Exhibit 99.11
CUSTODIAN AGREEMENT
BETWEEN
GENERAL MOTORS ACCEPTANCE CORPORATION
CUSTODIAN
AND
CAPITAL AUTO RECEIVABLES, INC.
SELLER
DATED AS OF AUGUST 8, 2002
THIS CUSTODIAN AGREEMENT, dated as of August 8, 2002, 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 Receivables Files pertaining to the Receivables;
WHEREAS, the Pooling and Servicing Agreement contemplates that the Seller
may enter into the Second Step 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 Second Step 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
Initial 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 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 Second Step Transfer and Servicing Agreement. 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 Second Step Transfer and Servicing Agreements. 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
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appropriate, under the circumstances provided in the Pooling and Servicing
Agreement and the Second Step Transfer and Servicing Agreements.
(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 generally in the preparation of routine reports to the holders
of Securities, if any, or to regulatory bodies, to the extent necessitated by
the Custodian's custody of the Receivable Files described herein.
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 Second Step Transfer and Servicing Agreements, 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 Second Step Transfer and Servicing Agreements or if all of the rights and
obligations of the Servicer have been terminated under the Second Step 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.
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9. Governing Law. THIS CUSTODIAN AGREEMENT SHALL BE GOVERNED BY,
AND CONSTRUED IN ACCORDANCE WITH, THE 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.
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 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.
* * * * *
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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.
CAPITAL AUTO RECEIVABLES, INC.
By: /s/ S. N. Richard
---------------------------------------------
Name: S. N. Richard
Title: Project Manager - Securitization
GENERAL MOTORS ACCEPTANCE CORPORATION,
as Custodian
By: /s/ ▇. ▇. ▇▇▇▇▇▇
---------------------------------------------
Name: ▇. ▇. ▇▇▇▇▇▇
Title: Manager - Securitization
EXHIBIT A
List of Branch Offices