties. 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 automotive receivables that the
Custodian services and holds for itself or others. The Custodian hereby
acknowledges receipt of the Receivable File for each Receivable listed on the
Schedule of Initial Receivables.
3. Maintenance at Office. The Custodian agrees to maintain
each Receivable 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 owner of the related
Receivable upon 30 days' prior written notice.
4. Duties of Custodian.
(a) Safekeeping. The Custodian shall hold each
Receivable File described herein on behalf of the Owner of the related
Receivable for the use and benefit of the Owner and, if applicable, Interested
Parties and shall maintain such accurate and complete accounts, records and
computer systems pertaining to each Receivable File described herein as shall
enable the Seller and the Issuer to comply with their respective obligations
under the Pooling and Servicing Agreement and the other Basic Documents. Each
Receivable 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, if
applicable, the other Basic Documents. The Custodian shall conduct, or cause to
be conducted, periodic physical inspections of the Receivable 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 and the Custodian
to verify the accuracy of the Custodian's inventory and record keeping. The
Custodian shall promptly report to the Owner of a Receivable any failure on its
part to hold the related Receivable 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 Owner
of a Receivable or its duly authorized representatives, attorneys or auditors to
inspect the related Receivable File described herein and the related accounts,
records and computer systems maintained by the Custodian pursuant hereto at such
times as the Owner may reasonably request.
(c) Release of Documents. The Custodian shall
release any Receivable (and its related Receivable File) to the Seller, the
Servicer or the Issuer, as
2
appropriate, under the circumstances provided in the Pooling and Servicing
Agreement and the other Basic Documents.
(d) Administration; Reports. In general, the
Custodian shall attend to all non-discretionary details in connection with
maintaining custody of the Receivable Files as described herein. In addition,
the Custodian shall assist the Issuer and the Servicer 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 Receivable
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.
5. Instructions; Authority to Act. The Custodian shall be
deemed to have received proper instructions from the Issuer with respect to the
Receivable 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, 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.
6. Indemnification By the Custodian. The Custodian agrees to
indemnify the Seller, the Issuer and each trustee 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 Seller, the Issuer 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 Receivable Files described
herein; provided, however, that the Custodian shall not be liable to the Seller,
the Issuer or any such trustee, respectively, for any portion of any such amount
resulting from the willful misfeasance, bad faith or negligence of the Seller,
the Issuer or any such trustee, respectively.
7. Advice of Counsel. The Custodian, the Seller and, upon
execution of the Basic Documents, 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.
8. 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
3
no sooner than sixty (60) days after the date of such notice. Notwithstanding
the foregoing, if General Motors Acceptance Corporation resigns as Servicer
under the Basic Documents or if all of the rights and obligations of the
Servicer have been terminated under the Further Transfer and Servicing
Agreements, this Custodian Agreement may be terminated by the Issuer or by any
Persons to whom the Issuer has assigned its rights hereunder. As soon as
practicable after the termination of this Custodian Agreement, the Custodian
shall deliver the Receivable Files described herein to the Issuer or the
Issuer's agent at such place or places as the Issuer may reasonably designate.
9. GOVERNING LAW. THIS 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 SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW,
AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES UNDER THIS AGREEMENT
SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
10. Notices. All demands, notices and communications upon or
to the Custodian or the Seller under this Agreement shall be delivered as
specified in Appendix B of the Trust Sale and Servicing Agreement.
11. Binding Effect. This Custodian Agreement shall be binding
upon and shall inure to the benefit of the Seller, the Issuer, the Custodian and
their respective successors and assigns, including the Issuer.
12. 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.
13. 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 any
Persons to whom the Seller has assigned its rights hereunder, as applicable.
14. 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.
15. 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.
16. No Third-Party Beneficiaries. This Agreement shall inure
to the benefit of and be binding upon the parties hereto, the Owners and, to the
extent expressly provided herein, the Interested Parties, and their respective
successors and permitted assigns. Except as otherwise
4
expressly provided in this Agreement, no other Person shall have any right or
obligation hereunder.
17. Merger and Integration. Except as specifically stated
otherwise herein, this 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 Agreement. This Agreement may not be
modified, amended, waived, or supplemented except as provided herein.
* * * * *
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.
CAPITAL AUTO RECEIVABLES, INC.
By:_______________________________________
Name: S. N. Richard
Title: Manager - Securitization
GENERAL MOTORS ACCEPTANCE CORPORATION,
as Custodian
By:_______________________________________
Name: Xxxxx X. Xxxxxxxxxx
Title: Director - Securitization and Cash
Management
Signature Page Custodian Agreement
EXHIBIT A
List of Branch Offices
