EXHIBIT 10.8
EXECUTION COPY
CUSTODIAN AGREEMENT
AMONG
AMERICREDIT FINANCIAL SERVICES, INC.,
AS CUSTODIAN,
XL CAPITAL ASSURANCE INC.,
AS INSURER
AND
WELLS FARGO BANK, NATIONAL ASSOCIATION,
AS TRUST COLLATERAL AGENT
DATED AS OF JANUARY 9, 2007
THIS CUSTODIAN AGREEMENT, dated as of January 9, 2007, is made with
respect to the issuance of Notes and a Certificate by AmeriCredit Automobile
Receivables Trust 2007-A-X (the "Issuer"), and is between AMERICREDIT FINANCIAL
SERVICES, INC., as custodian (in such capacity, the "Custodian"), XL CAPITAL
ASSURANCE INC. (the "Insurer") and WELLS FARGO BANK, NATIONAL ASSOCIATION, a
national banking association, as Trust Collateral Agent (the "Trustee").
Capitalized terms used herein which are not defined herein shall have the
meanings set forth in the Sale and Servicing Agreement as hereinafter defined.
WITNESSETH:
WHEREAS, AmeriCredit Financial Services, Inc. ("AFS") and AFS SenSub
Corp. ("AFS SenSub") have entered into a Purchase Agreement dated as of January
9, 2007 (the "Purchase Agreement"), pursuant to which AFS has sold, transferred
and assigned to AFS SenSub all of its right, title and interest in and to the
Receivables;
WHEREAS, the Issuer, AFS, as Servicer (the "Servicer"), AFS SenSub and
Wells Fargo Bank, National Association, as Trust Collateral Agent and as Backup
Servicer, have entered into a Sale and Servicing Agreement, dated as of January
9, 2007 (the "Sale and Servicing Agreement"), pursuant to which AFS SenSub has
sold, transferred and assigned to the Issuer all of AFS SenSub's right, title
and interest in and to the Receivables;
WHEREAS, in connection with such sales, transfers and assignments, AFS
and AFS SenSub have made certain representations and warranties regarding the
Receivable Files, upon which the Insurer has relied in issuing the Note Policy;
and
WHEREAS, the Trust Collateral Agent wishes to appoint the Custodian to
hold the Receivable Files as the custodian on behalf of the Issuer and the Trust
Collateral Agent;
NOW, THEREFORE, in consideration of the mutual agreements herein
contained and other good and valuable consideration the receipt and adequacy of
which are hereby acknowledged, the parties agree as follows:
1. Appointment of Custodian; Acknowledgement of Receipt. Subject to
the terms and conditions hereof, the Trust Collateral Agent hereby revocably
appoints the Custodian, but shall not be responsible for the acts or omissions
of the Custodian, and the Custodian hereby accepts such appointment, as
custodian and bailee on behalf of the Issuer and the Trust Collateral Agent, to
maintain exclusive custody of the Receivable Files relating to the Receivables
from time to time pledged to the Trust Collateral Agent as part of the Other
Conveyed Property. In performing its duties hereunder, the Custodian agrees to
act with reasonable care, using that degree of skill and attention that a
commercial bank acting in the capacity of a custodian would exercise with
respect to files relating to comparable automotive or other receivables that it
services or holds for itself or others. The Custodian hereby, as of the Closing
Date, acknowledges receipt of the Receivable File for each Receivable listed in
the Schedule of Receivables attached as Schedule A to the Sale and Servicing
Agreement subject to any exceptions noted on the Custodian's Acknowledgement (as
defined below). As evidence of its acknowledgement of such receipt of such
Receivables, the Custodian shall execute and deliver
on the Closing Date, the Custodian's Acknowledgement attached hereto as Exhibit
A (the "Custodian's Acknowledgement").
2. Maintenance of Receivables Files at Office. The Custodian agrees to
maintain the Receivable Files at its office located at 4001 Embarcadero, Suite
200, Arlington, Texas 76014 or, subject to the prior written consent of the
Insurer (so long as no Insurer Default shall have occurred and be continuing),
at such other office as shall from time to time be identified to the Trust
Collateral Agent and the Insurer, and the Custodian will hold the Receivable
Files in such office on behalf of the Issuer and the Trust Collateral Agent,
clearly identified as being separate from any other instruments and files on its
records, including other instruments and files held by the Custodian and in
compliance with Section 3(b) hereof.
3. Duties of Custodian.
(a) Safekeeping. The Custodian shall hold the Receivable Files on
behalf of the Trust Collateral Agent clearly identified as being separate from
all other files or records maintained by the Custodian at the same location and
shall maintain such accurate and complete accounts, records and computer systems
pertaining to each Receivable File as will enable the Trust Collateral Agent to
comply with the terms and conditions of the Sale and Servicing Agreement. Each
Receivable representing tangible chattel paper (as such term is defined in the
Uniform Commercial Code) shall be stamped on both of the first page and the
signature page (if different) in accordance with the instructions from time to
time provided by the Insurer, and the form and content of the stamp shall be
acceptable to the Insurer. Each Receivable shall be identified on the books and
records of the Custodian in a manner that (i) is consistent with the practices
of a commercial bank acting in the capacity of custodian with respect to similar
receivables, (ii) indicates that the Receivables are held by the Custodian on
behalf of the Trust Collateral Agent and (iii) is otherwise necessary, as
reasonably determined by the Custodian, to comply with the terms of this
Custodian Agreement. 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 Trust Collateral Agent, the Insurer and the
Custodian to verify the accuracy of the Custodian's inventory and recordkeeping.
Such inspections shall be conducted at such times, in such manner and by such
persons including, without limitation, independent accountants, as the Insurer
or the Trust Collateral Agent may request and the cost of such inspections shall
be borne directly by the Custodian and not by the Trust Collateral Agent. The
Custodian shall promptly report to the Insurer and the Trust Collateral Agent
any failure on its part to hold the Receivable Files and maintain its accounts,
records and computer systems as herein provided and promptly take appropriate
action to remedy any such failure. Upon request, the Custodian shall make copies
or other electronic file records (e.g., diskettes, CD's, etc.) (the "Copies") of
the Receivable Files and shall deliver such Copies to the Trust Collateral Agent
and the Trust Collateral Agent shall hold such Copies on behalf of the
Noteholders and the Insurer. Subject to Section 3(c) hereof, the Custodian shall
at all times maintain the original of the (i) fully executed original retail
installment sales contract or promissory note (or with respect to "electronic
chattel paper", as such term is defined in the UCC, an authoritative copy) and
(ii) Lien Certificate or application therefore (if no such Lien Certificate has
yet been issued), in each case relating to each Receivable in a fireproof vault;
provided, however, the Lien Certificate may be maintained
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electronically by the Registrar of Titles of the applicable state pursuant to
applicable state laws, with confirmation thereof maintained by the Custodian or
a third-party service provider.
(b) Access to Records. The Custodian shall, subject only to the
Custodian's security requirements applicable to its own employees having access
to similar records held by the Custodian, which requirements shall be consistent
with the practices of a commercial bank acting in the capacity of custodian with
respect to similar files or records, and at such times as may be reasonably
imposed by the Custodian, permit only the Noteholders, the Insurer and the Trust
Collateral Agent or their duly authorized representatives, attorneys or auditors
to inspect the Receivable Files and the related accounts, records, and computer
systems maintained by the Custodian pursuant hereto at such times as the
Noteholders, the Insurer or the Trust Collateral Agent may reasonably request.
(c) Release of Documents. Consistent with the practices of a
commercial bank acting in the capacity of custodian with respect to similar
files or records, the Custodian may release any Receivable in the Receivable
Files to the Servicer, if appropriate, under the circumstances provided in
Section 3.3(b) of the Sale and Servicing Agreement.
(d) Administration; Reports. The Custodian shall, in general, attend
to all non-discretionary details in connection with maintaining custody of the
Receivable Files on behalf of the Trust Collateral Agent. In addition, the
Custodian shall assist the Trust Collateral Agent generally in the preparation
of any routine reports to Noteholders or to regulatory bodies, to the extent
necessitated by the Custodian's custody of the Receivable Files.
(e) Review of Lien Certificates. On or before the Closing Date, the
Custodian shall deliver to the Trust Collateral Agent a listing in the form
attached hereto as Schedule II of Exhibit A, of all Receivables with respect to
which a Lien Certificate, showing AFS (or an Originating Affiliate or a Titled
Third-Party Lender) as secured party, was not included in the related Receivable
File as of such date. In addition, the Custodian shall deliver to the Trust
Collateral Agent and the Insurer an exception report in the form attached as
Schedule II hereto (i) no later than the last Business Day of the calendar month
during which the 90th day after the Closing Date occurred, (ii) no later than
the last Business Day of the calendar month during which the 180th day after the
Closing Date occurred and (iii) no later than the last Business Day of the
calendar month during which the 240th day after the Closing Date occurred.
4. Instructions; Authority to Act. The Custodian shall be deemed to
have received proper instructions with respect to the Receivable Files upon its
receipt of written instructions signed by a Responsible Officer of the Trust
Collateral Agent. Such instructions may be general or specific in terms. A copy
of any such instructions shall be furnished by the Trust Collateral Agent to the
Trustee, the Issuer and the Insurer.
5. Custodian Fee. For its services under this Agreement, the Custodian
shall be entitled to reasonable compensation to be paid by the Servicer.
6. Indemnification by the Custodian. The Custodian agrees to indemnify
the Issuer, the Owner Trustee, the Trust Collateral Agent, the Backup Servicer,
the Insurer and the Trustee for any and all liabilities, obligations, losses,
damage, payments, costs or expenses of
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any kind whatsoever (including the fees and expenses of counsel) that may be
imposed on, incurred or asserted against the Issuer, the Owner Trustee, the
Trust Collateral Agent, the Insurer, the Backup Servicer and the Trustee and
their respective officers, directors, employees, agents, attorneys and
successors and assigns as the result of any act or omission in any way relating
to the maintenance and custody by the Custodian of the Receivable Files;
provided, however, that the Custodian shall not be liable for any portion of any
such liabilities, obligations, losses, damages, payments or costs or expenses
due to the willful misfeasance, bad faith or gross negligence of the Issuer, the
Owner Trustee, the Trust Collateral Agent, the Collateral Agent, the Backup
Servicer, the Insurer or the Trustee or the officers, directors, employees and
agents thereof. In no event shall the Custodian be liable to any third party for
acts or omissions of the Custodian.
7. Advice of Counsel. The Custodian and the Trust Collateral Agent
further agree that the Custodian shall be entitled to rely and act upon advice
of counsel with respect to its performance hereunder as custodian 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 and shall continue in full force and effect until terminated as
hereinafter provided. Prior to an Insurer Default, this Custodian Agreement may
be amended at any time by mutual agreement of the Insurer, the Trust Collateral
Agent and the Custodian and may be terminated by either the Insurer or the
Custodian by giving written notice to the other parties, such termination to
take effect no sooner than thirty (30) days after the date of such notice;
provided, however, that the Insurer may terminate this Custodian Agreement at
any time in its sole discretion and any termination by the Insurer shall take
effect immediately. So long as AFS is serving as Custodian, any termination of
AFS as Servicer under the Sale and Servicing Agreement shall terminate AFS as
Custodian under this Agreement. If an Insurer Default shall have occurred and be
continuing, with the prior written consent of the Note Majority, this Custodian
Agreement may be amended at any time by mutual agreement of the parties hereto
and may be terminated by any party by giving written notice to the other
parties, such termination to take effect no sooner than thirty (30) days after
the date of such notice; provided, however, that if an Insurer Default has
occurred and is continuing such action shall not materially adversely affect the
interest of the Insurer. Upon any termination or amendment of this Custodian
Agreement, the Trust Collateral Agent, in the case of amendments, and the party
seeking termination, in the case of terminations, shall give written notice to
the Insurer, Standard & Poor's, a division of the McGraw-Hill Companies, Inc.
("Standard & Poor's"), Moody's Investors Service ("Moody's") and Fitch Inc.
("Fitch") (collectively, the "Rating Agencies"). Immediately after receipt of
notice of termination of this Custodian Agreement, the Custodian shall deliver
the Receivable Files to the Trust Collateral Agent on behalf of the Noteholders
and the Insurer, and at the Custodian's expense, at such place or places as the
Trust Collateral Agent, or the Insurer in the case of a termination by the
Insurer, may designate, and the Trust Collateral Agent, or its agent, as the
case may be, shall act as custodian for such Receivables Files on behalf of the
Noteholders and the Insurer until such time as a successor custodian, approved
by the Insurer, has been appointed. If, within seventy-two (72) hours after the
termination of this Custodian Agreement, the Custodian has not delivered the
Receivable Files in accordance with the preceding sentence, the Insurer or, if
an Insurer Default
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shall have occurred and be continuing, the Trust Collateral Agent, may enter the
premises of the Custodian and remove the Receivable Files from such premises. In
connection with the administration of this Agreement, the parties may agree from
time to time upon the interpretation of the provisions of this Agreement as may
in their joint opinion be consistent with the general tenor and purposes of this
Agreement, any such interpretation to be signed by all parties and annexed
hereto.
9. Governing Law. This Custodian Agreement shall be governed by and
construed in accordance with the laws of the State of New York without regard to
the conflict of law provisions thereof (other than Sections 5-1401 and 5-1402 of
the New York General Obligations Law).
10. Notices. All demands, notices and communications hereunder shall
be in writing, electronically delivered, delivered or mailed, and shall be
deemed to have been duly given upon receipt (a) in the case of the Custodian, at
the following address: AmeriCredit Financial Services, Inc., 801 Cherry Street,
Suite 3900, Fort Worth, Texas 76102, Attention: Chief Financial Officer, (b) in
the case of the Trust Collateral Agent, at the following address: Wells Fargo
Bank, National Association, Sixth and Marquette Avenue, MAC N9311-161,
Minneapolis, Minnesota 55479 (facsimile number (612) 667-3464), Attention:
Corporate Trust Services/Asset Backed Administration, (c) in the case of the
Insurer, at the following address: XL Capital Assurance Inc., 1221 Avenue of the
Americas, New York, New York 10020 (facsimile number (212) 478-3587), Attention:
Surveillance; e-mail: XLCA.Surveillance@xlgroup.com, (d) in the case of Moody's,
at the following address: 99 Church Street, New York, New York 10007, (e) in the
case of Fitch, at the following address: One State Street Plaza, New York, New
York 10004 and (f) in the case of Standard and Poor's via electronic delivery to
Servicer_reports@sandp.com; for any information not available in electronic
format, hard copies should be sent to the following address: 55 Water Street,
41st floor, New York, New York 10041-0003, Attention: ABS Surveillance Group, or
at such other address as shall be designated by such party in a written notice
to the other parties.
11. Binding Effect. This Custodian Agreement shall be binding upon and
shall inure to the benefit of the parties hereto and their respective successors
and assigns. Concurrently with the appointment of a successor trustee under the
Sale and Servicing Agreement, the parties hereto shall amend this Custodian
Agreement to make said successor trustee, the successor to the Trust Collateral
Agent hereunder.
[Remainder of page intentionally left blank]
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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 on the day and year first above written.
WELLS FARGO BANK, NATIONAL ASSOCIATION,
as Trust Collateral Agent
By: /s/ Marianna C. Stershic
------------------------------------
Name: Marianna C. Stershic
Title: Vice President
AMERICREDIT FINANCIAL SERVICES, INC.,
as Custodian
By: /s/ Susan B. Sheffield
------------------------------------
Name: Susan B. Sheffield
Title: Senior Vice President,
Structured Finance
XL CAPITAL ASSURANCE INC.
By: /s/ Catherine R. Lau
------------------------------------
Name: Catherine R. Lau
Title: Senior Managing Director
The foregoing Custodian Agreement
is hereby confirmed and accepted
as of the date first above written.
AMERICREDIT AUTOMOBILE RECEIVABLES
TRUST 2007-A-X,
as Issuer
By: WILMINGTON TRUST COMPANY, not in
its individual capacity but solely
as Owner Trustee on behalf of the
Trust,
By: /s/ Michele C. Harra
---------------------------------
Name: Michele C. Harra
Title: Financial Services Officer
[Custodian Agreement]
EXHIBIT A
CUSTODIAN'S ACKNOWLEDGEMENT
AmeriCredit Financial Services, Inc. (the "Custodian"), acting as
Custodian under a Custodian Agreement, dated as of January 9, 2007, among the
Custodian, Wells Fargo Bank, National Association, as Trust Collateral Agent and
XL Capital Assurance Inc., pursuant to which the Custodian holds on behalf of
the Trust Collateral Agent for the benefit of the Noteholders and the Insurer
certain "Receivable Files," as defined in the Sale and Servicing Agreement,
dated as of January 9, 2007 (the "Sale and Servicing Agreement"), among
AmeriCredit Automobile Receivables Trust 2007-A-X, as Issuer, AFS SenSub Corp.,
as Seller, AmeriCredit Financial Services, Inc., as Servicer, and Wells Fargo
Bank, National Association, as Trust Collateral Agent and as Backup Servicer and
Trust Collateral Agent, hereby acknowledges receipt of the Receivable File for
each Receivable listed in the Schedule of Receivables attached as Schedule A to
said Sale and Servicing Agreement except as noted in the Exception List attached
as Schedule I and the Lien Perfection Exception List attached as Schedule II
hereto.
IN WITNESS WHEREOF, AmeriCredit Financial Services, Inc. has caused
this acknowledgement to be executed by its duly authorized officer as of this
18th day of January, 2007.
AMERICREDIT FINANCIAL SERVICES, INC.,
as Custodian
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
SCHEDULE I
Custodian Exception List
1
SCHEDULE II
Lien Perfection Exception List
2