EXECUTION COPY
EXHIBIT 99.2
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CUSTODIAN AGREEMENT
BETWEEN
GENERAL MOTORS ACCEPTANCE CORPORATION,
CUSTODIAN
AND
CAPITAL AUTO RECEIVABLES, INC.,
SELLER
DATED AS OF FEBRUARY 16, 2006
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This CUSTODIAN AGREEMENT, dated as of February 16, 2006, is made
between General Motors Acceptance Corporation, a Delaware corporation, as
custodian (the "Custodian"), and Capital Auto Receivables, Inc., a Delaware
corporation, as seller (the "Seller").
WHEREAS, simultaneously herewith General Motors Acceptance Corporation
and the Seller are entering into a Pooling and Servicing Agreement, dated as of
the date hereof (as it may be amended, modified or supplemented from time to
time, the "Pooling and Servicing Agreement"), pursuant to which General Motors
Acceptance Corporation shall sell, transfer and assign, as of the Closing Date,
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
Closing Date, with respect to the 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. Definitions. Capitalized terms used but not otherwise defined herein
shall have the respective meanings assigned to them in Part I of Appendix A to
the Trust Sale and Servicing Agreement or in the text of the Trust Sale
Servicing Agreement. The rules of construction set forth in Part II of such
Appendix A shall be applicable to this Custodian Agreement. All references
herein to Sections and subsections are to sections and subsections of this
Custodian Agreement unless otherwise specified.
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
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time the Issuer is the Owner. 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 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 thirty (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, the Servicer 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 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
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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 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
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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 CUSTODIAN
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 Custodian 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 Custodian 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 expressly provided in this
Custodian Agreement, no other Person shall have any right or obligation
hereunder.
17. Merger and Integration. Except as specifically stated otherwise
herein, this Custodian 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 Custodian
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Agreement. This Custodian Agreement may not be modified, amended, waived or
supplemented except as provided herein.
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IN WITNESS WHEREOF, each of the parties hereto has caused this
Custodian Agreement to be executed in its name and on its behalf by a duly
authorized officer as of the day and year first above written.
GENERAL MOTORS ACCEPTANCE CORPORATION, as Custodian
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Director-Global Securitization
CAPITAL AUTO RECEIVABLES, INC., as Seller
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇
Title: Vice President
EXHIBIT A
LIST OF BRANCH OFFICES
A