Exhibit 10.9
EXECUTION COPY
SERIES 2007-A-X TRI-PARTY REMITTANCE
PROCESSING AGREEMENT
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January 9, 2007
JPMorgan Chase Bank, N.A. ("Processor"), AmeriCredit Financial
Services, Inc. ("AmeriCredit") and Wells Fargo Bank, National Association, as
Trustee (the "Trustee"), agree as follows:
1. Servicing Arrangements. AmeriCredit, as Servicer (the "Servicer"),
AFS SenSub Corp., as Seller ("Seller"), AmeriCredit Automobile Receivables Trust
2007-A-X (the "Trust") and the Trustee entered into a Sale and Servicing
Agreement dated as of January 9, 2007 (as amended, supplemented and otherwise
modified from time to time, the "Sale and Servicing Agreement"), relating to the
Receivables (as such term is defined in the Sale and Servicing Agreement),
pursuant to which the Receivables were sold, transferred, assigned, or otherwise
conveyed to the Trust. The Sale and Servicing Agreement contemplates the
engagement of a processor and includes terms for the opening of the Lockbox
Account (as defined herein), and the Indenture contemplates that the Lockbox
Account will be assigned and pledged to the Trust Collateral Agent. The Sale and
Servicing Agreement does not include specific terms for the provision of data
processing services and deposit of remittance items. Such terms are set forth in
this Tri-Party Remittance Processing Agreement (the "Agreement"). All
capitalized terms used herein and not otherwise defined herein shall have the
meanings specified in the Sale and Servicing Agreement.
2. Remittance Processing Services. In order to provide a means of
collection of the Receivables which will allow the Trustee to receive the
proceeds of the Receivables and related security without AmeriCredit or its
Affiliates having access to the funds, the parties hereto agree for the benefit
of the Trustee that the processing services (the "Service(s)") of Processor will
be used for the collection and the deposit of remittances related to the
Receivables and related security.
3. Customer Remittances.
(a) Obligors of the Receivables will be directed by AmeriCredit to forward
their remittances to Processor at a post office address (the "Lockbox") assigned
by Processor. Processor, acting for the exclusive benefit of the Trustee, shall
have unrestricted and exclusive access to the mail directed to this address.
AmeriCredit agrees to notify Processor thirty (30) days in advance of any change
in Obligor remittance statements and/or mailing schedule.
(b) Third party money wire transfer providers, which shall include Western
Union Financial Services, Inc. (other such providers may perform the services
herein with the prior written consent of the Insurer) ("ACH Service") may from
time to time electronically deposit funds in the Lockbox Account (as defined
herein) on behalf of Obligors and such ACH Service shall be authorized by
Processor to electronically debit the Lockbox Account for the amounts of any
return items from Obligors; provided, however, the electronic debit of the
Lockbox Account for any return items by all ACH Services may not exceed $100,000
in the aggregate per day. Processor is authorized to establish such
arrangements, on such terms deemed prudent by Processor, with such ACH Service
concerning the electronic access to the Lockbox Account.
4. Collection of Mail. Processor will collect mail from the post
office at regular intervals each business day, but not less than two times
daily.
5. Endorsement of Items. Processor will endorse, on behalf of
AmeriCredit, checks and other deposited items that appear to be for deposit to
the credit of AmeriCredit or its Affiliates in accordance with Processor's
National Retail Lockbox Processing Agreements and Instructions, Treasury
Management Services Agreement, Commercial Account Agreement or other applicable
agreement and related service terms (individually and collectively, the "Bank
Agreements"), as appropriate.
6. Credit of Funds to Account.
(a) Processor will process the checks and other deposited items and credit
the total amount to the account described below (the "Lockbox Account"). The
Lockbox Account will be established at Processor (ABA No.: 122100024) as account
number 662633023. Pursuant to the terms of the Indenture and during the term of
this Agreement, and except as otherwise required by law (e.g., for purposes of
attachment, execution and other forms of legal process), all collected funds
held in the Lockbox Account shall be deemed to be the Trustee's funds, and the
Trustee will have exclusive right to control such funds and to make demand upon
or otherwise require Processor to make payment of any such funds to any person.
In the event a successor Processor has become Processor, the successor
Processor's notice of the new Lockbox Account pursuant to Section 19 shall amend
and replace the Lockbox Account above without the execution or filing of any
document or any further act by any of the parties to this Agreement.
(b) Unless otherwise directed by the Trustee (with the written consent of
the Insurer), AmeriCredit agrees that all collected funds on deposit in the
Lockbox Account shall be transferred from the Lockbox Account within two
Business Days by wire transfer in immediately available funds to the following
account: Wells Fargo Bank, National Association, Account No. 0001038377 f/b/o
20871801; ABA No. 121000248 (the "Collection Account").
(c) Each party hereto agrees that all funds deposited into the Lockbox
Account will not be subject to deduction, setoff, banker's lien, or any other
similar right in favor of any person, except that Processor or ACH Service may
setoff against the Lockbox Account the face amount of any check or other item
deposited in and credited to such Lockbox Account which is subsequently returned
for any reason or is otherwise not collected, necessary account adjustments as a
result of errors and overdrafts related to return items. If there are
insufficient funds in the Lockbox Account to pay items charged back to the
Lockbox Account and AmeriCredit has not remitted payment within 10 days of
demand therefor by Processor, the Trustee shall, upon provision of evidence
satisfactory to the Trustee, make payment to Processor for any such amounts from
funds in the Collection Account but, only to the extent that such amount was
actually received by the Trustee. If there are insufficient funds in the Lockbox
Account to pay items charged back to the Lockbox Account, AmeriCredit shall
remit payment within 2 days of demand therefore by Processor.
7. Applicable Documentation. This Agreement supplements, rather than
replaces, Processor's deposit account agreement, terms and conditions, and
lockbox agreement and other standard documentation in effect from time to time
with respect to the Lockbox, the Lockbox Account or the services provided in
connection therewith (the "Applicable Documentation"), which Applicable
Documentation will continue to apply to the Lockbox, the
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Lockbox Account and such services, and the respective rights, powers, duties,
obligations, liabilities and responsibilities of the parties thereto and hereto,
to the extent not expressly conflicting with the provisions of this Agreement
(however, in the event of any such conflict, the provisions of this Agreement
shall control). Prior to issuing any instructions, the Trustee shall provide
Processor with such documentation as Processor may reasonably request to
establish the identity and authority of the individuals issuing instructions on
behalf of the Trustee. The Trustee may request the Processor to provide other
services with respect to the Lockbox and the Lockbox Account; however, if such
services are not authorized or otherwise covered under the Applicable
Documentation, Processor's decision to provide any such services shall be made
in its sole discretion (including without limitation being subject to
AmeriCredit and/or the Trustee executing such Applicable Documentation or other
documentation as Processor may require in connection therewith).
8. Processor's General Duties. Notwithstanding anything to the
contrary in this Agreement: (i) Processor shall have only the duties and
responsibilities with respect to the matters set forth herein as is expressly
set forth in writing herein and shall not be deemed to be an agent, bailee or
fiduciary for any party hereto; (ii) Processor shall be fully protected in
acting or refraining from acting in good faith without investigation on any
notice, instruction or request purportedly furnished to it by AmeriCredit or the
Trustee in accordance with the terms hereof, in which case the parties hereto
agree that Processor has no duty to make any further inquiry whatsoever; (iii)
it is hereby acknowledged and agreed that Processor has no knowledge of (and is
not required to know) the terms and provisions of the Sale and Servicing
Agreement referred to in Section 1 above or any other related documentation or
whether any actions by the Trustee, AmeriCredit or any other person or entity
are permitted or a breach thereunder or consistent or inconsistent therewith;
and (iv) Processor shall not be liable to any party hereto or any other person
for any action or failure to act under or in connection with this Agreement
except to the extent such conduct constitutes its own willful misconduct or
negligence.
9. Processing of Items. The provision of services shall be governed by
the Bank Agreements, as may be amended from time to time, subject to the prior
written consent to any such amendments of a material nature by the Trustee, the
Insurer and AmeriCredit, which consents shall not be unreasonably withheld,
conditioned or delayed.
10. Trust Correspondence. Any envelopes collected from the Lockbox
which contain correspondence and other documents (including, but not limited to,
certificates of title, tax receipts, insurance policy endorsements and any other
documents or communications of or relating to the Receivables) will be sent to
the Servicer at its current address. Any enclosed payment(s), coupon(s) or
check(s) will be processed and deposited by Processor in accordance with the
provisions of the Agreement.
11. Confidentiality. Processor agrees that all information concerning
the Obligors of the Receivables which comes into Processor's possession pursuant
to this Agreement, other than that which is already known by Processor or to the
general public, will be treated in a confidential manner.
12. Fees. Unless otherwise agreed by Processor, AmeriCredit shall pay
Processor the fees set forth for this Service in Processor's most current Price
List as in effect from time to time, plus additional fees for the performance of
services beyond the terms of this
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Agreement, or resulting from increased expenses incurred by the failure of
AmeriCredit to furnish within a reasonable period of time following a request by
Processor, data in a form acceptable to Processor. Processor shall look first to
AmeriCredit for payment of such fees. If AmeriCredit fails to pay Processor
within thirty (30) days of receipt of invoice but in any event no later than
forty-five (45) days from the date of the invoice, Processor will notify the
Trustee in writing as soon as practicable and provide to the Trustee a copy of
such unpaid invoice. Subject to rights to terminate this Agreement pursuant to
Section 17, Processor will continue to perform its services under this Agreement
and the amount reflected in such invoice will be paid to Processor by the
Trustee out of funds in the Collection Account on the next Distribution Date (as
defined below), which follows by at least three Business Days the date of giving
such notice to the Trustee. Any fees unpaid after such date will be considered
unpaid fees. "Distribution Date" means the sixth day of the following calendar
month, or, if such day is not a Business Day, the immediately following Business
Day.
13. Processor's Liability for Nonperformance. In performing the
Services, Processor will exercise ordinary care and act in good faith. Processor
shall be deemed to have exercised ordinary care if its action or failure to act
is in conformity with general banking usages or is otherwise a commercially
reasonable practice of the banking industry. Processor's liability relating to
its or its employees', officers' or agents' performance or failure to perform
hereunder, or for any other action or inaction of Processor, or its employees,
officers or agents, shall be limited exclusively to the lesser of (i) any direct
losses which are caused by the failure of Processor, its employees, officers or
agents to exercise reasonable care and/or act in good faith, and (ii) the face
amount of any item, check, payment or other funds lost or mishandled by the
action or inaction of Processor. Under no circumstances will Processor be liable
for any general, indirect, special, incidental, punitive or consequential
damages or for damages caused, in whole or in part, by the action or inaction of
AmeriCredit or the Trustee, whether or not such action or inaction constitutes
negligence. Processor will not be liable for any damage, loss, liability or
delay caused by accidents, strikes, fire, flood, war, riot, equipment breakdown,
electrical or mechanical failure, acts of God or any cause which is reasonably
unavoidable or beyond its reasonable control. AmeriCredit agrees that the fees
charged by Processor for the performance of this Service shall be deemed to have
been established in contemplation of these limitations on Processor's liability.
In addition, AmeriCredit agrees to indemnify and hold Processor harmless from
all liability on the part of Processor under this Section 13 except such
liability as is attributable to the gross negligence of Processor.
14. Indemnification by AmeriCredit. AmeriCredit agrees to indemnify,
defend and hold Processor harmless from and against any and all damage, loss,
cost, expense or liability of any kind, including, without limitation,
reasonable attorneys' fees and court costs, which results, directly or
indirectly, in whole or in part, from any negligence and willful misconduct or
infidelity of AmeriCredit or any agent or employee of AmeriCredit, incurred in
connection with this Agreement, Lockbox or the Lockbox Account or any
interpleader proceeding relating thereto or from Processor acting upon
information furnished by AmeriCredit under this Agreement. AmeriCredit will
remain liable for all indemnification under this Section 14 after its removal
and/or resignation as Servicer.
15. Other Agreements. Processor shall not be bound by any agreement
between any of the other parties hereto irrespective of whether Processor has
knowledge of the existence of any such agreement or the terms and provisions
thereof.
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16. Records. This Agreement and the performance by Processor of the
Services hereunder shall not relieve Processor of any obligation imposed by law
or contract regarding the maintenance of records.
17. Amendment and Termination. This Agreement may only be amended in
writing signed by all parties to this Agreement and the Insurer. AmeriCredit or
Trustee may immediately terminate this Agreement for cause, provided, however,
that a similar agreement has been executed with a successor processor reasonably
acceptable to the Trustee and the Insurer or the Trustee and the Insurer have
consented to such termination. The Trustee may immediately terminate this
Agreement, at any time with the consent of the Insurer, and shall do so, at the
direction of the Insurer, upon written notice to the other parties hereto.
Otherwise, any party may terminate this Agreement on sixty (60) days' prior
written notice to the others; provided, however, that AmeriCredit shall promptly
notify the Insurer of receipt of any such notice and shall arrange for
alternative lockbox processing services satisfactory to the Insurer prior to the
termination of the Services.
18. Successor Servicer. Each of Processor and the Trustee agrees that
if the Servicer has been terminated or resigns as Servicer, this Agreement shall
not thereupon terminate and the successor servicer appointed pursuant to the
Sale and Servicing Agreement shall succeed, except as otherwise provided herein,
to all rights, benefits, duties and obligations of the Servicer hereunder. Prior
to the termination or resignation of the Trustee or the Servicer, the Trustee or
the Servicer, respectively, shall provide notice to Processor in accordance with
the terms and conditions to which each of the Trustee or the Servicer,
respectively, is itself entitled upon termination or resignation.
19. Successor Processor. Any company or national banking association
into which Processor may be merged or converted or with which it may be
consolidated, or any company or national banking association resulting from any
merger, conversion or consolidation to which it shall be a party or any company
or national association to which Processor may sell or transfer all or
substantially all of its business (provided any such company or national banking
association shall be a company organized under the laws of any state of the
United States or a national banking association and shall be eligible to perform
all of the duties imposed upon it by this Agreement) shall be the successor to
Processor hereunder without the execution or filing of any document or any
further act by any of the parties to this Agreement; provided, however, that
Processor notify the Trustee, the Insurer and AmeriCredit of any such merger,
conversion or consolidation within 30 days of its occurrence. If such successor
requires the establishment of a new account, then the successor Processor shall
as soon as practicable after the occurrence of any such merger, conversion or
consolidation (i) establish the new Lockbox Account and (ii) send written notice
to the Trustee, the Insurer and AmeriCredit with respect to the new Lockbox
Account number.
20. Third Party Beneficiary. This Agreement shall inure to the benefit
of the Insurer, and all covenants and agreements in this Agreement shall be for
the benefit of and run directly to the Insurer, and the Insurer shall be
entitled to rely on and, subject to the limitations on liability set forth
herein, enforce such covenants to the same extent as if it were a party to this
Agreement; provided, however, that, notwithstanding this provision, the
liability of Processor under this Agreement shall not under any circumstances
exceed the liability of Processor in the absence of any such third-party
beneficiary.
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21. Governing Law. This Agreement shall be governed by the laws of the
State of Texas. All parties hereby waive all rights to a trial by jury in any
action or proceeding relating to the Lockbox, Lockbox Account or this Agreement.
22. Notices. All written notices required by this Agreement shall be
delivered or mailed to the other parties at the addresses set forth below or to
such other address as a party may specify in writing.
Processor: JPMorgan Chase Bank, N.A.
2200 Ross Avenue, Floor 10
Mail code TX1-2946,
Dallas, TX 75201-2787
Attention: Belinda Crow
With a copy to:
JPMorgan Chase Bank, N.A.
2200 Ross Avenue, Floor 3
Mail code TX1-2903,
Dallas, TX 75201-2787
Attention: Michael Lister
AmeriCredit: AmeriCredit Financial Services, Inc.
801 Cherry Street, Suite 3900
Fort Worth, Texas 76102
Attention: Chief Financial Officer
Trustee: Wells Fargo Bank, National Association
Sixth Street and Marquette Avenue
MAC N9311-161
Minneapolis, Minnesota 55479
Attention: AmeriCredit Automobile Receivables Trust 2007-A-X
Insurer: XL Capital Assurance Inc.
1221 Avenue of the Americas
New York, New York 10020
Attention: Surveillance
23. Bankruptcy. Processor hereby covenants and agrees that, prior to
the date which is one year and one day after the payment in full of the Notes
and all amounts owed under the Indenture and the Sale and Servicing Agreement,
any loan facility or any other securities issued by a special purpose,
"bankruptcy remote" vehicle or trust (an "AmeriCredit Issuer SPE"), directly or
indirectly formed by AmeriCredit or any affiliate thereof, Processor will not
institute against or join with any other person in instituting against any
AmeriCredit Issuer SPE or any non-issuer special purpose, "bankruptcy remote,"
vehicle or trust (each an "AmeriCredit SPE"), any proceeding or file any
petition against any such AmeriCredit SPE, under any bankruptcy, insolvency or
similar law for the relief or aid of debtors (including, without limitation,
Title 11 of
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the United States Code or any amendment thereto), seeking the dissolution,
liquidation, arrangement, reorganization or similar relief of any such
AmeriCredit SPE or the appointment of a receiver, trustee, custodian or
liquidator of any such AmeriCredit SPE, or issue any writ, order, judgment
warrant of attachment, execution or similar process against a substantial part
of the property, assets or business of any such AmeriCredit SPE. This covenant
shall survive the termination of this Agreement.
[Remainder of Page Intentionally Left Blank]
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PROCESSOR: AMERICREDIT:
JPMORGAN CHASE BANK, N.A. AMERICREDIT FINANCIAL SERVICES, INC.
By: /s/ Tandra Davis By: /s/ Susan B. Sheffield
-------------------------------- --------------------------------
Name: Tandra Davis Name: Susan B. Sheffield
Title: Officer Title: Senior Vice President,
Structured Finance
TRUSTEE:
WELLS FARGO BANK,
NATIONAL ASSOCIATION,
as Trustee
By: /s/ Marianna C. Stershic
--------------------------------
Name: Marianna C. Stershic
Title: Vice President
[Series 2007-A-X Tri-Party Remittance Processing Agreement]