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 May 21, 2008
Exhibit 10.8
Execution Version
Execution Version
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 May 21, 2008
THIS CUSTODIAN AGREEMENT, dated as of May 21, 2008, is made with respect to the
issuance of Notes and a Certificate by AmeriCredit Automobile Receivables Trust
2008-A-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.
WITNESSETH:
WHEREAS, AmeriCredit Financial Services, Inc. (“AFS”) and AFS SenSub
Corp. (“AFS SenSub”) have entered into a Purchase Agreement dated as of May
21, 2008 (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 May 21, 2008
(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
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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 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: 7 World Trade Center at 000 Xxxxxxxxx Xxxxxx, Xxxxx Finance
Group — 00xx Xxxxx, 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/ Xxxxxxxx Xxxxx | |||
| Name: | Xxxxxxxx Xxxxx | |||
| Title: | Assistant Vice President, Structured Finance | |||
| FINANCIAL SECURITY ASSURANCE INC. |
||||
| By: | /s/ Xxxx Xxxxxx | |||
| Name: | Xxxx Xxxxxx | |||
| Title: | Managing Director | |||
The foregoing Custodian Agreement
is hereby confirmed and accepted
as of the date first above written.
is hereby confirmed and accepted
as of the date first above written.
By: WILMINGTON TRUST COMPANY,
not in its individual capacity but solely
as Owner Trustee on behalf of the Trust
not in its individual capacity but solely
as Owner Trustee on behalf of the Trust
By:
|
/s/ J. Xxxxxxxxxxx Xxxxxx | |||
| 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 May 21, 2008, 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 May 21, 2008 (the “Sale and Servicing Agreement”), among AmeriCredit
Automobile Receivables Trust 2008-A-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 29th day
of May, 2008.
| AMERICREDIT FINANCIAL SERVICES, INC., as Custodian |
||||
| By: | ||||
| Name: | ||||
| Title: | ||||
SCHEDULE I
Custodian Exception List
1
SCHEDULE II
Lien Perfection Exception List
2
