CUSTODIAN AGREEMENT among AMERICREDIT FINANCIAL SERVICES, INC., as Custodian, FINANCIAL SECURITY ASSURANCE INC., as Insurer and WELLS FARGO BANK, NATIONAL ASSOCIATION, as Trust Collateral Agent Dated as of September 12, 2007
Exhibit 10.8
EXECUTION COPY
EXECUTION COPY
among
AMERICREDIT FINANCIAL SERVICES, INC.,
as Custodian,
as Custodian,
FINANCIAL SECURITY ASSURANCE INC.,
as Insurer
as Insurer
and
XXXXX FARGO BANK, NATIONAL ASSOCIATION,
as Trust Collateral Agent
as Trust Collateral Agent
Dated as of September 12, 2007
THIS CUSTODIAN AGREEMENT, dated as of September 12, 2007, is made with respect to the
issuance of Notes and a Certificate by AmeriCredit Automobile Receivables Trust 2007-D-F (the
“Issuer”), and is between AMERICREDIT FINANCIAL SERVICES, INC., as custodian (in such
capacity, the “Custodian”), FINANCIAL SECURITY ASSURANCE INC. (the “Insurer”) and
XXXXX FARGO BANK, NATIONAL ASSOCIATION, a national banking association, as trust collateral agent
(the “Trust Collateral Agent”). Capitalized terms used herein which are not defined herein
shall have the meanings set forth in the Sale and Servicing Agreement as hereinafter defined.
W I T N E S S E T H:
WHEREAS, AmeriCredit Financial Services, Inc. (“AFS”) and AFS SenSub Corp. (“AFS
SenSub”) have entered into a Purchase Agreement dated as of September 12, 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 Xxxxx Fargo
Bank, National Association, as Trust Collateral Agent and as Backup Servicer, have entered into a
Sale and Servicing Agreement, dated as of September 12, 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 0000 Xxxxxxxxxxx, Xxxxx 000, Xxxxxxxxx, Xxxxx 00000 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 (i) maintain the original or with respect to
“electronic chattel paper” as such term is defined in the UCC, an authoritative copy of the fully
executed original retail installment sales contract or promissory note and (ii) maintain the
original of the 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 electronically by the Registrar of Titles
of the applicable state pursuant to
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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, at the
Servicer’s expense, 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 hereto as Schedule II of
Exhibit A (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 Backup Servicer and
the Insurer 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. 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 Standard & Poor’s, a division of the XxXxxx-Xxxx
Companies, Inc. (“Standard & Poor’s”), Xxxxx’x 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 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 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 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
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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 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., 000
Xxxxxx Xxxxxx, Xxxxx 0000, Xxxx Xxxxx, Xxxxx 00000, Attention: Chief Financial Officer, (b) in the
case of the Trust Collateral Agent, at the following address: Xxxxx Fargo Bank, National
Association, Sixth and Xxxxxxxxx Xxxxxx, XXX X0000–161, Xxxxxxxxxxx, Xxxxxxxxx 00000 (facsimile
number (000) 000-0000), Attention: Corporate Trust Services/Asset Backed Administration, (c) in the
case of the Insurer, at the following address: Financial Security Assurance Inc., 00 Xxxx 00xx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Transaction Oversight Department, (d) in the case of
Moody’s, at the following address: 00 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, (e) in the case of
Fitch, at the following address: Xxx Xxxxx Xxxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000 and (f) in the
case of Standard and Poor’s via electronic delivery to Xxxxxxxx_xxxxxxx@xxxxx.xxx; for any
information not available in electronic format, hard copies should be sent to the following
address: 00 Xxxxx Xxxxxx, 00xx xxxxx, Xxx Xxxx, Xxx Xxxx 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.
| XXXXX FARGO BANK, NATIONAL ASSOCIATION, as Trust Collateral Agent |
||||
| By: | /s/ Xxxxxxxx X. Xxxxxxxx | |||
| Name: | Xxxxxxxx X. Xxxxxxxx | |||
| Title: | Vice President | |||
| AMERICREDIT FINANCIAL SERVICES, INC., as Custodian |
||||
| By: | /s/ Xxxxx X. Xxxxxxxxx | |||
| Name: | Xxxxx X. Xxxxxxxxx | |||
| Title: | Senior Vice President, Structured Finance | |||
| FINANCIAL SECURITY ASSURANCE INC. |
||||
| By: | /s/ Xxxx X. Xxxxxx | |||
| Name: | Xxxx X. Xxxxxx | |||
| Title: | Managing Director | |||
| The foregoing Custodian Agreement is hereby confirmed and accepted as of the date first above written. | ||
| AMERICREDIT AUTOMOBILE RECEIVABLES TRUST 2007-D-F, as Issuer |
||
By:
|
WILMINGTON TRUST COMPANY, | |
| not in its individual capacity but solely as Owner Trustee on behalf of the Trust | ||
| By: | /s/ Xxxxxxxx X. Xxxxx | |||
| Name: | Xxxxxxxx X. Xxxxx | |||
| Title: | Vice President | |||
[Custodian Agreement]
EXHIBIT A
CUSTODIAN’S ACKNOWLEDGEMENT
AmeriCredit Financial Services, Inc. (the “Custodian”), acting as Custodian under a
Custodian Agreement, dated as of September 12, 2007, among the Custodian, Xxxxx Fargo Bank,
National Association, as Trust Collateral Agent and Financial Security Assurance Inc., pursuant to
which the Custodian holds on behalf of the Trust Collateral Agent for the benefit of the
Noteholders certain “Receivable Files,” as defined in the Sale and Servicing Agreement,
dated as of September 12, 2007 (the “Sale and Servicing Agreement”), among AmeriCredit
Automobile Receivables Trust 2007-D-F, as Issuer, AFS SenSub Corp., as Seller, AmeriCredit
Financial Services, Inc., as Servicer, and Xxxxx Fargo Bank, National Association, as Trust
Collateral Agent and as Backup Servicer, 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 Custodian 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 20th day of September, 2007.
| AMERICREDIT FINANCIAL SERVICES, INC., as Custodian | ||||||
| By: | ||||||
| Title: | ||||||
SCHEDULE I
Custodian Exception List
1
SCHEDULE II
Lien Perfection Exception List
2
