EXHIBIT 99.5
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CUSTODIAN AGREEMENT
BETWEEN
GENERAL MOTORS ACCEPTANCE CORPORATION
CUSTODIAN
AND
WHOLESALE AUTO RECEIVABLES CORPORATION
SELLER
DATED AS OF MARCH 15, 2001
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THIS CUSTODIAN AGREEMENT, dated as of March 15, 2001 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 VII, 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
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.
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(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
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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 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.
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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 CORPORATION
By: ▇. ▇. ▇▇▇▇▇▇
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Name: ▇.▇. ▇▇▇▇▇▇
Title: Manager - Securitization
GENERAL MOTORS ACCEPTANCE CORPORATION,
as owner of the Retained Receivables
By: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Title: Director - Securitization and
Cash Management
GENERAL MOTORS ACCEPTANCE CORPORATION,
as Custodian
By: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Title: Director - Securitization and
Cash Management