EXHIBIT 10.8
EXECUTION COPY
CUSTODIAN AGREEMENT
AMONG
AMERICREDIT FINANCIAL SERVICES, INC.,
AS CUSTODIAN,
FINANCIAL SECURITY ASSURANCE INC.,
AS INSURER
AND
XXXXX FARGO BANK, NATIONAL ASSOCIATION,
AS TRUST COLLATERAL AGENT
DATED AS OF JULY 12, 2006
THIS CUSTODIAN AGREEMENT, dated as of July 12, 2006, is made with
respect to the issuance of Notes and a Certificate by AmeriCredit Automobile
Receivables Trust 2006-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
"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 Funding
Trust ("AFS Funding") have entered into a Purchase Agreement dated as of July
12, 2006 (the "Purchase Agreement"), pursuant to which AFS has sold, transferred
and assigned to AFS Funding all of its right, title and interest in and to the
Initial Receivables and will sell, transfer and assign to AFS Funding on the
applicable Subsequent Transfer Date all of its right, title and interest in and
to the related Subsequent Receivables;
WHEREAS, the Issuer, AFS, as Servicer (the "Servicer"), AFS Funding
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
July 12, 2006 (the "Sale and Servicing Agreement"), pursuant to which AFS
Funding has sold, transferred and assigned to the Issuer all of AFS Funding's
right, title and interest in and to the Initial Receivables and will sell,
transfer and assign to the Issuer on the applicable Subsequent Transfer Date all
of AFS Funding's right, title and interest in and to the related Subsequent
Receivables;
WHEREAS, in connection with such sales, transfers and assignments, AFS
and AFS Funding 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, and, with
respect to any Subsequent Receivables as of the applicable Subsequent Transfer
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, and
with respect to any Subsequent Receivables, the applicable Subsequent Transfer
Date, the Custodian's Acknowledgement attached hereto as Exhibit A-1 or Exhibit
A-2 with respect to any Subsequent Receivable (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(c) hereof.
3. Duties of Custodian.
(a) Reviews of Receivable Files.
(i) Prior to the Closing Date, the Custodian shall cause the
Trust Collateral Agent, or such other person acceptable to the
Insurer, to perform a random limited review of at least 300 of
the Receivable Files relating to the Initial Receivables to
determine that each Receivable File so reviewed includes (A) a
fully executed original retail installment sales contract or
promissory note, and (B) the Lien Certificate or application
therefor. As evidence of the performance of such review, the
Trust Collateral Agent or such other person shall execute and
deliver to the Insurer by July 20, 2006, an Acknowledgement in
the form of Exhibit B hereto with any exceptions related to such
review listed on Schedule III.
(ii) Prior to any Subsequent Transfer Date, but only at the
written direction of the Insurer, the Custodian shall cause the
Trust Collateral Agent, or such other person acceptable to the
Insurer, to perform a random limited review of certain Receivable
Files relating to the Subsequent Receivables being transferred on
such Subsequent Transfer Date to determine that each Receivable
File so reviewed includes (A) a fully executed original retail
installment sales contract or promissory note, and (B) the Lien
Certificate or application therefor; provided, that, subject to
subclause (iii), below, the aggregate number of Receivable Files
related to Subsequent Receivables that the Insurer may direct the
Trust Collateral Agent to review pursuant to this subclause (ii)
may not exceed 100. As evidence of the performance of such
review, the Trust Collateral Agent or such other person shall
execute and deliver to the Insurer by the related Subsequent
Transfer Date an
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Acknowledgement in the form of Exhibit B hereto with any
exceptions related to such review listed on Schedule III.
(iii) If any review conducted pursuant to subclause (i) or
subclause (ii) reveals, in the Insurer's opinion, an
unsatisfactory number of missing items, the Insurer, in its sole
discretion, may require a full review of every Receivable File by
the Trust Collateral Agent or such other party acceptable to the
Insurer, at the expense of AmeriCredit.
(b) 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 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. Subject to Section 3(d) hereof, the Custodian shall at all times
maintain the original of the (i) fully executed original retail installment
sales contract or promissory note 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 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.
(c) 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
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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.
(d) 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.
(e) 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.
(f) Review of Lien Certificates. On or before the Closing Date, and on
or before the applicable Subsequent Transfer Date in the case of any Subsequent
Receivables, the Custodian shall deliver to the Trust Collateral Agent a listing
in the form attached hereto as Schedule II of Exhibit A-1, or Schedule II of
Exhibit A-2 with respect to any Subsequent Receivables, of all Receivables with
respect to which a Lien Certificate, showing AFS (or an Originating Affiliate or
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-1, or Schedule II of Exhibit A-2 with respect
to any Subsequent Receivables (i) no later than the last Business Day of the
calendar month during which the 90th day after the Closing Date (or, with
respect to Subsequent Receivables, the 90th day after the applicable Subsequent
Transfer Date) occurred, (ii) no later than the last Business Day of the
calendar month during which the 180th day after the Closing Date (or, with
respect to Subsequent Receivables, the 180th day after the applicable Subsequent
Transfer Date) occurred and (iii) no later than the last Business Day of the
calendar month during which the 240th day after the Closing Date (or, with
respect to Subsequent Receivables, the 240th day after the applicable Subsequent
Transfer 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 any kind whatsoever (including the fees
and expenses of counsel) that may be imposed on,
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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 administration of this Agreement, the parties may agree from
time to time upon the interpretation
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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., 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 Marquette Avenue, MAC N9311-161,
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 Xxxxxxxxxxx
-----------------------------------
Name: Xxxx Xxxxxxxxxxx
Title: Managing Director
The foregoing Custodian Agreement
is hereby confirmed and accepted
as of the date first above written.
AMERICREDIT AUTOMOBILE RECEIVABLES TRUST 2006-A-F,
as Issuer
By: WILMINGTON TRUST COMPANY,
not in its individual capacity but solely
as Owner Trustee on behalf of the Trust
By: /s/ Xxxxxxx X. Xxxxx
----------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Financial Services Officer
[Custodian Agreement]
EXHIBIT A-1
CUSTODIAN'S ACKNOWLEDGEMENT
AmeriCredit Financial Services, Inc. (the "Custodian"), acting as
Custodian under a Custodian Agreement, dated as of July 12, 2006, 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
July 12, 2006 (the "Sale and Servicing Agreement"), among AmeriCredit Automobile
Receivables Trust 2006-A-F, as Issuer, AFS Funding Trust, as Seller, AmeriCredit
Financial Services, Inc., as Servicer, and Xxxxx Fargo Bank, National
Association, as Trust Collateral Agent and 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 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 July, 2006.
AMERICREDIT FINANCIAL SERVICES, INC.,
as Custodian
By:
------------------------------------
Name:
Title:
SCHEDULE I
Custodian Exception List
1
SCHEDULE II
Lien Perfection Exception List
2
EXHIBIT A-2
CUSTODIAN'S ACKNOWLEDGEMENT
AmeriCredit Financial Services, Inc. (the "Custodian"), acting as
Custodian under a Custodian Agreement, dated as of July 12, 2006, 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 Noteholders certain "Receivable Files," as defined in the Sale and
Servicing Agreement, dated as of July 12, 2006, among AmeriCredit Automobile
Receivables Trust 2006-A-F, AFS Funding Trust, 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 Schedule A to the Subsequent
Transfer Agreement dated as of ___________, 20__, among AmeriCredit Automobile
Receivables Trust 2006-A-F, as Issuer, AFS Funding Trust, as Seller, AmeriCredit
Financial Services, Inc., as Servicer, Xxxxx Fargo Bank, National Association,
as Trust Collateral Agent and as Backup Servicer, 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
__th day of __________, 20__.
AMERICREDIT FINANCIAL SERVICES, INC.,
as Custodian
By:
-----------------------------------
Name:
Title:
SCHEDULE I
Custodian Exception List
1
SCHEDULE II
Lien Perfection Exception List
2
EXHIBIT B
TRUST COLLATERAL AGENT
ACKNOWLEDGEMENT
Xxxxx Fargo Bank, National Association, acting as Trust Collateral
Agent pursuant to that certain Custodian Agreement, dated as of July 12, 2006
(the "Custodian Agreement"), among AmeriCredit Financial Services, Inc. ("AFS"),
Xxxxx Fargo Bank, National Association, as Trust Collateral Agent and Financial
Security Assurance Inc., ("Financial Security") hereby acknowledges that in
accordance with Section 3(a)[(i)]/[(ii)] of the Custodian Agreement it has
conducted a limited review of [at least 300]/[___] of the Receivable Files and
hereby confirms that each Receivable File so reviewed, with the exceptions noted
on Schedule III hereto, included (i) a fully executed original retail
installment sales contract or promissory note, and (ii) the Lien Certificate or
a copy of the application therefor. The Trust Collateral Agent has not otherwise
reviewed the [related Subsequent] Receivables or the related Receivable Files
for compliance with the terms of the Sale and Servicing Agreement. Capitalized
terms used herein and not otherwise defined herein shall have the meanings
ascribed to such terms in the Sale and Servicing Agreement.
IN WITNESS WHEREOF, Xxxxx Fargo Bank, National Association has caused
this acknowledgement to be executed by its duly authorized officer as of this
___th day of __________, 2006.
XXXXX FARGO BANK, NATIONAL
ASSOCIATION, as Trust Collateral Agent
By:
------------------------------------
Name:
Title:
3
SCHEDULE III
Trust Collateral Agent Exception List
4
